On February 8, 2016

Whistleblowers and Spies: Who Benefits from a NOIR?

Dr. David Charney’s proposed National Office for Intelligence Reconciliation (NOIR) was designed to better manage the problem of insider threat and insider spying. One criticism of NOIR has been that it would not work for all insider spies. However, it must be pointed out that it was never claimed to be one hundred percent effective. NOIR cannot be an option for all insider spies, nor was it intended to be.  In and of itself, a NOIR cannot eradicate all instances of insider espionage (but what approach possibly could?).  Rather, it is one of several tools – along with technical approaches and the threat of legal punishment – that can work in combination to significantly reduce the likelihood of the behavior and to minimize damage when it does occur.

People tend to look for one-size-fits-all, universally applicable solutions, especially to their most worrisome problems.  Of course, we’re smart enough to know we live in a complex world and one-size rarely ever fits all.  Still, we instinctually wish for that all-purpose fix, whether it’s the Philosopher’s Stone, the Holy Grail, or Dr. Seuss’ Thneed.

That also seems to be the case in counterintelligence (CI).  Most recently we’ve searched for technical solutions that will perform their data extraction magic and point us to that employee or hacker who is stealing our data.  We seek one-size-fits-all software that will work in any office (government or private industry), under any circumstances, for any employee.

When we do look at solutions based on human behavior, we tend to take a black and white approach, not just to motivation, but to our intrinsic nature.  A particular individual is either “good” or “bad”, trustworthy or untrustworthy, honest or hiding something.  From a legal standpoint, this makes perfect sense, since the ultimate goal is to determine guilt or innocence, something we also consider in absolute terms.

However, there’s little room in either approach for the frustrating reality that each individual is guided by uniquely subjective attitudes that don’t lend themselves to one-size-fits-all.  When we admit that, the problem becomes much more complicated, about 7.4 billion times more complicated at last count.  Obviously, one size cannot possibly fit all.

So, who would benefit from a NOIR?  What sort of insider spy would be most likely to make use of the unique opportunity it presents to break out of a hopeless downward spiral, paying a significant price for his or her poor judgement but coming out comparatively intact and with at least some prospect for a decent future?  Who takes the difficult high road out rather than remaining stuck in a web of lies, waiting for the day he or she is exposed and the future is one of disrepute and the prospect of a lengthy prison term?

The answer is best given in NOIR: A White Paper[1], Dr. Charney’s two-part analysis of the psychology of the insider spy and his proposal for a new governmental agency that addresses insider espionage through an understanding of that psychology.  Through his decades of work with US intelligence community officers and his personal involvement in the legal cases of three prominent insider spies, Dr. Charney has identified what he describes as their core psychology – an intolerable sense of personal failure, as privately defined by that person.

Understanding this core psychology provides a means for CI professionals to determine the uniquely subjective personal motivation – the mindset – of a particular insider spy.  This is the key that opens the door to the elusive why of individual cases of espionage, without which explanations are superficial and of limited value in preventing future cases.

Given that core psychology, who are the insider spies that would be most likely to benefit from a NOIR?  In general terms, the NOIR concept is based on appealing to those who come to realize the decision to commit espionage has not ultimately resolved their personal issues, or that the personal cost of their espionage has proven too high.  While appearing to be a reasonable solution at the time (most likely while experiencing what Dr. Charney describes as a psychological perfect storm), the insider spy sooner or later comes to regret the decision and desperately wishes there was a way out.  The NOIR is designed to be that way out.

Of course, to seek that way out the insider spy has to be someone who is capable of regret.  Fortunately (at least in this case), regret is an almost universal human experience.  The insider spy’s regret may be based on one or more issues.  He may suffer cognitive dissonance when his actions contradict his perception of himself as being a moral person.  He may find that the money he receives from his handlers or the satisfaction of getting back at a despised employer or system ultimately does not fulfill his more deep-seated psychological needs.  He may find living a double life under the constant threat of exposure too much of a strain.  In the case of Canadian spy Jeff Delisle, it may have been the danger he inadvertently placed his family in when his Russian handlers made thinly-veiled threats against his children.[2]

Are there categories of insider spy that are unlikely to suffer regret?  Certainly sociopaths are unlikely to experience any sort of regret for the harm they do.  Former US Navy Chief Warrant Officer John Anthony Walker never expressed any visible sympathy for the suffering he caused his own family or regret for the damage he did to the country he betrayed.[3]  On the other hand, the extreme narcissist who falls somewhat short of sociopathy may suffer regret, not on moral grounds or sympathy for others, but simply because he eventually discovers it isn’t fulfilling his egocentric needs.

Insider spies who deliberately join an organization in order to obtain and illegally pass on classified or proprietary information, usually (but not necessarily) to a foreign intelligence service or business competitor, are perhaps better categorized as “moles.”  Because a mole joins an organization under false pretenses and with the deliberate intention of stealing resources or causing damage, he is less likely to suffer regret.  Moles are not good candidates for a NOIR.  They are best dealt with through traditional and effective employee screening.

Moles are not trustworthy employees who under certain circumstances make the ill-considered decision to commit espionage.  Instead, deception and theft is their plan from the very beginning.  One example would be Cold War-era spy Karl Koecher, a member of the Czechoslovakian intelligence service who nevertheless gained employment in the Central Intelligence Agency under the guise of rabid anti-communist immigrant.[4]  Rather than suffering regret, secretly and illegally obtaining his employer’s resources is the mole’s raison d’etre.

The argument could be made that ideologically-motivated insider spies would be poor candidates for a NOIR because they believe their espionage is justified, even righteous.  As we have suggested elsewhere (see The Ideological Spy: Ana Montes and the Havana Starbucks[5]), ideology may not be as sacrosanct as commonly assumed.  Individuals select and adopt the ideology they believe best represents their subjective worldview and fulfills their personal psychological needs.  In a free society at least, we choose our ideology, it doesn’t choose us.

Therefore, when an ideology ceases to fulfill an individual’s personal needs, appears to contradict or undermine his favorable perception of himself, or becomes less attractive than an alternative, the window opens for regret.  Ana Montes, a Defense Intelligence Agency officer who spied for Cuba, may be considered the very model of an ideological spy, but even she is reported to have asked her Cuban handlers to allow her to end her espionage when faced with the prospect of marriage and a family.[6]

Whether an ideology motivates an individual to beneficial or harmful actions, adopting and acting in accordance with that ideology is still a matter of choice.  As such, it is subject to changing circumstances and perception.  The ideological insider spy may still be a suitable candidate for a NOIR if and when the personal psychological needs that made the ideology attractive in the first place are no longer met or a more satisfying alternative is discovered.

A frequently asked question, particularly in light of the Edward Snowden case[7], is whether so-called “whistleblowers” would be suitable candidates for a NOIR.  To answer requires defining the term whistleblower.  We generally acknowledge that whistleblowing and espionage are not the same, but why?  In a legal sense, how are they different?

As far as US federal employees are concerned, the Whistleblower Protection Act of 1989 (Pub.L. 101-12) defines a whistleblower as an employee who has reason to believe his or her employer has violated some law, rule or regulation; testifies or commences a legal proceeding on the legally protected matter; or refuses to violate the law.  Compare this to U.S. Code Title 18 (Crimes and Criminal Procedure), Part I (Crimes), Chapter 37 (Espionage and Censorship), § 798 (Disclosure of classified information), which defines espionage as knowingly and willfully communicating, furnishing, transmitting or otherwise making any classified information available to an unauthorized person, or publishing, or using it in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States.[8]

The most salient difference is that, by definition, whistleblowing is a legal activity, while espionage is an illegal one.  A legitimate whistleblower need not seek the assistance of a NOIR since he or she is engaged in a legal activity.  The whistleblower doesn’t need a NOIR because his goal is to bring the alleged illegal activity to light, inevitably raising his own profile.  The insider spy, on the other hand, deliberately remains in the shadows, at least until achieving his goal.  Moreover, the insider spy tends to be part of a conspiracy of one sort or another, traditionally by working with a foreign intelligence service.

Comparing the two definitions also suggests that the whistleblower’s motivation is to fix a problem within the system in order to improve it.  As such, the whistleblower’s motivation is based on a sense of morality or justice; he seeks the betterment of the system in service of the greater public good.

The self-perception of morality may play a role in the motivation of the spy (as in the traditional concept of the ideologically-motivated spy), but is not a necessary component.  The role of external players (foreign governments or “unauthorized persons…using [the classified information] in any manner prejudicial to the safety or interest of the United States”) is also a defining difference between the spy and the whistleblower.

In short, at least in the case of federal employees, the whistleblower is not an appropriate candidate for a NOIR for several reasons.  First, the activity is legal by definition and in contrast to espionage.  Second, the activity is done “in the light of day” and in the interest of serving the greater public good.  As such, the whistleblower is aware that his or her identity will become public and, one would assume, is prepared for and perhaps welcomes the consequences of that exposure.  Third, the whistleblower in not engaged in an activity that is intended to benefit foreign governments at the expense of the US government or involves unauthorized persons who may use the information to the detriment of the safety or interest of the United States.  If anything, the whistleblower’s intention is to benefit the US government’s ability to serve its citizens.

So, is Edward Snowden a whistleblower or a spy?  Based on the legal definitions, he could be considered either or even both.  What has been made publicly available regarding his actions and their domestic and international repercussions, as well as his own statements about his mind set and motivation includes features that may be found under both definitions as well as in the common conception of the “mole”.  However, regardless of how he is characterized, it seems clear that he would not have been a good candidate for a NOIR.  Regret appears not to have played a significant role.

Acknowledging that a NOIR is not appropriate for dealing with sociopaths (who are unlikely to experience regret), moles (who are unlikely to experience regret because espionage is their specific purpose in joining an organization), and legitimate whistleblowers (in this case, legitimacy as defined by US law and in contrast to espionage as defined by the same), is establishing a NOIR still worth the effort?  Is a solution that works for most but not all cases still worthwhile?

The history of espionage in the United States would suggest that the majority of those who have betrayed the trust placed in them have not been moles or sociopaths (although narcissism often appears to play a significant role).  The majority of known insider spies have experienced regret at some point and in one form or another during the course of their espionage careers.  Experiencing regret and seeking a way out, these individuals are all potential candidates for the opportunity a NOIR would present.

It is quite simply human nature to experience regret.  The trusted individual who legitimately obtains a position providing him or her access to classified information (or proprietary information, in the case of the private sector), only later to suffer a change in circumstances that leads him or her to the decision to commit espionage, is the ideal candidate for a NOIR.  He or she is not a black and white caricature, intrinsically good or evil, but a fellow human being who is capable of realizing that a decision, usually made in haste, was a poor one with potentially devastating consequences.

Having broken the law, the insider spy should face punishment.  The punishment should involve restitution.  The punishment, however, should also serve the best interest of the country he or she has betrayed.  A NOIR could serve precisely that interest.  Given the damage to national security even one well-placed insider spy can produce, establishing a NOIR is well worth the effort.

Footnotes

[1] http://www.noir4usa.org/noir-papers/noir-white-paper/

[2] http://noir4usa.org/they-had-a-photo-of-my-children-the-jeffery-delisle-case-part-ii/

[3] At his sentencing, Judge Alexander Harvey II said to Walker, “I look in vain for some redeeming aspect in your character.”

[4] Sulick, M. (2013).  American Spies: Espionage Against the United States From the Cold War to the Present. Washington, DC: Georgetown University Press.  Pgs. 135-139

[5] http://noir4usa.org/category/blog/

[6] http://www.washingtonpost.com/sf/feature/wp/2013/04/18/ana-montes-did-much-harm-spying-for-cuba-chances-are-you-havent-heard-of-her/

[7] http://www.politico.com/magazine/story/2014/03/stopping-next-edward-snowden-105004?o=0

[8] Cornell University Law School, Legal Information Institute website (http://www.law.cornell.edu/uscode/ text/18/798)

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