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In July 2015, James Clapper, then the Director of National Intelligence, issued Directive 191, officially codifying the “duty to warn.” All US intelligence agencies would be required to “provide warning regarding threats to specific individuals or groups of intentional killing, serious bodily injury, and kidnapping.”
A few years later, in 2017, according to a New York Times report, US intelligence agencies began to pick up word of a Saudi Arabian plot to kill the journalist Jamal Khashoggi, who had been publicly critical of the Kingdom’s rulers. Crown Prince Mohammed bin Salman told a top aide that he would use a “bullet” on Khashoggi if he could not be compelled to return to Saudi Arabia. On October 2, 2018, Khashoggi was lured into the Saudi consulate in Istanbul, where he was drugged, strangled, and then dismembered with a bone saw by a team of assassins dispatched from Riyadh.
The question that lingers is whether the US intelligence community was aware that the plot to kill or kidnap Khashoggi was moving ahead. If so, did they fail to exercise the legal duty to warn, in violation of Directive 191?
In November 2018, the Knight First Amendment Institute and the Committee to Protect Journalists came together to demand answers. We each filed a Freedom of Information Act request asking for records from intelligence community member agencies, including the CIA, NSA, FBI and the State Department. When those requests were ignored, we sued those agencies.
Our legal action prompted a response from the State Department, which informed us that it had no relevant records. But the other intelligence agencies, including the CIA, refused to provide any answer at all, asserting that to either confirm or deny the existence of responsive records would compromise “sources and methods” and thus pose a risk to national security. In legal parlance, this was a Glomar response, a reference to a 1975 incident involving a ship called the Glomar Explorer that was or was not used in a CIA operation. (It was.)
In its ruling on our action, the US District Court backed the intelligence community. We contended that this Glomar response undermined any potential accountability, and appealed the decision to the US Court of Appeals for the DC circuit. Forty-one media and human rights organizations joined our effort and signed on to two amicus briefs. On August 27, the US Court of Appeals issued its ruling, once again siding with the government.
Our experience has convinced us that the law is unenforceable in its current form. The ability of the intelligence agencies to invoke Glomar, and the extraordinary deference that the courts have traditionally shown for such assertions, makes meaningful oversight impossible. If the duty to warn is going to have meaning, then Congress must act to ensure accountability.
Rote assertions by the intelligence community that to confirm or deny the existence of records related to the duty to warn would compromise national security do not pass the sniff test.
Compliance with Directive 191 already requires that the threatened individual be informed of the plot. This cannot be done without implicitly confirming relevant intelligence exists. Conversely since there is a legal obligation to warn threatened individuals, except in very limited circumstances, the lack of such a warning should serve as a tacit acknowledgement that there is no such intelligence, provided the law is followed. The Khashoggi case proves the point, as there are only two possible explanations for the facts. Either the US intelligence agencies missed the plot against Khashoggi, or they were aware that they failed in their legal duty to warn.
What might Congressional action look like? First and foremost, Congress should compel the intelligence agencies to make public any information about the plot to murder Khashoggi and should take steps to ensure that the US intelligence agencies that may have had prior knowledge of the plot acted in accordance with Directive 191.
Secondly, Congress should consider ways to limit Glomar responses, which have become more and more routine, subverting the government transparency FOIA was intended to foster. Rather than the current deference, any Glomar responses should trigger a high level of judicial scrutiny and oversight to ensure that the response is based on genuine national security concerns rather than an effort to suppress embarrassing facts.
Why is the duty to warn important to journalists around the world working on sensitive stories? Since 1992, when CPJ began keeping detailed data, nearly 1000 journalists have been murdered in reprisal for their reporting. In about 40 percent of those cases, the journalists were threatened before being killed, meaning there was an active plot against them. If US intelligence agencies have knowledge of such plots and effectively exercise their duty to warn, lives could be saved.
Next week, November 2, is the UN-designated International Day to End Impunity in the Killing of Journalists. I’ll mark the day by providing testimony in The Hague as part of a People’s Tribunal, a grassroots trial based on international law intended to gather evidence, highlight the recent murders of journalists and bring the killers to justice. More than 80 percent of all murders of journalists go unpunished, and so we must continue to fight the scourge of impunity with everything we have. But it would be far better of course, to reduce the death rate.
The duty to warn is a powerful tool that can help save lives, but because there is no accountability within the US Intelligence Community when it comes to its application, we don’t know if it’s being used effectively, or at all. CPJ’s experience shows that the courts offer no recourse. It’s time for the Congress to get involved.
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