Published by The Lawfare Institute
in Cooperation With
With little fanfare, Congress has adopted a potentially sweeping restriction on the jobs that members of the intelligence community can take when they head out into the private sector. Intelligence agencies competing with the private sector for talent have begun to embrace the idea that some of their best workers will leave government and then return to service later in their career. In that context, new attention is being paid to where members of the intelligence community go and what they do when they leave, particularly in mid-career.
The need to pay more attention to these post-government positions was dramatized by Project Raven, where former U.S. military and intelligence members worked for the United Arab Emirates on missions that gradually moved from cyber defense to offensive cyber espionage. Three of the former intelligence community alumni were charged criminally in September 2021. And under the leadership of Chairman Adam Schiff (D-Calif.), the House Intelligence Committee began work on a bill to regulate what intelligence community alumni can do for foreign governments after leaving service. That bill eventually became Section 308 of Division X of the 2022 Consolidated Appropriations Act, which was passed in March.
Most observers agreed that the Project Raven scandal deserved a legislative response. In theory, misuse of past intelligence experience is already controlled by the laws protecting classified information, which make it a felony to disclose such information to another government. But drawing that line and sticking to it are left to the individual and, as Project Raven shows, individual judgment is not always enough.
Section 308 imposes a regulatory structure limiting the postservice jobs that former intelligence community members may pursue. For five years after leaving the intelligence community, they may not go to work for a foreign government or a private entity under the influence of a foreign government. This prohibition is enforced by mandatory reporting and criminal penalties for knowingly violating the ban.
As chairman of the board for the Association of Foreign Intelligence Officers (AFIO), I participated in an online panel discussing the bill when it was first proposed. Participants included Mike Rogers, former chair of the House Intelligence Committee; Chris Bing, the reporter who broke the Project Raven story; and James Hughes, AFIO’s president. While agreeing on the need for reform, the panel flagged a number of problems, explored below. Unfortunately, these problems remain, and some of them are likely to cause unnecessary anxiety for intelligence professionals who leave government service.
In some respects, the provision is too narrow. The employment restrictions apply to those who have served in the intelligence community but not to intelligence customers, such as military commanders, ambassadors, or other national security decision-makers, who often have access to highly sensitive, country-specific sources and methods. If the purpose of Section 308 is to protect intelligence capabilities, its obligations should fall on intelligence customers as well as intelligence producers.
Other parts of the provision are overbroad. In particular, intelligence alumni subject to the ban may be surprised to discover how many jobs it forecloses. Section 308 applies not just to “direct or indirect employment” but to “any provision of advice or services relating to national security, intelligence, the military, or internal security.” On its face, this language would, for example, prevent former intelligence professionals from providing legal or other advice to foreign government wealth funds when their investments are reviewed by the Committee on Foreign Investment in the United States.
Even broader is the list of prohibited employers. Foreign governments are covered, of course, but so are private companies if their activities are “directly or indirectly supervised, directed, controlled, financed, or subsidized, in whole or in major part,” by a foreign government. That covers a lot of ground, and it puts a heavy burden on job-seekers to dig deeply into the financial structure of the companies that want to hire them. What does it mean, one might ask, for a company to be “indirectly … financed, or subsidized” by a foreign government? Does that include Airbus, notoriously subsidized by European governments? What about the Atlantic Council, also dependent on the donations of numerous governments? What about working for the independent subsidiaries created under Defense Department auspices to insulate U.S. defense contractors from the influence of foreign owners? Indeed, in many cases, it may not be possible to know whether a company is indirectly financed or supervised by a foreign government, at least not before taking the job.
This breadth and uncertainty are compounded by two other aspects of Section 308. First, of course, guessing wrong about the scope of the bill and taking a proscribed job is not just a regulatory infraction. It’s a crime—and one that only members of the intelligence community can commit. This makes the ambiguities of its definitions a serious hazard. Second, because Section 308 restricts the employment options of members of the intelligence community for five years after they leave government, it may well apply to people who had already left service when the provision was adopted. All intelligence professionals who have left for the private sector in recent years should review Section 308 to make sure their current jobs have not been criminalized retroactively.
The intelligence community no longer assumes that employees who leave mid-career are gone for good. It hopes that some will return with new talents. To do that, it needs to make sure the departure isn’t an obstacle course of liability.
While some of these problems require legislative reform, many can be addressed by the agencies. For example, the bill gives the administration broad discretion in deciding which intelligence positions will be subject to the new restrictions. Given the risks and ambiguities that Section 308 brings with it, the administration should be cautious in extending the provision’s coverage too widely until its scope has been firmly established. Similarly, the provision does grant rule-making authority to the agencies as they apply its restrictions. Any regulations issued under Section 308 should clarify and make sense of its overbroad coverage.