Overbroad Section 308 Restrictions on Post-Intelligence Community Jobs

With little fanfare, Congress passed a potentially sweeping restriction on the jobs members of the intelligence community can take when they move into the private sector. Intelligence agencies competing with the private sector for talent have begun to embrace the idea that some of their best people will leave government and then return to service later in their careers. In this 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 US military and intelligence personnel worked for the UAE on assignments that gradually shifted from cyber defense to offensive cyber espionage. Three of the intelligence community alumni were criminally charged in September 2021. And under the leadership of Chairman Adam Schiff (D-California), the House Intelligence Committee began work on a bill to regulate what alumni in the intelligence community can do for the foreign governments after leaving the service. This bill eventually became Section 308 of Division X of the Consolidated Appropriations Act of 2022, which was adopted in March.

Most observers agreed that the Raven Project scandal deserved a legislative response. In theory, the misuse of past intelligence experience is already controlled by laws protecting classified information, making it a crime to disclose such information to another government. But drawing that line and sticking to it is left to the individual and, as Project Raven shows, individual judgment isn’t always enough.

Section 308 imposes a regulatory structure limiting the post-service jobs that former members of the intelligence community can pursue. For five years after leaving the intelligence community, they cannot go to work for a foreign government or a private entity under the influence of a foreign government. This prohibition is enforced through mandatory reporting and criminal penalties for knowingly violating the prohibition.

As Chairman of the Board of Directors of the Association of Foreign Intelligence Officers (AFIO), I participated in an online panel discussing the bill when it was first proposed. Attendees included Mike Rogers, former chairman of the House Intelligence Committee; Chris Bing, the reporter who broke the story of the Raven Project; and James Hughes, President of the AFIO. While agreeing on the need for reform, the panel pointed to a number of issues, discussed below. Unfortunately, these issues remain and some of them are likely to cause unnecessary anxiety for intelligence professionals leaving government service.

In some respects, the provision is too narrow. Employment restrictions apply to those who have served in the intelligence community, but not to intelligence clients, such as military commanders, ambassadors or other national security decision-makers, who often have access to highly sensitive and country-specific sources and methods. If the purpose of Section 308 is to protect intelligence capabilities, its obligations should fall on intelligence clients as well as intelligence producers.

Other parts of the layout are too broad. In particular, intelligence veterans subject to the ban might be surprised to find out how many jobs it cuts. Section 308 applies not only to “direct or indirect employment”, but to “any provision of advice or services relating to national security, intelligence, military or homeland security”. On its face, this language would prevent, for example, former intelligence professionals from providing legal or other advice to foreign government wealth funds when their investments are being reviewed by the Committee on Foreign Investment in the United States.

The list of prohibited employers is even longer. Foreign governments are covered, of course, but so are private businesses if their activities are “directly or indirectly supervised, directed, controlled, funded or subsidized, in whole or in substantial part,” by a foreign government. This covers a lot of ground and places a heavy burden on job seekers to dig deep into the financial structure of companies that want to hire them. What does it mean, one might ask, for a company to be “indirectly…funded or subsidized” by a foreign government? Does that include Airbus, notoriously subsidized by European governments? What about the Atlantic Council, also dependent on donations from many governments? How about working for the independent subsidiaries created under the auspices of the Department of Defense to insulate US 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 is compounded by two other aspects of Section 308. First, of course, mistaking the scope of the bill and accepting prohibited work is not just a regulatory offence. It is a crime, and a crime that only members of the intelligence community can commit. This makes the ambiguity of its definitions a grave danger. Second, since Section 308 limits the employment options of members of the intelligence community for five years after they leave government, it may very well apply to people who had already left the service when the provision has been adopted. All intelligence professionals who have left for the private sector in recent years should review Section 308 to ensure that their current jobs have not been retroactively criminalized.

The intelligence community no longer assumes that employees who leave mid-career are gone for good. He hopes that some will come back with new talents. To do this, he must ensure that the start is not an obstacle course of responsibility.

While some of these issues require legislative reform, many can be addressed by agencies. For example, the bill gives the administration broad discretion to decide which intelligence positions will be subject to the new restrictions. Given the risks and ambiguities that Section 308 entails, administration should be careful to avoid extending the provision’s coverage too broadly until its scope has been firmly established. Similarly, the provision grants regulatory authority to agencies when enforcing its restrictions. Any regulations issued under Section 308 should clarify and make sense of its overly broad scope.

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