When the CIA Keeps the President in the Dark

PHOTO: President Barack Obama talks on the phone in the Oval Office with Russian President Vladimir Putin about the situation in Ukraine at the White House, March 1, 2014 in Washington.Pete Souza/The White House via Getty Images
President Barack Obama talks on the phone in the Oval Office with Russian President Vladimir Putin about the situation in Ukraine at the White House, March 1, 2014 in Washington.

When President Obama spoke to German Chancellor Angela Merkel about Ukraine last week, there could have been an awkward moment prompted by the arrest the day before of a double agent allegedly working secretly for the CIA within German intelligence. At least there likely would have been, had Obama known about the arrest or the undercover spy to begin with.

But the president went into the call blind and Merkel didn’t bring it up, according to White House National Security Council spokesperson Caitlin Hayden. The incident has left “frustrated” White House officials to question why the CIA didn’t immediately tell the administration about the bungled operation, The New York Times reported.

It’s unclear who is responsible for the breakdown in communication about the arrest -- Hayden and the CIA won’t say -- but two retired senior intelligence officials told ABC News it should not be surprising that most likely the president and his national security advisor all along were not aware of the alleged recruitment of the German agent, as well as that of another recently discovered purported U.S. spy in the German Defense Ministry.

As former White House counter-terrorism advisor and ABC News consultant Richard Clarke put it, “never in a million years” would the president be briefed on what Clarke called such “totally mundane” recruitment targets. A third retired senior CIA covert operations specialist disagreed in this case, saying it was a “real possibility” the White House was aware of the operation.

Either way, all three former senior officials said it’s up to the CIA’s “good judgment” whether to let the White House in on what one called “pure espionage.”

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There are times when by law the CIA must not only inform but seek the approval from the president for certain operations -- most notably for covert actions. Covert action is defined by U.S. law as “an activity or activities of the United States government to influence political, economic or military conditions abroad, where it is intended that the role of the United States will not be apparent or acknowledged publicly…” As put more simply by former CIA Inspector General L. Britt Snider, covert action is “doing something in another country merely beyond gathering information.”

Some more recently exposed major covert action programs include the CIA’s targeted killing drone program, the joint CIA-military mission to kill/capture Osama bin Laden and the reported Stuxnet cyber-attack on the Iranian nuclear program.

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In his book “Good Hunting,” longtime CIA veteran Jack Devine, who once led the CIA’s largest Cold War-era covert action program assisting the mujahedeen in Afghanistan against the Russians, emphasizes that all CIA covert action over the years – including the most controversial – were approved or ordered by the president at the time.

“It is true that the CIA’s biggest mistakes involved covert action,” writes Devine, who spent more than 30 years in the shadows for the Agency. “But it is also true that these mistakes, without exception, also involved operations carried out at the behest of presidents pursuing flawed policies. And for every covert action that failed spectacularly, there have been others that enabled presidents and policy makers to achieve ends in the nation’s interest with an unseen hand, which is almost always preferable to a heavy footprint.”

Retired veteran CIA attorney John Rizzo told ABC News, “Covert actions are the ones that have tended to become messy over the years, going back to the days of the wink and nod from the president” and now come with a whole “legal regime” to ensure that all bureaucratic checks are in place, including briefings for the correct members of Congress.

But none of those rules apply to the CIA’s regular intelligence collection, or “pure espionage,” according to Rizzo.

“Unlike covert action, the president does not have to approve intelligence collection operations. That's what CIA does, recruit foreign agents when they can,” said Rizzo, author of "Company Man". “There’d be no reason for [Obama] to have known, for instance, if the CIA has in fact recruited German citizens.”

Clarke said the only time the CIA would likely inform the White House about a recruitment mission is if the target is politically sensitive.

"Let’s say you were recruiting the secretary to a president... You’re recruiting the butler to the prime minister, something fairly high up," then, Clarke said, the CIA may decide to inform the White House. "But it’s up to the CIA pretty much to determine what a politically sensitive recruitment is."

Devine told ABC News that in his mind, the equation is simple: “This is espionage. Espionage doesn’t require the president’s approval. Having said that… if you think the case is going to get to the president’s desk, you should brief him on it.”

The German operation has certainly hit the president's desk, as well as newspaper headlines the world over.

When asked if the president was originally briefed on the alleged recruitment of the Germans, National Security Council spokesperson Hayden said she would “definitely” not get into “who knew what and when.”

While Devine said doing anything with human intelligence in Germany was risky due to raised tensions after revelations months before that the U.S. was tapping the communications of German Chancellor Angela Merkel, both Rizzo and Clarke said that from what’s been in the media, the suspected agents wouldn’t fit the bill for being "politically sensitive" enough to require a White House heads up.

“If [the German allegations] did happen, this was just a classic recruitment of a foreign citizen,” Rizzo said.

Unless something goes wrong, as it apparently did in Germany.

In that case, Clarke said the CIA should have informed the White House immediately, most likely the with word coming from CIA Director John Brennan to Susan Rice, the president’s National Security Advisor.

“I’m sure it wasn’t intentional” that the president wasn't briefed until after the call with Merkel, Clarke said, guessing that the news maybe just hadn't spread rapidly enough in the intelligence community.

Whatever the case, the U.S. may have underestimated the diplomatic fallout of the bungled operation. Twice the U.S. Ambassador in Berlin was summoned to German government offices to “clarify” the spying allegations, and Thursday the German Foreign Office announced it had requested America’s top intelligence official in Berlin be sent packing. The Foreign Office said today on Twitter that the move was a "necessary and appropriate action to [the] breach of trust."

“The way I see it, if you consider this with a healthy dose of common sense, it’s a waste of energy to spy on one’s ally,” Chancellor Merkel said Thursday, according to a translation by German news outlet DW. Other prominent German politicians demanded the U.S. cease all spying in their country.

For days the White House, the CIA and the State Department have either declined to comment or offered deflecting statements, but have not denied the allegations.

State Department spokesperson Jen Psaki announced Thursday Secretary of State John Kerry is expected to speak with German Foreign Minister Frank-Walter Steinmeier in coming days.

“I would also say that, last year the president underwent a review of all of our intelligence gathering,” Psaki said. “The Secretary was engaged in that, as were administration officials across the board. There are, of course, a range of factors that are taken into account… keeping Americans safe, keeping allies in other countries safe as well as taking steps to reform and revise some of our systems when needed, and he did just that.”

However, Psaki was presumably referring to the government’s review of signals intelligence in the wake of disclosures about National Security Agency’s electronic eavesdropping, a review that doesn’t deal with old-fashioned human spying.

ABC News’ Mary Bruce contributed to this report.