The German language is famous for its compound words expressing some ineffable truth difficult to convey in English. Among them: Irrweg, which means, roughly, “a path that should not have been taken.” For the American national-security apparatus, the recent turn toward spotting “disinformation” in American public discourse has been such a path.

For decades, disinformation was intelligence jargon for a devious but arcane category of KGB mischief. In recent years, however, it has seeped into routine political discourse. In the process it has become intensely divisive, threatening to erode further the precious but fragile bipartisan consensus around national security and the important work of our intelligence community.

The root of the problem is that “disinformation” invites a focus on the message instead of the messenger. This is tricky terrain for security agencies: Americans have a First Amendment right to speak freely about foreign policy, even if their speech aligns with the views of hostile foreign governments. Foreign intelligence services, by contrast, have no right to propagandize inside the United States, and Congress has empowered our law enforcement and intelligence agencies to stop them. Instead of seeking to purify American public discourse of tainted information, agencies should adhere to their traditional focus on disrupting clandestine activities conducted or directed by foreign intelligence services.

To be sure, such activities can include subversion and propaganda (variously described in official sources as “active measures” or “covert actions”). Indeed, the term “disinformation” originally referred only to such operations, which U.S. intelligence agencies appropriately work to expose. But officials should stop at seeking to prevent the dissemination of “narratives” that merely align with foreign interests. Unless they are being directed by a foreign power, Americans are free to opine on foreign affairs, even if they echo dubious claims from abroad.

The distinction between message and messenger is embedded in the laws that govern intelligence collection in the United States. The Foreign Intelligence Surveillance Act (FISA) distinguishes between domestic groups “directed and controlled” by foreign powers and groups whose activities merely align with a foreign power’s interests. On this point, the House Report accompanying FISA was firm: “no entity which purports to be a U.S. person should be considered directed and controlled by a foreign government solely on the basis that its activities are consistent with the desires of a foreign government.” FISA’s drafters knew that efforts to combat foreign propaganda could impinge on free speech. “There may often be a narrow line,” the House Report noted, between foreign “covert action” and “Americans’ exercise of their First Amendment rights.” Rather than empower agencies to monitor public discourse for foreign-aligned messages, however, FISA made it harder to surveil Americans suspected of supporting foreign propaganda activities than those suspected of gathering intelligence for a foreign power.

Other FISA provisions help fortify the distinction between genuine foreign agents and Americans whose views merely align with those of a foreign power. For example, FISA requires that, to be deemed an “agent of a foreign power” who can be wiretapped under the law, an American must knowingly assist a foreign power in its clandestine activities. Unwitting assistance is not enough. The law also clarifies that an American cannot be deemed an “agent of a foreign power” based solely on conduct protected by the First Amendment—speech, peaceful assembly, press activities, or religious exercise.

FISA includes these guardrails because the U.S. Constitution guarantees the right to criticize and disagree with the government—even when a speaker echoes views of America’s adversaries. Indeed, such dissent can be especially valuable at decisive moments in our relations with foreign powers. In 1848, Congressman Abraham Lincoln denounced the Mexican-American War in a fiery speech on the House floor. Lincoln accused President James Polk of having an unspecified ulterior motive for war and mocked the border claims that supplied the administration’s casus belli. Mexican disinformation, or patriotic dissent?

Similarly, in October 2002, future president Barack Obama lambasted the Bush administration’s case for war in Iraq at a rally in Chicago. Iraq, he argued, posed “no imminent and direct threat to the United States,” contradicting administration pronouncements, intelligence community assessments, and reporting by the New York Times. He also predicted that “even a successful war against Iraq will require a U.S. occupation of undetermined length, at undetermined cost, with undetermined consequences.” Meantime, administration officials dismissed projections that the war could cost $95 billion and that postwar Iraq would require 100,000 troops. (In the end, of course, both figures far surpassed even those forecasts). Sometimes, the dissenters are right.

Preserving free expression is justification enough for allowing open debate, but there are instrumental benefits, too. Russia’s initial military failures in Ukraine have many fathers, to be sure, but among them is the lack of open debate in Russia about key premises of its plan to topple the Ukrainian government: the capability and legitimacy of the Ukrainian state, the allegiance of Russian-speakers in Ukraine, and the true condition of each side’s armed forces and intelligence networks, among other things. Vladimir Putin heard only what sycophants told him or housebroken state media aired. Poor debate makes for poor decisions.

Our public square is vastly healthier than Russia’s, but we should ask ourselves whether we are altogether immune from the tendency to shut down dissent from the official line. Earlier this year, when a U.S. senator on the Armed Services Committee sent a letter questioning whether Ukraine should be admitted to NATO (while also expressing support for “urgently” helping Ukraine to defend itself), a White House official accused him of “digesting Russian misinformation.”

Was it wise to attempt to banish discussion of that approach? Ultimately, after Russia’s invasion began, Ukraine offered neutral status as part of a potential peace deal. Using accusations of “disinformation” to discredit or silence American speakers whose views may align (or be said to align) with those of an adversary harms us, not them, because it impoverishes our domestic debate on fateful questions of war and peace.

A subtler case arises when Americans independently choose to spread content that is in fact covertly generated foreign propaganda. In February, U.S. intelligence officials speaking on background to the Associated Press accused the news site ZeroHedge of “amplifying Kremlin propaganda” by reposting articles critical of U.S. policy toward Russia and Ukraine. The articles were originally produced by the Strategic Culture Foundation, an online publisher reportedly directed by the SVR, Russia’s foreign-intelligence agency, and sanctioned in 2021 by the U.S. Treasury Department.

This creates a conundrum: a spurious “foundation” directed by the SVR is undoubtedly a valid foreign-intelligence target. Americans who independently choose to amplify its messages, however, are not. We can sympathize with officials’ predicament as they watched SVR-funded content spread among unwitting Americans. Legally, at least, their chosen intervention crossed no line: hortatory statements by government officials, without more, do not violate the First Amendment.

Yet even lawful actions can produce unintended consequences. ZeroHedge denied having any links to Russia and defended its right “to publish a wide spectrum of views that cover both sides of a given story.” Like-minded outlets rushed to its defense. That suggests that if such public brushbacks are noticed at all, they serve only to alienate the Americans whose speech they impugn.

Our security agencies protect Americans’ safety, prosperity, and liberties from foreign threats. Their missions are vital—yet their authorities are vulnerable, for secret power always stands on contested ground. Former CIA director William Colby described a “paradox of secrecy and the free society,” in which governments struggle to inform their citizens fully (a necessary condition for true self-government) while also keeping secrets needed to protect them.

Americans accept our national-security bureaucracy on the understanding that its vast powers will not be “turned inward against those they are meant to protect.” The public’s trust is fragile, however, and a reputation for apolitical professionalism is ever harder to maintain in today’s ultra-polarized environment. Monitoring domestic speech for “disinformation” unavoidably evokes searing political controversies in which online gatekeepers suppressed disfavored assertions. The backlash against the Disinformation Governance Board is a warning: Americans will not support agencies they believe are seeking to silence them.

The risk here is not merely bad press in populist media. In the years after 9/11, national-security legislation routinely earned the support of solid majorities of both parties. No longer. Indeed, waning trust has already undone intelligence authorities used to monitor foreign threats. Several FISA elements, including the Patriot Act’s “business records” provision, lapsed in March 2020 after revelations about the error-ridden surveillance of Trump campaign aide Carter Page. Without broad, bipartisan support, FISA’s critical Section 702 may fall when it comes up for reauthorization next year.

Fortunately, a straightforward alternative exists to the amorphous and politically fraught concept of “disinformation”: the familiar mission of combating clandestine activity directed or controlled by a foreign intelligence service. When foreign states or their agents spread propaganda in the U.S.—for example, the Chinese Communist Party’s use of educational programs and paid media to advance its “foreign propaganda strategy”—agencies should use all lawful tools to monitor, expose, or stop them. What agencies should not do is target “narratives” or Americans’ speech that merely align with the aims and messages of foreign actors.

Unlike “disinformation,” this approach does not depend on subjective assessments of a message’s truth, falsity, loyalty, or harm. The line between clandestine, foreign-directed activities and independent speech is easy to administer. As the Supreme Court has noted, “a person of ordinary intelligence would understand that independently advocating for a cause is different from providing a service to a group that is advocating for that cause.”

America’s security agencies should focus on threats from foreign spies and terrorists. Keeping to that terra firma will best safeguard their core missions and Americans’ liberties.

Photo: Vertigo3d/iStock


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