The gloves will be off for domestic military intelligence operations if a provision inserted in the Senate’s 2005 intelligence authorization bill (S 2386) stays in the legislation, civil liberties experts and privacy advocates say.
The Pentagon has long had the authority to conduct intelligence within the United States to protect its military personnel or bases against an attack, according to experts. But, during the Vietnam War, a scandal broke out when it was revealed that military agents had spied on civilians as well as soldiers for their political beliefs instead of their threat to the Defense Department’s security.
Following the 1970 revelations of Christopher Pyle, then a graduate student at Columbia University, that the Pentagon spied against antiwar groups in the 1960s, Congress held hearings that resulted in recommendations that the Defense Department be barred from conducting domestic intelligence. But no new laws were created specifically prohibiting the practice.
“The Pentagon gave [Congress] strong assurances they would not return to domestic spying on civilian political activity,” Pyle, now a professor at Mount Holyoke College, said by telephone Tuesday.
In 1974, the Privacy Act (PL 93-579) was signed into law, requiring representatives from most government agencies – including the Defense Department – to identify themselves when they collect information on U.S. citizens and legal resident aliens, and to identify the purpose of their information collection.
But language inserted in the Senate version of the intelligence authorization bill would exempt the Defense Department from those provisions, opening the door to an expanded authority to surreptitiously collect information on U.S. residents.
The change is necessary “to improve the ability of intelligence personnel of the Department of Defense to recruit sources,” according to the committee report accompanying the bill.
Defense Department compliance with the Privacy Act provisions “poses . . . risks to Defense intelligence personnel and to the Defense Department’s human intelligence mission,” the report states.
There is also the risk of not being able to get people to talk to them.
“Typically,” Defense Intelligence Agency (DIA) spokesman Donald Black explained, “people are more inclined to open up and offer information if they don’t feel threatened, quote unquote.”
“Scratch that last comment,” Black added. “People are more inclined to be open in a casual conversation, as opposed to if they feel like they’re being interrogated.”
An official with the Office of the Secretary of Defense put it more directly (but only on the condition that neither his name nor his title be used, because, he said, he had not spoken with an expert on the topic).
“In some cases, when you reveal you’re an intelligence agent, people no longer talk to you,” the official said. “If a person has nothing to hide, then they should have no reason not to talk to you.”
DIA’s Black explained that military intelligence agents would still be “obligated by the same rules” to tell people what information had been collected about them, if they requested it.
When asked if an agent might pose as a professor or activist or adopt another persona to obtain information, Black said no. “They aren’t going to approach anyone under false pretenses.”
Doing so, Black said, is a violation of ethics and practice. “It is not our function to operate that way,” Black said.
“We’re not trying to find out secret information on people’s lives,” said the DIA spokesman. “It’s to enable us to make contacts with people in the U.S. who might have information that would be helpful in preventing harm or damage to our country, our security.”
“It does look like they are clearing the way for domestic intelligence collection,” said Pyle, a former Army intelligence officer.
Civil liberties advocates share Pyle’s view, and voiced concern.
“Keep in mind that the Privacy Act requirements only apply when U.S. citizens are involved,” said David Sobel, general counsel for the Electronic Privacy Information Center, a Washington, D.C.-based privacy group. “What are the circumstances under which DOD intelligence agents would be dealing with U.S. citizens? That’s where the concern comes from,” Sobel said.
The Pentagon does not have a clear answer to Sobel’s question. It insists that its domestic intelligence operations are strictly limited to analysis of information gathered by others – leaving Sobel and others to wonder why it needs an exemption to the Privacy Act.
Since its inception in October 2002, Northcom, the Pentagon’s new Northern Command for U.S. and Canadian operations, has drawn the attention of civil liberties advocates wary of military – especially military intelligence – operations on U.S. soil.
“Other -coms – Southcom, for example, has enormous intelligence capabilities,” said Joe Onek, a lawyer and policy specialist at the Washington, D.C.-based Open Society Policy Center, backed by liberal philanthropist George Soros, referring to the Pentagon’s Southern Command. Southcom oversees defense operations in South and Central America. “Does Northcom intend to replicate it, and go into full-scale spying against the U.S.?” Onek wondered.
Although the scale of Northcom’s current activities is not clear, its intent is discernible: Northcom is in the process of completing a $29 million intelligence center in Colorado Springs, Colo., staffed by intelligence analysts and connected to classified national security databases at other federal agencies.
“It’s a matter of keeping up with the Joneses,” said Pyle. “Everybody wants to collect their own intelligence, they don’t want to rely on other people’s intelligence. They can always get cut off, or they may not get it quick enough.”
Pentagon representatives have insisted that Northcom’s intelligence capability is limited to fusion and analysis.
“Our intelligence capability is purely analytical,” a Northcom official told CQ Homeland Security last October.
Pyle reacted skeptically.
“That’s what the Army intelligence command told its superiors in the 1960s, and it turned out not to be true,” said Pyle, who now teaches constitutional law.
Men in Gray
Military intelligence operations in the United States “is one of the grayest of the gray areas,” said Jim Dempsey, executive director of the Center for Democracy & Technology, a civil liberties organization.
Dempsey, an expert in intelligence policy, said he feels the draft language raises questions on top of questions.
“The military isn’t supposed to be collecting information in the United States in the first place,” Dempsey said. “But what about Northern Command? What are the rules that apply to them?
“It is dangerous to be creating exceptions when we don’t even know what the rules are,” Dempsey said.
There is one law that appears to clearly limit the Pentagon’s ability to spy on Americans: The Posse Comitatus Act of 1878 prohibits the Defense Department from engaging in law enforcement activity, and various court rulings have applied that to surveillance functions in support of law enforcement efforts.
The Senate Select Intelligence Committee reported the authorization bill on May 5, and it was referred to the Armed Services and Foreign Relations committees on May 7.
The House Permanent Select Intelligence Committee is slated to mark up its version of the authorization bill in closed session on June 16.
In a curious twist of history, the ranking member, Rep. Jane Harman, D-Calif., was staff director for the Senate Judiciary Committee’s Subcommittee on Constitutional Rights in the mid-1970s, when the body held its hearings into the military’s intelligence abuses almost 30 years ago.
Harman’s office did not return several calls Tuesday seeking comment on the matter.
06/15/2004 Justin Rood, cryptome.org