19 June 2004

The Congressional Quarterly [below], Christian Science Monitor, Wired and others have reported on a provision of Senate bill S. 2386, Intelligence Authorization for 2005, to allow domestic spying by the Department of Defense. Senate Report 108-258 accompanying the bill describes in Section 502 why DoD needs to have domestic spying prohibition lifted: so DoD can do what the CIA does!

[DOCID: f:sr258.108]
From the Senate Reports Online via GPO Access

                                                       Calendar No. 499
108th Congress                                                   Report
 2d Session                                                     108-258




                  May 5, 2004.--Ordered to be printed


 Mr. Roberts, from the Select Committee on Intelligence, submitted the

                              R E P O R T

                         [To accompany S. 2386]

    The Select Committee on Intelligence (SSCI or Committee),
having considered the original bill (S. 2386), to authorize
appropriations for fiscal year 2005 for intelligence and
intelligence-related activities of the United States
Government, the Intelligence Community Management Account, and
the Central Intelligence Agency Retirement and Disability
System, and for other purposes reports an original bill without
amendment favorably thereon and recommends that the bill do



    Section 501 removes the sunset provision associated with
Department of Defense authority to conduct commercial
activities necessary to provide security for intelligence
collection activities abroad. This authority was first granted
in 1991 (Public Law 102-88, Sec. 504) with a sunset date of
December 31, 1995. Since enactment in the Intelligence
Authorization Act for Fiscal Year 1991, the authority has been
extended on four occasions (Public Law 104-93, Public Law 105-
272, Public Law 106-398, and Public Law 107-314). Given these
four previous extensions and the importance of the authority to
Department of Defense intelligence activities, this provision
permanently extends the authority and the associated
requirements for the conduct of these activities.

[This is the domestic spying provision:]

    Section 502 provides a necessary Defense intelligence
exemption to a provision of the Privacy Act (5 U.S.C. 552a).
Section 552a(e)(3) of Title 5, United States Code, requires
each agency that maintains a system of records to inform each
individual whom it asks to supply information, on the form
which it uses to collect the information or on a separate form
that can be retained by the individual, of:
          (A) the authority (whether granted by statute, or by
        executive order of the President) which authorizes the
        solicitation of the information and whether disclosure
        of such information is mandatory or voluntary;
          (B) the principal purpose or purposes for which the
        information is intended to be used;
          (C) the routine uses which may be made of the
        information * * *; and
          (D) the effects on [the individual], if any, of not
        providing all or any part of the requested information.
    To improve the ability of intelligence personnel of the
Department of Defense to recruit sources, it is necessary for
Defense intelligence personnel, without having to divulge their
affiliation with the Department or the U.S. Government, to
approach potential sources and collect personal information
from them to determine their suitability and willingness to
become intelligence sources.
    The DCI has recognized that compliance with the
requirements of Section 552a(e)(3) has the potential to
threaten operational relationships, compromise the safety of
intelligence officers, and jeopardize intelligence sources and
methods. Pursuant to Section 552a(j)(1), the DCI has exempted
all systems of records maintained by CIA from the requirements
of Section 552a(e)(3). See 32 C.F.R. 1901.62(b). Section
552a(j)(2) grants a similar exemption to law enforcement
personnel. Compliance with Section 552a(e)(3) poses similar
risks to Defense intelligence personnel and to the Defense
Department's human intelligence mission.
    Section 503 of the Intelligence Authorization Act for
Fiscal Year 1995 (Public Law 103-359) granted Defense
intelligence personnel a very limited exemption from Section
552a(e)(3), i.e., the exemption is limited to a single
``initial assessment contact outside the United States.''
Current counterterrorism operations highlight the need for
greater latitude for assessing potential intelligence sources,
both overseas and within the United States. Amending the
Privacy Act to give Defense intelligence officers the same
protection enjoyed by CIA when assessing and recruiting sources
should serve to protect these officers and shield their
operations. This should improve the Defense Department's
ability to conduct successful human intelligence operations.

[End excerpt]


June 15, 2004 - 7:52 p.m.

Back to the Future: Pentagon Poised for Domestic Intelligence Ops

By Justin Rood, CQ Staff

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."

Domestic Disturbance?

"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.

Justin Rood can be reached via jrood@cq.com

Source: CQ Homeland Security
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