Editors Note: “Rethinking Intelligence” is a project of the Brennan Center for Justice at New York University School of Law that examines the contemporary U.S. intelligence community, which fellow Michael German argues “has grown too large, too expensive, too powerful, too ineffective, and too unaccountable to the American people.”
In this occasional series, Defense One presents a selection of commentaries and interviews conducted by the Brennan Center with officials from defense, homeland security, federal law enforcement, Congress, intelligence, and other groups who present their ideas to improve the business of American intelligence.
Their arguments tackle three fundamental questions: what is the scope of the new intelligence community, why does it sometimes fail, and how should the US reform it? For more, visit the Brennan Center online.
Many Americans were shocked to see the militarized police response to public protests this summer in Ferguson, Missouri. Of course, many working on police reform issues have identified the growing militarization of police tactics and equipment as a problem for over two decades. What is less observable but equally dangerous to American civil liberties is the increasing militarization of domestic law enforcement intelligence operations.
The American tradition of prohibiting military involvement in domestic policing is designed to ensure that we maintain democratic and civilian control over an extraordinarily powerful fighting force. An army designed and equipped to protect Americans should never be turned against Americans except to quell active rebellion. But just as the drug war fuelled increased military participation and militarization in domestic policing, the war on terrorism is driving the militarization of domestic intelligence operations. Unlike the purchases of armored vehicles, military weapons, and SWAT gear, domestic intelligence activities take place mostly in the dark and neither the public nor policymakers really know what is happening.
Military intelligence officials are trained for war against hostile enemies. Their tools, tactics, and attitudes reflect that mission, and are completely inappropriate to a domestic application.
In a recent interview, Erik Dahl, a former Navy intelligence officer and now a professor at the Naval Postgraduate School, explains why someone who trained to spy on the Soviet Navy shouldn’t be involved in domestic intelligence gathering.
Despite such warnings, domestic intelligence programs have become militarized in three ways.
First, military agencies are conducting domestic intelligence collection against Americans, and providing that information to law enforcement officials. The National Security Agency scoops up domestic telephone calling data, as well as the content of U.S. international communications (“inadvertently” grabbing tens of thousands of purely domestic calls each year in the process). The FBI has direct access to this material, and can use it for general criminal purposes through so-called “back door searches.”
Military officials also collect domestic intelligence for “force protection.” A military unit that was caught spying on anti-war protesters under this authority was disbanded in 2008, but the Defense Intelligence Agency picked up its “offensive counterintelligence” duties and re-established an intelligence database in 2010. National Guard units and civilians working at military agencies have been caught illegally spying on domestic protesters, and more recently, engaging in undercover law enforcement activities in violation of the Posse Comitatus Act, a law prohibiting U.S. military personnel from enforcing criminal laws.
Second, military agencies and personnel participate in formal and informal information sharing programs on the federal and state level, including between FBI Joint Terrorism Task Forces, state and local law enforcement intelligence fusion centers, and information sharing networks like the Navy’s Law Enforcement Information Exchange (LInX), and the FBI’s eGuardian program. Though there are legal limits to the type of work military officials can do within these programs and the information they can share, there is little to no oversight conducted to ensure they follow the law.
Third, military intelligence tactics and attitudes rub off on law enforcement personnel assigned to intelligence matters. Most nations outlaw espionage, so foreign intelligence activities have to be carried out through stealth and deception. Avoidance of the law and contempt for the truth can become habitual among intelligence officials, but they simply have no place in a democratic government’s interactions with its own citizens. Yet, throughout the history of domestic intelligence operations in the U.S., law enforcement officials have gone to the military intelligence toolbox in selecting their methods.
In 1976, the Church Committee called the tactics J. Edgar Hoover brought to bear against civil rights and peace activists in the United States “techniques of wartime” better suited for use against agents of hostile foreign nations like the Soviet Union. The Attorney General issued guidelines to ensure future FBI intelligence activities would focus on criminal activity. The Justice Department imposed similar regulations restricting state and local law enforcement criminal intelligence systems.
Restricting domestic intelligence collection to suspected criminal activity is essential to the concepts of limited government and individual liberty, whose foundation lies in what Supreme Court Justice Louis Brandeis called “the right to be left alone.” It also reinforces the rule of law. Methods used in criminal intelligence gathering tend to get exposed in the prosecutions that follow their effective use. Defendants can then challenge their legality, while judges, juries and the public can weigh whether the government tactics are appropriate. Law enforcers can’t be law breakers.
Unfortunately, the federal government has loosened or ignored law enforcement guidelines restricting intelligence gathering in the years since 9/11, removing or weakening the criminal predicates necessary to ensure a proper focus on illegal activity. The results were predictable —increased police spying on minorities and political dissidents and increased efforts to escape judicial and public oversight. Federal law enforcement agencies have adopted policies of “parallel construction” to mask the surveillance methods they use to gather evidence, misleading courts and depriving defendants of their right to challenge their constitutionality. Where evidence of improper FBI surveillance has leaked to the public, the Justice Department invoked “state secrets” to shut down litigation. And at the request of the State Police and FBI, the Virginia legislature exempted its intelligence fusion center from open government laws.
Trained by the military to spy on hostile foreign nations, Dahl cautioned that “you wouldn’t want to hire me to conduct domestic surveillance.” His statement should serve as a warning to those in Congress who authorized the NSA to play a major role in seizing Americans’ electronic communications (and want to give it more authority over U.S. cyber security), and sat silent as the FBI has transitioned into a domestic intelligence agency.
It should also serve as a warning to federal, state and local law enforcement officials. As these agencies have increasingly claimed a role in intelligence collection, they’ve looked to the military and foreign intelligence agencies for tactics, expertise and personnel, without sufficiently recognizing the important distinctions between domestic and foreign intelligence.
The negative public reaction to recent militarized police tactics and equipment is an indication of the unease Americans will feel with militarized law enforcement intelligence efforts. Americans trust the NSA far less than their local police. But when the local police begin adopting intelligence methods used by the NSA and other foreign intelligence agencies, they will begin to lose that essential public support.
No one disputes that there are violent criminals, spies and terrorists within our country and that our law enforcement officials need adequate intelligence tools to catch them. Requiring that police focus on illegal activity doesn’t impair their mission, it puts these threats squarely in their cross-hairs. It is no surprise that Dahl’s research on successfully prevented terrorist attacks show that traditional law enforcement techniques are far more effective than NSA mass surveillance programs.
As Dahl suggests, we need to have a “much better public discussion about intelligence.”
To read an edited transcript of Erik Dahl’s interview, click here.