Pentagon steps up domestic spying

More unsettling news on the falling barriers between foreign intelligence and domestic policing. Thanks to TruthOut for catching this one.

Military Expands Homeland Efforts
Pentagon to share data with civilian agencies
By Bradley Graham
The Washington Post

Wednesday 06 July 2005

A new Pentagon strategy for securing the U.S. homeland calls for expanded U.S. military activity not only in the air and sea — where the armed forces have historically guarded approaches to the country — but also on the ground and in other less traditional, potentially more problematic areas such as intelligence sharing with civilian law enforcement.

The strategy is outlined in a 40-page document, approved last month, that marks the Pentagon’s first attempt since the attacks of Sept. 11, 2001, to present a comprehensive plan for defending the U.S. homeland.

The document argues that a more “active, layered” defense is needed and says that U.S. forces must be ready to deal not just with a single terrorist strike but also with “multiple, simultaneous” attacks involving mass casualties.

The document does not ask for new legal authority to use military forces on U.S. soil, but it raises the likelihood that U.S. combat troops will take action in the event that civilian and National Guard forces are overwhelmed. At the same time, the document stresses that primary responsibility for domestic security continues to rest with civilian agencies.

“The role of the military within domestic American society, both by law and by history, has been carefully constrained, and there is nothing in our strategy that would move away from that historic principle,” said Paul McHale, the Pentagon’s assistant secretary for homeland defense.

Still, some of the provisions appear likely to draw concern from civil liberties groups that have warned against a growing military involvement in homeland missions and an erosion of long-established barriers to military surveillance and combat operations in the United States.

The document acknowledges, for instance, plans to team military intelligence analysts with civilian law enforcement to identify and track suspected terrorists. It also recognizes an expanded role for the National Guard in preparing to deal with the aftermath of terrorist attacks. And it asserts the president’s authority to deploy ground combat forces on U.S. territory “to intercept and defeat threats.”

“It’s a mixed message,” said Timothy H. Edgar, a national security specialist with the American Civil Liberties Union. “I do see language in the document acknowledging limits on military involvement, but that seems at odds with other parts of the document. They seem to be trying to have it both ways.”

The document, titled “Strategy for Homeland Defense and Civil Support,” was signed June 24 by acting Deputy Defense Secretary Gordon England and is now a basis for organizing troops, developing weapons and assigning missions. It was released late last week without the sort of formal news conference or background briefing that often accompanies major defense policy statements.

McHale, in an interview, said the new strategy represents a major shift from a reactive mind-set that existed before the 2001 attacks. The emphasis since, he said, has been on pressing U.S. defenses outward to spot and eliminate threats before they reach U.S. territory.

“The strategy’s implementation hinges on an active, layered defense in depth that is designed to defeat the most dangerous challenges early, at a safe distance, before they are allowed to mature,” the document says.

The assumption of the need to prepare for multiple, simultaneous terrorist attacks, McHale explained, marks a change from previous planning scenarios that had envisioned single strikes. The change is based on what McHale called a “recurring pattern” of attacks around the world by al Qaeda and other terrorist groups.

Under the new strategy, U.S. air and naval forces will continue to improve efforts to scan and patrol approaches to the United States. Some of the moves began immediately after the Sept. 11 attacks. But maritime efforts have lagged airspace measures, and even U.S. air defenses will require further improvementsto deal with potential attacks by low-flying cruise missiles and pilotless aircraft, the document notes.

The strategy draws a distinction between the “lead” role that the Pentagon intends to play in bolstering these long-established air and sea missions and the “support” role still envisioned for U.S. land operations.

Legal barriers to sending the armed forces into U.S. streets have existed for more than a century under the Posse Comitatus Act. Enacted in 1878, the law was prompted by the perceived misuse of federal troops after the Civil War to supervise elections in the former Confederate states. Over the years, the law has come to reflect a more general reluctance to involve the military in domestic law enforcement, although its provisions have been amended from time to time to allow some exceptions, including a military role in putting down insurrections, in assisting in drug interdiction work, and in providing equipment, training and advice.

Along with civil liberties groups, many senior Pentagon officials have tended to be wary of seeing troops operate on U.S. soil. Military commanders argue that their personnel are not specifically trained in domestic security, and they worry that homeland tasks could lead to serious political problems.

Still, the Pentagon has established new administrative structures in recent years in recognition of a growing military contribution to homeland defense. It set up the Northern Command in 2002 to oversee military operations in the United States. It created a new assistant secretary for homeland defense. And it designated a one-star general on the Joint Chiefs of Staff to work on the issue.

Additionally, the National Guard has been building small “civil support teams” to provide emergency assistance in the wake of a chemical, biological, nuclear or high-explosive attack. By the end of 2007, 55 of the 22-person teams are due — at least one for each state and U.S. territory.

The new strategy notes that the Guard “is particularly well suited for civil support missions” because it is “forward deployed in 3,200 communities,” exercises routinely with local law enforcement and is accustomed to dealing with communities in times of crisis. Indeed, Guard leaders have welcomed an expanded homeland security role.

But they have also argued for allowing the Guard to retain its overseas combat missions, concerned that a sole focus on civil support would undermine the Guard’s ability to serve as a strategic reserve and to fight in future wars.

The new strategy calls for the development of larger sets of “modular reaction forces” to be staffed by the Guard for dealing with the aftermath of mass-casualty attacks. Officials said the composition of these forces is under discussion as part of this year’s Quadrennial Defense Review, a Pentagon-wide reassessment of missions, weapons and forces.

But the homeland defense strategy also explicitly rejects the idea of dedicating these additional Guard forces to the civil support mission, saying they will remain “dual mission in nature.”

In the area of intelligence, the strategy speaks of developing “a cadre” of Pentagon terrorism specialists and of deploying “a number of them” to “interagency centers” for homeland defense and counterterrorism — a reference to new teaming arrangements with the FBI and other domestic law enforcement agencies. The document notes that this represents a significant departure from the Cold War when Pentagon analysts worked mostly with the State Department and the intelligence community to combat the Soviet Union.

“The move toward a domestic intelligence capability by the military is troubling,” said Gene Healy, a senior editor at the Cato Institute, a nonprofit libertarian policy research group in Washington.

“The last time the military got heavily involved in domestic surveillance, during the Vietnam War era, military intelligence kept thousands of files on Americans guilty of nothing more than opposing the war,” Healy said. “I don’t think we want to go down that road again.”

See our last post on expanding domestic surveillance powers.

  1. Patriot II would unleash FBI
    A New York Times editorial:

    July 11, 2005
    Unnecessary Powers

    The Patriot Act already gives government too much power to spy on ordinary Americans, but things could get far worse. Congress is considering adding a broad new investigative power, known as the administrative subpoena, that would allow the Federal Bureau of Investigation to gain access to anyone’s financial, medical, employment and even library records without approval from a judge and even without the target knowing about it. Members of Congress should block this disturbing provision from becoming law.

    The Senate is at work on a bill to reauthorize parts of the Patriot Act that are scheduled to expire later this year. In addition to extending those provisions, the Senate Intelligence Committee is proposing to add an array of new “investigative tools.” The administrative subpoena is not the only one of the new provisions of the current bill that would endanger civil liberties, but it is the worst.

    When the F.B.I. wants access to private records about an individual, it ordinarily needs to get the approval of a judge or a grand jury. The proposed new administrative subpoena power would allow the F.B.I. to call people in and force them to produce records on its own authority, without approval from the judicial branch. This kind of secret, compelled evidence not tied to any court is incompatible with basic American principles of justice. It would also make it far easier for the F.B.I. to go off on fishing expeditions.

    The bill would allow the F.B.I. to order that the subpoenas be kept secret. That means record holders, like banks or employers, would not be able to inform the person whose private information was being handed over. It would also make it difficult for Congress, and the public, to know whether the F.B.I. was abusing its enormous new powers.

    Defenders of the bill argue that a subpoena could still be challenged in court, but this is a hollow right. In many cases, the person whose records would be turned over – who has the greatest incentive to fight the subpoena – would not know what was going on. The record holder, who would be in a position to challenge the subpoena, may have little incentive to spend the money and time to do so.

    The bill’s defenders note that administrative subpoenas are already allowed in other kinds of investigations. But these are generally in highly regulated areas, like Medicaid billing. The administrative subpoena power in the new bill would apply to anything the F.B.I. deemed related to alleged foreign intelligence or terrorism, and could, in practice, give the F.B.I. access to almost any private records it wanted.

    The proposed new administrative subpoena power is a solution in search of a problem. In testimony before Congress, the F.B.I. could not point to examples of national security investigations that were deterred by its lack of administrative subpoena power.

    There could be a case that the F.B.I. should have this power in true emergencies, but that would require a very narrowly drawn provision that applied only in exigent circumstances. The Senate is considering something far more sweeping and dangerous: giving the F.B.I. an open-ended license to invade the privacy of ordinary Americans.

  2. Homeland Security gets in on the act
    Via TruthOut:

    Congress Report: TSA Broke Privacy Laws
    By Leslie Miller
    The Associated Press

    Saturday 23 July 2005

    Washington – The Transportation Security Administration violated privacy protections by secretly collecting personal information on at least 250,000 people, congressional investigators said Friday.

    The Government Accountability Office sent a letter to Congress saying the collection violated the Privacy Act, which prohibits the government from compiling information on people without their knowledge.

    The information was collected as the agency tested a program, now called Secure Flight, to conduct computerized checks of airline passengers against terrorist watch lists.

    TSA had promised it would only use the limited information about passengers that it had obtained from airlines. Instead, the agency and its contractors compiled files on people using data from commercial brokers and then compared those files with the lists.

    The GAO reported that about 100 million records were collected.

    The 1974 Privacy Act requires the government to notify the public when it collects information about people. It must say who it’s gathering information about, what kinds of information, why it’s being collected and how the information is stored.

    And to protect people from having misinformation about them in their files, the government must also disclose how they can access and correct the data it has collected.

    Before it began testing Secure Flight, the TSA published notices in September and November saying that it would collect from airlines information about people who flew commercially in June 2004.

    Instead, the agency actually took 43,000 names of passengers and used about 200,000 variations of those names – who turned out to be real people who may not have flown that month, the GAO said. A TSA contractor collected 100 million records on those names.

    Justin Oberman, the TSA official in charge of Secure Flight, said that was a highly instructive test.

    “When you cannot distinguish one John Smith from another, you’re going to get records from John Smiths who aren’t boarding flights on an order of magnitude we can’t handle,” Oberman said.

    He said the testing is designed to find out what kind of data airlines will need to get – such as passengers’ birthdates – so they can turn it over to the government to check against watch lists.

    The GAO letter said that the TSA also said originally that it wouldn’t use and store commercial data about airline passengers. It not only did that, it collected and stored information about the people with similar names.

    “As a result, an unknown number of individuals whose personal information was collected were not notified as to how they might access or amend their personal data,” the letter said.

    It was only after meeting with the GAO, which is overseeing the program, that the TSA published a second notice indicating that it would do the things it had earlier said it wouldn’t do.

    Oberman said it’s not unusual to revise such notices.

    “We are conducting a test,” he said. “I didn’t know what the permutations would be.”

    Oberman also said that the test has no impact on anyone who travels and that the data will be destroyed when the test is over.

    Friday’s GAO letter shed new light on how the TSA expanded the testing of Secure Flight well beyond its original scope and why it had to publish the second notice.

    The letter drew a sharp rebuke from Senate Homeland Security Committee chairman Susan Collins, R-Maine, and the ranking Democrat, Joe Lieberman of Connecticut, in a letter to Homeland Security Secretary Michael Chertoff dated Friday.

    “Careless missteps such as this jeopardize the public trust and DHS’ ability to deploy a much-needed, new system,” the letter said, citing the project’s “unfortunate history.”