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September 04, 2005

Able Danger and the relevant legal guidelines

At the DOD disinformation briefing, Mr. Thomas Gandy, Army G-2 Director of Counterintelligence and HUMINT, said:

Gandy: We have a whole class on that if you'd like to attend it. I'll invite you. We have it annually.

We have lots of regulations on this that spell out precisely what they are. I'd hate to make an off-the-cuff comment here.

Media: Okay.

Gandy: But there are strict definitions.

Media: Maybe you can direct me to --

Gandy: Executive Order 12333. You can go on the web tonight and do it. DoD Directive 5240-1R.

Media: That does not --

Gandy: And Army Regulation 381-10.

Alright, so I went on the web and looked it up. Wouldn't you know, the third or fourth hit on Google for AR 381-10 is this very interesting article by Intelligence Oversight Officer Michael Varhola in the Jan-March 2002 issue of Military Intelligence Professional Bulletin:

AR 381-10, an enabling regulation—a view from an intelligence oversight officer

by Michael H. Varhola

In our zeal to enforce compliance with regulations, we sometimes forget what they are about. This is particularly true in the area of intelligence oversight. Vigorous enforcement, particularly in the 1970s, resulted in a misperception that lingers to this day: that the intelligence oversight program exists to prevent Military Intelligence (MI) from collecting information on U.S. citizens. Nothing could be further from the truth. The purpose of the regulation is just the opposite; it enables intelligence components to carry out their authorized functions effectively while ensuring that they perform the activities that affect U.S. individuals in a manner that protects their constitutional rights and privacy. Any intelligence oversight inspector who does not understand this may be doing more harm than good, and certainly will not be furthering combat readiness and mission accomplishment.

In my 30 years working in MI, I have never seen a situation in which AR 381-10, U.S. Army Intelligence Activities, prevented an intelligence component from collecting information on U.S. citizens that it needed to accomplish its mission. What I have seen is intelligence components being rightfully prevented from doing the mission of others. This was particularly true after the Oklahoma City bombing when some MI components shifted their focus to domestic extremism. This violated AR 381-10, not only because the extremists were U.S. persons, but more fundamentally because it is not MI's mission. It is the mission of civilian law enforcement, the Provost Marshal and the Criminal Investigation Command, and sometimes, quite frankly, MI got in the way.

When it is MI's mission, AR 381-10 is there to provide procedures that enable the collection of the information on citizens of the United States. Procedure 2 gives thirteen criteria under which MI can collect information on U.S. persons. These are all-encompassing. I cannot think of a category of information on citizens that MI would need that one of these criteria does not cover. Unfortunately, some individuals find it easier or safer to avoid the issue altogether by simply not collecting the data on citizens they may need to do their complete jobs. What I hear regularly is, "I'd rat her err on the side of caution." This is unfortunate and defeats the purpose of the regulation. I have even seen units destroy information in individual security clearance files in preparation for an intelligence oversight inspection, not realizing that such information is "administrative," as AR 381-10 defines that term, and that the regulation does not cover its retention.

The other side of this coin is just as bad or even worse. A small number of MI soldiers, not understanding the regulation, and perhaps having had exposure to heavy-handed enforcement in the past, have come to believe that it is an outdated regulation or is simply stupid. While there is obviously a continuing need to reinterpret the regulation as information technology advances and the Internet becomes a bigger part of our lives, I believe that the regulation is sound and its principles are easily transferable. It is not a big intellectual leap to go from collecting open-source information from newspapers to collecting the same information from websites. The same considerations apply to the involvement of U.S. citizens: mission, mission, and mission!

As the Cold War sinks into the distant past and we move into a future of smaller and more varied deployments, it becomes increasingly important that MI soldiers understand the fundamental purpose of AR 381-10 and use it as the tool the Army intended it to be. U.S. citizens will be operating in many capacities in every area to which we deploy; some may even be members of the opposing force. We cannot anticipte every situation. When MI needs to collect information about citizens of the United States to accomplish its military mission, AR 381-10 provides the procedures that enable it to do so while protecting their constitutional rights and privacy. Mission first, constitutional rights and privacy always! Erring on the side of caution is not a viable option.

As Mr. Varhola's article was written before the 11 September 2001 terrorist attacks, MIPB asked for any change in his position. Mr. Varhola provided the following comment: "As far as I have seen, EO 12333 is standing up quite well in the post 9/11 world. Regarding collection on U.S. persons, I have seen no problems. The terrorist attack came from a foreign source, and AR 381-10 allows the collection of military and military related foreign intelligence and counterintelligence concerning the activities, intentions, capabilities, MO, etc of international terrorists. The key thing is cooperation and info sharing among all the players: strategic CI, installation security, tenant units, PMO, CID, FBI, local authorities, etc. If everybody is working together, then the authority that is needed will be resident in at least one of the players."

Michael Varhola is currently an Intelligence Oversight Officer with the Department of the Army Inspector General. Mr. Varhola earned his commission in Artillery through the Reserve Officer Training Corps at Gannon University in Erie, Pennsylvania, where he majored in Russian and German. He entered the Military Intelligence civilian Excepted Career Program (MICECP) in 1979 and worked with the 511th as a CI Operations Case Officer.

COPYRIGHT 2002 U.S. Army Intelligence Center and School

For what it's worth, here are those thirteen criteria he mentions, several of which would cover Al Qaeda and justify collecting intel on suspected members in the US:

C. TYPES OF INFORMATION THAT MAY BE COLLECTED
ABOUT UNITED STATES PERSONS

Information that identifies a United States person may be collected
by a DoD intelligence component only if it is necessary to the
conduct of a function assigned the collecting component, and only if
it falls within one of the following categories: Note: Terms used in
this part are defined in appendix A and may differ substantially
from traditional Army usage.

1. Information obtained with consent. In may be collected about
a United States person who consents to such collection.

2. Publicly available information. Information may be collected
about a United States person if it is publicly available.

3. Foreign intelligence. Subject to the special limitations contained
in section E., below, information may be collected about a
United States person if the in constitutes foreign intelligence, provided the intentional collection of foreign intelligence about United States persons shall be limited to persons who are:

(a) Individuals reasonably believed to be officers or employees,
or otherwise acting for or on behalf, of a foreign power;
(b) An organization reasonably believed to be owned or controlled,
directly or indirectly, by a foreign power;
(c) Persons or organizations reasonably believed to be engaged or
about to engage, in international terrorist or international narcotics
activities. (See AR 190–52.);
(d) Persons who are reasonably believed to be prisoners of war;
missing in action; or art the targets, the hostages, or victims of
international terrorist organizations; or
(e) Corporations or other commercial organizations believed to
havesomerelationshipwithforeignpowers,organizationsorpersons.

4. Counterintelligence. Information may be collected about a United States person if the information constitutes counterintelligence, provided the international collection of counterintelligence
about United States persons must be limited to:

(a) Person who are reasonably believed to be engaged in, or
about to engage in, intelligence activities on behalf of a foreign
power, or international terrorist activities. (See AR 190–52, AR
381–12, and AR 381–20.)
(b) Persons in contact with persons described in paragraph C.4.a.,
above, for the purpose of identifying such persons and assessing
their relationship with persons described in paragraph C.4.a., above.

5. Potential sources of assistant to intelligence activities. Information may be collected about United States person reasonably
believed to be potential sources of intelligence, or potential sources
of assistant to intelligence activities, for the purpose of assessing
their suitability and credibility. This category does not include investigations undertaken for personnel security purposes. (See subsection 8.)

6. Protection of intelligence sources and methods. Information
may be collected about a United States person who has access to,
had access to, or is otherwise in possession of, information which
reveals foreign intelligence and counterintelligence sources or methods, when collection is reasonably believed necessary to protect
against the unauthorized disclosure of such information; provided
that within the United States, intentional collection of such information shall be limited to persons who are:

(a) Present and former DoD employees;
(b) Present or former employees of a present or former DoD
contractor; and
(c) Applicants for employment at DoD or at a contractor of DoD.

7. Physical security. Information may be collected about the
United States person who is reasonably believed to threaten the
physical security of DoD employees, installations, operations or
official visitors. Information may also be collected in the course of a lawful physical security investigation. (See AR 381–12, AR 381–20,
AR 190–1, and AR 190–52.)

8. Personnel security. Information may be collected on a United
States person that arises out of a lawful personnel security investigation. This includes information concerning relatives and associates of the subject of the investigation, if required by the scope of the investigation and the information has a bearing on the matter being investigated or the security determination being made. (See AR 604–5, AR 381–12, AR 381–20, and AR 190–52.)

9. Communications security. Information may be collected about
a United States person that arises out of a lawful communications
security investigation. (See AR 380–53.)

10. Narcotics. Information may be collected about a United
States person who is reasonably believed to be engaged in international narcotics activities.

11. Threats to safety. Information may be collected about a United States person when the information is needed to protect the safety of any person or organization, including those who are targets, victims or hostages of international terrorist organizations. (See AR 190–52.)

12. Overhead reconnaissance. Information may be collected for
overhead reconnaissance not directed at specific United States persons.

13. Administrative purposes. Information may be collected about
a United States person that is necessary for administrative purposes.

Furthermore, someone here on a visa does not seem to be a US person:

27. United States person.
a. The term “United States person” means:
(1) A United States citizen;
(2) An alien known by the DoD intelligence component concerned
to be a permanent resident alien;
(3) An unincoporated association substantially composed of United States citizens or permanent resident aliens;
(4) A corporation incorporated intelligence the United States, except
for a corporation directed and controlled by a foreign government or governments. A corporation or corporate subsidiary incorporated abroad, even if partially or wholly owned by a corporation incorporated intelligence the United States, is not a United
States person.

b. A person or organization outside the United States shall be
presumed not to be a us person unless specific information to the
contrary is obtained. An alien in the United States shall be presumed
not to be a United States person unless specific information to the
contrary is obtained.

c. A permanent resident alien is a foreign national lawfully admitted
into the United States for permanent residence.

Posted by Mike at September 4, 2005 09:06 PM

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