More About Department Of Defense/NSA Spying

Document Date: January 22, 2013

Military involvement in domestic law enforcement operations is something Americans have always regarded with deep unease. The framers of the Constitution recognized the threat a standing army posed to democracy and they sought to establish a government that guaranteed civilian supremacy over the military. This ideal was finally codified after the Civil War through the Posse Comitatus Act, which prohibited the Army from engaging in law enforcement activities on U.S. soil. But Congress has weakened Posse Comitatus over the years by permitting military involvement in drug enforcement, border control and all sorts of other “domestic support” operations. As a result, the military is increasingly turning its powerful intelligence collection capabilities against Americans.

Total Information Awareness. Shortly after 9/11, the Department of Defense’s (DoD) Defense Advanced Research Projects Agency (DARPA) began a project called “Total Information Awareness” to collect and mine vast amounts of information about the American public, including their telephone records, bank records, medical records, and educational and travel data, in an attempt to identify terrorists. Congress de-funded TIA in 2003 in the wake of the public outcry denouncing such an Orwellian spying operation, but large scale information collection and data mining programs persist, and the military remains heavily involved.

NSA’s Warrantless Wiretapping Program. In December 2005 the New York Times revealed that soon after the September 11 attacks, former President Bush authorized the National Security Agency (NSA), an intelligence component of the Defense Department, to conduct warrantless surveillance of American’s e-mails and telephone calls in blatant violation of a federal statute which prohibited the practice (the Foreign Intelligence Surveillance Act). Subsequent articles in USA Today revealed that major telecommunications companies “working under contract to the NSA” also provided the government with millions of Americans’ domestic call data for “social network analysis.” This warrantless surveillance program operated until January 2007.

FISA Amendments Act Electronic Surveillance. In 2008 Congress passed a law called the FISA Amendments Act (FAA) which not only legalized the NSA’s warrantless wiretapping program, it actually expanded the NSA’s power to conduct warrantless, suspicion-less dragnet collection of American’s international e-mails and telephone calls. Although very little is known about the government’s implementation of its intrusive FAA spying powers, two New York Times articles (April and July 2009; LINK) revealed the NSA was collecting Americans’ communications under the FAA by the millions and that it was improperly collecting purely domestic communications.

National Security Letters. In 2007 an ACLU lawsuit revealed that DoD secretly issued hundreds of national security letters (NSLs) to obtain private and sensitive records of people within the United States without court approval. While the FBI has broad NSL powers and compliance with FBI-issued NSLs is mandatory, DoD’s NSL power is more limited in scope, and, in most cases, compliance with DoD demands is not mandatory. A comprehensive analysis of 455 NSLs issued after 9/11 shows that the DoD seems to have collaborated with the FBI to circumvent the law to use FBI NSLs to obtain records DoD was not authorized to demand for its own investigations.

TALON and The Counterintelligence Field Activity Agency (CIFA). But military spying goes far beyond the NSA and abuse of NSLs. In 2003 a highly secretive component of the DoD, the Counterintelligence Field Activity Agency (“CIFA”), began a program to track potential terrorist threats to Department personnel or property within the United States through Threat and Local Observation Notices (“TALON”). These TALON reports were designed to permit civilians and military personnel to report on suspicious activity near defense installations. Not surprisingly, the DOD soon strayed from this limited mission and TALON became a repository for information about peaceful anti-war protesters, and even Quakers. Reports were added to the database even when the “threat” was an anti-war protest that occurred far from any military installation. Other “threats” the military deemed non-credible were never removed from the database. CIFA was disbanded in 2008, but a new office at the Defense Intelligence Agency (DIA) was opened to assume CIFA’s “resources and responsibilities.” In May 2010 DoD announced it was going to participate in a new suspicious activity reporting program through the FBI’s eGuardian program. Then, in June 2010 DIA published a federal register notice announcing the creation of a new data base for information on “individuals involved in, or of interest to, DoD intelligence, counterintelligence, counterterrorism and counter-narcotic operations or analytical projects as well as individuals involved in foreign intelligence and/or training activities” – in short, what appears to be a de facto resurrection of the CIFA program.

Political Protest Groups. DoD personnel have also been involved in illegal undercover operations targeting political protest groups. In 2009 a civilian DOD employee working for Fort Lewis Force Protection violated military regulations by infiltrating anti-war protest groups in Olympia, Washington. He used a fake name and posed as a sympathizer for more than a year, all the while reporting the groups’ activities to the local law enforcement agencies he worked with. While the military opened an internal investigation, a leaked 2009 Department of the Army document (“Concept of Operations for Police Intelligence Operations”) claims that Military Police Intelligence units are not subject to legal limitations on domestic military intelligence operations.

Fusion Centers and JTTFs. The U.S. military is also involved in intelligence activities conducted through FBI Joint Terrorism Task Forces (JTTFs) and state and local intelligence fusion centers. For example, DoD is involved in a nationwide FBI investigation that targets returning Iraq and Afghanistan war veterans to determine if they have become right-wing extremists. DoD’s role in this investigation is likely being coordinated through JTTFs. And though DHS Secretary Janet Napolitano reportedly told the New York Times “that fusion centers were not intended to have a military presence, and that she was not aware of ones that did,” National Guard troops are present in many fusion centers; indeed, the ACLU documented U.S. Army presence at a Maryland fusion center in 2007. Moreover, in 2009 DHS announced it was giving state and local fusion centers access to classified military intelligence in DoD databases.

An ongoing scandal involving military personnel and the Los Angeles County Terrorism Early Warning Center (LACTEW), one of the country’s first fusion centers, highlights the lack of oversight in these joint intelligence operations. According to reports from the San Diego Union-Tribune, a group of military reservists and law enforcement officers led by the co-founder of the L.A. fusion center engaged in a years-long conspiracy to steal highly classified intelligence files from the Strategic Technical Operations Center located at the U.S. Marine Corps Base at Camp Pendleton, California and secret surveillance reports from the U.S. Northern Command headquarters in Colorado Springs, Colorado. Some of the stolen files reportedly “pertained to surveillance of Muslim communities in Southern California,” including mosques in Los Angeles and San Diego, and revealed “a federal surveillance program targeting Muslim groups” in the United States. The scheme apparently began in 2001 when the LACTEW fusion center’s co-founder called a civilian analyst at U.S. Northern Command to ask that she surreptitiously supply the LACTEW with military surveillance reports. The reported involvement of the National Security Agency in the investigation hints that these records may relate to warrantless domestic surveillance operations conducted by the military.

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