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Homeland Security Intelligence and Civil Liberties

INTL613 Intelligence and Homeland Security
Jeremy Levin, Student ID 3049427 11/21/2010

Introduction: Since the September 11 2001 attacks against the World Trade Center and Pentagon, countering terrorism has become one of the primary missions of every US government organization, and saw the creation of the Department of Homeland Security (DHS), a hybrid organization mandated for intelligence, border defense, and law enforcement missions. In 2005, John Negroponte--the first US Director of National Intelligence (DNI)--directed his office draft the National Intelligence Strategy to support then-President George Bush's National Security Strategy. Among the primary missions of the US Intelligence Community (IC) is to conduct its "duties under law in a manner that respects the civil liberties and privacy of all Americans." (The Office of the Director of National Intelligence 2005) However, DHS has faced a number of lawsuits for civil rights violations, and is currently facing extreme public condemnation for its air travel security policies, considered by thousands to be violations of their Fourth Amendment right against unreasonable search and seizure. (Fuller 2010) From an intelligence perspective, DHS has faced condemnation and court action for both its intelligence collection and its analytic products. From the number of alleged abuses on DHS' past and current conduct in the matter it is clear that there is question regarding DHS' intelligence activity violating American civil rights and civil liberties. DHS has acknowledged the validity of some of these complaints, and taken steps as required to rectify particular situations or instances. However, responding to individual instances or complaints of constitutional, civil rights and liberties abuses places DHS in a reactive role, with the future likely holding a constant stream of allegations and lawsuits over perceived abuses.

Therefore, we will attempt to answer the question, "would ceasing the intelligence activities that prompt complaints and allegations of civil rights and liberties abuses prevent DHS from fulfilling its intelligence mission?" Literature Review: On behalf of the U.S. Army War College's Strategic Studies Institute, Leonard Wong and Douglas Lovelace, Jr. compiled notes and summarized the debate and conclusions that emerged from the June 2004 conference on homeland security and civil liberties. Participating in this conference were both representatives and lawyers from both government and civil organizations, and there was widespread agreement on the nature of the terrorist threat to the United States of America (US) and the fact that many civil liberties had been curtailed in the wake of the September 11 2001 terrorist attacks. However, disparity between government security organizations and civil liberty advocates was apparent, with the former calling for aggressive prosecution of the Global War on Terror (GWOT) and the latter arguing to safeguard the individual rights that define the American view of liberal democracy. Specifically, civil liberties advocates questioned civil liberties abridgements of GWOT detainees, perceived use of the USA-PATRIOT Act and Foreign Intelligence Surveillance Act (FISA) to intrude and invade US citizens' privacy, and curtailed First Amendment rights. (Wong and Lovelace 2004) The Department of Homeland Security (DHS) Office for Civil Rights and Liberties (OCRL) states it provides legal and policy advice to DHS leadership to enable policy-makers to achieve national security and law enforcement goals while protecting civil rights and liberties. The memorandums published on the DHS OCRL website regard racial profiling in daily law enforcement activities and potential civil rights abuses on the basis of race, ethnicity, or religion. DHS OCRL does not publish policies regulating intelligence collection, processing, or

dissemination; (Department of Homeland Security 2010) in fact, OCRL head Margo Schlanger testified before the House Committee on Homeland Security, Subcommittee on Intelligence, Information Sharing, and Terrorism Risk Assessment that her office had no role in source development or intelligence collection. (Department of Homeland Security 2010) In 2005, the League of Women Voters conducted a study on public perception of civil liberties and national security. This study determined that the majority of Americans do not have in-depth knowledge about homeland security, and do not consider their fundamental rights and liberties threatened. When asked about specific acts, the majority of Americans opposes "secret searches" as an invasion of privacy, believes the government needs justification and judicial oversight to obtain personal records, and generally opposes profiling, although its use may be acceptable in certain circumstances. Additionally, the majority of Americans believes a system of checks and balances is vital, and is concerned about the potential for abuse when checks and balances are decreased or absent. (League of Women Voters 2005) In December 2009, the American Civil Liberties Union (ACLU) testified before Congress on terrorist radicalization, stressing its concerns that government counterterrorism/anti-terrorism (CT/AT) efforts to examine and address radicalization to terrorist acts infringe on fundamental American rights--including the First Amendment right to extremist belief. The ACLU alleges that studying any belief system's connection to terrorism violates the First Amendment, and relates current CT/AT efforts to the anti-Anarchist investigations of the 1920s and the anti-Communist investigations during the Cold War. (Macleod-Ball 2009) Torin Monahan and Neal A. Palmer, writing for the Vanderbilt University Department of Human & Organizational Development, examined DHS fusion centers in which local, federal, and civilian agencies and organizations conduct intelligence sharing for CT/AT purposes.

Monahan and Palmer identified the greatest criticism of these fusion centers as the potential for civil liberties violations, detailing numerous instances in which intelligence collection was conducted against non-violent targets and "reasonable suspicion" policies for intelligence collection were not followed. Monahan and Palmer also allege that the expansion of federal security clearances provides personal information to thousands of state and local officers without concurrent ethics guidance and safeguards. (Monahan and Palmer 2009) Mark A. Randol, writing for the Congressional Research Service, conducted a study into that nationwide Suspicious Activity Report program, in which he detailed civil rights and liberties concerns with this program. Randol states that individually, some activities classified as "suspicious" are common and non-threatening, and quotes the ACLU argument that "most people engage in one or more of these activities on a routine, if not daily basis." Randol alleges that "carefully articulating what activity crosses the threshold in to reportable suspicious activity" is required to ensure protection of individuals' civil liberties. (Randol, Terrorism Information Sharing and the Nationwide Suspicious Activity Report Initiative: Background and Issues for Congress 2009) In November 2008, the Constitution Project submitted a report to Congress detailing the recommendations of more than 20 human rights and civil liberties organizations on protecting civil rights in the accomplishment of homeland security. This report devotes nine chapters to "secrecy, surveillance, and privacy," in which the authors identify civil rights and liberties concerns in the laws and guidelines governing intelligence collection, over-classification and declassification issues, and the misuse of watch lists. The common theme appears to be a recommendation toward greater oversight and transparency, and clear, unambiguous criteria

under which intelligence operations can be conducted, all of which these organizations believed was lacking. (Constitution Project 2008) In Kate Martin's 2004 "Domestic Intelligence and Civil Liberties," Martin explored the changes enacted post-September 11, 2001 in intelligence and law enforcement operations related to terrorism. Martin alleges that the "mission creep" between foreign intelligence and domestic law enforcement, enabled by legislation such as the Patriot Act and the Congressionally-relaxed restrictions over the Foreign Intelligence Surveillance Act (FISA), have opened the door to numerous potential violations of American Constitutional rights. Martin maintains that a barrier needs to be re-established between foreign intelligence collection and domestic law enforcement, and suggests that to minimize civil rights violations, a new agency be created specifically with a foreign intelligence mission to address terrorism from a law enforcement perspective. (Martin 2004) Bruce Berkowitz's "Intelligence for the Homeland" has a similar recommendation to Martin, in that he recommends the creation of a new agency to address intelligence and law enforcement operations related to terrorism. Berkowitz concentrates on the mission requirements for the existing intelligence and law enforcement organizations and their unsuitability for conducting effective domestic counter-terrorism operations. However, after acknowledging the need to safeguard civil rights, he mentions that the requirements for effective domestic counter-terrorism intelligence and law enforcement operations requires looser guidelines than traditional law enforcement, and tighter control over its powers to pursue and arrest--effectively subjecting innocent people to law enforcement scrutiny. In March 2010, the Congressional Research Service published a study on intelligence collection under the PATRIOT Act, in which it specifically addressed First and Fourth

Amendment issues. The report specifies that while the Fourth Amendment generally requires probable cause for law enforcement searches and surveillance, the Amendment's application on intelligence collection unrelated to criminal investigations is unclear, although potentially still subject to the Fourth Amendment's "reasonableness" test. This study specifies, however, that information held by third parties--such as financial records--could be obtained by the government without a warrant, as "individuals have a lesser expectation of privacy" regarding this information. Additionally, this study describes the potential for the permitting of government surveillance on public discourse to stifle such discourse, abrogating Americans' First Amendment rights. (Henning, et al. 2010) Theoretical Framework: DHS' alleged abuses have been well documented in a number of complaints and lawsuits against the organization and its leadership since its 2002 inception, and a number of studies have detailed past and current violations, and the potential for violations, of American civil rights and liberties. However, few, if any studies have addressed our specific question, the answer to which would allow DHS to devote more of its finite resources to its mission rather than reacting to legal action and public condemnation. The actions in question can be broken into two facets to determine their impact on DHS' intelligence mission: whether the actions are included in DHS' intelligence mission, and whether they are necessary to accomplish DHS' intelligence mission. These, then, are the independent variables, while the dependent variable will be DHS' ability to carry out its intelligence mission. Hypothesis:

Hypothesis 1: The intelligence activities that have prompted complaints of civil rights and liberties abuses are part of and necessary for DHS' intelligence mission, and ceasing them would prevent DHS from being able to carry out its domestic intelligence mission. Hypothesis 2: The intelligence activities that have prompted complaints of civil rights and liberties abuses are not part of or necessary for DHS's intelligence mission, and ceasing them would not prevent DHS from being able to carry out its domestic intelligence mission. Research Design: For our purposes, addressing our question should be broken into three portions. We will begin with DHS' intelligence mission, priorities, and requirements. We will then categorize and detail representative, high-profile complaints and lawsuits against DHS and its leadership alleging violations and/or abuses of civil rights and liberties, and explore how the intelligence activities that prompted complaint supported or failed to support DHS' intelligence mission. We will conclude with the impact ceasing these activities would have on DHS' intelligence mission. Discussion: Intelligence Activity: We cannot discuss DHS intelligence operations' impact on American civil rights and liberties without first defining what activities constitute intelligence operations. Jeffrey T. Richelson describes intelligence as "the product resulting from the collection, processing, integration, analysis, evaluation and interpretation of available information." He further describes intelligence collection as "the purposeful acquisition of any information that might be desired by an analyst, consumer, or operator," and analysis as "the integration of collected information-that is, raw intelligence from all sources-into finished intelligence." (Richelson 2008)

Under Richelson's definitions, DHS conducts intelligence collection in several manners, many of which are non-controversial, but some of which have caused great controversy. Many DHS intelligence collection methods are overtly, inarguable intelligence collection. The most obvious examples of DHS' intelligence collection is its use of physical and electronic surveillance, and the acquisition of personal documents and records. In fact, the USA PATRIOT Act and subsequent government regulations granted greatly expanded authorization for intelligence collection than was allowed before September 11th 2001. Among the expended authorizations are: (Henning, et al. 2010) y Foreign intelligence gathering is allowed as a significant purpose of surveillance for which a court order is sought under FISA regulations (previously required to be the sole purpose). y Federal officers are authorized to consult with criminal law enforcement regarding information obtained from physical searches.

Surveillance, physical searches, and other intelligence collection are authorized, under expanded FISA definitions, against individuals who knowingly engage in "sabotage or
international terrorism, or activities that are in preparation therefor, for or on behalf of a foreign power," including when a link to an international terrorist organization or other foreign power is not yet supportable by probable cause.

The government is authorized to collect intelligence and information believed to be relevant to a national security or foreign intelligence investigation from those connected to a foreign power (previously restricted to persons believed to be agents of a foreign power)

Electronic surveillance and collection may be conducted based on suspicion of criminal or terrorism related activity, and shared with both federal intelligence and law enforcement officials

Pen Register and Trap and Trace intelligence collection is authorized under "any investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities. However, it prohibits any investigation involving a United States person that is 'conducted solely upon the basis of activities protected by the first amendment to the Constitution.'"

National Security Letters ordering private entities to turn over record data can be certified for information that "is relevant to, or is sought for, a particular national security investigation" (previously required to have "specific and articulable facts, giving reason to believe that the information sought pertained to a foreign power or one of its agents)

FISA authorization requires " a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to a [foreign intelligence, international terrorism, or espionage investigation]" (previously " specific and articulable facts giving reason to believe the information related to a foreign power or the agent of a foreign power"), and includes access to "any tangible things" (previously only four types of business records: car rental records, housing accommodation (e.g., hotel/motel) records, storage rental records, and travel (e.g., airline/train) records).

"Delayed notice" search warrants are authorized, allowing law enforcement officers to secretly enter, search, and photograph or copy documents from a home or business

without notifying the target for 30 days or more (previously restricted to exigent circumstances, and notification to be given within seven days) However, some DHS practices are also intelligence collection, but are less obvious. In fact, former DHS Secretary Michael Chertoff stated "intelligence is not only about spies and satellites. Intelligence is about the thousands and thousands of routine, everyday observations and activities." (Randol, The Department of Homeland Security Intelligence Enterprise: Operationsl Overview and Oversight Challenges for Congress 2009) Under Chertoff's definition, physical searches of travelers and their belongings entering the US--especially if copies are made of the items searched and records are kept on these searches--as well as any questioning these individuals would constitute intelligence collection. Also, electronic research-including open source searches and the use of social networking internet sites to gather information--can be considered intelligence collection. Additionally, DHS and its component organizations regularly conduct intelligence analysis; another occasional source of controversy. The most obvious intelligence analysis conducted by DHS is its analytic assessments distributed to DHS and other organizational and national leaders. However, data summaries of passengers entering the US--especially if the summary includes trends or implications--as well as any other sort of data analysis can also be considered intelligence analysis, especially when the data is collected by DHS, for DHS. Intelligence Requirements: According to a 2009 report for Congress, a primary DHS mission is to "prevent terrorist attacks within the United States, reduce the vulnerability of the United States to terrorism, and minimize the damage, and assist in the recovery from terrorist attacks that do occur in the United States." To accomplish this, DHS' Office of Intelligence and Analysis' (OIA) formed its

intelligence enterprise, comprised of its own integral intelligence assets and the intelligence elements of DHS' operational components; U.S. Customs and Border Protection, U.S. Immigration and Customs Enforcement, U.S. Citizenship and Immigration Services, Transportation Security Administration, the U.S. Coast Guard, and the U.S. Secret Service. (Randol, The Department of Homeland Security Intelligence Enterprise: Operational Overview and Oversight Challenges for Congress 2009) DHS OIA identifies five primary analytic thrusts for its intelligence mission: threats related to border security, threats related to radicalization and extremism, threats from particular groups entering the United States, threats to the Homeland's critical infrastructure and key resources, and weapons of mass destruction and health threats. Of note, DHS OIA specifically states it does "not monitor known extremists and their activities; instead, [it is] interested in the radicalization processwhy and how people who are attracted to radical beliefs cross the line into violence." (Department of Homeland Security 2010) To conduct its intelligence mission, DHS OIA maintains a list of primary intelligence and information requirements (PIIRs), which as of early 2005 were: (Hughes 2005) y "PIIR #1 - Homeland Security: information is required regarding vulnerabilities, surveillance, physical targeting, and cyber targeting of our nation, its people, institutions and resources. y PIIR #2 - Explosives and weapons of mass effect: information is required regarding terrorist plans, efforts, capabilities, and willingness to use, deploy, research, procure, or transport chemical, biological, radiological, nuclear, or explosive (CBRNE) weapons, material, or components, or high energy lasers and non-nuclear electro-magnetic pulse

(EMP) weapons into the U.S., as well as plans and efforts to exploit or attack a U.S. CBRNE facility, device, or component. y PIIR #3 - Terrorism: Information is required regarding terrorist, activists with terrorist intent, insurgent, or criminal element plans, intentions, activities, capabilities or threats to attack any critical infrastructure/key resource, government or commercial facility, personnel and assets, or transportation system. y PIIR #4 - Terrorist groups and individuals: information is required regarding organizational and biographical data on terrorist groups/individual terrorists, and their associates. y PIIR #5 - Support to terrorism: information is required regarding institutions, individuals, criminal organizations, activists with terrorist intent, or governments that overtly or covertly provide support to terrorism. y PIIR #6 - Cyber threats to U.S. infrastructure: DHS requires all information that helps to identify foreign or domestic entities or organizations responsible for directing, planning, or conducting computer network operations against U.S. computer or telecommunications networks." In theory, DHS OIA's intelligence enterprise--including all intelligence elements--should be focused on these PIIRs in order to fulfill DHS OIA's analytic thrusts. Past Complaints: Complaints against DHS' intelligence mission comprise three primary activities-intelligence collection on entry to the US, intelligence collection against American individuals or organizations, and production of intelligence assessments on American individuals, groups, or

organizations--that are perceived to be violations of three Constitutional Amendments: the First, the Fourth, and the Fourteenth. Specifically: In September 2010, the ACLU filed a lawsuit against DHS alleging DHS improperly searched thousands of electronic devices, including those of American citizens. (Montes 2010) DHS had previously stated it retained the practice of searching on entering the country travelers' laptop computers and other electronic devices without suspicion of wrongdoing. DHS did not recount any homeland security-related successes to this practice, but as of August 2009 the practice had been brought to court 11 times by individuals convicted of having child pornography on their computers. (Nagesh 2009) In December 2009, DHS released hundreds of documents as part of a Freedom of Information Act (FOIA) lawsuit, including documents detailing 2007 intelligence collection and analysis against the Nation of Islam. The intelligence collection spanned eight months--well past the 180 days allowed by law to determine whether the group or its American members posed a terrorist threat--and in March 2008 published an intelligence product based on this collection that stated "The [Nation of Islam] organization -- despite its highly volatile and extreme rhetoric -has neither advocated violence nor engaged in violence." (Hsu and Johnson 2009) Also part of the December 2009 FOIA release were documents indicating a DHS employee wrote a threat assessment for Wisconsin police about a demonstration involving local pro- and anti-abortion rights groups that "posed no threat to homeland security." Documents also indicated DHS issued a "terrorism watch list" report on a March 2008 Muslim conference, although there was no evidence the conference or speakers promoted extremism or terrorism. (Savage and Shane 2009) In June 2009, DHS scrapped plans begun in 2007 to use US satellites to conduct domestic surveillance due to public and governmental concerns it would intrude on American lives and

threaten American privacy. House Representative Jane Harman also suggested DHS' plans did not include adequate safeguards and oversight to regulate the program's use. (Meyer 2009) In April 2009, the Thomas More Law Center filed a lawsuit against DHS Secretary Janet Napolitano, claiming a DHS assessment on rightwing extremism violated civil liberties by targeting Americans based on their political beliefs--a violation of American First Amendment rights. The lawsuit mistakenly alleged the DHS assessment constituted a violation of Fifth Amendment rights (which should have been specified as Fourteenth Amendment rights) by unduly singling out one segment of society for disfavored treatment, in violation of the Amendment's "equal protection under the law" provisions. (Thompson 2009) In February 2008, the Asian Law Caucus (ALC) and the Electronic Frontier Foundation (EFF) civil liberties advocacy group filed a lawsuit against DHS for denying access to public records on DHS policies and procedures relating to intrusive questioning and searches of US travelers entering the country, including American citizens. The EFF alleged certain travelers were singled out--potentially due to their racial, ethnic, or religious background--for searches from U.S. Customs and Border Protection (CBP), under DHS direction, which copied personal documents and interrogated US travelers on personal issues, including their political views, religious practices, educational background, and volunteer activities. ALC and EFF state these practices violate American rights to free expression and equal protection. (Electronic Frontier Foundation 2008) Relation to DHS' Intelligence Mission: Two incidents stand out as success stories of catching potential terrorist-associated individuals on entry to the United States. David Coleman Headley a/k/a Daood Gilani was eventually charged with assisting the November 2008 Mumbai attacks. After he gave evasive

answers to airport screening questions on his entry to the United States, and already ongoing federal investigation against him accelerated. (Schlussel 2009) Additionally, Sisayehiticha Dinssa was found to have possessed a large amount of cash and suspicious computer files, including files on nuclear materials and cyanide. Dinssa was caught after drug-sniffing dogs caught the scent of narcotics on his person, and was eventually charged only with failure to declare currency on entry to the U.S. (FindLaw 2006) However, according to a complaint filed against DHS and Napolitano, DHS' "National Security Entry/Exit Registration System" tracks at least 83,000 individuals, but has not resulted in a single conviction on terrorism-related charges. (DocStock 2010) By themselves, searches and interrogations of passengers entering the United States have so far not been known to have caught nor prevented any terrorists from entering the United States, nor in uncovering significant information relating to any of DHS OIA's PIIRs. Similarly, federal authorities claimed in September 2009 that the homeland security enterprise had disrupted 26 terror plots since 2001. (McNeill 2009) However, these all appear to have been investigations into specific individuals, based on specific intelligence leads. DHS' intelligence collection and analytic production against American groups with no known connections to terrorism and which do not advocate violence or extremism has not yet been known to have disrupted terrorist cells, curtailed radicalization to violence, or addressed any of DHS OIA's PIIRs. Additionally, while ostensibly in support of DHS' counter-terrorism mission, none of the intelligence activities in question relate to DHS OIA's stated policy of addressing the causes of violent radicalization instead of monitoring known radicals or extremists. These practices also fail to address any of DHS OIA's analytic thrusts. Conclusion:

DHS appears to have had a number of successes when conducting focused intelligence collection, production, and dissemination on specific individuals or organizations. However, DHS appears to have attempted to collect information too broadly, such as interrogating and searching a large number of travelers or attempting to discern suspicious individual patterns from large amounts of otherwise irrelevant data on individuals with no discernable link to threatening activity. This activity has yielded no known positive results; in fact, it has probably cost thousands of man-hours in collecting and processing irrelevant information, and made DHS susceptible to lawsuits that cost additional time and funds to address. Additionally, DHS assessments relating directly to threats or vulnerabilities likely provide leaders and decision-makers valuable insight. However, when not directly related to known or suspected threats, DHS assessments both complicate counter-terrorism efforts by diverting attention away from more substantiated threats, and waste scarce financial and personnel resources that could be used to more effectively accomplish DHS' mission. Available information supports Hypothesis #2: the intelligence activities that have prompted complaints of civil rights and liberties abuses are not part of or necessary for DHS's intelligence mission, and ceasing them would not prevent DHS from being able to carry out its domestic intelligence mission. DHS' intelligence practices of gathering information in bulk from large numbers of travelers inbound to the United States, collecting intelligence on American individuals, groups, or organizations with no known connection to extremism, terrorism, or violence, and publishing assessments on these same groups and topics is not part of its stated intelligence mission, and could be ceased without detriment to its overall intelligence or organizational mission.

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