PLRC Blog

This blog supplements Chapter 3 of America in Peril

24 April 2008

The Director of National Intelligence in May 2007 announced the availability of America’s most powerful spy satellites for use domestically against the war on terror. Law enforcement officials at all levels of government will have access to super precision data on selected targets within the US from Measurement and Signature Intelligence (MASINT), Imaging Intelligence (IMINT), and Signals Intelligence (SIGINT) spacecraft. Ostensibly this is to enhance border and seaport security, get information on critical infrastructure, monitor suspected people, survey suspicious events, detect explosives and other substances, and manage natural disasters. Homeland Security Director Michael Chertoff set up the National Applications Office (NAO) to open on October 1^st, the beginning of fiscal year 2008, to handle requests for spy satellite data. That’s as far as Chapter 3 of America in Peril went. But there is now more to the story.

The NAO didn’t open in October 2007. A House Homeland Security Committee letter dated 26 September 2007 pointed out how at least four programs – Secure Flight, CAPPS II, ADVISE, and MATRIX – were either cancelled or suspended because they violated privacy rules. (See Chapters 2 & 3 of America in Peril for a description of these programs) The letter continued: “We do not want the Department [of Homeland Security] to repeat the same mistakes with this program.” Then the letter said that given “the gravity and civil liberties issues in play with the NAO,” the committee would request the joint House-Senate Conference Committee to withhold funding for NAO until the legal safeguards and operating procedures were received, reviewed, and assessed.

Several months were needed to draw up the required documents. They were then presented to Congress in early spring of 2008. House Homeland Security Chairman Bennie G. Thompson sent a reply to Chertoff on April 8^th, saying the briefings “did not allay any of our concerns…. Should you proceed with the [program] without addressing our concerns, we will take appropriate steps to discontinue it.” (Siobhan Gorman, The Wall Street Journal, 8 April 2008) Chertoff said he would send additional documents that week.

Those documents were submitted on April 10^th but legislators quickly branded them inadequate. Representative Jane Harman, citing the domestic spying by NSA, said: “I have had firsthand experience with the trust-me theory of law from this administration. I won’t make the same mistake… I want to see the legal underpinnings for the whole program.” Chairman Thompson said what was submitted was “a good start,” and added: “We still don’t know whether the NAO will pass constitutional muster since no legal framework has been provided.” (Spencer S. Hsu, Washington Post, 12 April 2008)

Homeland Security spokeswoman Laura Keehner called the demands unwarranted because the “legal framework that governs the National Applications Office … is reflected in the Constitution, the U.S. Code and all U.S. laws.” (Hsu, op. cit.) Well, yes. But recall that is what was supposed to be guiding the NSA regarding domestic spying.

That is the standoff as of this date. I will put future developments in a subsequent blog.

Bob Aldridge.

This blog supplements Chapter 10 of America in Peril

18 April 2008

Section 1076 of the National Defense Authorization Act for Fiscal Year 2007 effectively repealed the Posse Comitatus Act which, with few exceptions, forbids the military from performing law enforcement within the US. This was done by expanding the Insurrection Act to allow employment of federalized National Guard troops and/or the Armed Forces during “natural disaster, epidemic or serious public health emergency, terrorist attack or incident, or other condition in any state or possession of the United States, the president determines that domestic violence has occurred,” to an extent justifying federal intervention. (Emphasis added) The Insurrection Act was also revised to add “or those obstructing the enforcement of the laws” in defining who federal authorities can order to disburse. Previously only “insurgents” could be so ordered. This of course could easily be stretched to cover legitimate peaceful protesters.

Then some good news, or so it seemed at first glance. Section 1068 of the National Defense Authorization Act for Fiscal Year 2008 repealed those changes. Posse Comitatus is revived and only “insurgents” can be ordered to disburse by federal officials. But as the bloggers warned, watch the signing statement. Sure enough, the president issued one when he signed that Act on 28 January 2008. It read in part:

Provisions of the Act … purport to impose requirements that could inhibit the President’s ability to carry out his constitutional obligations …. The executive branch shall construe such provisions in a manner consistent with the constitutional authority of the President.

Judging from how the executive branch wields its perceived “constitutional authority” during the normal administration of government, one can easily imagine how that signing statement would play out during the turmoil and panic of a national emergency. Nothing has altered the president’s plan for continuity of government during such an emergency.

Continuity of government was spelled out in a dual executive order on 9 May 2007 — National Security Presidential Directive No. 51 and Homeland Security Presidential Directive No. 20 (NSPD-51/HSPD-20). This order effectively suspends the Constitution and confers extraordinary powers on the President and Vice-President. Lip service is given to guaranteeing the checks and balances among the three branches of government but the overriding theme is that the executive branch is paramount.

Declaring national emergencies is not new. “National Emergency Powers,” a November 2006 Congressional Research Service (CRS) report, recalled that “delegations or grants of power authorize the President to meet the problems of governing effectively in times of crisis…. Under the powers delegated by such statutes, the President may seize property, organize and control the means of production, seize commodities, assign military forces abroad, institute martial law, seize and control all transportation and communication, regulate the operation of private enterprise, restrict travel, and in a variety of ways control the lives of United States citizens.”

The operative phrase is “delegations or grants of power.” The Constitution and Congress never intended a dictatorship. The CRS report also explained the limits of that power:

With the exception of the habeas corpus clause, the Constitution makes no allowance for the suspension of any of its provisions during a national emergency. Disputes over the constitutionality or legality of the exercise of emergency powers are judicially reviewable. Indeed, both the judiciary and Congress, as co-equal branches, can restrain the executive regarding emergency powers. So can public opinion.

In 1976 Congress passed The National Emergencies Act (50 U.S.C. 1601-1651) to restrict arbitrary declarations of emergencies by executive order. The Act mandated reporting the emergency declaration and subsequent updates to Congress, including the rules & regulations issued during the emergency.

Section 1079 of the 2008 Defense Authorization Act (which reversed the martial law provisions) requires the head of any intelligence agency or department to respond within 45 days to a congressional request for information. However, Bush’s signing statement (which takes specific exception to Section 1079) along with NSPD-51/HSPD-20 leaves considerable doubt about compliance with any reporting requirements. Section 20 of that executive order reads very similar to his signing statements: “This directive shall be implemented in a manner that is consistent with, and facilitates effective implementation of, provisions of the Constitution concerning succession to the Presidency or the exercise of its powers …” In addition, nothing in NSPD-51/HSPD-20 provides for any notification to Congress.

The American public does not know the full scope of NSPD-51/HSPD-20, and neither does Congress. All except one of the annexes to that directive are classified. When Congressman Peter DeFazio asked to see the secret annexes, a request made and honored numerous times, he was denied. DeFazio said: “We’re talking about the continuity of the government of the United States of America. I would think that would be relevant to any member of Congress, let alone a member of the Homeland Security Committee. Maybe the people who think there’s a conspiracy out there are right.”

The point is that we should not be complacent because certain martial law provisions have been rescinded. The thinking behind those provisions lives on, and the planning for continuity of government after another “terrorist attack” remains the same. America is still very much in peril.

Bob Aldridge

This blog supplements Chapter 4 of America in Peril

10 April 2008

The New York Times reported in April 2008 that the Pentagon might close its domestic spying agency called the Counterintelligence Field Activity (CIFA) – a program which has triggered public and congressional outrage over spying on Americans when anti-war protestors were found in its terrorist database. Defense Secretary Robert Gates in 2007 started a complete review of all Pentagon intelligence-gathering programs. The resulting report recommended that CIFA be shut down and many of its activities transferred to the Defense Intelligence Agency (DIA). It is not publicly known what activities would continue under DIA, if there would be tighter restrictions on domestic spying by the Pentagon, or if this is merely another shell game for public relations purposes. In fact, according to the report, closing CIFA would strengthen counterintelligence operations. (Counterintelligence, also called counterespionage, is the function of detecting espionage activities.)

Traditionally, the military has focused on “technical means” of intelligence gathering; using electronics, satellites, and other technologies to support military commanders. But since 9/11 the Pentagon has increasingly strayed into collecting “human intelligence” using spies, covert operations, prisoner interrogation, and the like. A February 2002 Defense Department Directive created CIFA to “develop and manage DOD counterintelligence programs and functions that support the protection of the Department … as well as to detect and neutralize espionage against the Department.” That order mandated two functions for CIFA: (1) to be the central point for collection, evaluation, and analysis of all DOD counterintelligence information although CIFA, itself, does not actually gather information; and (2) to seek and prevent espionage activities which target the Defense Department.

That was CIFA’s mission in 2002 and 2003. Then it began to creep. In August 2003, then Deputy Defense Secretary Paul Wolfowitz ordered CIFA to maintain a domestic law-enforcement database of information on possible terrorist threats directed against the Pentagon called Threat And Local Observation Notice (TALON). Into that would go everything considered a threat, no matter how remote that threat may seem or who reported it. CIFA was now collecting raw and unverified information on US citizens – even those exercising their right to free speech – and this dubious information is being used by the FBI and local law enforcement agencies.

Things got worse. A late 2005 Washington Post article read: “The White House is considering expanding the power of a little-known Pentagon agency called the Counterintelligence Field Activity … from an office that coordinates Pentagon security efforts … to one that also has authority to investigate crimes within the United States such as treason, foreign or terrorist sabotage, or even [civilian] economic espionage.” That’s a big creep from a mission that originally forbade any law enforcement except in regard to military espionage.

Public outrage flared when a four-page Pentagon memo entitled “Review of the TALON Reporting System” indicated there were some 13,000 entries at that time including 2,821 reports on America citizens. The memo said “an examination of the system led to deletion of 1,131 reports involving Americans, 186 of which dealt with ‘anti-military protests or demonstrations in the US.’ The Pentagon claimed less than 2% of the 13,000 entries shouldn’t have been there. That leaves 12,740 “suspicious incidents” which are supposedly legitimate. If there is that much evidence of terrorism in America we are in big trouble. Our jails should be bulging.

To further fuel public fury, a secret briefing paper obtained by NBC showed the military to be collecting dissidents’ names and vehicle license numbers, and otherwise monitoring their activities. It stated that “we have noted increased communication and encouragement between protest groups using the internet,” but no “significant connection” between incidents, such as “recurring instigators at protests” or “vehicle descriptions.” All of which confirms CIFA monitors who attend protests, the vehicles they drive, and what they do on the internet.

In December 2005 the Pentagon tasked CIFA with assigning domestic cases to the counterintelligence units of the military services that have over 4,000 trained investigators at home and abroad. That goes way beyond CIFA’s previous mission to only collect and process information from those units. CIFA now assigns domestic-spying to the Army, Navy, and Air Force.

Newsweek in April 2006 revealed a possible merger of CIFA with the Defense Security Service which investigates the security arrangements of defense contractors and has millions of classified background checks on defense-contractor employees. Such a merger would weaken the safeguards on some 4.5 million employee security files. The media covered this possible merger in April 2006 but it has since disappeared from public view.

So now the pressure is on as anti-CIFA opinion soars. There is talk of ending that program. But history has taught us that terminating a program doesn’t mean it just goes away. When Congress killed the Pentagon’s notorious Total Information Awareness (TIA) program in 2003, two key elements including the prototype system went to what is now a unit of the Department of Homeland Security. Likewise, three of TIA’s data mining and artificial intelligence programs went to the 902^nd Military Intelligence Group which is the Pentagon’s largest counterintelligence unit with hundreds of personnel spread across the country. Besides having access to TALON, the 902^nd makes extensive use of Homeland Security’s Joint Regional Information Exchange System (JRIES) which has databases in all 50 states, all of which can be instantaneously accessed by any law enforcement agency as well as military and government units. JRIES provides terrorist-related information on US citizens without involving the federal government after TIA was cancelled. So the practice, when a program is cancelled, is to shuffle programs among various government departments under ever-changing names, but all interconnected to work as a unit that everyone can access.

In 2007 the Pentagon shut TALON down and is now considering the same for CIFA. That makes sense since both have generated much controversy and they go together like hand in glove. We can be assured, however, that the databases and the infrastructure for those programs will live on. Perhaps CIFA and the Defense Security Service did merge and everything continues as before, only under the DSS label. Or perhaps the 902^nd Military Intelligence Group is now shouldering CIFA’s activities. And remember that the Defense Intelligence Agency is to inherit some of CIFA’s legacy. Or it may be a mix of all these and more. One thing is certain: CIFA and TALON will live on somewhere, under some name. Information on America and Americans will remain on databases obscured from the public but accessible to any spy agency on demand.

Bob Aldridge

My book America in Peril may be ordered from Hope Publishing House, P.O. Box 60008, Pasadena, CA 91116. (360 pages, $16.95 plus $3 shipping)

References.

Block, Robert and Fields, Gary; “Is Military Creeping Into Domestic Law Enforcement?” The Wall Street Journal, 9 March 2004.

DOD Directive 5105.67; “Department of Defense Counterintelligence Field Activity (DOD CIFA),” 19 February 2002.

Hosenball, Mark; “America’s secret Police?” Newsweek, 13 April 2006.

Mazzelli, Mark; “Pentagon is Expected to Close Intelligence Unit,” sThe New York Times, 2 April 2008.

Myers, Lisa; Pasternak, Douglas; and Gardella, Rich; “Is the Pentagon Spying On Americans?” NBC News, 13 December 2005.

Pincus, Walter; “Pentagon Expanding Its Domestic Surveillance Activity,” Washington Post, 27 November 2005.

Pincus, Walter; “Protesters Found In Database,” Washington Post, 17 January 2007.