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Could proposed new intelligence-gathering powers for the Pentagon lead
to spying on U.S. citizens? The question is being asked as the White House considers
new roles for the military inside America's borders.
The Pentagon would be granted new powers to conduct undercover intelligence
gathering inside the United States—and then withhold any information about
it from the public—under a series of little noticed provisions now winding
their way through Congress.
Citing in part the need for “greater latitude” in the war on terror,
the Senate Intelligence Committee recently approved broad-ranging legislation
that gives the Defense Department a long sought and potentially crucial waiver:
it would permit its intelligence agents, such as those working for the Defense
Intelligence Agency (DIA), to covertly approach and cultivate “U.S. persons”
and even recruit them as informants—without disclosing they are doing
so on behalf of the U.S. government. The Senate committee’s action comes
as President George W. Bush has talked of expanding military involvement in
civil affairs, such as efforts to control pandemic disease outbreaks.
The provision was included in last year’s version of the same bill, but
was knocked out after its details were reported
by NEWSWEEK and critics charged it could lead to “spying” on
U.S. citizens. But late last month, with no public hearings or debate, a similar
amendment was put back into the same authorization bill—an annual measure
governing U.S. intelligence agencies—at the request of the Pentagon. A
copy of the 104-page committee bill, which has yet to be voted on by the full
Senate, did not become public until last week.
At the same time, the Senate intelligence panel also included in the bill two
other potentially controversial amendments—one that would allow the Pentagon
and other U.S. intelligence agencies greater access to federal government databases
on U.S. citizens, and another granting the DIA new exemptions from disclosing
any “operational files” under the Freedom of Information Act (FOIA).
“What they are doing is expanding the Defense Department’s domestic
intelligence activities in secret—with no public discussion,” said
Kate Martin, director of the Center for National Security Studies, a civil-liberties
group that is often critical of government actions in the fight against terrorism.
But Don Black, a DIA spokesman, said Wednesday that the new provisions were
limited in scope and would only give the DIA the same investigative powers as
the FBI and CIA—powers that are crucial to the agency’s expanded
mission in tracking the terrorist threat. “We’re not trying to do
investigations of people inside the United States,” he said. “What
we’re trying to do is follow leads about terrorist activities.”
The proposed new powers governing the Pentagon’s intelligence operations
comes at a time when there is already internal debate within Washington over
proposals to expand domestic Defense Department activities—in part because
of the outcry over the botched response by other U.S. government agencies to
the Hurricane Katrina disaster. President Bush ratcheted the debate up Tuesday
during his press conference when he suggested for the first time that the U.S.
military might be used to quarantine members of the public in the event of an
outbreak of the avian flu. “And who best to be able to effect a quarantine?”
Bush asked during his press conference. “One option is the use of a military
that’s able to plan and move. And so that’s why I put it on the
table.”
But the move to expand Pentagon intelligence activities inside the United States
carries special resonance—in part because of embarrassing disclosures
about the U.S. military engaging in domestic spying during the 1960s and 1970s.
Revelations that the U.S. military had penetrated and spied on antiwar protestors
led to tight new restrictions imposed by Congress. One of the chief restrictions
is a legal requirement that the DIA or any other Defense Department intelligence
agency conform to the provisions of the Privacy Act, a Watergate-era law that
requires government officials seeking information from a U.S. resident to disclose
who they are and what they want the information for.
Ever since the September 11 terror attacks, which gave the Pentagon expanded
new counterterrorism authority, DIA officials have maintained that this restriction
(which does not apply to the FBI or the CIA) has severely hampered its ability
to approach U.S. residents and recruit them as informants. Many of the agency’s
potential targets are members of ethnic communities inside the United States—such
as Pakistanis or Arabs with close relatives in the Middle East. Such persons
may often travel overseas, either for business, family or educational reasons
and may have contacts with friends or relatives who have been tied to terrorist
groups or hostile foreign government officials—making them tempting targets
for recruitment as DIA informants, the agency argues.
DIA officials also say the provision approved by the Senate Intelligence Committee
has important protections against abuses: any approaches to U.S. residents must
be specifically approved by the director of DIA, coordinated with the FBI and
could not be used to gather information about the “domestic activities
of any United States person.” One senior DIA official, who asked not to
be identified because of the sensitivity of the matter, said the agency only
contemplates using the provision in a limited number of cases where the potential
foreign intelligence information is “significant.”
“This isn’t for run-of-the-mill stuff,” said the senior DIA
official. “We’ve tried to write in these protections so this will
be used only in limited circumstances where we can’t do it any other way.”
But Martin, the civil-liberties advocate, said the DIA recruitment provision
must be looked at in the context of two other measures tucked into the Senate
intelligence authorization bill. One of them specifically grants the DIA a blanket
exemption from having to search any of its “operational files” when
it receives a FOIA request. There is already such a FOIA exemption for CIA operational
files. But Martin contended that some of the DIA’s activities that are
currently not covert would be covered by the new exemption, thereby extending
a greater cone of secrecy around the agency. (The senior DIA official said the
agency was “wasting time, energy and manpower” conducting FOIA requests
for agency files that, at the end of the day, don’t get released anyway
because they involve classified information.)
Another little-noticed provision of the bill would create a four-year pilot
program that would allow U.S. intelligence agencies to have access to data collected
about U.S. residents by other government agencies and covered by the Privacy
Act. The FBI can already obtain many such records—such as pilot licenses
or Transportation Department licenses for driving hazardous-waste materials
or other government permits and applications—for law-enforcement purposes.
The new Senate intelligence provision would allow U.S. intelligence agencies,
such as the CIA and the DIA, or "parent" agencies such as the Pentagon
itself, to collect such information deemed by the agency director to be useful
in intelligence gathering related to international terrorism or weapons of mass
destruction. No court order would be required for the information to be shared.
Hurricane, Flu Outbreak Defense
The notion that the military should play a greater role in other civil matters—by
quarantining part of the country affected by an infectious-disease outbreak,
for example—was raised by President Bush himself in a White House news
conference Tuesday. A questioner pointed out to the president that Health and
Human Services Secretary Mike Leavitt had said that emergency services and local
governments were not prepared to handle such an outbreak. The questioner asked
whether, in light of the government’s recent problems responding to hurricanes,
this was why Bush was considering using “defense assets” to respond
to a deadly flu epidemic.
Bush said an avian flu outbreak would present him with “difficult”
decisions, including whether or not to quarantine affected parts of the country.
Bush said he put "on the table" the option of using the military so
Congress could examine such a proposal. "Congress needs to take a look
at circumstances that may need to vest the capacity of the president [to respond
to that kind of catastrophe].”
Dr. Irwin Redlener, director of the National Center for Disaster Preparedness
at Columbia University’s Mailman School of Public Health, says that the
military has almost certainly had contingency plans for years for dealing with
pandemics but that to his recollection such plans had not been publicly discussed
by presidents or other top government officials. Redlener says that the clumsy
response of government agencies at all levels to recent hurricanes has bolstered
his belief that in the case of major catastrophes it might be appropriate to
get the military involved in a substantial way at an early stage because of
its capabilities to move men and materiel to a disaster scene in a rapid and
orderly fashion.
However, Redlener gives several reasons why it would be “unworkable”
to use the military to try to limit the spread of a pandemic such as avian flu.
For a start, he says, such a pathogen spreads rapidly and it would be difficult
if not impossible to contain it to a particular geographical area. Moreover,
the use of the military to enforce such a quarantine would, in Redlener’s
view, smack of martial law and set up potentially violent confrontations between
armed troops trying to enforce a quarantine and U.S. citizens used to moving
freely around the country. Such deployment of the military would “cause
extraordinary disruption from the societal point of view” with “highly
unpredictable” consequences, he said.