Intelligence Oversight

An Introduction to Intelligence Oversight and Sensitive Information: The Department of Defense Rules for Protecting Americans’ Information and Privacy 
-- April 2013 - The Army Lawyer - DA PAM 27-50-479

History abundantly documents the tendency of Government - however benevolent and benign its motives - to view with suspicion those who most fervently dispute its policies. Fourth Amendment protections become the more necessary when the targets of official surveillance may be those suspected of unorthodoxy in their political beliefs. The danger to political dissent is acute where the Government attempts to act under so vague a concept as the power to protect ‘domestic security.’ Given the difficulty of defining the domestic security interest, the danger of abuse in acting to protect that interest becomes apparent. . . . The price of lawful public dissent must not be a dread of subjection to an unchecked surveillance power. Nor must the fear of unauthorized official eavesdropping deter vigorous citizen dissent and discussion of Government action in private conversation. For private dissent, no less than open public discourse, is essential to our free society...(United States v. U.S. District Court, 407 U.S. 297 (1972), also known as the Keith case.)

Intelligence Oversight Related to CONUS
(Inspector General of the Marine Corps, Oversight Division) Oversight related to CONUS antiterrorism / force protection a few preliminary questions posed and answered.

Pentagon Releases New Procedures for Intelligence Collection

Intelligence Oversight applies to Department of Defense (DOD) intelligence activities, and is addressed by each military service. Here we will look briefly at how the US Army addresses intelligence activities:

Army Regulation 381-10 "U.S. Army Intelligence Activities" (May 3, 2007) applies to any Army component performing authorized intelligence functions. This includes "installation, organization, or facility security offices [e.g. operations specialists and anti-terrorism officers] when carrying out intelligence activities".

Intelligence activities are defined as: "Collecting information concerning, and conducting activities to protect against, intelligence activities directed against the United States, international terrorist and international narcotics activities, and other hostile activities directed against the United States by foreign powers, organizations, persons, and their agents."

Army law enforcement, "USACIDC, garrison provost marshals and security officers" as non-intelligence entities are not subject to the provisions of this regulation [AR 381-10], but must comply with DODD 5200.27.

It is DoD policy to protect the privacy and civil liberties of DoD employees, members of the Military Services, and the public to the greatest extent possible, consistent with its operational requirements.

DoD will not maintain information on how an individual exercises rights protected by the First Amendment to the Constitution of the United States, including the freedoms of speech, assembly, press, and religion, except when the record is pertinent to and within the scope of an authorized law enforcement, intelligence collection, or counterintelligence activity.

The collection, use, maintenance, and dissemination of information critical to the success of the DoD efforts to counter terrorist and other criminal threats must comply with all applicable laws, regulations, and policies regarding the safeguarding of personal freedoms, civil liberties.

When collected or received personally identifiable information concerning individuals will be handled in strict compliance with section 552a of Title 5, United States Code (U.S.C.), also known as "The Privacy Act of 1974". 

The DOD has published a Quick Reference Guide for Reporting Questionable Intelligence Activities at: http://dodsioo.defense.gov/Quick-Ref/

Most intelligence personnel correctly associate questionable intelligence activities with improper collection on U.S. persons; however, that is only one aspect of questionable intelligence activities.

A questionable intelligence activity is one that may violate the law, any Executive Order (such as EO 12333, United States Intelligence Activities) or Presidential directive or applicable Department of Defense policy (such as DoD 5240.1-R, Procedures Governing the Activities of DoD Intelligence Components that Affect United States Persons), as well as your parent organization's specific guidance.

Examples of a questionable intelligence activity include, but are not limited to, the following:

• Alleged abuse and mistreatment of detainees and prisoners by or directed by intelligence personnel.
• Tasking intelligence personnel to conduct intelligence activities that are not part of the organization's approved mission, even if they have the technical capability to do so.
• Providing intelligence services and/or products without proper authorization.
• Failure to file proper use statements for imagery collection associated with U.S. persons.
• Collecting information on U.S. persons, even through open source, when it is not part of the unit's mission.