By William Fisher
President Bush’s do-it-yourself eavesdropping notwithstanding, the Pentagon could soon have legal authority to “covertly” gather intelligence on American citizens in the United States – a power taken from them because of excesses during the Vietnam War.
The Senate Intelligence Committee, meeting in closed session, last month quietly approved a request from the Department of Defense (DOD) to allow it to conduct surveillance operations within American Muslim communities. The DOD said the cooperation of these communities could help fight insurgencies in Iraq and Afghanistan.
"We believe there are people in the United States who have information of value to us," said Jim Schmidli, deputy general counsel for operations at the Pentagon's Defense Intelligence Agency. "That information is within different ethnic communities in this country -- recent additions to our population from distressed areas of the world, primarily the Middle East."
But civil liberties groups and leaders of the Muslim community say the Pentagon is using the wars in Afghanistan and Iraq to resume the domestic spying powers that Congress banned after those powers were used to spy on Americans during the Vietnam era.
Michael Ratner, President of the Center for Constitutional Rights, told us, “We are seeing the increasing militarization of our American streets. Shame on the Senate for permitting the military to prowl our streets, spy on us, entrap unknowing people and terrify America. Are we living in Franco’s Spain? The military is not trained in constitutional rights; they belong on the battlefield and not in our homes.”
And Steven Aftergood, director of the Project on Government Secrecy of the Federation of American Scientists, told us, “At a time when domestic intelligence collection by the military is surging, the nation desperately needs an independent oversight body to exercise checks and balances. Unfortunately, it looks like the congressional intelligence committees are or unwilling or unable to provide that service.”
The intelligence committee supports inclusion of the request in the 2006 intelligence spending authorization bill. The full Senate will take up the bill later this month. The Pentagon's request was not included in the House version of the bill, which passed in June. The bill now goes to the Senate Armed Services Committee.
An identical provision was included in last year’s version of the same bill, but was removed after its details were disclosed by Newsweek magazine and critics charged it could lead to “spying” on US citizens.
But late last month, with no public hearings or debate, a similar amendment was inserted into the same annual authorization bill at the request of the Pentagon.
The intelligence committee also included two other amendments. One would allow intelligence agencies greater access to databases on U.S. citizens. Another would grant the Defense Intelligence Agency the right not to disclose "operational files" under the Freedom of Information Act (FOIA).
The Pentagon defended its request for the new powers, saying it needs more flexibility as it expands its role in counterterrorism.
"This is not about spying on Americans," DIA general counsel George Peirce said in an interview with the Washington Post. He defended the legislative language approved by the Senate Select Committee on Intelligence.
“We are not asking for the moon," Peirce said. "We only want to assess their suitability as a source, person to person" and at the same time "protect the ID and safety of our officers."
The CIA and the FBI already have such authority, he added, and the [Defense Intelligence Agency] needs it "to develop critical leads" because "there is more than enough work for all of us to do."
However, the idea has not been well received in the US Muslim community, or by other critics of the new power.
"This has a back-alley, dead-of-night feel to it that I don't think would be received well by the Muslim community," said Ibrahim Cooper, spokesman for the Council on American Islamic Relations.
Lisa Graves of the American Civil Liberties Union disagreed with a defense official's statement that the proposed change would not allow for carte blanche Pentagon spying inside the United States.
"That's some spin," Graves said. "The change would allow them to gather information on Americans surreptitiously. If it walks like a duck and quacks like a duck, it's a duck."
Some Republican legislators see the Pentagon request as an effort to do an end-run around the authority of the new director of national intelligence, Ambassador John D. Negroponte.
They are concerned that the Pentagon "may be carrying out new intelligence activities through programs intended to escape oversight from Congress” by creating “parallel functions to what is going on in intelligence, but is calling it something else,” according to Rep. Peter Hoekstra, Republican of Michigan, chairman of the House Intelligence Committee.
Hoekstra said he believed the proposed activities were designed to "obscure" the Pentagon's intelligence activities in order to keep them out of Mr. Negroponte's jurisdiction.
In the 1970s, Army intelligence agents were caught snooping on antiwar
protesters. Since then, military intelligence agencies have operated under tight restrictions inside the United States.
But this week, U.S. network television news displayed a DOD dossier purportedly showing that the military was already carrying out surveillance and risk assessments of peaceful antiwar protests in the U.S. The documents listed the license plate numbers of people attending antiwar rallies, and categorized the rallies as a “threat”.
The new provision would exempt the DOD from complying with the Privacy Act that requires government officials seeking information from a resident to disclose who they are and why they want the information.
A report by the Senate Intelligence Committee says the provision would allow military intelligence agents to "approach potential sources and collect personal information from them" without disclosing they work for the government. "Current counterterrorism operations," the report claims, require "greater latitude ... both overseas and within the United States."
DIA officials say they need the provision in order to question American businesspersons and college students who travel abroad.
But the provision will also be helpful in investigating suspected terrorist threats to military bases and contractors inside the United States, according to Pentagon spokesman Bryan Whitman.
Watchdog groups see the DOD’s proposals as "mission creep”. According to
Kate Martin, director of the Center for National Security Studies, "This...
is giving them the authority to spy on Americans," adding, "And it's all been done with no public discussion, in the dark of night." The Center is frequently critical of the war on terror