DOD Releases Records of Illegal Surveillance

By William Fisher

Defense Department agencies improperly collected and disseminated intelligence on Planned Parenthood and a white supremacist group called the National Alliance, an Air Force briefing improperly included intelligence on an anti-war group called Alaskans for Peace and Justice, and Army Signals Intelligence in Louisiana unlawfully intercepted civilian cell phone conversations.

These are among the disclosures made this week in the release of more than 800 heavily-redacted pages of intelligence oversight reports, detailing activities that the Defense Department’s (DOD) Inspector General has “reason to believe are unlawful.”

The reports are the latest in an ongoing document release by more than a half-dozen intelligence agencies in response to a Freedom of Information Act (FOIA) lawsuit filed by Electronic Frontier Foundation (EFF).

The reports, submitted to the Intelligence Oversight Board (IOB) by the Inspectors General of the various Department of Defense components, cover the period from 2001 through 2008. The IOB’s role within the Executive Office of the President is to ensure that each component of the intelligence community works within the Constitution and all applicable laws.

The Inspector General of each intelligence agency is required to submit periodic reports to the IOB, which in turn is required to forward to the Attorney General any report identifying an intelligence activity that violates the law. Intelligence oversight reporting is rarely disclosed to the public.

This new release comes from various DOD components, including the Army and the Joint Chiefs of Staff. Much of the improper activity consisted of intelligence gathering on so-called “U.S. Persons,” including citizens, permanent residents and U.S.-based organizations.

While DOD agencies are generally prohibited from collecting such
information (except as part of foreign intelligence or counter-intelligence
activity), EFF says “it is apparent from the unredacted reports released to EFF that some DOD components have had chronic difficulty complying with that prohibition.”

Specific disclosures include:

· A report that the Joint Forces Command, working with the FBI, improperly collected and disseminated intelligence on Planned Parenthood and a white supremacist group called the National Alliance, as part of preparations for the 2002 Olympics.

· A North American Aerospace Defense Command (NORAD)
briefing improperly included intelligence on an anti-war group called Alaskans for Peace and Justice in 2005.

· A 2006 report that NORAD had procedural problems relating to collecting information on U.S. Persons.

· A report from 2003 of a closed investigation into prisoner abuse at Abu Ghraib and other sites in Iraq.

· A report from 2006 of improper intelligence (in the TALON program) on an anti-recruiting group. The TALON (Threat and Local Observation Notice) program grew out of the Air Force neighborhood watch program known as Eagle Eyes. It was designed to record potential terrorist pre-attack activity.

· A report from 2007 of an Army Reserve officer routinely collecting data on U.S. Persons exercising their free speech rights.

· A 2008 report that Army Signals Intelligence in Louisiana intercepted civilian cell phone conversations.

· A 2008 report that Army Cyber Counterintelligence officers attended the Black Hat hacker conference without disclosing their Army affiliation and without prior authorization to do so.

· A report that the Air Force Office of Special Investigations (AFOSI) set up a “honey pot” computer system to identify foreign threats in May 2006. In October 2007, AFOSI realized that the honey pot system might have been in violation of a sealed Foreign Intelligence Surveillance Court (FISC) order that required a Foreign Intelligence Surveillance Act (FISA) warrant for such activity. AFOSI was not privy to the FISC order and only knew of it from public media reporting. The operation was suspended. When the Air Force asked the Justice Department to see the FISC order at issue, DOJ’s National Security Division denied the Air Force’s request.

Asked by Truthout to comment on the significance of the document release, Nate Cardozo, a Legal Fellow at EFF, said, “To get any response at all from the DOD is noteworthy. At DOD the unlawful gathering of intelligence is a widespread practice that we consider problematic.”

He added that the disclosures are also important because they test the efficiency of the intelligence oversight mechanism – and “we find it seems to be working fairly well.”

Finally, he said, “We are interested in how many of these violations of law are referred to the Attorney General for possible criminal prosecution. Our experience is that that number is miniscule.”

EFF’s original FOIA request, dating back to February 2008, went unanswered, as did another request in June of 2009. As a result, in July 2009, EFF filed suit against the Central Intelligence Agency (CIA) and a half-dozen other federal agencies involved in intelligence gathering, demanding the immediate release of reports about potential misconduct. EFF’s suit was filed under the Freedom of Information Act (FOIA), requesting records of intelligence agencies' reporting of activities since 2001 that might have been unlawful or contrary to presidential order.

"By executive order, federal intelligence agencies must submit concerns about potentially illegal activity to the Intelligence Oversight Board and the Office of the Director of National Intelligence," EFF’s Cardozo said.

"Intelligence agencies are given a wide berth for national security reasons, but at a minimum they're required to act within the limits of the law. These records hold important details about how well the Executive Branch's internal checks operate," he said.

Members of the Intelligence Oversight Board are appointed by the president to advise on intelligence matters.

A storm of media coverage followed the previous disclosure that the CIA chose to keep Congress in the dark about a plan to train anti-terrorist assassin teams. That disclosure focused public attention on the lack of transparency in intelligence reporting. Lawmakers accused the CIA of deliberately misleading Congress and called for an investigation into officials' conduct.

EFF says the reports the agencies have provided to the Intelligence Oversight Board “undoubtedly contain information that will shed some light on incidents such as this -- information that is necessary in order to provide appropriate oversight.”

In addition to the CIA, EFF's lawsuit named the Department of Homeland Security, the National Security Agency, the Department of Defense, the Department of Justice (including the FBI), the Office of the Director of National Intelligence, the Department of Energy, and the Department of State -- all of which failed to comply with FOIA requests seeking records and reports of concerns about intelligence activity that might have stepped over the bounds of the law.

"The CIA is not the only agency that has faced questions about the legality of its intelligence programs," said EFF Staff Attorney Marcia Hofmann. "Electronic surveillance and other intelligence activities have come under increasing scrutiny during the past several years. We're seeking information that will shed light on incidents of intelligence misconduct, how often they happen, and how effective oversight is for controversial programs. The agencies must follow the law and release these records to the public."

The first results of the EFF suit were delivered in December 2009. They included:

· The Department of Homeland Security improperly investigated the U.S.-based religious organization the Nation of Islam.

· High-level Pentagon officials gave false information to Congress about al-Qaeda and the 9/11 attacks.

· The Department of Homeland Security improperly collected intelligence about a non-violent Muslim conference in Georgia, including details about conference speakers who were Americans.

· The National Security Agency admitted that, as of late 2007, it lacked processes and procedures for timely reporting of intelligence oversight violations.

Steven Aftergood, director of the Government Secrecy Project at the Federation of American Scientists, thinks the latest document release is significant but inconclusive. He told Truthout, “The latest release leaves a lot of questions unanswered. For example, what was the specific nature of the reported activities? And what was the official response?”

As to the importance of the released documents, Aftergood said, “It's really hard to say. But still, thanks to EFF and the Freedom of Information Act, we at least have a better idea of how much we don't know.”

He added, “It's also somewhat encouraging that the DOD is complying with the requirement to report potentially unlawful activities. At least there is some kind of paper trail, even if much of remains classified for the time being.”

This article originally appeared in Truthout.org