Domestic Defense
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.

Michael Isikoff and Mark Hosenball / Newsweek | October 6 2005

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.

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