AR 381-10, an enabling regulation—a view from an intelligence oversight officer - Brief Article

Military Intelligence Professional Bulletin, Jan-March, 2002 by Michael H. Varhola

In our zeal to enforce compliance with regulations, we sometimes forget what they are about. This is particularly true in the area of intelligence oversight. Vigorous enforcement, particularly in the 1970s, resulted in a misperception that lingers to this day: that the intelligence oversight program exists to prevent Military Intelligence (MI) from collecting information on U.S. citizens. Nothing could be further from the truth. The purpose of the regulation is just the opposite; it enables intelligence components to carry out their authorized functions effectively while ensuring that they perform the activities that affect U.S. individuals in a manner that protects their constitutional rights and privacy. Any intelligence oversight inspector who does not understand this may be doing more harm than good, and certainly will not be furthering combat readiness and mission accomplishment.

In my 30 years working in MI, I have never seen a situation in which AR 381-10, U.S. Army Intelligence Activities, prevented an intelligence component from collecting information on U.S. citizens that it needed to accomplish its mission. What I have seen is intelligence components being rightfully prevented from doing the mission of others. This was particularly true after the Oklahoma City bombing when some MI components shifted their focus to domestic extremism. This violated AR 381-10, not only because the extremists were U.S. persons, but more fundamentally because it is not MI's mission. It is the mission of civilian law enforcement, the Provost Marshal and the Criminal Investigation Command, and sometimes, quite frankly, MI got in the way.

When it is MI's mission, AR 381-10 is there to provide procedures that enable the collection of the information on citizens of the United States. Procedure 2 gives thirteen criteria under which MI can collect information on U.S. persons. These are all-encompassing. I cannot think of a category of information on citizens that MI would need that one of these criteria does not cover. Unfortunately, some individuals find it easier or safer to avoid the issue altogether by simply not collecting the data on citizens they may need to do their complete jobs. What I hear regularly is, "I'd rat her err on the side of caution." This is unfortunate and defeats the purpose of the regulation. I have even seen units destroy information in individual security clearance files in preparation for an intelligence oversight inspection, not realizing that such information is "administrative," as AR 381-10 defines that term, and that the regulation does not cover its retention.

The other side of this coin is just as bad or even worse. A small number of MI soldiers, not understanding the regulation, and perhaps having had exposure to heavy-handed enforcement in the past, have come to believe that it is an outdated regulation or is simply stupid. While there is obviously a continuing need to reinterpret the regulation as information technology advances and the Internet becomes a bigger part of our lives, I believe that the regulation is sound and its principles are easily transferable. It is not a big intellectual leap to go from collecting open-source information from newspapers to collecting the same information from websites. The same considerations apply to the involvement of U.S. citizens: mission, mission, and mission!

As the Cold War sinks into the distant past and we move into a future of smaller and more varied deployments, it becomes increasingly important that MI soldiers understand the fundamental purpose of AR 381-10 and use it as the tool the Army intended it to be. U.S. citizens will be operating in many capacities in every area to which we deploy; some may even be members of the opposing force. We cannot anticipte every situation. When MI needs to collect information about citizens of the United States to accomplish its military mission, AR 381-10 provides the procedures that enable it to do so while protecting their constitutional rights and privacy. Mission first, constitutional rights and privacy always! Erring on the side of caution is not a viable option.

As Mr. Varhola's article was written before the 11 September 2001 terrorist attacks, MIPB asked for any change in his position. Mr. Varhola provided the following comment: "As far as I have seen, EO 12333 is standing up quite well in the post 9/11 world. Regarding collection on U.S. persons, I have seen no problems. The terrorist attack came from a foreign source, and AR 381-10 allows the collection of military and military related foreign intelligence and counterintelligence concerning the activities, intentions, capabilities, MO, etc of international terrorists. The key thing is cooperation and info sharing among all the players: strategic CI, installation security, tenant units, PMO, CID, FBI, local authorities, etc. If everybody is working together, then the authority that is needed will be resident in at least one of the players."

Michael Varhola is currently an Intelligence Oversight Officer with the Department of the Army Inspector General. Mr. Varhola earned his commission in Artillery through the Reserve Officer Training Corps at Gannon University in Erie, Pennsylvania, where he majored in Russian and German. He entered the Military Intelligence civilian Excepted Career Program (MICECP) in 1979 and worked with the 511th as a CI Operations Case Officer.