Homeland Security: an intelligence oversight perspective

Military Intelligence Professional Bulletin, July-Sept, 2002 by Regan K. Smith

Since September 11, the United States' Legislative and Executive Branches have been grappling with how to determine and respond to threats to the United States' sovereign territory. Congress passed the USA PATRIOT Act. (1) The President established the Office of Homeland Security. The Secretary of Defense established a Department of Defense (DOD) Homeland Security Office. The Army is wargaming and evaluating its requirements. To date, however, the only guidance actually documented was the PATRIOT Act. This article reviews intelligence oversight in light of recent events, and provides Military Intelligence (MI) professionals food for thought as the Homeland Security (HLS) process evolves.

USA PATRIOT Act of 2001

The PATRIOT Act requires the Attorney General to write implementing guidelines. As of this writing, the Attorney General's office has not yet promulgated those guidelines; they will not apply to MI until DOD implements any relevant portions of that guidance. The PATRIOT Act did not alter, in any manner, the DOD criminal investigative or counterintelligence (CI) jurisdictions established in the current DOD and Department of Justice (DOJ) delimitations agreements. See Figure 1 for those few areas impacting the Intelligence Community (IC).

The Act allows law enforcement to share certain information, such as grand jury information, with the Intelligence Community--information to which the IC previously had no access. In turn, the Director of Central Intelligence, working with the Attorney General, must develop and implement a means of sharing IC information with the law enforcement community in ways that get the information to an actionable agency, yet still does not endanger intelligence sources and methods. How both communities will accomplish this is not known.

Intelligence Oversight Changes

So what does this mean for intelligence oversight? It means that the DOD and Army policies predating the PATRIOT Act remain in effect (DOD 5240.1-R, Procedures Governing the Activities of DOD Intelligence Components That Affect United States Persons, and AR 381-10, U.S. Army Intelligence Activities). (Ml has no more and no less authority to collect, retain, and disseminate domestic U.S. person information, without a connection to foreign powers or international terrorism, than it did before the Act).

What has changed is a realization that information stovepipes are hindering the United States from determining what the normal internal baseline is, how to tell when a situation changes from the norm, and what that might mean. Does information indicate another terrorist attack is in pre-operational planning? Is an attack imminent? Was it just ordinary crime or ordinary daily activity in that region? We literally do not know what we do not know. At DOD and the Joint Staff (and yes, Headquarters, Department of the Army [HQDA]) levels, they are now questioning whether we all have too strictly interpreted intelligence and law enforcement oversight, limiting our baseline knowledge within the United States and, if so, what changes are necessary.

Meanwhile, there is an immediate requirement to fuse information from the IC; federal, state, and local law enforcement; and other local entities at various levels into as accurate an analysis of potential or actual threats as possible. AR 525-13, Antiterrorism, dated January 2002, covers this in detail. It is here that things become very confusing in the Army.

In a nutshell, the same old rules apply for Ml. Military intelligence still is not and will not be the "database central "for all "threat" data held inside the Army ("threat" appears to change definitions according to location and who requested it for a particular type of information). AR 525-13 clearly states that the force protection (FP) focal point lies with the G3 or equivalent, not in the G2. The fusion process, combining police intelligence, criminal intelligence, and MI into an FP product, is not a provost marshal, U.S. Army Criminal Investigations Command (USACIDC), or MI function. It is a force protection office function.

Rules Applicable to HLS Collection and Dissemination

While most Army elements can task-organize as needed, certain rules apply no matter where a command places its FP office. For example, suppose a continental United States (CONUS) installation has designated its fusion point as a "Force Protection Analyst" (FPA) position? Contrary to AR 525-13, that position was in the installation or corps G2 shop. That individual has the responsibility (assigned function) of fusing and analyzing information, but the disseminated product is not an intelligence product. Merely locating within the G2 shop does not constitute a functional assignment to the G2. The G2 shop may simply have all the communication "pipes" necessary for the FPA to do his work.

This FPA must receive information from many sources including:

* Provost marshal, USACIDC, and 902d MI Group local offices (and through these three, local civilian officials).

* Army G3 Antiterrorism Operations and Intelligence Cell's daily FP summary.