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The Militarization of Domestic Surveillance is Everyone’s Problem

The recent militarization of domestic intelligence operations not only skirts the rule of law, but risks alienating the very people they are trying to protect by treating them like enemy combatants.

December 18, 2014

Cross­pos­ted from Defense One.

Many Amer­ic­ans were shocked to see the milit­ar­ized police response to public protests this summer in Ferguson, Missouri. Of course, many work­ing on police reform issues have iden­ti­fied the grow­ing milit­ar­iz­a­tion of police tactics and equip­ment as a prob­lem for over two decades. What is less observ­able but equally danger­ous to Amer­ican civil liber­ties is the increas­ing milit­ar­iz­a­tion of domestic law enforce­ment intel­li­gence oper­a­tions.

The Amer­ican tradi­tion of prohib­it­ing milit­ary involve­ment in domestic poli­cing is designed to ensure that we main­tain demo­cratic and civil­ian control over an extraordin­ar­ily power­ful fight­ing force. An army designed and equipped to protect Amer­ic­ans should never be turned against Amer­ic­ans except to quell active rebel­lion. But just as the drug war fuelled increased milit­ary parti­cip­a­tion and milit­ar­iz­a­tion in domestic poli­cing, the war on terror­ism is driv­ing the milit­ar­iz­a­tion of domestic intel­li­gence oper­a­tions. Unlike the purchases of armored vehicles, milit­ary weapons, and SWAT gear, domestic intel­li­gence activ­it­ies take place mostly in the dark and neither the public nor poli­cy­makers really know what is happen­ing.

Milit­ary intel­li­gence offi­cials are trained for war against hostile enemies. Their tools, tactics, and atti­tudes reflect that mission, and are completely inap­pro­pri­ate to a domestic applic­a­tion.

In a recent inter­view, Dr. Erik Dahl, a former Navy intel­li­gence officer and now a professor at the Naval Post­gradu­ate School, explains why someone who trained to spy on the Soviet Navy should­n’t be involved in domestic intel­li­gence gath­er­ing.

WATCH:

Despite such warn­ings, domestic intel­li­gence programs have become milit­ar­ized in three ways.

First, milit­ary agen­cies are conduct­ing domestic intel­li­gence collec­tion against Amer­ic­ans, and provid­ing that inform­a­tion to law enforce­ment offi­cials. The National Secur­ity Agency scoops up domestic tele­phone call­ing data, as well as the content of U.S. inter­na­tional commu­nic­a­tions (“inad­vert­ently” grabbing tens of thou­sands of purely domestic calls each year in the process). The FBI has direct access to this mater­ial, and can use it for general crim­inal purposes through so-called “back door searches.”

Milit­ary offi­cials also collect domestic intel­li­gence for “force protec­tion.” A milit­ary unit that was caught spying on anti-war protest­ers under this author­ity was disban­ded in 2008, but the Defense Intel­li­gence Agency picked up its “offens­ive coun­ter­in­tel­li­gence” duties and re-estab­lished an intel­li­gence data­base in 2010. National Guard units and civil­ians work­ing at milit­ary agen­cies have been caught illeg­ally spying on domestic protest­ers, and more recently, enga­ging in under­cover law enforce­ment activ­it­ies in viol­a­tion of the Posse Comit­atus Act, a law prohib­it­ing U.S. milit­ary person­nel from enfor­cing crim­inal laws.

Second, milit­ary agen­cies and person­nel parti­cip­ate in formal and informal inform­a­tion shar­ing programs on the federal and state level, includ­ing between FBI Joint Terror­ism Task Forces, state and local law enforce­ment intel­li­gence fusion centers, and inform­a­tion shar­ing networks like the Navy’s Law Enforce­ment Inform­a­tion Exchange (LInX), and the FBI’s eGuard­ian program. Though there are legal limits to the type of work milit­ary offi­cials can do within these programs and the inform­a­tion they can share, there is little to no over­sight conduc­ted to ensure they follow the law.

Third, milit­ary intel­li­gence tactics and atti­tudes rub off on law enforce­ment person­nel assigned to intel­li­gence matters. Most nations outlaw espi­on­age, so foreign intel­li­gence activ­it­ies have to be carried out through stealth and decep­tion. Avoid­ance of the law and contempt for the truth can become habitual among intel­li­gence offi­cials, but they simply have no place in a demo­cratic govern­ment’s inter­ac­tions with its own citizens. Yet, through­out the history of domestic intel­li­gence oper­a­tions in the U.S., law enforce­ment offi­cials have gone to the milit­ary intel­li­gence tool­box in select­ing their meth­ods.

In 1976, the Church Commit­tee called the tactics J. Edgar Hoover brought to bear against civil rights and peace activ­ists in the United States “tech­niques of wartime” better suited for use against agents of hostile foreign nations like the Soviet Union. The Attor­ney General issued guidelines to ensure future FBI intel­li­gence activ­it­ies would focus on crim­inal activ­ity. The Justice Depart­ment imposed similar regu­la­tions restrict­ing state and local law enforce­ment crim­inal intel­li­gence systems.

Restrict­ing domestic intel­li­gence collec­tion to suspec­ted crim­inal activ­ity is essen­tial to the concepts of limited govern­ment and indi­vidual liberty, whose found­a­tion lies in what Supreme Court Justice Louis Bran­deis called “the right to be left alone.” It also rein­forces the rule of law. Meth­ods used in crim­inal intel­li­gence gath­er­ing tend to get exposed in the prosec­u­tions that follow their effect­ive use. Defend­ants can then chal­lenge their legal­ity, while judges, juries and the public can weigh whether the govern­ment tactics are appro­pri­ate. Law enfor­cers can’t be law break­ers.

Unfor­tu­nately, the federal govern­ment has loosened or ignored law enforce­ment guidelines restrict­ing intel­li­gence gath­er­ing in the years since 9/11, remov­ing or weak­en­ing the crim­inal predic­ates neces­sary to ensure a proper focus on illegal activ­ity. The results were predict­able —increased police spying on minor­it­ies and polit­ical dissid­ents and increased efforts to escape judi­cial and public over­sight. Federal law enforce­ment agen­cies have adop­ted policies of “paral­lel construc­tion” to mask the surveil­lance meth­ods they use to gather evid­ence, mislead­ing courts and depriving defend­ants of their right to chal­lenge their consti­tu­tion­al­ity. Where evid­ence of improper FBI surveil­lance has leaked to the public, the Justice Depart­ment invoked “state secrets” to shut down litig­a­tion. And at the request of the State Police and FBI, the Virginia legis­lature exemp­ted its intel­li­gence fusion center from open govern­ment laws.

Trained by the milit­ary to spy on hostile foreign nations, Dahl cautioned that “you would­n’t want to hire me to conduct domestic surveil­lance.” His state­ment should serve as a warn­ing to those in Congress who author­ized the NSA to play a major role in seiz­ing Amer­ic­ans’ elec­tronic commu­nic­a­tions (and want to give it more author­ity over U.S. cyber secur­ity), and sat silent as the FBI has transitioned into a domestic intel­li­gence agency.

It should also serve as a warn­ing to federal, state and local law enforce­ment offi­cials. As these agen­cies have increas­ingly claimed a role in intel­li­gence collec­tion, they’ve looked to the milit­ary and foreign intel­li­gence agen­cies for tactics, expert­ise and person­nel, without suffi­ciently recog­niz­ing the import­ant distinc­tions between domestic and foreign intel­li­gence.

The negat­ive public reac­tion to recent milit­ar­ized police tactics and equip­ment is an indic­a­tion of the unease Amer­ic­ans will feel with milit­ar­ized law enforce­ment intel­li­gence efforts. Amer­ic­ans trust the NSA far less than their local police. But when the local police begin adopt­ing intel­li­gence meth­ods used by the NSA and other foreign intel­li­gence agen­cies, they will begin to lose that essen­tial public support.

No one disputes that there are viol­ent crim­in­als, spies and terror­ists within our coun­try and that our law enforce­ment offi­cials need adequate intel­li­gence tools to catch them. Requir­ing that police focus on illegal activ­ity does­n’t impair their mission, it puts these threats squarely in their cross-hairs. It is no surprise that Dahl’s research on success­fully preven­ted terror­ist attacks show that tradi­tional law enforce­ment tech­niques are far more effect­ive than NSA mass surveil­lance programs.

WATCH:

As Dr. Dahl suggests, we need to have a “much better public discus­sion about intel­li­gence.”

To read an edited tran­script of Dr. Erik Dahl’s inter­view, click here.

To watch Erik Dahl’s entire inter­view, click here. To read an edited tran­script of Dr. Erik Dahl’s inter­view, click here. The opin­ions expressed in this inter­view are entirely his own.