From the WaPo:
"The Defense Department has expanded its programs aimed at gathering and analyzing intelligence within the United States, creating new agencies, adding personnel and seeking additional legal authority for domestic security activities in the post-9/11 world. The moves have taken place on several fronts. The White House is considering expanding the power of a little-known Pentagon agency called the Counterintelligence Field Activity, or CIFA, which was created three years ago. The proposal, made by a presidential commission, would transform CIFA from an office that coordinates Pentagon security efforts -- including protecting military facilities from attack -- to one that also has authority to investigate crimes within the United States such as treason, foreign or terrorist sabotage or even economic espionage.
The Pentagon has pushed legislation on Capitol Hill that would create an intelligence exception to the Privacy Act, allowing the FBI and others to share information gathered about U.S. citizens with the Pentagon, CIA and other intelligence agencies, as long as the data is deemed to be related to foreign intelligence. Backers say the measure is needed to strengthen investigations into terrorism or weapons of mass destruction. The proposals, and other Pentagon steps aimed at improving its ability to analyze counterterrorism intelligence collected inside the United States, have drawn complaints from civil liberties advocates and a few members of Congress, who say the Defense Department's push into domestic collection is proceeding with little scrutiny by the Congress or the public.
"We are deputizing the military to spy on law-abiding Americans in America. This is a huge leap without even a [congressional] hearing," Sen. Ron Wyden (D-Ore.), a member of the Senate Select Committee on Intelligence, said in a recent interview. (...)
Perhaps the prime illustration of the Pentagon's intelligence growth is CIFA, which remains one of its least publicized intelligence agencies. Neither the size of its staff, said to be more than 1,000, nor its budget is public, said Conway, the Pentagon spokesman. The CIFA brochure says the agency's mission is to "transform" the way counterintelligence is done "fully utilizing 21st century tools and resources."
One CIFA activity, threat assessments, involves using "leading edge information technologies and data harvesting," according to a February 2004 Pentagon budget document. This involves "exploiting commercial data" with the help of outside contractors including White Oak Technologies Inc. of Silver Spring, and MZM Inc., a Washington-based research organization, according to the Pentagon document. For CIFA, counterintelligence involves not just collecting data but also "conducting activities to protect DoD and the nation against espionage, other intelligence activities, sabotage, assassinations, and terrorist activities," its brochure states.
CIFA's abilities would increase considerably under the proposal being reviewed by the White House, which was made by a presidential commission on intelligence chaired by retired appellate court judge Laurence H. Silberman and former senator Charles S. Robb (D-Va.). The commission urged that CIFA be given authority to carry out domestic criminal investigations and clandestine operations against potential threats inside the United States."
This is serious.
Until 9/11, there was the now-famous "wall" separating intelligence agencies and law enforcement agencies. The reason for this was simple. Originally, the intelligence agencies operated abroad, and law enforcement agencies operated in this country. At a certain point, intelligence agencies made the case that they needed to operate within the United States as well. People were very worried about this. For one thing, this was in the 1970s, and people had vivid memories of the government's extensive spying on people who had committed no crime, but who were thought to be political enemies. And they thought that this should never happen again.
More importantly,the two sorts of agencies collect information for very different reasons. Law enforcement agencies go to work after a crime has been committed, and they are allowed only to go after people they think have actually committed a crime, as opposed to people they think fit some profile of likely future criminals. Intelligence agencies, by contrast, can go after people before they commit crimes, on the mere suspicion that they might. The two sorts of agencies are also subject to very different restrictions. Law enforcement agencies need a warrant before they can search someone's house or wiretap her phone, and that warrant needs to state what crime the person is thought to have committed, and the evidence that she has committed that crime. Mere suspicion of criminal tendencies is not enough.
The restrictions intelligence agencies are subject to are quite different. From EPIC (Note: FISA is the statute creating the requirements for domestic surveillance by intelligence agencies):
"Under the Fourth Amendment, a search warrant must be based on probable cause to believe that a crime has been or is being committed. This is not the general rule under FISA: surveillance under FISA is permitted based on a finding of probable cause that the surveillance target is a foreign power or an agent of a foreign power, irrespective of whether the target is suspected of engaging in criminal activity. However, if the target is a "U.S. person," there must be probable cause to believe that the U.S. person's activities may involve espionage or other similar conduct in violation of the criminal statutes of the United States. Nor may a U.S. person be determined to be an agent of a foreign power "solely upon the basis of activities protected by the first amendment to the Constitution of the United States.""
So: FISA warrants do not require any evidence of actual criminal activity, and might seem to be in conflict with the Fourth Amendment. The reason they have been held not to be unconstitutional is simply that they are not supposed to be used for criminal investigations; for this reason, I'm not sure this new proposal, according to which intelligence agencies would be allowed to use FISA searches to conduct criminal investigations, is not itself unconstitutional. But it gets worse: as of 2002:
"The FISA review court was created by Congress along with the Foreign Intelligence Surveillance Court in 1978 to authorize search and surveillance warrants for foreign intelligence targets. The review court has never convened because the lower court, known as the FISA court, has never turned down a government surveillance request. The court has approved approximately 13,000 applications since its inception. And just once, in 1997, the government withdrew a request that the court had found deficient."
That's right: as of 2002, only one request for a warrant had been deemed inadequate. Ever. Moreover, since no one has to inform the object of a FISA warrant that that warrant exists, people do not generally get to challenge them. Everything about it is secret.
The 'wall' separating intelligence agencies from law enforcement agencies existed because of the different purposes for which the two collect information, and the different rules to which they are subject. The wall was never impermeable: information obtained through FISA warrants can be, and has been, used in criminal trials. But it exists for a very good reason: to allow intelligence agencies to collect information on agents of foreign powers without allowing them to spy on citizens more generally, and to prevent the government from using FISA warrants, with their looser rules, whenever it can't get a normal warrant.
Giving intelligence agencies the power to carry out criminal investigations against US civilians would gut the wall entirely. And it would do so without overcoming the one real drawback of the wall: the fact that some information cannot be shared between agencies. The proposals to grant greater powers to intelligence agencies simply seem to multiply the number of agencies that can investigate citizens, not to ensure that those agencies share information with one another. (One of the many questions I have about these proposals is: why do we need another agency empowered to do criminal investigations in the US? Doesn't the FBI suffice?)
There are, of course, also proposals to enhance information sharing, and specifically to give intelligence agencies access to information held by the FBI:
"Modifications also were made in the provision allowing the FBI to share information with the Pentagon and CIA, requiring the approval of the director of national intelligence, John D. Negroponte, for that to occur, and requiring the Pentagon to make reports to Congress on the subject. Wyden said the legislation "now strikes a much fairer balance by protecting critical rights for our country's citizens and advancing intelligence operations to meet our security needs."
Kate Martin, director of the Center for National Security Studies, said the data-sharing amendment would still give the Pentagon much greater access to the FBI's massive collection of data, including information on citizens not connected to terrorism or espionage. The measure, she said, "removes one of the few existing privacy protections against the creation of secret dossiers on Americans by government intelligence agencies." She said the Pentagon's "intelligence agencies are quietly expanding their domestic presence without any public debate.""
There is a difference between intelligence, which aims to prevent compromises in security, and criminal investigations, which aim to investigate crimes that have already been committed. Respecting this difference, and designing procedures appropriate to each, is what keeps us from living in a country in which the government can spy on its citizens at will, whether or not there is any evidence that they have violated the law. We should be very, very careful about undermining this distinction, or weakening these protections. One era when the government routinely collected dossiers on ordinary citizens and its political opponents was one too many.