[Infowarrior] - Military Expands Intelligence Role in U.S.

[Richard Forno]

January 14, 2007
Military Expands Intelligence Role in U.S.
By ERIC LICHTBLAU and MARK MAZZETTI
http://www.nytimes.com/2007/01/14/washington/14spy.html?ei=5094&en=203bd3d1f
0cd9644&hp=&ex=1168750800&partner=homepage&pagewanted=print

WASHINGTON, Jan. 13 ‹ The Pentagon has been using a little-known power to
obtain banking and credit records of hundreds of Americans and others
suspected of terrorism or espionage inside the United States, part of an
aggressive expansion by the military into domestic intelligence gathering.

The C.I.A. has also been issuing what are known as national security letters
to gain access to financial records from American companies, though it has
done so only rarely, intelligence officials say.

Banks, credit card companies and other financial institutions receiving the
letters usually have turned over documents voluntarily, allowing
investigators to examine the financial assets and transactions of American
military personnel and civilians, officials say.

The F.B.I., the lead agency on domestic counterterrorism and espionage, has
issued thousands of national security letters since the attacks of Sept. 11,
2001, provoking criticism and court challenges from civil liberties
advocates who see them as unjustified intrusions into Americans¹ private
lives.

But it was not previously known, even to some senior counterterrorism
officials, that the Pentagon and the Central Intelligence Agency have been
using their own ³noncompulsory² versions of the letters. Congress has
rejected several attempts by the two agencies since 2001 for authority to
issue mandatory letters, in part because of concerns about the dangers of
expanding their role in domestic spying.

The military and the C.I.A. have long been restricted in their domestic
intelligence operations, and both are barred from conducting traditional
domestic law enforcement work. The C.I.A.¹s role within the United States
has been largely limited to recruiting people to spy on foreign countries.

Carl Kropf, a spokesman for the director of national intelligence, said
intelligence agencies like the C.I.A. used the letters on only a ³limited
basis.²

Pentagon officials defended the letters as valuable tools and said they were
part of a broader strategy since the Sept. 11 attacks to use more aggressive
intelligence-gathering tactics ‹ a priority of former Defense Secretary
Donald H. Rumsfeld. The letters ³provide tremendous leads to follow and
often with which to corroborate other evidence in the context of
counterespionage and counterterrorism,² said Maj. Patrick Ryder, a Pentagon
spokesman.

Government lawyers say the legal authority for the Pentagon and the C.I.A.
to use national security letters in gathering domestic records dates back
nearly three decades and, by their reading, was strengthened by the
antiterrorism law known as the USA Patriot Act.

Pentagon officials said they used the letters to follow up on a variety of
intelligence tips or leads. While they would not provide details about
specific cases, military intelligence officials with knowledge of them said
the military had issued the letters to collect financial records regarding a
government contractor with unexplained wealth, for example, and a chaplain
at Guantánamo Bay erroneously suspected of aiding prisoners at the facility.

Usually, the financial documents collected through the letters do not
establish any links to espionage or terrorism and have seldom led to
criminal charges, military officials say. Instead, the letters often help
eliminate suspects.

³We may find out this person has unexplained wealth for reasons that have
nothing to do with being a spy, in which case we¹re out of it,² said Thomas
A. Gandy, a senior Army counterintelligence official.

But even when the initial suspicions are unproven, the documents have
intelligence value, military officials say. In the next year, they plan to
incorporate the records into a database at the Counterintelligence Field
Activity office at the Pentagon to track possible threats against the
military, Pentagon officials said. Like others interviewed, they would speak
only on the condition of anonymity.

Military intelligence officers have sent letters in up to 500 investigations
over the last five years, two officials estimated. The number of letters is
likely to be well into the thousands, the officials said, because a single
case often generates letters to multiple financial institutions. For its
part, the C.I.A. issues a handful of national security letters each year,
agency officials said. Congressional officials said members of the House and
Senate Intelligence Committees had been briefed on the use of the letters by
the military and the C.I.A.

Some national security experts and civil liberties advocates are troubled by
the C.I.A. and military taking on domestic intelligence activities,
particularly in light of recent disclosures that the Counterintelligence
Field Activity office had maintained files on Iraq war protesters in the
United States in violation of the military¹s own guidelines. Some experts
say the Pentagon has adopted an overly expansive view of its domestic role
under the guise of ³force protection,² or efforts to guard military
installations.

³There¹s a strong tradition of not using our military for domestic law
enforcement,² said Elizabeth Rindskopf Parker, a former general counsel at
both the National Security Agency and the C.I.A. who is the dean at the
McGeorge School of Law at the University of the Pacific. ³They¹re moving
into territory where historically they have not been authorized or presumed
to be operating.²

Similarly, John Radsan, an assistant general counsel at the C.I.A. from 2002
to 2004 and now a law professor at William Mitchell College of Law in St.
Paul, said, ³The C.I.A. is not supposed to have any law enforcement powers,
or internal security functions, so if they¹ve been issuing their own
national security letters, they better be able to explain how they don¹t
cross the line.²

The Pentagon¹s expanded intelligence-gathering role, in particular, has
created occasional conflicts with other federal agencies. Pentagon efforts
to post American military officers at embassies overseas to gather
intelligence for counterterrorism operations or future war plans has rankled
some State Department and C.I.A. officials, who see the military teams as
duplicating and potentially interfering with the intelligence agency.

In the United States, the Federal Bureau of Investigation has complained
about military officials dealing directly with local police ‹ rather than
through the bureau ‹ for assistance in responding to possible terrorist
threats against a military base. F.B.I. officials say the threats have often
turned out to be uncorroborated and, at times, have stirred needless
anxiety.

The military¹s frequent use of national security letters has sometimes
caused concerns from the businesses receiving them, a counterterrorism
official said. Lawyers at financial institutions, which routinely provide
records to the F.B.I. in law enforcement investigations, have contacted
bureau officials to say they were confused by the scope of the military¹s
requests and whether they were obligated to turn the records over, the
official said.

Companies are not eager to turn over sensitive financial data about
customers to the government, the official said, ³so the more this is done,
and the more poorly it¹s done, the more pushback there is for the F.B.I.²

The bureau has frequently relied on the letters in recent years to gather
telephone and Internet logs, financial information and other records in
terrorism investigations, serving more than 9,000 letters in 2005, according
to a Justice Department tally. As an investigative tool, the letters present
relatively few hurdles; they can be authorized by supervisors rather than a
court. Passage of the Patriot Act in October 2001 lowered the standard for
issuing the letters, requiring only that the documents sought be ³relevant²
to an investigation and allowing records requests for more peripheral
figures, not just targets of an inquiry.

Some Democrats have accused the F.B.I. of using the letters for fishing
expeditions, and the American Civil Liberties Union won court challenges in
two cases, one for library records in Connecticut and the other for Internet
records in Manhattan. Concerned about possible abuses, Congress imposed new
safeguards in extending the Patriot Act last year, in part by making clear
that recipients of national security letters could contact a lawyer and seek
court review. Congress also directed the Justice Department inspector
general to study the F.B.I.¹s use of the letters, a review that is
continuing.

Unlike the F.B.I., the military and the C.I.A. do not have wide-ranging
authority to seek records on Americans in intelligence investigations. But
the expanded use of national security letters has allowed the Pentagon and
the intelligence agency to collect records on their own. Sometimes, military
or C.I.A. officials work with the F.B.I. to seek records, as occurred with
an American translator who had worked for the military in Iraq and was
suspected of having ties to insurgents.

After the Sept. 11 attacks, Mr. Rumsfeld directed military lawyers and
intelligence officials to examine their legal authorities to collect
intelligence both inside the United States and abroad. They concluded that
the Pentagon had ³way more² legal tools than it had been using, a senior
Defense Department official said.

Military officials say the Right to Financial Privacy Act of 1978, which
establishes procedures for government access to sensitive banking data,
first authorized them to issue national security letters. The military had
used the letters sporadically for years, officials say, but the pace
accelerated in late 2001, when lawyers and intelligence officials concluded
that the Patriot Act strengthened their ability to use the letters to seek
financial records on a voluntary basis and to issue mandatory letters to
obtain credit ratings, the officials said.

The Patriot Act does not specifically mention military intelligence or
C.I.A. officials in connection with the national security letters.

Some F.B.I. officials said they were surprised by the Pentagon¹s
interpretation of the law when military officials first informed them of it.
³It was a very broad reading of the law,² a former counterterrorism official
said.

While the letters typically have been used to trace the financial
transactions of military personnel, they also have been used to investigate
civilian contractors and people with no military ties who may pose a threat
to the military, officials said. Military officials say they regard the
letters as one of the least intrusive means to gather evidence. When a full
investigation is opened, one official said, it has now become ³standard
practice² to issue such letters.

One prominent case in which letters were used to obtain financial records,
according to two military officials, was that of a Muslim chaplain at
Guantánamo Bay, Cuba, who was suspected in 2003 of aiding terror suspects
imprisoned at the facility. The espionage case against the chaplain, James
J. Yee, soon collapsed.

Eugene Fidell, a defense lawyer for the former chaplain and a military law
expert, said he was unaware that military investigators may have used
national security letters to obtain financial information about Mr. Yee, nor
was he aware that the military had ever claimed the authority to issue the
letters.

Mr. Fidell said he found the practice ³disturbing,² in part because the
military does not have the same checks and balances when it comes to
Americans¹ civil rights as does the F.B.I. ³Where is the accountability?² he
asked. ³That¹s the evil of it ‹ it doesn¹t leave fingerprints.²

Even when a case is closed, military officials said they generally maintain
the records for years because they may be relevant to future intelligence
inquiries. Officials at the Pentagon¹s counterintelligence unit say they
plan to incorporate those records into a database, called Portico, on
intelligence leads. The financial documents will not be widely disseminated,
but limited to investigators, an intelligence official said.

³You don¹t want to destroy something only to find out that the same guy
comes up in another report and you don¹t know that he was investigated
before,² the official said.

The Counterintelligence Field Activity office, created in 2002 to better
coordinate the military¹s efforts to combat foreign intelligence services,
has drawn criticism for some domestic intelligence activities.

The agency houses an antiterrorist database of intelligence tips and threat
reports, known as Talon, which had been collecting information on antiwar
planning meetings at churches, libraries and other locations. The Defense
Department has since tightened its procedures for what kind of information
is allowed into the Talon database, and the counterintelligence office also
purged more than 250 incident reports from the database that officials
determined should never have been included because they centered on lawful
political protests by people opposed to the war in Iraq.