Politics and Policy

IS MILITARY CREEPING INTO DOMESTIC SPYING AND ENFORCEMENT?

In a little-noticed side effect of the war on terrorism, the military
is edging toward a sensitive area that has been off-limits to it
historically: domestic intelligence gathering and law
enforcement.

Several recent incidents involving the military have raised concern
among student and civil-rights groups. One was a visit last month by
an Army intelligence agent to an official and students at the
University of Texas law school in Austin.

The agent demanded a videotape of a recent academic conference at the
school so that he could identify what he described as "three Middle
Eastern men" who had made "suspicious" remarks to Army lawyers at the
seminar, according to the official, Susana Aleman, the dean of student
affairs.

The Army, while not disputing that the visit took place, declined to
comment, saying the incident is under investigation.

Last year, the Office of Naval Intelligence, the nation's primary
source of global maritime intelligence, demanded access to the U.S.
Customs Service's database on maritime trade, saying it needed
information to thwart potential terrorist activity. Customs officials
initially resisted the Navy's demands but eventually agreed to give
naval intelligence much of what it wanted.

In an interview earlier this month, U.S. Customs and Border Protection
chief Robert C. Bonner said he shares data only after getting Navy
assurances that the information won't be abused. Navy spokesman Jon
Spiers says the Office of Naval Intelligence first approached customs
about sharing inbound foreign cargo information in December 2002, and
he denies there is anything improper about the request. The agency
"has not overstepped any authority or crossed the line dividing law
enforcement from military operations," he says.

Lt. Spiers adds that when the Navy's top spy agency gains access to
data about American companies and individuals, the information will be
"subjected to a meticulous legal review" and will be retained only if
it is directly related to the agency's mission to identify potential
foreign threats.

In another sign of military interest in domestic information-gathering,
the Defense Intelligence Agency's new antiterrorism task force is
looking to share information with law-enforcement officials in
California and New York City, according to an August 2003 General
Accounting Office report.

Historically, Americans haven't trusted the military to do domestic
police work. The 1878 Posse Comitatus Act, passed in response to
abuses by federal troops in the South after the Civil War, prohibits
the use of the military "to execute the laws" of the U.S. That's been
widely interpreted as a ban on searching, arresting or spying on U.S.
civilians by federal troops.

But the law has been violated, notably during the Vietnam War, when
Army operatives spied on antiwar activists on campuses. Meanwhile,
Congress has eased the law's limits to allow the military to help
prosecute the war on drugs.

After the Sept. 11 attacks, the White House sought to further loosen
restrictions to allow the military to take on a new domestic-security
role. It has mostly been rebuffed. In May the House refused to approve
a White House-backed proposal to give the Central Intelligence Agency
and the military authority to scrutinize personal and business records
of U.S. citizens. And the Senate last year blocked funding for a
Pentagon project known as the Total Information Awareness program,
which was supposed to collect a vast array of information on
individuals, including medical, employment and credit-card histories.

The issue of an expanding military role in domestic affairs also
surfaced last year with the Pentagon's creation of the Northern
Command, or Northcom, based in Colorado Springs, Colo. The new
command, the first such military command designed to protect the U.S.
homeland from a terrorist attack, has responsibility for the U.S.,
Canada, Mexico, portions of the Caribbean and U.S. coastal waters.
Northcom's commander, Gen. Ralph "Ed" Eberhart, is the first general
since the Civil War with operational authority exclusively over
military forces within the U.S.

Gen. Eberhart has stoked concern among civil-liberties advocates by
saying that the military and civilians should be involved in
developing "actionable intelligence" for the government. In September
2002, he told a group of National Guardsmen that the military and the
National Guard should "change our radar scopes" to prevent terrorism.
It is important to "not just look out, but we're also going to have to
look in," he said, adding, "we can't let culture and the way we've
always done it stand in the way."

Northcom officials and other military leaders play down his remarks.
"No one ran out after that speech and started snooping," one official
says. Gen. Eberhart echoed that last September on PBS's "News Hour":
"We are not going to be out there spying on people, " he said, though
he added, "we get information from people who do."

Further evidence of the blurring of the lines between the civilian and
military worlds comes in a job-vacancy notice for a senior
counterintelligence advisor to Northcom. The duties, according to the
notice, include providing advice that goes beyond potential terrorism
to include "other major criminal activity, such as drug cartels and
large-scale money laundering" -- work usually under the purview of the
Drug Enforcement Administration, the Federal Bureau of Investigation
and the Secret Service.

Another little-known Pentagon group, the Counterintelligence Field
Activity, was set up two years ago. With 400 service members and
civilians stationed around the globe, the CIFA was originally charged
with protecting the military and critical infrastructure from spying
by terrorists and foreign intelligence services. But in August, Paul
Wolfowitz, the deputy defense secretary, issued a directive ordering
the unit to maintain a "domestic law-enforcement database that
includes information related to potential terrorist threats directed
against the Department of Defense."

The CIFA also works closely with the FBI and is conducting some duties
for civilian agencies. For example, according to Department of
Agriculture documents, the CIFA is in charge of doing background
checks on foreign workers and scientists employed by the department's
agricultural-research service. The group also provides information to
the Information and Security Command, or Inscom, the Army's main
intelligence organization, based at Fort Belvoir, Md.

The Army intelligence agent who investigated the law-school conference
was assigned to Inscom. Army officials reviewing the Texas incident
are investigating whether the agent may have overstepped his
boundaries and whether may have tried to win the voluntary cooperation
of the faculty and students. But they say that he was reacting to a
possible counterintelligence threat to the military. It isn't clear
why there were Army lawyers at the conference in the first place,
though some officials say the attorneys wanted to learn more about
Muslim traditions and Islamic law.

Civil-rights advocates are skeptical. Robert Pugsley, professor of law
at the Southwestern University School of Law in Los Angeles, says the
Texas incident is "a chilling example" of the military's overreaching.
"It'll multiply like fleas on a dog" if left unchecked, he says.

"What we are starting to see is 50 years of legal refinement and
revisions for oversight being quietly jettisoned," adds Steven
Aftergood, an intelligence policy specialist at the Federation of
American Scientists, a nonprofit, left-leaning think tank in Washington.

But James Carafano, a policy analyst with the Heritage Foundation in
Washington, says he believes the military has honored posse comitatus.
His concern is that hard distinctions have been created between who
has jurisdiction in homeland defense versus homeland security. It's
distinctions terrorists might exploit, he says. "We may potentially be
creating vulnerabilities."