DHS has a program gathering domestic intelligence — and virtually no one knows about it

For years, the Department of Homeland Security has run a virtually unknown program gathering domestic intelligence, one of many revelations in a wide-ranging tranche of internal documents reviewed by POLITICO.

Those documents also reveal that a significant number of employees in DHS’s intelligence office have raised concerns that the work they are doing could be illegal.

Under the domestic-intelligence program, officials are allowed to seek interviews with just about anyone in the United States. That includes people held in immigrant detention centers, local jails, and federal prison. DHS’s intelligence professionals have to say they’re conducting intelligence interviews, and they have to tell the people they seek to interview that their participation is voluntary. But the fact that they’re allowed to go directly to incarcerated people — circumventing their lawyers — raises important civil liberties concerns, according to legal experts.

That specific element of the program, which has been in place for years, was paused last year because of internal concerns. DHS’s Office of Intelligence and Analysis, which runs the program, uses it to gather information about threats to the U.S., including transnational drug trafficking and organized crime. But the fact that this low-profile office is collecting intelligence by questioning people in the U.S. is virtually unknown.

The inner workings of the program — called the “Overt Human Intelligence Collection Program” — are described in the large tranche of internal documents POLITICO reviewed from the Office of Intelligence and Analysis. Those documents and additional interviews revealed widespread internal concerns about legally questionable tactics and political pressure. The documents also show that people working there fear punishment if they speak out about mismanagement and abuses.

One unnamed employee — quoted in an April 2021 document — said leadership of I&A’s Office of Regional Intelligence “is ‘shady’ and ‘runs like a corrupt government.’” Another document said some employees worried so much about the legality of their activities that they wanted their employer to cover legal liability insurance.

Carrie Bachner, formerly the career senior legislative adviser to the DHS under secretary for intelligence, said the fact that the agency is directly questioning Americans as part of a domestic-intelligence program is deeply concerning, given the history of scandals related to past domestic-intelligence programs by the FBI.

Bachner, who served as a DHS liaison with Capitol Hill from 2006 to 2010, said she told members of Congress “adamantly” — over and over and over again — that I&A didn’t collect intelligence in the U.S.

“I don’t know any counsel in their right mind that would sign off on that, and any member of Congress that would say, ‘That’s OK,’” said Bachner, who currently runs a consulting firm. “If these people are out there interviewing folks that still have constitutional privileges, without their lawyer present, that’s immoral.”

DHS Under Secretary for Intelligence and Analysis Kenneth Wainstein, a former federal prosecutor who took the helm of I&A last June, said in a statement that his office is addressing its employees’ concerns. An I&A spokesperson provided POLITICO with a list of steps the office has taken since September 2020 to address internal complaints, including conducting a number of new trainings and hiring two full-time ombudsmen.

In its statement, I&A did not address the domestic-intelligence program. But POLITICO reviewed an email, sent last August, saying that the portion of the program involving interviews with prisoners who had received their Miranda rights was “temporarily halted” because of internal concerns.

“The true measure of a government organization is its ability to persevere through challenging times, openly acknowledge and learn from those challenges, and move forward in service of the American people,” Wainstein said in his statement. “The Office of Intelligence and Analysis has done just that over the past few years … Together, we will ensure that our work is completely free from politicization, that our workforce feels free to raise all views and concerns, and that we continue to deliver the quality, objective intelligence that is so vital to our homeland security partners.”

‘A loophole that we exploit’

A key theme that emerges from internal documents is that in recent years, many people working at I&A have said they fear they are breaking the law.

POLITICO reviewed a slide deck titled “I&A Management Analysis & Assistance Program Survey Findings for FOD.” FOD refers to I&A’s Field Operations Division — now called the Office of Regional Intelligence — which is the largest part of the office, with personnel working around the country. Those officials work with state, local and private sector partners; collect intelligence; and analyze intelligence. When the U.S. faces a domestic crisis related to national security or public safety, people in this section are expected to be the first in I&A to know about it and then to relay what they learn to the office’s leadership. Their focuses include domestic terror attacks, cyber attacks, border security issues, and natural disasters, along with a host of other threats and challenges.

The survey described in the slide deck was conducted in April 2021. A person familiar with the survey said it asked respondents about events of 2020. Its findings were based on 126 responses. Half of the respondents said they’d alerted managers of their concerns that their work involved activity that was inappropriate or illegal. The slide deck seems to try to put a positive spin on this.

“There is an opportunity to work with employees to address concerns they have about the appropriateness or lawfulness of a work activity,” it reads.

“Half of the respondents have voiced to management a concern about this, many of whom feel their concern was not appropriately addressed.”

Other documents laid out concerns related to a specific internal dispute about how the law applies to I&A’s interactions with American citizens.

Three legal texts govern I&A’s activities: Title 50 of the U.S. Code, which lays out laws about national security; Executive Order 12333, which details how the Intelligence Community works; and the Homeland Security Act of 2002, which set up the Department of Homeland Security. The U.S. intelligence agencies governed by Title 50 face strict rules related to intelligence activity in the U.S. or targeting U.S. citizens. Internally, many I&A personnel have raised concerns that they get asked to take steps that are inappropriate for a Title 50 agency.

On Nov. 12, 2020, barely a week after Election Day, Robin Taylor, then the director of I&A’s Field Operations Division, emailed to multiple officials a summary of 12 listening sessions that an internal employee watchdog had held with division employees.

Taylor’s email included a few lines referencing employees’ concerns about the scope and appropriateness of their work.

“Many taskings seem to be law enforcement matters and not for an intelligence organization,” read one portion, referring to assignments. “How is any of this related to our Title 50 authorities? Even if we are technically allowed to do this, should we? What was the intent of Congress when they created us? ‘Departmental Support’ seems like a loophole that we exploit to conduct questionable activities.”

Later in that document came a line that was even more bleak: “Showing where we provide value is very challenging.”

Taylor, who is no longer at I&A, could not be reached for comment.

Another document, with notes from listening sessions that the Ombudsman — an internal sounding board for employee concerns — held with Field Operations Division employees in late October of 2021, shows that concerns about Title 50 persisted into the Biden administration.

“I&A and FOD leadership don’t seem to understand how Title 50 applies to FOD, which causes conflicts,” the document says.

The document also suggests that some in the division feel that when it comes to determining their legal boundaries, they’re on their own.

“The liability for negative consequences of field employees’ activities in the field falls on them, even if they received supervisor and G4 approval for their activities,” the document states. “Employees recommended I&A provide field employees with professional liability insurance.”

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By Published On: March 7, 2023Categories: UncategorizedComments Off on DHS has a program gathering domestic intelligence — and virtually no one knows about it

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About the Author: Patriotman

Patriotman currently ekes out a survivalist lifestyle in a suburban northeastern state as best as he can. He has varied experience in political science, public policy, biological sciences, and higher education. Proudly Catholic and an Eagle Scout, he has no military experience and thus offers a relatable perspective for the average suburban prepper who is preparing for troubled times on the horizon with less than ideal teams and in less than ideal locations. Brushbeater Store Page: http://bit.ly/BrushbeaterStore

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