Military Intelligence Support To Civilian Law Enforcement Agencies: Rethinking The Way Defense

Military Intelligence Support To Civilian Law Enforcement Agencies: Rethinking The Way Defense Intelligence Combats Emerging Perils

CSC 1995

Subject Area Intelligence

MILITARY INTELLIGENCE SUPPORT

CIVILIAN LAW ENFORCEMENT AGENCIES

Rethinking the Way Defense Intelligence

Combats Emerging Perils

LCDR Stephen M. Vetter

Conference Group #l

USMC Command & Staff College

17 April 1995

EXECUTIVE SUMMARY

Title: MILITARY INTELLIGENCE SUPPORT TO CIVILIAN LAW ENFORCEMENT

AGENCIES: Rethinking the way defense intelligence

combats emerging perils

Author: LCDR Stephen M. Vetter, United States Navy

Thesis: The majority of the emerging threats to our national

security, including: regional security danger the

proliferation of weapons of mass destruction; terrorism;

drug trafficking; and international crime; require

civilian law enforcement agency involvement in order to

combat them. Failure to develop a cooperative,

supportive intelligence-law enforcement agency

relationship will handicap both communities in their

attempts to most effectively engage these emerging

national security dangers.

Background: In order to fully assess the need for military

intelligence support to civilian law enforcement

agencies, the role of the intelligence community,

including the military intelligence services in

combating both traditional and emerging threats

security threats is examined. Historic and current views

governing our military's involvement in civilian law

enforcement activities are reviewed. Guidance from

civilian leaders, increasingly pushing the intelligence

community to assist in combating these emerging threats,

have laid the groundwork for a robust intelligence

community-law enforcement agency relationship to develop.

If specific criteria are met, then military intelligence

support to law enforcement will not only yield dividends

for these non-traditional clients, but also enhance the

intelligence support provided to the warfighter in these

uncertain times. An expanded role for military

intelligence in support of law enforcement means that

extra care must be taken to ensure the integrity of both

communities. Specific steps to enhance this

relationship , without encountering potential pitfalls,

are presented.

Recommendation: To combat post-Cold War threats the intelligence

community, including the military intelligence services,

must overcome its traditional focus and aggressively

pursue the sharing of foreign intelligence with non-

traditional customers, especially, civilian law

enforcement agencies.

The Cold War is over, but many new dangers have taken its place

regional security threats; the proliferation of weapon of mass

destruction; terrorists who, as we have seen, can strike at the very

heart of our own major cities; drug trafficking and international crime.

The decisive advantage United States intelligence provides this country

is, therefore, as important as it has ever been...a challenge whose

difficulty is matched only by its importance.

- President William J. Clinton - The White House - February 8, 1995 1

The United States employs its military forces primarily to combat national

security threats and advance vital national interests. In the case of many of

the dangers delineated above, the most valuable military response may not be the

deployment of front - line combat troops, but; rather the employment of the military

intelligence community. However, to effectively counter these "new dangers" the

entire intelligence community--including the military intelligence services--must.

overcome its traditional focus and aggressively pursue the sharing of foreign

intelligence with non traditional customers, especially civilian law enforcement

agencies. Just as the United States Navy has learned that no single military

service embodies all of the capabilities needed to respond to every situation and

threat,"2 no one governmental entity can single-handedly contain the threats to

our national security. The intelligence community must take a page from the

Navy's Forward... From The Sea and provide its "decisive advantage" to those

agencies that can make the most effective use of it against these non-traditional

assaults on our national security.

Intelligence produced for its own sake is meaningless; it has no inherent

or intrinsic value, but must be acted upon to have significance. In the old

Cold-War days this meant putting intelligence in the hands of national policy

makers and military leaders. In the post Cold-War world, as the targets of law

enforcement and intelligence begin to merge, it increasingly means putting

information into the hands of law enforcement so that action can be taken to

maximize the impact of this intelligence. Failure by the intelligence community

to provide intelligence to customers who can make use of it will not only result

in our nation's inability to counter these emerging challenges;, but will also

call into question the relevance of the community itself.

In order to assess the need for the military to provide intelligence support

to civilian law enforcement agencies, this paper first examines the role of the

intelligence community, including the military intelligence service, in

combatting both traditional and emerging national security threats. A review of

historic and current views governing our military's involvement in civilian law

enforcement activities follows. Guidance from civilian leaders, who are

increasingly pushing the intelligence community to assist in fighting these

emerging threats has laid the groundwork for a robust intelligence community-law

enforcement agency relationship to develop. Specific criteria for determining

if military intelligence support to law enforcement is appropriate presented,

and if met, will not only yield dividends for these non--traditional clients, but

also enhance the support the intelligence community can provide to the warfighter

in these uncertain times. An expanded role for military intelligence in support

of law enforcement means that extra care must be taken to ensure the integrity

of both communities. Specific steps to enhance this relationship without

encountering serious drawbacks are presented.

As the 21st century approaches, vital U.S. interests are increasingly being

discussed in terms of their impact on our nation's economy and social stability.

Threats to the economy and societal fabric, ranging from depleted natural

resources to drugs and crime, have in many cases displaced military threats in

their relative importance to our national well-being. As a result, our military

is being asked by both the executive and legislative branches of government, to

contribute more frequently in these new arenas. This trend appears likely to

continue. Since civilian law enforcement agency involvement is essential to

oppose the majority of these emerging treats, failure to develop a cooperative,

supportive intelligence community-law enforcement agency relationship will

handicap both sides in their attempts to lessen the danger from these perils.

The Intelligence Contribution

Intelligence--the gathering, analysis, and dissemination of information in

order to gain a decisive advantage over adversaries--is critical to the economic

and political well-being, as well as the security, of our nation. Strategic

intelligence helps provide the United States with the wherewithal to be a world

leader. For the military, understanding the threat environment and determining

enemy centers of gravity and critical vulnerabilities are crucial to success

on the battlefield. Carl Von Clausewitz, in his seminal work On War, recognized

the vital role intelligence could play in military operations, "By 'intelligence'

we mean every sort of information about the enemy and his country--the basis, in

short, of our own plans and operations."3 The problem, of course, is getting

objective, "Many intelligence reports in war are contradictory; even more are

false, and most are uncertain...In short, most intelligence is false."4 Although

no intelligence service will be "right" 100 percent of the time, the collection

of intelligence and the caliber of the community have matured significantly in

the almost two centuries since Clausewitz formed his view of intelligence.

The challenges that face our nation have also evolved, however, especially

over the last decade. The intelligence community is being asked to evolve as

well in order to help prepare the United States to deal more effectively with

these problems. A recent nominee to the position of Director of the Central

Intelligence Agency, General Michael Carns, delineated these new

responsibilities:

The Cold War may have passed into history, but regional

instability, terrorism, drug trafficking, crime, and

the proliferation of nuclear weapons all loom large as

threats to our interests and to our people.5

Intelligence can play a critical rote in combatting these threats. For

example, in the counterdrug arena Congress, in passing the Defense Authorization

Act of 1989 (P. L. 100-456), emphasized that, "intelligence is the key to a

successful drug interdiction program."6 Following more extensive hearings the

following year Congress concluded, "Agencies involved in drug interdiction

programs at all levels of government--international, national, and local---agree

that accurate and timely intelligence is the key to successful drug

interdiction."7

Just as the support of the intelligence world has been crucial to law

enforcement in the realm of counternarcotics the savvy use of intelligence

capabilities can be crucial to countering other non-traditional threats. This

potentially vital contribution was almost certainly a factor in President

Clinton's recent decision to give a CIA Director, nominee John M. Deutch, cabinet

rank for only the second time in U. S. history, thus granting him a broad role in

setting national security policy.8

Intelligence becomes even more critical as the federal budget becomes

tighter and the size of our nation's military is reduced. With a reduction in

the scope of U.S. presence in foreign lands, the number of units forward

deployed, and the sheer quantity of forces available to respond to developing

crises, timely strategic indications and warning (I&W) is essential to enable our

national command authority to position forces to respond effectively to these

crises. Naval forces, because of their forward presence in areas of potential

crisis, have always relied heavily on intelligence for operationally- and

tactically-oriented I&W. Similarly, intelligence an also enable civilian law

enforcement agencies to position their limited assets to maximize their mission

accomplishment.

The nation's future intelligence needs and the intelligence community

structure required to meet them are undergoing a scrutiny rarely seen since the

Central Intelligence Agency was created in 1947 and wars became chilled. No

fewer than two major assessments of intelligence community structure and missions

are underway. A congressionally-mandated bipartisan panel chaired by Les Aspin

has been commissioned by the President to study intelligence community roles and

missions for the post-cold war world and make a "thorough assessment of the kind

of intelligence community we will need to address the security challenges of the

future."9 Rep. Larry Combest (R-TX), new Chairman of the house Permanent Select

Committee on Intelligence (HPSCI), has also launched a comprehensive review of

U.S. intelligence agency needs entitled "Intelligence Community for the 21st

Century."10 Additionally, a presidential directive issued in early March set

formal intelligence collection priorities and created a high-level committee to

oversee intelligence community performance in meeting them.11 One of the core

issues of this debate is the role of the intelligence community in supporting

non-traditional customers. The part the military intelligence community will

play in supporting non-military customers will be central to the debate.

Why Military Intelligence?

Military intelligence has quite naturally focused on military threats to our

national security. From the beginning, the primary raison d'être for military

intelligence has been to enable military forces to prepare for and win wars.

Intelligence tailored specifically to the needs of the warfighter has

traditionally focused on information about the enemy that is timely, accurate,

and relevant. The goal is to produce actionable intelligence, to disseminate it

to commanders where and when needed and to package it in a form that allows for

immediate exploitation and mission accomplishment. Indeed good intelligence is

a highly effective, force multiplier.

No one would disagree that the first responsibility of our military

intelligence organizations is and will continue to be ensuring that our military

forces have at their disposal the very best available threat information and

analysis on potential adversaries. However, military intelligence organizations.

also have a duty to contribute when possible to the fight against, other national

security threats, especially when important contributions can be made merely by

providing information and expertise that already exists within the services. For

example, Naval Intelligence has developed some of this nation's premier maritime

expertise. This know-how can be of immense value to law enforcement agencies in

combating maritime drug trafficking, alien smuggling, international weapons

shipments and the maritime components of terrorism and international crime, as

well as assisting these civilian agencies in monitoring treaty compliance in the

areas of fishing, radioactive waste disposal, the movement of radioactive

materials, and the migration of displaced peoples, to name just a few Federal

agencies with a primary focus on law enforcement like the Coast Guard, Customs

Service, Federal Bureau of Investigation, and Drug Enforcement Administration

have extensive international roles that affect our national well-being and can

be enhanced by the intelligence community. In fact, some military intelligence

support is already being provided to select federal agencies.

This duty--to be met on a not to interfere basis with the primary mission

of the military intelligence community--should apply to national security threats

even when U. S. military forces are not specifically engaged against them by way

of example, the primary responsibility of the naval intelligence community is to

prepare U.S. naval forces to counter adversarial threats and to provide all U. S.

military components with the maritime intelligence they need in order to fulfill

their missions. Naval intelligence has as a result developed some of the

nation's most extensive maritime knowledge and databases. This knowledge should

be (and is) available to all elements of government involved in combatting

international security threats and in promoting national interest. Military

intelligence not only has a responsibility to ensure that this information is

available, but an obligation to seek out the agencies that can best put this.

knowledge to use in attacking national security threats. When the groups that

pose these threats begin violating U.S. laws, then civilian law enforcement

agencies must step in and take charge. Since the intelligence community may not

arrest criminals, it must work with the appropriate law enforcement agencies that

can. In military parlance, the military intelligence services will be acting as

supporting CINCs to the nation's law enforcement agencies.

Given the dramatic shift that has occurred in the world's balance of power

over the last decade, it is not surprising that the Defense Department has

recognized that these "new dangers" cannot be confronted with old, Cold War

intelligence structures. Secretary Perry's recently released Annual Report to

the President and the Congress acknowledged that "changing world

conditions. demand different types of intelligence support."12 This realization

has prompted the Defense Intelligence Agency to embark" upon the most profound

changes in its history. The service intelligence organizations have so

originated efforts to improve their capabilities to support new military

missions.

Effective intelligence support to traditional military customers enhances

operational capabilities and mission success and serves as both a force and

combat multiplier; the same can be said for the non-military customer. Why,

then, isn't military intelligence support to civilian law enforcement agencies

being more aggressively pursued?

History

There has been a strong, well-founded tradition of keeping the military and

the intelligence community separate from our nation's domestic law enforcement

activities. The American experience has been marked, according to former Chief

Justice Burger, by a traditional and strong resistance...to any military

intrusion into civil affairs. That tradition has deep roots in our history."14

Given the increase we have seen in the use of active duty military forces

on the domestic scene in the l990's (e.g. riot control in Los Angeles, fighting

forest fires in Oregon, disaster relief for Hurricane Andrew in Florida, etc.),

it is appropriate to examine two of the most important underpinnings of this

strong tradition of keeping the U. S. military and the intelligence community out

of domestic law enforcement pursuits: the Posse Comitatus Act and the

Intelligence Community's mission of gathering foreign intelligence.

Posse Comitatus (or "Can'ta Posse Helpus") Act

The Posse Comitatus Act , Section 1385, Chapter 67 U. S. Code Title 18, was

created for important, valid reasons to guarantee non-interference by the

military in legitimate, domestic civilian affairs. Unlike the separation of

church and state, however, the genesis of this concept does not begin with the

Constitution, but rather dates from post-Civil War America. The Posse Comitatus

Act was passed in 1878 in order to end the use of federal troops to police state

elections in ex-Confederate states where civil power had been reestablished.15

Congress' purpose in passing this act was to preclude the direct, active

participation of federal troops in law enforcement activities; Congress did not.

intend, however, to ban the involvement of federal troops in a passive role in

fulfilling law enforcement activities.l6 In fact, military personnel swear an

oath to protect the constitution against all enemies, foreign and domestic.

Despite clear Congressional intent to allow the military to assist civilian

law enforcement agencies, this well intentioned concept has, in practice however,

been used to limit perfectly legitimate assistance that the military can

provide.17 It has sometimes inadvertently resulted in tying the hands of law

enforcement entities by not giving them access to all of the potential tools at

their disposal. Because of this inclination, Congress has, in recent years, more

clearly spelled out the role it desires for the military in specific arenas that

have domestic ramifications. For example, Congress desired a major role for the

military in countering the drug problem and, in passing the Defense Authorization

Act of 1989 (Public Law 101-121), affirmed that:

the military of the United States is a national that must be

utilized as part of our effort to address this threat to our society and

national security...and this can be done in a way consistent with our

public policy of not involving the military in direct law enforcement.18

Intelligence Community's Foreign Mission (or "Don't Spy on US")

The focus of the intelligence community as a whole has always been on

America s foreign enemies, not its domestic lawbreakers. That mission was

codified for the civilian intelligence community by the l947 National Security

Act which prohibited the Central Intelligence Agency (CIA) from having police and

law enforcement powers. The Foreign Intelligence Surveillance Act, passed by

Congress in l978, "provided protections against surveillance of Americans and

required the government to obtain a warrant for national security wiretaps within

the United States."19

In fact, any focus by the military on U.S. persons or corporations as a

result of foreign intelligence gathering is rare, rigidly controlled, and invokes

special, extensive handling provisions regarding that information. Intelligence

oversight is one of the most strongly enforced guidelines within the military

intelligence community, and these safeguards are paramount. For example, despite

Congress desire to use the military more aggressively in combatting the drug

problem, it did not "provide authority for the armed forces to engage in domestic

intelligence gathering activities."20

The keys to continuing the well-founded tradition of keeping the military

and the intelligence community clear of domestic law enforcement activities is

to follow current guidelines: ensure that no direct, active involvement" of U. S.

military forces in civilian law enforcement activities occur; and that the strict

safeguards that already curb the collection of intelligence on U.S. persons are

emphasized.

Shifting Focus (or After the Decline of the Monolithic Threat)

During the Cold War, the U.S. response to a dynamic and robust Soviet threat

"spawned large, capable service component and departmental intelligence

organizations focused on intelligence problems related to this threat."21 The

end of the Cold War should have resulted in a shift in military intelligence

community resources away from a dominant focus on the Soviet threat toward other

foreign targets, many of which have an increasingly domestic flaw (e.g.,

international narcotics trafficking, terrorism, alien smuggling, organized crime,

etc.). This, however, has not-always occurred.

Despite a traditional focus on military threats, military intelligence

organizations can make a major contribution against these new dangers to our

nation. The foreign intelligence they collect can, in many cases, be very

effective in assisting U.S. law enforcement agencies with national security

concerns of both a foreign and a domestic nature.

Increasingly broad tasks are being demanded of our military services with

the thawing of the cold war (e.g. , humanitarian assistance, peacekeeping,

peacemaking, etc.), but in some respects intelligence has remained aloof of these

concerns, preferring to focus instead on more "glamorous," military-type Soviet

(now Russian/Ukranian/Chinese/N. Korean-style threats than with "the prospect

of struggles with thugs, fundamentalists zealots, and other denizens of the new

world."22 It is important to note that these new dangers will not be resolved

primarily through a military solution, unlike hot and cold wars where military

capabilities are critical to mission accomplishment-and credible deterrence.

National guidance concerning the future contributions of the intelligence

community is clear. Presidential decision directives, executive orders, and

congressional legislation have directed both the Department of Defense (DoD) and

the intelligence community to support law enforcement efforts in arenas as

divergent as drug and alien smuggling to the protection of fisheries. Chapter

18 (Military Support for Civilian Law Enforcement Agencies) of U. S. Code Title

10 (Armed Forces already lays the groundwork for a healthy relationship between

civilian law enforcement agenc1es and military Intelligence. The most

significant guidance provided by Congress to DoD is contained in Chapter 18,

Section 37l. Subsection (c) of U. S. Code Title 10:

The Secretary of Defense shall ensure to the extent consistent with

national security, that intelligence information held by the Department

of Defense and relevant to drug interdiction or other civilian law

enforcement matters is provided promptly to appropriate civilian law

enforcement officials.23 [emphasis added]

Specifically, in the counterdrug arena, Chapter 18 stipulates:

During fiscal years l99l through l995, the Secretary

of Defense may provide support for the counterdrug

activities of any other department or agency of the

Federal Government...if requested...to include...the

provision of...intelligence analysis services [and]

the detection, monitoring, and communication of the

movement of air and sea traffic within 25 miles of

and outside the geographic boundaries of the United

States.24

In addition, this section reveals just how important Congress views, this support

to be by authorizing the Secretary of Defense to provide such support to other

agencies even if it would adversely affect the military preparedness of the

United States in the short term if the Secretary determines that the importance

of providing such support outweighs such short term adverse effect."25

The Defense Authorization Act for Fiscal Year 1989 appointed the Department

of Defense as the "single lead agency of the Federal Government for the detection

and monitoring of aerial and maritime, transit of illegal drugs into the United

States."26 Congress clearly spelled out its intent, by emphasizing that the

detection and monitoring mission of DoD is a broad mission and extends to the

analysis of information and timing of operations, and other such pre-detection

activities..."27 Congress went further, stating that it was its "intent that DoD

work with the law enforcement agencies to integrate all drug-related intelligence

data."28

The counterdrug effort is not the only area in which Congress has seen

benefits to be derived from DoD assistance to law enforcement agencies. Congress

has decreed that the Department of Defense become actively involved in improving

the effectiveness of "the enforcement of domestic laws and international

agreements that conserve and manage the living marine resources of the United

States."29 The resultant Memorandum Of Understanding to implement the

Congressional tasking designated the Office of Naval Intelligence. (ONI as DoD's

Executive Agent for coordination, execution and oversight of the agreement. DoD

agreed:

to use, on a not-to-interfere basis while otherwise

pursuing their primary mission, all-source intelligence

assets to monitor, collect and report upon the identity

and location of vessels that may be in violation of U.S.

laws and international agreements that conserve and

manage the living marine resources of the United States.30

Resource Constraints

In the past, the U. S. had to focus on the monolithic Soviet threat because

the potential consequences of not doing so were so severe. The relative merit

of focusing scarce intelligence assets against non-traditional targets rarely

surfaced in the vast ocean of communist challenges. Even in today's world,

military intelligence analysts and organizations are more comfortable dealing

with traditional, military type threats (e.g., Iraq, North. Korea, Libya, Iran,

etc.) rather than Somali warlords, Haitian thugs, international crime syndicates,

alien smuggling organizations, and drug cartels. Yet, even as resources are

becoming more scarce, greater demands are being made on the intelligence

community to target these non-traditional threats.

When should military intelligence support civilian law enforcement agency

efforts?

The key questions: Is there a definable, overall threat to national

security? Does intelligence have the ability to make a meaningful contribution?

Can that contribution be made at a reasonable cost (vis a vis scarce resources)?

Is there a good potential for a significant payoff in terms of law enforcement

agency mission success? If the answer to each of these questions is yes, then

military intelligence services should actively pursue a strong working

relationship with the civilian law enforcement agencies that have appropriate

mission cognizance.

In the past the 'opportunity cost' of focusing intelligence support on non-

traditional customers was too great. When our nation faced a potentially world-

ending Soviet military threat, it was simply not possible. However, this is no

longer true. It is entirely appropriate for our military intelligence services

to contribute meaningfully to combating other national security threats, if at

the same time, they are able to maintain their focus on their overriding

mission--support to the warfighter. To do this, however, will require a new

mindset on the part of intelligence professionals and support from our

traditional military customers.

Support Infrastructure-Background

The framework for providing military support to civilian law enforcement.

agencies existed even prior to the Congressional guidance discussed earlier.

Official DoD policy directs the entire department, including the military

services, to "cooperate with civilian law enforcement officials to the extent

practical."31 Department of the Navy (DON) policy is even more strongly

supportive, directing all DON commands and activities to cooperate to "the

maximum extent practicable."32

Although this guidance bodes well for cooperation between DoD and law

enforcement agencies, three important caveats have traditionally served to limit

the aggressive pursuit of this policy. All military support must be consistent

with: 1) the needs of national security and military preparedness; 2) the

historic tradition of limiting direct military involvement in civilian law

enforcement activities; and 3) the requirements of applicable law.33 As can be

seen from Congressional action since the late 1980's, Congress is pushing to

narrow the restrictions generated by these admonitions.

Opportunities for Military Intelligence

The Navy's recent doctrinal publication Naval Intelligence acknowledges the

new dangers that face our nation and their potential impact on the naval

intelligence community:

New centers of power and influence are emerging

sometimes threatening U.S. interests. Naval

intelligence professionals must anticipate and

understand these changes. Worldwide, multiple

threats present other new challenges, and

naval intelligence must employ new methods and

procedures so that naval forces can meet them.34

The challenge will be to ensure that. this new support will not degrade military

intelligence capabilities, but rather enhance them.

All of the military services face these challenges and must rise to meet

them. Some intelligence professionals see these new challenges as a burden--

embracing them requires more effort at a time when dwindling resources (e.g.,

manpower, dollars, systems) make it difficult to accomplish the tanks already

expected of the intelligence community. Yet the success of our nation's efforts

against, these new threats is even more dependent on high quality intelligence

than are more traditional military operations.

In general these new threats are characterized by: fewer visible indicators

of adversarial intent; unfamiliar operating patterns; and unconventional methods

and modes of operations. These new enemies are less regimented, less guided by

doctrine and dogma, and more flexible and responsive in countering U.S. actions.

In many respects, these targets are more difficult than the traditional target

of military intelligence--foreign militaries.

Attacking these threats requires a new mindset on the part of military

intelligence professionals. Many of the same basic analytical tools that proved

effective in contributing to the end of the Cold War and supporting the

warfighter can be adapted to target these new, more challenging threats. Some

of the same methodologies and analytical techniques intelligence analysts use

against foreign military targets have great utility in supporting law enforcement,

against foreign targets violating U. S. laws and threatening national security

(drug smuggling, proliferation of weapons of mass destruction, arms and

technology transfers, international crime, terrorism). When the tools and

techniques are combined with the wealth of information available on an open

source basis, a tremendous opportunity to exploit the information revolution for

intelligence gain exists. In adapting these proven techniques to meet new

challenges they evolve, and in many cases, become even more effective in

providing not only the kind of intelligence support the military warfighter needs

in this new world disorder, but also a better way of supporting information

warfare.

The payoff to law enforcement from increased military intelligence support

is clear, but the advantages to be gained by the military intelligence community

are every bit as real. They include:

1) Enhanced intelligence analysis and analysis techniques. Increased

sophistication in analytical processes and methodologies must be used

to attack these targets. Exposure to other agency techniques and

analysis methods will produce more flexible and innovative analysts who

apply what they have learned to traditional military targets;

2) A more responsive intelligence community, with a better

understanding of operator needs and a broader exposure to customer

oriented efforts;

3) Access to greater quantities and more diverse data and sources

resulting in potentially more useful intelligence and databases;

4) Increased funding as civilian leaders see the intelligence

community being responsive to evolving national needs; and

5) More diverse and challenging training for intelligence analysts.

Since the military intelligence community is being directed to provide

support to law enforcement agencies, it behooves us to do so as intelligently as

possible in ways that serve to enhance our primary mission of support to the

warfighter, not undermine it. For example, great demands can be placed on the

intelligence community during operation other than war (OOTW), many of which

would benefit from nontraditional information sources and methodologies.35

Establishing strong working relationships with law enforcement agencies now can

potentially yield tremendous returns during actual OOTW and combat operations.

If done in efficient and innovative ways, the bottom line will be that supporting

non-traditional customers will expand our intelligence "tool kit" and thus, over

the long term, enhance our support of the warfighter.

Potential Pitfalls

There are, however, concerns which must be addressed if the military

intelligence community is to intensify its attack on these new targets. The most

prominent fears, those regarding abuse of Posse Comitatus and efforts by the

intelligence community to collect against U. S. citizens, were discussed above.

Other criticisms of a more aggressive intelligence community-law enforcement

agency relationship include: long-term erosion of our civil liberties; blurring

of the distinction between intelligence and law enforcement agencies which could

in turn invite the judiciary to impose law-enforcement like-restraints on

intelligence agencies;36 potential compromise of intelligence sources and

methods; and inability of the intelligence community to provide information at

a classification level useable to agencies that work with few, if any, classified

products.

Regarding the risk to American civil liberties, the primary worry is that

to the extent that law enforcement organizations become dependent on the

intelligence community, they may become less vigilant as guardians of civil

liberties. This view is held by many, including the former General Counsel to

the National Security Agency, who wrote, intelligence-gathering tolerates a

degree of intrusiveness, harshness, and deceit that Americans do not want applied

against, themselves."37 The key, of course, is to ensure that the intelligence

community remains focused on foreign intelligence and that safeguards for

intelligence sharing are clearly delineated, as well as practiced.

There is also the concern that if the distinction between intelligence and

law enforcement erodes, the courts could cripple intelligence collection by

demanding that it conform to the same standards as those applied to law

enforcement. Separation of domestic and foreign intelligence functions helps

prevent domestic law enforcement from becoming "infected by the secrecy,

deception, and ruthlessness that international espionage requires."38 Subjecting

the intelligence community's foreign intelligence, collection efforts to the same

standards that the American judiciary uses to limit, domestic law enforcement

information collection would result in severe damage to the intelligence

capabilities of the United States. However, this is exactly why there are strict

oversights to ensure that intelligence organizations, including the military

intelligence services, collect information on foreign targets, not U.S. persons.

A thorough understanding of our nation's civilian law enforcement agencies

and their needs will enable the intelligence community to provide valuable

information--in many instances at an unclassified level--to these agencies

without compromising national or military intelligence sources and/or methods.

Tailoring the intelligence supplied to a particular law enforcement agency not

only enhances that agency's ability to make use of it, but also enables the

intelligence community to more thoroughly sanitize it, thus lowering its

classification or even declassifying it entirely. Critical to this step,

however, is the establishment of a mutually credible, close working relationship

between the specific agencies involved.

Steps to Enhance Law Enforcement/Intelligence Community Relations

As we have frequently seen in combat, intelligence can be a force multiplier

used to extremely effective advantage. The same can be said for intelligence

support to law enforcement efforts, but a more sophisticated interagency

relationship must evolve for the full effects to be realized.

A variety of factors are used to assess the interoperability between

military forces of different nations. The most common criteria include cultural,

doctrinal, procedural, and technical similarities and differences - While on the

surface it may seem reasonable to expect two agencies of United States

government to rate very high on these interoperability criteria, in fact these

four facets of American military and civilian law enforcement organizations are

different in all hut the very broadest sense. Just as would be the case in

developing cooperative relationships with a foreign military service, gradual,

focused effort must be made to bring about true interagency interoperability.

Most significantly, intelligence agencies should, when possible, work

through the intelligence branches of the law enforcement agencies. They can then

fuse the military intelligence-supplied information with their own law

enforcement intelligence to provide the best possible support to their

operational arms. Intelligence can provide critical lead information, but the

law enforcement agencies must develop these leads into their own cases (something

U.S Intelligence agencies, especially military ones, have neither the

inclination nor expertise to do.). This prevents intelligence community sources

and methods from being compromised, yet provides for the flow of both

strategically and tactically significant information, thus aiding the law

enforcement agencies in "busting criminals."

By better understanding law enforcements' needs intelligence agencies will

know what is relevant and important to them. The co-location at the National

Maritime Intelligence Center in 1994 of the Office of Naval Intelligence (ONI)

and the U.S. Coast Guard's Intelligence Coordination Center as well as the

assignment to ONI of Defense Intelligence Agency and U.S. Customs Service

intelligence professionals has paid tremendous dividends in attacking these

emerging national security threats as well as cementing a closer working

relationship between civilian law enforcement agencies and the military

intelligence community. Working with defense intelligence organizations improves

law enforcement agency intelligence departments' ability to better deal with and

safeguard military intelligence information, sources and methods. Too narrow

an interpretation of federal law and government responsibilities prevents useful

and at times critical information from getting into the hands of the law

enforcement officials who can use it most effectively. These efforts (once an

understanding of this unique customer base is attained) will result in

responsive, actionable intelligence for law enforcement agencies. Interestingly

there is much that is "actionable" by law enforcement that intelligence agencies

can provide that is neither classified nor compromises or erodes the distinction

between intelligence and law enforcement. In fact, there are numerous examples

of tactical intelligence support that derives from foreign intelligence

collection or unclassified information that can and has had a tremendous impact

on law enforcement effectiveness.

Conclusion

The great military strategist, Sun Tsu, wrote, "One able to gain the victory

by modifying his tactics in accordance with the enemy situation may be said to

be divine."39 While it is unlikely that the intelligence community will be

accorded divine status anytime soon, it is time for military intelligence

organizations to modify their tactics in order to help civilian law enforcement

agencies and the nation gain victory against emerging non-traditional national

security threats.

This paper has examined the critical role the intelligence community can

play in combatting non-traditional attacks on our national security, especially

in times of shrinking government budgets and force levels. The groundwork for

both DoD and the intelligence community to establish a robust working

relationship with the law enforcement community exists. To become a force

multiplier, however, intelligence professionals must thoroughly understand both

the limitations and opportunities the Posse Comitatus and Foreign Intelligence

Surveillance Acts present. In addition, four criteria: the presence of a

definable threat to national security; the ability of the intelligence community

to make a meaningful contribution; at a reasonable cost and the potential for

significant law enforcement agency mission success; must be satisfied in order

for the intelligence-law enforcement partnership to flourish. Although these new

threats are inherently more difficult to target, successfully tackling these

adversaries through the use of the steps described above will enhance overall

intelligence community capabilities.

Pragmatic military intelligence professionals are attempting to do what they

do best--gather and analyze information collected during foreign intelligence

operations. If important information results from this endeavor and the

intelligence professional has an understanding of law enforcement needs, then it

is only appropriate to put the key information into law enforcement hands so that.

it will have an impact. In fact, Congress has even directed the military to

consider law enforcement needs in scheduling operations. Intelligence

professionals can do this without compromising sources and methods OR

compromising the liberties that are the very heart and soul of this country

The majority of the emerging threats faced by the United States require

civilian law enforcement agency involvement in order to combat them. Failure to

develop a cooperative, supportive intelligence community-law enforcement agency

relationship will handicap both sides in their attempts to engage these emerging

threats to our national security.

END NOTES

1 Clinton, President William J., "Remarks by the President in Announcement of

General Michael Carns as Nominee to be CIA Director," White House Press Release,

February 8, 1995, p. 1.

2 Dalton, Secretary John H., Boorda, Admiral J. M., and Mundy, General Carl E.

Jr., Forward.... From The Sea, Department of the Navy White Paper, 1994, p.7.

3 Clausewitz, Carl Von, On War, trans by Michael Howard and Peter Paret,

Princeton: Princeton University Press, 1976, p. 117.

4 Clausewitz, Carl Von, p. 117.

5 Carns, Michael, "Remarks by the President in Announcement of General Michael

Carns as Nominee to be CIA Director," White House Press Release , February 8,

1995, p. 2.

6 "TITLE XI - Drug Interdiction and Law Enforcement Support," Legislative

History to House Conference Report No. 101-121, United States Code Congressional and

Administrative News, Volume 3: Legislative History - Public Laws 100-418

(Cont'd) to 100-532, 1988, p. 2575.

7 "TITLE XI - Drug Interdiction and Law Enforcement Support," Legislative

History to House Report No. 101--121, United States Code Congressional and

Administrative News, Volume 3: Legislative History-Public Laws 101-189 to 101-

239, 1989, p. 939.

8 Clinton, President. William J., President Expands Pole for CIA Nominee,"

Washington Post, March 12, 1995, p. A12.

9 Clinton, President William J President Launches 13-Month Review of Post

Cold-War Intelligence Needs," Washington Post, February 2, 1995, p. A20.

10 Combest, Representative Larry, "Intelligence Panel to Gun for Terrorists,"

Washington Times, February 3, l995, p. A6.

11 Pincus, Walter, "Control Tightened on Spy Agencies, "Washington Post, March

10, 1995, p. A1+.

12 Perry, Secretary William J., Secretary of Defense: Annual Report to the

President and the Congress, February 1995, p. 266.

l3 Perry, Secretary William J., p. 266.

14 Burger, Chief Justice Warren, Laird v. Tatum, 408 U.S.C. 1, l5, 1972.

15 Chapter 67, Section 1385, U. S. Code Title 18 - Crimes and Criminal

Procedures, p. 27.

16 U.S. v. Red Feather, D.C.S.D., l975, 392 F. Supp. p. 9l6. U.S. Code Title l8

- Crimes and Criminal Procedures, Chapter 67, Section l385, p. 28.

17 See articles like Stewart A. Burger's "Should Spies By Cops?" in Foreign

Policy, Winter l994-95, for much narrower interpretations of the Posse Comitatus

limitations.

18 "TITLE XI - Drug Interdiction and Law Enforcement Support," Legislative

History to House Report No. 101-121, United States Code Congressional and

Administrative News, Volume 3: Legislative History - Public Laws 101-189 to 101-

239, 1989, p. 936.

19 Baker, Stewart A., "Should Spies Be Cops? Foreign Policy, No. 97, Winter,

l994-95, p. 4l.

20 "TITLE XI - Drug Interdiction and Law Enforcement Support, Legislative

History to House Conference Report No. 100-989, United States Code Congressional

and Administrative News, Volume 5: Legislative History - Public Laws 100-418

(Cont'd) to 100-532, 1988, p. 2577.

21 Clapper, Lieutenant General James R., Jr., "Challenging Joint Military

Intelligence," Joint Forces Quarterly, No. 4 Spring l994, p. 93.

22 Campen, Alan P. Colonel, "Intelligence Leads Renaissance in Military

Thinking," Signal, Vol. 48, No. l2, August l994, p. 18.

23 Section 37l, Subsection (c) of Chapter 18 of U.S. Code Title 10, l994, p.

150.

24 Public Law 101-5l0, Div. A, Title X S1004, Nov. 5, 1990, 104 Stat. 1629, as

amended by Public Law 102-190, Div A, Title X S1088(a). Dec 5, 1991, 105 Stat.

l484; Public Law 102-484, Div A, Title X S1041(a)-(d)(1), Oct. 23, 1992, 106

Stat. 2491; Public Law 103-160, Div. A, Title XI S1121(a), (b) Nov. 30, 1993, 107

Stat. 1753 - United States Code Annotated, Title 10 - Armed Forces, 1994.,

pp. 153-154.

25 Public Law 101-510, Div. A, Title X S1004, Nov. 5, 1990, lO4 Stat. l629, as

amended by Public Law 102-190, Div A, Title X S1088(a), Dec 5, 1991, 105 Stat.

l484; Public Law 102-484, Div A, Title X S104l(a)-(d)(1), Oct. 23, l992, 106

Stat. 2491; Public Law 103-160, Div. A, Title XI S1121(a), (b), Nov. 30 1993, 107

Stat. 1753 . United States code Annotated, Title 10-Armed Forces, l994,

p. 154.

26 "TITLE XI - Drug Interdiction and Law Enforcement Support," Defense

Authorization Act for Fiscal Year l989, P.L. 100-456, SEC. 1102, United States

Code Congressional and Administrative News, Volume 2, 1988, p. 102 STAT. 2O42.

27 "TITLE XI - Drug Interdiction and Law Enforcement Support,"

Legislative History to House Report No. 101-121, United States Code

Congressional and Administrative News, Volume 3: Legislative History - Public

Laws 101-189 to 101-239, 1989, p. 938.

28 "TITLE XI - Drug Interdiction and Law Enforcement Support," Legislative

History to House Report No. 101-121, United States Code Congressional and

Administrative News, Volume 3: Legislative History - Public Laws 101-189 to 101-

239, l989, p. 940.

29 Section 202 - Enforcement, P. L. 102-582 -- High Seas Driftnet Fisheries

Enforcement Act, House Resolution 5123, November 2, 1992, pp 2l52-6.

30 Memorandum of Understanding Between the Secretary of Transportation, the

Secretary of Commerce and the Secretary of Defense Relating to the Enforcement

of Domestic Laws and International Agreements that Conserve and Manage the Living

Marine Resources of the United States, Section C. - Policy, October 11, 1993, p.

31 Department of Defense Directive 5525.5, "DoD Cooperation with Civilian Law

Enforcement Officials," January 15, 1986, p. 2.

32 Secretary of the Navy Instruction 5820.7B, "Cooperation with Civilian Law

Enforcement Officials," 28 March 1988, p. 2.

33 DoD Directive 5525.5, p. 2.

34 Naval Intelligence, Naval Doctrine Publication 2, September 30, l994, p. 48.

35 Naval Intelligence, p. 44.

36 For a detailed discussion of the problems of an aggressive intelligence

community-law enforcement agency relationship, see Baker, Stewart A., "Should

Spies Be Cops?" Foreign Policy, Winter, l994-95.

37 Baker, Stewart A., p. 40.

38 Baker, Stewart A., p. 37.

39 Tsu, Sun, The Art of War, trans by General Samuel B. Griffith, London: Oxford

University Press, l963, p. 101.

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MILITARY INTELLIGENCE SUPPORT TO CIVILIAN LAW