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Table of Contents

Document Information

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LESSON 4

CI INVESTIGATIVE RESPONSIBILITIES AND LIMITATIONS

OVERVIEW

In this lesson, you will learn the precise legal restrictions imposed upon intelligence collection assets by EO 12333 and AR 381-10.

TERMINAL LEARNING OBJECTIVE:

INTRODUCTION

The responsibilities and limitations of US Army CI investigations are specified in several documents which you should be familiar with. Some of the more important provisions of these documents are discussed in this lesson.

This lesson has two parts:

At the end of each part, there is a practice exercise. Answer all the questions on the practice exercise and check your answers. Do NOT go on until you answer all the questions correctly.

PART A: INFORMATION COLLECTION

In this part of Lesson 4, you will learn:

The purpose of AR 381-10 is to outline procedures enabling DOD intelligence components to carry out their mission effectively while ensuring that the constitutional and privacy rights of US persons are protected. It does not authorize the collection of any information relating to a person or organization solely because of lawful advocate of measures opposed to government policy. This regulation is intended to complement other regulatory policies. It does not establish authority to carry out any activity but rather to serve as a guide for completion of missions designated by other regulations such as AR 381-12 or AR 381-20.

If there is ever a question of interpretation when applying this regulation, the supporting judge advocate should be the point of contact locally. If the problem cannot be resolved at that level, it should be referred, through command channels, to the DA General Counsel.

DEFINITIONS.

Before beginning a discussion of collection, it is necessary to ensure an understanding of basic terms that play an integral part in the collection process.

US Person.

A US citizen, an alien lawfully admitted for a permanent residence, an unincorporated association composed mainly of US persons or a corporation incorporated in the US unless it is controlled by a foreign government.

Collection.

Information shall be considered to be "collected" only when it has been received for use of an employee of a DOD intelligence component in the course of his official duties. Essentially what this means is: a DOD employee must receive the information and take some positive step such as putting it in a file or on a computer in order for it to be "collected." Therefore, if a cooperating source provided an agent with information and the agent did not record it and place it in any retrievable file, it has not been collected. If an intelligence component is unsure as to the collectability of information they have received, they have the opportunity to send that information to higher headquarters for a determination. If this is done, there is a 90 day temporary retention period during which the information in question is not considered to be "collected." Upon receipt of an answer from higher headquarters, that information is either disposed of or it becomes collected.

COLLECTION.

Targets.

Intelligence components may target both US and non-US persons subject to several limitations:

No one may be targeted unless it is necessary to the conduct of a mission assigned to the collecting components.

The techniques being employed have had the approval of the necessary authorities.

When collecting on a US person, you are limited to the following categories of information:

Administration information.

When targeting a US person concerning foreign intelligence in the US, it must be done in an overt manner unless: 1) the intelligence is significant, 2) the intelligence can not be reasonably obtained by overt means, 3) coordination has been made with the FBI and 4) the proper approvals have been obtained.

General Guidelines.

The general guideline rule for performing collection is: Pick the least intrusive method possible, get the proper approval, and then collect. The least intrusive method would be to use publicly available information. The next step would be the use of cooperating sources, the third step would be the use of a technique that did not require Attorney General or judicial approval, and the last step would be to utilize a technique that does require Attorney General or judicial approval.

Specific Techniques.

What follows is a short synopsis of procedures 5-13 of AR 381-10. For a more detailed explanation or specific guidance, AR 381-10 or United States Army Intelligence and Security Command (USAINSCOM) DA Pam 27-1 should be consulted.

Electronic Surveillance. Unconsented surveillance may be conducted in the US with approval of the Foreign Intelligence Surveillance Act (FISA) court. This is obtained by sending a request through the appropriate command channels with the proper documentation establishing a probable cause to believe foreign intelligence is on-going. Unconsented surveillance outside the US can also be conducted with the proper approval (see AR 381-10) based on the same standard.

Consented surveillance, which constitutes one or more people in a group giving written consent to monitoring, may also be done inside and outside the US with the approval of the Secretary of the Army or his designee.

Concealed monitoring. This technique includes the use of electronic equipment, such as video cameras, which are designed to monitor activity other than conversations. If the individual has an "expectation of privacy," meaning that he can reasonably expect to be free from intrusion in certain areas, you must get approval under the provision of monitoring through electronic surveillance.

If an individual does not have an "expectation of privacy," such as when a sign is posted, you seek approval based on concealed monitoring found in procedure 6 of AR 381-10.

Physical Search. Unconsented physical searches may be performed by MI CI Agents for intelligence purposes on a military installation. Prior to conducting the search, approval must be obtained from the commander empowered to grant search authority. This decision must be based on probable cause that foreign intelligence activity is present. Unconsented physical searches off military installations are the jurisdiction of the FBI or host countries and must be accomplished through liaison.

Consented searches, for intelligence purposes, may be performed with the acknowledged consent of the individual to be searched or upon approval of a military judge.

Mail Search. When mail is in US postal channels, first class mail may not be opened for intelligence purpose but all other classes may be searched if coordination is made with the proper postal authorities (see AR 381-10). Mail of any class cannot be opened without a judicial warrant, regardless of it's location. An examination of the outside covering of mail may be done on any class of mail with the proper coordination (see AR 381-10). Mail searches outside US postal channels may be conducted if done with proper justification and based on the standards set forth for unconsented physical search, as found in AR 381-10.

Physical Surveillance. This technique consists of a covert, systematic, targeting of an individual's movements or acquisition of non-public information by an individual not visibly present other than through covert means. An example would be electronic monitoring.

When this technique is necessary for the accomplishment of the mission, utilization may be made after proper approval is secured (see AR 381-10).

Undisclosed Participation.

An intelligence agent may not participate in an organization that constitutes a US person, on behalf of the intelligence community, unless they disclose their identity or get prior approval from proper authority (see AR 381-10). This does not restrict an individual from joining an organization for purely personal reasons, sitting in a public meeting, or accepting information from a cooperating source who is a member of an organization.

Assistance to Law Enforcement.

DOD intelligence components may cooperate with law enforcement for the purpose of:

This cooperation may include providing information, equipment, training, or personnel. The only restriction placed on these activities is that the military must be careful to not perform a strictly law enforcement function.

RETENTION.

As long as information is collected in a lawful manner, still serving the purpose for which it was collected, and necessary to the conduct of authorized functions of DA intelligence components or government agencies, it may be retained.

In order to determine if these criteria are met, a review made by competent legal advisors is necessary. If the review cannot be accomplished satisfactorily at the local level, the information may be retained temporarily, with higher headquarters consulted as mentioned previously.

DISSEMINATION.

Except when required by law, the only time that information concerning US persons may be released is under the following conditions:

SPECIFIC RESTRICTIONS.

Experimentation on human subjects will be done only if there is a vital foreign intelligence or CI purpose to be served. Additional restrictions are as follows:

PRACTICE EXERCISE 4A

PART B: EMPLOYEE RESPONSIBILITIES AND OVERSIGHT

RESPONSIBILITIES.

All employees will conduct intelligence activities pursuant to, and in accordance with applicable directives, laws, executive orders, and regulations.

Familiarity.

Each DOD intelligence component shall familiarize its personnel with the provisions of AR 381-10, EO 12333, and any other law pertaining to their activities. At a minimum, everyone should be familiar with procedures 1-4 of AR 381-10, a summary of collection techniques and what their individual compliance and reporting requirements are.

Reporting.

Employees are required to report any violation of law, executive orders, or regulation, commonly called "questionable activity," that pertains to intelligence operations. This report will take the form of an electrical message routed through command channels to HQDA (DAMI-CIC), Washington, DC 20310 as soon as possible but no later than 5 days. The report should include:

The initial investigation of the incident should be completed by the local command within 30 days and a report should be sent to HQDA containing the results and disciplining or corrective action taken.

OVERSIGHT.

The government has taken the position that increased intelligence gathering is essential to protecting our national defense. However, the constitutional rights of individuals must not be totally sacrificed to achieve this end. In order to ensure that a balance exists, oversight committees have been established to ensure that intelligence collection activities remain within the law.

The oversight committees consists of specifically designated organizations and people, who are tasked to periodically check intelligence components for compliance with appropriate laws and guidelines and then to report on their findings. In the Army, this responsibility has been delegated to the Inspector General, the General Counsel, and the Deputy Chief of Staff for Intelligence (DCSINT). Their job is to detect and prevent violations.

The purpose of the oversight personnel is to protect the integrity of the intelligence community as well as the rights of the people. Both of these missions are vital to ensure that we have the most professional and skilled intelligence community possible that truly serves the country and people it is charged to protect. These people are to be worked with, not against.

PRACTICE EXERCISE 4B