Military Spying
A case involving Army spying on activists shows how some believe that expansion of civilian agencies' authority imbues the military with the power to (1) engage in domestic law enforcement or (2) engage in the other abusive practices. The case was Panagacos v. Towery. My colleague Zak Wolfe and I wrote an amicus brief arguing that the Army spying was improper. Here are a few excerpts:
The creation of Joint Terrorism Task Forces and fusion centers has accelerated widespread monitoring and secretive sharing of information about Americans, including covert military tactics. As Erik Dahl, former Navy intelligence officer and now professor at the Naval Postgraduate School noted: “I'm not sure whether the same intelligence agencies, the same intelligence officers who used to spy overseas or spy on the Soviet Navy, I'm not sure whether those organizations and individuals are the right ones to be doing the spying on Americans.” Interview with Erik Dahl, Brennan Center for Justice at NYU Law School (June 2, 2014).
The Senate Committee on Homeland Security and Governance has found that fusion centers’ sloppy and uneven “intelligence” at times endanger “citizens’ civil liberties and Privacy Act protections, occasionally taken from already published public sources, and more often than not unrelated to terrorism. ” [United States Senate Permanent Subcommittee on Investigations, Committee on Homeland Security and Governmental Affairs, “Federal Support for and Involvement In State and Local Fusion Centers,” Majority and Minority Staff Report, October 3, 2012.]
Military personnel gather domestic intelligence for “force protection,” preventive measures aimed at mitigating hostile actions against Department of Defense personnel and resources. While a military unit spying on anti-war activists was gotten rid of in 2008, nevertheless the Defense Intelligence Agency took over its so-called offensive counterintelligence functions and re-created an intelligence database in 2010. Mike German, “Why Police Spying On Americans Is Everyone’s Problem,” Force One, December 18, 2014.
Little oversight mechanisms exist to make sure that the law is followed in information sharing on federal and state levels, such as between FBI Joint Terrorism Task Forces, local fusion centers and information sharing networks such as the Navy’s Law Enforcement Information Exchange (LinX) and the FBI’s eGuardian program. Eugene Fidell, who teaches military law at Yale Law School and is a member of the Defense Department's Legal Policy Board and board member of the International Society for Military Law and the Law of War, called LinX domestic spying: “This sounds like something from a third-world country, where you have powerful military intelligence watching everybody.” Mark Flatten, “Navy Database Tracks Civilians 'Parking Tickets, Fender-Benders, Raising Fears of Domestic Spying,” Washington Examiner, March 21, 2014. Case: 14-35598, 01/27/2016, ID: 9843433, Dkt Entry: 99-2, Page 25 of 40 (36 of 51).
Military intelligence tactics and attitudes rub off on law enforcement personnel assigned to intelligence matters. Most nations outlaw espionage, so foreign intelligence activities have to be carried out through stealth and deception. Avoidance of the law and contempt for the truth can become habitual among intelligence officials, buy they simply have no place in a democratic government’s interactions with its own citizens.
Yet, throughout the history of domestic intelligence operations in the U.S., law enforcement officials have gone to the military intelligence toolbox in selecting their methods. Mike German, Why Police Spying On Americans Is Everyone’s Problem, Force One, December 18, 2014.
Writing for the dissent in Laird, Justice Douglas wrote of the paralyzing effect of army surveillance on a free society:
Army surveillance, like Army regimentation, is at war with the principles of the First Amendment. . . . The First Amendment was designed to allow rebellion to remain as our heritage. The Constitution was designed to keep government off the backs of the people. The Bill of Rights was added to keep the precincts of belief and expression, of the press, of political and social activities free from surveillance. The Bill of Rights was designed to keep agents of government and official eavesdroppers away from assemblies of people. The aim was to allow men to be free and independent and to assert their rights against government. There can be no influence more paralyzing of that objective than Army surveillance. Laird, 408 U.S. at 28 (Douglas, J., dissenting)