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Collecting information on U.S. persons
By Robert W. Jr. Noonan
"Military Intelligence Professional Bulletin"
Jan-March, 2002 --
Editor's Note: Given the recent passage of a number of bills to
control terrorism by Congress, there has been concern over
individual freedoms and the military's role in the new judicial
legislation. This article is extracted from a memorandum,
Subject: Collecting Information on U.S. Persons, dated 5
November 2001, and signed by LTG Robert W. Noonan, Deputy Chief
of Staff for Intelligence. (1)
The 11 September 2001 terrorist attack on America has presented
the United States and the U.S. Army with unprecedented
challenges. Both our nation and our Army are responding
vigorously to these challenges and will ultimately be victorious
over international terrorism. Achieving this victory will not be
easy, however. Our adversary is not a clearly defined
nation-state with fixed borders or a standing army. It is,
instead, a shadowy underworld operating globally, with
supporters and allies in many countries, including,
unfortunately, our own. Rooting out and eliminating this threat
to our freedom and way of life will call upon every resource at
our disposal. I am proud to say that Army Military Intelligence
(MI) will play a pivotal role in helping to defeat this threat.
Many of the perpetrators of these attacks lived for some time in
the United States. There is evidence that some of their
accomplices and supporters may have been U.S. persons, as that
term is defined in Executive Order (EO) 12333. This has caused
concern in the field regarding MI's collection authority. With
that in mind, I offer the following guidance:
a. Contrary to popular belief, there is no absolute ban on
intelligence components collecting U.S. person information. That
collection, rather, is regulated by EO 12333 and implementing
policy in DoD 5240.1-R and AR 381-1 0.
b. Intelligence components may collect U.S. person information
when the component has the mission (or "function") to do so, and
the information falls within one of the categories listed in DoD
5240.1-R and AR 381-10. The two most important categories for
present purposes are "foreign intelligence" and
"counterintelligence." Both categories allow collection about
U.S. persons reasonably believed to be engaged, or about to
engage, in international terrorist activities. Within the United
States, those activities must have a significant connection with
a foreign power, organization, or person (e.g., a foreign-based
terrorist group).
EO 12333 provides that "timely and accurate information about
the activities, capabilities, plans, and intentions of foreign
powers, organizations, and persons, and their agents, is
essential to the national security of the United States. All
reasonable and lawful means must be used to ensure that the
United States will receive the best intelligence possible." That
said, my staff has received reports from the field of
well-intentioned MI personnel declining to receive reports from
local law enforcement authorities, solely because the reports
contain U.S. person information. MI may receive information from
anyone, anytime. If the information is U.S. person information,
MI may retain that information if it meets the two-part test
discussed in paragraph b, above. If the information received
pertains solely to the functions of other DoD components, or
agencies outside DoD, MI may transmit or deliver it to the
appropriate recipients, per Procedure 4, AR 381-10. Remember,
merely receiving information does not const itute "collection"
under AR 381-10; collection entails receiving "for use." Army
intelligence may always receive information, if only to
determine its intelligence value and whether it can be
collected, retained, or disseminated in accordance with
governing policy.
Military Intelligence must collect all available information
regarding international terrorists who threaten the United
States, and its interests, including those responsible for
planning, authorizing, committing, or aiding the terrorist
attacks of 11 September 2001. We will do so - as EO 12333
directs - "in a vigorous, innovative and responsible manner that
is consistent with the Constitution and applicable law, and
respectful of the principles upon which the United States was
founded."
Key ODCSINT numbers for intelligence oversight questions are
(703) 601-1958/1551, or through the 24-hour Intelligence Watch
at (703)6975484/5485.
Endnotes
(1.) LTG Noonan's memorandum, especially regarding the impact of
AR 381-1 0, deserves more study. This is provided by Mr. Michael
H. Varhola's article, AR 381-10, An Enabling Regulation."
COPYRIGHT 2002 U.S. Army Intelligence Center and School
COPYRIGHT 2004 Gale Group
Posted on site 02/01/06
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