POGO letter to Reps Hoekstra and Harman with suggestions and concerns about portions of the FY 07 House Intelligence Authorization Bill dealing with Intelligence Community oversight, whistleblowers, and CIA/NSA Police powers
Representative Peter Hoekstra, Chairman, HPSCI
Representative Jane Harman, Ranking Member, HPSCI
H-405 US Capitol Building
Washington, DC 20515
The Project On Government Oversight (POGO) is an independent nonprofit that investigates and exposes corruption and other misconduct in order to achieve a more accountable federal government. It is POGO's understanding that the FY 2007 House Intelligence Authorization Bill will be moving to the House floor shortly. Having reviewed the bill and the Committee's accompanying report, we would like to urge House Permanent Select Committee on Intelligence (HPSCI) members to take the lead in amending certain sections of the bill.
Section 412 – Access to Information By Staff And Members Of The Congressional Intelligence Committees
Given the important oversight functions of HPSCI and Senate Select Committee on Intelligence (SSCI), we are very supportive of Section 412, which would mandate full access to the Intelligence Community's Intelink System by SSCI and HPSCI members and staff. In the name of more expansive oversight, we would encourage the committee to add language to this section that reflects a suggestion made by former CIA official Paul R. Pillar in the March/April 2006 issue of Foreign Affairs:
The legislative branch is the appropriate place for monitoring the intelligence-policy relationship. But the oversight should be conducted by a nonpartisan office modeled on the Government Accountability Office (GAO) and the Congressional Budget Office (CBO). Such an office would have a staff, smaller than that of the GAO or CBO, of officers experienced in intelligence and with the necessary clearances and access to examine questions about both the politicization of classified intelligence work and the public use of intelligence. As with the GAO, this office could conduct inquiries at the request of members of Congress. It would make its results public as much as possible, consistent with security requirements, and it would avoid duplicating the many other functions of intelligence oversight, which would remain the responsibility of the House and Senate intelligence committees.
Section 413 – Study On Revoking Pensions Of Persons Who Commit Unauthorized Disclosures Of Classified Information
POGO encourages committee members in the strongest terms to take the lead in striking this section. While the mandate for a study may resonate with certain constituencies, it is our view that DNI's time and resources are better spent on other matters at this critical juncture in the DNI's nascent existence. We also think such a study is likely to have a chilling effect on conscientious government employees concerned about misconduct. Indeed, interviews conducted by POGO with numerous current and former intelligence officials revealed a unanimity of opinion, perhaps best summed up in the words of a veteran Senior Intelligence Service officer: "The study and changes in legislation to penalize leakers with loss of pension benefits is not going to do anything but keep good people from going to work in the IC agencies and departments." Finally, we find it hypocritical – particularly in light of the proposed mandate in Section 412 – that the report mandated in Section 413 focuses only on Executive Branch personnel, and does not include Members of Congress and their staffs.
In a related vein, we also endorse the addition to the FY 07 Authorization, Amendments to the Intelligence Community Whistleblower Protection Act, proposed by Representative Kucinich. This addition would strengthen existing whistleblower protections for intelligence personnel.
Section 423 – Additional Functions And Authorities For Protective Personnel Of The Central Intelligence Agency
We are particularly concerned with the language in Sections 423, "Additional Functions and Authorities for the Protective Personnel of the Central Intelligence Agency," and Section 432, "Codification of Authorities of National Security Agency Protective Personnel." As currently written, Section 423 proposes that:
(a) The Director of the Central Intelligence Agency may issue regulations to allow personnel designated to carry out executive protection functions for the Central Intelligence Agency under section 5(a)(4) of the Central Intelligence Agency Act of 1949 (50 USC 403f) to, while engaged in such protective functions, make arrests without a warrant for any offense against the United States committed in the presence of such personnel, or for any felony cognizable under the laws of the United States, if such personnel have probable cause to believe that the person to be arrested has committed or is committing that felony offense.
(b) The powers granted under subsection (a) may be exercised only in accordance with guidelines approved by the Attorney General.
We are concerned that potential for abuses is created by the current language. As written, the provision may undermine existing statutory limitations on CIA involvement in domestic law enforcement in that the language seems to extend the powers of CIA's Special Protective Service (SPS) to geographical areas outside CIA facilities. Previous Congressional actions gave due consideration to concerns about potential abuses, and have appropriately legislated restrictions on the police powers of designed CIA personnel.1
It would be more practical for CIA SPS personnel to coordinate with appropriate federal or local law enforcement for "off-campus" protective situations in which a law enforcement role is reasonably anticipated. A possible compromise measure, although one that has its own problems, is to allow CIA personnel charged with executive protection the additional power to arrest or otherwise detain a person or persons intending immediate, unlawful physical harm against an intelligence executive while said executive is off-campus. But as currently written, Section 423 appears, vis a vis the phrase "any felony against the United States," to grant to CIA security personnel powers that have little to do with the primary mission of "executive protection," and potentially creates a pretext for use or abuse of these powers for the purposes of general domestic law enforcement – something no element of the CIA has ever been empowered to perform.
The majority of improper or illegal acts committed by the CIA against citizens of the United States were committed by the agency's Office of Security in the name of "facilities protection" and "executive security." As the 1976 Church Committee report noted, the stated basis for the creation of programs that resulted in the improper investigation of U.S. citizens and U.S. political groups, such as Projects RESISTANCE and MERRIMAC, was a dubious reading of statutes authorizing the Director of Central Intelligence to "be responsible for protecting intelligence sources and methods from unauthorized disclosure." This was expansively interpreted by the CIA as "authoriz[ation for the] protection of CIA personnel and facilities against any kind of 'security threat' including the possibility of violent demonstrations by the public." The application of this interpretation resulted in the proactive infiltrating by CIA operatives into student and political groups. As the Committee noted, both RESISTANCE and MERRIMAC were "questionable" at best because of "the prohibition on CIA exercising law enforcement powers or performing internal security functions."
Finally, recent years have seen a number of confusing national security situations develop based on the opinions of the Office of the Attorney General. It is our view that if Congress wishes to legislate expanded powers to CIA law enforcement personnel, Congress should do so with precision and detail, and not leave the finer points to the Executive Branch.
Section 432 – Codification Of Authorities Of National Security Agency Protective Personnel
Section 432 proposes a similar expansion of the powers of the National Security Agency Police. It would amend existing law so that:
National Security Agency personnel designated to carry out protective functions of the Agency ... [may] ... carry firearms and make arrests without warrant for any offense against the United States committed in the presence of such personnel, or for any felony cognizable under the laws of the United States, if such personnel have probable cause to believe that the person be arrested has committed or is committing that felony offense.
NSA Police already have these powers on and immediately around NSA property; as written, the proposed amendment appears to extend these powers "off-campus," and not just for protective functions.
As the Office of the Maryland Attorney General's Office noted in a June 27, 2005, opinion, it has historically been the position of both the U.S. Congress and the State of Maryland that the activities of NSA Police be restricted to NSA facilities and a 500-foot buffer around them. Specifically drawing attention to H.R. Conference Report No. 328, 107th Congress, 1st Sess. 27 (2001), the Maryland Attorney General notes that the 500-foot buffer was "not envisioned as a general grant of police authority," and that:
In authorizing a separate NSA police force, Congress anticipated that the NSA police would enter into cooperative arrangements with other police agencies that shared concurrent jurisdiction within the 500-foot perimeter surrounding an NSA facility … the NSA police were not intended to serve as a general federal law enforcement agency.
Given recent events involving the NSA police and Baltimore police and their cooperation in "protecting" NSA Headquarters from Quaker-affiliated anti-war protesters, we are particularly concerned about the proposed amendment. Earlier this year in U.S. District Court in Baltimore, the attorney for several peace activists arrested at NSA headquarters entered into evidence an NSA Police "Action Plan" and a series of NSA emails containing minute-by-minute reporting from detectives with the Baltimore Police Department's Criminal Intelligence Unit to NSA Police. The Baltimore police provided rapidly-updated reports on the activities and movements of protesters from the time they departed a Quaker church to their arrival in front of NSA.
According to comments made by NSA spokesman Don Weber to the Baltimore Sun, the agency considered this a laudable example of NSA police "partner[ing] with state, local and federal law enforcement agencies." Additionally, the 11-page, For Official Use Only "National Security Agency Police 4th October 2003 Action Plan" seems a model of federal/state/local cooperation.
Although POGO is strongly opposed to law enforcement agencies infiltrating and/or engaging in surveillance of peaceful political organizations, we note that (per NSA's own comments), the agency has an effective partnership with local law enforcement that reflects post-9/11 notions of information sharing and jointness, and does not seem to require expanded powers for NSA police. Passing legislation that enables the NSA police force to act on its own outside its reserved physical areas would not only be a step backwards, it may also infringe on the State of Maryland's sovereignty and set a dangerous precedent for unilateral police action by a strategic intelligence agency.
We hope that you will take these matters under serious consideration and amend the authorization bill accordingly once it moves to the Floor.
1. As Title 50, Chapter 15, Subchapter I, Section 403o notes, the DCIA may authorize CIA personnel (in this case, the CIA's Special Protective Service) to act with the same police powers as most other federal police officers. But unlike those officers and their functions (as described in Section 1315 of Title 40; and those in Section 203), Section 403o implicitly acknowledges both statutory limitations on CIA involvement in domestic law enforcement, specifically limiting CIA police functions and powers to areas on and, in some cases, immediately around CIA facilities or installations.