US military expanding its domestic intelligence role

The Pentagon has been using a little-known power to obtain banking and credit records of hundreds of US citizens and others suspected of terrorism or espionage inside the United States, part of an aggressive expansion by the military into domestic intelligence gathering. The Central Intelligence Agency (CIA) has also been issuing what are known as national security letters to gain access to financial records from US companies, though it has done so only rarely, intelligence officials say. Banks, credit card companies and other financial institutions receiving the letters usually have turned over documents voluntarily, allowing investigators to examine the financial assets and transactions of US military personnel and civilians, officials say. The Federal Bureau of Investigation (FBI), the lead agency on domestic counterterrorism and espionage, has issued thousands of national security letters since the attacks of Sept. 11, 2001, provoking criticism and court challenges from civil liberties advocates who see them as unjustified intrusions into US citizens' private lives. But it was not previously known, even to some senior counterterrorism officials, that the Pentagon and the CIA have been using their own "noncompulsory" versions of the letters. Congress has rejected several requests by the two agencies since 2001 for authority to issue mandatory letters, in part because of concerns about the dangers of expanding their role in domestic spying. The military and the CIA have long been restricted in their domestic intelligence operations, and both are barred from conducting traditional domestic law enforcement work. The CIA's role within the United States has been largely limited to recruiting people to spy on foreign countries. Government lawyers say the legal authority for the Pentagon and the CIA to use national security letters in gathering domestic records dates back nearly three decades and, by their reading, was strengthened by the antiterrorism law known as the USA PATRIOT Act. Military intelligence officers have sent letters in up to 500 investigations over the last five years, two officials estimated. The number of letters is likely to be well into the thousands, the officials said, because a single case often generates letters to multiple financial institutions. Usually, the financial documents collected through the letters do not establish any links to espionage or terrorism and have seldom led to criminal charges, military officials say. Instead, the letters often help eliminate suspects. Some national security experts and civil liberties advocates are troubled by the CIA and military taking on domestic intelligence activities, particularly in light of recent disclosures that the Counterintelligence Field Activity (CIFA) office had maintained files on Iraq War protesters in the United States in violation of the military's own guidelines. Some experts say the Pentagon has adopted an overly expansive view of its domestic role under the guise of "force protection," or efforts to guard military installations. "There's a strong tradition of not using our military for domestic law enforcement," said Elizabeth Rindskopf Parker, a former general counsel at both the National Security Agency and the CIA who is the dean at the McGeorge School of Law at the University of the Pacific. "They're moving into territory where historically they have not been authorized or presumed to be operating." Similarly, John Radsan, an assistant general counsel at the CIA from 2002 to 2004 and now a law professor at William Mitchell College of Law in St. Paul, said, "The CIA is not supposed to have any law enforcement powers, or internal security functions, so if they've been issuing their own national security letters, they better be able to explain how they don't cross the line." The Pentagon's expanded intelligence-gathering role, in particular, has created occasional conflicts with other federal agencies. Pentagon efforts to post US military officers at embassies overseas to gather intelligence for counterterrorism operations or future war plans has rankled some State Department and CIA officials, who see the military teams as duplicating and potentially interfering with the intelligence agency. In the United States, the FBI has complained about military officials dealing directly with local police–rather than through the Bureau–for assistance in responding to possible terrorist threats against a military base. FBI officials say the threats have often turned out to be uncorroborated and, at times, have stirred needless anxiety. The military's frequent use of national security letters has sometimes caused concerns from the businesses receiving them, a counterterrorism official said. Lawyers at financial institutions, which routinely provide records to the FBI in law enforcement investigations, have contacted Bureau officials to say they were confused by the scope of the military's requests and whether they were obligated to turn the records over, the official said. Lawmakers have resisted giving the Defense Department the right to force financial companies to reveal information about clients. But the Pentagon has the authority to request information under the Right to Financial Privacy Act, the Fair Credit Reporting Act and the National Security Act, said Army Lt. Col. Brian Maka, a Pentagon spokesman. Pentagon Spokesman BryanWhitman said the authority also was derived from the USA PATRIOT Act. Maka said the ability to request transaction information was "invaluable" to the Defense Department "in conducting counterintelligence and counterterrorism investigations." After the Sept. 11 attacks, Donald Rumsfeld directed military lawyers and intelligence officials to examine their legal authorities to collect intelligence both inside the United States and abroad. They concluded that the Pentagon had "way more" legal tools than it had been using, a senior Defense Department official said. The military had used the letters sporadically for years, officials say, but the pace accelerated in late 2001, when lawyers and intelligence officials concluded that the USA PATRIOT Act strengthened their ability to use the letters to seek financial records on a voluntary basis and to issue mandatory letters to obtain credit ratings, the officials said. ''The Department of Defense has legitimate authority in this area. This is an authority that goes back three or four decades. It was reaffirmed in the PATRIOT Act,'' Vice President Dick Cheney said. "It's perfectly legitimate activity. There's nothing wrong with it or illegal. It doesn't violate people's civil rights.'' However, the USA PATRIOT Act does not specifically mention military intelligence or CIA officials in connection with the national security letters. Some FBI officials said they were surprised by the Pentagon's interpretation of the law when military officials first informed them of it. "It was a very broad reading of the law," a former counterterrorism official said. Rep. Sylvester Reyes (D-TX) has formed a panel that will evaluate legality of the Defense Department's domestic intelligence-gathering activities. "Any expansion by the department into intelligence collection, particularly on US soil, is something our committee will thoroughly review,'' Reyes said. While the letters typically have been used to trace the financial transactions of military personnel, they also have been used to investigate civilian contractors and people with no military ties who may pose a threat to the military, officials said. Military officials say they regard the letters as one of the least intrusive means to gather evidence. When a full investigation is opened, one official said, it has now become "standard practice" to issue such letters. One prominent case in which letters were used to obtain financial records, according to two military officials, was that of a Muslim chaplain at Guantánamo Bay, Cuba, who was suspected in 2003 of aiding terror suspects imprisoned at the facility. The espionage case against the chaplain, James J. Yee, soon collapsed. Eugene Fidell, a defense lawyer for the former chaplain and a military law expert, said he was unaware that military investigators may have used national security letters to obtain financial information about Yee, nor was he aware that the military had ever claimed the authority to issue the letters. Fidell said he found the practice "disturbing," in part because the military does not have the same checks and balances when it comes to US citizens' civil rights as does the FBI. "Where is the accountability?" he asked. "That's the evil of it–it doesn't leave fingerprints." Even when a case is closed, military officials said they generally maintain the records for years because they may be relevant to future intelligence inquiries. Officials at the Pentagon's counterintelligence unit say they plan to incorporate those records into a database, called Portico, on intelligence leads. The financial documents will not be widely disseminated but limited to investigators, an intelligence official said. The CIFA office, created in 2002 to better coordinate the military's efforts to combat foreign intelligence services, has drawn criticism for some domestic intelligence activities. CIFA is charged with coordinating policy and overseeing the domestic counterintelligence activities of Pentagon agencies and the armed forces. In written responses to questions from the Senate Armed Services Committee during his confirmation hearing last month, Defense Secretary Robert Gates, pledged to look "in greater detail" at CIFA's activities. The agency was criticized in December 2005 after it was revealed that a database managed by CIFA, called TALON, contained unverified, raw threat information about people who were peacefully protesting the Iraq War at defense facilities, including recruiting offices.