Administration Begins to Rewrite Decades-Old Spying Restrictions

by David Johnston, New York Times, 30 November 2002

 

This article was reported by David Johnston, James Risen, Neil A. Lewis and written by Mr. Johnston.

WASHINGTON, Nov. 29 -- The Bush administration, in its fight against terrorism, is slowly chipping away at the wall that has existed for nearly three decades between domestic law enforcement and international intelligence gathering in an effort that senior officials said was vital to waging war against Al Qaeda and other terror networks.

The barrier between domestic and overseas intelligence gathering was erected when the Central Intelligence Agency was created in 1947. It was significantly hardened in the 1970's in response to Congressional investigations that produced revelations of widespread abuses by the Federal Bureau of Investigation and the intelligence agency.

But since the attacks on New York and the Pentagon, the Bush administration has waged a different kind of war, mostly under the existing rules. Now, senior government officials have concluded that the changes made so far have not addressed the fundamental flaws of the old rules, leaving the United State still vulnerable to terrorists.

The changes are coming about in part because of Congressional criticism of the performances of the F.B.I. and C.I.A. before the terrorist attacks on New York and Washington. The two agencies will also be under the scrutiny of an independent commission created this week to examine their activities before the attacks.

The administration and Congress had already been reviewing ideas to overhaul intelligence and law enforcement that have been considered untouchable for a generation.

One is the creation of a domestic espionage agency; another is the use of the military in United States law enforcement. There is no agreement yet on new structures or whether the basic mandates and core operations of the central agencies will be changed.

The biggest change to date came on Monday when President Bush signed a law creating a Department of Homeland Security with its own intelligence unit. The unit is designed to start operations as a small, analytical office, but it has the potential to grow in significance, especially if the Homeland Security Department evolves into a powerful agency.

Another sign of change came earlier this month, when a federal appeals court issued a ruling that erased restrictions on the Justice Department's authority to spy on terrorism suspects in the United States.

More quietly, officials say the administration is in the midst of revising broad intelligence priorities laid out in a directive issued by President Bill Clinton, a document known as PDD 35. That process could eventually bring more changes.

For now, proposals to create a new domestic intelligence agency are on the back burner, senior government officials say. And Pentagon officials emphasize that they are not yet ready to abandon the longstanding legal doctrine barring the military's involvement in law enforcement activities in the United States.

But less radical changes that have already been made or are now under consideration by the administration, Congress and the judiciary seem very likely to blur the once bright lines separating intelligence gathering, law enforcement and the military.

"The old structure worked pretty well through the cold war," one senior government official said. "But with 9/11 there was a sense that this is a new game and there is a new threat and there must be a new approach."

Although there is broad agreement that change is inevitable, the possibility that the new rules could erode civil liberties has already prompted critics to complain that some suggestions, like a domestic security agency with sweeping powers to spy on people in the United States, could bring about the same abuses that the old rules were devised to eliminate.

The old restrictions placed the F.B.I. in charge of domestic intelligence and barred other agencies -- including the C.I.A. and the National Security Agency, which eavesdrops on communications overseas -- from operating in the United States. The F.B.I.'s powers were restricted. It could not spy on political or religious groups without evidence that the group was involved in a crime. It could not monitor terror or espionage suspects without a warrant from a special court based on evidence that "primary purpose" of the surveillance was intelligence gathering, not criminal investigation.

The C.I.A. was authorized to operate only overseas under rules that were not as strict as the F.B.I. limits, but that still curtailed the agency's involvement in covert operations and banned outright the assassination of foreign leaders.

Tom Ridge, named by President Bush this week as the secretary of homeland security, has been outspoken in opposing an additional domestic intelligence agency. Mr. Ridge argued that the task should remain at the F.B.I. Like other administration officials, he contends constitutional barriers would prevent the creation of an American equivalent to Britain's domestic spy agency, known as MI5.

"I don't think you're going to see a similar organization developed in this country," Mr. Ridge said recently.

What administration officials have left unsaid is that Mr. Ridge's own new department could eventually take on a major new role in domestic intelligence. The law creating the department establishes an "intelligence sharing and infrastructure protection" division that will be responsible for gathering and acting on information from other agencies about terrorist threats on United States soil.

The idea, White House officials have said, is to create an agency that will function as a clearinghouse for all intelligence information on domestic terrorist threats. Administration officials have said the new intelligence unit will apparently be directed by John Gannon, a career professional from the C.I.A. who has worked for Mr. Ridge on intelligence matters at the White House.

The administration has insisted that homeland security will be primarily a "consumer" of information from the F.B.I., the C.I.A. and the National Security Agency. But several agencies that collect intelligence on their own -- the Secret Service, the Customs Service, the Border Patrol and the Coast Guard -- are all being thrown together inside the Department of Homeland Security. While there is no plan to do so now, those agencies could someday form the basis for a large homeland security intelligence collection unit.

The expanded role of the military in domestic security has reopened an old debate about the proper role of the armed forces. President Bush has ordered lawyers in the Defense and Justice Departments to review the Posse Comitatus Act, an 1878 law enacted in Reconstruction to discourage the military from involvement in domestic law enforcement operations.

The review follows the decision last year not to assign regular military personnel to the job of providing airport security after the Sept. 11 attacks because administration lawyers believed it would violate the Posse Comitatus Act. Instead, the soldiers stationed at airports came from national guard units called up by governors who had been asked to do so by President Bush.

Paul Schott Stevens, a legal adviser to the National Security Council in the Reagan administration, said that there has been an evolution in thinking about the law, and that most authorities now accept that it does not restrict the military as much as once believed.

"I think people are realizing that there are certain unique capabilities the armed forces have that others do not," Mr. Stevens said.

The creation of a new military command to defend the American homeland has made the debate over the posse comitatus law more urgent. The United States Northern Command, based in Colorado Springs, is in charge of the armed services' still evolving role in homeland security, and will serve as a response agency to terrorist attacks by using its resources in cleaning up after a chemical or biological attack.

Gen. Ralph E. Eberhart, now in charge of the Northern Command, said in an interview earlier this year that he would welcome a review of existing restrictions in order to protect the nation against terrorists.

The way in which the Pentagon and the C.I.A. will coordinate with the new Homeland Security Department and other agencies dealing with domestic intelligence is still being worked out. Both the Pentagon and the C.I.A. have created new senior management positions to coordinate their relationships with Homeland Security as well as state and local law enforcement agencies.

But civil liberties advocates worry about broad new intelligence-gathering initiatives. They say their voices have been largely drowned out by the Bush administration, and by the administration's repeated warnings that without new intelligence powers and surveillance authority, the country will remain vulnerable to terrorist attacks.

"It's truly astonishing," said Ralph G. Neas, president of People for the American Way. "It seems that we're forgetting everything we learned in the 1970's."

Mr. Neas noted that the new Homeland Security Department had been exempted, at the administration's insistence, from much of the oversight required for other government agencies.

"There is a significant threat that this new department will abuse civil rights and infringe on civil liberties," Mr. Neas said.

Before Sept. 11, the American military had devoted little time or resources to thinking about how to fight a war with special forces in Afghanistan. The C.I.A. had never fired missiles at terrorists from a pilotless Predator. And the White House had not considered setting up what amounts to terrorist internment camps overseas. Osama bin Laden and Al Qaeda were top concerns, but oddly, gathering intelligence on Afghanistan was not.

Officials say the list of intelligence priorities spelled out in PDD 35, the Clinton-era directive, had not been kept updated, and so once obscure issues like Afghanistan had received little attention.

The administration is now trying to develop a way to keep the presidential list of intelligence collection priorities current, with more input from senior policy makers, so that intelligence agencies move more rapidly to focus on newly emerging threats.

One leading proponent for a broad restructuring of intelligence gathering is Defense Secretary Donald H. Rumsfeld, who expressed frustration last year that the military had to let the C.I.A. take the lead in the early days in Afghanistan.

In a move widely viewed as an effort by Mr. Rumsfeld to consolidate his control over the military's vast and unwieldy intelligence bureaucracy, he has just won Congressional approval to establish a new position, the under secretary of defense for intelligence.

Inside the Pentagon, Mr. Rumsfeld has also been prodding Special Operations units to become more aggressive players in the global war on terrorism, and to work more closely with the C.I.A. in covert operations in countries where the United States is not at open war and, in some cases, where the local government is not informed of their presence.

But as Mr. Rumsfeld and his aides try to move more aggressively against the war on terrorism, at least two of their intelligence initiatives have provoked public criticism.

Within the operations of the under secretary of defense for policy, a small group of intelligence experts searched for information on Iraq's hostile intentions or links to terrorists that the nation's spy agencies may have overlooked.

The team's efforts, some officials said, reflected frustration on the part of several senior Defense Department policy makers that they were not receiving undiluted information on the capacities of President Saddam Hussein of Iraq and his suspected ties to terrorist organizations.

Another Pentagon agency, the Defense Advanced Research Projects Agency, is creating a vast computer database, a program known as Total Information Awareness, to spy on terror suspects. The program has drawn controversy, in part because its manager is John M. Poindexter, the former national security adviser, whose felony conviction in the Iran-contra affair was overturned by a federal appeals court.

Copyright © 2002 New York Times
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