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Intelligence Oversight forJFHQ-KS

LTC Charles Harriman(785) 274-1807Charles.r.harriman.mil@mail.mil

KS-J2 Intelligence Oversight Monitors

Maj John Lane(785) 861-3086John.w.lane34.mil@mail.mil

MAJ Nathan Bukowski(785) 861-3072Nathan.r.bukowski.mil@mail.mil

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Agenda

• Purpose• History• References• Procedures• Special Focus Areas• Elements of a Good Program

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• To ensure the legality and propriety of all intelligence and intelligence-related activities

― Special emphasis on the protection of the Constitutional and privacy rights of US persons

Purpose

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History

Executive Order 12333

Provides clear guidelines on how to perform intelligence activities consistent with the legal rights guaranteed to all US persons by the Constitution.

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References

• DoD 5240.01R, Procedures Governing the Activities of DoD Intelligence Components that Affect United States Persons, 7 Dec 82

• EO 12333, AR 20-1/AFI 90-201, AR 1-201, CNGBI 2000.1, CNGBM 2000.01

• Army – Army Regulation 381-10, US Army Intelligence Activities, 3 May 2012

• Air Force– Air Force Instruction 14-104, Oversight of Intelligence Activities,

23 Apr 2012 • Kansas

– KSNG SOP 381-10, Intelligence Oversight, 6 Dec 2009 (Update in work)– Kansas National Guard IO Checklist, 1 Oct 2013– MAC LOI #2, IO

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DoD 5240.1-R Procedures

• PROCEDURE 1 General Provisions • PROCEDURE 2 Collection of Information about U.S Persons • PROCEDURE 3 Retention of Information about U.S. Persons • PROCEDURE 4 Dissemination of Information about U.S.

Persons• PROCEDURE 5 Electronic Surveillance in the United States for Intelligence Purposes • PROCEDURE 6 Concealed Monitoring • PROCEDURE 7 Physical Searches • PROCEDURE 8 Searches and Examination of Mail • PROCEDURE 9 Physical Surveillance • PROCEDURE 10 Undisclosed Participation in Organizations • PROCEDURE 11 Contracting for Goods and Services

• PROCEDURE 12 Provision of Assistance to Law Enforcement Authorities

• PROCEDURE 13 Experimentation on Human Subjects for Intelligence Purposes

• PROCEDURE 14 Employee Conduct • PROCEDURE 15 Identifying, Investigating, and Reporting

Questionable Activities

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Procedure 1

• General Provisions: states the applicability of the regulation and the general principles governing intelligence and intelligence-related activities

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Procedure 1

• IO applies to:• all personnel assigned to DoD Intelligence Components

regardless of MOS/AFSC• Military, civilian, contractors

• all personnel performing an intelligence or intelligence- related function regardless of MOS/AFSC

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Procedure 1

• Intelligence components must:• Not infringe on US persons’ Constitutional rights• Protect privacy rights of US persons• Collect, retain, and disseminate information based on a

lawfully assigned mission and function• Employ the least intrusive lawful techniques• Comply with all regulatory requirements

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A US person is defined as:

- A US citizen born in the United States

- A permanent resident alien in the US

- A US corporation (except those directed or controlled by foreign governments)

- An unincorporated association composed substantially of US citizens or permanent resident aliens

What is a US Person?

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Assumptions:

- A person known to be in the US is presumed to be a US Person

- A foreign national known to be in the US is presumed not to be a US Person

- A person known to be outside of the US, is presumed not to be a US Person

What is a US Person?

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• Title 10 and Title 32

• Intelligence Component: subject to Intelligence

Oversight rules

• Non-intelligence Personnel: subject to DoDD

5200.27, Acquisition of Information Concerning

Persons and Organizations Not Affiliated with the

Department of Defense

• State Active Duty

• All personnel subject to state law, to include

privacy laws

Applicability

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• Participating in special collection activities without President, Secretary of Defense or Secretary of the Army or Air Force approval

• Planning or carrying out assassinations

• Requesting any other parties perform an act which is forbidden to the intelligence component

Forbidden Activities

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Procedure 2

• Collection― Specifies the kinds of information about US persons that may be

collected and sets forth the general criteria governing the means used to collect such information

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Collecting or Receiving?

• Collecting: Information is considered collected when:

• Received for use by an employee of an intelligence component in course of his/her official duties

AND• Affirmative action is taken that shows intent to use or retain that

information

* Informal files will not be kept to bypass this procedure

• Receiving: Intelligence personnel may receive information from anyone, anytime to determine its intelligence value and whether it can be collected, retained or disseminated

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• US Persons Information

• Retain and/or disseminate if you have legal authority to

do so

• If not, redact or purge

• Criminal Intelligence

• Pass to appropriate law enforcement agency

Incidentally Collected Information

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Collection of US Persons Information

• Mission and Authority• Necessity• Approved Category of Information• Least Intrusive Means

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Necessity (NGB-J2)

• Can you disregard the information or substitute the words “U.S. Person” and still complete the mission?

Additional Approval Authority is dependent on the Special Technique employed. It may include (AR 381-10 Ch. 5 thru 11&13): • DCS G-2• MACOM Commander• Commander, 650th MI Group• US Attorney General• Supreme Allied Commander Europe • Army G-2X• Secretary (or Under Secretary) of

the Army• SECDEF or Deputy SECDEF

Special Techniques (AR 381-10 Ch.

5 thru 11&13): • Electronic Surveillance• Concealed Monitoring• Physical Searches• Mail Searches and Examination• Physical Surveillance• Undisclosed Participation in

Organizations• Contracting for Goods and

Services• Experimentation on Human

Subjects for Intelligence Purposes

Continuum of Intrusiveness (AR 381-10,

Ch 2-3.):• Publicly Available or with

Consent• From Cooperating

Sources• Lawful means not

requiring a Warrant or Attorney General approval

• Lawful means requiring a Warrant or Attorney General approval

Authorized Categories (AR 381-10, Ch 2-2.):• Consensual• Publicly Available• Foreign Intelligence• Counterintelligence• Potential sources of

assistance• Protecting intelligence

sources and methods• Physical Security• Personnel Security• Communications

Security• Narcotics• Threats to Safety• Overhead

reconnaissance• Administrative Purposes

U.S. Persons (AR 381-10, Glossary, Section II):• A U.S. citizen• An alien known by the intelligence component to be a permanent resident

alien• A corporation incorporated in the U.S. that is not directed or controlled

by a foreign government• A corporation incorporated abroad is NOT a U.S. person even if partially

or wholly owned by a corporation incorporated in the U.S.

Presumptions (AR 381-10, Ch 1-8.):• A person or organization outside the United States is presumed not to be

a U.S. person, unless the intelligence component obtains specific information to the contrary.

• An alien in the United States is presumed not to be a U.S. person, unless the intelligence component obtains specific information to the contrary.

Mission (AR 381-10, Ch 1-5.d.): There must be a link between the U.S. person information to be collected and the element’s assigned mission and function.

State J2 Missions (JFHQ-State Implementation Guidance (Draft) dated 01 AUG 2011, Ch

2): • Monitoring worldwide threat trends, events, and enemy Tactics, Techniques, and

Procedures (TTPs)• Support to NG troops deployed in support of State Partnership Program (SPP)

missions • Monitor threats to the homeland• Evaluate terrorist TTPs• Identify vulnerabilities to key infrastructure which might be targeted by terrorist groups• Monitor for Indications and Warnings of Chemical, Biological, Radiological, Nuclear,

and High Yield Explosive (CBRNE) weapons• Lead and manage intelligence process during Domestic Support to Civil Authorities

(DSCA) missions

Mission and

Authority?

U.S. Person?

Authorized Category?

Revise

Least Intrusive Means?

Special Collection Techniques?

Additional Approval?

Necessary?

NO

NO

NO

YES

YES

YES YES

YES

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NO

NO

YES

YES

YES NO

GO

GO

NO

Intelligence Oversight Process

START

STOP

STOP

STOP

Blue Text = Most applicable to State J2 Missions

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Authority and Mission

Mission (AR 381-10, Ch 1-5.d.): There must be a link between the U.S. person information to be collected and the element’s assigned mission and function.

State J2 Missions (JFHQ-State Implementation Guidance (Draft) dated 01 AUG 2011, Ch 2): • Monitoring worldwide threat trends, events, and enemy Tactics, Techniques, and Procedures

(TTPs)• Support to NG troops deployed in support of State Partnership Program (SPP) missions • Monitor threats to the homeland• Evaluate terrorist TTPs• Identify vulnerabilities to key infrastructure which might be targeted by terrorist groups• Monitor for Indications and Warnings of Chemical, Biological, Radiological, Nuclear, and

High Yield Explosive (CBRNE) weapons• Lead and manage intelligence process during Domestic Support to Civil Authorities (DSCA)

missions

PLAN

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Is it Necessary?

• Required to complete the National Guard’s mission?

– Does the activity specifically support the CCIRs and PIRs?

– Is it necessary to make a decision or to determine a course of action?

– Can you disregard the information or substitute the words “U.S. Person” and still complete the mission?

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DoD 5240.1-R Authorized Categories

• Collection of Information about US Persons – Information obtained with consent– Publicly available information– Foreign intelligence– Counterintelligence– Potential sources of assistance to intelligence activities– Protection of intelligence sources and methods – Physical security – Personnel security – Communications security – Narcotics – Threats to safety – Overhead reconnaissance – Administrative information

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DoD 5200.27 Authorized Categories

• Protection of DoD Functions and Property• Personnel Security• Operations Related to Civil Disturbance

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Methods of collection should be from the least to the most intrusive means:

• Collect first from publicly available sources or with US person’s consent

• Collect from cooperating sources

• Lawful means which do not require a warrant

• Lawful means which do require a warrantMost intrusiveMeans

Methods of Collection

Least intrusiveMeans

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• Retention

― Governs the kinds of information about US persons that may knowingly be retained by a DoD intelligence component without the consent of the person about whom the information concerns

― The term “retention” refers to data that can be retrieved by reference to the person’s name or other identifying data, such as their social security number.

Procedure 3

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• Information collected IAW Procedure 2 or collected incidentally but could have been collected IAW Procedure 2

• Information necessary to accomplish assigned mission and function

• Temporary retention (up to 90 days) to determine if information is eligible for retention or in order to transmit the information to another agency with primary jurisdiction

What Information May be Retained

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• Information must have controlled access and limited to need-to-know

• Retained files must be reviewed annually; all unnecessary information will be destroyed

• Does NOT apply when information is retained for administrative purposes or is required by law to be maintained

Access and Retention

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• Dissemination

― Governs the kinds of information about US persons that may be disseminated without their consent outside of the DoD intelligence component that collected the information

Procedure 4

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• Must have been lawfully collected under Procedure 2

• Recipient must be reasonably believed to have a need to receive information for a lawful governmental function and be a:

• DoD employee or contractor

• Federal, state or local law enforcement entity

• Agency within the intelligence community

• Agency of the federal government

• Information provided to a foreign government pursuant to an agreement or other understanding

Dissemination of US Persons Information

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• Provision of Assistance to Law Enforcement Authorities― Describes types of permissible assistance to law enforcement

authorities and sets forth procedures for providing this assistance.

• Assistance to Law Enforcement Authorities• For investigating or preventing

• Clandestine intelligence activities by foreign powers• International narcotics activities• International terrorist activities

• Protecting DoD employees, information, property, and facilities• Preventing, detecting, or investigating other violations of law

Procedure 12

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Permissible Types of Assistance

– Incidentally acquired information believed to indicate a violation of federal, state, tribal, or local law

– Personnel or specialized equipment and facilities may be provided to Federal law enforcement authorities

• Lives are endangered

• Consistent with DoDD 5525.5, DoD

Cooperation with Civilian Law Enforcement

Officials

• Approved by NGB/J2 and the NGB/JA– Procedure 12 Memorandum

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• Employee Conduct― Sets forth the responsibilities of employees of DoD intelligence

components to conduct themselves IAW applicable executive orders, laws, regulations/instructions and other applicable policy

• National Guard intelligence components must:

• Conduct intelligence activities IAW all relevant executive orders, regulations, policies and laws

• Be familiar with Procedures 1-4 and Procedures 14-15 of DoD 5240.1-R and any other procedures employed by the intelligence component

• Report questionable intelligence activities and federal crimes

Procedure 14

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IO Training Requirements

• Army Guardsmen subject to AR 381-10:– Initial training within 30 days of assignment/ employment – Refresher training as part of the routine command training

program– Training tailored to unit mission

• Air Guardsmen subject to AFI 14-104– Initial training within 45 days of assignment/arrival to unit– Annual refresher training– Pre-deployment if training will expire during deployment– **Effective 1 Oct 10: standardized Air Force training

• Located on ADLS and AFISRA website

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• Identifying, Investigating, and Reporting Questionable Intelligence Activities and Other Intelligence-related Matters • Provides for the identification, investigation and reporting of

questionable activities

The term “questionable activity” refers to any conduct related to an intelligence activity or personnel that may violate the law, any Executive Order or applicable DoD policy, regulation or instruction

Procedure 15

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Improper collection, retention, or dissemination of US persons information, such as:• Incorporating US persons information into an intelligence product without determining

if identifying the person is appropriate• Collecting US persons information for force protection purposes without determining

if the intelligence function related to it is authorized

Misrepresentation, such as:• Using the status as an intelligence member to gain access for non-mission-related

purposes• Claiming to be conducting a highly classified activity or an investigation, for personal

gain, unauthorized access, or to impress or intimidate others

Questionable intelligence activity constituting a crime, such as:• Stealing a source’s payments• Using intelligence funds for personal gain

Misconduct in the performance of intelligence duties, such as:• Falsifying investigative reports or personnel security investigation interviews

Examples of Questionable Activity

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• You are required to report questionable intelligence activities

• Report questionable activities through your chain of command to unit/staff IG, JA, IO Monitor, Senior Intelligence Officer or to higher levels (NGB, ATSD(IO))

• Whistle blowers are protected from retribution or adverse action

Reporting Questionable Activities

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Special Collection Techniques

• Electronic and communications surveillance (Procedure 5)• Concealed monitoring (Procedure 6)• Physical searches (Procedure 7)• Examination of US mail (Procedure 8)• Physical surveillance (Procedure 9)• Undisclosed participation in an organization (Procedure 10)• Undisclosed contracting for goods and services for intelligence

purposes (Procedure 11)• Any other activity that could be perceived by the general public as

covert surveillance and reconnaissance(NGB policy)

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Necessity (NGB-J2)

• Can you disregard the information or substitute the words “U.S. Person” and still complete the mission?

Additional Approval Authority is dependent on the Special Technique employed. It may include (AR 381-10 Ch. 5 thru 11&13): • DCS G-2• MACOM Commander• Commander, 650th MI Group• US Attorney General• Supreme Allied Commander Europe • Army G-2X• Secretary (or Under Secretary) of

the Army• SECDEF or Deputy SECDEF

Special Techniques (AR 381-10 Ch.

5 thru 11&13): • Electronic Surveillance• Concealed Monitoring• Physical Searches• Mail Searches and Examination• Physical Surveillance• Undisclosed Participation in

Organizations• Contracting for Goods and

Services• Experimentation on Human

Subjects for Intelligence Purposes

Continuum of Intrusiveness (AR 381-10,

Ch 2-3.):• Publicly Available or with

Consent• From Cooperating

Sources• Lawful means not

requiring a Warrant or Attorney General approval

• Lawful means requiring a Warrant or Attorney General approval

Authorized Categories (AR 381-10, Ch 2-2.):• Consensual• Publicly Available• Foreign Intelligence• Counterintelligence• Potential sources of

assistance• Protecting intelligence

sources and methods• Physical Security• Personnel Security• Communications

Security• Narcotics• Threats to Safety• Overhead

reconnaissance• Administrative Purposes

U.S. Persons (AR 381-10, Glossary, Section II):• A U.S. citizen• An alien known by the intelligence component to be a permanent resident

alien• A corporation incorporated in the U.S. that is not directed or controlled

by a foreign government• A corporation incorporated abroad is NOT a U.S. person even if partially

or wholly owned by a corporation incorporated in the U.S.

Presumptions (AR 381-10, Ch 1-8.):• A person or organization outside the United States is presumed not to be

a U.S. person, unless the intelligence component obtains specific information to the contrary.

• An alien in the United States is presumed not to be a U.S. person, unless the intelligence component obtains specific information to the contrary.

Mission (AR 381-10, Ch 1-5.d.): There must be a link between the U.S. person information to be collected and the element’s assigned mission and function.

State J2 Missions (JFHQ-State Implementation Guidance (Draft) dated 01 AUG 2011, Ch

2): • Monitoring worldwide threat trends, events, and enemy Tactics, Techniques, and

Procedures (TTPs)• Support to NG troops deployed in support of State Partnership Program (SPP)

missions • Monitor threats to the homeland• Evaluate terrorist TTPs• Identify vulnerabilities to key infrastructure which might be targeted by terrorist groups• Monitor for Indications and Warnings of Chemical, Biological, Radiological, Nuclear,

and High Yield Explosive (CBRNE) weapons• Lead and manage intelligence process during Domestic Support to Civil Authorities

(DSCA) missions

Mission and

Authority?

U.S. Person?

Authorized Category?

Revise

Least Intrusive Means?

Special Collection Techniques?

Additional Approval?

Necessary?

NO

NO

NO

YES

YES

YES YES

YES

GOSTOP

NO

NO

YES

YES

YES NO

GO

GO

NO

Intelligence Oversight Process

START

STOP

STOP

STOP

Blue Text = Most applicable to State J2 Missions

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Special Focus Areas

• Defense Support to Civil Authorities

• Joint Intelligence Preparation of the Environment

• Incident Awareness and Assessment

• Force Protection

• Counter Drug

• The Internet

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Defense Support to Civil Authorities

• Counterdrug and Civil Support Teams (CST) do not have an intelligence mission

• Law enforcement provides criminal threat support (Procedure 12)

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Joint Intelligence Preparation of the Operational Environment

• Purpose: to assist the commander in gaining situational awareness vs. intelligence

• Limit collection to information needed to accomplish mission• Least intrusive means• Redact unnecessary U.S. persons information

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Incident Awareness and Assessment (IAA)

• Definition: The use of DoD intelligence, surveillance and reconnaissance (ISR) intelligence capabilities for domestic non-intelligence activities approved by the Secretary of Defense.

• Examples: search and rescue (SAR), damage assessment and situational awareness

* Domestic imagery rules always apply to the

collection, retention and dissemination of domestic imagery

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• A law enforcement responsibility

• J2 focus is transnational terrorist and opposing military

force threat

• J2 and J34 must work closely together

• Intelligence and Force Protection must be handled

separately through their respective channels, but can work

together

Force Protection

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Intelligence v. Force Protection

SecurityDOMESTIC THREAT

Military IntelligenceFOREIGN THREAT

Governing Regulation:DoD Directive 5200.27

Governing Regulation:DoD Directive 5200.27

Governing Regulation:DoD Directive 5240.1R

Governing Regulation:DoD Directive 5240.1R

Cross Talk

J34/ATFPJ2/Intelligence

• These functions should work together, but must act independently

• Intelligence components have an obligation to pass threat information to:˗ Organization/commander responsible for protecting threatened

persons, facilities or activities (Provost Marshall/ATFP/J34, etc)˗ Appropriate LE organization

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Force Protection Products

• When the FPA briefs the information, it is an FP assessment briefing – no J2 logos, no presentation as an intelligence briefing, nothing that will give the customer the impression that this is an MI product.

• It is not your MOS that is the determining factor but your duty status.˗ Intelligence personnel can be assigned to the J34 to perform an FP

function

• FP products are NOT intelligence products!

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Counterdrug Mission

• Criminal Analyst Mission– Current mission authorizes NG criminal analysts to assist

local and federal law enforcement agencies in identifying drug dealers and sources of supply, collecting and organizing criminal records, and assisting officers with case management

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Internet

• MI personnel must have an official mission before collecting, retaining, or disseminating even publicly available US persons information posted on the Internet.

• Certain Internet-based activities are restricted by the rules requiring disclosure of an individual's intelligence organization affiliation.

• Also applies to information on SIPRNETand JWICS.

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Characteristics of an Effective IO Program

• Command emphasis   • Designate IO Monitor and Alternate in writing • Conduct initial, refresher and deployment training• Tailor training to the specific mission of your organization• Maintain training records • Maintain copies of pertinent EO, directives and

regulations/instructions• Use a variety of training and awareness tools

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Intelligence Oversight CardRef: EO 12333, DoD 5240.1-R, AFI 14-104, AR 381-10

Military Intelligence personnel SHALL NOT collect (e.g., concealed monitoring, mail/physical searches, electronic/physical surveillance or undisclosed participation), retain, or disseminate information about U.S. persons unless done IAW the procedures contained in DoD Regulation 5240.1-R and only if the information falls into one or more of the following categories:

- Information Obtained with Consent - Personnel Security

- Publicly Available Information - Communication Security

- Foreign Intelligence - Narcotics

- Counterintelligence - Threats to safety

- Potential Sources of Intelligence - Overhead Reconnaissance

- Protection of Intel Sources/Methods - Administrative Purposes

- Physical Security

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Questions?LTC Charles Harriman

(785) 274-1846Charles.harriman@us.army.mil

Maj John Lane(785) 861-3086

John.w.lane34.mil@mail.mil

MAJ Nathan Bukowski(785) 861-3072

Nathan.r.bukowski.mil@mail.mil

NGB-J2 Intel Oversight Monitors