02:00 AM Jun. 19, 2004 PT
A Pentagon effort to persuade Congress to allow military intelligence agents to work undercover in the United States met with resistance in the House Wednesday when the provision was left out of the highly secretive intelligence funding bill.
However, the Senate's version of the Intelligence Authorization Act of 2005 still includes the provision, which exempts Department of Defense intelligence agents from a portion of the Privacy Act, a 30-year-old law that outlaws secret databases on American citizens and green-card holders.
The bill would allow Pentagon intelligence agents to work undercover and question American citizens and legal residents without having to reveal that they are government agents.
That exemption currently applies only to law enforcement officials working on criminal cases and to the CIA, which is prohibited from operating in the United States.
Pentagon officials say the exemption would not affect civil liberties and is needed so that its agents can obtain information from sources who may be afraid of government agents, such as a green-card-holding professor of nanotechnology who formerly lived under a repressive government.
The military has increased its focus on antiterrorism programs within the United States, most notably by reorganizing its command structure in 2002 by creating the Northern Command in Colorado Springs, Colorado. The command is tasked with preventing and defeating threats and aggression aimed at the United States and helping civil authorities in the event of an emergency.
Such investigations should be conducted by the FBI, and the Department of Defense should not be engaged in widespread intelligence gathering in the United States, say civil liberties advocates, such as the American Civil Liberties Union's legislative counsel Timothy Edgar.
"This would allow military intelligence officers to undertake what amounts to undercover spying on Americans," Edgar said. "This clearly should be in the purview of the FBI and state and local law enforcement."
David Sobel, the Electronic Privacy Information Center's general counsel, said that while the Defense Intelligence Agency does have responsibility for providing intelligence about attacks on domestic military bases, the agency should not be engaged in covert domestic spying.
"Why can the DIA work undercover (in the United States) if the CIA can't?" Sobel asked. "This is about the DIA playing an undercover intelligence role in the U.S."
The DIA disputes it wants to collect information on Americans, saying the information exemption is intended simply to help its agents cultivate sources.
Edgar, however, pointed to a recent controversy at the University of Texas as an example of how the current rules keep intelligence-gathering operations aboveboard.
In February, Army intelligence agents improperly sought information about attendees at a University of Texas law school conference about Muslim women. Conference organizers refused to provide a videotape of the event to the officers and publicized the request, leading to an apology by the Army.
The Pentagon's push for an exemption from the Privacy Act comes even as questions remain about the Army's compliance with the Privacy Act in its homeland security efforts.
In September 2003, Wired News reported that Torch Concepts, an Army contractor ostensibly working on a base security project, was secretly given JetBlue's entire passenger database in 2002 for a study of passenger profiling. There is no record that the Army published a Privacy Act notice about the data-mining effort, which sorted individuals' social security numbers, family size and income to find potential terrorists.
The Department of Homeland Security's chief privacy officer, Nuala O'Connor Kelly, admonished Transportation Security Administration employees in February for facilitating the transfers of personal information and breaking the spirit of the Privacy Act. The Army has yet to release the inspector general's finished report, nine months after the revelation of the data transfer.
The Senate bill is now before the Armed Services Committee, which must finish its deliberations by early July before sending the bill to the full Senate floor for a vote. The bill is one of 13 remaining appropriations bills that must be passed by Congress by the end of the current session.
If the provision remains in the Senate version and is not added to the House version before a vote, its fate will be decided in a closed-door House-Senate conference.