This week, the Electronic Frontier Foundation has obtained a series of government documents that demonstrate efforts by the Department of Homeland Security Office of Intelligence and Analysis over the past three years to draw up “terrorist watch list” reports on American political and religious groups based on their law-abiding, constitutionally protected exercise of public assembly and speech.
This may be news to us, but it’s not news to the Senate. The nominee to head the DHS Office of Intelligence and Analysis, Caryn A. Wagner, was asked by Senator Ron Wyden to respond to these incidents in her confirmation hearing on December 1 before the Senate Intelligence Committee. A transcription of their exchange:
Senator Ron Wyden: Let me start by reading you a brief excerpt from a report that the committee approved unanimously earlier this year. And I quote here:
“The committee has raised a number of concerns with reports issued by the Department of Homeland Security Office of Intelligence and Analysis that inappropriately analyzed the legitimate activities of U.S. persons. These reports raised fundamental questions about the mission of the Office of Intelligence and Analysis and often used certain questionable open-source information as a basis of their conclusions.”
Now, the committee is not talking here about one instance. They are talking about a pattern, and this report was approved unanimously by the entire committee. So, my first question is, if you’re approved, what specific steps would you take to make sure that the office stops this inappropriate analysis of the legitimate activities of law abiding Americans?
Caryn A. Wagner: Well, Senator Wyden, I, I am aware of some of the troubling products that have been released from I&A in the past, and if I’m confirmed I intend to attack that several different ways. There are a couple of issues that, that are reflected in these product. One is basically poor trade craft, lack of analytical rigor. The other is the problem with the failure to take into proper account privacy, civil rights, civil liberties and 1st Amendment protected speech. And the problem with the definitions in one particular product was it did not draw a sufficient distinction between beliefs and actions.
So I would, uh, put in place a very strict tradecraft training program to include mentoring for the analysts. I would also ensure that there is training for everyone on the guidelines that we are to follow that flow from EO-12333 and have been coordinated with the Justice Department to make sure that all of those concerns vis-a-vis privacy, civil rights and civil liberties are built into the products early on. And, finally, as a sort of insurance measure, I will make sure that there is in place a very thorough vetting process for review before those products are actually released.
Wyden: Do you believe that it is ever appropriate for your office to analyze the legitimate activities of law-abiding Americans?
Wagner: No, Senator, I do not.
Wyden: OK.
The report to which Senator Wyden refers, Senate Report 111-55, appears to have radar of the professional news media and the blogosphere, along with the exchange between Wyden and Wagner itself. The report’s complete mention of the issue (page 66) is not much more exhaustive than Wyden’s excerpt of it:
Department of Homeland Security—Analysis
The Committee has raised a number of concerns with reports issued by the Department of Homeland Security OIA that inappropriately analyze the legitimate activities of U.S. persons. These reports raised fundamental questions about the mission of the OIA and often used certain questionable open source information as a basis of their conclusions. The Committee recommends that the next Under Secretary for Intelligence and Analysis conduct a comprehensive review of the quality and relevance of the intelligence products produced by the OIA, and provide this review to the congressional intelligence committees within 180 days of enactment.
If she is confirmed later this month, Caryn Wagner stands to be that “next Under Secretary for Intelligence and Analysis.” And here’s one of the two specific commitments we should look for from Under Secretary Wagner in 2010: by June of 2010, the Senate Intelligence Committee should receive a comprehensive report on DHS’s surveillance of American political and religious groups. At that time, the American public should start asking for a copy.
The other commitment is made by Wagner herself: with her declaration that it is not “ever appropriate for [the Intelligence and Analysis] office to analyze the legitimate activities of law-abiding Americans,” we ought to never see this sort of behavior from that unit again.
