The Department of Homeland Security’s Office of Intelligence and Analysis (I&A) has run a program gathering domestic intelligence for years.
Politico happened upon the program while looking through documents.
The Overt Human Intelligence Collection Program (OHICP) allows officials to ask “just about anyone” in America for an interview, including those “in immigrant detention centers, local jails, and federal prison.”
DHS justified the questioning because officials have to tell people “their participation is voluntary.” The employees must identify as those in the DHS.
The officials can go directly to those in prison without their lawyers. Not good:
Potential interview subjects in these situations face unique legal risks and opportunities when dealing with government officials. And there’s a standard practice for law enforcement officials when they want to talk to someone awaiting trial about topics related to their legal situations: These officials first ask for permission from their lawyers. In fact, legal ethics rules require that lawyers seeking to communicate with people who have lawyers talk to those people’s counsel, rather than the people themselves.Adding another wrinkle to the I&A interviews with jailed people: The instruction document indicates that a law enforcement officer must be present when these interviews take place. It’s unclear what, if anything, keeps those officers from sharing what they overhear with prosecutors or investigators, or using it themselves — especially if interviewees’ lawyers aren’t aware that the conversations are happening and, therefore, can’t warn their clients of potential risks.
The office paused the part with inmates last year due to concerns. Officials insisted they only used the questioning “to gather information about threats to the U.S., including transnational drug trafficking and organized crime.”
No one wants to speak out because they “fear punishment if they speak out about mismanagement and abuses”:
One unnamed employee — quoted in an April 2021 document — said leadership of I&A’s Office of Regional Intelligence “is ‘shady’ and ‘runs like a corrupt government.’” Another document said some employees worried so much about the legality of their activities that they wanted their employer to cover legal liability insurance.Carrie Bachner, formerly the career senior legislative adviser to the DHS under secretary for intelligence, said the fact that the agency is directly questioning Americans as part of a domestic-intelligence program is deeply concerning, given the history of scandals related to past domestic-intelligence programs by the FBI.Bachner, who served as a DHS liaison with Capitol Hill from 2006 to 2010, said she told members of Congress “adamantly” — over and over and over again — that I&A didn’t collect intelligence in the U.S.“I don’t know any counsel in their right mind that would sign off on that, and any member of Congress that would say, ‘That’s OK,’” said Bachner, who currently runs a consulting firm. “If these people are out there interviewing folks that still have constitutional privileges, without their lawyer present, that’s immoral.”
People are scared to say anything is one of the “key” themes in the internal documents. Many employees think DHS is breaking the law.
Politico came across a slide deck called “I&A Management Analysis & Assistance Program Survey Findings for FOD”:
FOD refers to I&A’s Field Operations Division — now called the Office of Regional Intelligence — which is the largest part of the office, with personnel working around the country. Those officials work with state, local and private sector partners; collect intelligence; and analyze intelligence. When the U.S. faces a domestic crisis related to national security or public safety, people in this section are expected to be the first in I&A to know about it and then to relay what they learn to the office’s leadership. Their focuses include domestic terror attacks, cyber attacks, border security issues, and natural disasters, along with a host of other threats and challenges.The survey described in the slide deck was conducted in April 2021. A person familiar with the survey said it asked respondents about events of 2020. Its findings were based on 126 responses. Half of the respondents said they’d alerted managers of their concerns that their work involved activity that was inappropriate or illegal. The slide deck seems to try to put a positive spin on this.“There is an opportunity to work with employees to address concerns they have about the appropriateness or lawfulness of a work activity,” it reads.“Half of the respondents have voiced to management a concern about this, many of whom feel their concern was not appropriately addressed.”
Title 50, which explains national security laws, governs DHS. That means the agency has to follow “strict rules related to intelligence activity in the U.S. or targeting U.S. citizens.” Some employees claimed “they get asked to take steps that are inappropriate for a Title 50 agency:
On Nov. 12, 2020, barely a week after Election Day, Robin Taylor, then the director of I&A’s Field Operations Division, emailed to multiple officials a summary of 12 listening sessions that an internal employee watchdog had held with division employees.Taylor’s email included a few lines referencing employees’ concerns about the scope and appropriateness of their work.“Many taskings seem to be law enforcement matters and not for an intelligence organization,” read one portion, referring to assignments. “How is any of this related to our Title 50 authorities? Even if we are technically allowed to do this, should we? What was the intent of Congress when they created us? ‘Departmental Support’ seems like a loophole that we exploit to conduct questionable activities.”Later in that document came a line that was even more bleak: “Showing where we provide value is very challenging.”
The program is still causing problems in the Biden administration.
Employees vent about the program on the Ombudsman, a sounding board for employee concerns. An employee in an October 2021 session said, “I&A and FOD leadership don’t seem to understand how Title 50 applies to FOD, which causes conflicts.”
Others hate that individuals seem to have to determine “their legal boundaries” and the “negative consequences” fall on them.
CLICK HERE FOR FULL VERSION OF THIS STORY