C-9. Intelligence operations have specific applications and legal implications when employed in a homeland security operation. The US military has a limited role in collecting foreign intelligence in domestic operations. Executive Orders and DOD Directives allow and require the collection of CI to protect US Government property and human resources. The Services must turn over any information of possible foreign intelligence value that they may have obtained in a CI or domestic operation to the FBI, which has the primary responsibility for domestic intelligence collection within the United States. The Patriot Act of 2001 eases some of the restrictions on foreign intelligence gathering within the United States, and affords the US Intelligence Community greater access to information gathered during criminal investigations.
C-10. Under AR 381-10, Army intelligence activities may collect publicly available information on US persons only when it is necessary to fulfill an assigned function. There must also be a link between the collection of the US person information and the Army intelligence component’s assigned mission and function. Army intelligence components must exhaust the least intrusive collection means before requesting a more intrusive collection means. According to AR 381-10, the least intrusive means of collection is from publicly available sources or with the US person’s consent. Within the US, Army intelligence components may only collect foreign intelligence concerning US persons by overt means except when all of the following conditions are present:
z The foreign intelligence sought is significant and does not concern a US person’s domestic activities.
z The foreign intelligence cannot be reasonably obtained by overt means.
z Collection has been coordinated with the FBI.
z Other than overt means was approved in writing by the Army Deputy Chief of Staff, G2 or the Commander, INSCOM.
C-11. Under AR 380-13, the Army prohibits acquiring, reporting, processing or storing of investigative information on persons or organizations not affiliated with DOD, except under those circumstances authorized in AR 380-13, paragraphs 6 and 7, when such information is essential to accomplish DA missions. Paragraph 6 addresses operations related to protection of army personnel, functions and property. Paragraph 7 describes operations related to civil disturbances. All information-gathering activities are subject to overall civilian control and general supervision by the Secretary or Under Secretary of the Army.
C-12. Investigative information includes all data developed as a result of CI investigative activities, such as investigations, operations, and services, and through liaison with local, state, and federal agencies. It may also come from unsolicited sources, and from public sources such as newspapers, magazines, books, periodicals, handbills, and radio and television broadcasts. Where acquisition activities are authorized by AR 380-13 to meet an essential requirement for information, maximum reliance is placed on liaison with domestic civilian investigative agencies, federal, state, and local. AR 380-13 is not applicable to––
z Pretrial investigations required by the Uniform Code of Military Justice (UCMJ).
z Activities involving cryptography.
z Use by public information officers of relevant information from published sources solely for the purpose of preparing responses to public inquiries.
z Foreign intelligence information including the acquisition reporting, processing, and storing of such information.
C-4 FMI 2-22.9 5 December 2006
FOR OFFICIAL USE ONLY
z Authorized criminal investigation and law enforcement information gathering activities (for example, those activities not “CI related”) which are the responsibility of military police and the US Army Criminal Investigation Command.
C-13. Nothing in AR 380-13 prohibits the prompt reporting to LEAs, or keeping a record of such a report, of any information indicating the existence of a threat to life or property, or violation of law. The regulation does not prohibit the receipt of information from all agencies in the course of liaison authorized by AR 380-13 provided organizations––
z Promptly screen such information.
z Immediately destroy information not authorized for the retention.
C-14. AR 380-13 prohibits the assignment of Army personnel, military or civilian, to attend public or private meetings, demonstrations, or other similar activities held off post to acquire investigative information authorized by the regulation without specific approval by the Secretary or the Under Secretary of the Army. This prohibition includes any attempt to encourage or request the unofficial attendance of any persons at such events, whether or not such personnel have official CI or investigative responsibilities. An exception to the policy is authorized when, in the judgment of the local commander, the threat is direct and immediate and time precludes obtaining prior approval.
Military Support to Civilian Law Enforcement Agencies
C-15. Military support to civilian LEAs includes support to civilian LEAs. This includes but is not limited to combating terrorism, counterdrug operations, national security special events, and national critical infrastructure and key asset protection. Joint Publication 3-26 describes National critical infrastructure and key assets as the infrastructure and assets vital to a nation’s security, governance, public health and safety, economy, and public confidence. They include telecommunications, electrical power systems, gas and oil distribution and storage, water supply systems, banking and finance, transportation, emergency services, industrial assets, information systems, and continuity of government operations.
C-16. Under AR 380-13, information on persons and organizations not affiliated with the DOD may be acquired, reported, processed, and stored only if there is a reasonable basis to believe that one or more of the following situations exists:
z Theft, destruction or sabotage of weapons, ammunition, equipment, facilities, or records belonging to DOD units or installations.
z Possible compromise of classified defense information by unauthorized disclosure or by espionage.
z Subversion of loyalty, discipline or morale of DA military or DAC personnel by actively encouraging violation of laws, disobedience of lawful orders and regulations, or disruption of military activities.
z Demonstrations on Regular Army, Army National Guard, and Army Reserve installations or demonstrations immediately adjacent to them which are of such a size or character that they are likely to interfere with the conduct of military activities.
z Direct threats to DOD military or civilian personnel regarding their official duties or to other persons authorized protection by DOD resources.
z Activities or demonstrations endangering classified defense contract facilities or key defense facilities.
C-17. Effective liaison with local LEAs will occur regularly to determine if actual or potential situations described above exist. Organizations will conduct CI surveys and inspections for the same purpose.
Military Assistance for Civil Disturbances
C-18. Military assistance for civil disturbances are missions of civil support involving DOD support, normally based on the direction of the President, to suppress insurrections, rebellions, and domestic violence, and provide federal supplemental assistance to the states to maintain law and order. In accordance with AR 380-13, Army resources may only acquire, report, process or store civil disturbance information concerning nonaffiliated persons and organizations upon receipt of specific prior authorization from the Secretary or the Under Secretary of the Army. The Secretary or the Under Secretary of the Army will only grant such authorization when there is a distinct threat of a civil disturbance exceeding the law enforcement capability of state and local authorities. The authorization will set forth the procedures and the limitations on the acquisition, reporting, processing and storing of civil disturbance information. C-19. As an exception to the above limitation, AR 380-13 authorizes overt acquisition and current maintenance of the following information:
z Listing of local, state, and Federal officials whose duties include direct responsibilities related to the control of civil disturbances.
z Data on vital public and commercial installations or facilities and private facilities believed to be appropriate targets for individuals or organizations engaged in civil disorders.