Constitutional & Legal Issues

Intelligence and the Military

Aftergood, Steven. "'Drastic' Changes Seen in Domestic Military Operations." Secrecy News (from the FAS Project on Government Secrecy), 2004, no. 26 (9 Mar. 2004).

"The 2004 Operational Law Handbook published by the U.S. Army JAG [Judge Advocate General] Corps provides a comprehensive map of the terrain of military law, from the legal basis for the use of force to domestic operations to the laws governing intelligence and special operations. A copy is posted [at] (562 pages, 4.6 MB PDF file): http://www.fas.org/irp/doddir/army/law2004.pdf."

Beck, Neil J. "Espionage and the Law of War." American Intelligence Journal 29, no. 1 (2011): 126-136.

"This article suggests that jurists should reconsider how the law of war treats espionage. After tracing the development of IHL's [international humanitarian law] treatment of war spies, it will argue that the principal justifications for denying prisoner-of-war status to them are unfounded, and that the current rules and norms undermine broader goals of IHL."

Block, Robert, and Gary Fields. "Is Military Creeping into Domestic Spying and Enforcement?" Wall Street Journal, 9 Mar. 2004, B1. [http://online.wsj.com]

The article reports instances of "an expanding military role in domestic affairs."

Cloud, David S. "Pentagon Is Said to Mishandle a Counterterrorism Database." New York Times, 16 Dec. 2005. [http://www.nytimes.com]

Pentagon officials said on 15 December 2005 that "analysts appear not to have followed guidelines that require deleting information on American citizens and groups from a counterterrorism database within three months if they pose no security threats." Therefore, "dozens of alerts on antiwar meetings and peaceful protests appear to have remained in the database." The Defense Department database is "known as the Threat and Local Observation Notice reporting system, or Talon."

Erwin, Marshall Curtis. Covert Action: Legislative Background and Possible Policy Questions. Washington, DC: Congressional Research Service, Library of Congress, 10 Apr. 2013. Available at: http://www.fas.org/sgp/crs/intel/RL33715.pdf.

"Senior U.S. intelligence community officials have conceded that the line separating Central Intelligence Agency (CIA) and DOD intelligence activities has blurred, making it more difficult to distinguish between the traditional secret intelligence missions carried out by each."

Ferrell, William H., III [MAJ/USMC]. "No Shirt, No Shoes, No Status: Uniforms, Distinction, and Special Operations in International Armed Conflict." Military Law Review 178 (2003): 94-140.

The law of war (LOW) "delineates criteria that combatants must meet to gain prisoner of war (POW) status, and it obligates combatants to distinguish themselves from civilians. Further, the LOW limits the conduct that combatants can engage in while dressed in civilian clothing, violations of which may result in a loss of POW status as well as disciplinary action against the combatants and their superiors." [footnotes omitted]

Graham, Bradley. "Military Expands Homeland Efforts: Pentagon to Share Data with Civilian Agencies." Washington Post, 6 Jul. 2005, A1. [http://www.washingtonpost.com]

"A new Pentagon strategy for securing the U.S. homeland calls for expanded U.S. military activity not only in the air and sea ... but also on the ground and in other less traditional, potentially more problematic areas such as intelligence sharing with civilian law enforcement.... In the area of intelligence, the strategy speaks of developing 'a cadre' of Pentagon terrorism specialists and of deploying 'a number of them' to 'interagency centers' for homeland defense and counterterrorism."

Myers, Lisa, Douglas Pasternak, and Rich Gardella. "Is the Pentagon Spying on Americans? Secret Database Obtained by NBC News Tracks 'Suspicious' Domestic Groups." MSNBC.com, 14 Dec. 2005. [http://www.msnbc.msn.com/id/10454316/]

"A secret 400-page Defense Department document ... lists ... more than 1,500 'suspicious incidents' across the country over a recent 10-month period." The document shows "how the U.S. military has stepped up intelligence collection inside this country since 9/11, which now includes the monitoring of peaceful anti-war and counter-military recruitment groups." Even incidents that "were discounted because they had no connection to the Department of Defense ... remained in the database.... The database obtained by NBC News is generated by Counterintelligence Field Activity" (CIFA).

Pincus, Walter. "Pentagon's Intelligence Authority Widens: Fact Sheet Details Secretive Agency's Growth From Focus on Policy to Counterterrorism." Washington Post, 19 Dec. 2005, A10. [http://www.washingtonpost.com]

According to a fact sheet obtained by the Washington Post, the Counterintelligence Field Activity (CIFA), "charged with protecting military facilities and personnel wherever they are, is carrying out intelligence collection, analysis and operations within the United States and abroad.... CIFA's authority is still growing." Earlier this month, DoD "gave CIFA authority to task domestic investigations and operations by the counterintelligence units of the military services."

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