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Does U.S. Intelligence Collection Infringe on Our Civil Liberties?

Updated on January 1, 2015
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Introduction

Since the conception of U.S. intelligence activities and collection, the U.S. government has continued to refine and adopt new policies and regulations for the intelligence community to follow, not only to fully exploit U.S. intelligence capabilities, but also to set parameters to keep the intelligence community from infringing on the rights of Americans (Department of Defense 1982, 13).

Intelligence Community (IC) Hierarchy

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U.S. Policy On Intelligence

According to Executive Order 12333 (1982), the intelligence community is required to keep the President, National Security Council, and the Homeland Security Council abreast of key information in order for the aforementioned parties to make informed decisions “concerning the development and conduct of foreign, defense, and economic policies, and the protection of the United States national interests from foreign security threats” (Executive Order 12333, 1). This order specifies that the U.S. intelligence community is obligated to collect information on all intelligence requirements mandated by the President and will work to prevent and defeat foreign espionage, threats arising from terrorism and the spread of weapons of mass destruction (Executive Order 12333).

The U.S. Intelligence Community is required to follow all federal laws, regulations, executive orders and policies that govern intelligence collection and must adhere to the functional roles and responsibilities that are delineated to each organization and agency. All DoD intelligence personnel must follow all applicable laws and regulations to ensure the protection of freedom and civil liberties pertaining to U.S. persons (Executive Order 1233).

Collecting on U.S. Persons

Executive Order 12333 mandates that DOD intelligence can only collect on U.S. persons “if it necessary to the conduct of a function assigned” by the collecting asset and if the information directly falls within one or more of these categories:

“information obtained with consent, publicly available information, foreign intelligence, counterintelligence, potential sources of assistance to intelligence activities, protection of intelligence sources and methods, physical security, personnel security, communications security, narcotics, threats to safety, overhead reconnaissance, and administrative purposes” (Executive Order 1233, 1982).

Furthermore, the DOD intelligence apparatus must follow the “least intrusive means” necessary when collecting on U.S. persons (Executive Order 1233, 1982). Another law that was passed was the Federal Intelligence Surveillance Act of 1987, which was originally enacted to allow the intelligence community to conduct “electronic surveillance and physical searches carried out for foreign intelligence purposes within the United States” (Champion 2005, 1672) Since 9/11, there has been continued debate regarding the nature and extent of the U.S. intelligence community’s collection activities and their ability to balance meeting the IC’s intelligence requirements and the civil liberties of the American people. The perceived intelligence failure of 9/11 reinvigorated these intelligence policies such as the FISA and the Patriot Act to give the intelligence community more freedom to collect and adapt to the emerging terrorist threat. FISA and the passage of the Patriot Act have continued to expand to meet the needs of the intelligence community and now have allowed the intelligence community and law enforcement to share information for use in criminal proceedings (Champion, 2005).

FISA & Public Concern

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Infringing? Or Trying to Catch Terrorists?

The U.S. government has continually changed federal laws and policies regarding intelligence collection with the sole purpose of preventing another severe intelligence failure similar to 9/11. Civil libertarians have argued that these changing policies regarding enhanced electronic collection and increased search and seizures within the U.S. and against U.S. persons is a violation of our 4th amendment rights. The U.S. government may be flirting with the legal boundaries that pertain to intelligence collection and the protection of the 4th amendment; however, to defeat the terrorist threat within the United States and protect itself against a future 9/11 type of attack, the U.S. government has to alter policies to meet the challenges and security threats of the 21st century.

Yoo (2007) asserts that Al Qaeda operatives wear civilian attire and blend in with the local population and continue to use communication channels that are available to U.S. citizens, which requires revamping some of the federal laws in order to track these operatives down (Yoo, 2007). He asserts that the FISA act has been expanded, but still needs continuous refinement in order for it to counter the terrorist threat. He claims that there are three reasons FISA does not support the emerging challenges of the post 9/11 era. In order to catch a terrorist under FISA, the intelligence agency or other collection organization must know the name of the individual and the crime they committed (Yoo, 2007). Unfortunately, this does not always happen and if this individual terrorist already committed the act, then the intelligence community would not be able to prevent it from taking place (Yoo, 2007). FISA also does not let the intelligence community intercept communication that is coming from an outside country and into the U.S., especially if the name of the person is unknown. Thirdly, updating the FISA act requires “public debate and discussion” amongst the U.S. government and Al Qaeda monitors our media outlets and changes to U.S. law regarding collection, making it possible that we lose the advantage and Al Qaeda shifts their base of operations or their communication channels (Yoo, 2007).

Do you think the intelligence collection infringes on our civil liberties?

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Finding The Balance

In the fight against terrorism, there are known limitations put on intelligence collection and the criminal justice system that continue to hinder successful collection operations and apprehension of potential terrorists within the United States. The laws on intelligence collection established prior to 9/11 fit the security environment of that time frame. The post 9/11 environment has been earmarked with wars in Iraq and Afghanistan and international and domestic terrorism that require an updated shift in policy to meet the challenges of this security environment. The same rules that applied during the Cold War do not help protect the United States from terrorist threats. This new security environment requires new and innovative ways to defeat the terrorist threats that continue to cause harm to the American people. The U.S. government needs to find a balance between appropriate intelligence collection and protecting the civil liberties of the American population.

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