New York, October 25, 2017 – Newly released documents reveal a US Defense Department policy that appears to authorize warrantless monitoring of US citizens and green-card holders whom the executive branch regards as “homegrown violent extremists,” Human Rights Watch said today. Separately, the documents also reinforce concerns that the government may be gathering very large amounts of data about US citizens and others without warrants. Both issues relate to a longstanding executive order that is shrouded in secrecy and should be a focus of congressional inquiry.
The new materials, which Human Rights Watch obtained through a freedom of information request, are training modules that primarily concern Executive Order 12333 (EO 12333). That order broadly governs the US intelligence agencies’ activities, and includes provisions allowing the agencies to collect information on US persons – meaning US citizens and lawful permanent residents, as well as some corporations and associations – in a manner the government has never fully explained to the public. The training slides largely summarize Defense Department procedures concerning EO 12333 that were released in 2016, updating a 1982 version. Using plain language to demystify the procedures’ phrasing, the slides offer hints about Defense Department intelligence practices that require further inquiry and exposure.
“These documents point to just how thoroughly the public has been kept in the dark about warrantless surveillance under Executive Order 12333,” said Sarah St.Vincent, US surveillance and national security researcher at Human Rights Watch. “Their explanations of the order suggest that the government may be carrying out monitoring that poses serious problems for human rights, and Congress should seek more information about what the intelligence agencies are doing in this respect.”
One of the documents’ most troubling aspects is the indication that the Defense Department has authorized its intelligence components to carry out at least some forms of monitoring of US persons without a warrant, based on designations that use unknown and potentially discriminatory criteria. Specifically, one of the training documents indicates that this monitoring is permitted for US persons whom the government regards as “homegrown violent extremists” (referred to as “HVEs” in the slides) – even when they have “no specific connection to foreign terrorist(s).” The government’s basis for this authorization is a revised definition of “counterintelligence” collection found in the 2016 procedures.
The procedures address several forms of surveillance, and it is unclear which types the government plans to use when monitoring “homegrown violent extremists.” However, a current senior Defense Department official who provided comments to Human Rights Watch on condition of anonymity stated that “the [Department’s] counterintelligence elements would be unable to collect necessary information on potential HVEs” without this change.
The Defense Department official did not respond to a question from Human Rights Watch about whether the monitoring of US persons under this policy may include electronic surveillance. If it does, this would raise concerns that the government is violating – or believes it is exploiting a possible loophole in – federal law, which generally prohibits deliberate spying on the content of US persons’ telephone or internet communications without a warrant.
The authorities may only obtain such a warrant if they show probable cause to believe that the person has committed or is about to commit a crime, or that the person is “a foreign power or an agent of a foreign power.” The disclosure of the government’s policy regarding the surveillance of “homegrown violent extremists” who are not connected to a foreign group raises concerns about whether intelligence and/or law enforcement bodies are using EO 12333 to do an end-run around these legal protections.
Human Rights Watch is also concerned about the methods and criteria the government may be using to define and identify “homegrown violent extremists,” and particularly about the risk that people who are exercising their legitimate free-expression rights will be targeted for monitoring in a discriminatory or arbitrary manner. As an example of “homegrown violent extremists,” the Defense Department official who commented to Human Rights Watch pointed to individuals who “may be self-radicalized via the internet, social media, etc., and then plan or execute terrorist acts in furtherance of the ideology or goals of a foreign terrorist group.” However, the official did not respond to a question about the criteria the executive branch uses when designating a US person a “homegrown violent extremist” for the purposes of this policy.
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Additional questions remain about the range of agencies that may warrantlessly monitor such individuals. The Defense Department official’s comments imply that the policy disclosed in the slides applies to the Department’s “counterintelligence elements,” such as the Naval Criminal Investigative Service and the Air Force Office of Special Investigations. These bodies, the official stated, “investigate activities by active duty military members of their Service or [Defense Department] civilian personnel engaged in activities targeted against interests of their Service.” The official noted, “If the military counterintelligence elements conduct investigations of persons other than active duty military members, they do so jointly with the FBI [Federal Bureau of Investigation].”
Although the official’s remarks focused on the military counterintelligence bodies, further information is needed about whether other agencies – such as the National Security Agency (“NSA”) or the FBI – may rely on similar policies to identify and/or monitor US persons who do not have an affiliation with the military, Human Rights Watch said.
The Defense Department official emphasized that “counterintelligence collection against these, or any other individuals or groups, must be predicated upon the ‘reasonable belief’ standard, which is reviewed through the operational and legal chain of command prior to initiation of any activity. Field personnel may not rely solely upon ‘hunches’ or intuition’ as justification for the initiation of counterintelligence activities.” However, the government’s failure to disclose its methods and criteria for designating US-person “extremists” makes the effectiveness of these stated protections difficult to evaluate.
“The government’s authority to monitor people doesn’t depend on their beliefs, or what the government thinks they believe, but on specific evidence that gives sufficient reason to think a criminal offense is occurring or that the person is an agent of a foreign power,” St.Vincent said. “A secret determination that someone’s rights should be curtailed based on undisclosed criteria is incompatible with the rule of law. The government should explain what it’s doing as well as its legal basis for doing it.”
A separate problem to which some of the newly released materials point is the potential volume of data collection – including collection affecting US persons – under EO 12333. The 2016 procedures created the category of “special circumstances collection” to encourage the authorities to consider whether surveillance activities “raise special circumstances” and merit extra safeguards based on “the volume, proportion, and sensitivity” of US-person information the government is likely to obtain. (The category itself does not authorize any surveillance that could not otherwise take place under the order.) However, the training documents use the informal term “big data” to describe “special circumstances collection,” raising the possibility that the government may be carrying out or contemplating surveillance on a massive scale.
Documents revealed by the former NSA contractor Edward Snowden beginning in 2013 have indicated that the government uses EO 12333 as the basis for bulk communications surveillance programs overseas. However, these new references to “big data,” while fleeting, appear to represent one of the most direct acknowledgments yet by the government that warrantless monitoring under the order may entail seizing very large or systematic sets of data – including about US persons.
Details regarding the newly released documents are provided below, and the documents themselves are posted on the Human Rights Watch website. Human Rights Watch shared the documents with Reuters, which published a related story on October 25.
Human Rights Watch is also releasing documents obtained from the National Reconnaissance Organization and the Department of Homeland Security’s Office of Intelligence and Analysis.