Criminal Justice & the Rule of Law

How the DHS Intelligence Unit Sidelined the Watchdogs

Benjamin Wittes
Thursday, August 6, 2020, 2:05 PM

New documents from DHS’s intelligence and analysis unit show how the office marginalized civil rights and civil liberties review of intelligence products.

Acting Homeland Security Secretary Chad Wolf addresses press on May 30, 2020. (U.S. Department of Homeland Security)

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The other day, Betsy Woodruff Swan of Politico penned a story reporting that, 

Several months ago, the leadership of the Office of Intelligence and Analysis asked DHS’s second-in-command, Ken Cuccinelli, to limit a department watchdog from regularly reviewing the intelligence products it produces and distributes.

Cuccinelli signed off on the move, according to two sources familiar with the situation, which constrained the role of the department’s Office of Civil Rights and Civil Liberties in approving the intelligence office’s work.

Last night, I received a trio of internal documents from the Office of Intelligence and Analysis (DHS I&A) fleshing out this story. Here, I publish these documents—all unclassified—in full. And I add some explanatory notes regarding what they mean and how I believe they connect to the recent spate of stories about inappropriate DHS I&A collection and dissemination.

The following is a quick and dirty analysis based on a relatively quick read of the material. I may have more to say as I go through these documents more carefully, and as more material becomes available over the next few days.

The first document is a May 7 memorandum from David J. Glawe, then the undersecretary for intelligence, to the DHS I&A workforce: 

The major significance of the Glawe memorandum for present purposes is, first, that it documents the policy change that Swann reported and attributes it—as she reported—directly to Cuccinelli, whose absurd formal title is the senior official performing the duties of deputy secretary. The major policy document laying out the rules for intelligence product review, a document called IA-901, “has been revised and is being reissued” to—among other things—“streamline procedures” and “incorporate the recent decision of the Senior Official Performing the Duties of Deputy Secretary that the USIA [undersecretary for intelligence and analysis] is the final decision authority for disseminating intelligence products.”

Previously, the department’s Office of Civil Rights and Civil Liberties got a chance to review intelligence work products that potentially impinged on the office’s issues of concern—and when reviewers objected, the deputy secretary would resolve disputes. Under the new policy, Glawe was saying DHS I&A would be the ultimate arbiter of its own disputes with the civil rights and civil liberties office.

If, that is, the civil rights and civil liberties office even gets time to see the work products at all. 

A second memo, dated July 2 and penned by Glawes’s successor—Acting Undersecretary Brian J. Murphy, who has since been removed from the position—raises some questions about just how cut out of the process the civil rights and civil liberties office may be. The document is entitled “Procedures for Finished Intelligence Product Review During Exigent Circumstances,” and it begins by noting that “[e]xigent circumstances, or situations in which there is a reasonable belief that there is an imminent threat to a person’s life or an imminent and grave threat to the national security of the United States, necessitate rapid coordination and dissemination of intelligence. As we have seen recently, such situations can arise quickly and with no notice.”

The document announced that “[t]he Deputy Under Secretary for Intelligence Enterprise Operations (DUSIEO) has the authority to determine when a crisis or exigent circumstances exists and may adopt expedited production, review, approval, and dissemination processes for I&A Finished Intelligence Products ....” The most significant of these to my eye is the following: 

The DUSIEO may set time limits for Oversight Offices’ review of finished intelligence products. For a product that meets the criteria for formal oversight equities review, the DUSIEO shall determine the maximum amount of time practical for Oversight Office review and to still maintain the product’s analytic value given the exigent circumstances to which it pertains. The DUSIEO will ensure every effort is made to notify the Oversight Offices of the review timeline and obtain their input prior to dissemination. If review cannot be completed within the articulated timeline, the DUSIEO may publish the product and provide a post-publication copy to the Oversight Offices. (Emphasis added.)

In other words, not only can I&A now adjudicate its own disputes with the review offices, it can also rush matters through during whatever exigent crisis period it declares for itself. And it can thus proceed to disseminate intelligence products without consulting them at all.

But that’s not all. The guidance also allows the deputy undersecretary to “modify the process pertaining to content and tradecraft review or approval and dissemination to ensure timely publication of intelligence”—which I have trouble reading as anything other than permission to cut other corners in the interest of speed. 

The only real limitation is that the guidance does not allow “a crisis period ... to exceed 14 calendar days [without] a new designation and rational [sic].

So what kind of review do DHS I&A reports now get, and when do they get sent to the review offices at all? The answer lies in the third document, an undated guidance on the update to IA-901:

According to this document, “[a]ll FINTEL [finished intelligence] will undergo review by two Product Reviewers prior to final review by the Mission Manager, who is the approval/release official.” Product reviewers will examine material with a “focus on the message, tradecraft, and style of the product in accordance with IC and I&A standards.” Mission managers are responsible “for approving a product[,]” and “all review for content/tradecraft and oversight equities (if applicable) must be completed” before their review. 

The old guidance did not specify the precise criteria under which oversight reviews were supposed to take place, meaning that they were functionally routine for any finished intelligence product slated for dissemination beyond the federal government. By contrast, under the new guidelines, oversight reviews are supposed to take place only if at least one of the following conditions is met: (1) if a product “specifically addresses or describes populations discernible” by some protected category under civil rights law, (2) if it deals with minors, (3) if it includes sensitive personally identifiable information, (4) if it reflects analysis based on bulk data, (5) if it “[n]ames elected US government officials, candidates for elected federal office, or US political parties” or (6) if it “[r]eferences or describes the political, religious, ideological, or other Constitutionally-protected speech or activity of a [US person] (or person in the United States) when not directly linked to violence or threat of violence” (emphasis in original).

“If the criteria do not apply,” the document states, “the product is not required to undergo review by” the oversight offices at all. The document reiterates that the head of DHS I&A “is the final authority on dissemination of I&A products, notwithstanding objections from CRCL,” the civil rights and civil liberties office. If disputes can’t be resolved at the lower levels, “the USIA is final decisionmaker.”

In short, according to these documents, DHS I&A has to seek review on privacy, civil rights, or civil liberties grounds only under a certain set of circumstances, it can impose time limits on reviews by declaring an exigent circumstance on its own authority, and it can then adjudicate its own disputes with the reviewers to the extent that issues arise.

It is no wonder, under these circumstances, that there has been a rash of cases in which the office seems to have collected and disseminated “intelligence” on absurd subjects (including but not limited to me). 

I will do a fuller analysis of the revised IA-901 guidance against the original once I have obtained both documents and have had the opportunity to review them carefully side by side.

Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.

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