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WSJ
3/9/2004

IN A LITTLE-NOTICED side effect of the war on terrorism, the military is edging toward a sensitive area that has been off-limits to it historically: domestic intelligence gathering and law enforcement.

Several recent incidents involving the military have raised concern among student and civil-rights groups. One was a visit last month by an Army intelligence agent to an official at the University of Texas law school in Austin. The agent demanded a videotape of a recent academic conference at the school so that he could identify what he described as "three Middle Eastern men" who had made "suspicious" remarks to Army lawyers at the seminar, according to the official, Susana Aleman, the dean of student affairs.

The Army, while not disputing that the visit took place, declined to comment, saying the incident is under investigation.

Last year, the Office of Naval Intelligence, the nation's primary source of global maritime intelligence, demanded access to the U.S. Customs Service's database on maritime trade, saying it needed information to thwart potential terrorist activity. Customs officials initially resisted the Navy's demands but eventually agreed to give naval intelligence much of what it wanted.

In an interview earlier this month, U.S. Customs and Border Protection chief Robert C. Bonner said he shares data only after getting Navy assurances that the information won't be abused. Navy spokesman Jon Spiers says the Office of Naval Intelligence first approached customs about sharing inbound foreign cargo information in December 2002, and he denies there is anything improper about the request. The agency "has not overstepped any authority or crossed the line dividing law enforcement from military operations," he says.

Lt. Spiers adds that when the Navy's top spy agency gains access to data about American companies and individuals, the information will be "subjected to a meticulous legal review" and will be retained only if it is directly related to the agency's mission to identify potential foreign threats.

In another sign of military interest in domestic information-gathering, the Defense Intelligence Agency's new antiterrorism task force is looking to share information with law-enforcement officials in California and New York City, according to an August 2003 General Accounting Office report.

Historically, Americans haven't trusted the military to do domestic police work. The 1878 Posse Comitatus Act, passed in response to abuses by federal troops in the South after the Civil War, prohibits the use of the military "to execute the laws" of the U.S. That's been widely interpreted as a ban on searching, arresting or spying on U.S. civilians by federal troops.

But the law has been violated, notably during the Vietnam War, when Army operatives spied on antiwar activists on campuses. Meanwhile, Congress has eased the law's limits to allow the military to help prosecute the war on drugs.

After the Sept. 11 attacks, the White House sought to further loosen restrictions to allow the military to take on a new domestic-security role. It has mostly been rebuffed. In May the House refused to approve a White House-backed proposal to give the Central Intelligence Agency and the military authority to scrutinize personal and business records of U.S. citizens. And the Senate last year blocked funding for a Pentagon project known as the Total Information Awareness program, which was supposed to collect a vast array of information on individuals, including medical, employment and credit-card histories.

The issue of an expanding military role in domestic affairs also surfaced last year with the Pentagon's creation of the Northern Command, or Northcom, based in Colorado Springs, Colo. The new command, the first such military command designed to protect the U.S. homeland from a terrorist attack, has responsibility for the U.S, Canada, Mexico, portions of the Caribbean and U.S. coastal waters. Northcom's commander, Gen. Ralph "Ed" Eberhart, is the first general since the Civil War with operational authority exclusively over military forces within the U.S.

Gen. Eberhart has stoked concern among civil-liberties advocates by saying that the military and civilians should be involved in developing "actionable intelligence" for the government. In September 2002, he told a group of National Guardsmen that the military and the National Guard should "change our radar scopes" to prevent terrorism. It is important to "not just look out, but we're also going to have to look in," he said, adding, "we can't let culture and the way we've always done it stand in the way."

Northcom officials and other military leaders play down his remarks. "No one ran out after that speech and started snooping," one official says. Gen. Eberhart echoed that last September on PBS's "News Hour": "We are not going to be out there spying on people, " he said, though he added, "we get information from people who do."

Further evidence of the blurring of the lines between the civilian and military worlds comes in a job-vacancy notice for a senior counterintelligence advisor to Northcom. The duties, according to the notice, include providing advice that goes beyond potential terrorism to include "other major criminal activity, such as drug cartels and large-scale money laundering" -- work usually under the purview of the Drug Enforcement Administration, the Federal Bureau of Investigation and the Secret Service.

Another little-known Pentagon group, the Counterintelligence Field Activity, was set up two years ago. With 400 service members and civilians stationed around the globe, the CIFA was originally charged with protecting the military and critical infrastructure from spying by terrorists and foreign intelligence services. But in August, Paul Wolfowitz, the deputy defense secretary, issued a directive ordering the unit to maintain a "domestic law-enforcement database that includes information related to potential terrorist threats directed against the Department of Defense."

The CIFA also works closely with the FBI and is conducting some duties for civilian agencies. For example, according to Department of Agriculture documents, the CIFA is in charge of doing background checks on foreign workers and scientists employed by the department's agricultural-research service. The group also provides information to the Information and Security Command, or Inscom, the Army's main intelligence organization, based at Fort Belvoir, Md.

The Army intelligence agent who investigated the law-school conference was assigned to Inscom. Army officials reviewing the Texas incident concede that the agent may have overstepped his boundaries and should have tried to win the voluntary cooperation of the faculty and students. But they say that he was reacting to a possible counterintelligence threat to the military. It isn't clear why there were Army lawyers at the conference in the first place, though some officials say the attorneys wanted to learn more about Muslim traditions and Islamic law.

Civil-rights advocates are skeptical. Robert Pugsley, professor of law at the Southwestern University School of Law in Los Angeles, says the Texas incident is "a chilling example" of the military's overreaching. "It'll multiply like fleas on a dog" if left unchecked, he says.

"What we are starting to see is 50 years of legal refinement and revisions for oversight being quietly jettisoned," adds Steven Aftergood, an intelligence policy specialist at the Federation of American Scientists, a nonprofit, left-leaning think tank in Washington.

But James Carafano, a policy analyst with the Heritage Foundation in Washington, says he believes the military has honored posse comitatus. His concern is that hard distinctions have been created between who has jurisdiction in homeland defense versus homeland security. It's distinctions terrorists might exploit, he says. "We may potentially be creating vulnerabilities."

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