Chapter 8

Intelligence Operations

I.  Introduction

A.   Overview.  Intelligence plays a critical role across the range of military operations.  Information superiority is essential to a commander in conducting operations and in accomplishing his or her mission.  Intelligence collection activities have become a sophisticated and essential element of mission command.^[1]  Department of Defense-authorized intelligence collection activities involve the collection of military and military-related foreign intelligence and counterintelligence, based on collection requirements.^[2]  Because intelligence is so important to the commander, operational lawyers must understand the basics of intelligence law.  The importance of the role of intelligence in current operations worldwide cannot be overstated, particularly with respect to counterinsurgency (COIN) and counterterrorism (CT) operations, where—as discussed in detail in chapter 8 of FM 3-24 (Insurgencies and Countering Insurgencies)—HUMINT collection is essential.

B.    Intelligence in General.  All levels of war have corresponding levels of intelligence operations.  Strategic intelligence is information required for the formation of policy and long-term military plans at the national and international levels. This intelligence is normally nonperishable and is collected and analyzed for the consumer on a long-term basis.  Operational intelligence is intelligence that is required for planning and coordinating campaigns or operations by Combatant Commanders (CCDRs) and subordinate Joint Force Commanders (JFCs).  Tactical intelligence, on the other hand, is information gathered about the threat across the range of military operations that can be passed to the operational level for future planning.  It is usually perishable and temporary in nature.^[3] 

C.    Intelligence Disciplines.  The form and substance of intelligence depends on well-defined disciplines that involve specific categories, collections, and analysis.  These disciplines include the following:

1.    Human Intelligence (HUMINT);

2.    Signals Intelligence (SIGINT);

3.    Measurement and Signature Intelligence (MASINT);

4.    Open-source Intelligence (OSINT);

5.    Geospatial Intelligence (GEOINT);

6.    Technical Intelligence (TECHINT);

7.    Counterintelligence (CI).^[4]

While the Department of Defense and each service intelligence commands may be able to utilize these intelligence disciplines, each discipline requires unique training, skill sets, and authorities.  A Judge Advocate (JA) advising on intelligence law issues must first look for proper authority for the specific intelligence discipline to be used and ensure the person using the discipline has the associated training.

D.   Legal Discussion.

1.    International Regulation.  The conduct of intelligence collection^[5] by nation States against other nation States, generally known as espionage, is largely unregulated by international law.  Sovereignty as a fundamental principle of international law is at the core of this lack of regulation.  Sovereignty has two distinct elements.  The first element, internal sovereignty, is the right of a State to exercise control over its territory.  The second element, external sovereignty, is a State’s right to conduct relations with other States.^[6]  This recognition of freedom of relations with other States was affirmed by the Permanent Court of International Justice in The S.S. Lotus (1927).  In this case, the court ruled that States pursue international interests by agreeing to limit rights.  In the absence of an agreement, there is no limit on that right.^[7]  Espionage, is an example of the kind of State activity with no specific prohibitions.  Espionage can be divided into two broad categories: 1) Wartime Intelligence Activities; and 2) Peacetime Intelligence Activities.

a.    Wartime Intelligence Activities.  The United States is not a party to any law of war treaty that prohibits spying^[8] by a belligerent State during conflict.^[9]  However, while not prohibiting the activity, there are treaties that regulate the conduct of spies—to include the loss of Prisoner of War status if acting clandestinely or under false pretenses.^[10]

b.    Peacetime Intelligence Activities.  It is commonly believed the conduct of espionage during peacetime is not regulated by international law.^[11]  However, there are emerging discussions in International Human Rights cases regulating some areas of intelligence collection such as interrogation tactics and privacy intrusions into individual citizen’s homes.^[12]

2.    Domestic Regulation.  The Constitution, FISA, IRTPA, and DoD regulations are the primary sources for domestic intelligence law and policy.

E.    The Intelligence Community.  The U.S. intelligence community is made up of eighteen intelligence agencies.  Eight of these intelligence agencies—Defense Intelligence Agency (DIA); National Security Agency (NSA); National Geospatial-Intelligence Agency (NGA); National Reconnaissance Office (NRO); and the intelligence commands of the Army, Navy, Air Force, Space Force, and Marine Corps—are part of the Department of Defense (DoD).  In December 2004, the Intelligence Reform and Terrorism Prevention Act separated the head of the U.S. intelligence community from the head of the Central Intelligence Agency.^[13]  Today, the head of the U.S. intelligence community and principal advisor to the President on all foreign and domestic intelligence matters is the Director of National Intelligence (DNI).  In addition to creating the DNI and its corresponding office (ODNI), the 2004 legislation also reprioritized national intelligence collection efforts.  Rather than collecting intelligence based upon geographic regions, ODNI coordinates collection efforts based upon the type of threat, such as terrorism or nuclear proliferation.  Various centers within ODNI coordinate and prioritize national collection efforts within the established threat areas.  Intelligence activities within DoD include responding to collection taskings from the ODNI, as well as collecting, producing, and disseminating military and military-related foreign intelligence and counterintelligence; and protecting DoD installations, activities, and employees.^[14]

II.  Operational Issues

A.           Scope.  Aspects of intelligence law exist in all military operations.  Operational lawyers should consider intelligence law when planning and reviewing both operations in general and intelligence operations in particular.  It is important to remember that often operation plans (OPLANs) / concept plans (CONPLANs) / execute orders (EXORDs) may give general authority to conduct intelligence, but may not direct the type of intelligence or give specific authority to conduct certain types of intelligence.  Because some intelligence activities, such as SIGINT/HUMINT must be delegated from specific agencies or higher authority, Judge Advocates must be diligent in ensuring that authority has been given and training has occurred through the proper authorities and format.

B.    Collection of U.S. Person Information.  The authority for and restrictions on collection of intelligence on U.S. persons (USPs) stems from Executive Order (EO) 12333, as amended, which requires all government agencies to implement guidance consistent with the Order.^[15]  The Department of Defense’s implementation of EO 12333 is contained in DoDD 5240.01 and its accompanying manual, DoDM 5240.01.^[16]  Each service has issued complementary guidance.  Army Regulation (AR) 381-10 is the Army guidance.  It is important to recognize that portions of AR 381-10 apply to intelligence activities relating to non-U.S. persons as well as U.S. persons.

1.    Chapter 3 of DoDM 5240.01 sets forth procedures^[17] “govern[ing] the conduct of Defense Intelligence Components and non-intelligence components or elements, or anyone acting on behalf of those Components or elements, when conducting intelligence activities under DoD‘s authorities.”^[18]  The collection, retention, and dissemination of information concerning U.S. person information (USPI) by DoD Intelligence Components is detailed in Procedures 2-4.  Of importance, Section 3 requires that information identifying USPI be collected by a DoD intelligence component only if it is reasonably believed necessary for the performance of an authorized intelligence mission or function assigned to the component.^[19]

2.    Two threshold questions regarding intelligence collection must be addressed:  (1) whether information has been “collected?” and (2) whether the information collected concerns USPI?

a.    Collected.  Information is collected when it has been received for use by an employee of an intelligence component in the course of his or her official duties.^[20]

b.    USPI.  United States person information (USPI) is information that is reasonably likely to identify one or more “U.S. person.”  USPI can be either a single item of information, or information in the aggregate that when put together by an intelligence professional would reasonably identify a USP.^[21]

c.    “U.S. Person.”  A USP is generally defined as a U.S. citizen; permanent resident alien; a corporation incorporated in the United States; or an association substantially composed of U.S. citizens or permanent resident aliens.  A person or organization in the United States is presumed to be a U.S. person, unless specific information to the contrary is obtained. Conversely, a person or organization outside the United States is presumed to be a non-USP, unless specific information to the contrary is obtained.  Military intelligence elements must exercise great caution in using the non-U.S. person presumption.  Any information that indicates an individual who appears to be an alien might possess U.S. citizenship (or be a permanent resident alien) should be resolved prior to relying on the presumption in making a collection decision.^[22]

3.    Collection of USPI.  Whether a DoD intelligence component may collect USPI will likely arise in one of two scenarios.  The first scenario may occur when the component is collecting authorized defense foreign intelligence and believes they also collected information reasonably believed to be USPI.  The second scenario may occur when the component desires to collect USPI in furtherance of their authorized intelligence mission.  Procedure 2, contained within Section 3 of DoDM 5240.01, governs both possibilities.  When presented with either fact pattern, a JA must first ensure the component has the authorized intelligence mission.  Next the JA should ask the two threshold questions detailed above—if the information (to be/was) collected, and if it is reasonably believed to be USPI.  If the answer to both threshold questions is yes, the component is only authorized to continue to collect the information if it fits within one of thirteen categories presented in Procedure 2.^[23]

4.    Retention.  Once collected, the component should determine whether the information may be retained by the intelligence component (Procedure 3, Section 3 of DoDM 5240.01).  In short, information properly collected under Procedure 2 may be retained.  The time period in which a component may retain information is based on the way in which it was collected and the type of information.  It is incumbent on a JA to read, in detail, the retention timelines detailed in Procedure 3 before making a retention determination.^[24]

5.    Dissemination.  Procedure 4, Section 3 of DoDM 5240.01, governs dissemination of USPI outside of the intelligence component in which it was collected and retained.  In general, there must be a reasonable belief the recipient agency or organization has a need to receive such information to perform a lawful government function.  If an intelligence component is retaining information that was not originally collected by that component, they should NOT disseminate the information until first consulting with the originating collection agency.

C.    Special Collection Techniques.  DoDM 5240.01 addresses special means of collecting intelligence in subsequent Procedures.  These Procedures describe the permissible techniques, the allowable targets, and the approval authority for special collection techniques.  The JA confronting any of these techniques must consult the detailed provisions of DoDM 5240.01 and AR 381-10 and should seek clarifying guidance from the National Security Law Branch of the Office of the Staff Judge Advocate (OSJA), U.S. Army Intelligence and Security Command (INSCOM).

1.    Electronic Surveillance – Procedure 5.

2.    Concealed Monitoring – Procedure 6.

3.    Physical Searches – Procedure 7.

4.    Searches and Examinations of Mail – Procedure 8.

5.    Physical Surveillance – Procedure 9.

6.    Undisclosed Participation in Organizations – Procedure 10.

According to AR 381-10, paragraph 1-6(a), a legal advisor must review all activities conducted pursuant to Procedures 5 through 13.  Both INSCOM and the U.S. Army Intelligence Center (USAIC) offer assistance with drafting legal reviews and training in special collection techniques.  The National Security Law Division may also be contacted for assistance with interpreting DoDM 5240.01 and AR 381-10 and drafting legal reviews concerning intelligence operations.

D.   Counterintelligence.  Counterintelligence is information that is gathered, or activities conducted, to protect against espionage and other intelligence activities, as well as international terrorism.  Such intelligence activities are conducted in connection with foreign powers, hostile organizations, or international terrorists.  Counterintelligence is concerned with identifying and counteracting threats to our national security.

1.    Within the United States, the FBI has primary responsibility for conducting counterintelligence and coordinating the counterintelligence efforts of all other U.S. government agencies.^[25]  Coordination with the FBI will be in accordance with the Agreement Governing the Conduct of Defense Department Counterintelligence Activities in Conjunction with the Federal Bureau of Investigation, between the Attorney General and the Secretary of Defense, April 5, 1979, as supplemented by later agreements.

2.    Outside the United States, the CIA has primary responsibility for conducting counterintelligence and coordinating the counterintelligence efforts of all other U.S. government agencies.^[26]  Procedures for coordinating counterintelligence efforts are found in Intelligence Community Directives (ICD).

3.    The Department of Defense has primary responsibility for conducting military-related counterintelligence worldwide.^[27]  These activities are typically carried out by Service counterintelligence units.  Depending on the location of the activity and the subjects involved, coordination of effort with the FBI or CIA is normally required, the specific parameters of which are detailed in the agreements and ICDs discussed above.

E.    Military Source Operations (MSO).  MSO refer to the collection of foreign military and military-related intelligence by humans from humans.  MSO is but one aspect of HUMINT.  Only specially trained and qualified personnel may conduct MSO.  Field Manual 2-22.3, chapter 5, discusses MSO in general.^[28]  Typically, MSO authorities and operations are classified, but help with providing necessary legal support is available from INSCOM, OTJAG, and USAIC.  Key considerations for JAs include knowing the different types of source operations, knowing what training is required to conduct those operations, and knowing the necessary approval authorities.

F.    Support Issues Concerning Intelligence Operations.  Sound fiscal law principles apply to the support of intelligence operations.  Money and property must be accounted for, and goods and services must be procured using appropriate federal acquisition regulations.  Judge Advocates dealing with expenditures in support of intelligence operations should be familiar with the regulations regarding contingency funding, property accountability, secure environment contracting, and the annual intelligence appropriations acts.  Intelligence Contingency Funds (ICF) are appropriated funds to be used for intelligence activities when the use of other funds is not applicable or would either jeopardize or impede the mission of the intelligence unit.  Most publications concerning ICF are classified.

G.   Intelligence Oversight.  A critical aspect of all intelligence operations and activities is overseeing their proper execution, particularly when they relate to collection of intelligence against USPs.  A JA may be called upon to advise an intelligence oversight officer of an intelligence unit.  Executive Order 12333, the Intelligence Oversight Act (50 U.S.C. § 3091), DoDM 5240.01, DoDD 5148.13, and AR 381-10 provide the proper statutory and regulatory guidance regarding intelligence oversight, to include detailed requirements for reporting violations of intelligence procedures.