Pentagon intelligence employees raise concerns about supporting domestic surveillance amid protests

WASHINGTON — The government’s increasingly militarized response to nationwide protests has sparked concern among employees of a Pentagon intelligence agency, who fear they might be compelled to help conduct surveillance on Americans participating in demonstrations, sources tell Yahoo News.

The May 25 killing of George Floyd, an African-American man, in Minneapolis police custody set off a series of nationwide protests, including in Washington, D.C. In response, the Trump administration has sent a wide range of law enforcement and military personnel to the nation’s capital to help police the demonstrations.

The use of military personnel has prompted questions about overreach, including now at the Defense Intelligence Agency. During a weekly unclassified virtual town hall on Wednesday hosted by DIA Director Lt. Gen. Robert Ashley, agency employees questioned whether they could be placed on a task force, reassigned, detailed to another agency, or otherwise ordered to support domestic intelligence efforts to investigate protesters, according to two sources familiar with the matter. 

According to one of those sources, who was briefed on what happened during the town hall, a DIA employee submitted a written question asking: “We have been told that DIA is setting up a task force on ‘unrest’ in our country. Is this true? Is it legal given intelligence oversight? What options will there be for employees who are morally opposed to such an effort?”

Director Ashley, according to that source, responded that “our core mission is foreign intelligence.”

He went on, however, to cite the example of foreign interference in the 2016 presidential election, which did become a major focus across the U.S. intelligence community. “Consider the election space — we don’t have a domestic position but have a dedicated effort to see what is happening globally,” he said. “There is a DOD aspect, but we are focused on the foreign nexus.” 

Ashley told employees the Office of the General Counsel had reviewed the issue to ensure that DIA was in compliance with the law.

Demonstrators and police face off on Wednesday in Washington, D.C. (Yasin Ozturk/Anadolu Agency via Getty Images)

“If you ever find yourself in a position that makes you uncomfortable, I am your top cover,” he added.

That answer, however, did not assuage some DIA employees, who were concerned Ashley’s response did not address whether their work or the agency’s resources might be shifted to support domestic intelligence efforts or whether a task force is indeed being assembled. “It’s very scary,” said the first source.

It was not immediately clear who may have considered having DIA employees work on monitoring domestic unrest, or under what authority, since there has been no evidence that those involved in the protests — or in criminal activity that has taken place amid the protests — have any links to foreign groups. 

However, the second source said that the employees might be asked to support “mission requirements” for law enforcement. “Almost the entire workforce is against it, because it is not their mission,” the second source, who questioned the legality of it, told Yahoo News.

James M. Kudla, a DIA spokesman, said the agency has not taken a role in domestic affairs. “The mission of the Defense Intelligence Agency is to provide intelligence on foreign militaries to prevent and win wars,” he wrote in a statement to Yahoo News. “Any claims that DIA has taken on a domestic mission are false. 

“DIA has not established any task force related to the current domestic situation,” he continued.

Kudla did confirm that DIA has set up “an internal coordination group to respond to increased and appropriate Department requests for information.”

But the tumult at DIA over that internal coordination group could further inflame tensions within the Pentagon over the department’s proper role in policing the protests that have sprung up nationwide in response to Floyd’s death.

Doug Wise, who served as deputy director of DIA from 2014 to 2016, said that having the agency involved in domestic work would be a mistake. “A mission such as the one alleged for DIA would be highly inappropriate even if DOD lawyers developed a carefully worded position that such an effort was legal,” he said in a statement to Yahoo News.

Even if DIA could find a way to define such work as technically legal, “it would squarely fall into the category of what you can do may be different than what you ought to do,” he continued. “I am sure [DIA Director] Bob Ashley wants to keep his Agency focused on the foreign threat and not on civil unrest here in America.”

The Pentagon’s involvement in the response to civil unrest has been a lightning rod for controversy, particularly after Defense Secretary Mark Esper and Chairman of the Joint Chiefs of Staff Mark Milley both accompanied President Trump on a short walk Monday evening to St. John’s Episcopal Church, a historic chapel across from the White House vandalized during the previous night’s protests. Attorney General William Barr authorized law enforcement to clear peacefully protesting crowds in Lafayette Park, in front of the church, ahead of D.C. Mayor Muriel Bowser’s 7 p.m. curfew without warning. Officials deployed tear gas, “pepper balls” and nonlethal projectiles against protesters so that the president could have his picture taken holding a Bible in front of the church. 

President Trump outside St. John’s Episcopal Church across Lafayette Park from the White House on Monday. (Patrick Semansky/AP)

Critics have called for the resignations of Esper and Milley, who denied knowing about the details of the church visit beforehand. 

By Wednesday evening, even tight-lipped former Defense Secretary Jim Mattis registered his protest against the president under whom he previously served. “We must reject any thinking of our cities as a ‘battlespace’ that our uniformed military is called upon to ‘dominate,’” Mattis wrote in a statement emailed to reporters

It is unclear what the appropriate role for DIA, a foreign intelligence agency, would be in tracking domestic protesters. The Pentagon has long had a role in counterterrorism operations overseas. In recent days, Trump has compared protesters to terrorists, sweeping up law enforcement, intelligence agencies and the Pentagon in his efforts to disrupt demonstrators’ activities.

On Sunday, he claimed that violent protesters were linked to an amorphous left-wing movement called antifa, short for “anti-fascist,” and said he would designate the group a terrorist organization, though there is no legal authority to do so for a non-foreign group. 

President Trump. (Brendan Smialowski/AFP via Getty Images)

“These are terrorists,” said Trump during a private conference call with a group of governors on Monday. “And they’re looking to do bad things to our country.”

While counterterrorism experts told Yahoo News that Trump likely does not have a legal mechanism to formally declare a domestic organization an official terrorist group, the federal government’s response to the protests has been heavily focused on aggressively surveilling and tracking down potential offenders and tracing their networks. 

“There is currently no federal statute that contains provisions for designation of domestic groups as terrorist organizations, so the president saying it simply doesn’t make it so,” said Nick Rasmussen, a former director of the National Counterterrorism Center who is now a senior director at the McCain Institute.

“But I suspect right now there is not a shortage of FBI time and attention devoted to looking at individuals who fall within antifa profile,” he continued, “especially if they can be investigated and charged for their violent protest activity.”

Demonstrators on Wednesday in Washington, D.C. (Yasin Ozturk/Anadolu Agency via Getty Images)

While there are both legal and ethical questions raised by the president’s decision to single out antifa, a move that could “squelch legitimate speech by labeling it as a ‘terrorism related speech,’” those questions fall far outside the Defense Intelligence Agency’s purview, Rasmussen told Yahoo News. “DIA would be nowhere near that,” he said.

Meanwhile, according to an internal situation report obtained by the Nation magazine, the FBI Washington Field Office concluded that it has “no intelligence indicating Antifa involvement/presence” surrounding the violence and destruction that occurred during Sunday evening’s protests.

In a new development on Thursday afternoon, Barr said that a “witches’ brew” of individuals and organizations, including some foreign, have been responsible for instigating violence amid the protests. “We are also seeing foreign actors playing all sides,” he said, without elaborating.

Housed within the Pentagon, DIA is primarily responsible for collecting military intelligence. Like the CIA, it can operate within a limited sphere domestically — such as by recruiting traveling American businesspeople as assets, coordinating with the FBI on potential U.S.-based counterintelligence targets or tracking border-crossing terrorists. 

But DIA lacks law enforcement authority and has no known history of surveilling or tracking domestic political protests.

Kudla, the DIA spokesman, said, “As a Defense Department combat-support agency that works with other parts of DoD and the intelligence community, our capabilities are focused squarely on foreign threats to the nation.” 

According to former intelligence officials, for DIA to be turned inward at Americans, its personnel would need to either be detailed to another agency or supporting a separate lead agency, such as the FBI.

“Intelligence agencies are prohibited from spying against American citizens,” wrote Andrew Bakaj, a founding partner at the legal firm Compass Rose Legal Group, in a message to Yahoo News.

Bakaj, a former CIA officer who represented the still anonymous CIA whistleblower who sparked the impeachment proceedings against Trump, said there are cases “when law enforcement needs an assist or support from intelligence agencies, such as a task force.”

“That being said, the administration looking to have DIA — military intelligence — conduct intelligence operations against American citizens engaging in protests is, optically, a huge problem,” he wrote. Regardless of the need to arrest violent offenders, he continued, “turning the military intelligence against American citizens is an affront to the Constitution.”

Irvin McCullough, national security analyst for the whistleblower nonprofit Government Accountability Project, said that when employees, such as those at DIA, “question the legality of government-sanctioned actions, that’s a call for effective oversight alongside those activities.”

“If whistleblowers come forward with concerns of illegality or abuses of authority, they should be welcomed with open arms and shielded from retaliation,” he wrote in an email to Yahoo News.

Jamil N. Jaffer, a former associate counsel to President George W. Bush who also served as a senior counsel on the Republican staff of the House Intelligence Committee, also expressed concerns about the possible role of a military intelligence agency in any domestic surveillance.

“The role of our intelligence agencies when it comes to looking at foreign intelligence threats domestically is carefully circumscribed and operates under specific laws and regulations including the Foreign Intelligence Surveillance Act, and for good reasons, going back [to] the abuses of the 1960s and 1970s relating to domestic protests, among other things,” wrote Jaffer, now the executive director of the National Security Institute at George Mason University’s Antonin Scalia Law School, in an email to Yahoo News.

“It is somewhat ironic that the very President whose tweets have resulted [in] Americans being less safe against terrorist and other foreign intelligence threats because the post-9/11 surveillance authorities have expired on his watch, now may be seeking to conduct the very type of surveillance he has previously railed against,” Jaffer continued.

Former intelligence officials expressed surprise that DIA employees would be asked to support domestic monitoring efforts. DIA “is an organization chartered for foreign intelligence,” said one former senior intelligence official. “Not spying on our neighbors.”

Larry Pfeiffer, the director of George Mason University’s Michael V. Hayden Center and a former senior CIA and NSA official, said he found it encouraging at least that DIA employees were expressing their concerns to the agency’s leadership.

“I’m heartened and not surprised to hear that the men and women of DIA would object to such a possibility,” he said. “They serve the American people and the Constitution and know better than to break such an honored compact and the law.”

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