This article first appeared at Just Security.
In December, Congress passed the National Defense Authorization Act (NDAA), which contains provisions regulating certain troubling intelligence activities of the U.S. Department of Homeland Security. DHS’s Office of Intelligence and Analysis (I&A) has for years engaged in abusive domestic intelligence practices targeting Americans’ political views and broadly painting certain groups of Americans as terrorists. Since at least 2016, I&A officers have conducted interviews with people held in jails without sufficient constitutional protections, targeted journalists and activists protesting local monuments under the guise of homeland security, surveilled racial justice demonstrators, and monitored political views shared by millions of Americans — about topics like abortion, government, and elections — that DHS baldly asserts will lead to violence. I&A too often disseminates questionable intelligence to thousands of officials nationwide. This pattern of abuse continues today: I&A is currently engaged in an intelligence campaign that has empowered Georgia authorities to weaponize state terrorism and racketeering charges in a crackdown against activists protesting a police training facility in Atlanta.
Congress has recognized the problems with I&A, and Section 7324 of the 2024 NDAA prohibits three types of intelligence collection: from persons in government custody or detention, targeting of journalists, and from persons without significant foreign intelligence information. But these restrictions do not go nearly far enough to address I&A’s day-to-day overreach and are undermined by a loophole included in the legislation that allows I&A to collect all this information from the government and private sector officials with whom the agency most often works. Lawmakers must do more to rein in I&A.
The NDAA’s first prohibition prevents I&A officers from obtaining information from persons in government custody or against whom criminal charges are pending absent consultation with the person’s attorney. This is a good initial step. But while I&A does not itself conduct the law enforcement investigations that come with clear constitutional protections, it does run large collection operations in coercive immigration detention facilities and jails. I&A works closely with law enforcement, broadly sharing intelligence that police use in investigations and prosecutions, allowing its intelligence recipients to potentially evade a suite of other constitutional protections. Subject to few other rules, freewheeling intelligence interviews in these highly coercive environments should be fully prohibited, as the Brennan Center for Justice — where I work — and others have written.
Second, the NDAA prohibits I&A from collection “targeting” journalists performing journalistic functions, as happened during I&A’s intelligence campaign against 2020 racial justice demonstrations, when officers disseminated intelligence on journalists covering I&A, created dossiers on protestors, and developed reports that supported political efforts to discredit the protest movement. Notably, the provision does not prohibit I&A to collect and retain intelligence on journalists gathered incidentally while targeting some other person. Intelligence agencies have no business collecting, retaining, or disseminating information about journalists and any prohibition should articulate that clearly.
The third NDAA restriction prohibits I&A officers from interviewing an American without a “reasonable belief” that person “may possess significant foreign intelligence,” apparently to address general concerns about its overreach in domestic intelligence. Notably, the measure does not require that I&A collect only foreign intelligence information from the American interviewee; an I&A officer could collect domestic information so long as the interviewee knows something about foreign intelligence.
The reasonable belief standard, as my Brennan Center colleague Faiza Patel and I explain in a detailed 2023 report on I&A, is ill-defined and evades enforcement. Hedging language in the provision further undermines the restriction. For instance, “may possess” suggests that the person from whom I&A seeks to collect need not even actually possess significant foreign intelligence information. Congress has not defined “significant” in this case, meaning I&A will make its own determination about what it deems significant. This arrangement maintains the discretion I&A has abused time and again.
Even putting aside these shortcomings, a sizable loophole undermines the impact of the NDAA provisions: Section 7324 states that none of its restrictions prohibit receiving information from or sharing intelligence with federal, state, local, and private sector personnel. Coupled with a lack of meaningful prohibitions on monitoring of Americans’ social media activities, this language carves out the bulk of I&A’s domestic intelligence work, which is largely conducted out of fusion centers, information sharing hubs where I&A officers work alongside and share information various government officials — including police — and even corporate security personnel. I&A also maintains an online intelligence sharing portal used by thousands of government and corporate officials nationwide.
I&A receives and shares vast amounts of domestic information via both mechanisms. Routinely, that information is raw, unverified intelligence. In some cases, it is outright false, as during 2020 protests when Maine fusion center officers used easily debunked I&A intelligence about supposed piles of bricks positioned by “antifa” operatives for use as weapons. More recently I&A has provided Georgia police hyperbolic intelligence calling graffiti and petty vandalism terrorism, fueling crackdowns against activists by state authorities.
Further, I&A remains free to continue collecting information about journalists, so long as that information comes from a federal, state, local, or private sector employee. The same goes for information originally obtained from people who do not possess “significant foreign intelligence,” greatly diminishing those two would-be protections. If Congress believes I&A’s domestic intelligence work should continue, it should carefully regulate the rules that apply, starting at a minimum with a prohibition on the dissemination of unverified information about Americans’ social media.
The NDAA also directs the U.S. Intelligence Community Inspector General to assess the scope and legality of I&A’s operations, signaling its discomfort with the office’s activities. While this sounds like an important step forward, its utility may be limited by the fact that many of I&A’s problematic practices are enabled by overbroad grants of discretion in presidential decree or statute, coupled with threadbare safeguards for constitutional rights. Congress also directs the Inspector General to assess whether I&A provides “sufficient training,” presumably to ensure activities are executed consistent with law and constitutional safeguards. While lack of training has certainly exacerbated abuses in the past, it is not clear that more or better training can overcome the discretionary standards that have enabled abusive domestic intelligence operations, or that such broad discretion can even be effectively trained in a way officers can execute.
Congress must do more. The Brennan Center and other national groups have called on Congress to investigate I&A’s present campaign targeting activists in Atlanta, Georgia, require that DHS disclose its intelligence to the public, and legislate to prevent future targeting of Americans on questionable bases. Additionally, lawmakers should restrict I&A’s use of political or First Amendment-protected views to drive counterterrorism work and end I&A’s dissemination of unverified raw social media intelligence about Americans. Recent NDAA provisions are a good first step to fix some problems, but the vast majority of abuses by I&A remain unchecked.
