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The Department of Homeland Security is defending its domestic intelligence-gathering tactics after critics accused the agency of violating Americans’ civil rights and civil liberties.
A top DHS official wrote to lawmakers Thursday to respond to recent concerns about the Office of Intelligence and Analysis’s practice of interviewing detained immigrants and other incarcerated people to collect information about potential threats to the US.
The program in question “is consistent with I&A’s authorities, lies squarely within our mandated responsibilities, and has been — and is being — conducted in full accord with the principles that protect the privacy, civil liberties, and civil rights of Americans,” Under Secretary Kenneth Wainstein, who leads I&A, said in a letter first obtained by Bloomberg Government.
Wainstein sent the letter to top members of the House Homeland Security Committee after Chairman Mark Green (R-Tenn.) and other Republicans raised questions in March about I&A’s work.
Republicans have been wary of DHS’s counterterrorism and intelligence work and its efforts to combat misinformation throughout President Joe Biden’s time in office, saying the agency is policing free speech and running afoul of constitutional protections.
The interview tactics at issue in the new letter fall under I&A’s Overt Human Intelligence Collection Program. They came under scrutiny earlier this year when Politico reported DHS employees had raised concerns about the program’s legality, and the office paused part of the program in response.
Wainstein, a former George W. Bush official who took the helm of I&A last summer, defended the office’s practice of gathering intelligence by interviewing people in the US, including some who are incarcerated. But he stressed I&A was conducting a broad assessment of the program and had reviewed past interviews to ensure compliance with constitutional guidelines.
In an interview last month, Wainstein said it was “healthy that concern is being raised” but stressed that I&A wanted to help people understand the program’s purpose and value.
I&A is conducting a 75-day review of the human intelligence program and its underlying policies to consider whether changes are needed, he told lawmakers.
The unit last month announced a separate internal reorganization to boost oversight roles and improve supervision of intelligence collection, and it’s looking at whether to redefine the scope of its work. Critics have called on Congress to narrow I&A’s authorities altogether.
I&A, which is part of the federal intelligence community, specializes in assessing threats to the US based on publicly available information and liaising with state and local law enforcement partners. For years, it has also collected intelligence via direct interviews, but that practice was lesser known before the recent reporting.
The program “raises serious concerns about the Department’s overreach of its statutory mandate and potential violations of Americans’ fundamental civil liberties,” Green and other Homeland Security Committee Republicans wrote in March, citing reporting that I&A officials would circumvent detainees’ lawyers when conducting interviews.
The Brennan Center for Justice at New York University published an extensive set of recommendations for I&A earlier this year and cited the reports about the human intelligence program as an example of potentially questionable intelligence collection.
The criticism follows other blows to I&A’s reputation after it failed to adequately warn law enforcement about the likelihood of violence at the US Capitol on Jan. 6, 2021, and compiled intelligence reports on US journalists covering protests in Portland, Ore., the year before.
Wainstein’s letter to lawmakers aimed to put to rest some of the latest concerns by outlining the history of the human intelligence program and how it has paid off. I&A established the Overt Human Intelligence Collection Program in 2016 to govern intelligence collectors’ work with federal, state, local, and private sector partners — with the goal of supporting I&A’s founding mission of rooting out threats to the US.
Interview subjects can include government partners, private companies, nongovernmental organizations, individual citizens, and people who are in detention facilities — often migrants who’ve recently crossed the border. I&A officials must identify themselves, and the interviews must be “voluntary, transparent, and free of any coercion, threats, or intimidation,” Wainstein told lawmakers.
He provided examples of valuable intelligence I&A has gotten from the interviews: information on a cartel member collecting proceeds of illicit drug sales, details on human smuggling operations and corrupt Mexican law enforcement officials, and corroboration of a US resident’s terrorist affiliation.
Wainstein acknowledged the work deserves close scrutiny. I&A paused part of the interview program last year in response to concerns about talking to subjects facing criminal charges. Wainstein said a review of past interviews indicated that only 12 dealt with people in law enforcement custody prior to conviction, and that none of those crossed constitutional lines.
That pause is still in place, and the broader review of the program is in progress.
Former DHS Counterterrorism Coordinator John Cohen, who stepped down last year, also defended the human intelligence program in a recent interview, saying I&A has dual missions to collect domestic intelligence and protect constitutional rights.
“Everything that’s done by this group is under rigorous oversight and scrutiny,” Cohen said. He said Wainstein’s recent moves to elevate oversight functions within I&A and increase supervision of intelligence collection will “allow for even more transparent operations and oversight.”
Civil liberties advocates are more skeptical. Brennan Center counsel Spencer Reynolds criticized I&A’s organizational changes as superficial earlier this month. His organization has pushed DHS to overhaul intelligence collection and create a new oversight office in the department’s headquarters.
Lawmakers are also likely to continue pressing I&A for answers on the scope of its work, tying it to related concerns they have about DHS’s efforts to fight disinformation and combat domestic terrorism.
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