Trimming the Government's Talons -- Or Not

Early Warning

William M. Arkin on National and Homeland Security

Trimming the Government's Talons -- Or Not

Ever since I revealed the existence of the Pentagon's Talon database and the military's collection of information on anti-war protests, the story has careened in all directions. The sinister interpretation is that the Defense Department was or is keeping any anti-military protesters under surveillance and suppressing the First Amendment rights of American citizens under the guise of counterterrorism. The American Civil Liberties Union has sued and Congress has demanded information and accountability.

Now comes a Defense Department Inspector General report on Talon (thanks to Steve Aftergood at FAS). Talon, as I suspected, got into trouble because of the unregulated machinations of overzealous military police, not because it was the product of some military conspiracy. Since the December 2005 revelations in these pages and on NBC News, three prominent officials have been fired, the database has been scrubbed, and the program has been redirected. The Defense Department's decisive response, in fact, should serve as proof even for the skeptical that the military was caught unaware and took swift action to comply with the law.

Still, the problem hasn't completely gone away: The Defense Department still believes that protests can be a source of a true criminal threat or could serve as a cover for terrorism, and as such should be tracked. For now, the "force protection" officers have lost their mechanism to do so and the military police and intelligence have been reminded that they don't have the authority to collect information on U.S. "persons" or engage in domestic spying. I don't mean to be conspiratorial myself, but the response has been to think of more clandestine means to do the same tracking, and to rely more upon even more unregulated law enforcement agencies to do the dirty work.

On Dec. 13, 2005, NBC News aired a report, "Is the Pentagon spying on Americans?" based upon my research and the leak of a 10-month 2005-2006 database tracking "suspicious" incidents of anti-military activity that might signal terrorist or criminal threats to military bases and personnel. In the database were references to reporting on a couple of hundred of anti-war protests and anti-recruiting incidents. The incidents were deemed to be a "threat" to the Defense Department if there was a concern that there might be violence, vandalism or some other law-breaking, even civil disobedience.

Talon had been established in 2001 as a way of tracking suspicious activity that might indicate targeting of military interests by terrorists. In May 2003, Deputy Defense Secretary Paul Wolfowitz directed all of the services to use the Talon format to track "non-validated domestic threat information." It was hoped that the Talon database of raw reports would connect the dots, possibly revealing terrorist action in domestic incidents. Protests were only a minor part of what was collected; a vast majority of the database contained reports of cars parked on the perimeter of military installations or "turnarounds" at base gates.

A sensible effort at passive analysis soon became a cause for more active monitoring. Military police began to scour the Internet for indicators of suspicious activity. Military police and military intelligence began to receive reports from local police and from federal law enforcement agencies of anti-war and anti-military protests. The database grew, but because the interpretation of what to collect and how aggressive to be was made at the base level (and the database itself shows that some officers at some bases were very aggressive), the collection was random and uneven. In fact, any sane person looking at the entire database in December 2005 would want to ask: What's the value of this information? Why closely track protestors in one place and ignore them in others?

The silliness of the effort, or at least its willy-nilly execution, provoked an immediate response inside the Defense Department.

U.S. Northern Command (NORTHCOM), the homeland defense command, deleted all Talon reports from its databases in June 2006 and turned off the system. The Counterintelligence Field Activity (CIFA), which had been made responsible for creating a larger database called Cornerstone that combined law enforcement and intelligence collection, immediately began to segregate and delete any reports older than 90 days that included information on U.S. "persons." New directives went out with clarifications regarding what could be collected and retained. The CIFA director and deputy director were removed from office, as was a senior Pentagon official supposedly responsible for overseeing the program.

On Feb. 2, 2006, Undersecretary of Defense for Intelligence Steve Cambone directed CIFA to focus Cornerstone on counterintelligence tracking or foreign spies and terrorists. Any Talon reports retained, the memorandum stated, would henceforth be kept in intelligence channels subject to lawful retention rules. On March 30, 2006, Deputy Secretary of Defense Gordon England ordered that the Talon system be used only to report possible international terrorist activity, not the activity of domestic protestors, and only retained as intelligence information.

In other words, military police at local bases were out of the domestic law enforcement business. Finally, in April, the new undersecretary of defense for intelligence, Ret. Lt. Gen. James R. Clapper Jr., recommended to Secretary of Defense Robert Gates that the Talon program be terminated altogether due to "its image in the Congress and the media."

The Inspector General reviewed the Talon and Cornerstone databases and found no evidence of an unlawful intelligence collection operation. Of 13,000 Talon reports, the IG found that CIFA had scrubbed 1,131 as improper; of those 263 were related to protests and demonstrations. Of those 263 Talon reports, 157 discussed an action or event that took place and 75 of those 157 involved criminal actions that resulted in police intervention or arrests, involved destruction of property or violence, or required court appearances. The IG found that a total of 334 reports contained U.S. person information (regarding individuals, organizations, or businesses by name. A total of 142 U.S. persons were identified in 92 protest and demonstration Talon reports. According to the IG, "The U.S. person information included subjects; sources; witnesses; victims; interviewees; illegal aliens; famous people referenced for quotes, positions and scheduled appearances; law enforcement officials involved; and the agent creating the TALON."

The IG further determined that the Defense Department did not engage in either "overt or covert intelligence methods to obtain the information contained in the TALON reports." Information came in from "concerned individuals such as civilians; military personnel, both performing their official duties and as citizens; and law enforcement personnel." The Army's 902nd Military Intelligence Group, headquartered at Ft. Meade, Maryland was found to be the main conduit for information coming in from these other law enforcement sources. This included particularly Immigration and Customs Enforcement (ICE) of the Department of Homeland Security and the Federal Protective Service.

Like most Inspector General Investigations, the Defense Department review of the Talon database was specific and narrow. The Talon program per se was not the subject of the investigation, nor were the actions of CIFA, Northern Command, or individual military bases and officers to collect or solicit information to track "threats," including protest activity.

So Talon is dead, and the Defense Department is contrite on any activities it might have conducted that violated its own regulations and inadvertently might have violated the law. But the Talon experience, military sources say, has just forced CIFA and NORTHCOM to go back to the drawing boards to figure out a way to keep an eye on domestic activity that could indeed be the source of terrorism.

And so the circle begins again. The danger now is that the dots, which Defense Department law enforcement still believes are valuable and should be connected, will be collected in some other way. The place for Congress and the ACLU to look is at the Department of Homeland Security, the new law enforcers with an unregulated and expansive mandate.