ARGUMENT: Sidelining DHS watchdogsHow the DHS Intelligence Unit Sidelined the Watchdogs

Published 8 August 2020

Several months ago, the leadership of the Office of Intelligence and Analysis asked DHS’s second-in-command, Ken Cuccinelli, to limit a department watchdog from regularly reviewing the intelligence products it produces and distributes. Cuccinelli signed off on the move, according to two sources familiar with the situation, which constrained the role of the department’s Office of Civil Rights and Civil Liberties in approving the intelligence office’s work. Benjamin Wittes writes that “It is no wonder, under these circumstances, that there has been a rash of cases in which the office [DHS I&A] seems to have collected and disseminated “intelligence” on absurd subjects (including but not limited to me).”

Benjamin Wittes, writing in Lawfare, quotes Betsy Woodruff Swan who wrote in Politico a story reporting that, 

Several months ago, the leadership of the Office of Intelligence and Analysis asked DHS’s second-in-command, Ken Cuccinelli, to limit a department watchdog from regularly reviewing the intelligence products it produces and distributes.

Cuccinelli signed off on the move, according to two sources familiar with the situation, which constrained the role of the department’s Office of Civil Rights and Civil Liberties in approving the intelligence office’s work.

On Wednesday night, Wittes received a trio of internal documents from the Office of Intelligence and Analysis (DHS I&A) fleshing out Woodruff Swan’s story. He publishes these documents—all unclassified—in full. And he adds some explanatory notes regarding what they mean and how I believe they connect to the recent spate of stories about inappropriate DHS I&A collection and dissemination.

He concludes:

In short, according to these documents, DHS I&A has to seek review on privacy, civil rights, or civil liberties grounds only under a certain set of circumstances, it can impose time limits on reviews by declaring an exigent circumstance on its own authority, and it can then adjudicate its own disputes with the reviewers to the extent that issues arise.

It is no wonder, under these circumstances, that there has been a rash of cases in which the office seems to have collected and disseminated “intelligence” on absurd subjects (including but not limited to me). 

I will do a fuller analysis of the revised IA-901 guidance against the original once I have obtained both documents and have had the opportunity to review them carefully side by side.