ARGUMENT: REINING IN DHS I&A How DHS Laid the Groundwork for More Intelligence Abuse

I&A, the lead intelligence unit of the Department of Homeland Security (DHS) — long plagued by politicized targeting, permissive rules, and a toxic culture — has undergone a transformation over the last two years. Spencer Reynolds writes in Just Securitythat this effort, messaged as a comprehensive “360 review,” involved two phases: a realignment of office structures and an assessment of operational priorities and guidance. The review culminated in a 228-page policy and organizational manual quietly issued in the Biden administration’s waning days to govern the activities of the DHS Office of Intelligence and Analysis (I&A). This effort to break from a troubled past is commendable, but it ultimately does little to change the fundamental risk of abuse.

Reynolds continues:

It is past time to end I&A’s ill-defined domestic intelligence activities that operate with neither meaningful safeguards nor robust, objective oversight. Even Project 2025, the conservative policy blueprint, calls to shut down the agency. Yet a full fix, which requires an act of Congress, is unlikely in this current environment — as would be the Trump administration’s support for it. But with presidential promises to target critics and crush dissent, the risks posed by I&A are greater than ever.

I&A is known for its targeting of journalists and protestors during 2020 racial justice demonstrations and its assertions that people vandalizing confederate monuments threatened national security. It conducts social media surveillance of Americans talking about abortion, elections, and other “narratives” and grievances — in other words, political talk about hot button issues. The agency disseminates this intelligence to thousands of police nationwide who use it to drive law enforcement decisions.

During the first Trump administration and half of Biden’s presidency, I was an intelligence attorney at DHS, where I advised I&A. Since leaving to join the Brennan Center for Justice, I have chronicled the agency’s ongoing struggles and proposed a plan for fundamental reform. Congress passed legislation that signaled concern but left serious loopholes to exploit what Biden’s DHS intelligence lead called a “vague” mandate.

Following its internal review, I&A has established processes for documenting intelligence activities. While that is a good first step, I&A’s new guidance uniformly validates an expansive view of legal authorities, which continue to permit abuse of counterterrorism and other powers. Indeed, investigations by journalists and civil society have shown that I&A’s reformers spent months targeting environmentalists, portraying them as domestic violent extremists. State authorities relied upon this questionable intelligence to build a politicized RICO indictment – actions more similar to I&A’s 2020 operations in Portland than those of a truly reformed agency. The guidebook offers nothing concrete to protect against future abuse.

Moreover, the Biden administration’s two-year effort illustrates the flimsy nature of discretionary internal reforms like I&A’s. DHS recently removed the guidebook and related documents from its website, likely due to the Trump administration’s new executive order targeting diversity. The policy manual was then reuploaded, stripped of references to terms like “gender,” including a prohibition drawn from constitutional principles on intelligence activities based solely on the trait. Confusion remains as the prohibition still appears in I&A’s publicly available 2017 Attorney General-approved guidelines. The exact impact of these changes remains to be seen, but they show how easily even modest internal reforms can be undone.

Reynolds concludes:

I&A’s outlook remains troubled. Greater documentation of operations could help the agency move past its history of abuse. But after years of charting a path forward, I&A has ultimately embraced discretionary standards, weak safeguards, and unempowered oversight. And even good procedural checks can be quickly disregarded.

Ultimately, Congress must rein in I&A. Legislators should explore giving other agencies I&A’s useful, less controversial functions — like making certain federal intelligence available to city and state officials and coordinating DHS intelligence activities — while shuttering areas of high risk and little value. Congress should start with I&A’s social media monitoring, which I&A struggles to do effectively while abusing it to target political views or activists; its associated counterterrorism work, often a pretext for similar activities; and its activities in fusion centers and detention environments, which promote abuse of its analysis by local authorities.

Elsewhere, Brennan Center has detailed what a working intelligence oversight program would look like at DHS. Congress should build that into law.

And as the Brennan Center has outlined, there are steps that city and state officials can take to protect their constituents from federal police overreach, such as shutting off access to local immigration, crime, and administrative data, prohibiting the use of local facilities for federal operations, and withdrawing from joint task forces. Many of those steps would also shield against potential abuse of city and state resources by I&A and other intelligence agencies.

Congressional appetite for serious reform often occurs only after significant overreach. As the United States potentially enters one of those periods, our best hope may be to document I&A’s almost inevitable abuse for when that next tipping point arrives.