National Guard Joint Force Headquarters State

UNCLASSIFIED
National Guard Joint Force Headquarters State
Guide to Handling Information on
U.S. Persons When Operating Within the
United States
Pre-Decisional Coordinating Draft V 1.1 23 Feb 10
UNCLASSIFIED

Purpose of the Handbook
The purpose of this handbook is to provide fundamental information on how JFHQ-States J2s can comply with the intelligence oversight program while conducting National Guard (NG) operations within the United States. This handbook will explain how to ensure mission accomplishment while protecting the constitutional rights and privacy of the U.S. population. Many of the principles are based on the Assistant to the Secretary of Defense for Intelligence Oversight (ATSD-IO)’s program and Deputy Undersecretary of Defense for Policy (OSD-P)’s guidance. The handbook applies examples the JFHQ-State J2 is likely to encounter.
Applicability of the Handbook:
This handbook applies to the National Guard Joint Forces when in Title 32. It can be used as a base guidance document for the National Guard Service Component units when in T-32 but each service has additional guidance that should be considered. Though this handbook does reference State Active Duty, it is not intended to serve as a reference for that status. This handbook is meant to serve as a quick reference tool and is not meant as a substitute for the source documents. All JFHQ-States are responsible for knowledge of the original Directives.
This handbook is meant to serve as a quick reference tool and is not meant as a substitute for the source documents. All JFHQ-States are responsible to become familiar with the original Directives listed in the back of the handbook.
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Objectives of the Handbook
This handbook has two main objectives: First is the prevention of violations of the intelligence oversight programs and the protection of the statutory and constitutional rights of U.S. persons. Through the use of operational examples and lessons learned, the handbook attempts to increase the understanding of the activities that National Guard organizations and personnel may lawfully perform to accomplish their mission. Secondly, if prevention fails, the handbook outlines the process to identify, investigate, and report violations, and aggressively implement corrective actions to preclude recurrence.

Table of Contents Section one:
National Guard intelligence activities.
Section two:
National Guard non-intelligence activities.
Section three:
Summary

Page 4 Page 33 Page 39

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Section one: Intelligence Activities
APPLICABILITY
This section of the handbook applies to Title 32 National Guard Joint Intelligence activities. It is an overview of what constitutes intelligence and permissible National Guard intelligence activities.
Intelligence Oversight applies to all National Guard personnel and equipment when;
Personnel are assigned or attached (temporarily or permanently) to units that perform intelligence activities regardless of specialty or job function.
or Equipment is used for the collection, production, and dissemination of intelligence regardless of unit of assignment. or equipment funding source.
**All National Guard equipment purchased by the National Foreign Intelligence Program is inherently intelligence equipment.
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The U.S. Intelligence Community
The Intelligence Community is a federation of executive branch agencies and organizations that work separately and together to conduct intelligence activities necessary for the conduct of foreign relations and the protection of the national security of the United States. These activities include: -Collection of information needed by the President, the National Security Council, the Secretaries of State and Defense, and other Executive Branch officials for the performance of their duties and responsibilities; -Production and dissemination of intelligence; -Conduct of activities and collection of information to protect against, intelligence activities directed against the US, international terrorist and international narcotics activities, and other hostile activities directed against the US by foreign powers, organizations, persons, and their agents; -Special activities; -Administration and support of activities within the US and abroad necessary for the performance of authorized activities; and -Such other intelligence activities as the President may direct from time to time.
The National Guard as a Member of the Intelligence Community
The National Guard is a member of DOD’s intelligence community when conducting intelligence or counterintelligence activities to which part 2 of E.O. 12333 applies.
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What makes something an intelligence activity? The community accepted definitions all include some type of predictive analysis.
Types of Intelligence
National Security Intelligence: The Intelligence Community (IC) members conduct intelligence activities that are necessary for the conduct of foreign relations and the protection of the national security of the United States. As a DOD asset even when operating in T32, the National Guard is only authorized to conduct intelligence activities that are related to foreign intelligence and counterintelligence without further approvals. Like all National Guard operations, if it becomes necessary to support other activities, in this example an intelligence activity other than Foreign Intelligence (FI) or Counter Intelligence (CI), the National Guard command authority must consider the authority, status and funding prior to executing that support.
DOD Intelligence activities are defined as the collection, production, and dissemination of FI and CI. Without Secretary of Defense approval, DOD elements can only perform FI and CI activities that affect United States Persons. * Foreign Intelligence: Information relating to the capabilities, intentions, and activities of foreign powers, organizations, or persons, but not including counterintelligence except for information on the international terrorist activities. * Counter Intelligence: Information gathered on activities, sabotage, or assassinations conducted for or on behalf of foreign powers, organizations, or persons, or international terrorist activities, but not including personnel, physical, document, or communications security programs. (Source: DOD Reg 5240.1-R, December 1982)
JFHQ-State J2s do not have an independent CI collection mission. National Guard units may support active component CI missions as regulated by DOD. Adjutants General will sign an understanding of the mission with the supported CI organization.
(DoD 5240.1-R, December 1982)
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Homeland Security Intelligence: A subcategory of National Security Intelligence conducted by the Department of Homeland Security’s Intelligence Enterprise. It consists of intelligence activities that are related to homeland security threats. Intelligence is collected, analyzed, and disseminated to the full spectrum of homeland security customers in the Homeland Security Department, at state, local, and tribal levels, in the private sector, and in the IC.
The link between HSI and the National Guard is so strong that in many states the Adjutant General is also the Director of Homeland Security. If asked to support a homeland security intelligence activity ALL National Guard assets must be keenly aware of their authority, status, funding and intent. In this regard the determination of compliance with IO guidance can be complex. For instance one must consider if there is a foreign nexus? Is it part of the element’s METL? Is it within the purpose of the funding being used? Are the activities overt and transparent? And finally, have we properly safeguarded U.S. Person’s information? For clarity the best approach is to request advice from the NGB J2.
Law Enforcement Intelligence: Intelligence activities undertaken for the purpose of detecting violations of law or to locate and apprehend persons who violate the law. This includes activities to enforce the Uniform Code of Military Justice but there are very specific elements of DOD designated to perform Law Enforcement Agencies (LEA) intelligence. All DOD elements may cooperate with the LEA. However, the National Guard must never execute independent LEA intelligence activities nor assist LEA with intelligence tradecraft or resources without approval as explained in procedure 12. The National Guard can accept intelligence products of the LEA intelligence elements, especially when there is a direct and immediate threat to the National Guard and/or DOD mission, personnel, and facilities. Again the best approach is to request advice from the NGB-J2.
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STEPS TO PROTECTING CIVIL RIGHTS AND PRIVACY
The flow chart above represents the decision process when considering how to handle U.S. Person’s information during DOD’s lawful intelligence activities as described in EO 12333 and DoD 5240.1. Each consideration is outlined in this section of the handbook. However, for a full explanation, consult the original source or your Senior Intelligence Officer, Inspector General or Staff Judge Advocate.
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AUTHORITY AND MISSION
Specific Unit Mission
The first step to consider in working through the IO decision process is to consider each intelligence element’s defined mission to determine permissibility to retain U.S. Person’s information. Examples of sources of missions include EXORDS, OPORDS, USSIDs, EMAC, FEMA Mission Assignment or Secretary of Defense memorandums. Example: In the case of the JFHQ-State J2s: Mission: The Director JFHQ-State J2 advises TAG and Joint Forces Headquarters-State (JFHQ-State) staffs on all intelligence and security related matters that affect current and / or future NG operations. He is responsible for coordinating intelligence requirements for Joint Intelligence Preparation of the Operational Environment (JIPOE) in support of domestic and national missions. He serves as the executive agent for threat information sharing between local, state, and the national level to ensure situational understanding for a common operating picture (COP). Interprets, develops, and implements intelligence and security guidance and policy for the JFHQ-State. Thus, the JFHQ-State-J2 directorate will provide accurate and timely warning of threats. How to analyze the threat is explained in the JIPOE Within the United States Handbook, but in general when considering the most likely (ex: weather related) and most dangerous (ex: foreign extremist WMD) it is highly unlikely you will need U.S. Person’s information. Threat examples are contained in the list of all hazard threats.
Ask yourself, do you have the Authority and Mission: Is it a function of intelligence? Ex: Yes, foreign terrorist analysis AND Is it within my current mission authority? Ex: Yes NG WMD disaster response mission as stated in your state emergency plan. AND Does it Directly Support the TAG and JFHQ-State decision makers to allow for consideration of the widest range of options? Ex: CCIR/PIRs • If the answer is No….Stop
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In the previous example , the most dangerous threat may indeed be a foreign extremist terrorist group planning a WMD assault within the state (JFHQ-State J2’s area of responsibility). Therefore when thinking through the traditional JFHQ-State J2’s responsibilities of providing assessment of foreign capabilities and intent, the J2 must consider: Within the United States, foreign intelligence concerning United States persons may be collected only by overt means. This is true unless a specific set of conditions are met and then it must still be coordinated with the National Security Branch - the FBI, approved in writing by the head of the DOD intelligence component concerned, and then provided to the Deputy Under Secretary of Defense (Policy). The NGB J2 MUST be consulted prior to any active collection of foreign intelligence concerning US Persons. JFHQ-State J2s do have the authority to use DOD information contained on SIPRnet and JWICs. Best practice is to use the IC derived information, redact all but the most necessary U.S. Person’s data, and use general trends and observations in your assessments. When trying to understand under what circumstances a JFHQ can collect U.S. Person’s information you must understand what the mission and authority is to receive the information. For DOD, authority to conduct activities that affect U.S. Persons are derived from EX 12333 and relate to the National Security Intelligence Activities of FI and CI. This is not meant to imply they are the only Intelligence Activities in the U.S. IC, nor the only authorized intelligence function of a JFHQ-State J2. JFHQ should not collect U.S. Person’s information to perform other U.S. IC Intelligence Activities other than as permitted by DOD, which is FI or CI. At the Same time JFHQ-J2 are also not limited from performing other J2 functions such as Threat analysis, weather effects, strictly because it is not FI. Go for it, just Redact U.S. Person’s information.
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