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Administrative Actions with a Counterintelligence Twist

McCullough, Timothy M

The Army Lawyer, 2020-09 (5), p.39-41

Charlottesville: Judge Advocate General's School

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  • Título:
    Administrative Actions with a Counterintelligence Twist
  • Autor: McCullough, Timothy M
  • Assuntos: Armed forces ; Army ; Classification ; Criminal investigations ; Defense contracts ; Espionage ; Evidence ; Federal employees ; Government agencies ; Intelligence gathering ; Intelligence service ; Interviews ; Law enforcement ; Laws, regulations and rules ; Management ; Military administration ; Military aspects ; Military intelligence ; National security ; Personnel management ; Separation
  • É parte de: The Army Lawyer, 2020-09 (5), p.39-41
  • Descrição: "1 This authority is further delegated through Army channels to the Commander of U.S. Army Intelligence and Security Command (INSCOM); it is formalized, in part, in Army Regulation (AR) 381-12, Threat Awareness and Reporting Program.2 In AR 381-12, Tables 3-1 through 3-4 set forth a series of indicators that Soldiers should report to 1-800-CALL-SPY or a number of other resources described.3 Through authorities from INSCOM- and as described in AR 381-20, Army Counterintelligence Program-CI agents examine these tips and generate CI reports that could serve as the basis for additional investigation.4 These investigations are designed to: identify activities that may constitute national security crimes; substantiate or refute allegations or indications of spying; protect Army personnel, installations, and property; and acquire evidence to assist in the prosecution by competent authorities.5 The collection of information about a subject of an investigation is further limited by the procedures outlined in DoD Manual 5240.01.6 During a CI investigation, generally, non-public information about a U.S. person7 can only be intentionally collected without consent when the individual is believed: to be engaged in intelligence activities on behalf of a foreign power or their agent; be engaged in international terrorist activities; or be acting on behalf of an international terrorist.8 Given the subject matter and predicate for CI investigations, it is common for the investigations to include information, classified at various levels, from a number of other agencies. Using CI Evidence for Separation With the robust quality of CI investigations, it is tempting to simply use the CI investigation for a traditional administrative action.9 While the CI investigation may resemble-or in some cases parallel-a CID investigation, the CI investigation is intelligence driven and governed by intelligence oversight procedures;10 on the other hand, the CID investigation is for an express law enforcement purpose.11 This distinction most commonly manifests as a JA's inability to use all the evidence in the CI file for the separation process due to intelligence considerations such as the incidental disclosure of sources and methods.12 In originally classifying a piece of information, the agency head-whether DoD, Army, or other agency-is making a determination about the potential harm the release of that information could have on the national security of the United States. Since intelligence from non-Army agencies may carry additional caveats or limitations on its distribution or use, derivative classification can make it difficult to include a summary of classified material in a separation packet.15 With the difficulty in sharing intelligence with the target of that intelligence, it is often necessary to find alternate methods for separation. [...]when a subject fills out their Standard Form 86,17 or conducts an interview with the Office of Personnel Management, those files are accessible by the individual through the Privacy Act.18 Additionally, if there is inconsistent data between these sources and other available sources, such as Federal Bureau of Investigation or U.S. Customs and Immigration Service (USCIS) interviews, it is possible to justify separation without referencing sensitive materials.19 Finally, when a separation authority is reviewing the separation action, consider reading that commander into the CI investigation.
  • Editor: Charlottesville: Judge Advocate General's School
  • Idioma: Inglês
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  • Realização: ABCD-USP USP   Logos de Redes Sociais: Freepik

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