This article first appeared in Just Security.
The Evolution of DHS Intelligence Operations
The Department of Homeland Security’s (DHS) primary intelligence division, historically criticized for its politicized actions, lax regulations, and toxic culture, has embarked on a transformation over the past two years. The initiative, described as a comprehensive “360 review,” aimed to realign office structures and assess operational priorities, culminating in a 228-page policy manual issued during the final days of the Biden administration. Despite these efforts, concerns persist about potential abuse.
The manual attempts to address the longstanding issues within the DHS Office of Intelligence and Analysis (I&A) by implementing new procedures for documenting intelligence activities. However, these changes are criticized for not sufficiently addressing the fundamental risks associated with I&A’s domestic intelligence operations.
The Challenge of Reforming I&A’s Operations
Efforts to overhaul I&A’s activities have been met with skepticism. The agency’s history of targeting journalists and protestors during the 2020 racial justice demonstrations, and its surveillance of social media discussions on topics like abortion and elections, underscores the need for significant reform. Although Congress has signaled concern, comprehensive legislative action remains unlikely in the current environment.
Former intelligence attorney at DHS, now with the Brennan Center for Justice, has detailed the agency’s ongoing struggles and proposed a plan for fundamental reform. However, recent legislation leaves loopholes that allow for exploitation of I&A’s “vague” mandate, as noted by the current DHS intelligence lead.
New Procedures and Their Limitations
I&A’s new policy manual introduces requirements for documenting and justifying intelligence operations. Despite these measures, critics argue that the standards for “reasonable belief” are insufficiently stringent. The manual references I&A’s 2017 guidelines, which permit the targeting and retention of information about First Amendment-protected activities if deemed relevant to the agency’s missions.
The agency’s broad missions, including a newly asserted mandate to counter hate crimes, raise questions about its ability to conduct such work without abuse. The guidance acknowledges the risk of pretextual targeting but lacks clear prohibitions against focusing on constitutionally protected activities.
Concerns Over Personnel and Oversight
To implement its authorities, I&A has brought in personnel from the Central Intelligence Agency (CIA), raising concerns about their suitability for a domestic intelligence unit. Additionally, a new internal structure has been introduced to enhance oversight, but it remains inadequate due to a permissive legal and policy environment.
The oversight office within I&A lacks jurisdiction over many DHS intelligence programs, leaving significant activities unchecked. This situation exacerbates concerns about potential abuse, particularly in the context of controversial immigration and border enforcement policies.
Future Directions and Legislative Action
Despite the Biden administration’s efforts, I&A’s outlook remains troubled. While new documentation procedures could help move the agency away from its history of abuse, the reliance on discretionary standards and weak safeguards undermines these efforts. Effective reform will require legislative action to address I&A’s controversial activities and strengthen intelligence oversight.
There is potential for Congress to reassign I&A’s less contentious functions to other agencies and shut down high-risk areas. The Brennan Center has outlined what a functioning intelligence oversight program at DHS could look like, urging Congress to consider these recommendations.
As the U.S. faces potential overreach, it is crucial to document I&A’s activities for future reform opportunities. This approach may serve as a catalyst for meaningful change when the next tipping point arrives.
