The Department of Homeland Security (DHS) authorized national surveillance to identify threats against monuments and statues in response to President Donald Trump’s executive order against vandalism against federal monuments, according to a department memo obtained by Lawfare.
The document, issued by the DHS Office of Intelligence and Analysis, describes “Activities in support of the protection of monuments, monuments, statues and the fight against recent criminal violence.”
The document says DHS staff is “gathering and reporting on various activities in the context of heightened threats directed at monuments, monuments and statues.” It also provides legal guidance on the “expanded intelligence activities necessary to mitigate the significant threat to homeland security” posed by threats to the statues.
Senior DHS official Ken Cuccinelli appeared to refer to gathering information about protests during an interview with CNN on Monday.
“We obtained information on planned attacks on federal facilities,” he said in response to questions about the administration’s controversial deployment of federal authorities in Portland. “If we get the same kind of intelligence elsewhere about threats to other facilities or officers, we would respond the same way.”
But the memorandum “makes clear that authorized intelligence activity encompasses much more than planned attacks on federal personnel or facilities,” wrote Benjamin Wittes, editor of Lawfare, and Steve Vladeck, expert on national security laws at the Faculty. of Law at the University of Texas. . “It also appears to include planned vandalism of Confederate (and other historical) monuments and statues, whether federally owned or not.”
The document provides legal guidance to staff detailing what type of intelligence gathering is appropriate. The document was issued after Trump signed an executive order on June 26 reaffirming that the federal government will prosecute “any person or entity that destroys, damages, destroys, or desecrates a monument, monument, or statue within the United States or any another way to destroy government property. ” “
The order ordered Attorney General William Barr to work with local police to carry out investigations and prosecutions of alleged vandals of monuments and statues “regardless of whether such structures are located on federal property.”
Although the order was “widely mocked for doing nothing,” since a 2003 statute already made it a punishable offense with up to 10 years in prison for damaging any “structure, plaque, statue, or other monument on public property commemorating the serving any person or persons in the United States armed forces, “Wittes and Vladeck wrote, DHS appears to be” interpreting the June executive order as defining a new national security priority, one that really justifies the gathering of intelligence “.
The document says the legal guidance is “specific to the expanded intelligence activities necessary to mitigate the significant threat to national security articulated in the president’s executive order of June 26, 2020.”
Specifically authorizes staff to “participate in physical surveillance, the use of mail covers, and the use of monitoring devices only to the extent permitted and consistent with [rules limiting their use to counterintelligence investigations]”
“I&A personnel are not allowed to conduct electronic surveillance or physical searches without consent,” he adds. “The use of these techniques in the United States will be coordinated with the Federal Bureau of Investigation.”
This means, Wittes and Vladeck wrote, that protesters can “reasonably expect that there will be an ongoing collection and analysis of information from public sources by DHS” and likely the protesters’ posts on social media.
The document states that this intelligence gathering is authorized in response to threats of violence and threats to damage government facilities. But it also adds that it can be used in response to “threats to damage or destroy any monument, monument or public statue (MMS).”
The memorandum clarifies that surveillance cannot be used “for the sole purpose of monitoring activities protected by the First Amendment or the legal exercise of other constitutional or legal rights, or for the purpose of suppressing or charging criticism or dissent.” Officials must “establish a reasonable belief” that the intelligence collection supports one of the established missions.
“You may collect information about (i) threats to MMS; (ii) individuals or groups that pose such threats, or their tactics, techniques, or procedures (TTP); and (iii) information that otherwise informs a general assessment of threats MMS will materialize, “says the memo, adding that” people who simply engage in nonviolent protest activities near MMS or make hyperbolic statements about MMS are probably not a threat to MMS. ”
A “threat to MMS” means the imposition of any damage sufficient to impede the purpose or function of the MMS, “the note continues.
The document goes on to add that any information collected that is not related to one of the established missions must be purged within 180 days. The information retained by the agency may be released to other federal, state and local law enforcement agencies prior to any of the established missions.
The memorandum raised concerns from legal experts.
“It is not convincing, because it should be obvious that vandalism and other damage to monuments, including federal monuments, do not threaten homeland security more than most property crimes,” wrote Wittes and Vladeck. . “The premise is alarming, because it uses coverage for minor property damage, whether to federal or other property, to justify gathering information against ordinary Americans, most of whom have nothing to do with the underlying property damage, and many of which are involved in the most American activities: peacefully protesting against your government
