Military regulations offer wide latitude in the gathering of
domestic intelligence information.
“Contrary to popular belief, there is no absolute ban on [military]
intelligence components collecting U.S. person information,” according
to a 2001 Army intelligence memo.
What’s more, military intelligence agencies can provisionally
“receive” domestic intelligence information that they may not be
legally permitted to “collect.”
“MI [military intelligence] may receive information from anyone,
That point was stressed in the November 5, 2001 memo issued by Lt. Gen.
Robert W. Noonan, Jr., the Deputy Chief of Staff for Intelligence.
DoD and Army regulations “allow collection about U.S. persons
reasonably believed to be engaged, or about to engage, in
International terrorist activities.”
“Remember, merely receiving information does not constitute
‘collection’ under AR [Army Regulation] 381-10; collection entails
receiving ‘for use’,” Gen. Noonan wrote.
“Army intelligence may always receive information, if only to
determine its intelligence value and whether it can be collected,
retained, or disseminated in accordance with governing policy.”
The distinction between “receiving” information (always permitted)
and “collecting” it (permitted only in certain circumstances)
appears to offer considerable leeway for domestic surveillance
activities under the existing legal framework.
This in turn makes it harder to understand why the NSA domestic
surveillance program departed from previous practice.
“It seems to me that there is enough ambiguity in the language that
with a bit of creativity in managing the US persons files there
would have been not too much trouble” applying existing rules to the
NSA program, said John Pike of GlobalSecurity.org, who pointed
Secrecy News to the 2001 Army memo.
See “Collecting Information on U.S. Persons,” Office of the Deputy Chief of Staff for Intelligence, November 5, 2001.
Army Regulation 381-10, “U.S. Army Intelligence Activities,” was
reissued on November 22, 2005, but up to now it has not been
However, the previous edition of AR 381-10, dated July 1, 1984 (and in effect
until December 22, 2005), is available here.