Trump Administration Moves to Allow Intelligence Agencies Easier Access to Law Enforcement Files — ProPublica

The Trump administration is loosening restrictions on the sharing of law enforcement information with the CIA and other intelligence agencies, officials said, overriding controls that have been in place for decades to protect the privacy of U.S. citizens.

Government officials said the changes could give the intelligence agencies access to a database containing hundreds of millions of documents — from FBI case files and banking records to criminal investigations of labor unions — that touch on the activities of law-abiding Americans.

Administration officials said they are providing the intelligence agencies with more information from investigations by the FBI, Drug Enforcement Administration and other agencies to combat drug gangs and other transnational criminal groups that the administration has classified as terrorists.

But they have taken these steps with almost no public acknowledgement or notification to Congress. Inside the government, officials said, the process has been marked by a similar lack of transparency, with scant high-level discussion and little debate among government lawyers.

“None of this has been thought through very carefully — which is shocking,” one intelligence official said of the moves to expand information sharing. “There are a lot of privacy concerns out there, and nobody really wants to deal with them.”

A spokesperson for the Office of the Director of National Intelligence, Olivia Coleman, declined to answer specific questions about the expanded information sharing or the legal basis for it.

Instead, she cited some recent public statements by senior administration officials, including one in which the national intelligence director, Tulsi Gabbard, emphasized the importance of “making sure that we have seamless two-way push communications with our law enforcement partners to facilitate that bi-directional sharing of information.”

In the aftermath of the Watergate scandal, revelations that Presidents Lyndon Johnson and Richard Nixon had used the CIA to spy on American anti-war and civil rights activists outraged Americans who feared the specter of a secret police. The congressional reforms that followed reinforced the long-standing ban on intelligence agencies gathering information about the domestic activities of U.S. citizens.

Compared with the FBI and other federal law enforcement organizations, the intelligence agencies operate with far greater secrecy and less scrutiny from Congress and the courts. They are generally allowed to collect information on Americans only as part of foreign intelligence investigations. Exemptions must be approved by the U.S. attorney general and the director of national intelligence. The National Security Agency, for example, can intercept communications between people inside the United States and terror suspects abroad without the probable cause or judicial warrants that are generally required of law enforcement agencies.

Since the terror attacks of Sept. 11, 2001, the expansion of that surveillance authority in the fight against Islamist terrorism has been the subject of often intense debates among the three branches of government. 

Word of the Trump administration’s efforts to expand the sharing of law enforcement information with the intelligence agencies was met with alarm by advocates for civil liberties protections.

“The Intelligence Community operates with broad authorities, constant secrecy and little-to-no judicial oversight because it is meant to focus on foreign threats,” Sen. Ron Wyden of Oregon, a senior Democrat on the Senate Select Committee on Intelligence, said in a statement to ProPublica.

Giving the intelligence agencies wider access to information on the activities of U.S. citizens not suspected of any crime “puts Americans’ freedoms at risk,” the senator added. “The potential for abuse of that information is staggering.”

Most of the current and former officials interviewed for this story would speak only on condition of anonymity because of the secrecy of the matter and because they feared retaliation for criticizing the administration’s approach.

Virtually all those officials said they supported the goal of sharing law enforcement information more effectively, so long as sensitive investigations and citizens’ privacy were protected. But after years in which Republican and Democratic administrations weighed those considerations deliberately — and made little headway with proposed reforms — officials said the Trump administration has pushed ahead with little regard for those concerns.

“There will always be those who simply want to turn on a spigot and comingle all available information, but you can’t just flip a switch — at least not if you want the government to uphold the rule of law,” said Russell Travers, a former acting director of the National Counterterrorism Center who served in senior intelligence roles under both Republican and Democratic administrations.

The 9/11 attacks — which exposed the CIA’s failure to share intelligence with the FBI even as Al Qaida moved its operatives into the United States — led to a series of reforms intended to transform how the government managed terrorism information.

A centerpiece of that effort was the establishment of the NCTC, as the counterterrorism center is known, to collect and analyze intelligence on foreign terrorist groups. The statutes that established the NCTC explicitly prohibit it from collecting information on domestic terror threats.

National security officials have spent much less time trying to remedy what they have acknowledged are serious deficiencies in the government’s management of intelligence on organized crime groups.

In 2011, President Barack Obama noted those problems in issuing a new national strategy to “build, balance and integrate the tools of American power to combat transnational organized crime.” Although the Obama plan stressed the need for improved information-sharing, it led to only minimal changes.

President Donald Trump has seized on the issue with greater urgency. He has also declared his intention to improve information-sharing across the government, signing an executive order to eliminate “information silos” of unclassified information.

More consequentially, he went on to brand more than a dozen Latin American drug mafias and criminal gangs as terrorist organizations.

The administration has used those designations to justify more extreme measures against the criminal groups. Since last year, it has killed at least 148 suspected drug smugglers with missile strikes in the Caribbean and the eastern Pacific, steps that many legal experts have denounced as violations of international law.

Some administration officials have argued that the terror designations entitle intelligence agencies to access all law enforcement case files related to the Sinaloa Cartel, the Jalisco New Generation Cartel and other gangs designated by the State Department as foreign terrorist organizations.

The first criterion for those designations is that a group must “be a foreign organization.” Yet unlike Islamist terror groups such as al-Qaida or al-Shabab, Latin drug mafias and criminal gangs like MS-13 have a large and complex presence inside the United States. Their members are much more likely to be U.S. citizens and to live and operate here.

On Sept. 22, the Trump administration also designated the loosely organized antifascist political movement antifa as a terrorist group, despite the lack of any federal law authorizing it to do so. Weeks later, the administration named four European militant groups said to be aligned with antifa to the government’s list of foreign terrorist organizations.

Those steps were seen by some intelligence experts as potentially opening the door for the CIA and other agencies to monitor Americans who support antifa in violation of their free speech rights. The approach also echoed justifications that both Johnson and Nixon used for domestic spying by the CIA: that such investigations were needed to determine whether government critics were being supported by foreign governments.

The wider sharing of law enforcement case files is also being driven by the administration’s abrupt decision to disband the Justice Department office that for decades coordinated the work of different agencies on major drug trafficking and organized crime cases. That office, the Organized Crime Drug Enforcement Task Force, was abruptly shut down on Sept. 30 as the Trump administration was setting up a new network of Homeland Security Task Forces designed by the White House homeland security adviser, Stephen Miller.

The new task forces, which were first described in detail by ProPublica last year, are designed to refocus federal law enforcement agencies on what Miller and other officials have portrayed as an alarming nexus of immigration and transnational crime. The reorganization also gives the White House and the Department of Homeland Security new authority to oversee transnational crime investigations, subordinating the DEA and federal prosecutors, who were central to the previous system.

That reorganization has set off a struggle over the control of OCDETF’s crown jewel, a database of some 770 million records that is the only central, searchable repository of drug trafficking and organized crime case files in the federal government.

Until now, the records of that database, which is called Compass, have only been accessible to investigators under elaborate rules agreed to by the more than 20 agencies that shared their information. The system was widely viewed as cumbersome, but officials said it also encouraged cooperation among the agencies while protecting sensitive case files and U.S. citizens’ privacy.

Although the Homeland Security Task Forces took possession of the Compass system when their leadership moved into OCDETF’s headquarters in suburban Virginia, the administration is still deciding how it will operate that database, officials said.

However, officials said, intelligence agencies and the Defense Department have already taken a series of technical steps to connect their networks to Compass so they can access its information if they are permitted to do so.

The White House press office did not respond to questions about how the government will manage the Compass database and whether it will remain under the control of the Homeland Security Task Forces.

The National Counterterrorism Center, under its new director, Joe Kent, has been notably forceful in seeking to manage the Compass system, several officials said. Kent, a former Army Special Forces and CIA paramilitary officer who twice ran unsuccessfully for Congress in Washington state, was previously a top aide to the national intelligence director, Tulsi Gabbard.

The FBI, DEA and other law enforcement agencies have strongly opposed the NCTC effort, the officials said. In internal discussions, they added, the law enforcement agencies have argued that it makes no sense for an intelligence agency to manage sensitive information that comes almost entirely from law enforcement.

“The NCTC has taken a very aggressive stance,” one official said. “They think the agencies should be sharing everything with them, and it should be up to them to decide what is relevant and what U.S. citizen information they shouldn’t keep.”

The FBI declined to comment in response to questions from ProPublica. A DEA spokesperson also would not discuss the agency’s actions or views on the wider sharing of its information with the intelligence community. But in a statement the spokesman added, “DEA is committed to working with our IC and law enforcement partners to ensure reliable information-sharing and strong coordination to most effectively target the designated cartels.”

Even with the Trump administration’s expanded definition of what might constitute terrorist activity, the information on terror groups accounts for only a small fraction of the records in the Compass system, current and former officials said.

The records include State Department visa records, some files of U.S. Postal Service inspectors, years of suspicious transaction reports from the Treasury Department and call records from the Bureau of Prisons.

Investigative files of the FBI, DEA and other law enforcement agencies often include information about witnesses, associates of suspects and others who have never committed any crimes, officials said.

“You have witness information, target information, bank account information,” the former OCDETF director, Thomas Padden, said in an interview. “I can’t think of a dataset that would not be a concern if it were shared without some controls. You need checks and balances, and it’s not clear to me that those are in place.”

Officials familiar with the interagency discussions said NCTC and other intelligence officials have insisted they are interested only in terror-related information and that they have electronic systems that can appropriately filter out information on U.S. persons.

But FBI and other law enforcement agencies have challenged those arguments, officials said, contending that the NCTC proposal would almost inevitably breach privacy laws and imperil sensitive case information without necessarily strengthening the fight against transnational criminals.

Already, NCTC officials have been pressing the FBI and DEA to share all the information they have on the criminal groups that have been designated as terrorist organizations, officials said.

The DEA, which had previously earned a reputation for jealously guarding its case files, authorized the transfer of at least some of those files, officials said, adding to pressure on the FBI to do the same.

Administration lawyers have argued that such information sharing is authorized by the Intelligence Reform and Terrorism Prevention Act of 2004, the law that reorganized intelligence activities after 9/11. Officials have also cited the 2001 Patriot Act, which gives law enforcement agencies power to obtain financial, communications and other information on a subject they certify as having ties to terrorism.

The central role of the NCTC in collecting and analyzing terrorism information specifically excludes “intelligence pertaining exclusively to domestic terrorists and domestic counterterrorism.” But that has not stopped Kent or his boss, intelligence director Gabbard, from stepping over red lines that their predecessors carefully avoided.

In October, Kent drew sharp criticism from the FBI after he examined files from the bureau’s ongoing investigation of the assassination of Charlie Kirk, the right-wing activist. That episode was first reported by The New York Times.

Last month, Gabbard appeared to lead a raid at which the FBI seized truckloads of 2020 presidential voting records from an election center in Fulton County, Georgia. Officials later said she was sent by Trump but did not oversee the operation.

In years past, officials said, the possibility of crossing long-settled legal boundaries on citizens’ privacy would have precipitated a flurry of high-level meetings, legal opinions and policy memos. But almost none of that internal discussion has taken place, they said.

“We had lengthy interagency meetings that involved lawyers, civil liberties, privacy and operational security types to ensure that we were being good stewards of information and not trampling all over U.S. persons’ privacy rights,” said Travers, the former NCTC director.

When administration officials abruptly moved to close down OCDETF and supplant it with the Homeland Security Task Forces network, they seemed to have little grasp of the complexities of such a transition, several people involved in the process said.

The agencies that contributed records to OCDETF were ordered to sign over their information to the task forces, but they did so without knowing if the system’s new custodians would observe the conditions under which the files were shared.

Nor were they encouraged to ask, officials said.

While both the FBI and DEA have objected to a change in the protocols, officials said smaller agencies that contributed some of their records to the OCDETF system have been “reluctant to push back too hard,” as one of them put it.

The NCTC, which faced budget cuts during the Biden administration, has been among those most eager to service the new Homeland Security Task Forces. To that end, it set up a new fusion center to promote “two-way intelligence sharing of actionable information between the intelligence community and law enforcement,” as Gabbard described it.

The expanded sharing of law enforcement and intelligence information on trafficking groups is also a key goal of the Pentagon’s new Tucson, Arizona-based Joint Interagency Task Force-Counter Cartel. In announcing the task force’s creation last month, the U.S. Northern Command said it would work with the Homeland Security Task Forces “to ensure we are sharing all intelligence between our Department of War, law enforcement and Intelligence Community partners.”

In the last months of the Biden administration, a somewhat similar proposal was put forward by the then-DEA administrator, Anne Milgram. That plan involved setting up a pair of centers where DEA, CIA and other agencies would pool information on major Mexican drug trafficking groups.

At the time, one particularly strong objection came from the Defense Department’s counternarcotics and stabilization office, officials said. The sharing of such law enforcement information with the intelligence community, an official there noted, could violate laws prohibiting the CIA from gathering intelligence on Americans inside the United States.

The Pentagon, he warned, would want no part of such a plan.