Press Releases
House Intelligence Committee Takes Next Steps in Investigation Into Actions by Department of Homeland Security’s Office of Intelligence and Analysis in Portland and in Response to Protests NationwideI&A Rescinds Flawed Legal Analysis Following Committee Pressure, and Committee Sets Schedule for Transcribed Interviews
Washington,
August 19, 2020
Washington, DC – Today, Rep. Adam Schiff (D-CA), the Chairman of the House Permanent Select Committee on Intelligence, sent a letter to Joseph Maher, the U.S. Department of Homeland Security (DHS) Deputy General Counsel and Senior Official Performing the Duties of the Under Secretary for Intelligence and Analysis (I&A), as part of the Committee’s investigation into I&A’s expanded intelligence activities, including its actions in Portland and involvement in the Administration’s response to protests nationwide. The Committee initiated this investigation after public reports that I&A may have engaged unprecedented, “expanded” intelligence and related activities, in support of a policy that exceeds the Department’s historical mission and is contrary to constitutionally-protected rights of speech, assembly, and peaceful protest. In the letter, which comes after DHS made additional, but very limited, production of documents to the Committee, Schiff sets a schedule for initial transcribed interviews with senior I&A personnel in August and September, including the Associate General Counsel for Intelligence, the Director of the Field Operations Division, the Regional Intelligence Officer responsible for I&A activities in Portland, and the Director of Homeland Identities, Targeting & Exploitation Center. In the letter, Schiff notes: The position of the Department and I&A—as an element of the Intelligence Community—is untenable. It is contrary to I&A’s legal obligation to keep the congressional intelligence committees fully and currently informed of its intelligence activities, including upon specific request as the Committee has done here. The fact of a concurrent investigation by an inspector general, or an ongoing process by the Department to review and produce documents to the Committee, cannot serve as a justification to delay, sidestep, or foreclose in any way full and timely cooperation by I&A with its oversight committee, particularly on a matter of such grave national importance—protecting the civil liberties of Americans exercising their First Amendment rights… The Committee plans to schedule the remaining interviews in short order. If the Department continues to maintain that it will not make these officials available for transcribed interviews, the Committee will have no choice but to issue individual subpoenas to each official to compel their separate testimony by deposition, consistent with the rules and regulations of the House of Representatives and the Committee. The letter also makes public for the first time changes that I&A has made, which followed oversight and scrutiny by Committee. Schiff noted in the letter: Also, on August 14, you shared with I&A’s workforce a memorandum that formally rescinds the legal guidance—known as a “job aid”—that I&A prepared in early July to clarify its “expanded” intelligence collection and reporting authority related to monuments, memorials, and statues. The memorandum nonetheless insists that there is “more than one view regarding I&A’s authorities in this area,” even as you explain that I&A is now adopting a narrower interpretation of I&A’s legal authority to collect and disseminate intelligence regarding “threats to damage, destroy, or impede Federal Government Facilities, including National Monuments and Icons.” The fact that I&A adopted such a flawed legal analysis in the first place and its inability to fully repudiate such overreach is disappointing. The Committee is exploring legislative options to clarify I&A’s authorities and mission and institute necessary guardrails moving forward. The Committee is prepared to work collaboratively with I&A on these reforms. The full letter, which makes additional information public for the first time, can be found here, or below:
Mr. Joseph B. Maher Principal Deputy General Counsel and Senior Official Performing the Duties of the Under Secretary for Intelligence and Analysis Office of Intelligence and Analysis Dear Mr. Maher: The House Permanent Select Committee on Intelligence (“Committee”) is in receipt of the Department of Homeland Security’s (“DHS” or “Department”) limited document production on August 14, 2020, in response to the Committee’s July 22 and August 3 letters. In its accompanying cover letter, the Department takes the position that it is unable to make available at this time any of the officials the Committee requested for transcribed interviews—including yourself in your current role—as part the Committee’s investigation of the Department’s Office of Intelligence and Analysis’ (“I&A”) activities in Portland and in support of the Department’ response to protests nationwide. The position of the Department and I&A—as an element of the Intelligence Community—is untenable. It is contrary to I&A’s legal obligation to keep the congressional intelligence committees fully and currently informed of its intelligence activities, including upon specific request as the Committee has done here. The fact of a concurrent investigation by an inspector general, or an ongoing process by the Department to review and produce documents to the Committee, cannot serve as a justification to delay, sidestep, or foreclose in any way full and timely cooperation by I&A with its oversight committee, particularly on a matter of such grave national importance—protecting the civil liberties of Americans exercising their First Amendment rights. Moreover, such blanket noncooperation on witness interviews contradicts the August 4, 2020 testimony of Mr. Kenneth Cuccinelli, who committed before the Senate Judiciary Subcommittee on the Constitution that DHS would “absolutely” cooperate with our Committee’s investigation. Therefore, with regard to the Committee’s interview requests, the Committee expects, as an initial step towards full cooperation, that the following officials participate in transcribed interviews on the specific dates outlined below: The Committee plans to schedule the remaining interviews in short order. If the Department continues to maintain that it will not make these officials available for transcribed interviews, the Committee will have no choice but to issue individual subpoenas to each official to compel their separate testimony by deposition, consistent with the rules and regulations of the House of Representatives and the Committee. With regard to the Committee’s request for documents, the Committee welcomes the Department and I&A’s initial, albeit limited, production. The Committee has reviewed the production closely, however, and notes that it is severely incomplete and does not respond to the majority of the Committee’s specific requests. The Committee requested on July 22 and August 3, 2020, among other records, "all documents, communications, or other materials" regarding DHS's intelligence activities in connection with Executive Order 13933, including "all ... intelligence products, intelligence reports or other intelligence information" collected or generated regarding the Executive Order "and deployment of DHS officers to Portland and other areas." We also requested "all e-mails, memoranda, or other communications or documents" between the Department and the Department of Justice or the White House related to the Executive Order and the intelligence information supporting former Acting Undersecretary Brian Murphy's email of July 25, 2020, in which he directed that I&A’s intelligence products describe “violent opportunists” as “violent ANTIFA anarchists inspired.” Furthermore, we requested policies and guidance "related to custodial debriefings," including those related to I&A's activities in Portland. These requests were purposeful and specific, in part because the Committee has reason to be concerned that I&A personnel deployed to Portland, or involved in matters related to protests in the city or elsewhere, may have been engaged in intelligence collection and reporting activity of unclear propriety and legality, including possible involvement in debriefings of individuals detained by DHS personnel. Of the 139 pages produced, DHS and I&A previously produced a majority of the documents to the Committee or are publicly available. DHS produced no information regarding intelligence requirements, essential elements of information, or standing information needs that guided I&A intelligence activities in Portland and in support of DHS’ response to protests nationwide; no internal DHS or I&A correspondence, including communications with the Department of Justice or the White House; and none – or almost none – of the intelligence that presumably underly Mr. Murphy’s July 25 email. Furthermore, of the policies that DHS did produce, some could apply to I&A participation in custodial debriefings or potential exploitation of electronic devices, but the policies produced are of general applicability, and not designed to cover such activities specifically. Moreover, the policies provided do not contain sufficient detail to demonstrate how—if at all—I&A ensured that its personnel produced the intelligence reports and finished intelligence products in question consistent with Intelligence Community standards, especially those applicable to analytic tradecraft and integrity. Additionally, among the finished intelligence products that I&A previously claimed that it made available to the Committee, three items marked “INTERNAL ONLY” remain outstanding, despite our subsequent requests via e-mail and the July 22 and August 3 letters. I&A should immediately provide the missing products. In light of this initial production, and the Department’s representation in its August 14 letter that it is “endeavoring to produce documentation that is responsive to [the Committee’s] request,” the Committee is prepared to work with the Department and I&A to receive the remaining documents. The Committee is open to arranging a schedule of productions, as offered in the July 22 and August 3 letters, beginning with a substantial production no later than Wednesday, August 26 of (1) the requested raw intelligence reports—Field Intelligence Reports (“FIRs”), Intelligence Information Reports (“IIRs”), Open Source Intelligence Reports (“OSIRs”), and ‘baseball cards” — and (2) the intelligence requirements, essential elements of information, or standing information needs related to the deployment of Department officers to Portland. Such an arrangement would obviate the need for the Committee to seek compulsory process to ensure compliance with the Committee’s document requests. Finally, the Committee welcomes the Department’s recent corrective steps. As noted in its August 14 cover letter, the Department, as of July 30, 2020, has discontinued collecting information involving members of the press and has initiated a review of the policy and procedures associated with such improper collection. Also, on August 14, you shared with I&A’s workforce a memorandum that formally rescinds the legal guidance—known as a “job aid”—that I&A prepared in early July to clarify its “expanded” intelligence collection and reporting authority related to monuments, memorials, and statues. The memorandum nonetheless insists that there is “more than one view regarding I&A’s authorities in this area,” even as you explain that I&A is now adopting a narrower interpretation of I&A’s legal authority to collect and disseminate intelligence regarding “threats to damage, destroy, or impede Federal Government Facilities, including National Monuments and Icons.” The fact that I&A adopted such a flawed legal analysis in the first place and its inability to fully repudiate such overreach is disappointing. The Committee is exploring legislative options to clarify I&A’s authorities and mission and institute necessary guardrails moving forward. The Committee is prepared to work collaboratively with I&A on these reforms. As you begin leading the men and women of I&A and chart a path forward to restore trust and confidence in I&A’s mission and activities, the Committee hopes and expects that you will fulfill your legal obligation towards the Committee to ensure prompt and full compliance.
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