Improving Interagency Information Sharing Using Technology Demonstrations

The Legal Basis for Using New Sensor Technologies for Counterdrug Operations Along the U.S. Border

by Dan Gonzales, Sarah Harting, Jason Mastbaum, Carolyn Wong

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Research Questions

  1. Does U.S. law restrict or prevent the use of Department of Defense (DoD) sensors in counterdrug operations along the U.S. border?
  2. Does U.S. law restrict or prevent the use of DoD sensors or intelligence, surveillance, and reconnaissance capabilities in DoD technology demonstrations along the U.S. border?

The Department of Defense (DoD) has developed new sensor technologies to support military forces operating in Iraq and Afghanistan. These new capabilities may be useful in counterdrug (CD) operations along the southern U.S. border. DoD has held technology demonstrations to test and demonstrate new technologies along the southern border — because the field conditions along the border closely resemble those in current military theaters of operation and because they can also reveal whether new technologies are useful for CD operations led by domestic law enforcement agencies. However, there are legal questions about whether such technology demonstrations fully comply with U.S. law and whether advanced DoD sensors can legally be used in domestic CD operations when they are operated by U.S. military forces.

In this report, the authors examine federal law and DoD policy to answer these questions. Some parts of U.S. law mandate information sharing among federal departments and agencies for national security purposes and direct DoD to play a key role in domestic CD operations in support of U.S. law enforcement agencies, while other parts of the law place restrictions on when the U.S. military may participate in law enforcement operations. Reviewing relevant federal law and DoD policy, the authors conclude that there is no legal reason why a DoD sensor should be excluded from use in an interagency technology demonstration or in an actual CD operation as long as a valid request for support is made by an appropriate law enforcement official and so long as no personally identifiable or private information is collected. The authors recommend DoD policy on domestic CD operations be formally clarified and that an approval process should be established for technology demonstrations with a CD nexus.

Key Findings

The Department of Defense's Authority to Assist in Counterdrug Operations

  • Title 6 of the U.S. Code (USC) mandates information sharing among federal departments and agencies for national security purposes.
  • Title 10 USC directs the Department of Defense to play a key role in domestic counterdrug (CD) operations in support of U.S. law enforcement agencies.
  • Section 1205 of the 1990 National Defense Authorization Act states that the Secretary of Defense should ensure that DoD conducts adequate research and development activities to improve its ability to carry out the CD functions assigned to it.
  • Other laws have granted the U.S. military additional, temporary authorities to support U.S. government CD operations on U.S. territory.

Restrictions on DoD's Authority to Assist in Counterdrug Operations

  • Title 10 USC, Section 375 prohibits the direct participation of the U.S. military in a search, seizure, or arrest unless explicitly authorized in other parts of U.S. law.
  • The Posse Comitatus Act (Title 18 USC, Section 1385) prohibits law enforcement agencies from using the U.S. military to execute the law on U.S. territory, except where expressly authorized by federal law.

Reconciling the Different Parts of the Law

  • There appears to be no legal reason why a DoD sensor should be excluded from use in a Thunderstorm demonstration or in an actual CD operation as long as a valid request for support is made by an appropriate law enforcement official and so long as no personally identifiable information is collected.
  • There also appear to be no such restrictions on the basis of how sensors were funded.

Recommendations

  • Department of Defense (DoD) policy on counterdrug (CD) operations should be formally clarified in a directive.
  • The U.S. government should establish an approval process for technology demonstrations with a CD nexus. This process should include a coordination and deconfliction mechanism for the technology demonstration authorities and the relevant joint task force.
  • DoD and the Department of Homeland Security should develop an interagency/interdepartmental agreement to clarify the legal framework for technology demonstrations.

Table of Contents

  • Chapter One

    Introduction

  • Chapter Two

    Relevant U.S. Law

  • Chapter Three

    Relevant Department of Defense Policy

  • Chapter Four

    Thunderstorm Demonstrations and Approval Processes

  • Chapter Five

    Findings and Recommendations

  • Appendix A

    National Defense Authorization Acts Relevant to Counterdrug Operations

  • Appendix B

    National Defense Authorization Act for Fiscal Year 1991, Section 1004, as Amended

  • Appendix C

    Public Law 100-456, Chapter 18 of Title 10, United States Code

This research was sponsored by the Rapid Reaction Technology Office within the Office of the Secretary of Defense for Acquisition, Technology and Logistics, and conducted within the International Security and Defense Policy Center of the RAND National Defense Research Institute, a federally funded research and development center sponsored by the Office of the Secretary of Defense, the Joint Staff, the Unified Combatant Commands, the Navy, the Marine Corps, the defense agencies, and the defense Intelligence Community.

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