Headquarters Department of the Army Washington, DC 1 July 1984 "Army Heguiation 38:-10 E*ective 1 August 1984 Military Intelligence US Army Intelligence Activities Summary. This regulation, which s2ts forth policies and pro- cedures governing the conduct of intelligence activities by Department of the Army intelligence components, has been revised. This revision implements [7OD Directive 5240.1 and DOD 5240.1-R which implement Lxecutive Order 12333, United States intelligence Activities. It includes all! of DOD 5240.1-R, ‘Procedures Governing the Acuvities of DOD Intelligence Components that Affect United States Persons,” dated Decernber 1982, and adds implementing and supple- menting instructions where required. These additions are set in boidface type. Applicability. 1. This regulation applies to the following: a. All Army intelligence components, as that term is defined in appendix A, paragraph 8. b, Other military personnel and civilian employees of the Department of the Army when they engage in intelligence activities as that term is defined in appendix A, paragraphs 8 and 13. c. Members of the Army National Guard and US Army Reserve when they are performing Federal duties or engaging in activities directly related to a Federal duty or mission. z. Army intelligence components are explicitly excluded from the provisions of AR 380--13. 3. This regulation is not applicable to activities covered under Presidential Directive/National Security Council—9. impact on New Manning System. This regulation does not contain information that affects the New Manning System. Supplementation. Supplementation of this regulation is pro- hibited unless prior approval is obtained from HQDA(DAMI- CIC), WASH DC 20310. Interim changes. Interim changes to this regulation are not official unless they are authenticated by The Adjutant Gen- eral. Users will destroy interim changes on their expiration dates unless sooner superseded or rescinded. Suggested improvements. The proponent agency of this regulation is the Office of the Assistant Chief of Staff for Intelligence. Users are invited to send comments and sug- gested improvements on DA Form 2028 (Recommended Changes to Publications and Blank Forms) directly to HQDA(DAMI-CIC), WASH DC 20310. aL seen ere a a TA Te *This regulation supersedes AR 381-10, 15 February 1982.
1 July 1984 AR 381-10 FOREWORD This DoD regulation sets forth procedures governing the activities of DoD intelligence components that affect United States persons. It implements DoD Directive 5240.1, and replaces the November 30, 1979 version of DoD Regulation 5240.1-R. It is applicable to all DoD intelligence components. Executive Order 12333, “United States Intelligence Activities,” stipulates that certain activities of intelligence components that affect US persons be governed by procedures issued by the agency head and approved by the Attorney Genera!. Specifically, procedures 1 through 10, as well as appendix A, herein, require approval by the Attorney General. Procedures 11 through 15, while not requiring approval by the Attorney General, contain further guidance to DoD Components in implementing Executive Order 12333 as well as Executive Order 12334, “President’s Intelligence Oversight Board.” Accordingly, by this memorandum, these procedures are approved for use within the Department of Defense. Heads of DoD components shall issue such implementing instructions as may be necessary for the conduct of authorized functions in a manner consistent with the procedures set forth herein. This regulation is effective immediately. (Signed) 10/4/82 (Signed) 12/7/82 William French Smith Caspar W. Weinberger Attorney General of the Secretary of Defense United States
1 July 1984 Table of Contents Page FOREWORD ...__...-.-2.2-2222-2---- 2-2-2002 eens iii TABLE OF CONTENTS -.-..-------------..------ Vv REFERENCES -.-...--.-.--2--2------------------- ix PROCEDURE 1. GENERAL PROVISIONS..... 1-1 A. Applicability and Scope ..------ 1-1 B. Purpose ....---------..2--.-.-.. 1-1 C. Interpretation --.-.-.-....-..-.- 1-1 D. Exceptions to Policy...--....-.- 1-2 E. Amendment.---.-..------------- 1-2 F. Requests for Approval......-. 1-2 G. General Prohibitions-......... 1-2 PROCEDURE 2. COLLECTION OF INFORMATION ABOUT UNITED STATES PERSONS ......------------- 2-1 A. Applicability and Scope -...-... 2-1 B. Explanation of Undefined Terms.....--.------------------ 2-1 C. Types of Information That May be Collected about United States Persons...-.-...--------- 2-1 1. Information obtained with consent ....----.------.---- 2-1 2. Publicly available information ...........----- 2-1 3. Foreign intelligence -...-_-- 2-1 4. Counterintelligence --..-.-. 2-2 5. Potential sources of assist- ance to intelligence activities ...-------------2.. 2-2 6. Protection of intelligence sources and methods ------- 2-2 7. Physical security ---.-.---.- 2-2 8. Personnel security-......--- 2-2 9. Communications security... 2-2 10. Narcotics........----------. 2-2 11. Threats to safety -.----..... 2-2 12. Overhead reconnaissance... 2-2 13. Administrative purposes.... 2-2 D. General Criteria Governing the Means Used to Collect Infor- mation about United States Persons .........--.--.--------- 2-2 E. Special Limitation on the Col- lection of Foreign Intelligence Within the United States ..-.-._ 2-3 PROCEDURE 3. RETENTION OF INFORMATION ABOUT UNITED STATES PERSONS ....-..-...-.------ 3-1 A. Applicability --...--..-.--.-..-- 3-1 B. Explanation of Undefined Terms-...-..-.--.--------------- 3-1 F. PROCEDURE 4. Qw> AR 381-10 . Criteria for Retention --........ 3-1 1. Retention of information collected under Procedure 2. 3-} 2. Retention of information ac- quired incidentally --..-..... 3-1 3. Retention of information re- lating to functions of other DoD Components or non- DoD Agencies .-.-.--..-.--- 3-1 4. Temporary retention ---_--_- 3-1 5. Retention of other information --.----...--2-... 3-1 . Access and Retention ........_- 3-1 1. Controls on access to re- tained information .-..-....- 3-1 2. Duration of retention .....-. 3-1 3. Information acquired prior to effective date_...-.--..... 3-1 . Control of Electronic Surveil- PROCEDURE 5. Part 1. lance Information .........-... 3- 1. Review -.......----.----22.. 3 2. Access controls .--..-....- 3- 3. Annotation --........--....- 3 Indexing Electronic Surveil- iance Information -.._.------.-. 3 1, General --.---.....2...2.... 3 . indexing office.......-.--_- 3- . Content -...---------------- 3 . Retrieval _-.-.-.-----.-.-... 3 . Notifying the indexer --.... 3 . Procedures for forwarding backup material. _...-.--..- 3-2 . index security controls .... 3-3 1 DNNNNN NNN a DISSEMINATION OF INFORMATION ABOUT UNITED STATES PERSONS..-.-.-----.----.-- 4-1 Applicability and Scope -...-..- 4-1 Criteria for Dissemination --.._- 4-1 Other Dissemination --....-.... 4-1 ELECTRONIC SURVEILLANCE...---_.-.. 5-1 Electronic Surveillance in the United States for Intelligence Purposes ....-.-..--..---------- 5-1 A. Applicability -..---.----.......- 5-1 B. General Rules...-......-----.-. 5-1 1. Electronic surveillance pur- suant to the Foreign Inte!li- gence Surveillance Act ~-._-- 5-1 2. Authority to request elec- tronic surveillance .........-. 5-1 3. Electronic surveillance in emergency situations .-.-.-.. S-1
AR 381-10 Part 2. Part 3. Part 4. Part S. Part 6. vi Page C. Consensual Electronic Surveillance....--.------------ 5-1 1. Applicability -....-.....-..- 5-1 2. Explanation of undefined termS.....-.--.------------- 5-1 3. Case approval authority... 5-1 4. Case approval standards... 5-2 5. Consensual! electronic surveillance in emergency situations -......----.------ 5-2 Electronic Surveillance Outside the United States for Intelligence Purposes......-.- 5-2 A. Applicability ........---..------ 5-2 B. Explanation of Undefined Terms-....-.-.--.-.------------ S-3 C. Procedures ---.----------------- 5-3 D. Electronic Surveillance in Emergency Situations --..-...--- 5-4 E. Officials Authorized to Request and Approve Electronic Sur- veillance Outside the United States - 222.2. 02-2 e ee eee eee ee 5-4 F. Electronic Surveillance of Non-US Persons ----_.-------- 5-4 1. Case approval authority... 5-5 2. Case approval standards.. 5-5 3. Case approval periods -... 5-5 4. Inadvertent interception of US person conversations . 5-5 Signals Intelligence Activities-.. 5-6 A. Applicability and Scope -....--.. 5-6 B. Explanation of Undefined Terms...-.----.----.----------- 5-6 C. Procedures .......-..--2--2-2-+- 5-7 1. Foreign communications. .-.. 5-7 2. Military tactical communications .....-.-...-- 5-7 Technical Surveillance Countermeasures --.-.--.---- 5-7 A. Applicability and Scope -...-... 5-7 B. Explanation of Undefined Terms...-..---.--- cee eee e ee ene 5-7 C. Procedures .........------------ 5-7 Developing, Testing and Calibration of Electronic Equipment-....-.-...-..----- 5-8 A. Applicability ..-..-.-----.----.- 5-8 B. Procedures ....-...--.-.-------- 5-8 1. Signals authorized for use --. 5-8 2. Restrictions -.....---------.- 5-8 Training of Personnel in the Operation and Use of Electronic Communications and Surveillance Equipment.. 5-8 A. Applicability ...-.-------.------ 5-8 Part 7. PROCEDURE PROCEDURE PROCEDURE PROCEDURE 1 July 1984 Page B. Procedures ---------------.----- 5-9 1. Training guidance -.....-..-- 5-9 2. Training limitations -....---- 5-9 3, Retention and dissemination 5-9 Conduct of Vulnerability and Hearability Surveys .....--.-- 5-9 A. Aplicability and scope.......-.- 5-9 B. Explanation of undefined terms 5-9 C. Procedures -.---.--------------- 5-9 1. Conduct of vulnerability SUIVEYS ~~ 22 nae n nen e ene eens 5-9 2. Conduct of hearability surveyS.--------------------- 5-10 6. CONCEALED MONITORING -.--.--.---- 6~1 A. Applicability and Scope .....--- 6-1 B. Explanation of Undefined Terms..--.--------------------. 6-1 C. Procedures ..-.-..----..-------- 6-1 7. PHYSICAL SEARCHES ------ 7-1 A. Applicability --.-.---.---------- 7-1 B. Explanation of Undefined Terms. --.-.-----------------6-- 7-1 C. Procedures -.-..-.---.---...---- 7-1 1. Unconsented physical searches within the United States ....------------------- 7-1 2. Unconsented physical searches outside the United States --------.-.-.---------- 7-1 3. Requests for authority to conduct unconsented physical searches within the United States or of US persons abroad.-.........-- 7-2 4. Unconsented physicai searches of non-US per- sons abroad ............-.- 7-2 8. SEARCHES AND EXAMINATION OF MAIL. 8-1 A. Applicability -.....-..---------- 8-1 B. Explanation of Undefined Terms.------------------------- 8-1 C. Procedures ....----.----------.- 8-1 1. Searches of mail within United States postal channels ..-.-...--.--------- 8-1 2. Searches of mail outside United States postal channels -...-...---.-.-..--- 8-1 3. Mail covers -.-.-.......2.2-- 8-2 w> . PHYSICAL SURVEILLANCE 9-1 . Applicability -.---....----.-..-- 9-1 . Explanation of Undefined Terms...--..------.------------+ 9-1
1 July 7984 PROCEDURE 10. a > D. PROCEDURE 11. A. B. C. PROCEDURE 12. wo > . Procedures ..---....------------ Page —-] So) 1. Criteria for physical surveil- Jance in the United States... 9-1 . Criteria for physical surveil- lance outside the United 2 States -. 22-2. eee eee eee eee 9-} 3. Required approvals for phys- ical surveiliance ...---------- 9-] 4. Physical surveillance of non-US persons -.-..------ 9-2 UNDISCLOSED PARTICIPATION IN ORGANIZATIONS .....---- 10-1 . Applicability .-.-.-------.---.-- 10-1 . Explanation of Undefined Terms..--------.--------------- 10-1 . Procedures for Undisclosed Participation -...-.....--------- 10-1 1. Limitations on undisclosed participation -........----.-- 10-1 2. Required approvals -.------- 1-2 Disclosure Requirement -.-..--. 10-3 CONTRACTING FOR GOODS AND SERVICES .. 11-1 Applicability --.-.-2-----.----.- 11-1 Procedures -.......------------- 11-1 1. Contracts with academic institutions ------------------ 11-1 2. Contracts with commercial organizations, private institu- tions and individuals ...--.-- 11-1 Effect of Non-Compliance-...-.- 11-1 PROVISION OF ASSISTANCE TO LAW ENFORCEMENT AUTHORITIES.-..-.-..----- 12-1 Applicability ........-.-....-..- 12-1 Procedures -..-.-...--.------.-- 12-1 1. Cooperation with law en- forcement authorities...---.. 12-1 PROCEDURE PROCEDURE PROCEDURE APPENDIXES Glossary 13. QO mw> 14. A. B. 15. wy > AR 381-10 Page 2. Types of permissible assistance ...-.--.----------- 12-1 EXPERIMENTATION ON HUMAN SUBJECTS FOR INTELLIGENCE PURPOSES --.-.------------ 13-1 . Applicability -.-...2...2-.2----- 13~1 . Explanation of Undefined Terms.---.--.--------------2--- 13-1 . Procedures .-...--..---..------- 13-1 EMPLOYEE CONDUCT...--- 14-1 Applicability --.-.-.......------ 14-1 Procedures .....-....----------- 14-1 1. Employee responsibilities_... 14-1 2. Familiarity with restrictions... 14-1 3. Responsibilities of the heads of DoD components... ----_-- 14-} IDENTIFYING. INVESTIGATING. AND REPORTING QUESTIONABLE ACTIVITIES ....---.-------- 15-1 . Applicability -------.-......-..- 15-1 Explanation of Undefined Terms........--.--------------- 15-1 Procedures ._..-----.----------- 15-1 1. Identification..........-..-.- 15-1 2. Investigation ...-..---.------ 15-1 3. Reports --------------------- 15-2 4. Reporting and use of in- formation concerning Fed- eras crimes ....-..---.------ 15-3 ween eee nn ee ee A-1l B. Extract from “The Agreement Between the Deputy Secretary of Defense and Attorney General, April 5, 1979" -.......--.------------- B-1 C. References to Army Implementation of DoD 5240.1-R----.--22--- eee eee ee eee ne ee ene e nee C-1 Part iI, Executive Order 12333 ...-...---..----- D-1 vii
1 July 1984 REFERENCES (a) Executive Order 12333. ‘United States Intelligence Activities,” Deceraber 4, 1981 (b) Public Law 95-511. Foreign Intelligence Surveillance Act of 1978 (c) DoD Directive 5200.29, “DoD Technical Surveillance Countermeasures (TSCM) Survey Program,” February 12, 1975 (d) Title 18, United States Code, Chapters 105 and 119 (e) Public Law 73-416, ‘Communications Act of 1934,” Section 605 (f) Title 10, United States Code, Sections 801-840, Uniform Code of Military Justice (g) Agreement Between the Deputy Secretary of Defense and Attorney General, April 5. 1979 {App B) (h) Executive Order 12198. “Prescribing Amendments to the Manual for Courts Martial, United States. 1969." March 12, 1980 (i) DoD Directive 5525.5. “DoD Cooperation with Civilian Law Enforcement Officials,” March 22, 1982 (j) DoD Directive 5000.11, ‘‘Data Eiements and Data Codes Standardization Pro- gram,” December 7, 1964 (k) DoD Directive 5000.19, ‘‘Policies for the Management and Control of Infor- mation Requirements,” March 12, 1976 AF. 361-10
1 July 1334 PROCEDURE 1}. A. APPLICABILITY AND SCOPE 1, These procedures apply only to “DoD intelli- gence components,” and other DA components per- forming ‘‘intelligence activities,’’ as defined in Appen- dix A. Procedures 2 through 4 provide the sole authority by which such components may collect, retain and dis- seminate information concerning United States per- sons. Procedures 5 through 10 set forth applicable guid- ance with respect to the use of certain collection techniques to obtain information for foreign intelligence and counterintelligence purposes. Authority to employ such techniques shall be limited to that necessary to perform functions assigned the DoD intelligence com- ponent concerned. Information may be gathered by in- telligence components using techniques described in pro- cedures 5 through 10 for other than foreign intelligence or counterintelligence (CI) purposes. However, such col- lection must comply with the following: be based on a proper function assigned to the intelligence component; employ the least intrusive lawful investigative technique reasonably available; and comply with the appropriate provisions of this regulation. Procedures 11 through 15 govern other aspects of DoD intelligence activities, in- cluding the oversight of such activities, 2. The functions of DoD intelligence components not specifically addressed herein shall be carried out in accordance with applicable policy and procedure. 3. These procedures do not apply to law enforce- ment activities, including civil disturbance activities, that may be undertaken by DoD intelligence components. Involvement by an Army intelligence component in civil disturbance activities is governed by the Department of the Army (DA) Civil Disturbance Plan (Garden Plot) dated 3 August 1978. When an investigation or inquiry undertaken pursuant to these procedures establishes reasonable belief that a crime has been committed, the DoD intelligence component concerned shall refer the matter to the appropriate law enforcement agency in accordance with procedures 12 and 15, or, if the DoD intelligence component is otherwise authorized to con- duct law enforcement activities, shail continue such in- vestigation under appropriate law enforcement proce- dures. If evidence surfaces during the course of an investigation by an Army intelligence component that provides reasonable belief that a crime has been cem- mitted and which under AR 195-2 also may be under AR 381-10 GENERAL PROVISIONS the investigative jurisdiction of the US Army Criminal Investigation Command (USACIDC), details of the in- vestigation will be provided to the USACIDC under AR 381-20. 4. DoD intelligence components shall not request any person or entity to undertake any activity forbidden by Executive Order 12333, reference (a), or this reg- ulation. B. PURPOSE The purpose of these procedures is to enable DoD intelligence components to carry out effectively their authorized functions while ensuring their activities that affect United States persons are carried out in a manner that protects the constitutional rights and privacy of such persons. This regulation is intended to complement other intelligence regulatory policy; it does not establish independent authority for intelligence activities. There- fore, activities and investigations described elsewhere, such as AR 381-12, AR 381-20, and Director of Central Intelligence Directives, must be conducted in accordance with these procedures. For example, in determining whether an intelligence component may conduct an in- vestigation that involves a US person, the component should first determine whether it has the mission and authority to conduct the type of investigation involved. That determination is made utilizing applicable regu- lations, Director of Central Intelligence Directives, De- fense Intelligence Agency guidance, and so forth. Once that determination is made, and the component can es- tablish its authority to conduct the investigation in- volved, this regulation, particularly Procedure 2, should be used to determine whether particular items of infor- mation about US persons may be collected during the conduct of the otherwise authorized investigation. In- telligence components should be aware that a number of concepts and terms commonly used within the intel- ligence community have unique definitions in this reg- ulation. For example, activities commonly considered part of a ‘‘counterintelligence investigation’? (AR 381- 20, appendix) may be considered ‘‘personnel security”’ matters under this regulation. (See app A, secs 19 an 20.) . C. INTERPRETATION 1. These procedures shall be interpreted in ac- cordance with their stated purpose. 1-1
AR 381-10 2. All defined terms appear in appendix A. Ad- ditional terms, not otherwise defined, are explained in the text of each procedure, as appropriate. 3. All questions of interpretation shall be referred to the legal office responsible for advising the DoD intelligence component concerned. Intelligence com- ponent commanders will seek legal advice from their ‘ supporting judge advocates. When questions cannot be resolved locally, they will be forwarded through com- mand channels ts HQDA(DAMI-CIC), WASH DC 20310, for coordination with the Office of The Judge Advocate General. Questions that cannot be resolved in this man- ner shall be referred to the General Counsel of the Military Department concerned, or, as appropriate, the General Counsel of the Department of Defense for resolution. D. EXCEPTIONS TO POLICY Requests for ex 2ption to the policies and proce- dures established herein shall be made in writing to the Deputy Under Secretary of Defense (Policy), who shall obtain the written approval of the Secretary of Defense and, if required, the Attorney General for any such exception. Requests for exceptions to policy wiil be for- warded through command channels to HQDA(DAMI-— CIC), WASH DC 20310. 1 July 1984 E. AMENDMENT Requests for amendment of these procedures shall be made to the Deputy Under Secretary of Defense (Policy), who shall obtain the written approval of the Secretary of Defense, and, if required. the Attorney General, for any such amendment. F. REQUESTS FOR APPROVAL Requests to conduct any activity authorized by this regulation that requires HQDA or higher level approval {such as the Secretary of the Army or the US Attorney General) will be submitted through command channels to HQDA(DAMI-CIC), WASH DC 20310. Complete justification must accompany each request. G. GENERAL PROHIBITIONS DA components will not conduct or provide support for the conduct of special activities, unless such actions have been approved by the President and directed by the Secretary of Defense. Exceptions will be in time of war declared by the Congress or during a period covered by a report from the President and directed by the Sec- retary of Defense. Under no circumstances wili a DA employee engage in, or conspire to engage in, assassi- nation.
1 July 1984 AR 381--10 PROCEDURE 2. COLLECTION OF INFORMATION ABOUT UNITED STATES PERSONS A. APPLICABILITY AND SCOPE This procedure specifies the kinds of information about United States persons that may be collected by DoD intelligence components and sets forth general criteria governing the means used to collect such in- formation. Additional limitations are imposed in Pro- cedures 5 through 10 on the use of specific collection techniques. Nothing in this procedure will be interpreted as authorizing the collection of any information relating to a US person solely because of lawful advocacy of measures opposed to Government policy. B. EXPLANATION OF UNDEFINED TERMS 1. Collection. Information shall be considered as “collected” only when it has been received for use by an employee of a DoD intelligence component in the course of his official duties. For information to be ‘‘re- ceived for use”? and therefore ‘‘collected”’ by an Army intelligence component, an employee must take some affirmative action that demonstrates an intent to use or retain the information received (such as production of areport, filing of an investigative summary, or electronic storage of received data). Establishmer.i of ‘unofficial files”? and the like may not be used to avoid the appli- cation of this procedure. Thus, infecmation volunteered to a DoD intelligence component oy a cooperating source would be “collected” under this procedure when an employee of such component officially accepts, in some manner, such information for use within that compo- nent. Data acquired by electronic means is “collected” only when it has been processed into intelligible form. Information held, or forwarded to a supervisory au- thority, solely for the purpose of making a determination about the collectability of that information under this procedure (and not otherwise disseminated within the component) is not ‘‘collected.”’ 2. Cooperating sources means persons or organi- zations that knowingly and voluntarily provide infor- mation to DoD intelligence components, or access to information, at the request of such components or on their own initiative. Cooperating sources must be either informed or otherwise have knowledge that they are dealing with a DoD intelligence component. These in- clude government agencies, law enforcement authori- ties, credit agencies, academic institutions, employers, and foreign governments 3. Domestic activities refers to activities that take place within the United States that do not involve a significant connection with a foreign power, organiza- tion, Or person. 4. Overt means refers to methods of collection whereby the source of the information being collected is advised, or is otherwise aware, that he is providing such information to the Department of Defense or a component thereof. C. TYPES OF INFORMATION THAT MAY BE COLLECTED ABOUT UNITED STATES PERSONS Information that identifies a United States person may be collected by a DoD intelligence component only if it is necessary to the conduct of a function assigned the collecting component, and only if it falls within one of the following categories: Note: Terms used in this part are defined in appendix A and may differ substan- tially from traditional Army usage. 1. Information obtained with consent. Informa- tion may be collected about a United States person who consents to such collection. 2. Publicly available information. Information may be collected about a United States person if it is publicly available. 3. Foreign intelligence. Subject to the special lim- itation contained in section E., below, information may be collected about a United States person if the infor- mation constitutes foreign intelligence, provided the in- tentional collection of foreign intelligence about United States persons shall be limited to persons who are: a. Individuals reasonably believed to be officers or employees, or otherwise acting for or on behalf, of a foreign power; b. An organization reasonably believed to be owned or controlled, directly or indirectly, by a foreign power; . c. Persons or organizations reasonably believed to be engaged or about to engage, in international ter- rorist or international narcotics activities. (See AR 190—- 52.); 2-1
AR 381-10 d. Persons who are reasonably believed to be prisoners of war: missing in action; or are the targets, the hostages, or victims of international ierrorist or- ganizations; or e. Corporations or other commercial organiza- ions believed to have some relationship with foreign powers, Organizations or persons. 4. Counterintelligence. Information may be col- lected about a United States person if the information constitutes counterinteliigence, provided the inten- tional collection of counterintelligence about United States persons must be limited to: a. Persons who are reasonably believed to be engaged in. or about to engage in, intelligence activities on behalf of a foreign power, or international terrorist activities. (See AR 190-52, AR 381-12, and AR 381- 20.) b. Persons in contact with persons described in paragraph C.4.a., above, for the purpose of identifying such perscn and assessing their relationship with per- sons described in paragraph C.4.a., above. 5. Potential sources of assistance to intelligence activities. Information may be collected about United States persons reasonably believed to be potential sources of intelligence, or potential sources of assistance to in- telligence activities, for the purpose of assessing their suitability or credibility. This category does not include investigations undertaken for personnel security pur- poses. (See subsection 8.) 6. Protection of intelligence sources and methods. Information may be collected about a United States person who has access to, had access to, or is otherwise in possession of, information which reveals foreign in- telligence and counterintelligence sources or methods, when collection is reasonably believed necessary to pro- tect against the unauthorized disclosure of such infor- mation; provided that within the United States, inten- tional collection of such information shall be limited to persons who are: a. Present and former DoD employees; b. Present or former employees of a present or former DoD contractor; and c. Applicants for employment at DoD or at a contractor of DoD. 7. Physical security. Information may be collected about a United States person who is reasonably believed 2-2 1 July 1984 to threaten the physical security of DoD employees. installations, operations or official visitors. Information may also be collected in the course of a lawful physical security investigation. (See AR 381-12, AR 381-20, AR 190-13, and AR 190-52.) 8. Personnel security. Information may be col- lected about a United States person that arises out of a lawfu! personnel security investigation. This includes information concerning relatives and associates of the subject of the investigation, if required by the scope of the investigation and the information has a bearing on the matter being investigated or the security determi- nation being made. (See AR 604-5, AR 381--12, AR 381-20, and AR 190-52.) 9. Communications security. Information may be collected about a United States person that arises out of a lawful communications security investigation. (See AR 380-53.) 10. Narcotics. Information may be collected about a United States person who is reasonably believed to be engaged in international narcotics activities. 11. Threats to safety. Information may be col- lected about a United States person when the infor- mation is needed to protect the safety of any person or organization, including those who are targets, victims or hostages of international terrorist organizations. (See AR 190-52.) 12. Overhead reconnaissance. Information may be collected from overhead reconnaissance not directed at specific United States perscns. 13. Administrative purposes. Information may be collected about a United States person that is necessary for administrative purposes. D. GENERAL CRITERIA GOVERNING THE MEANS USED TO COLLECT INFORMATION ABOUT UNITED STATES PERSONS 1. Means of collection. DoD intelligence compo- nents are authorized to collect information about United States persons by any lawful means, provided that all such collection activities shall be carried out in accord- ance with E.O. 12333, (reference (a)), and this Regu- lation, as appropriate. 2. Least intrusive means. The collection of infor- mation about United States persons shall be accom- plished by the least intrusive means. In general, this means—
1 July 1984 a. To the extent feasible. such information shall be collected from publicly available information or with the consent of the person concerned: o. If collection from these sources is not feasible or iufficient, such information may be collected from cooperating sources; c. If collection from cooperating sources is not feasible or sufficient, such information may be col- lected, as appropriate, using other lawful investigative techniques that do not require a judicial warrant or the approval of the Attorney General; then d. If collection through use of these techniques is not feasible or sufficient, approval for use of inves- tigative techniques that do require a judicial warrant or the approval of the Attorney General may be sought. 3. Requests to engage in collection techniques which require HQDA or higher level approval will be submitted through command channels to HQDA(DAMI-CIC), WASH DC 20310. Full justification as required in the relevant procedures will be included. E. SPECIAL LIMITATION ON THE COLLECTION OF FOREIGN INTELLIGENCE WITHIN THE UNITED STATES Within the United States, foreign intelligence con- cerning United States persons may be collected only by AR 381-10 overt means unless all the following conditions are met: 1. The foreign intelligence sought is significant and collection is not undertaken for the purposes of ac- quiring information concerning the domestic activities of any United States person; 2. Such foreign intelligence cannot be reasonably obtained by overt means; 3. The coilection of such foreign intelligence has been coordinated with the Federal Bureau of Investi- gation (FBI); and 4. The use of other than overt means has been approved in writing by the head of the DoD intelligence component concerned, or his single designee, as being consistent with these procedures. The Assistant Chief of Staff for Intelligence, HQDA, and the Commanding General, US Army Intelligence and Security Command (INSCOM), are the heads of the Army intelligence com- ponents for this purpose. information copies of approv- als by the Commanding General, INSCOM, will be pro- vided to HQDA(DAMI-CIC), WASH DC 20310; they will reflect appropriate coordination with the supporting judge advocate. A copy of any approval made pursuant to this section shall be provided the Deputy Under Sec- retary of Defense (Policy). All submissions to the Dep- uty Under Secretary of Defense (Policy) will be for- warded to HQDA(DAMI-CIC), WASH DC 20310. 2-3
1 July 1234 PROCEDURE 3. A. APPLICABILITY This procedure governs the kinds of information about United States persons that may knowingly be retained by a DoD intelligence component without the consent of the person whom the information concerns. It does not apply when the information in question is retained solely for administrative purposes or is re- quired by law to be maintained. B. EXPLANATION OF UNDEFINED TERMS The term “retention.” as used in this procedure, refers only to the maintenance of information about United States persons which can be retrieved by ref- erence to the person’s name or other identifying data. C. CRITERIA FOR RETENTION 1. Retention of information collected under Pro- cedure 2. Information about United States persons may be retained if it was collected pursuant to Procedure 2. 2. Retention of information acquired incidentally. Information about United States persons collected in- cidentally to authorized collection may be retained if: a. Such information could have been collected intentionally under Procedure 2; b. Such information is necessary to understand or assess foreign intelligence or counterintelligence; c. The information is foreign intelligence or counterintelligence collected from electronic surveil- lance conducted in compliance with this Regulation; or d. Such information is incidental to authorized collection and may indicate involvement in activities that may violate federal, state, local, or foreign law. 3. Retention of information relating to functions of other DoD Components or non-Dod Agencies. In- formation about United States persons that pertains solely to the functions of other DoD Components or agencies outside the Department of Defense shall be retained only as necessary to transmit or deliver such information to the appropriate recipients. AR 381-10 RETENTION OF INFORMATION ABOUT UNITED STATES PERSONS 4. Temporary retention. Information about United States persons may be retained temporarily, fora period not to exceed 90 days, solely for the purpose of deter- mining whether that information may be permanently retained under these procedures. 5. Retention of other information. Information about United States persons other than that covered by subsections C.1. through 4, above, shall be retained only for purposes of reporting such collection for over- sight purposes and for any subsequent proceedings that may be necessary. D. ACCESS AND RETENTION 1. Controls on access to retained information. Ac- cess within a DoD intelligence component to infor- mation about United States persons retained pursuant to this procedure shall be limited to those with a need to know. 2. Duration of retention. Disposition of informa- tion about United States persons retained in the files of DoD intelligence components will comply with the disposition schedules approved by the Archivist of the United Siates for the files or records in which the in- formation is retained. Information about US persons retained in the files of DA intelligence components will be reviewed. This review will insure the following: that its continued retention serves the purpose for which it was collected and stored; and that it is necessary to the conduct of authorized functions of DA intelligence com- ponents or other Government agencies. This review will be conducted in conjunction with the annual review of files under AR 340-2 or AR 340-18-1, as appropriate. Review cof files in the Intelligence Records Repository (IRR) wili be under AR 381-45 and AR 340—18—5. Final disposition of such information will comply with dis- position schedules approved by the Archivist of the United States for the files or records in which the information is stored. (An example is the AR 340-18 series.) 3. Information acquired prior to effective date. In- formation acquired prior to the effective date of this procedure may be retained by DoD intelligence com- ponents without being screened for compliance with this procedure or Executive Order 12333 (reference (a)), so long as retention was in compliance with applicable law and previous executive orders. 3-1
AR 381-10 E. CONTROL OF ELECTRONIC SURVEILLANCE INFORMATION 1. Review. All electronic surveillance information acquired through Army intelligence operations or re- ceived from cooperating (liaison) sources will be re- viewed expeditiously after receipt. This review will as- sure that the contents are relevant to the purpose of the electronic surveillance coverage. All irrelevant or un- necessary information will be destroyed. Information about US persons may be collected, retained, or dissem- inated only if authorized under procedures 2, 3, or 4. 2. Access controls. Access to electronic surveillance information will be controlled by the commander of the element that is the custodian of the information. Pro- cedures will be established to assure that access to elec- tronic surveillance information is limited to those with a need-to-know. 3. Annotation. Each message, document, report, or file of any type that contains electronic surveillance in- formation which identifies any person or organization by name will be clearly and conspicuously marked with the following annotation: ‘‘Contents include electronic surveillance information. Handle in accordance with AR 381-10”. F. INDEXING ELECTRONIC SURVEILLANCE INFORMATION 1. General. In order to be responsive to motions for discovery under section 3504 title 18, United States Code (18 USC 3504), indices will be maintained of all electronic surveillance information which is used, re- tained, or disseminated by Army intelligence compo- nents and which contain references to an identifiable US or non-US person. A person is identifiable if sufficient information is available to the component to determine the last name of the person and to distinguish that person from others who may have the same name. A person . generally will be considered distinguishable from others with the same name when the information required by one or more of subsections 3b-e and g is known. Elec- tronic surveillance information that is destroyed without being used, retained, or disseminated need not be in- dexed. 2. Indexing office. Headquarters, INSCOM, will maintain an index of all electronic surveillance infor- mation obtained by Army intelligence elements worid- wide, under provisions of this reguiation. 3. Content. The indices will contain the following information to the extent known: 3-2 1 July 1984 a. Name and sex of each identifiable person whose communications were intercepted. b. Language in which the conversation occurred. c. Telephone numbers, radio frequencies, or ra- dio telephone call signs involved in the interception. d. Address of the premises at which the surveil- lance was conducted. e. Title or number of investigative file. f. Element maintaining the case file. g. Date or dates of the interception. 4. Retrieval. Information maintained in the indices must be retrievable by the following: a. Name of the subject of the case. b. Name of each identifiable person overheard, provided that person’s conversation was used, retained, or disseminated. Retrieval through additional criteria may be imposed on a case-by-case basis by the approving authority. 5. Notifying the indexer. Promptly after screening of electronic surveillance information (sec E.1.) an elec- trical message containing the information required by section. F.3. will be sent to HQ INSCOM, Fort Meade, MD//IACSF-IRC//, subject: Electronic Surveillance In- dexing Material. 6. Procedure for forwarding backup material. Copies of all indexed electronic surveillance information must be sent to HQ INSCOM to serve as backup for the index. When this information is contained in an investigative file, it will be sent after the file is closed or the investi- gation is completed. Information not part of an inves- tigative file will be sent as soon as practicable. Backup material sent to the indexing office will include the fol- lowing: a. Be clearly marked as electronic surveillance information. b. Refer to the message or messages that trans- mitted the indexing information. c. Contain all the electronic surveillance infor- mation that was used, retained or disseminated. d. Contain a record of all disseminations of the information outside the DoD.
1 July 1984 e. Carry a certification by the forwarding office (to include name, grade and title) that the contents meet the retention criteria of this regulation, if the contents include US person information. AR 381-10 7. Index security controls. Indexing offices will de- vise procedures to safeguard and control access to the indices and backup material. 3-3
1 Jury 1984 PROCEDURE 4. A. APPLICABILITY AND SCOPE This procedure governs the kinds of inforn:ation about United States persons that may be disseminaied, without their consent, outside the DoD intelligence component that collected and retained the information. It does not apply to information collected solely for administrative purposes; or disseminated pursuant to law; or pursuant to a court order that otherwise imposes controls upon such dissemination. B. CRITERIA FOR DISSEMINATION Except as provided in section C.. below, infor- mation about United States persons that identifies those persons may be disseminated without the consent of those persons only under the following conditions: 1. The information was collected or retained or both under Procedures 2 and 3; 2. The recipient is reasonably believed to have a need to receive such information for the performance of a lawful governmental function, and is one of the following: a. An employee of the Department of Defense, or an employee of a contractor of the Department of Defense, and has a need for such information in the course of his or her official duties; b. A law enforcement entity of federal, state, or local government, and the information may indicate AR 3&1-10 DISSEMINATION OF INFORMATION ABOUT UNITED 3TATES PERSONS involvement in activities which may violate laws which the recipient is responsible to enforce; c. Anagency within the intelligence community; provided that within the intelligence community, in- formation other than information derived from signals intelligence, may be disseminated to each appropriate agency for the purpose of allowing the recipient agency to determine whether the information is relevant to its responsibilities without such a determination being re- quired of the disseminating DoD intelligence compo- nent; d. An agency of the federal government au- thorized to receive such information in the performance of a lawful governmental function; or e. A foreign government, and dissemination is undertaken pursuant to an agreement or other under- standing with such government. C. OTHER DISSEMINATION Any dissemination that does not conform to the conditions set forth in section B., above, must be ap- proved by the legal office responsible for advising the DoD Component concerned after consultation with the Department of Justice and General Counsel of the De- partment of Defense. Such approval shall be based on a determination that the proposed dissemination com- plies with applicable laws, executive orders, and reg- ulations. Requests will be forwarded through command channels te HQDA(DAMI-CIC), WASH DC 20310.
1 July 1984 PROCEDURE 5. PART 1: ELECTRONIC SURVEILLANCE IN THE UNITED STATES FOR INTELLIGENCE PURPOSES A. APPLICABILITY This part of Procedure 5 implements the Foreign Intelligence Surveillance Act of 1978 (50 USC 1801, et seq., reference b) and applies to electronic surveillance, as defined in that Act, conducted by DoD intelligence components within the United States to collect “foreign intelligence information,” as defined in that Act. This part applies to all nonconsensual electronic surveillance conducted within the United States, whether directed against a US or non-US person. Policy and procedures governing all consensual electronic surveillance are found at section C of this part. B. GENERAL RULES 1. Electronic surveillance pursuant to the Foreign Intelligence Surveillance Act. A DoD intelligence com- ponent may conduct electronic surveillance within the United States for foreign intelligence and counterin- telligence purposes only pursuant to an order issued by a judge of the court appointed pursuant to the Foreign Intelligence Surveillance Act of 1978 (reference (b)), or pursuant to a certification of the Attorney General issued under the authority of section 102(a) of the Act. 2. Authority to request electronic surveillance. Authority to approve the submission of applications or requests for electronic surveillance under the Foreign Intelligence Surveillance Act of 1978 (reference (b)) shall be limited to the Secretary of Defense, the Deputy Secretary of Defense, the Secretary or Under Secretary of a Military Department, and the Director of the Na- tional Security Agency. Applications for court orders will be made through the Attorney General after prior clearance by the General Counsel, DoD. Requests for Attorney General certification shall be made only after prior clearance by the General Counsel, DoD. a. Requests by Army intelligence components for authority to conduct electronic surveillance pursuant to this part will be submitted through command channels to HQDA(DAMI-CIC), WASH DC 20310. Requests will include the information required by section C of pari 2 AR 381-10 ELECTRONIC SURVEILLANCE of procedure 5; they will be submitted as soon in the planning stage as possible. b. Policy governing control and indexing of elec- tronic surveillance information is contained in sections E and F, procedure 3. 3. Electronic surveillance in emergency situations. a. A DoD intelligence component may conduct electronic surveillance witmx the United States in emer- gency situations under an approval from the Attorney General in accordance with section 105(e) of reference (b). b. The head of any DoD intelligence component may request that the DoD General Counsei seek such authority directly from the Attorney General in an emergency, if it is not feasible to submit such request through an official designated in subsection B.2., above, provided the appropriate official concerned shall be ad- vised of such requests as soon as possible thereafter. c. Requests by Army intelligence components for emergency authority to conduct electronic surveillance pursuant to this part will be submitted through com- mand channels to HOQDA(DAMI-CIC), WASH DC 20310. C. CONSENSUAL ELECTRONIC SURVEILLANCE 1. Applicability. This section governs consensual electronic surveillance conducted by Army intelligence components, under the following: whether directed against US or non-US persons; and whether occurring within or outside the United States. 2. Explanation of undefined terms. Consensual electronic surveillance occurs when electronic surveil- lance is conducted after consent for the interception is given by one or more, but fewer than all, of the parties to the communication. 3. Case approval authority. a. Consensual electronic surveiliance conducted within the United States or directed against US persons abroad will be approved in advance by the Secretary or Under Secretary of the Army, or the Army General Counsel. Requests for approval wiil be forwarded through 5-1
AR 381-10 command channels to HQDA(DAMI-CIC), WASH DC 20310; they will contain the information required in sec- tion C.4.b. b. Consensual electronic surveillance directed against non-US persons abroad may be approved by those officials identified in procedure 5, part 2, section F.1. This authority may be delegated, in writing, to field supervisors. 4. Case approval standards. a. Consensual electronic surveillance may be conducted for any lawful function assigned the Army intelligence component. b. Requests for consensual electronic surveil- lance conducted within the United States or directed against a US person abroad will provide the following: (1) Description of the facts and circumstances requiring the intended interception, the means by which it would be conducted, the place at which it would be conducted, and its expected duration. (2) Names of all persons whose conversations are expected to be intercepted, and their roles in the incident being investigated. Except in extraordinary sit- uations, written consent forms will be executed by all individuals consenting to the electronic surveillance. In extraordinary situations, the request for surveillance will contain an explanation of why written consent could not be obtained. (3) Statement that in the judgment of the per- son making the request, the interception is warranted in the interest of a lawful function assigned the Army intelligence component. The function will be identified. c. All electronic surveillance information used, retained, or disseminated, that pertains to an identifiable US or non-US person, must be controlled and indexed pursuant to procedure 3, sections E and F. 5. Consensual electronic surveillance in emergency situations. Notwithstanding section C.3.a., an Army in- telligence component may conduct consensual! electronic surveillance within the United States or directed against 2 US person outside the United States in emergency sit- uations, under the following limitations: a. A general court-martial convening authority may authorize consensual electronic surveillance. He may do so only when securing the prior approval of persons described in section C.3.a. is not practical because of the reasons listed below. (1) Time required would cause failure or delay in obtaining valuable intelligence information; or 5-2 1 July 1984 (2) A person’s life or physical safety is reason- ably believed to be in immediate danger; or (3) Physical security of a defense installation or Government property is reasonably believed to be in immediate danger. b. Such officials will notify HQDA(DAMI-CIC), WASH DC 20310, within 24 hours of any such surveil- lance, the reason for authorizing such surveiliance on an emergency basis, and the expected results. c. Consensual electronic surveillance authorized pursuant to this section may not continue longer than the time required for a decision by the persons desig- nated in section C.3.a. PART 2: ELECTRONIC SURVEILLANCE OUTSIDE THE UNITED STATES FOR INTELLIGENCE PURPOSES A. APPLICABILITY This part of Procedure 5 applies to electronic sur- veillance, as defined in Appendix A, for foreign intel- ligence and counterintelligence purposes directed against United States persons who are outside the United States, and who, under the circumstances, have a reasonable expectation of privacy. (Electronic surveillance directed against a US person abroad also may be performed pur- suant to this part of procedure 5 for any other lawful function assigned an Army intelligence component.) It is intended to be applied in conjunction with the reg- ulation of electronic surveillance “within the United Siates” under Part 1 and the regulation of “signals in- telligence activities” under Part 3, so that the inten- tional interception for foreign intelligence and coun- terintelligence purposes of all wire or radio communications of persons within the United States and against United States persons abroad where such persons enjoy a reasonable expectation of privacy is covered by one of the three parts. In z sc‘ition, this part governs the use of electronic, mechanical, or other sur- veillance devices for foreign intelligence and counter- intelligence purposes against a United States person abroad in circumstances where such person has a rea- sonable expectation of privacy. This part does not apply to the electronic surveillance of communications of other than United States persons abroad or to the interception of the communications of United States persons abroad that do not constitute electronic surveillance. (Policy governing electronic surveillance of non-US persons con- ducted outside the United States is contained in sections F and G, below. Policy governing control and indexing of electronic surveillance information is contained in procedure 3, sections E and F. Policy governing all con-
1 duty 1984 sensual electronic surveillance is found at procedure 5, section C, part 1, B. EXPLANATION OF UNDEFINED TERMS 1. Electronic surveillance is “directed against a United States person” when the surveillance is inten- tionally targeted against or designed to intercept the communications of that person. Electronic surveillance directed against persons who are not United States per- sons that results in the incidental acquisition of the com- munications of a United States person does not thereby become electronic surveillance directed against a United States person. However, use, retention or dissemination of inadvertently intercepted US person communications is governed by section G.4. 2. Electronic surveillance is ‘outside the United Siates” if the person against whom the electronic sur- veillance is directed is physicaliy outside the United States, regardless of the location at which surveillance is conducted. For example, the interception of com- munications that originate and terminate outside the United States can be conducted from within the United States and still fall under this part rather than Part 1. C. PROCEDURES Except as provided in section D., below, DoD in- telligence components may conduct electronic surveil- lance against a United States person who is outside the United States for foreign intelligence and counterin- telligence purposes only if the surveillance is approved by the Attorney General. Requests for approval will be forwarded to the Attorney General by an official designated in section E.1., below. Each request shall! include: 1. An identification or description of the target. If applicable, include the address, telephone number, room number, whether inside or outside a building, and whether on public or private property. 2. A statement of the facts supporting a finding that: a. There is probable cause to believe the target of the electronic surveillance is one of the following: (1) A person who, for or on behalf of a foreign power, is engaged in clandestine intelligence activities (including covert activities intended to affect the polit- ical or governmental process), sabotage, or interna- tional terrorist activities, or activities in preparation for international terrorist activities; or who conspires with, &-, 381-10 or knowingly aids and abets a perzon engaging in such activities; (2) A person who is an officer or empicyee of a foreign power; (3) A person unlawfully acting for, or pur- suant to the direction of, a foreign power. The mere fact that a person’s activities may benefit or further the aims of a foreign power is not enough to bring that person under this subsection, absent evidence that the person is taking direction from, or acting in knowing concert with, the foreign power; (4) A corporation or other entity that is owned or controlled directly or indirectly by a foreign power; or (5) A person in contact with, or acting in col- laboration with, an intelligence or security service of a foreign power for the purpose of providing access to information or material classified by the United States to which such person has access. b. The electronic surveillance is necessary to obtain significant foreign intelligence or counterintel- ligence. c. The significant foreign intelligence or coun- terintelligence expected to be obtained from the elec- tronic surveillance could not reasonably be obtained by other less intrusive collection techniques. 3. A description of the significant foreign intelli- gence or counterintelligence expected to be obtained from the electronic surveillance. 4. A description of the means by which the elec- tronic surveillance will be effected. Describe the equip- ment to be used, method of transmission, recording de- vice, and method of installation. 5. If physical trespass is required to effect the sur- veillance, a statement of facts supporting a finding that the means involve the least amount of intrusion that will accomplish the objective. 6. Astatement of period of time, not to exceed 90 days, for which the electronic surveillance is required. 7. A description of the expected dissemination of the product of the surveillance, including a description of the procedures that will govern the retention and dissemination of communications of or concerning United States persons other that those targeted, acquired in- cidental to such surveillance. 5-3
AR 381-10 8. A description of any less intrusive procedures that have been tried and failed, why they may fai! again, or why they are too dangerous to attempt. 9. If the request is for an extension of a previous authorization, describe results thus far obtained from the interception, or give a reasonable explanation of the failure to obtain results. 10. Indicate that the request has been coordinated with the appropriate staff or command judge advocate. 11. If known, indicate whether previous requests have been made for electronic surveillance on any of the same persons, facilities, or places to be surveyed. State whether such requests were approved or disapproved. D. ELECTRONIC SURVEILLANCE IN EMERGENCY SITUATIONS Notwithstanding section C., above, a DoD intel- ligence component may conduct surveillance directed at a United States person who is outside the United States in emergency situations under the following lim- itations: 1. Officials designated in section E., below, may authorize electronic surveillance directed at a United States person outside the United States in emergency situations, when securing the prior approval of the At- torney General is not practical because: a. The time required would cause failure or de- lay in cbtaining significant foreign intelligence or coun- terintelligence and such failure or delay would result in substantial harm to the national security; b. A person’s life or physical safety is reasonably believed to be in immediate danger; or c. The physical security of a defense installation or government property is reasonably believed to be in immediate danger. 2. Except for actions taken under subsection D.1.b., above, any official authorizing such emergency sur- veillance shall find that one of the criteria contained in subsection C.2.a., above, is met. Such officials shall notify the DoD General Counsel promptly of any such surveillance, the reason for authorizing such surveil- lance on an emergency basis, and the expected results. 3. The Attorney General shall be notified by the General Counsel, DoD, as soon as possible of the sur- veillance, the circumstances surrounding its authori- zation, and the results thereof, and such other infor- 5-4 t July 1984 mation as may be required to authorize continuation of such surveillance. 4. Electronic surveillance authorized pursuant to this section may not continue longer than the time re- quired for a decision by the Attorney General and in no event longer than 72 hours. E. OFFICIALS AUTHORIZED TO REQUEST AND APPROVE ELECTRONIC SURVEILLANCE OUTSIDE THE UNITED STATES 1. The following officials may request approval of electronic surveillance of US persons outside the United States under section C., above, and approve emergency surveillance under section D., above: a. The Secretary and Deputy Secretary of De- fense. b. The Secretaries and Under Secretaries of the Military Departments. c. The Director and Deputy Director of the Na- tional Security Agency/Chief, Central Security Service. 2. Authorization for emergency electronic sur- veillance under section D, may also be granted by: a. Any general or flag officer at the overseas location in question, having responsibility for either the subject of the surveillance, or responsibility for the pro- tection of persons, installations, or property that is en- dangered. (Before an Army general officer at an over- seas location authorizes an emergency electronic surveillance, he or she must coordinate with the major Army command (MACOM) senior intelligence officer (SIO) and supporting judge advocate on appropriateness and applicable policy regarding the proposed surveil- lance. When an Army general officer at an oversea lo- cation authorizes an emergency electronic surveillance, the MACOM SIO will provide details to HQDA(DAMI- CIC), WASH DC 20310, by the most expeditious means available); or b. The Deputy Director for Operations, Na- tional Security Agency. F. ELECTRONIC SURVEILLANCE OF NON-US PERSONS This section prescribes the sole authority by which Army intelligence components may engage in non-con- sensual electronic surveillance of non-US persons outside the United States. Electronic surveillance of non-US per-
1 July 1984 sons within the United States is governed by part 1 of procedure 5, Consensual electronic surveillance is gov- erned by section C of part 1 of procedure 5. i. Case approval authority. Authorities listed be- low may approve electronic surveillance under this sec- tion that is conducted by Army intelligence components or requested directly or indirectly by those components. a. The Assistant Chief of Staff for Intelligence (ACSI), HQDA. b. Commanding General, INSCOM. c. Commander in Chief, US Army, Europe, and Seventh Army (CINCUSAREUR). d. Commanding General, Eighth United States Army (EUSA). The officials at (a) through (d) above may delegate au- thority to their deputies, chiefs of staff, or ranking in- telligence staff officers; they in turn may delegate their authority to the responsible military intelligence group commanders. No further delegation is authorized. Ali delegation of authority wili be in writing. Requests for approval will be forwarded through command channels; they will contain the information required in section 2 (a) through (i). Approval will be granted only after co- ordination with the approving authority’s supporting judge advocate. Information copies of approvais will be provided to HQDA(DAMI-CIC), WASH DC 20310. 2. Case approval standards. Non-consensual elec- tronic surveillance of non-US persons abroad may be conducted for any lawful function assigned the Army intelligence component. Each request to conduct elec- tronic surveillance pursuant to this section will comply with the following: a. Provide facts sufficient to support a determi- nation by the approval authority that a reasonable belief exists that the surveillance will gather valuable intelli- gence information. b. Describe nature and content of conversations expected to be intercepted. c. Identify the investigative unit that will conduct the surveillance. d. Identify any US persons whose communica- tions could reasonably be expected to be intercepted. Identify any people who have consented to the surveil- lance. e. Describe the equipment to be used and the method of installation. AR 381-10 f. State the location of the proposed surveiilance. if applicable, include the address and means of access. If physical trespass is required, detail the method of entry. g. Estimate the expected duration of the sur- veillance. h. If the request is for an extension of a previous authorization, describe the results thus far obtained, or provide an explanaticn of the failure to obtain results. i. Indicate that the request has been coordinated with the appropriate judge advocate and the date of the coordination. 3. Case approval periods. Initial approvals of cases directed against non-US persons may be granted for a period up to 90 days. Renewal requests for non-US per- son cases involving specific individuals may be approved for a period up to 90 days. Renewal requests for cases involving foreign intelligence or counterintelligence of a continuing and long-term interest may be approved for a period up to 1 year. All renewal requests wil! be sub- mitted in the same manner as the original request; they will be reviewed under the same criteria. 4. Inadvertent interception of US person conver- sations. If a US person communication is inadv ertently intercepted during electronic surveillance directed against a non-US person, the following will apply: a. Approval of the Secretary or Under Secretary of the Army must be obtained before the information is used, retained or disseminated. Requests for approval Should be sent through conimand channels to HQDA(DAMI-CIC), WASH DC 20310. b. In emergency situations such requests may be approved by any Army General Officer, after coordi- nation with his or her senior intelligence officer. A report of emergency approvals will be expeditiously provided to HQDA(DAMI-CIC), WASH DC 20310. The report will include an explanation of the nature of the emer- gency situation. c. Electronic surveillance information approved for use, retention, or dissemination under this subsection must be controlled and indexed pursuant to sections E and F, procedure 3. d. Approval of the Secretary or Under Secretary of the Army is not required if the contents of the in- advertent interception are destroyed and are not used, retained, or disseminated. 5-5
AR 381-10 PART 3: SIGNALS INTELLIGENCE ACTIVITIES A. APPLICABILITY AND SCOPE 1. This procedure governs the conduct by the United States Signals Intelligence Svstem of signals intelligence activities that involve the collection, retention, and dis- semination of foreign communications and milttary tac- tical communications. Such activities may incidentally involve the collection of information concerning United States persons without their consent, or may involve communications originated or intended for receipt in the United States, without the consent of a party thereto. 2. This part of Procedure 5 shall be supplemented by a classified Annex promulgated by the Director, National Security Agency/Chief, Central Security Serv- ice, which shall also be approved by the Attorney Gen- eral. That regulation shall provide that signals intelli- gence activities which constitute electronic surveillance, as defined in Parts 1 and 2 of this procedure, will be authorized in accordance with those parts. Any infor- mation collected incidentally about United States per- sons shall be subjected to minimization procedures ap- proved by the Attorney General. B. EXPLANATION OF UNDEFINED TERMS 1. Communications concerning a United States person are those in which the United States person is identified in the communication. A United States per- son is identified when the person’s name, unique title, address or other personal identifier is revealed in the communication in the context of activities conducted by that person or activities conducted by others and related to that person. A reference to a product by brand name or manufacturer’s name or the use of a name in a descriptive sense, as, for example, “Monroe Doctrine,” is not an identification of a United States person. 2. Interception means the acquisition by the United States Signals Intelligence system through electronic means of a nonpublic communication to which it is not an intended party, and the processing of the contents of that communication into an intelligible form but not including the display of signals on visual display devices intended to permit the examination of the technical characteristics of the signals without reference to the information content carried by the signals. 3. Military tactical communications means United States and allied military exercise communications within the United States and abroad necessary for the pro- duction of simulated foreign intelligence and counter- 5-6 1 July 1984 intelligence or to permit an analysis of communications security. 4. United States person. For purposes of signals intelligence acuvities only, the following guidelines will apply in determining whether a person is a United States person: a. A person known to be currently in the United States will be treated as a United States person unless the nature of the person’s communications or other available information ceucerning the person give rise to a reasonable belief that such person is not a United States citizen or permanent resident alien. b. A person known to be currently outside the United States, or whose location is not known, will not be treated as a United States person unless the nature of the person’s communications or other available in- formation concerning the person give rise to a reason- abie belief that such person is a United States citizen or permanent resident alien. c. A person known to be an alien admitted for permanent residence may be assumed to have lost status as a United States person if the person leaves the United States and it is known that the person is not in com- pliance with the administrative formalities provided by law that enable such persons to reenter the United States without regard to the provisions of law that would otherwise restrict an alien’s entry into the United States. The failure to follow the statutory procedures provides a reasonable basis to conclude that such alien has aban- doned any intention of maintaining status as a perma- nent resident alien. d. An unincorporated association whose head- quarters are located outside the United States may be presumed not to be a United States person unless the collecting agency has information indicating that a sub- stantial number of members are citizens of the United States or aliens lawfully admitted for permanent resi- dence. 5. United States Signals Intelligence System means the unified organization for signals intelligence activities under the direction of the Director, National Security Agency/Chief, Central Security Service, comprised of the National Security Agency, the Central Security Service, the components of the military services au- thorized to conduct signals intelligence and such other entities (other than the Federal Bureau of Investiga- tion) as are authorized by the National Security Council or the Secretary of Defense to conduct signals intelli- gence. FBI activities are governed by procedures pro- mulgated by the Attorney General.
1 July 1%384 C. PROCEDURES 1. Foreign communications. The United States Signais Intelligence System may collect, process, retain, and disseminate foreign communication: that are also communications of or concerning United States per- sons, but only in accordance with the classified annex to this procedure. 2. Military tactical communications. The United States Signals Intelligence System may collect, process, retain, and disseminate military tactical communica- tions that are also communications of or concerning United States persons but only in accordance with the classified annex to this procedure. a. Collection. Collection efforts will be con- ducted in the same manner as in the case of signals intelligence for foreign intelligence purposes and must be designed in such a manner as to avoid to the extent feasible the intercept of communications not related to military exercises. b. Retention and processing. Military tactical communications may be retained and processed without deletion of references to United States persons who are participants in, or are otherwise mentioned in exercise- related communications, provided that the communi- cations of United States persons not participating in the exercise that are inadvertently intercepted during the exercise shall be destroyed as soon as feasible. c. Dissemination. Dissemination of military tac- tical communications and exercise reports or informa- tion files derived from such communications shall be limited to those authorities and persons participating in or conducting reviews and critiques of such exercise. PART 4: TECHNICAL SURVEILLANCE COUNTERMEASURES A. APPLICABILITY AND SCOPE This part of Procedure 5 applies to the use of elec- tronic equipment to determine the existence and ca- pability of electronic surveillance equipment being used by persons not authorized to conduct electronic sur- veillance. It implements section 105(f)(2) of the Foreign Intelligence Surveillance Act, (reference b)). B. EXPLANATION OF UNDEFINED TERMS The term technical surveillance countermeasures refers to activities authorized pursuant to DoD Direc- tive 5200.29, (reference (c)), and, as used in the pro- Ari 38'-10 cedure, refers to the use of electronic surveillance equipment, or electronic or mechanical devices. solely for determining the existence and capability of elec- tronic surveillance equipment being used by persens not authorized to conduct electronic surveillance. or for determining the susceptibility of electronic equipment to unlawful electronic surveillance. C. PROCEDURES A DoD intelligence component may use technical sur- veillance countermeasures that involve the incidental acquisition of the nonpublic communications of United States persons without their consent, provided: 1. The use of such countermeasures has been au- thorized or consented to by the official in charge of the facility, organization, or installation where the coun- termeasures are to be undertaken; 2. The use of such countermeasures is limited in extent and duration to that necessary to determine the existence and capability of such equipment; and 3. Access to the content of communications ac- quired during the use of countermeasures is limited to persons involved directly in conducting such measures, and any content acquired is destroyed as soon as prac- tical or upon completion of the particular use. However, if the content is acquired within the United States, only information which is necessary to protect against un- authorized electronic surveillance, or to enforce Chap- ter 119 of title 18, United States Code (reference (d)) and Section 605 of the Communication Act of 1934 (reference (e)), may be retained and disseminated only for these purposes. If acquired outside the United States, information which indicates a violation of federal law, including the Uniform Code of Military Justice (ref- erence (f)), or a clear and imminent threat to life or property, may also be disseminated to appropriate law enforcement authorities. A record of the types of com- munications and information subject to acquisition by the illegal electronic surveillance equipment may be retained. 4. Use, retention, or dissemination of US person information acquired pursuant to this part must be ap- proved by the Secretary or Under Secretary of the Army. Requests should be submitted te HQDA(DAMI-CIC), WASH DC 20310. In emergency situations such requests may be approved by any Army general officer, after consultation with his or her senior intelligence officer and supporting judge advocate. A report of emergency approvals will be expeditiously provided to HQDA(DAMI-~ CIC), WASH DC 20310. The report will contain an explanation of the nature of the emergency situation. 5-7
AR 381-10 PART 5: DEVELOPING, TESTING, AND CALIBRATION OF ELECTRONIC EQUIPMENT A. APPLICABILITY This part of Procedure 5 applies to developing, testing, or calibrating electronic equipment that can in- tercept or process communications and non-commu- nications signals. It also includes research and devel- opment that needs electronic communications as a signal source. B. PROCEDURES 1. Signal Authorized for Use a. The following may be used without restric- tion: (1) Laboratory-generated signals. (2) Communications signals with the consent of the communicator. (3) Communications in the commercial or public service broadcast bands. (4) Communications transmitted between ter- minals located outside of the United States not used by any known United States person. (5) Noncommunications signals (including te- lemetry and radar). b. Communications subject to lawful electronic surveillance under the provisions of Parts 1, 2, or 3 of this procedure may be used subject to the minimization procedures applicable to such surveillance. c. Any of the following may be used subject to the restrictions of subsection B.2., below. (1) Communications over official government communications circuits with consent from an appro- priate official of the controlling agency. (2) Communication in citizens and amateur- radio bands. d. Other signals may be used only where it is determined that it is not practical to use the signals described above and it is not reasonable to obtain the consent of persons incidentally subjected to the sur- veillance. The restrictions of subsection B.2., below, will apply in such cases. The Attorney General must 5-8 i Juiy 1984 approve use of signals pursuani to this subsection for the purpose of development testing. or cahtration when the period of use exceeds 90 days. When Attorney Gen- eral approval is required, the DoD intelligence com- ponent shall submit a test proposal to the General Counsel, DoD, or the NSA General Counsel for trans- mission to the Attorney General for approval. The test proposal shail state the requirement for a period beyond 90 days, the nature of the activity, the organization that will conduct the activity, and the proposed disposition of any signals or communications acquired during the activity. Requests will be submitted through command channels to HODA(DAMI-CIC), WASH DC 20310. 2 Restrictions. For signals described in subsection B.1.c. and d., above, the following restrictions apply: a. The surveillance shall be limited in scope and duration to that necessary for the purposes referred to in section A. above. b. No particular United States person shall be targeted intentionally without consent. c. The content of any communication shall: (1) Be retained only when actually needed for the purposes referred to in section A. above, (2) Be disseminated only to persons conduct- ing the activity, and (3) Be destroyed immediately upon comple- tion of the activity. d. The technical parameters of a communication (such as frequency, modulation, bearing, signal strength, and time of activity) may be retained and used for the purposes outlined in section A., above, or for collection avoidance purposes. Such parameters may be dissem- inated to other DoD intelligence components and other entities authorized to conduct electronic surveillance or related development, testing, and calibration of elec- tronic equipment provided such dissemination and use are limited to the purposes outlined in section A., or collection avoidance purposes. No content of any com- munication may be retained or used other than as pro- vided in subsection B.2.c., above. PART 6. TRAINING OF PERSONNEL IN THE OPERATION AND USE OF ELECTRONIC COMMUNICATIONS AND SURVEILLANCE EQUIPMENT A. APPLICABILITY This part of Procedure 5 applies to the training of personnel by Dod intelligence components in the op-
1 July 1984 eration and use of electronic communications ang szur- veillance equipment. It does not apply to the intercen- tion of communications with the consent of one cf tne parties to the communication or to the training of in- telligence personnnel by nonintelligence componeits. B. PROCEDURES 1, Training guidance. The training of personnel by DoD intelligence components in the operation and use of electronic communications and surveillance equip- ment shall include guidance concerning the require- ments and restrictions of the Foreign Intelligence Sur- veillance Act of 1978 (reference (b)), and E.O. 12333 (reference (a)), with respect to the unauthorized ac- quisition and use of the content of communications of United States persons. 2. Training Limitations a. Except as permitted by subsections B.2.b. and c., below, the use of electronic communications and surveillance equipment for training purposes is permit- ted subject to the following limitations: {1) To the maximum extent practical, use of such equipment for training purposes shal! be directed against communications which are subject to lawful electronic surveillance for foreign intelligence and counterintelligence purposes under Parts 1, 2, and 3 of this procedure. (2) The contents of private communication of nonconsenting United States persons may not be ac- quired aurally unless the person is an authorized target of electronic surveillance. (3) The electronic surveillance will be limited in extent and duration to that necessary to train per- sonnel in the use of the equipment. b. Public broadcasts, distress signals, or official United States Government communications may be monitored, provided that when government agency communications are monitored, the consent of an ap- propriate official is obtained. c. Minimal acquisition of information is permit- ted as required for calibration purposes. 3. Retention and dissemination. Information col- lected during training that involves communications de- scribed in subsection B.2.a. (1), above, shal! be retained and disseminated in accordance with minimization pro- cedures applicable to that electronic surveillatice. In- formation coliected during training that does not in- . AR 381-10 volve communications described in subsection B.2.a. (1), above, or that is acquired inadvertently, shall be destroyed as soon as practical or upon completion of the tr.ining and may not be disseminated for any pur- pose. This subsection does not apply to distress signals. PART 7: CONDUCT OF VULNERABILITY AND HEARABILITY SURVEYS A. APPLICABILITY AND SCOPE This part of Procedure 5 applies to the conduct of vulnerability surveys and hearability surveys by DoD intelligence components. Army implementation is con- tained in AR 380-53. B. EXPLANATION OF UNDEFINED TERMS 1. The term vulnerability survey refers to the ac- quisition of radio frequency propagation and its sub- sequent analysis to determine empirically the vulnera- bility of the transmission media to interception by foreign intelligence services. 2. The term hearability survey refers to monitoring radio communications to determine whether a partic- ular radic signal can be received at one or more loca- tions and, if reception is possible, to determine the quality of reception over time. C. PROCEDURES 1. Conduct of vulnerability surveys. Nonconsen- sual surveys may be conducted to determine the po- tential vulnerability to intelligence services of a foreign power of transmission facilities of communications com- mon carriers, other private commercial entities, and entities of the federal government, subject to the fol- lowing limitations: a. No vulnerability survey may be conducted without the prior written approval of the Director, Na- tional Security Agency, or his designee. b. No transmission may be acquired aurally. c. No content of any transmission mzy be ac- quired by any means. d. No transmissions may be recorded. e. No report or log may identify any United States person or entity except to the extent of identifying trans- mission facilities that are vulnerable to surveillance by foreign powers. If the idertities of the users of such 5-9
AR 381~—10 facilities are not identical with the identities of the own- ers of the facilities, the identity of such users may be obtained but not from the content of the transmissions themselves, and may be included in such report or log. Reports may be disseminated. Logs may be dissemi- nated only if required to verify results contained in reports. 2. Conduct of hearability surveys. The Director, National Security Agency may conduct, or may au- thorize the conduct by other agencies, of hearability surveys of telecommunications that are transmitted in the United States. a. Collection. Where practicable, consent will be secured from the owner or user of the facility against which the hearability survey is to be conducted prior to the commencement of the survey. b. Processing and Storage. Information collec- tion during a hearability survey must be processed and stored as follows: 5-10 1 July 1984 (1) The content of communications may not be recorded or included in any report. (2) No microwave transmission may be de- multiplexed or demodulated for any purpose. (3) No report or log may identify any person Or entity except to the extent of identifying the trans- mission facility that can be intercepted from the inter- cept site. If the identities of the users of such facilities are not identical with the identities of the owners of the facilities, and their identities are relevant to the purpose for which the hearability survey has been conducted, the identity of such users may be obtained provided such identities may not be obtained from the contents of the transmissions themselves. c. Dissemination. Reports may be disseminated only within the United States Government. Logs may not be disseminated unless required to verify results contained in reports.
1 July 1984 AR 381-10 PROCEDURE 6. CONCEALED MONITORING A. APPLICABILITY AND SCOPE 1. This procedure applies to concealed monitoring only for foreign intelligence and counterintelligence purposes conducted by a DoD intelligence component within the United States or directed against a United States person who is outside the United States where the subject of such monitoring does not have a reason- able expectation of privacy, as explained in section B., below, and no warrant would be required if undertaken for law enforcement purposes. 2. Concealed monitoring in the United States for foreign intelligence and counterintelligence purposes where the subject of such monitoring (whether or not a US person) has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes shall be treated as “electronic surveillance within the United States’’ under Part 1 of Procedure 5, and processed pursuant to that procedure. 3. Concealed monitoring for foreign intelligence and counterintelligence purposes of a United States per- son abroad where the subject of such monitoring has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes shall be treated as “electronic surveillance outside the United States” under Part 2 of Procedure 5, and processed pursuant to that procedure. 4. Concealed monitoring for foreign intelligence and counterintelligence purposes when the monitoring is a signals intelligence activity shall be conducted pur- suant to Part 3 of Procedure 5. 5. Concealed monitoring for foreign inteiligence and CI purposes of a non-US person abroad who has a rea- sonable expectation of privacy will be treated as elec- tronic surveillance of a nun-US person outside the United States. This is governed by section F of part 2 of pro- cedure 5. B. EXPLANATION OF UNDEFINED TERMS 1. Concealed monitoring means targeting by elec- tronic, optical, or mechanical devices a particular per- son or a group of persons without their consent in a surreptitious and continuous manner. Monitoring is sur- reptitious when it is targeted in a manner designed to keep the subject of the monitoring unaware of it. Mon- itoring is continuous if it is conducted without inter- ruption for a substantial period of time. Beacons (*‘beep- ers’’) and transponders generally are considered methods of concealed monitoring under the following conditions: when affixed in a pubiic place (for example, piacing the device on the underside of a vehicle in a public area); and where no warrant would be required in a criminal law context. Concealed monitoring by ‘‘beacons’’ au- thorized under this procedure must terminate when the target of the monitoring acquires an expectation of pri- vacy. An examp'e would be the vehicle entering private property not visible from a public place. 2. Monitoring is within the United States if the monitoring device, or the target of the monitoring, is located within the United States. 3. Whether concealed monitoring is to occur where the subject has a reasonable expectation of privacy is a determination which depends upon the circumstances of a particular case, and shall be made only after con- sultation with the legal office responsible for advising the DoD intelligence component concerned. Reason- able expectation of privacy is the extent to which a reasonable person in the particular circumstances in- volved is entitled to believe his or her actions are not subject to monitoring by electronic, optical, or me- chanical devices. For example, there are ordinarily rea- sonable expectations of privacy in work spaces if a per- son’s actions and papers are not subject to ready observation by others under normal working condi- tions. Conversely, a person walking out of his or her residence into a public street ordinarily would not have a reasonable expectation that he or she is not being observed or even photographed; however, such a per- son ordinarily would have an expectation of privacy within his or her residence. C. PROCEDURES 1. Limitations on use of concealed monitoring. Use of concealed monitoring under circumstances when the subject of such monitoring has no reasonable expec- tation of privacy is subject to the following limitations: a. Within the United States, a DoD intelligence component may conduct concealed monitoring only on an installation or facility owned or leased by DoD, or 6-1
AR 381-10 otherwise in the course of an investigation conducted pursuant to the Agreement Between the Secretary of Defense and the Attorney General, reference (g). (See App B.) b. Outside the United States, such monitoring may be conducted on installations and facilities owned or leased by the Department of Defense. Monitoring outside such facilities shall be conducted after coordi- nation with appropriate host country officials, if such coordination is required by the governing Status of Forces Agreement, and with the Centrai Intelligence Agency. 2. Required Determination. Concealed monitor- ing conducted under subsection C.1., requires approval by an official designated in subsection C.3., below, based on a determination that such monitoring is necessary to the conduct of assigned foreign intelligence or coun- terintelligence functions, and does not constitute elec- tronic surveillance under Parts 1 or 2 of Procedure 5. 6-2 1 July 1984 3. Officials authorized to approve concealed mon- itoring. Officials authorized to approve concealed mon- itoring under this procedure include the Deputy Under Secretary of Defense (Policy); the Director. Defense Intelligence Agency; the Director, National Security Agency; the Assistant Chief of Staff for Intelligence. Department of Army; the Director, Naval Intelligence, the Director of Intelligence, U.S. Marine Corps; the Assistant Chief of Staff, Intelligence, United States Air Force; the Commanding General, Army Intelligence and Security Command; the Director, Naval Investi- gative Service; and the Commanding Officer, Air Force Office of Special Investigations. a. Requests for approval of concealed monitoring will be coordinated with the legal advisor to the ap- proving authority. b. Information copies of approvals by the Com- manding Generai, INSCCM, will be provided to HQDA (DAMI-CIC), WASH DC 20310.
1 July 1984 PROCEDURE 7. A. APPLICABILITY This procedure applies to unconsented physical searches of any person or property within the United States znd to physical searches of the person or property of a Urited States person outside the United States by DoD intelligence components for foreign intelligence or counterintelligence purposes. Physical searches also may be performed pursuant to this procedure for any other lawful function assigned an Army intelligence com- ponent. DoD intelligence components may provide as- sistance to the Federal Bureau of Investigation and other law enforcement authorities in accordance with Pro- cedure 12. Part C.4. of this procedure also governs phys- ical searches of non-US persons abroad. B. EXPLANATION OF UNDEFINED TERMS Physical search means any intrusion upon a person Or a person’s property or possessions to obtain items of property or information. The term does not include | examination of areas that are in plain view and visible to the unaided eye if no physical trespass is undertaken, and does not include examinations of abandoned prop- erty left in a public place. The term also does not include any intn:sion authorized as necessary to accomplish lawful electronic surveillance conducted pursuant to Parts 1 and 2 of Procedure 5. C. PROCEDURES 1. Unconsented physical searches within the United States. a. Searches of active duty military personnel for counterintelligence purpo purposes. The counterintelligence elements of the Military Departments are authorized to conduct unconsented physical searches in the United States for counterintelligence purposes of the person or property of active duty military personnel, when au- thorized by a military judge, or a military commander empowered to approve physical searches for law en- forcement purposes pursuant to rule 315(d) of the Man- ual for Courts Martial, Executive Order 12198 (refer- ence (h)), based upon a finding of probable cause to believe such persons are acting as agents of foreign powers. For purposes of this section, the term “agent of a foreign power” refers to an individual who meets the criteria set forth in subsection C.2.b.(2), below. AR 381-10 PHYSICAL SEARCHES b. Other unconsented physical searches. Except as permitted by section A., above, DoD intelligence components may not conduct unconsented physical searches of persons and property within the United States for foreign intelligence or counterintelligence purposes. DoD intelligence components may, however, request the FBI to conduct such searches. All such requests shall be in writing; shall contain the information re- quired in section C.2.b.(1) through (6), below; and be approved by an official designated in section C.2.c., below. A copy of each such request shall be furnished the General Counsel, DoD. 2. Unconsented physical searches outside the United States. a. Searches of active duty military personnel for counterintelligence purposes. The counterintelligence elements of the Military Departments may conduct un- consented physical searches of the person or property of active duty military personnel outside the United States for counterintelligence purposes when author- ized by a military judge, or a military commander em- powered to approve physical searches for law enforce- ment purposes pursuant to rule 315(d) of the Manual for Courts Martial, Executive Order 12198, (reference (h)), based upon a finding of probable cause to believe such persons are acting as agents of foreign powers. For purposes of this section, the term “agent of a foreign power” refers to an individual who meets the criteria set forth in subsection C.2.b.(2), below. b. Other unconsented physical searches. DoD inteiligence components may conduct other uncon- sented physical searches for foreign intelligence and counterintelligence purposes of the person or property of United States persons outside the United States only pursuant to the approval! of the Attorney General. Re- quests for such approval will be forwarded by a senior official designated in subsection C.2.c., below, to the Attorney General and shall include: (1) An identification of the person or descrip- tion of the property to be searched. (2) A statement of facts supporting a finding that there is probable cause to believe the subject of the search is: 71
AR 381-10 (a) A person who. for or on behalf of a foreign power, is engaged in clandestine intelligence activities (including covert activities intended to affect the political or governmental process), sabotage, or in- ternational terrorist activities. activities in preparation for international terrorist activities, or who conspires with, or knowingly aids and abets a person engaging in such activities. (b) A person who is an officer or employee of a foreign power; (c) A person unlawfully acting for, or pur- suant to the direction of, a foreign power. The mere fact that a person's activities may benefit or further the aims of a foreign power does not justify an unconsented physical search without evidence that the person is tak- ing direction from, or acting in knowing concert with, the foreign power; (d) A corporation or other entity that is owned or controlled directly or indirectly by a foreign power; or (e) A person in contact with, or acting in collaboration with, an intelligence or security service of a foreign power for the purpose of providing access to information or material classified by the United States to which such person has access. (3) A statement of facts supporting a finding that the search is necessary to obtain significant foreign intelligence or counterintelligence. (4) A statement of facts supporting a finding that the significant foreign intelligence or counterintel- ligence expected to be obtained could not be obtained by less intrusive means. (5) A description of the significant foreign in- telligence or counterintelligence expected to be ob- tained from the search. (6) A description of the extent of the search and a statement of facts supporting a finding that the search will involve the least amount of physical intrusion that will accomplish the objective sought. (7) A description of the expected dissemina- tion of the product of the search, including a description of the procedures that will govern the retention and dissemination of information about United States per- ‘sons acquired incidental to the search. c. Requests for approval of unconsented phys- ical searches under subsection C.2.b. must be made by: 7-2 1 July 1984 (1) The Secretary or the Deputy Secretary of Defense; (2) The Secretary or the Under Secretary of a Military Department; (3) The Director, National Security Agency; or (4) The Director, Defense Intelligence Agency. 3. Requests for authority to conduct unconsented physical searches within the United States or of US per- sons abroad. a. Information copies of approvals for physical searches authorized pursuant to sections C.1.a. or C.2.a. will be provided to HQDA(DAMI-CIC), WASH DC 20310. b. Requests submitted by an Army intelligence component under sections C.1.b. or C.2.b. will be sub- mitted through command channels to HQDA(DAMI- CIC), WASH DC 20310. 4. Unconsented physical searches of non-US per- sons abroad. a. Unconsented physica! searches of non-US per- sons outside the United States may be performed for any lawful function assigned the Army intelligence compo- nent. b. Unconsented physical searches of non-US per- sons outside the United States may be approved by the following officials: (1) ACSI, HQDA. (2) Commanding General, INSCOM. (3) CINCUSAREUR. (4) Commanding General, EUSA. The officials at (1) through (4) above may delegate au- thority to their deputies, chiefs of staff, or ranking in- telligence staff officers; they in turn may delegate their authority to the responsible military intelligence group commanders, who may further delegate this authority to military intelligence battalion commanders or their equivalent. No further delegation is authorized. All del- egations must be in writing. Requests for approval will be forwarded through command channels; approvals wil! be granted only after coordination with the approving authority’s supporting judge advocate. Information cop- ies of all approvals will be provided te HGDA(DAMI- CIC), WASH DC 20310.
1 July 1984 FROCEDURE 2. A. APPLICABILITY This procedure applies to the opening of mail in United States postal channels, and the use of mail cov- ers with respect to such mail, for foreign intelligence and counterintelligence purposes. (Additionally, mail opening and mail covers may be performed pursuant to this procedure for any other lawful function assigned an Army intelligence component.) It also applies to the opening of mail to or from United States persons where such activity is conducted outside the United States and such mail is not in United States postal channels. B. EXPLANATION OF UNDEFINED TERMS 1. Mail within United States postal channels in- cludes: a. Mail while in transit within, among, and be- tween the United States, its territories and possessions (including mail of foreign origin which is passed by a foreign postal administration to the United States Postal Service for forwarding to a foreign postal administration under a postal treaty or convention, and mail tempo- rarily in the hands of the United States Customs Service or the Department of Agriculture), Army-Air Force (APO) and Navy (FPO) post offices, and mai} for de- livery to the United Nations, N.Y.; and b. International mail en route to an addressee in the United States or its possessions after passage to United States Postal Service from a foreign postal administration or en route to an addressee aboard be- fore passage to a foreign postal administration. c. As a rule, mail shall be considered in such postal channels until the moment it is delivered man- ually in the United States to the specific addressee named on the envelope, or his authorized agent. 2. To examine mail means to employ a mail cover with respect to such mail. 3. Maii cover means the process by which a record is made of any data appearing on the outside cover of any class of mail matter as permitted by law, other than that necessary for the delivery of mail or administration of the postal service. AF 381-10 SEARCHES AND EXAMINATION OF MAIL C. PROCEDURES 1. Searches of mail within United States postal channels. a. Applicable postal regulations do not permit DoD intelligence components to detain or open first class mail within United States postal channels for for- eign intelligence and counterintelligence purposes, or to request such action by the U.S. Postal Service. Searches of first class mail in US postal channels may be author- ized for law enforcement purposes under procedures established in DoD 4525.6-—M, chapter 8, volume 1. b. DoD intelligence components may request ap- propriate U.S. postal authorities to inspect, or author- ize the inspection, of the contents of second, third, or fourth class mail in United States postal channels. for such purposes, in accordance with applicable post! reg- ulations. Such components may also request appropri- ate U.S. postal authorities to detain. or permit the de- tention of, mail that may become subject to search under this section, in accordance with applicable postal rep- ulations. Requests for approval under this subsection will be coordinated with the lega! advisor to the ap- proving authority. Information copies of requests sub- mitted to postal authorities by the Commanding Gen- erai, INSCOM will be provided to HQDA(DAMI-CIC}, WASH DC 20310. 2. Searches of mail outside United States postal channels. a. DoD intelligence components are authorized to open mail to or from a United States person that is found outside United States postal channels only pur- suant to the approval of the Attorney General. Re- quests for such approval shall be treated as a request for an unconsented physical seatch under subsection C.2.b. of Procedure 7. Army intelligence components will submit such requests through command channels to HQDA(DAMI-CIC), WASH DC 20310. b. Heads of DoD intelligence components may authorize the opening of mail outside U.S. postal chan- nels when both the sender and intended recipient are other than United States persons if such searches are otherwise lawful and consistent with any Status of Forces 8-1
AR 381-10 Agreement that may be in effect. Searches of mail pur- suant to this subsection may be conducted for any lawful function assigned an Army intelligence component. Searches of mail outside US postal channels may be ap- proved by the following officials: (1) ACSI, HQDA. (2) Commanding General, INSCOM. (3) CINCUSAREUR. (4) Commanding General, EUSA. The officials at (1) through (4) above may delegate au- thority to their deputies, chiefs of staff, or ranking in- telligence staff officers. They in turn may delegate their authority to responsible military intelligence group com- manders; these commanders may further delegate this authority to military intelligence battalion commanders, or equivalent. No further delegation is authorized. Dei- egation of authority must be in writing. Requests for approval will be forwarded through command channels. Approvals will be granted only after coordination with the approving authority’s supporting judge advocate. 8-2 1 July 1984 Information copies of all approvals will be provided to HQODA(DAMI-CIC), WASH DC 20310. 3. Mail Covers a. DoD intelligence components may request U.S. postal authorities to examine mail in U.S. postal chan- nels, for counterintelligence purposes, in accordance with applicable postal regulations. Applicable regula- tions include AR 65-75, the US Postal Service Domestic Mail Manual, and DoD 4525.6-M. b. DoD intelligence components may also re- quest mail covers with respect to mail to or from a United States person that is outside U.S. postal chan- nels, or mail covers on non-US persons outside US postal channels in accordance with appropriate law and pro- cedure of the host government, and any Status of Forces Agreement that may be in effect. c. Requests for mail covers pursuant to this sec- tion may be approved by the same authorities and pro- cedures described in section C.2.b.
1 July 1984 PROCEDURE 9. A. APPLICABILITY This procedure applies only to the physical sur- veillance of United States persons by DoD intelligence components for foreign intelligence and counterintel- ligence purposes. Additionally, physical surveillance may be performed pursuant to this procedure for any other lawful function assigned an Army intelligence compo- nent. This procedure does not apply to physical sur- veillance conducted as part of a training exercise where the subjects are participants in the exercise. This pro- cedure also governs physical surveillance of non-US per- sons. B. EXPLANATION OF UNDEFINED TERMS The term physical surveillance means a systematic and deliberate observation of a person by any means on a continuing basis, or the acquisition of a nonpublic communication by a person nota party thereto or visibly present thereat through any means not involving elec- tronic surveillance. C. PROCEDURES 1. Criteria for physical surveillance in the United States. Within the United States, DoD inteiligence components may conduct unconsented physical sur- veillances for foreign intelligence and counterintelli- gence purposes against United States persons who are present or former empioyees of the intelligence com- ponent concerned; present or former contractors of such components or their present or former employees; ap- plicants for such employment or contracting; or military persons employed by a nonintelligence element of a Military Service. Any physical surveillance within the United States that occurs outside a DoD installation shall be coordinated with the FBI and other law en- forcement agencies as may be appropriate. Army in- telligence components additionally may conduct physical surveillance of persons in contact with the above sub- jects, but only to the extent necessary to identify that person. Physical surveillance for identification purposes may be approved by a field supervisor. 2. Criteria for physical surveillance outside the United States. Outside the United States, DoD intel- ligence components may conduct unconsented physica! surveillance of United States persons in one of the cat- PHYSICAL SURVEILLANCE egories identified in subsection C.1., above. In adc tion, such components may conduct physical surve lance of other United States persons in the course of lawful foreign intelligence or counterintelligence inves tigation, provided (a) such surveillance is consistent wit! the laws and policy of the host government and doe: not violate any Status of Forces Agreement that may be in effect; and (b) that physical surveillance of a United States person abroad to collect foreign intelligence may be authorized only to obtain significant information that cannot be obtained by other means. Army intelligence components additionally may conduct physical surveil- lance of persons in contact with the above subjects, but only to the extent necessary to identify that person. Phys- ical surveillance for identification purposes may be ap- proved by a field supervisor. 3. Required approvals for physical surveillance a. Persons within DoD investigative jurisdic- tion. Physical surveillances within the United States of US persons or which involve United States persons within DoD investigative jurisdiction overseas may be ap- proved by the head of the DoD intelligence component concerned or by designated senior officials of such com- ponents in accordance with this procedure. Persons within DoD investigative jurisdiction are defined in ‘‘The Agreement Between the Deputy Secretary of Defense and Attorney General, April 5, 1979” at appendix B. Re- quests for physical surveillance pursuant to this section may be approved by the following officials: (1) ACSI, HQDA. (2) Commanding General, INSCOM. (3) CINCUSAREUR. (4) Commanding General, EUSA. The officials at (1) through (4) above may delegate au- thority, in writing, to their deputies, chiefs of staff, or ranking intelligence staff officers. No further delegation ~ is authorized. Requests for approval will be forwarded through command channels; approval will be granted only after coordination with the approving authority’s supporting judge advocate. Information copies of all ap- provals will be provided to HQDA(DAMI-CIC), WASH DC 20310. 9-1
AR 381-10 b. Persons outside DoD investigative jurisdic- tion. Outside the United States, physical surveillances of United States persons who are not within the inves- tigative jurisdiction of the DoD intelligence component concerned will be forwarded through appropriat? chan- nels to the Deputy Under Secretary of Defense (Policy) for approval. Requests for approval of physical sur- veillance pursuant to this section will be forwarded through command channels to HQDA(DAMI-CIC), WASH DC 20310. Such requests shall indicate coordination with the Central Intelligence Agency. 4. Physical surveillance of Non-US Persons a. Physical surveillance of non-US persons may 9-2 1 July 1984 be conducted fer any lawful function assigned the Army intelligence component. b. Physical surveillance of non-US persons within the United States may be approved by the ACSI, DA; the Commanding General, INSCOM, or their written designees. It must be conducted in conformity with ju- risdictional limitations imposed by ‘‘The Agreement Be- tween the Deputy Secretary of Defense and Attorney General, April 5, 1979”’ at appendix B. c. Officials identified in section C.3.a. may ap- prove physical surveillance of non-US persons abroad. This authority may be delegated down to field super- visors. All delegations must be in writing.
1 Juiy 1984 PROCEDURE 10. A. APPLICABILITY This procedure applies to participation by employ- ees of DoD intelligence components in any organization within the United States, or any organization outside the United States that constitutes a United States per- son, when such participation is on behalf of any entity of the intelligence community. These procedures do not apply to participation in organizations for solely per- sonal purposes. B. EXPLANATION OF UNDEFINED TERMS 1. Domestic activities refers to activities that take place within the United States that do not involve a significant connection with a foreign power, organiza- tion or person. 2. The term organization includes corporations and other commercial organizations, academic institutions, clubs, professional societies. associations, and any other group whose existence is formalized in some manner or otherwise functions on a continuing basis. 3. An organization within the United States means all organizations physically located within the geograph- ical boundaries of the United States whether or not they constitute a United States person. Thus, a branch, sub- sidiary, or office of an organization within the United States, which is physically located outside the United States, is not considered as an organization within the United States. 4. Participation refers to any action undertaken within the structure or framework of the organization involved. Such actions include serving as a represent- ative or agent of the organization; acquiring member- ship; attending meetings not open to the public, in- cluding social functions for the organization as a whole; carrying out the work or functions of the organization; and contributing funds to the organization other than in payment for goods or services. Actions taken outside the organizational framework, however, do not consti- tute participation. Thus, attendance at meetings or so- cial gatherings which involve organization members but are not functions or activities of the organization itself does not constitute participation. AR 381-10 UNDISCLOSED PARTICIPATION IN ORGANIZATIONS 5. Participation is on behalf of an agency within the intelligence community when an employee is asked or requested to take action within an organization for the benefit of such agency. Such employee may already be a member of the organization or may be asked to join. Actions undertaken for the benefit of an intelli- gence agency include collecting information, identifying potential sources or contacts, or establishing and main- taining cover. If a cooperating source furnishes infor- mation to an intelligence agency which he or she ob- tained by participation within an organization but was not given prior direction or tasking bv the intelligence agency to collect such information, then such partici- pation was not on behalf of such agency. 6. Participation is solely for personal purposes, if undertaken at the initiative and expense of the em- ployee for the employee’s benefit. C. PROCEDURES FOR UNDISCLOSED PARTICIPATION Except as permitted herein, employees of DoD - intelligence components may participate on behalf of such components in organizations within the United States, or in organizations outside the United States that constitute United States persons, only if their af- filiation with the intelligence component concerned is disclosed to an appropriate official of the organization in accordance with section D., above. Participation without such disclosure is permitted only if it is consistent with the limitations set forth in sub- section C.1., below, and has been approved in accord- ance with subsection C.2., below. 1. Limitations on undisclosed participation a. Lawful Purpose. No undisclosed participation shall be pe:mitted under this procedure unless it is es- sential to achieving a lawful foreign intelligence or coun- terintelligeace purpose within the assigned mission of the colle.ting DoD intelligence component. b. Limitations on Limitations on use of undisclosed _participa- tion for foreign reign intelligence pi purposes within the United States. Undisclosed participation may not be authorized 10-1
AR 381-10 within the United States for the purpase of collecting foreign intelligence from or about a United States per- son. nor to collect information necessary to assess United States persons as potential sources of assistance to for- eign intelligence activities. This does not preclude the collection of information about such persons, volun- teered by cooperating sources participating in organi- zations to which such persons belong. however. if other- wise permitted by Procedure 2. c. Duration of Participation. Authorization to participate under subsections C.2.a. and b. shall be lim- ited to the period covered by such participation which shall be no longer than 12 months. Participation which lasts longer than 12 months shall be reapproved by the appropriate official on an annual basis in accordance with this procedure. d. Participation for the purpose of influencing the activities of the organization or its members. No participation under this procedure shall be authorized for the purpose of influencing the activities of the or- ganization in question, or its members. unless such par- ticipation is undertaken on behalf of the FBI in the course of a lawful investigation, or the organization concerned is composed primarily of individuals who are not United States persons and is reasonably believed to be acting on behalf of a foreign power. Any DoD intelligence component that desires to undertake par- ticipation for such purpose shall forward its request to the Deputy Under Secretary of Defense (Policy) setting forth the relevant facts justifying such participation and explaining the nature of its contemplated activity. Such participation may be approved by the DUSD(P) with the concurrence of the General Counsel, DoD. Re- quests for approval of such participation by Army in- telligence elements will be submitted through command channels to HQDA(DAMI-CIC), WASH DC 20310. 2. Required approvals a. Undisclosed participation that may be ap- proved within the DoD intelligence component. Un- disclosed participation on behalf of a DoD intelligence component may be authorized within such component under the following circumstances: (1) Participation in meetings open to the pub- lic. For purposes of this section, a seminar or conference sponsored by a professional organization that is open to persons of a particular profession whether or not they are members of the organization itself or have received a special invitation, shall be considered a meet- ing open to the public. 10-2 1 July 1984 (2) Participation in organizations that permits other persons acknowledged to the organisation to be employees of the United States Government to partic- ipate. (3) Participation in educational or professional organizations for the purpose of enhancing the profes- sional skills, knowledge. or capabilities of employees. (4) Participation in seminars, forums. confer- ences, exhibitions, trade fairs, workshops, symposiums. and similar types of meetings. sponsored by organiza- tions in which the employee is a member, has been invited to participate, or when the sponsoring organi- zation does not require disclosure of the participant's employment affiliations, for the purpose of collecting significant foreign intelligence that is generally made available to participants at such meetings. and does not involve the domestic activities of the organization or its members. (5) Requests to engage in undisclosed partici- pation pursuant to this subsection may be approved by the ACSI, HQDA; Commanding General, INSCOM; Deputy Chief of Staff, Intelligence (DCSI), USAREUR; the G-2, EUSA; or their written designees. All requests will receive prior legal review by the supporting judge advocate. Information copies of approvals will be for- warded to HQDA(DAMI-CIC), WASH DC 20310. b. Participation that may be approved by senior intelligence officials. Undisclosed participation may be authorized by either the Deputy Under Secretary of Defense (Policy); the Director, Defense Intelligence Agency; the Assistant Chief of Staff for Intelligence, Department of the Army; the Commanding General, U.S. Army Intelligence and Security Command; the Director of Naval Intelligence; the Director of Intelli- gence, U.S. Marine Corps; the Assistant Chief of Staff, Intelligence, United States Air Force; the Director, Na- val Investigative Service; the Commanding Officer, Air Force Office of Special Investigations; or their single designees, for the following purposes: (1) To collect significant foreign intelligence outside the United States, or from or about other than United States persons within the United States, pro- vided no information involving the domestic activities of the organization or its members may be collected. (2) For counterintelligence purposes, at the written request of the Federal Bureau of Investigation. (3) To collect significant counterintelligence about other than United States persons, or about United States persons who are within the investigative juris-
1 July 1934 diction of the Department of Defense. provided any such participation that occurs within the United States shall be coordinated with the Federal Bureau of Inves- tigation. (4) To collect information necessary to identify and assess other than United States persons as potential sources of assistance for foreign intelligence and coun- terintelligence activities. (5) To collect information necessary to identify United States persons as potential sources of assistance to foreign intelligence and counterintelligence activi- ties. (6) To develop or maintain cover necessary for the security of foreign intelligence or counterintel- ligence activities. (7) Outside the United States. to assess United States persons as potential sources of assistance to for- eign intelligence and counterintelligence activities. (8) Requests to engage in undisclosed partici- pation pursuant to this section must be approved by the AR 381-10 ACSI, HQDA, or the Commanding General, INSCOM. All requests will receive prior legal review by the Office of The Judge Advocate General, HQDA, or the Staff Judge Advocate, INSCOM, respectively. Information copies of all approvals by the Commanding General, INSCOM, will be provided to HQDA(DAMI-CIC), WASH DC 20310. D. DISCLOSURE REQUIREMENT 1. Disclosure of the intelligence affiliation of an employee of a DoD intelligence component shall be made to an executive officer of the organization in ques- tion, or to an official in charge of membership, attend- ance or the records of the organization concerned. Dis- closure under this subsection is not required if undisclosed participation is permissible and authorized by this pro- cedure. 2. Disclosure may be made by the DoD intelligence component involved, an authorized DoD official, or by another component of the Intelligence Community that is Otherwise authorized to take such action on behalf of the DoD intelligence component concerned. 10-3
PROCEDURE 11. A. APPLICABILITY This procedure applies to contracting or other ar- rangements with United States persons for the pro- curement of goods and services by DoD intelligence components within the United States and with con- tractors abroad who are US persons. This procedure does not apply to contracting with government entities, or to the enrollment of individual students in academic institutions. The latter situation is governed by Proce- dure 10. B. PROCEDURES 1. Contracts with academic institutions. DoD in- telligence components may enter into a contract for goods or services with an academic institution only if prior to the making of the contract, the intelligence component has disclosed to appropriate officials of the academic institution the fact of sponsorship by a DoD intelligence component. 2. Contracts with commercial organizations, pri- vate institutions and individuals. Contracting by or for a DoD intelligence component with commercial orga- nizations, private institutions, or private individuals within CONTRACTING FOR GOODS AND SERVICES the United States may be done without reveali sponsorship of the intelligence component if: a. The contract is for published material . able to the general public or for routine goods or ices necessary for the support of approved activi such as credit cards, car rentals, travel, lodging, me rental of office space or apartments, and other it: incident to approved activities; or b. There is a written determination by the Sc retary or the Under Secretary of a Military Departmen, the Director of the National Security Agency, the D rector of the Defense Intelligence Agency. or the Der uty Under Secretary of Defense (Policy) that the spon sorship of a DoD intelligence component must be concealed to protect the activities of the DoD Intelli- gence component concerned. Requests by Army intel- ligence elements for authority to conceal such spcnsor- ship will be submitte:i through command channels to HQDA(DAMI-CIC), WASH DC 20310. C. EFFECTS OF NON-COMPLIANCE No contract shall be void or voidable for failure to comply with this procedure. 11-1
t July 1984 PROCEDURE 12. A. APPLICABILITY This procedure applies to the provision of assist- ance by DoD intelligence components to law enforce- ment authorities. It incorporates the specific limitations on such assistance contained in E.O. 12333, (reference (a)), together with the general limitations and approval requirements of DoD Directive 5525.5, (reference (i)). (See AR 500-51.) B. PROCEDURES 1. Cooperation with law enforcement authorities. Consistent with the limitations contained in DoD Di- rective 5525.5, (reference (i)), and subsection B.2., be- low, DoD intelligence components are authorized to cooperate with law enforcement authorities for the pur- pose of: a. Investigating or preventing clandestine intel- ligence activities by foreign powers, internationai nar- cotics activities, or international terrorist activities; b. Protecting DoD employees, information, property and facilities; and c. Preventing, detecting or investigating other violations of law. 2. Types of permissible assistance. DoD intelli- gence components may provide the following types of assistance to law enforcement authorities: a. Incidentally-acquired information reasonably believed to indicate a violation of federal law shall be provided in accordance with the procedures adopted pursuant to section 1.7 (a) of E.O. 12333 (reference AR 381-:0 PROVISION OF ASSISTANCE TO LAW ENFORCEMENT AUTHORITIES (a)). Policy governing reporting and use of information concerning Federal crimes is found at procedure 15, section C.4, b. Incidentally-acquired information reasonably believed to indicate a violation of state, local or foreign law may be provided in accordance with procedures adopted by the heads of DoD components; c. Specialized equipment and facilities may be provided to federal law enforcement authorities, and. where lives are endangered, to state and local law en- forcement authorities; provided such assistance is con- sistent with, and has been approved by an official au- thorized pursnant to, enclosure 3 of DoD Directive 5525.5, (reference (i)); and d. Personnel who are employees of DoD intel- ligence components may be assigned to assist federal law enforcement authorities, and when lives are en- dangered, state and local law enforcement authorities: provided such use is consistent with, and has been ap- proved by an official authorized pursuant to, enclosure 4 of DoD Directive 5525.5, (reference (i)). Such official shall ensure that the General Counsel of the providing DoD component concurs in such use. e. Assistance may be rendered to law enforce- ment agencies and security services of foreign govern- ments or international organizations in accordance with established policy and applicable Status of Forces Agreements; provided, that DoD intelligence compo- nents may not request or participate in activities of such agencies undertaken against United States persons that would not be permitted such components under these procedures. 12-1
1 July 1984 AR 381-10 PROCEDURE 13. EXPERIMENTATION ON HUMAN SUBJECTS FOR INTELLIGENCE PURPOSES A. APPLICABILITY This procedure applies to experimentation on hu- man subjects if such experimentation is conducted by or on behalf of a DoD intelligence component. This procedure does not apply to experimentation on animal subjects. B. EXPLANATION OF UNDEFINED TERMS 1. Experimentation in this context means any re- search or testing activity involving human subjects that may expose such subjects to the possibility of perma- nent or temporary injury (including physical or psy- chological damage and damage to the reputation of such persons) beyond the risks of injury to which such sub- jects are ordinarily exposed in their daily lives. 2. Experimentation is conducted on behalf of a DoD intelligence component if it is conducted under contract to that component or to another DoD com- ponent for the benefit of the intelligence component or at the request of such a component regardless of the existence of a contractual relationship. 3. Human subjects in this context includes any per- son whether or not such person is a United States per- son. C. PROCEDURES 1. Experimentation on human subjects conducted by or on behalf of a DoD intelligence component may be undertaken only with the informed consent of the subject. and in accordance with guidelines issued by the Department of Health and Human Services, setting out conditions that safeguard the welfare of such subjects. 2. DoD intelligence components may not engage in or contract for experimentation on human subjects without approval of the Secretary or Deputy Secretary of Defense, or the Secretary or Under Secretary of a Military Department, as appropriate. Requests for such approval submitted by Army intelligence components will be addressed through command channels to HQDA(DAMI-CIC), WASH DC 20310. 13-1
1 July 1984 PROCEDURE 14. A. APPLICABILITY This procedure sets forth the responsibilities of em- ployees of DoD intelligence components to conduct themselves in accordance with this Regulation and other applicable policy. It also provides that DoD intelligence components shall ensure, as appropriate, that these pol- icies and guidelines are made known to their employees. B. PROCEDURES i. Employee responsibilities. Employees shall conduct intelligence activities only pursuant to, and in accordance with, Executive Order 12333 (reference (a)) and this Regulation. In conducting such activities, em- ployees shall not exceed the authorities granted the employing DoD intelligence components by law; Ex- ecutive Order, including EO 12333 (reference (a)), and applicable DoD directives. 2. Familiarity with restrictions a. Each DoD intelligence component shall fa- miliarize its personnel with the provisions of Executive Order 12333, (reference (a)), this Regulation, and any instructions implementing this Regulation which apply to the operations and activities of such component. At a minimum, such familiarization shall contain: (1) Applicable portions of Procedures 1 through (2) A summary of other procedures that per- tain to collection techniques which are, or may be, em- ployed by the DoD intelligence component concerned; and (3) A statement of individual employee re- porting responsibility under Procedure 15. b. The Assistant to the Secretary of Defense (Intelligence Oversight) (ATSD (10)), and each In- AR 381-10 EMPLOYEE CONDUCT spector General responsible for a DoD intelligence component shall ensure, as part of their inspections. that procedures are in effect which achieve the objec- tives set forth in paragraph B.2.a., above. 3. Responsibilities of the heads of DoD compo- nents. The heads of DoD Components that constitute. or contain, DoD intelligence components (The Secre- tary of the Army) shall: a. Ensure that all proposals for intelligence ac- tivities which may be unlawful, in whole or in part, or may be contrary to applicable Executive Branch or DoD policy are referred to the General Counsel responsible for such component. b. Ensure that no adverse action is taken against any employee because the employee reports activities pursuant to Procedure 15. c. Impose such sanctions as may be appropriate upon any employee who violates the provisions of this Regulation or any instruction promulgated thereunder. d. In any case involving serious or continuing breaches of security by either DoD or non-DoD em- ployees, recommend to the Secretary of Defense ap- propriate investigative actions. e. Ensure that the General Counsel and In- spector General with responsibility for the component (The Army General Counsel and the DA Inspector Gen- eral), as well as the General Counsel, DoD, and the ATSD (IO), (and the intelligence oversight officer, of- fice of the ACSI, HQDA) have access to all information concerning the intelligence activities of that component necessary to perform their oversight responsibilities. f. Ensure that employees cooperate fully with the Intelligence Oversight Board and its representa- tives. 14-1
1 July 7934 AR 381-10 PROCEDURE 15. iDENTIFYING, INVESTIGATING, AND REPORTING QUESTIONABLE ACTIVITIES A. APPLICABILITY This procedure provides for the identification, in- vestigation, and reporting of questionable intelligence acuvities. B. EXPLANATION OF UNDEFINED TERMS 1. The term “questionable activity,” as used herein, refers to any conduct that constitutes, or is related to, an intelligence activity that may violate the law, any Executive Order or Presidential directive, including E.O. 12233, reference (a)), or applicable DoD policy, in- cluding this Regulation. 2. The terms ‘‘General Counsel” and “Inspector General,” as used herein, refer, unless otherwise spec- ified, to any General Counsel or Inspector General with responsibility for one or more DoD intelligence com- penents. Unless otherwise indicated, the term “In- spector General” shall also include the ATSD (IO). For the purposes of this procedure the terms refer to the Army General Counsel and the DA Inspector Gen- eral. C. PROCEDURES 1. Identification a. Each employee shall report any questionable activity to the General Counsel or Inspector Generai for the DoD intelligence component concerned, or to the DoD General Counsel or the ATSD (IO). (1) Questionable activities will be reported by electrical message through command channels to HQDA(DAMI-CIC), WASH DC 20310, as soon as pos- sible (but in any event not later than five days of dis- covery). Reports will include the following: (a) Description of the nature of the ques- tionable activity. (b) Date, time, and location of occurrence. (c) Individual or unit responsible for the questionable activity. (d) Summary of the incident to include ref- erences to particular portions of this regulation. (e) Status of the investigation of the incident. (2) Employees are enceuraged to submit such reports through command channels; however, if the em- ployee desires, reports of questionable activity may be sent directly to the following: The ACSI, HQDA; the Office of The Inspector General, HQDA; or the Office of the Army General Counsel, WASH DC 20310. b. Inspectors General, as part of their inspection of DoD intelligence components, and General Coun- sels, as part of their oversight responsibilities shall seek to determine if such components are involved in any questionable activities. If such activities have been or are being undertaken, the matter shall be investigated under subsection C.2. below. If such activities have been undertaken but were not reported, the Inspector General shall aiso ascertain the reason for such failure and recommend appropriate corrective action. c. Inspectors General, as part of their oversight responsibilities, shall, as appropriate, ascertain whether any organization, staffs, or offices within their respec- tive jurisdictions but not otherwise specifically identi- fied as DoD intelligence components, are being used for foreign intelligence or counterintelligence purposes to which Part 2 of E.O. 12333, (reference (a)), applies, and, if so, shall ensure the activities of such components are in compliance with this Regulation and applicable DoD policy. 7 d. Inspectors General, as part of their inspection of DoD intelligence components, shall ensure that pro- cedures exist within such components for the reporting of questionable activities, and that employees of such components are aware of their responsibilities to report such activities. 2. Investigation a. Each report of a questionable activity shall be investigated to the extent necessary to determine the facts and assess whether the activity is legal and is con- sistent with applicable policy. 15-1
AR 381-10 (1) Initial investigation will be conducted in an expeditious manner by the command which reported the questionable activity. (2) Within 30 days of the initial report, the command will forward a final report through command channels to HQDA(DAMI-CIC), WASH DC 20310 for submission to the DA Inspector General and the Army General Counsel. The report will be reviewed by the supporting judge advocate; it will include the following: (a) Results of the investigation. (b) Disciplinary or corrective action taken or contempiated. (3) If the investigation cannot be completed within 30 days from the date of the initial report, a status report will be submitted; the report will provide the reasons for the delay and an estimated date of comple- tion. Status reports will be forwarded every 30 days until the investigation is completed. Except in extraordinary circumstances, investigations will be completed and a final report sent within 60 days from the date of the original report. (4) Pursuant to AR 335-15, paragraph 7-2r, the above reports are exempt from the requirement for a Requirements Control Symbol. b. When appropriate, questionable activities re- ported to a General Counsel shall be referred to the corresponding Inspector General for investigation, and if reported to an Inspector General, shall be referred to the corresponding General Counsel to determine whether the activity is legal and consistent with appli- cable policy. Reports made to the DoD General Coun- sel or the ATSD (10) may be referred, after consul- tation between these officials, to the appropriate Inspector General and General Counsel for investiga- tion and evaluation. c. Investigations shail be conducted expedi- tiously. The officials responsible for these investigations may, in accordance with established procedures, obtain assistance from within the component concerned, or from other DoD components, when necessary, to com- piete such investigations in a timely manner. d. To complete such investigations, General Counsels and Inspectors General shail have access to ali relevant information regardless of classification or compartmentation. 3. Regorts a. Ech Counsel and Inspector General shall re- port immediately to General Counsel, DoD, and the ATSD (IO) questionable activities of a serious nature. 15-2 1 July 1984 b. Each General Counsel and Inspector General shali submit to the ATSD (IO) a quarterly report de- scribing those activities that come to their attention during the quarter reasonably believed to be illegal or contrary to Executive Order or Presidential directive. or applicable DoD policy: and actions taken with re- spect to such activities. The reports shall also include significant oversight activities undertaken during the quarter and any suggestions for improvements in the oversight system. Separate. joint, or consosidated re- ports may be submitted. These reports should be pre- pared in accordance with DoD Directive 5000.11, (ref- erence (j)). (1) The DA Inspector General will prepare the Quarterly Oversight Activities Report for the signature of The Inspector General and the Army General Coun- sel. The report will be forwarded not later than 30 days following the end of each quarter. (2) To assist in preparing this report, the ACSI, HQDA; Commanding General, INSCOM; CINC- USAREUR; Commanding General, US Army Forces Command (FORSCOM); and the Commanding Gen- eral, EUSA, will provide contributions not later than 15 days following the end of the quarter. These reports will be forwarded through HQDA(DAMI-CIC), WASH DC 20310. ‘ (3) The quarterly reports will include the fol- lowing: (a) Description of significant oversight ac- tivities undertaken during the quarter. (b) Identification of unlawful or improper activities discovered or reported. (c) Suggestions for improvements of the oversight system. (4) Pursuant to AR 335-15, paragraph 7—2r, these quarterly reports are exempt from the requirement for a Requirements Controi Symbol. c. Allreports made pursuant to subsections 3.a. and b. above, which involve a possible violation of fed- eral criminal law shall be considered by the General Counsel concerned in accordance with the procedures adopted pursuant to section 1.7(a) of E.O. 12333 (ref- erence (a)). d. The General Counsel, DoD, and the ATSD (IO) may review the findings of other General Counsels and Inspector Generals with respect to questionable activities. e. The ATSD (IO) and the General Counsel, DoD, shall report in a timely manner to the White
1 July 1984 Appendix A Definitions 1. Administrative purposes. Information is col- lected for ‘‘administrative purposes” when it is neces- sary for the administration of the component concerned but is not collected directly in performance of the in- telligence activities assigned such component. Exam- ples include information relating to the past perform- ance of potential contractors; information to enable such components to discharge their public affairs and legis- lative duties, including the maintenance of correspond- ence files; the maintenance of employee personnel and training records; and training materials or documents produced at training facilities. 2. Available publicly. Information that has been published or broadcast for general public consumption, is available on request to a member of the general pub- lic, could lawfully be seen or heard by any casual ob- server, or is made available at a meeting open to the general public. In this context, the “general public” also means general availability to persons in a military com- munity even though the military community is not open to the civilian general public. 3. Communications security. Protective measures taken to deny unauthorized persons information de- rived from telecommunications of the United States Government related to national security and to ensure the authenticity of such telecommunications. 4. Consent. The agreement by a person or orga- nization to permit DoD intelligence components to take particular actions that affect the person or organization. Consent may be oral or written unless a specific form of consent is required by a particular procedure. Con- sent may be implied if adequate notice is provided that a particular action (such as entering a building) carries with it the presumption of consent to an accompanying action (such as search of briefcases). (Questions re- garding what is adequate notice in particular circum- stances should be referred to the legal office responsible for advising the DoD intelligence component con- cerned.) 5. Counterintelligence. Information gathered and activities conducted to protect against espionage, other intelligence activities, sabotage, or assassinations con- ducted for or on behalf of foreign powers, organiza- AR 381-10 tions, persons, Or international terrorist activities. but not including personnel, physical, document. or com- munications security programs. 6. Counterintelligence_ investigation. Includes in- quiries and other activities undertaken to determine whether a particular United States person is acting for. or on behalf of, a foreign power for purposes of con- ducting espionage and other intelligence activities, sab- otage, assassinations, international terrorist activitics. and actions to neutralize such acts. 7. DoD Component. Includes the Office of the Secretary of Defense. each of the Military Depart- ments, the Organization of the Joint Chiefs of Staff. the Unified and Specified Commands, and the Defense Agencies. For the purposes of this regulation, the head of the DoD Component is the Secretary or Under Sec- retary of the Army. 8. DoD intelligence components. Include the fol- lowing organizations: a. The National Security Agency/Central Secu- rity Service.” b. The Defense Intelligence Agency. c. The offices within the Department of Defense for the collection of specialized national foreign intel- ligence through reconnaissance programs. d. The Assistant Chief of Staff for Intelligence. Army Genera! Staff. e. The Office of Naval Intelligence. f. The Assistant Chief of Staff. Intelligence. United States Air Force. g. The Army Intelligence and Security Com- mand. h. The Naval Intelligence Command. i. The Naval Security Group Command.
AR 381~10 j. The Director of Intelligence, U.S. Marine Corps. k. The Air Force Intelligence Service. 1. The Electronic Security Command, United States Air Force. m. The counterintelligence elements of the Na- val Investigative Service. n. The counterintelligence elements of the Air Force Office of Special Investigations. o. The 650th Military Intelligence Group, SHAPE. p. Other organizations, staffs, and offices, when used for foreign intelligence or counterintelligence ac- tivities to which part 2 of E.O. 12333 (reference (a)), applies; provided that the heads of such organizations, staffs, and offices shal! not be considered as heads of DoD intelligence components for purposes of this Reg- ulation. Included in this subcategory are the following: intelligence units that support unified or specified com- mands; intelligence staff offices supporting military com- manders at all echelons including their subordinate in- telligence units and offices; and other DA components performing intelligence activities as that term is defined at paragraph 13. 9. Electronic surveiilance. Acquisition of a non- public communication by electronic means without the consent of a person who is a party to an electronic communication or, in the case of a nonelectronic com- munication, without the consent of a person who is visibly present at the place of communication, but not including the use of radio direction finding equipment solely to determine the location of a transmitter. (Elec- tronic surveillance within the United States is subject to the definitions in the Foreign Intelligence Surveil- lance Act of 1978, (reference (b)).) Pen register oper- ations are included within the term electronic surveil- lance. 10. Employee. A person employed by, assigned to, or acting for an agency within the intelligence com- munity, including contractors and persons otherwise acting at the direction of such an agency. 11. Foreign intelligence. Information relating to the capabilities, intentions, and activities of foreign powers, Organizations, or persons, but not including counterintelligence except for information on interna- tional terrorist activities. A-2 1 Juiy 1984 12. Foreign power. Any foreign government (re- gardiess of whether recognized by the United States), foreign-based political party (or faction thereof), for- eign military force, foreign-based terrorist group, or any organization composed, in major part, of any such en- tity or entities. 13. Intelligence Activities. Refers to all activities - that DoD intelligence components are authorized to undertake pursuant to Executive Order 12333 (refer- ence (a)). 14. intelligence Community and an agency of or within the Intelligence Community. Refers to the fol- lowing organizations: a. The Central Intelligence Agency (CIA). b. The National Security Agency (NSA). c. The Defense Intelligence Agency (DIA). d. The offices within the Department of Defense for the collection of specialized national foreign intel- ligence through reconnaissance programs. e. The Bureau of Intelligence and Research of the Department of State. f. The intelligence elements of the Army, Navy, Air Force and Marine Corps, the Federal Bureau of Investigation (FBI), the Department of the Treasury. and the Department of Energy. g. The staff elements of the Office of the Director of Central Intelligence. 15. International Narcotics Activities. Refers to activities outside the United States to produce, transfer or sell narcotics or other substances controlled in ac- cordance with title 21, United States Code, Sections 811 and 812. 16. International Terrorist Activities. Activities undertaken by or in support of terrorists or terrorist organizations that occur totally outside the United States. or that transcend national boundaries in terms of the means by which they are accomplished, the persons they appear intended to coerce or intimidate, or the locale in which the perpetrators operate or seek asylum. 17. Lawful investigation. An investigation quali- fies as a lawful investigation if the subject of the in- vestigation is within DoD investigative jurisdiction: if it is conducted by a DoD component that has author- ization to conduct the particular type of investigation
1 ducy 1984 concerned (for example -ounterintelligence, personnel security, physical secvii:y, communications security); and if the investigatioz ic conducted in accordance with apy.ucable law and p..: cv. including E.O. 12333 and thi. Regulation. 18. Law Enforcement Activities. Activities under- taken for the purpose of detecting violations of law or to locate and apprehend persons who violate the law. This includes activities to enforce the Uniform Code of Military Justice. 19. Personnel Security. Measures designed to in- sure that persons employed, or being considered for employment, in sensitive positions of trust are suitable for such employment with respect to loyalty, character, emotional stability, and reliability and that such em- ployment is clearly consistent with the interests of the national security. It includes measures designed to en- sure that persons granted access to classified informa- tion remain suitable for such access and that access is consistent with the interests of national security. 20. Personnel security investigation: a. An inquiry into the activities of a person granted access to intelligence or other classified information; or a rerson who is being considered for access to intelli- gence or other classified information, including persons who are granted or may be granted access to facilities of DoD intelligence components; or a person to be assigned or retained in a position with sensitive duties. The investigation is designed to develop information pertaining to the suitability, eligibility, and trustwor- thiness of the individual with respect to loyalty, char- acter, emotional stability and reliability. b. Inquiries and other activities directed against DoD employees or members of a military service to determine the facts of possible voluntary or involuntary compromise of classified information by them. c. The collection of information about or from military perscanel in the course of tactical training ex- ercises for security training purposes. 21. Physical security. The physical measures taken to prevent unauthorized access te, and prevent the dam- age or loss of, equipment, facilities, materiel and doc- uments; and measures undertaken to protect DoD per- sonnel from physical threats to their safety. 22. Physical security investigation. All inquiries, inspections. or surveys of the effectiveness of controls and procedures designed to provide physical security; AR 381-10 and all inquiries and other actions undertaken to obtain information pertaining to physical threats to DoD per- sonnel or property. 23. Reasonable belief. A reasonable belief arises when the facts and circumstances are such that a rea- sonable person would hold the belief. Reasonable belief must rest on facts and circumstances that can be artic- ulated; “‘hunches”’ or intuitions are not sufficient. Rea- sonable belief can be based on experience, training, and knowledge in foreign inteiligence or counterintelligence work applied to facts and circumstances at hand, so that a trained and experienced “reasonable person” might hold a reasonabie belief sufficient to satisfy this criterion when someone unfamiliar with foreign intelligence or counterintelligence work might not. 24. Signals intelligence. A category of intelligence including communications intelligence, electronic in- telligence, and foreign instrumentation signals intelli- gence, either individuaily or in combination. 25. Special Activities. Activities conducted in sup- port of national foreign policy objectives abroad which are planned and executed so that the role of the US Government is not apparent or acknowledged publicly, and functions in support of such activities, but which are not intended to influence US political processes, pub- lic opinion, or media, and do not include diplomatic activities or the collection and production of intelligence or related-support functions. 26. United States. When used to describe a place, the term shall include the territories under the sover- eignty of the United States. 27. United States person. a. The term “United States person” means: (i) A United States citizen; (2) An alien known by the DoD intelligence component concerned to be a permanent resident alien: (3) An unincorporated association substan- tially composed of United States citizens or permanent resident aliens; (4) A corporation incorporated in the United States, except for a corporation directed and controlled by a foreign government or governments. A corpora- tion or corporate subsidiary incorporated abroad, even if partially or wholly owned by a corporation incorpo- rated in the United States, is not a United States person. A-3
AR 381-10 b. A person or organization outside the United States shall be presumed not to be a United States person unless specific information to the contrary is obtained. An alien in the United States shall be pre- sumed not to be a United States person unless specific 1 July 1984 information to the contrary is obtained. c. A permanent resident alien is a foreign na- tional lawfully admitted into the United States for per- manent residence.
41 July 1984 Appendix B AR 381-10 Extract from “The Agreement Between the Deputy Secretary of Defense and Attorney General, April 5, 1979” Section 6: DELINEATION OF RESPONSIBILITY FOR CI INVESTIGATIONS Responsibility for CI investigations shall be apportioned between the FBI and the military CI services of the DOD as follows: a. All investigations of violations of the Atomic Energy Act of 1946, which might constitute a Cl investigation as defined herein, shall be the responsibility of the FBI, regardless of the status or location of the subjects of such investigations. b. Except as provided by paragraph c(2) herein, all CI investigations of foreign nationals undertaken within the United States shall be the responsibility of the FBI. c. Cl investigations within the United States shall be conducted in accordance with the following jurisdic- tional guidelines: . (1) Except as provided herein, investigations of all civilians, including DOD civilian personnel, shall be the responsibility of the FBI; (2) Investigations of US military personne! on active duty shall be the responsibility of the CI service of the appropriate military department; (3) Investigations of retired military personnel, ac- tive and inactive reservists, and National Guard mem- bers shall be the responsibility of the FBI; provided, however, that investigations of actions which took piace while the subject of the investigation was, or is, on active military duty shail be conducted by the CI service of the appropriate military department; and, (4) Investigations of private contractors of the DOD, and their employees, shall be the responsibility of the FBI, Provided, however, that nothing contained in this paragraph shall prevent the military CI services of the DOD, in a manner consistent with applicable law and Executive Branch policy, from undertaking: (a) In those cases where the FBI chooses to waive investigative jurisdiction, investigative actions which are necessary to establish or refute the factual basis required for an authorized administrative action, to protect the security of its personnel, information, activities, and in- Stallations; or (b) To provide assistance to the FBI in support of any CI investigation for which the FBI is herein as- signed responsibility. d. CI investigations outside the United States shall be conducted in accordance with the following guidelines: (1) Investigations of military personnel on active duty shall be the responsibility of the military CI services of the DOD. (2) Investigations of current civilian employees, their dependents, and the civilian dependents of active duty military personnel shali be the responsibility of the mil- itary CI services, uniess such responsibility is otherwise assigned pursuant to agreement with the host govern- ment, US law or Executive directive. (3) Investigations of retired military personnel, ac- tive and inactive reservists, National Guard members. private contractors and their employees, and other US persons, who permanently reside in such locations, shal! be undertaken in consultation with the FBI, CIA, and host government as appropriate, Provided, however, that nothing contained in this paragraph hall prevent the military CI services of the DOD, in a manner consistent with applicable law and Executive Branch policy from undertaking: (a) Investigative actions which are necessary tc establish or refute the factual basis required for an au- thorized administrative action, to protect the security of its personnel, information, activities, and installations; or (b) To provide assistance to the FBI or security service of a host government in support of Cl investi- gations outside the United States for which DOD is not herein assigned investigative responsibility.
1 July 1934 Appendix C References to Army Implementation of DoD 5240.1—R Section I Required Publications AR 190-13 AR 190-52 AR 195-2 AR 335-15 AR 349-2 AR 340-18 series AR 380-13 AR 380-53 AR 381-12 AR 381-20 (The Army Physical Security Program). Cited in procedure 2, section C.7. (Countering Terrorism and Other Major Disruptions on Military Installations). Cited in procedure 2, sections C.3.c., C.4.a., C.7., C.8., and C.11. (Criminal Investigation Activities). Cited in procedure 1, section A.3, and procedure 15, section C6. (Management Information Control Sys- tem). Cited in procedure 15, sections C.2.a.(4) and C.3.b.(4). ‘(Maintenance and Disposition of Records in TOE units of the Active Army, the Army Reserve, and the National Guard). Cited in procedure 3, section D.2. (The Army Functional Files System). Cited in procedure 3, section D.2. {Acquisition and Storage of Information Concerning Nonaffiliated Persons and Or- ganizations). Cited in the applicability statement on the title page. (Telephone Communications Security Monitoring). Cited in procedure 2, section C.9, and procedure 5, part 7, section A. (Subversion and Espionage Directed Against US Army (SAEDA). Cited in pro- cedure 1, section B, and procedure 2, sec- tions C.4.a., C.7, and C.8. (US Army Counterintelligence (CI) Activ- ities). Cited in procedure 1, sections A.3 and B, and procedure 2, sections C.7 and C8. AR 381-45 AR 381-47 AR 500-51 AR 604-5 DoD AR 381-10 (Investigative Records Repository (IRR)). Cited in procedure 3, section D.2. (S) (US Army Offensive Counterintelii- gence Operations (Short Title: OFCO) (U)). Cited in paragraph B-3. (Support to Civilian Law Enforcemei.i. Cited in procedure 12, section A. (Clearance of Personnel for Access to Classified Defense Information and Ma- terial). Cited in procedure 2, section C.8. (DoD Postal Manual). Cited In procedure 4525.6—M_ 8, sections C.1.a and C.3.a. Section II Reiated Publications* AR 10-5 AR 20-1 AR 27-10 AR 195-1 AR 340- 21-5 AR 380-5 AR 381-1 AR 600-50 (Department of the Army). (Inspector General Activities and Proce- dures). (Military Justice). (Army Criminai Investigation Program). (The Army Privacy Program: Systent No- tices and Exemption Rules for Intelli- gence, Security, Military Police, and Map- ping Functicns). (Department of the Army Information Se- curity Program). (Contro! of Dissemination of Intelligence Information). (Standards of Conduct for Department of the Army Personnel). *A related publication is merely a source of additional infor- mation. The user does not have to read it to understand this regulation.
1 duly 1984 APFENDIX D Part i:;, Executive Order 12333 Conduct of Intelligence Activities 2.1 Need. Accurate and timely information about the capabilities, intentions and activities of foreign powers, organizations, or persons and their agents is essential to informed decisionmaking in the areas of national defense and foreign relations. Collection of such information is a priority objective and will be pursued in a vigorous, innovative and responsible manner that is consistent with the Constitution and applicable law and respectful of the principles upon which the United States was founded. 2.2 Purpose. This Order is intended to enhance human and technical collection techniques, especially those un- dertaken abroad, and the acquisition of significant for- eign intelligence, as well as the detection and countering of international terrorist activities and espionage con- ducted by foreign powers. Set forth below are certain general principles that, in addition to and consistent with applicable laws, are intended to achieve the proper bal- ance between the acquisition of essential information and protection of individual interests. Nothing in this Order shall be construed to apply to or interfere with any au- thorized civil or criminal law enforcement responsibility of any department or agency. 2.3 Collection of Information. Agencies within the In- telligence Community are authorized to collect, retain or disseminate information concerning United States persons only in accordance with procedures established by the head of the agency concerned and approved by the Attorney General, consistent with the authorities provided by Part 1 of this Order. Those procedures shall permit collection, retention and dissemination of the fol- lowing types of information: a. Information that is publicly available or collected with the consent of the person concerned; b. Information constituting foreign intelligence or counterintelligence, including such information con- cerning corporations or other commercial organizations. Collection within the United States of foreign intelligence not otherwise obtainable shall be undertaken by the FBI or, when significant foreign intelligence is sought, by other authorized agencies of the Intelligence Commu- nity, provided that no foreign intelligence collection by such agencies may be undertaken for the purpose of AR 381—10 acquiring information concerning the domestic activities of United States persons; c. Information obtained in the course of a lawful for- eign intelligence, counterintelligence, international nar- cotics or international terrorism investigation; d. Information needed to protect the safety of any persons or organizations, including those who are tar- gets, victims or hostages of international terrorist or- ganizations; e. Information needed to protect foreign intelligence or counterintelligence sources or methods from unau- thorized disclosure. Collection within the United States shall be undertaken by the FBI except that other agencies of «. >! -telligence Community may also collect such in- formation concerning present or former employees, present or former intelligence agency contractors or their present or former employees, or applicants for any such employment or contracting; f. Information concerning persons who are reasonably believed to be potential sources or contacts for the pur- pose of determining their suitability or credibility; g. Information arising out of a lawful personnel, phys- ical or communications security investigation; h. Information acquired by overhead reconnaissance not directed at specific United States persons; i. Incidentally obtained information that may indicate involvement in activities that may violate federal, state, local or foreign laws; and j. Information necessary for administrative purposes. in addition, agencies within the Intelligence Community may disseminate information, other than information derived from signals intelligence, to each appropriate agency within the Intelligence Community, for purposes of allowing the recipient agency to determine whether the information is relevant to its responsibilities and can be retained by it. 2.4 Collection Techniques. Agencies within the Inteili- gence Community shall use the least intrusive collection techniques feasible within the United States or directed against United States persons abroad. Agencies are not D-1
AR 381-10 authorized to use such techniques as electronic surveil- lance, unconsented physical search, mail surveillance, physical surveillance, or monitoring devices unless they are in accordance with procedures established by the head of the agency concerned and approved by the At- torney General. Such procedures shall protect consti- tutional and other legal rights and limit use of such information to Jawful governmental purposes. These procedures shall not authorize: a. The CIA to engage in electronic surveillance within the United States except for the purpose of training, testing, or conducting countermeasures to hostile elec- tronic surveillance; b. Unconsented physical searches in the United States by agencies other than the FBI, except for: (1) Searches by counterintelligence elements of the military services directed against military personnel within the United States or abroad for intelligence purposes, when authorized by a military commander empowered to approve physical searches for law enforcement pur- poses, based upon a finding of probable cause to believe that such persons are acting as agents of foreign powers; and (2) Searches by CIA of personal property of non- United States persons lawfully in its possession. c. Physical surveillance of a United States person in the United States by agencies other than the FBI, except for: (1) Physical surveillance of present or former em- ployees, present or former intelligence agency contrac- tors or their present or former employees, or applicants for any such employment or contracting; and (2) Physical surveillance of a military person em- ployed by a nonintelligence element of a military service. d. Physical surveillance of a United States person abroad to collect foreign intelligence, except to obtain significant information that cannot reasonably be acquired by other means. 2.5 Attorney General Approval. The Attorney General hereby is delegated the power to approve the use for intelligence purposes, within the United States or against a United States person abroad, of any technique for which a warrant would be required if undertaken for law enforcement purposes, provided that such tech- niques shall noi be undertaken unless the Attorney Gen- eral has determined in each case that there is probable cause to believe that the technique is directed against a foreign power or an agent of a foreign power. Electronic surveillance, as defined in the Foreign Intelligence Sur- D--2 1 July 1984 yeillance Act of 1978, shall be conducted in accordance with that Act, as well as this Order. 2.6 Assistance to Law Enforcement Authorities. Agen- cies within the Intelligence Community are suthorized to: a. Cooperate with appropriate law enforcement agen- cies for the purpose of protecting the employees, infor-. - mation, property and facilities of any agency within the intelligence Community; b. Unless otherwise precluded by law or this Order, participate in law enforcement activities to investigate or prevent clandestine intelligence activities by foreign powers, or international terrorist or narcotics activities; c. Provide specialized equipment, technical know!- edge, or assistance of expert personnel for use by any department or agency, or, when lives are endangered, to support local law enforcement agencies. Provision of assistance by expert personnel shall be approved in each case by the General Couasel of the providing agency; and d. Render any other assistance and cooperation to law enforcement authorities not precluded by applicable law. 2.7 Contracting. Agencies within the Intelligence Com- munity are authorized to enter into contracts or ar- rangements for the provision of goods or services with private companies or institutions in the United States and need not reveal the sponsorship of such contracts or arrangements for authorized intelligence purposes. Contracts or arrangements with academic institutions may be undertaken only with the consent of appropriate officials of the institdtion. 2.8 Consistency With Other Laws. Nothing in this Order shali be construed to authorize any activity in violation of the Constitution or statutes of the United States. 2.9 Undisclosed Participation in Organizations Within the United States. No one acting on behalf of agencies within the Intelligence Community may join or otherwise participate in any organization in the United States on behalf of any agency within the Intelligence Community without disclosing his intelligence affiliation to appro- priate officials of the organization, except in accordance with procedures established by the head of the agency concerned and approved by the Attorney General. Such participation shall be authorized only if it is essential to achieving lawful purposes as determined by the agency head or designee. No such participation may be under- taken for the purpose of influencing the activity of the organization or its members except in cases where: a. The participation is undertaken on behalf of the FBI in the course of a lawful investigation; or
1 July 1984 b. The organization concerned is composed primarily of individuals who are not United States persens and is reasonably believed to be acting un behalf of a foreign power. 2.10 Human Experimentation. No agency within the In- . telligence Community shall sponsur, contract for or con- duct research on human subjects except in accordance with guidelines issued by the Department of Health and AR 381-10 Human Services. The subject’s informed consent shall be documented as required by those guidelines. 2.11 Prohibition on Assassination. No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination. 2.12 Indirect Participation. No agency of the Intelligence Community shall participate in or request any person to undertake activities forbidden by this Order.
By Order of the Secretary of the Army: JOHN A. WICKHAM, JR. General, United States Army Chief of Staff Official: ROBERT M. JOYCE Major General, United States Army The Adjutant General Distribution: To be distributed in accordance with DA Form 12-9A requirements for AR, Military Intelli- gence. Active Army, B; ARNG and USAR, C. s GU S GOVERNMENT PRINTING OFFICE 198. ~.--t=