Military Involvement in Domestic Surveillance: Cato FOIA Lawsuit Seeks Answers

Patrick G. Eddington

Over the last year, much of the focus of civil liberties advocates has been on the potential scope of law enforcement–federal, state, and local–monitoring of activists protesting the murder of George Floyd and other people of color by police officers. In late May 2020, then‐​Attorney General William Barr authorized the Drug Enforcement Administration (DEA) to conduct surveillance of protestors (Cato has a FOIA pending with DoJ to determine whether that authority remains in effect). The Department of Homeland Security conducted aerial surveillance over at least 15 U.S. cities for the same purpose. But in late June 2020, the New York Times reported that Air National Guard RC-26 reconnaissance aircraft had been employed in multiple protest locations. The revelation triggered a subsequent Air Force Inspector General investigation, which was released in August 2020.

While the Air Force IG claimed that the aircraft lacked sensors precise enough to identify individual protestors, the incident was a reminder about how DoD elements have been used in the past to spy on Americans engaged in protests. Almost a year before George Floyd’s murder, Cato initiated a FOIA campaign targeting the Defense Department and the Services seeking to learn whether a specific DoD authority, DoD Directive 5200.27, may still be in use to target political activists. As DoD and key Service components refused to provide the requested records, today Cato filed a FOIA lawsuit in the D.C. Circuit to compel production.

We chose this particular directive because of the history of its misuse.

During the Vietnam era and carried out under DoD Directive 5200.27, the Navy’s Operation SHORT CIRCUIT was designed to disrupt the ability of organizations like the National Lawyers Guild to provide legal services to American military personnel or draftees seeking to avoid being sent to Vietnam. Whether any additional records on Operation SHORT CIRCUIT survive is the subject of Cato FOIA requests to the Navy and National Archives.

More recently, during the Bush 43 administration, DoD Directive 5200.27 was the basis for the Pentagon’s TALON program, a key component of the Counterintelligence Field Activity (CIFA) that was used to monitor anti‐​Iraq war protests. Although CIFA and TALON were allegedly discontinued in 2007, DoD Directive 5200.27 remains on the books–meaning that the underlying authority to resume similar programs remains. Other DoD directives and authorities relevant to concerns about military involvement in domestic surveillance will be the subject of follow up Cato FOIA requests.