A redacted Air Force Inspector General investigation report released Aug. 21 determined that Air National Guard RC-26B flights conducted over civil disturbances in Minnesota, Arizona, California, and the nation’s capital that broke out following George Floyd’s death in police custody didn’t collect citizens’ personal information. However, it also found the National Guard Bureau made some serious missteps in its utilization of the reconnaissance aircraft.

The service undertook the investigation, which was first reported by The New York Times on June 18, in response to concerns from Defense Secretary Mark T. Esper and Air Force Secretary Barbara M. Barrett “about military surveillance activities during civil unrest responses in early June 2020, including use of Air National Guard (ANG) RC-26B aircraft,” the report said. It cited a letter from nearly 40 Congressional legislators about domestic surveillance concerns as further impetus for the deep-dive. 

The bureau’s errors, which the report said were rooted in policy misinterpretations, included not getting Esper’s clearance for the RC-26 missions, and activating aircrew and support personnel for these missions in an inappropriate status.

The IG also cited Defense Department policy for leading the bureau to mistakenly believe “that the RC-26B is not an intelligence resource,” a point of confusion that it said “substantially contributed to the likely misuse of Immediate Response Authority.”

During an Aug. 21 press availability, Barrett declined to comment on the investigation, saying she hadn’t yet read the document and didn’t want to break any rules.

Surveillance Specifics

Air National Guard RC-26 aircraft flew seven flights over Minneapolis, Phoenix, El Dorado County, Calif., and Washington between June 1-4 as part of “overhead imagery Incident Awareness and Assessment (IAA) missions in support of law enforcement and/or National Guard units responding to destruction of property and violence,” the report said.

While these aircraft were able to provide aerial situational awareness for use by both the Guard and law enforcement, they captured images of large-scale visuals, such as “major crowd movements or fires near government buildings, property, or roads … all in public places,” and didn’t identify people or gather their personal information, the report said. 

Investigators didn’t turn up evidence that the aircraft “targeted, followed, or identified” specific people or groups, the report added.

According to the report, RC-26 aircraft largely lack the ability to do that type of surveillance due to the technical limitations of their sensors, which only enable them to gather “infrared and electro-optical imagery,” neither of which can capture “distinguishing personal features of individuals.”

However, it contended, the aircraft is capable of collecting data that could theoretically connect an individual with their actions.

“For instance, a flight could observe suspicious activity, follow the person, and law enforcement on the ground could be vectored by a control center or by a law enforcement officer on board to the individual,” the report stated. “In that way, earlier activity of the person observed from the flight could be connected with the person. That connection could be especially strong if there was a video recording. If the suspicious activity was connected to a crime, then either the observers or the recording could be used as witnesses or evidence.”

Although the RC-26B was equipped “with a complement of classified sensors” for the short time it was used to backup the U.S. military overseas,  “these classified capabilities and the associated wiring were removed” before it went back to domestic use, the report noted.

The report noted that RC-26 use in Phoenix was problematic because the local police department used its loaner eyes in the sky to figure out where to send military and civilian manpower to break up potentially peaceful—and legal—gatherings on the ground.

“Properly approved missions can support civilian law enforcement, but there is no scenario in which it is acceptable or permissible to use DOD assets to deter demonstrations and protests, assuming they remain lawful,” the report said.

The protection of U.S. constitutional rights are key in these kinds of missions, it noted.

The report pointed to one Minnesota RC-26 mission in which an aircraft checked out rooftops for potential threats to protestors as an example of how that duty can be upheld in the context of unrest response.

Since the National Guard Bureau had not previously used these aircraft during civil disturbance operations, relevant doctrine was nonexistent, the report acknowledged. For this reason, it said, “NGB, the RC-26B community, and the states” deferred to preexisting doctrines that dealt with responding to natural disasters or backing up law enforcement via the National Guard Counterdrug Program, it said.

Insufficient Permissions

According to the report, the National Guard needs Defense Secretary approval to use intelligence assets and governor permission to use “non-intelligence assets in a Title 32, USC, or state Active-duty status for IAA.”

However, the report found that then-NGB Chief Gen. Joseph L. Lengyel didn’t formally request permission to carry out IAA missions under section Title 32 502(f) authority until June 3.  

And although Esper met with Lengyel on June 1 and gave him Title 32 approval for an activation of 5,000 Guard personnel to respond to the civil unrest in Washington, the report noted that “aerial observation capability” was never discussed.

“Further complicating this matter is that SecArmy did not request this capability, nor did anyone in the senior ranks of the DCNG request this capability,” the report stated. This is relevant because, as the report notes, the President’s control over the District of Columbia National Guard—parallel to what a governor would have over their state’s Guard force—is delegated down to the Air Force Secretary, Army Secretary, and the DCNG commanding general.

By the time Lengyel sought Esper’s green light to pursue the missions under Title 32 502(f) authority—a request the report said wasn’t approved because the Office of the Secretary of Defense couldn’t find a legal justification to do so—ANG had already started flying them. An individual, whose name is redacted in the report, ordered an end to the flights on June 5, according to an event chronology included in the report.

Although each of the RC-26 missions had a corresponding Proper Use Memorandum, each of which underwent NGB and state legal reviews, the report dinged NGB for not getting the requisite top-level approvals for them.

“What was missing was a clear authorization from a Governor (except for California) or SecArmy, or a clear delegee, to authorize aerial observation, with instructions on how to conduct the mission in accordance with state law, and approval from SecDef (or delegee),” it read. “A standardized and regularly exercised process for approving the use of this rare asset in a civil disturbance setting that could also assess not just whether such missions are legally permissible, but consider whether they are advisable under the circumstances, could improve the current process and avert concerns of misuse.”

In cases where NGB tried to use “training” as the primary excuse for activating aircrew and support personnel under this federally funded, but governor-controlled, status, the payoffs didn’t make good on the promise.

“For instance, none of the witnesses cited to any training deficiencies that would be filled by participating in these flights, nor any training objectives they would fulfill above minimum requirements,” the report stated.

In the cases of Arizona and California, whose own state Air National Guards carried out the RC-26 missions, State Active-duty status should have been employed, the report said.

The orders under which the report claims some personnel took part in these RC-26 missions were potentially questionable.

For example, Arizona ANG personnel did so on border patrol orders, while some California and West Virginia ANG personnel (the latter of whom flew the RC-26 missions over Washington) did so on counterdrug orders.

Though a witness said they believed the WVANG was all-clear to do this because of Immediate Response Authority, the report found that neither the Defense nor Army Secretary ever approved that authority.

Calling a Spade a Spade

The RC-26’s identity as an intelligence tool—and the subsequent need for oversight regarding its use—should’ve been common sense, and the Guard’s inappropriate use of the airframe was at least partially rooted in confusion about that point, the report said.

“The analysis is fairly straightforward: the aircraft, with all its systems, is federal equipment; if used for a federal mission by Active-duty forces, the RC-26B would be and was used as an ISR asset; as an ISR asset, it would be subject to intelligence oversight rules; federal equipment does not change its character simply by being in the hands of the National Guard, even if funded by the National Guard, absent some special permission to the contrary,” the report stated. “It cannot be that intelligence equipment moves in and out of oversight, especially for something so significant as a requirement for SecDef approval for law enforcement support, simply by changing its funding line or its position in its lifecycle from acquisition through use through modification.”

The report pointed to the NGB’s employment of intelligence oversight rules for the airframe’s use, such as Proper Use Memorandum requirements, as further proof of why its identity as an intelligence resource should’ve been obvious.

The report notes that while intelligence tools require proper approval from the Defense Secretary, they can be used for non-intelligence purposes once that permission is obtained.

Policy regarding when and how Guard intelligence assets can be used for Defense Support to Civil Authorities exists, the report stated. However, it noted, figuring out what actually counts as an intelligence tool and when the criteria for these tools’ use are met can be hard. 

“Complexity and vagueness in DOD policy contribute to this difficulty,” it added.

Recommendations

The report’s recommends to the National Guard Bureau included:

• Review and potentially change its rules concerning how intelligence resources can be used in the context of Defense Support to Civil Authorities, as well as in its provision of backup to civilian law enforcement authorities.

• Review how it confirms that its use of Title 32 502(f) status is appropriate “for the mission at hand,” as well as how it obtains the proper approvals of that status for both missions and personnel, and that it makes sure the field is looped in about how these processes work.
• Develop training for states to help them understand how different authorities work and how they can be applied “to domestic operation missions”
• Work together with the Under Secretary of Defense for Policy “to clarify policies applicable to NG support to civilian law enforcement, particularly who can approve support under Immediate Response Authority”

The report also recommended that the under secretary of defense for intelligence and security, the under secretary of defense for policy, and the Defense Department senior intelligence oversight official “in consultation with NGB as appropriate, … clarify the DOD issuances on the interface between the rules applicable to the conduct of intelligence activities and Defense Support to Civil Authorities, especially in the context of support to civilian law enforcement, Immediate Response Authority, and state Immediate Response Authority.”

“The Air Force Inspector General Report made several recommendations to address the deficiencies identified during the investigation. Appropriate DOD stakeholders have reviewed the report and the recommendations and will, as appropriate, implement the necessary corrective actions,” a DOD spokesperson told Air Force Magazine via email on Aug. 23.