The Center for Investigative Reporting’s weekly blog feature examining the reality television show “Homeland Security USA” is taking a break to bring you this public service announcement regarding President Barack Obama’s call for an army of new intelligence specialists.
Overlooked in media reports of President Obama’s proposed 2010 budget was $260 million for the Department of Homeland Security to pay for thousands more state and regional intelligence analysts. These are the folks who work to improve the quality of available information on potential terrorists and encourage the wider sharing of it among law enforcement authorities.
But the analysts would most likely be staffed at controversial fusion centers that grew quickly across the country after Sept. 11 to collect and examine data in search of evidence that terrorists are planning an attack. California has four fusion centers, and many around the nation are jointly staffed by state police, FBI agents and federal analysts from the Homeland Security Department.
The use of such domestic intelligence forces raises serious questions about potential civil liberties abuses and has the familiar ring of the FBI’s scandalous domestic counterintelligence program, COINTELPRO, and so-called police Red Squads that had to be reined in after committing widespread constitutional offenses in the 70s.
At the very least, such a significant expansion of domestic intelligence gathering and analysis comes as a surprise considering Obama’s pledge that the era of government secrecy is over. On the contrary, some fusion centers have proved reluctant to provide watchdogs and reporters with information about what they’re up to. Last year, EPIC sued the Virginia State Police to force open records describing the activities of its fusion center.
Intelligence-led policing is the latest trend in law enforcement, but the concept—and many enforcement tactics—are not new, which is why some civil libertarians are worried. Half-a-century ago, local police spy units sought to unravel communist conspiracies in the United States—now their focus is the never-ending War on Terror. Cops obviously want to expose and preempt major crimes before they occur, rather than simply investigating the deadly aftermath when it’s too late to save victims. But since so many states are unlikely to be struck by terrorists, fusion centers have had to expand their intelligence mission to cover all crimes and potential hazards, partly to convince local legislators they’re worth financing with taxpayer money into the future.
A refresher course on this subject is offered in the late ACLU attorney Frank Donner’s definitive 1990 book on domestic intelligence gathering, Protectors of Privilege: Red Squads and Police Repression in Urban America. In it, he noted that local law enforcement for decades eavesdropped on thousands of people and groups with abandon and then shared the information with other cities, thus tarring as subversive anyone who appeared in the mountains of collected data files and suspicious activities reports, regardless of whether they’d actually committed a crime.
The super-secret Red Squad in New York City, known euphemistically as the Bureau of Special Services, or BOSS, spied and compiled data on every person and organization even loosely involved in political activism and deemed by police to be seditious or radical, including civil rights activists and elderly peace protestors. The bureau even spied on Mensa, the social club for braniacs, and neighborhood organizations that protested noise coming from a nearby airport.
The Red Squads also used paid infiltrators in attempts to provoke political activists into violating the law, conducted raids and arrests without warrants and beat protestors in the streets, all of which eventually caused enough of an uproar that many of the intelligence units agreed to legal settlements limiting the range of allowable surveillance tactics.
Not surprisingly to those who remember the past, much of the same problematic conduct is again being revealed. Some of it is the result of a modern-day development–electronic surveillance—that has been added to the menu of law enforcement tools
The Washington Post has published recent stories showing that the Maryland State Police collected intelligence on dozens of peaceful advocates and groups, including Amnesty International, labeling them in a database as terrorists. The Department of Homeland Security, according to the Post, provided officials in Maryland with information about upcoming antiwar demonstrations gleaned from e-mails that the federal government had somehow acquired. An organizer of the protests told the Post that federal agents would have had to infiltrate his group’s email lists to know about its plans.
The New York Times examined video footage in 2005 showing NYPD officers not just participating in protests undercover but actually seeming to incite reactions from demonstrators. The Times reporter who wrote the story, Jim Dwyer, has widely documented covert modern-day intelligence gathering on political activists by police in New York.
In 2002, the ACLU helped unearth spy files revealing a decades-long push by the Denver Police Department to collect intelligence on thousands of people and hundreds of organizations, including peace activists and mainstream human rights groups. On Feb. 26, the Texas Observer obtained a confidential and “bizarre, conspiracy-laden” memo from a fusion center warning local law enforcement of recent alleged threats to the Lone Star State from Muslim organizations and antiwar groups.
(For even more on contemporary surveillance techniques that pose complex issues for a free society, see the eye-opening 2005 book from Washington Post reporter Robert O’Harrow, Jr., No Place to Hide, published in partnership with CIR. O’Harrow is currently a CIR advisor.)
Congressional investigations in the 70s led to significant reforms of how law enforcement can handle data collected on individuals and political organizations. The Justice Department for years imposed regulations on electronic data systems maintained by local police requiring that intelligence be collected only on individuals reasonably suspected of having committed a crime. If the data becomes “misleading, obsolete, or otherwise unreliable,” the information is supposed to be purged after five years to protect the privacy rights of innocent Americans.
But following 9/11, police and federal authorities mounted a resistance effort against landmark 1970s-era privacy laws in a drive to expand information collection and sharing. No one is sure if all the fusion centers even comply with the guidelines, according to an early 2008 report from the Congressional Research Service: “The federal government has no formal and systematic means of auditing whether each center is appropriately protecting civil liberties, or using federally funded intelligence analysts in a manner that is consistent with national goals and objectives for fusion centers.”
In any case, during the waning months of the Bush Administration, Justice Department officials quietly proposed lightening many of the restrictions so that police could keep data on Americans for much longer than the previously established five years. It would also be far easier for police to exchange the sensitive information with their federal counterparts, as opposed to the past when it could only be transmitted on a “need-to-know” basis. The changes were unveiled as part of a larger effort by the Bush White House during the final moments of his term to make it easier for everyone in law enforcement, from the FBI to local patrol officers, to engage in domestic intelligence collection.
Regarding the proposed change, the Justice Department wrote in the Federal Register last July that “The five-year retention period was established before the events of 9/11 and the advent of the current terrorist threat environment. This relatively short retention period may not be long enough to cover terrorist planning cycles and/or the need for historical data for terrorism threat assessment. New technologies for data storage and analysis make possible the extended retention and potential usefulness of this information for purposes of such threat assessments.”
CIR placed several calls to the Justice Department’s press office in recent months while working on another story to ask about the status of the proposed changes, but no one has returned the calls. You can find more on the proposed changes here and here.
The Department of Homeland Security has moved to create recent guidelines for fusion centers specifically, including recommendations on how to respect civil liberties. But besides helping to finance their establishment, federal officials have mostly avoided regulating fusion centers, leaving them to fall under state laws. Nearly 60 fusion centers exist across the United States today, and their construction came with the help of $400 million in federal antiterrorism grants handed out between 2001 and 2006.
Former Homeland Security Secretary Michael Chertoff initially attempted to limit how much states could use the grants to pay overtime costs for personnel and hire new intelligence analysts in an effort to keep them from becoming too reliant on the money. But he was forced to change his tune last October when Congress mandated through a new bill that Chertoff allow up to half of the $1.7 billion doled out nationally from major emergency preparedness programs during 2009 to be used for covering intelligence specialists and other staff positions.
Much of the energy behind fusion centers is coming from the Democrat Party. While it seems that groups such as the ACLU would have an easier time finding sympathy with the Democrats now in control of the White House and Congress, the party is still out to convince voters it can do a better job than Republicans securing the homeland, and that means not appearing to coddle terrorists.
Newly appointed homeland security secretary, Democrat Janet Napolitano, testified in Washington Feb. 25 that partnering with state and local governments would be a major priority during her tenure. “The fusion of information between the federal, state and local levels is what makes the intelligence-gathering process critically valuable to preventing threats from materializing. … The creation of a seamless network we can use to share this information among levels of government is a critical part of improving our partnerships.”
A “seamless network” of domestic intelligence outposts operated by police who may not have sufficient experience in handling sensitive data is exactly what worries the ACLU, EPIC, and other pro-privacy organizations. Her comments were no doubt welcomed by Congressman Bennie Thompson, chair of the House Homeland Security Committee and also a Democrat, who has rarely missed an opportunity to criticize the Bush White House for not doing enough to back fusion centers and other antiterrorism initiatives. When Democrats retook the House following the 2006 midterm elections, their first legislation was the 9/11 Commission Act, which among other things codified the Department of Homeland Security’s role in supporting fusion centers.
Now comes President Obama to reinforce the administration’s support for fusion centers by endorsing a significant increase in the number of intelligence analysts.
There is no question that good intelligence can lead to better law enforcement and possibly avert terrorist activity, and it is possible that better communication between law enforcers could have detected the activities of the terrorists who committed the Sept. 11 attacks. At the same time, intelligence gathering run amok can produce unconstitutional abuses, as groups such as the ACLU and EPIC have pointed out. Simply throwing thousands more analysts into this complex area of law enforcement without due regard to that risk might produce other than the desired results.