BIG BROTHER GETS BIGGER—Domestic Spying & the Global Intelligence Working Group

Published in the July-August 2003 edition of Agenda (Ann Arbor, MI)

BIG BROTHER GETS BIGGER—Domestic Spying & the Global Intelligence Working Group by Michelle J. Kinnucan

With virtually no media coverage or public scrutiny, a major reorganization of the US domestic law enforcement intelligence apparatus is well underway and, in fact, is partially completed. The effort to create a new national intelligence collection, analysis, and sharing system has frightening implications for privacy and other civil liberties. Operating under the umbrella of John Ashcroft’s Department of Justice (DOJ), this monster-in-the-making is now the work of the intergovernmental Global Intelligence Working Group (GIWG) [it.ojp.gov/topic.jsp?topic_id=56].

ORIGINS

In the fall of 2001, the International Association of Chiefs of Police (IACP) held its annual conference in Toronto. Considering the events of September 11th, it was decided to organize an International Criminal Intelligence Sharing Summit in Alexandria, VA, March 7-8, 2002; the topic was “Criminal Intelligence Sharing: Overcoming Barriers to Enhance Domestic Security.”

The 100 Summit attendees comprised a select group of “criminal intelligence experts from local, state, Tribal and Federal law enforcement agencies, international law enforcement bodies, national and regional intelligence gathering and analysis organizations and academia.” Participants included Attorney General John Ashcroft and representatives from the DOJ, INS, DEA, FBI, Office of Homeland Security, National Reconnaissance Office, Secret Service, and the US military.

The Summit proceedings were compiled by the IACP in a report entitled, Criminal Intelligence Sharing: A National Plan for Intelligence-Led Policing at the Local, State and Federal Levels—Recommendations from the IACP Intelligence Summit (“IACP Report”). The Summit and IACP Report were both partially funded by the DOJ.

VISION

The GIWG’s intelligence reorganization effort is linked to the Homeland Security Act, but extends far beyond concerns about terrorism. Early on, the IACP Report quotes a White House statement: “The Department of Homeland Security would coordinate, simplify and, where appropriate, consolidate government relations on issues for America’s state and local agencies. It would coordinate federal homeland security programs and information with state and local officials.” The IACP Report then observes: “This element of the President’s plan is significant: non-federal agencies (local law enforcement, state police and regional law enforcement task forces) have both a great need for intelligence data and a great capacity to contribute to the process of intelligence generation.”

The envisioned reorganization is one of not only enhanced federal-state/local integration for two-way intelligence sharing but also a fundamental restructuring. Thus, according to the IACP Report the “Participants called for a strengthening of the local component … so that information flows along a flattened continuum of all types of law enforcement agencies, versus the traditional hierarchical flow.” State and local agencies are to be “founding partners of and driving participants in any organization that helps coordinate the collection, analysis, dissemination and use of criminal intelligence data in the U.S.”

A case might well be made that the terrorist atrocities of September 11, 2001, were, in part, the result of a failure in intelligence sharing between the FBI and the CIA. Beyond bare assertions, however, no persuasive argument that better sharing between federal and state/local law enforcement agencies could have prevented 9/11 has been offered. Rather, one of the organizers and leaders of the IACP Summit, former New York City police intelligence division commander Daniel J. Oates, has undercut any such argument.

On September 20, 2001, the Ann Arbor News quoted him as follows: “ ‘Local law enforcement can do little to prevent an attack in the air,’ Oates said, adding that would fall under the jurisdiction of federal authorities.” (Oates became the Ann Arbor, MI police chief less than a month before 9/11.) Oates is later quoted as having “specific suggestions on how local law enforcement can work with federal government” on intelligence, but he offered no details. He did however note that the “first obvious measure” in response to 9/11 “is to make certain airplanes can’t be hijacked.”

In another related non sequitur, the IACP Report explicitly asserts “While September 11 highlighted urgency in improving the capacity of law enforcement agencies … to share terrorism-relevant intelligence data … [Summit participants] stressed that the real need is to share all – not just terrorism-related – criminal intelligence” (emphasis in original). A main selling point for the greater use of local police in domestic intelligence is the omnivorous spying potential of the widely adopted Community Oriented Policing Services or “COPS” model. The IACP Report asserts, “It is time to maximize the potential for community policing efforts to serve as a gateway of locally based information to prevent terrorism, and all other crimes, through the timely transfer of critical information from citizens to their local police agency and then across the intelligence continuum.” However, the IACP Report offers little or no justification for enhanced collection or sharing of any type of intelligence, let alone of non-terrorism intelligence.

As an aside, neither the Terrorism Information and Prevention System (TIPS) nor the Neighborhood Watch Programs (NWP) is mentioned in the IACP Report. Still, it is noteworthy that months before Congress blocked funding for TIPS in late 2002, John Ashcroft announced a closely related initiative to be managed by the same organization--Citizen Corps--that would have run TIPS. The plan is to double the number of NWPs by 2004 and, according to the DOJ, expand their mission to make participants “a critical element in the detection, prevention and disruption of terrorism.” While TIPS has been derailed, perhaps temporarily, the Neighborhood Watch expansion has proceeded apace--there are now 10,000 programs nationwide.

DANGER

The GIWG vision—all US law enforcement agencies freely and systematically sharing all intelligence—is virtually unprecedented and poses a great danger to civil liberties. Another time that the federal government cooperated on an extensive basis with state and local police for intelligence purposes was in the era of the FBI’s notorious Counterintelligence Programs (COINTELPRO) and COINTELPRO-style operations. These operations are mostly known for the activities—assassination, false imprisonment, forgery, perjury, infiltration, etc.—undertaken by the FBI and police to neutralize dissident religious and political activists and organizations. However, collecting and sharing intelligence was essential and, in fact, “standard operating procedure” as Frank J. Donner noted in The Age of Surveillance.

The 2003 Consolidated Appropriations Resolution (H.J. Res. 2) included an increase of 1 million “to bolster counterterrorism and counterintelligence activities of the FBI” and the IACP Report asserts a state-local claim to information derived from COINTELPRO-type operations. While noting elsewhere that “counterintelligence ... is not motivated by the occurrence of criminal activity,” the IACP Report nevertheless declares “federal parties ought (to be able) to pass criminal intelligence information that surfaces during counter-intelligence activities ... to state, local and tribal police.” This is significant because it is tacit acknowledgement of current or anticipated domestic federal counterintelligence operations investigating legal activity.

The current US domestic intelligence apparatus already greatly exceeds COINTELPRO in its capacity to collect, analyze, and share intelligence and, thus, potentially to conduct counterintelligence. One important reason for this is the further breaking down of the division between levels of government.

The number of state and local police, put last summer at 650,000 by John Ashcroft, dwarfs the number of federal law enforcement agents. As the Supreme Court observed in Printz v. US, 521 U.S. 898 (1997), “The power of the Federal Government would be augmented immeasurably if it were able to impress into its service—and at no cost to itself—the police officers of the 50 States.” The separation of government power into “two spheres”—one national and one state-local—is one of the least recognized Constitutional “checks and balances.” The Printz Court noted:

This separation of the two spheres is one of the Constitution’s structural protections of liberty. “Just as the separation and independence of the [three] coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front.”

Yet, on several fronts federal, state, and local law enforcement agencies are bringing about exactly what the Court warned against—”the police officers of the 50 States” functioning in the service of the federal government, albeit voluntarily and with funding from the DOJ. The method may be different from that considered in Printz but the danger remains the same or, probably, greater.

Laws and policies that the IACP Report and GIWG meeting minutes refer to as “barriers” and “impediments” were adopted in response to a well-documented history of egregious and systematic violations of the Constitutional rights of law-abiding Americans by local, state, and federal law enforcement officers, often working together. Despite these reforms, enacted mostly in the 1970s, widespread and serious abuses have continued to the present day.

For example, documents obtained by the ACLU of Colorado [www.aclu-co.org/spyfiles/fbifiles.htm] demonstrate that, as recently as 2002, the Denver police repeatedly collected intelligence on peaceful protesters with no connection to terrorism or any other criminal activity and passed it on to an FBI Joint Terrorism Task Force. This collection and dissemination occurred in apparent violation of the federal the Criminal Intelligence Systems Operating Policies (28 CFR 23), which prohibit the collection of “criminal intelligence information about … political, religious or social views, associations, ... unless such information directly relates to criminal conduct or activity.” Subjects included the American Friends Service Committee, Colorado Campaign for Middle East Peace, and a man engaging in the “anti-government” activity of “handing out literature in front of the Federal building … promoting the movie Waco Rules of Engagement which depicts the FBI murdering over 80 individuals in Waco.”

IMPLEMENTATION

To fully comprehend the danger posed by the reorganization discussed here, it helps to understand the details of the implementation of the vision described above. The IACP Report sets two goals. The first is the establishment of “a coordinating council comprised of local, state, Tribal and Federal law enforcement executives ... to oversee and implement the National Intelligence Plan.” The second goal is to “Address the legal impediments to the effective transfer of criminal intelligence between enforcement agencies.”

The Global Intelligence Working Group

The first goal has already been partially achieved as an interim coordinating council became operational last fall. The December 2002 minutes of the first meeting of the Global Intelligence Working Group confirm that it was “formed to serve as the Criminal Intelligence Coordinating Council” described in the IACP Report.

The GIWG’s Interim Report: Development of the National Criminal Intelligence Sharing Plan (“GIWG Report”) released in May of this year, in describing the GIWG, paraphrased the IACP Report: “the Council’s mandate would be to establish, promote, and ensure effective intelligence sharing and to address and solve, in an ongoing fashion, the problems that inhibit it.” The IACP Report continued, “In order to accomplish these tasks, the Council must be central, permanent, powerful and inclusive.”

The GIWG is now poised to become the “most central and enduring element of the National Intelligence Plan,” to quote the IACP Report. Indeed, the GIWG Report recommends that GIWG “evolve” into the coordinating council at the heart of the reorganization effort.

Legal Impediments To The Effective Transfer Of Criminal Intelligence

The second goal of the IACP Report’s national intelligence plan is to “Address the legal impediments to the effective transfer of criminal intelligence.” The February 2003 GIWG minutes and the GIWG Report take note of proposals by the Bush administration to weaken one key federal standard— Criminal Intelligence Systems Operating Policies (28 CFR 23).

The express purpose of 28 CFR 23 is to assure that “criminal intelligence systems ... are utilized in conformance with the privacy and constitutional rights of individuals.” The IACP National Law Enforcement Policy Center’s “Criminal Intelligence Model Policy,” which appears as an appendix to the GIWG Report, was revised in June 2003 to incorporate an anticipated change in 28 CFR 23. The relevant portion of the policy now says: “It is the policy of this agency to gather information directed toward specific individuals or organizations where there is a reasonable indication that said individuals or organization may be planning or engaging in criminal activities.”

28 CFR 23 currently requires a “reasonable suspicion of criminal activity.” Public notice of the proposed change is apparently scheduled for this August (see 68 FR 30545). If this change from “reasonable suspicion” to “reasonable indication” is adopted then the standard will be significantly weakened. The GIWG Report says, “The reasonable indication threshold for collecting criminal intelligence is substantially lower than probable cause. A reasonable indication may exist where there is not yet a current substantive or preparatory crime, but where facts or circumstances reasonably indicate that such a crime will occur in the future.” To understand the “reasonable indication” standard, then, think about the recent film adaptation of Philip K. Dick’s The Minority Report because this is all about anticipated crimes that may (or may not) occur in the future.

The April 2003 GIWG meeting minutes record approval for the weakening of 28 CFR 23 and note that GIWG member Daniel J. Oates “indicated he was excited about the proposed changes to 28 CFR Part 23, specifically the area dealing with changing the reasonable suspicion collection criteria to reasonable indication. If the rule is passed, officers on the street can gather small bits of information that can be entered into an intelligence database. Under the old standard, this could not be done.”

Regarding other legal “impediments” to intelligence sharing, an FBI “War on Terrorism” web page [www.fbi.gov/terrorinfo/counterrorism/analysis.htm] observes, “The PATRIOT Act and a federal court decision in November 2002 have broken down what has been known as ‘the Wall’ that legally separated law enforcement and intelligence functions”. The federal court decision reference is, apparently, to the opinion of the secretive Foreign Intelligence Surveillance Court of Review that weakened Fourth Amendment protections against wiretapping and intrusive surveillance.

TWO TRACKS CONVERGE

The terrorist atrocities committed on September 11, 2001, greatly accelerated the creation of a single electronic information network that links every law enforcement agency in the country. However, as of March 26, 2002, according to Kathleen L. McChesney, the FBI’s Executive Assistant Director for Law Enforcement Services, in a Washington Post online discussion, there was still “no one, universal means of sharing information between federal, state and local law enforcement agencies.” This is no longer quite true.

The Regional Information Sharing Systems (RISS) were created by Congress in 1974 to aid law enforcement agencies with multi-jurisdictional investigations. RISS members include over 6,000 federal, state, and local agencies in all 50 states. Although RISS is administered regionally, the information is shared nationally. In 1995, the FBI started Law Enforcement Online (LEO) to provide a secure, “interactive communications mechanism to link all levels of Law Enforcement throughout the United States by supporting broad, immediate dissemination of information.” In 2002, LEO had 32,500 members, about two-thirds were state and local law enforcement and the rest federal and foreign users.

On August 20, 2002, Federal Computer Week (FCW) reported on the linking of RISS and LEO, “Federal, state and local law enforcement agencies soon will have a single Web interface linking separate collaborative networks already in place to increase information sharing across all levels of government.” The GIWG Report notes that RISS and LEO were “connected September 1, 2002, as a virtual system” and its first recommendation is that they “should serve as the ... communications backbone for implementation of a nationwide intelligence sharing capability.”

According to the FCW article “One of LEO’s biggest advantages is the ability to offer a secure online space for specific interest groups to work and share information. On the other hand, RISS excels in providing Web access to multiple databases in local jurisdictions across the country, [George] March, [director of the RISS Office of Information Technology] said.” In fact, according to a RISS report, the RISSIntel/RISSNET II intelligence databases had 2.4 million records and fielded 1.6 million inquiries in 2001; this, before a 0 million funding boost in the USA PATRIOT Act.

The GIWG is set to become the organization that oversees the further integration and expansion of RISS and LEO. H.J. Res. 2 also funded a 9 million equipment budget for the DOJ’s Office of Domestic Preparedness (ODP). The Conference Report directed ODP to use money the “to enhance State and local agencies’ ability to share intelligence information with each other and with the Department of Homeland Security and the Department of Justice” with the expectation that the Bureau of Justice Assistance and ODP will “continue to work with State, local, and Federal agencies through the Global Intelligence Working Group.” The Conferees also specifically noted their approval of the RISS-LEO linkage.

CONCLUSION

No doubt, GIWG members and their colleagues in other agencies believe their efforts are in the public interest, but they aren’t. Their efforts may not immediately result in increased COINTELPRO-like abuses but the risks to liberty are simply too great. Law enforcement officials have repeatedly shown themselves unable to abide by laws and policies designed to prevent them from acting like political or thought police. These abuses detract from their ability to combat real terrorist threats and further weaken the freedom of every American and other residents.

The risks to liberty are also unnecessary. If the goal really is security, then we must realize there are fundamental limits to a law enforcement strategy. For instance, the US has the world’s largest prison population, in both absolute and per capita terms; yet, we also have many of the world’s highest crime rates. If we seek safety, then, the US must significantly shift resources so that we can address the fundamental causes of crime and terrorism.

The USA PATRIOT Act, together with the Homeland Security Act, recent Executive Branch decisions, and the often overlooked Antiterrorism and Effective Death Penalty Act of 1996, have already unduly expanded federal power and undermined essential American freedoms under the 1st, 4th, 5th, 6th, and 8th Amendments to the Constitution. These assaults on liberty must be rolled back but to that list the GIWG and its work must be added.

Copyright © 2003 by Michelle J. Kinnucan. All Rights Reserved.

About the author: Michelle J. Kinnucan is an independent scholar who served honorably in the US armed forces. Her work has previously been published in Agenda, CommonDreams.org, the Nonviolent Resister, PS: Political Science and Politics, and The Record. She is a Veteran for Peace and a co-coordinator of the Ann Arbor Bill of Rights Defense Committee. She can be contacted at: nopatriotact@agenda2.org or http://groups.yahoo.com/group/aabordc/

Links of Interest

ACLU of Colorado Spy Files
FBI's Joint Terrorism Task Force Files
http://www.aclu-co.org/spyfiles/fbifiles.htm

Citizen Corps
http://www.citizencorps.gov

Dept. of Justice GIWG Website
http://it.ojp.gov/topic.jsp?topic_id=56

Institute for Intergovernmental Research GIWG Website
http://www.iir.com/giwg/

Institute for Intergovernmental Research RISS Website
http://www.iir.com/RISS/

Louisiana State University's Law Enforcement Online (LEO) Website
http://www.lsu.edu/leo/

Seattle Not In Our Name’s Law Enforcement Intelligence Unit (LEIU) Facts
http://notinourname-seattle.net/LEIU.html