Surveillance now is everyone’s business, as the line
between intelligence-gathering and crimefighting rapidly fades and the public
is conditioned to play its part.
The work of Deputy Police Chief Michael Downing of
the Los Angeles Police Department (LAPD) exemplifies the new surveillance
paradigm. The head of the 750-strong counterterrorism force within the LAPD, he is on
the hunt for “people who follow al-Qaeda’s goals and objectives and mission and
ideology.” He says his officers collect intelligence and practice the “essence
of community policing” by reaching out to Muslims and asking them to “weed out”
the “hard-core radicals.”
He adds that he is pleased that many Muslims have
adopted the LAPD’s iWatch
program and are prepared, along with the general public, to call in tips
about suspicious activity. With “violent Islamists” as his main target, Chief
Downing is also keeping track of “black separatists, white
supremacist/sovereign citizen extremists and animal rights terrorists.” If
threats materialize, he can draw upon the
LAPD’s “amazing” backup capacity - SWAT units, direct-action teams, air
support, counterassault teams and squads that specialize in disrupting vehicle
bombs.
Here we see several of the components of the new
surveillance society. A militarized
police force no longer leaves intelligence work to federal authorities. It
seeks out information about anything that can be connected to “suspicious”
activity and is keeping track of certain individuals and groups whether or not
there is evidence that they are engaging in criminal activity. Police are
expected to chase down unsubstantiated tips from the public, and not just to
pursue evidence of wrongdoing. A new notion of “community policing” has
emerged, where monitoring communities - with all the trust issues that this
implies - has taken the place of winning community support by being accountable
to residents and solving crimes.
The LAPD is one of some 3,984 federal, state and
local agencies now collecting information about “suspicious activity” that
could be related to terrorism. The Washington Post’s “Top
Secret America” series states that 854,000 people now hold “top-secret”
security clearance. We estimate that’s about one for every 215 working-age
Americans. An additional 3 million people reportedly hold “secret”
security clearance.
The federal government spends more annually on
civilian and military intelligence than the rest of the world put together -
$80 billion is a conservative figure, according to the October 28, 2010, Post. This is in
addition to the $42-plus billion allocated to the Department of Homeland
Security (DHS) and the spending on intelligence activities by the LAPD and
other state and local police forces. The homeland security industry is
flourishing, with lucrative contracts being awarded to Lockheed Martin,
Raytheon, Boeing, Northrop Grumman and other major defense contractors.
What exactly is being built with these funds?
The
“Information Sharing Environment”
Essentially, the “total information awareness”
assumption that the nation can be made safe by applying advanced technology to
massive databases has been married to the call for a “unity of effort in
sharing information” issued by the bipartisan
9/11 National Commission. The commissioners had recommended a fundamental
change in how the nation’s 16 intelligence agencies carried out their business.
They urged that the “need to know” culture be replaced with a “need to share”
imperative, with information being transmitted horizontally among agencies, not
just vertically within agencies. They further recommended that the FBI be
equipped to assume prime responsibility for domestic intelligence-gathering,
that it incorporate a “specialized and integrated national security workforce,”
and that it form collaborative relationships with state and local police for
this purpose.
To construct a new domestic surveillance network, the
Intelligence Reform and Terrorism
Prevention Act of 2004 mandated the creation of an Information Sharing Environment
(ISE) under the director of national intelligence. Defined as “an
interrelated set of policies, processes and systems,” ISE was intended to
facilitate the sharing of terrorism-related information with stakeholders at
all levels of government and the private sector. Eventually, foreign
governments are supposed to be brought into the ISE loop. The ISE requires the
standardization of information systems and technology to provide access to the
burgeoning number of databases that serve as its connective tissue, the
enlistment of mission partners across federal, state, local, and tribal
agencies and the private sector to keep the databases supplied with the
information that is its lifeblood, and the use of “analysts, operators and
investigators” from “law enforcement, public safety, homeland security,
intelligence, defense and foreign affairs” to extract, analyze and disseminate
timely intelligence.
Fusion
Centers and Suspicious Activity Reports
The nerve centers of the ISE are the nation’s 72
regional and state fusion centers, which were in part a response to the FBI’s
reluctance to share threat information with state and local law enforcement
because of turf and security clearance issues. With considerable variation in
what they do and how they do it, fusion centers were established over the past
seven years with DHS funding to “fuse” and analyze information from a wide
variety of sources and databases and facilitate information-sharing among
themselves through the FBI’s eGuardian database. The secretive fusion centers
represent a
significant departure from traditional law enforcement objectives and
methods, with few legal limits on what they can and cannot do, little respect
for long-established jurisdictional boundaries between local, state, federal,
military and private entities and a notable absence of accountability
mechanisms. Given the scarcity of domestic terrorism plots, it is not
surprising that most fusion centers almost immediately changed the focus of
their data collection from fighting terrorism to a broad “all crimes, all
hazards” mission. Many now use federal counterterrorism funds to collect, store
and share data that has little or no relation to terrorism and, often, no
relation to actual crimes.
According to DHS head Janet Napolitano, along with
fusion centers, the Nationwide
Suspicious Activity Reporting Initiative serves as the “heart” of the
government’s effort to keep Americans safe from “homegrown terrorism.” The idea
behind the initiative is to collect as much data about anything “suspicious”
that just may (or may not) be related to criminal activity. Or, to quote the
government’s own alarmingly broad definition: a Suspicious Activity Report
(SAR) is “official documentation of observed behavior that may be indicative of
intelligence gathering, or preoperational planning related to terrorism,
criminal, or other illicit intention.”
SARS programs, piloted by the LAPD, Boston and a
handful of other cities, vary from place to place and are often in competition
with one another for federal dollars. Today some 800,000 state and local law
enforcement officers are encouraged to file SARs on even the most common everyday behaviors,
such as looking through binoculars, taking pictures of buildings, taking notes
in public and espousing “radical” beliefs.
The ISE program manager recommended that SARs are reviewed
within the police department before being sent to a fusion center for further
review by an intelligence analyst. If it “meets SAR criteria,” it is then
entered into the ISE for wide distribution and “fusion with other intelligence
information.” But a January 2010 evaluation
of the ISE and National SAR Reporting Initiative has shown little uniformity in
how SARs are being collected, vetted and shared, and how much personably
identifiable information is being aggregated and disseminated through the
fusion center network and sent to the FBI’s eGUardian system, which is now serving as “an ISE/SAR
shared space.” In an effort to address criticisms voiced by civil liberties
groups, ISE adopted a policy requiring that only behavior indicating some kind
of connection to criminal activity or terrorism should be shared among federal
intelligence agencies. But this civil rights protection does not apply to
sharing by state and regional fusion centers.
A
New Policing Paradigm
In addition to writing up SARS, police departments,
often working directly with the FBI through its multi-agency Joint Terrorism
Task Forces (JTTFs), sift “tips and leads” provided in field reports, through
public tip lines, by private entities, by confidential and anonymous sources,
or culled from media sources. Time that used to be spent investigating reasonable
suspicion of criminal activity is now allocated to assessing randomly collected
information to decide whether it is credible enough to be deposited in the
Information Sharing Environment (ISE) and sent to the FBI’s eGuardian database
for preliminary analysis before being sent to fusion centers for further
analysis and wide distribution.
When local police work with the FBI in JTTFs, they
become federal officers who are no longer under the supervision of and
accountable to their local departments and communities, and instead must act in
conformity with the FBI’s guidelines on domestic investigations - regulations
that are now so loose that they allow agents to conduct “assessments” involving
monitoring of meetings and people, infiltration of groups, and personal
interviews with no suspicion of wrongdoing - some 11,667
assessments were conducted just in the four-month period beginning in
December 2009, with only a fraction leading to full investigations. And when
local police participate with fusion centers in information collection and the
building of personal files about activities that can be wholly innocent and may
be constitutionally protected, they are integrated into a domestic surveillance
network that is national in scope, beyond accountability, and far removed from
community policing and public trust.
In the process, the line between traditional crimefighting
and terrorism detection has been erased and something new has been born: a
concept of policing that is no longer primarily reactive and focused on solving
crimes or on collecting concrete evidence that a crime might be about to be
committed. In “predictive
policing,” local police officers serve as a resource for gathering
information on a range of potential threats and situations on the assumption
that criminal activity can be stopped before it develops. They are trained to use advanced
technologies and tools, including powerful surveillance cameras provided
through DHS grants, to monitor broad sections of the population, looking for
indicators of future crimes before they are committed.
When the net is cast so wide, everything and anything
begins to look like “terrorism-related activity,” forcing police officers to
waste time checking out dead-end tips. It is not surprising that leaks
from fusion centers have revealed that files compiled on individuals and groups
are full of inaccurate information and focus on activities that may be both
entirely innocent and constitutionally protected.
Constitutional lawyer Bruce Fein, a former associate
deputy attorney general in the Reagan administration,
told Congress in 2009 that fusion centers and SARs were worthy of the
Soviet Union’s KGB and East Germany’s Stasi, and should be abandoned: “To an
intelligence agent, informant, or law enforcement officer, everything
unconventional or unorthodox looks like at least a pre-embryonic terrorist
danger.”
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