HOMELAND SECURITY AND LAW
"They're a law enforcement agency. They're not in the business of fighting terrorism." (John Edwards)
There are many challenges to the proper integration of homeland security and law enforcement. Most of the major challenges fall under the categories of surveillance and intelligence, but total redesign, restructuring, and reorganization are not off the table either. In terms of redefining the police role in society, it can be noted that the homeland security movement came about at precisely the same time in history (circa 2001) as the community policing movement was dying down. Some people believed that there was a way to salvage the community policing movement and/or make it compatible with the homeland security movement. For example, the IACP (2002) and Stephens and Hartmann (2002) thought that community policing would evolve into intelligence-led policing. Unfortunately, intelligence-led policing never caught on either, primarily because too many of its techniques smacked of profiling to get at high-frequency offenders, thus making it of limited utility against religious and ideological extremists (McGarrell, Freilich, & Chermak 2007). Additionally, there are profound differences between a "military model" and "police model" for combating terrorism (Norwitz 2002; McCauley 2007; Deflem 2010). The military model works best against an enemy who can be killed in combat or who can be temporarily detained until a cessation of hostilities comes about. The police model works best when the enemies are treated as suspects (not even really enemies) who are accorded certain rights and upon a determination of guilt receive some semi-lasting punishment. Further, no one has really ever bothered to conceptualize the difference between an ex-con and an ex-terrorist.
The somewhat awkward phrase "counterterrorism policing" (which symbolizes the integration of homeland security and law enforcement) provokes an image of hardened officers that might be willing to sacrifice civil liberties in the name of national security. This is more than a common fear; it is essentially a problem of ideas. Police are normally accustomed to helping make citizens "feel" safer through actual police behaviors, and the police are unaccustomed to helping make the public feel "safer" through police thinking. There are reasons why the high-IQ cop movement never got off the ground in the early-20th century. People simply don't want the police to be too smart. Dick Tracy captured this public sentiment. Also, the courts don't want the police to be too technological. Identity cards, for example, have never been successfully implemented in any modern democracy. Further, given the demise of the community policing movement, it's questionable whether the public even wants the police to be more caring. In a world where terrorism is more a "war of ideas" (Rosenau 2005) than pulling over offenders, the police would be lucky to become anything more than the "Officer Friendly" or public relations arm of the "real" counterterrorists, like the military or CIA paramilitary units. It's ironic that in some progressive quarters (like the ACLU and ABA), the police are frequently envisioned to be the guardians/leaders of increasing rights to liberty and freedom. No criminal justice scholar (except the brain trust at ACLU and ABA) has ever figured out how the police could actually be leaders in this regard. Civil libertarians would quickly note, additionally, that police abuses have a long history and that we should be cautious about any interplay or "integration" of policing, especially along militaristic lines. Obviously, concerns tend to center over many specifics -- whether travel is restricted too much; whether police ought to maintain large databases; whether "profiling" can be a legitimate tool; whether police can accurately predict crime trends and patterns; and whether military assistance to law enforcement violates the Posse Comitatus Act (an 1878 law prohibiting the military from being used to execute criminal law).
The federal government defines homeland security as: "a concerted national effort to prevent terrorist attacks within the United States, reduce America's vulnerability to terrorism, and minimize the damage and recover from attacks that do occur" (Bush 2003). The key part of this definition is "concerted national effort" which means it's not solely a federal effort, but based on the principle of partnership between governments, the private sector, and the American people. This has implications for federalism and intergovernmental relations. The partner that is known as law enforcement has always served a first responder role. Police have some experience at counter-subversive and anti-terrorist (domestic) activities, but today's challenge involves taking on enemies (modern international terrorists) who fight in asymmetric ways that mock constitutional safeguards. It's terribly difficult to balance criminal rights with police powers when facing such adversaries (almost impossible). Law enforcement has grown up as a small-town, decentralized phenomena. Without new models, theories, and laws, law enforcement will not be up to the task of helping to collect, share, coordinate, and analyze the intelligence necessary to successfully assess and respond to modern-day threats.
It may be time for a revolution in police affairs, much like the revolution in military affairs toward special, light brigades that are jointly coordinated in real-time. It is definitely the time to reconsider the police role in society, and to what extent police involvement in national defense and domestic security carries the risk of encroachment on civil liberties. We shall begin with an overview of three ways to approach integrated homeland security (aka counterterrorism policing), and discuss the implications of each throughout.
THE SUPER-AGENCY APPROACH TO DOMESTIC SECURITY
The idea of some sort of super-agency that tracks the ideological (American and un-American) commitments of its citizens has been around for a long time. It has been implemented in many nations with concerns about internal, or state security. It is implicit in most proposals to federalize, centralize, or consolidate police forces. It is explicit in most proposals to reorganize the intelligence community, such as the 1970 Huston Plan (named after White House staffer Tom Charles Huston) which advocated combining the CIA, FBI, NSA, and DIA. While far from creating a domestic intelligence super-agency (like MI5 in Britain), the creation of the Department of Homeland Security (DHS) is a significant transformation of U.S. government. Formed in the aftermath of terrorist attacks on September 11th, 2001, the new department's first priority became protection of the nation against further terrorist attacks, followed by additional duties for intelligence and threat analysis, guardianship of borders and airports, protection of critical infrastructure, and emergency response coordination. Along with the Coast Guard and Secret Service, twenty-two (22) separate agencies were consolidated into the DHS, and housed in one of four major directorates: Border and Transportation Security, Emergency Preparedness and Response, Science and Technology, and Information Analysis and Infrastructure Protection. Clearly, DHS is the new "super-agency" with enough tentacles to get the job done.
1. Border and
Transportation Security directorate: U.S. Customs Service (Treasury);
Immigration and Naturalization Service (Justice); Federal Protective Service
(GSA); Transportation Security Administration (Transportation); Federal Law
Enforcement Training Center (Treasury); Animal and Plant Health Inspection
Service (Agriculture); Office for Domestic Preparedness (Justice)
2. Emergency Preparedness and Response directorate: Federal Emergency Management Agency (FEMA); Strategic National Stockpile and the National Disaster Medical System (HHS); Nuclear Incident Response Team (Energy); Domestic Emergency Support Teams (Justice); National Domestic Preparedness Office (FBI)
3. Science and Technology directorate: CBRN Countermeasures Programs (Energy); Environmental Measurements Laboratory (Energy); National BW Defense Analysis Center (Defense); Plum Island Animal Disease Center (Agriculture);
4. Information Analysis and Infrastructure Protection directorate: Critical Infrastructure Assurance Office (Commerce); Federal Computer Incident Response Center (GSA); National Communications System (Defense); National Infrastructure Protection Center (FBI); Energy Security and Assurance Program (Energy)
The most frequent criticism of DHS is not that it's too big (America has had similar super-agencies such as LEAA, the Law Enforcement Assistance Administration, established under the 1968 Crime Control and Safe Streets Act and dismantled in 1980 with NCJRS remaining as a remnant), but that it's too small, and doesn't include two agencies, CIA and FBI, which seem like logical choices for inclusion. However, these two agencies have a poor record of power and information sharing. They are both overwhelmed by a sea of information. They are both trapped in an organizational culture resistant to change. DHS has had to go about using new and different intelligence to uncover threats. As the National Strategy for Homeland Security (2003) made clear, existing agencies like the CIA and FBI were only to enhance their analytic capabilities, while new agencies like DHS were to build new capabilities from scratch. Some of those new capabilities the DHS was tasked to develop included the following:
"smart borders" that no longer rely on two oceans and friendly neighbors; change the way we look at travel and immigration
guard against "inside" threats to critical infrastructure and key assets; build a complete list of those assets and involve the private sector which controls or owns 85% of the infrastructure
secure cyberspace; not only as a vehicle for terrorist attack, but something along the lines of an Open Secrets Act which other nations have that prevents open-source Internet information from being useful to terrorists
"red team" and dual-use analysis; thinking like a terrorist or how something good could be used for evil; staging drills and simulations of worst-case scenarios
harness scientific knowledge and expertise on countering the proliferation and use of deadly weapons, such as chemical, biological, radiological, and nuclear; develop broad spectrum vaccines and antidotes; rapidly produce prototypes
streamline information sharing among intelligence and law enforcement agencies; connect databases; expand extradition authority; reconsider posse comitatus restrictions on the use of military assistance in domestic security; review obligations to treaties and laws
promote homeland security research; use 21st-century science and technology; built new capabilities to secure the homeland
The most important functions of DHS will only be accomplished when an informed and proactive citizenry evolves. What's needed is a citizenry who when they see something unusual, they report it to the appropriate authorities. This is very similar to the long-necessary cooperation that police needed from citizens for crime reporting. It begs the question, however, of how far law enforcement ought to go with investigating suspicious, non-criminal activity. Clearly, the purpose is to identify, halt, and where appropriate, prosecute terrorists as well as those who provide them logistic support. It primarily involves a tracking mission for law enforcement, and only secondarily a prosecutorial mission, or bringing terrorists to justice. It is, in short, what Jonathan White (2004) calls the "Eyes and Ears approach" to law enforcement. At best, it is a system of detecting hostile intent. A number of recent initiatives have been tried in this regard, such as the following:
Citizen Corps - volunteers who participate in community-level homeland security efforts
Volunteers in Police Service (VIPS) - civilian police who perform non-sworn functions of policing
Medical Reserve Corps - retired healthcare providers who augment disaster responses
Operation TIPS (Terrorist Information and Prevention System) - for reporting of suspicious activities
Community Emergency Response Teams (CERT) - training programs in local communities
Neighborhood Watch - incorporation of terrorism prevention into its mission via local sheriffs
Infragard - private sector and academic partnering for cyberspace security
National Identification Card schemes - such as biometric ID cards or drivers licenses with RFID chips
The most frequent criticism of initiatives like the above (especially Operation Tips) is that they smack of police state measures, reminiscent of Nazi Germany, Stalinist Russia, or America's own sorry experience with COINTELPRO (“counterintelligence program”) of the 1960s that collected files on some 62,000 suspicious Americans. The magazine, Mother Jones, has a good retrospective piece on the furor over Operation Tips. As originally proposed, Operation Tips would have required workers who visit homes (such as postal workers, cable installers, and telephone repair workers) to report anything "suspicious" going on inside the home. Operation Tips was strongly opposed by civil liberties groups.
Regarding efforts toward a National ID card, EPIC has a good chronology of the National ID Card movement which basically fizzled out into a crackdown on bogus driver's licenses. The first initiative was called the Real ID Act which basically proposed federal standards for drivers licenses, but it was vigorously opposed by the states because of technology challenges and the burden of having to verify birth certificates. A more recent effort, called PASS ID, tries to eliminate the technological challenges, but allows RFID chips to be inserted in drivers licenses for compliant states, and non-compliant states can fall back on verification with social security cards and/or passports.
Identity documentation is a real problem worldwide. Most nations rely on drivers licenses, but some rely on passports. Without some secure way of identifying people, law enforcement will likely never be able to avoid mismatches, errors, misses, and instances of fraud. DNA would, of course, be the perfect identifier, but the cost of implementing a DNA-based ID system would be prohibitive. The cost issue aside, most objections to a modern identity document system revolve around civil liberty issues. People are simply afraid of the idea because they think it will allow government to track and monitor data on them. Ironically, certain private sector cards used regularly in business allow for better assurance of identity, but linking these private systems to public systems is problematic. The central dilemma remains how to incorporate reporting of suspicious behavior into a good system of sound intelligence and law enforcement. Without guidelines, laws, constitutional safeguards, and perhaps the involvement and training of civilians (Hillyard 2003), the whole apparatus may be doomed to defeat on fears that it is dangerous domestic spying.
The Sordid History of Police Spying
|Whole books have been written about Operation CHAOS and COINTELPRO (Donner 1980) during the Hoover period (1939-1971) when the FBI was a domestic intelligence agency that tracked "subversives" regarded as future threats to the undermining of government. The bureau perfected the theory and practice of counter-subversion, providing policymakers with intelligence on persons, organizations, and places where political agitation or unrest existed, or at least the gossip of such behavior existed. After a "vetting" process (a term for validating the truthfulness of information) of 90 days, in which informant tips were collaborated by record searches, mail opening, surveillance, and pretext contacts, agents frequently took proactive measures, such as raids, break-ins, detention without right to counsel, and blackmail. Liaisons were made with Military Intelligence, and the FBI established an international presence, but used MI domestically as well (the "greening" of intelligence), even after 1961 when National Guard intelligence functions were deactivated. College campuses, and their surveillance and infiltration, were a favorite target, with Hoover going after criminal justice departments in particular. Hoover distinguished general (strategic) files from intelligence (line) files, the former being kept secret in field offices until destruction orders were given, and of course, Hoover destroyed most of his own files before he left. Such was the domestic spy network set up under Operation CHAOS, which Hoover regarded as penetrative intelligence. Under COINTELPRO, the goal was disruption, or what Hoover called aggressive intelligence, which involved planting lies and deceptions into subversive organizations, putting a "snitch jacket" on someone (leaking that they were an FBI informer), spreading false rumors, getting people evicted, promoting marital discord, and other dirty tricks bordering on the unimaginable, often borrowed from the CIA. Hoover made regular use of his contacts in the IRS and ATF (then part of IRS but later moved to Treasury in 1972) to trigger tax audits on groups and individuals, as well as to spy on what books they were checking out of libraries. The private sector was enlisted to help the bureau in a number of ways, via recruitment of security firms like Pinkerton and Wackenhut, the local Chamber of Commerce, vigilante and militia groups, the John Birch Society, and even clergymen (Methodists in particular).|
THE LEGAL REFORM APPROACH TO DOMESTIC SECURITY
Some history on the post-Hoover era and Watergate is in order. In 1967, a Supreme Court decision (the Katz case) condemned warrantless electronic surveillance, and the following year, the Omnibus Crime Control and Safe Streets Act established probable cause as the standard for obtaining a wiretap against U.S. citizens. A 1969 case (the Alderman case) ruled that the methods and transcripts of a wiretap should be open in court for public and adversarial scrutiny. This jeopardized exposure of ongoing intelligence operations, so Attorney General Mitchell established the "Mitchell Doctrine" as it came to be called, which insisted that the President, acting through the Attorney General, had the inherent constitutional power to authorize warrantless, secret surveillance in the name of national security or for purposes of pure or preventive intelligence. A number of court cases followed, all along the lines of the judiciary warning the executive branch of government to avoid using foreign intelligence techniques in domestic cases. In 1972, the Court (in the Keith case) disposed of the Mitchell doctrine, and in the 1973 acquittal of Daniel Ellsberg (who released the Pentagon Papers to the press), the President was determined not to be immune from civil liability for authorizing an illegal wiretap. Watergate, which is closely connected to the Ellsberg case, but technically refers to a 1972-1974 period most remembered for a break-in and bugging of Democratic Party headquarters, signaled an end to abuses in the name of national security along with claims of executive immunity. In 1974, Congress passed the Privacy Act which forbade any federal agency from collecting information about the political and religious beliefs of individuals unless in connection with a bona fide criminal investigation, and in 1975, the Freedom of Information Act, allowed individual access to any personal information which might be secret in the name of national security, and applied it to the FBI. The final separation of domestic and foreign intelligence came in 1978 with the Foreign Intelligence Surveillance Act (FISA), which brings us up to amendments in FISA and the Patriot Act of 2001, foundations for modern-day legal approaches to domestic security.
The U.S.A. PATRIOT Act of 2001 can be seen as another amendment to FISA because under the latter, agencies don't need probable cause to gather intelligence if their targets are operating as agents of foreign powers, and modern (sub-national) terrorists don't usually work for a foreign power, but for some nebulous cause. Specifically, the Patriot Act enhances roving surveillance authority and streamlines wiretap authorizations, sets up anti-terrorism asset forfeiture procedures, approves detention of suspected terrorists, removes obstacles to investigating terrorism, increases the penalties for terrorist crimes, removes any statute of limitations, encourages federal involvement in domestic preparedness exercises, and supports activities by the Department of Homeland Security. More significantly, Title I (Intelligence Gathering) of the Patriot Act permits disclosure of foreign intelligence information to any domestic or law enforcement intelligence operation. It permits foreign intelligence techniques to be used for criminal justice purposes, and it maintains the secrecy of the intelligence apparatus (the Mitchell Doctrine) as well.
The Patriot Act replaces probable cause with a showing of need for an ongoing terrorism investigation, and goes a step further by placing a gag order on the person served with the warrant. They cannot notify the real target of the investigation, or in any way disclose what information law enforcement was seeking. It amends the Family Educational Rights and Privacy Act, and forces school officials to release information, as well as allows law enforcement officials to obtain information on use of library resources, books, and Internet usage. Again, school officials are prohibited from disclosing what law enforcement was looking for. Some experts think the Patriot Act was rushed too quickly through Congress, and violates the Fourth Amendment as well as the Balance of Powers principle in the Constitution. When the Department of Justice announced it would eavesdrop on attorney-client conversations with suspected terrorists, many experts thought that crossed the line of reasonableness.
The basic problem, as White (2004) points out, is a legal dilemma. Law enforcement has for years been accustomed to working within legal constraints, collecting evidence that can be used for prosecution in a criminal court. There is a natural terminus to a criminal investigation. The intelligence community has for years been accustomed to working with few legal constraints, and there is no natural terminus, or end, to an intelligence investigation. Criminal intelligence is governed by constitutional rules of evidence; national security intelligence is not. Going to trial in a terrorism investigation often means exposing the intelligence sources for the sake of a criminal conviction. This irony, as well as other twists having to do with military tribunals, has produced some rather strange effects in the war on terrorism -- American citizens being detained like prisoners of war and foreigners being treated like citizens in criminal courts. To be sure, terrorist groups (according to al Qaeda's training manual) instruct their captured agents to make a mockery of justice systems - to insist they were tortured or mistreated, to learn the names of their captors and lie about them, and to use religion at every turn to their advantage. Nonetheless, this is not sufficient reason to proceed in a constitutional vacuum, or make up the rules as you go along. There are other factors that dampen the prospects for successful use of law enforcement for intelligence purposes, and here is a standard list of the limitations on using police that White (2004) implies may present problems:
Police do not have the academic credentials or higher order critical thinking skills to understand the root causes of terrorism, its complexities, or the ability to distinguish between terrorist sympathizers and criminal terrorists
Police are trained in reasonable suspicion and probable cause to make stops, ask questions, detain, infiltrate, and collect information, but intelligence work requires neither standard in the ongoing collection of vast amounts of non-criminal information
Police agencies are fiercely autonomous, competitive, turf-conscious, mistrustful, and attuned to local politics with little or no interest in thinking outside their jurisdiction and/or partnering with non-police agencies seen as outsiders
Police agencies are focused on publicity and getting the word out about their effectiveness at crime-fighting while intelligence work is focused on secrecy and never letting intelligence successes be known
Police are taught that criminal justice record keeping should be clear and concise, with writing crisp and to the point, while there is no such thing as too much excess or irrelevant information for intelligence work
Police organizations are bureaucracies where power struggles and personal rivalries abound, combined with a stifling tendency toward stagnation and lack of creativity whereas intelligence work rewards eccentricity and creativity
Police are prone to negative stereotyping and abuse of power, and any intelligence shared with them may be misused
Police are prone to leaks and the leaking of information may occur, tipping the terrorists off about an ongoing operation
Police often act officiously and rudely when enforcing security precautions on ordinary citizens, creating a sense of insecurity and giving the public the impression of a police state
Police are not psychologically equipped to deal with the kind of massive casualties that weapons of mass destruction can cause
Police are not prepared to face enemies who use diabolical means to obtain pseudo-terrorist objectives
THE COMPUTER DATABASE APPROACH TO DOMESTIC SECURITY
The National Strategy for Homeland Security (2003) called for connecting computer databases used in federal law enforcement, immigration, intelligence, public health surveillance, and emergency management, and further, DARPA's ill-fated plan for Total Information Awareness (TIA) was to merge some of these interconnections into a data mining system of systems involving the private sector, the finance/credit system, the Internet, and other databases. With gradiose plans such as these, the goal was to obtain the capability to track every human being on the planet at any given time. As ridiculous as this sounds, some precedent existed. For example, the CDC (Center for Disease Control) has long had a somewhat similar capability with its epidemiology programs, continuously scanning disease patterns throughout the nation's patient databases for signs of an outbreak. Others, such as the Department of State's TIPOFF system compiled information on suspicious travelers collected by consular offices overseas. It was one of the first systems interconnected with the post-9/11 no-fly lists. There's also some rather large databases involved in border control, such as those designed to enhance immigration enforcement. Unfortunately, the Border Patrol uses a two-finger fingerprint system while the FBI uses a ten-finger fingerprint system. And then, there's the "mother" of all databases, the FBI's NCIC (National Crime Information Center) which tracks everything greater than a Class C misdemeanor and is somewhat overburdened by the size of graphics and files. The following is a partial list of government databases related to homeland security:
AFIS - Fingerprint system to identify citizens
CAPPS II - Computer Assisted Passenger Prescreening System; classifies passengers by degree of risk
CCD - Consolidated Consular Database; records of non-immigrant visa entries and exits
CLASS - Consular Lookout and Support System; program for running background checks for visas
CODIS - Combined DNA Index System used for solving crimes
IBIS - Interagency Border Inspection System; immigration program used at ports of entry
IDENT - Fingerprint system to identify aliens
JITF-CT - Joint Intelligence Task Force Combating Terrorism; also DIA databases
LEO - Law Enforcement Online; VPN with exclusive interactive briefings, alerts, and discussions
MATRIX - Multistate Anti-Terrorism Information Exchange; targets individuals by risk profiles
NAILS - National Automated Immigration Lookout System
NCIC - Contains criminal justice arrest records, fugitives, stolen property, and missing persons and items
NDPIX - National Drug Pointer Index, DEA records of common targets in investigations
NDSI - National Spatial Data Infrastructure; geomapping records with meta-data tags
NIBIN - National Integrated Ballistics Information Network; unified ATF and FBI database, but mostly ATF
NLETS - National Law Enforcement Telecommunication System; interstate license and registration records
NSEERS - National Security Entry-Exit Registration System
SEVIS - Student Exchange Visitor Information System; monitors foreign students
TECS - Treasury Enforcement Communications System; for suspicious individuals and businesses
TIA - Terrorism Information Awareness; not the NSA's TIA but a traveler background checker
TIPOFF - State Department program which searches for known and suspected terrorists
TIPS - Terrorist Information and Prevention System; for anonymous tips
TSC - Terrorist Screening Center; a consolidation of terrorist watch lists
More on Terrorism Databases and Watch Lists
| Different standards and criteria exist
for different watch lists, and most of them exist more for travel
security than terrorism investigation. The way it works is
that flight manifests are normally sent to DHS seven days in
advance, and these manifests, by law, must include the required APIS
(Advance Passenger Information System) information about any
commercial passenger (such as name, address, date of birth, gender,
nationality, and passport). A problem arises when somebody buys
their ticket the day of departure. In such cases of last-minute
ticket-buying, TIDE (Terrorist Identities Datamart Environment) is
used to flag suspects at the point of departure. As of 2013, TIDE
contains about 875,000 names of people that intelligence analysts
believe are likely to carry out a terrorist activity or more
accurately are believed to be under the influence of a known
terrorist organization or state sponsor of terrorism. TIDE is
America’s “master watch list” and lots of different agencies;
e.g., the CIA, DIA,FBI, NSA, and many others, put people on that
list all the time. Names are also always being taken off the
list when their inclusion is no longer warranted. State
Department embassies can get names put on the list with what is
called a "Viper" memorandum. Friendly governments can request names
be put on or taken off TIDE. The NCTC (National Counterterrorism
Center) controls TIDE and is responsible for building and
maintaining it. TIDE is classified at the highest levels, but from
it, five (5) lesser-classified lists are generated and put to use,
(1) the Terrorist Screening Database (TSDB) – a law enforcement “sensitive” list that is maintained by the FBI’s Terrorist Screening Center and serves as the FBI’s master watch list for about 400,000 people who have met a standard of reasonable suspicion that is consistent with what reasonable suspicion means in police law;
(2) the No Fly List – a very high bar list of about 4,000 people banned from air travel and maintained by the TSA along with CAPPS, Secure Flight, the Selectee List (also known as Secondary Security Screening Selectee or SSSS, containing 14,000 names), and other blacklists, all except No Fly having uncertain or unknown criteria;
(3) the Consular Lookout and Support (CLASS) – a State Department database which checks and double checks names, especially long, difficult-to-pronounce, foreign names in all their possible translations and transliterations for purposes of visa issuance;
(4) the Interagency Border Inspection System (IBIS) – a DHS list used at ports of entry for border and immigration control that doesn't necessarily focus on suspected terrorists as much as focuses upon those who have attempted illegal entry into the country;
(5) the National Crime Information Center (NCIC) – an FBI enterprise widely used by state and local law enforcement for "missing" or "wanted" things as well as the criminal records of people and known fugitives from justice. The FBI also maintains various Most Wanted Lists and coordinates with Interpol watch lists, the latter being the ones who maintain the list of stolen passports, among other things.
The problem with government databases is not with the federal government's integration of "watch lists," but with any integration at the state and local levels of law enforcement. Real-time information sharing may take place among federal agencies, but it's not going to get to the larger law enforcement community in real-time. Some of this is due to federal bias or suspicion against local law enforcement, and another problem is that some state and municipal police departments are as far behind as five years in such basic things as updating parking ticket records. Ronczkowski (2011) reports that when federal agencies allow state and local law enforcement to access their databases, the actual names of terrorists and terrorist groups are hidden, so the law enforcement analyst only gets to work on the risk or profile characteristics. Maras (2013) reports that similar practices go on in the "data mining" community to safeguard too much information from falling into the hands of lower-level agency employees.
A greater problem arises when one tries to integrate, or commingle (the proper term), government databases with those in the private sector, such as credit card companies, e-commerce firms, retailers, etc. Some corporate firms, like Choicepoint, have stepped up and helped the government with the public/private merging it needs, but other corporations and whole industry fields are fairly non-cooperative. In addition, you would need about 15,000 fields just for merging the header (demographic) information across these databases, which would represent about 300,000 bytes per person. If you multiply this by 500 million people, the header records alone would require approximately 150,000,000,000,000 bytes (136 terabytes) and almost five years to stabilize. Then, there's the key identifier fields (also called crosswalk tables) which contain numerical records such as social security numbers or driver's license numbers which link the different databases together, and one of these has to be a unique identifier (pivot table) to put an interface on it. Since terrorists are likely to use fake IDs, a new unique identifier system may have to be developed, and this will require about ten years of data input time. Then, the transaction data is brought in, which generally produces crashes and errors, generating the need for continual validation, de-duplication, and normalization. The computer database approach is doable, but it will take years to get it right, lots of improvements in technology, and something a whole lot faster than T1 Internet connections for law enforcement. Subcontracting vendors like InferX are already at work on distributed data mining solutions using metadata methods. Lest the reader think the metadata approach is simple and easy to do, take for example, NASA's ill-fated Mars Mission, which simply failed to integrate two databases -- one in standard English measurements and the other in metric measurement (NRC 2002).
Secure intranets (on the .gov domain) and secure videoconferences will most likely remain the federal government's main way of information sharing with state and local governments, along with renaming the 93 Anti-Terrorist Task Forces (ATTFs) throughout the federal court districts into Homeland Security Task Forces (HSTFs). The ATTF/HSTF approach simply involves prosecutors, but Joint Terrorist Task Forces (JTTFs), which have a longer history, going back to Chicago in the late 1970s, are a different thing, and now exist in almost all FBI field offices where some elite state and local police are picked to be temporarily federalized, and true, joint cooperation exists between the levels of government since the power of arrest is equalized. The FBI also has several stand-alone JTTFs in its largest satellite offices, known as resident agencies.
Another approach would build upon what few successes law enforcement has had with "vertical" integration - crossing federal, state, and local levels of government. Bodrero (2002) as well as White (2004) recommend using the six-region information network known as RISS (Regional Information Sharing Systems). The RISS network (see map below) was designed for sharing criminal intelligence, primarily about gang crime, hate crime, and cybercrime, and would provide a model that works and makes effective use of existing intelligence analysts who work for police departments. RISS is the closest thing to a nationwide criminal investigation network.
The RISS network is an example of a multijurisdictional intelligence system, also known as an interjurisdictional intelligence system. These terms refer to any organization put together for the purpose of sharing criminal intelligence information across jurisdictions (and NOT for the purpose of responding to any particular multijurisdictional issue). Any such organization would, however, be considered a multijurisdictional task force for the purposes of 28 CFR Part 23, the legislation which provides guidance in five primary areas: submission and entry of criminal intelligence information, security, inquiry, dissemination, and the review-and-purge process. Some excellent information can be found about the 28 CFR Part 23 guidelines at IIR.
Another idea is to build on the War on Drugs as an intelligence model, and NDIC (National Drug Intelligence Center) holds some promise for development because it has always involved excellent cooperation between levels of government. In addition, America has several identified High Intensity Drug Trafficking Areas (HIDTAs), the El Paso Intelligence Center (EPIC) being most notable, which represent excellent working models of how intelligence analysts, from both law enforcement and the military, can come together to work on a common problem.
In addition, there are numerous states with highly-developed criminal intelligence units, such as the New Jersey State Police Intelligence Services which has long had an effective intelligence gathering and analysis capability. Most state police intelligence units maintain liaisons with INTERPOL (International Criminal Police Organization), EUROPOL, the RISS network, FINCEN (Financial Crime Enforcement Network), IALEIA (International Association of Law Enforcement Analysts), and LEIU (Law Enforcement Intelligence Unit, another association that holds annual seminars). It makes little sense for the federal government to ignore these resources as they represent the "best and brightest" that local law enforcement has to offer. Let's take a close-up look at Interpol since that's the one that is most expanding in recent years.
A Close-up Look at Interpol
|Interpol was established in 1923 and is the second largest international organization after the U.N. Be design, it tries to be politically neutral and does not investigate political, military, religious, or racial crimes, but it DOES investigate terrorism, organized crime, crimes against humanity, genocide, war crimes, piracy, illicit drug production, drug trafficking, weapons smuggling, human trafficking, money laundering, child pornography, white-collar crime, computer crime, intellectual property crime and corruption. These limits mean that Interpol cannot study the Islamist component behind jihadist terrorism; it can only study the non-religious components of an actual terrorist act. It can, however, investigate somebody merely for being a member of a terrorist organization, based on the rationale that membership itself is a crime in many countries. Interpol's famous "red notices" (kind of like international warrants for arrest, with a view toward extradition) work quite effectively, bringing to justice about 3,500 international criminals a year. "Blue notices" which simply request information about a person's identity or activities also work well, as do newly-created "Special notices" which collect information about groups subject to UN sanctions. Interpol's database of unsolved crimes and alleged criminals can be easily accessed by the police forces of member nations. In 1983, President Reagan signed Executive Order 12425 which extended diplomatic immunity to Interpol; in 1984, the case of DeLuca v. the United Nations, (41 F.3d 1502) upheld the idea of legal immunity for international organizations; and in 2009, President Obama extended EO 12425 to make Interpol exempt from search and seizure, from being investigated by law enforcement, and from Freedom of Information Act requests. With such powers, Interpol enjoys a level of immunity greater than the FBI, CIA, DIA, and all other criminal investigatory organizations -- Interpol does NOT have to produce records when demanded by courts and can NOT be the subject of private lawsuits. Interpol's encrypted network (I-24/7) and OPSEC is pretty good. It is the best the world has without being a supranational police force.|
A Close-Up Look at Europol
|Europol was created in 1999 as a top-down decision by EU political bodies (as opposed to Interpol which was a bottom-up movement by police professionals). It covers all 27 member states of the European Union and primarily exists to fight organized crime, broadly defined. Priority is given to those crimes where the criminal activity affects two or more member states. There are clearly-defined and limited fields of operation. Europol swings into action only on the basis of formal requests; Interpol, by contrast, on the basis of informal agreements. Emphasis is upon swift communication (thru encrypted channels), and the technology factor has been the primary driver behind the "Europeanization of counterterrorism." Staffing at headquarters and field offices is typically made up of Europe's best and most-expert police officers. Europol (unlike Interpol) is capable of directly studying the Islamist extremism threat and jihadist terrorism. Field operations, when executed, tend to be more in the nature of bilateral operations than multilateral operations.|
HOMELAND SECURITY THREAT AND VULNERABILITY ANALYSIS
The type of intelligence that DHS hopes to produce is warning intelligence, the kind that eliminates surprise. This has long been the kind of thing that the CIA sought after. This kind of intelligence is used by policymakers not so much to inform citizens via reverse-911 or other civil defense measures, but to take preemptive action against would-be attackers. This is an intense form of intelligence that will primarily require informers and infiltrators (HUMINT, or human intelligence) crossing every known sub-cultural and foreign-language barrier. In the language of risk assessment, this type of intelligence is known as tactical threat analysis, but is sometimes simply called actionable or flash intelligence. It is the first priority of DHS, and it places the Secretary of DHS on the same footing as the DCI (Director of Central Intelligence) and Attorney General (or Director of FBI as proxy) in being able to order action such as strikes and raids on would-be attackers. It will require data collection and analysis systems that share information in real-time or near-real-time.
The second type of intelligence product sought by DHS is strategic analysis of the enemy, which is a deep, academic-level understanding of motives, goals, identities, organizational structure, sources of support, capabilities, and points of vulnerability. It is optimistically aimed at the sources of terrorism - those seething hotbeds of extremism and fanaticism that typically characterize the world's trouble spots. At this level, also, the Secretary of DHS is on equal footing with the DCI and AG, but disagreements can be expected on the basis of human differences among interpretations of background information. Where DHS has a monopoly is with the area of vulnerability assessment - the constant measurement and monitoring of how vulnerable America's critical infrastructure is. This is the area that DHS hopes to automate with remote sensors and computer modeling, and it is also the area that is part of the Advisory system for warning the private sector and public. However, the hardest task is going to be involving law enforcement in the intelligence work.
To integrate homeland security with law enforcement, much more training beyond SLATT (State and Local Anti-Terrorism Training) will be needed. Police will need to learn how to collect and analyze intelligence. Police will need to improve their profiling skills, and learn, for example, how to monitor their communities for sudden shifts and expansions in anti-American rhetoric. More bi-lingual and multi-lingual police will surely be needed. Police will have to read a lot of radical literature, and investigate every charity. They will have to infiltrate alienated groups that kill without the slightest compunction, and are often well-financed. They will have to infiltrate religious groups, and pick up on squabbles that go on within such organizations. Police will have to improve their ability at computer forensics, because terrorists often are fairly sophisticated at encryption and computer use. Police will have to become sensitive to trends and indicators in community tension, especially as these tensions are tied into international tensions. If new groups come to town, and keep to themselves, or try hard to blend in, either of these should arouse police suspicion. It will seem like an impossible job, but maybe with a few tweaks, police can do it. In any event, it should portend a new role for police in society - a role that involves America learning how to spy on itself.
THE RISE OF FUSION CENTERS
Fusion technically refers to data fusion, which is defined as "the exchange of information from different sources, including law enforcement, public safety, and the private sector, and with analysis, can result in meaningful and actionable intelligence and information that can inform both policy and tactical deployment of resources" (DHS 2006; Lambert 2010). Fusion is similar, but distinct, from intelligence-led policing, which is defined as: "a collaborative law enforcement approach combining problem-solving policing, information sharing, and police accountability, with enhanced intelligence operations" (DOJ 2009; Lambert 2010). There are four advantages to fusion centers that can be theorized:
the elimination of "stovepipes" in information where one agency (and one agency only) gathers and maintains some valuable intelligence that could really be used by another agency
the maximization of limited assets in personnel, mainly, which is a perennial concern given budget cuts
the blending of subject-matter expertise, between law enforcement types who have made their career out of becoming specialists at one particular type of crime
the prediction of credible crime patterns and trends that may have criminological import or answer the really "big" questions about the causes of crime
To be sure, some of the above advantages are utopian. It's doubtful, for example, if the strategic uses of fusion intelligence will be put to work for criminological policy purposes when the needs and culture of law enforcement are mostly tactical. Also, it's somewhat self-contradictory to support subject matter experts in one type of crime (say, drug crime) and expect them to somehow "blend" their expertise with subject matter expertise over another type of crime. It seems like this is more a recipe for common denominator analysis, like "they're all criminal scumbags anyway," and there's the very real problem of not all types of crime lending themselves criminologically to a common mode of analysis (Hagan 2010).
One could go on and on listing the theoretical problems of fusion centers, but why bother? They are considered the latest, greatest thing in homeland security, and they produce analytic products (charts, graphs, etc), so it appears they have some practical utility. However, fusion centers can (and do) exist internationally, where they have bigger problems. At this level, their mode is derivative from the process known as cross-cueing. Cross-cueing is the notion of optimizing multi-target detection, geolocation, and targeting information, so that it can be passed on from sensor to sensor without the need for much human analysis. It can be said this kind of "automated" fusion intelligence is quite dangerous, and particularly noteworthy given the fact that, in the U.S. at least, homeland security seems to be pursued in the cheapest, most efficient way possible. Federal funding, for example, allows states to create their own fusion centers (build them, but not staff them - grant money cannot be used to pay salaries). Ultimately, human factors need to be incorporated into data fusion models, and there isn't much sign of any discussion along those lines going on.
It is likely that fusion centers will take on different shapes and sizes in years to come. Some may come to look very similar to Emergency Operations Centers (EOCs) - or others may look like "cube farms" where analysts are hired to sit and work while visitors are dazzled by the big screens which fill the walls. What nobody sees is the information sharing itself, which is independent of who staffs a center, to the extent that there is no political control or oversight in the way. Networks of inter-governmental intelligence gathering and sharing sometimes operate in a less than ideal fashion because of political oversight (depending upon the personalities involved). Strong personalities at certain levels can lead to more or less detail than can be provided (for analytic or security reasons). This is why figuring out the role of governors, mayors, and other local officials is important. Yet in the meantime, the problem goes on over all those thousands of lower-level workers who may be confused by whom they work for. In sum, counterterrorism policing is just another police reform movement, and like all such movements, it will likely tend to come and go in a twenty-year cycle. It may or may not experience a major scandal like many police reform movements have. It remains to be seen what homeland security reform cycles will look like.
ACLU Report on the Dangers of Domestic Spying
ACLU Report on How Patriot Act enables Law Enforcement to use Intelligence to Invade Privacy
Anser Institute for Homeland Security
Britain's MI5 Intelligence Agency (Home Office/MOD)
DARPA Information Awareness Office
Data Mining and Homeland Security Applications
Electronic Privacy Information Center Page on DARPA
Existing and Pending Anti-Terrorism Laws
FindLaw's Special Coverage on Civil and Criminal Terrorism Cases
GovExec Website on Homeland Security
House Select & Subcommittees on Homeland Security
Journal of Homeland Security
Law Enforcement Intelligence Guide
RAND Monograph: Confronting the Enemy Within (pdf)
Texas A&M's Homeland Security Web Resources
The USA Patriot Act
Watergate Remembrance Page
Best, Richard. (2001). "Intelligence and law enforcement: CRS Report for Congress," online at http://www.fas.org/irp/crs/RL30252.pdf.
Bodrero, Douglas. (2002). "Law enforcement's new challenge to investigate, interdict, and prevent terrorism." The Police Chief (February): 41-48.
Bush, George. (2003). National strategy for homeland security. Washington D.C.: Office of Homeland Security.
Colb, Sherry. (2001). "The new face of racial profiling: How terrorism affects the debate." FindLaw's Legal Commentary, online at http://writ.news.findlaw.com/200111010.html.
Crank, J. & Gregor, P. (2005). Counterterrorism after 9/11. Cincinnati: Anderson Lexis Nexis.
Deflem, M. (2010). The policing of terrorism. NY: Routledge.
Dept. of Homeland Security. (2006). Fusion center guidelines. Washington DC: DOJ.
Dept. of Justice (2009). Navigating your agency's path to intelligence-led policing. Washington DC: DOJ.
Donner, Frank. (1980). The age of surveillance. NY: Alfred A. Knopf.
FSI/Primedia. (2002). FSI's homeland security guide. McLean, VA: FSI/Primedia.
Hagan, F. (2010). Crime types and criminals. Beverly Hills: Sage.
Hillyard, Michael. (2003). Homeland security and the need for change. NY: Aventine Books.
Hulnick, A. (1997). "Intelligence and law enforcement: The 'spies are not cops' problem." International Journal of Intelligence and Counterintelligence 10(3): 269-286.
IACP. (2001). Terrorism response. Alexandria, VA: Int. Assoc. of Chiefs of Police.
IACP (2002). Criminal intelligence sharing. Alexandria, VA. August.
Kappeler, V. & Miller-Potter, K. (2004). "Policing in the age of terrorism." Pp. 27-40 in Q. Thurman & A. Giacomazzi (eds.) Controversies in policing. Cincinnati: LexisNexis Anderson.
Kayyem, J. & Howitt, A. (Eds.) (2002). Beyond the beltway: Focusing on homeland security. Cambridge, MA: Kennedy School of Government.
Lambert, D. (2010). "Intelligence-led policing in a fusion center." FBI Law Enforcement Bulletin (Dec): 1-6.
Maras, M. (2013). Counterterrorism. Burlington, MA: Jones & Bartlett.
McCauley, C. (2007). "War versus justice in response to terrorist attacks." Pp. 56-65 in B. Bongar et al. (eds.) Psychology of terrorism. NY: Oxford Univ. Press.
McGarrell, E., Freilich, J. & Chermak, S. (2007). "Intelligence-led policing as a framework for responding to terrorism." Journal of Contemporary Criminal Justice 23(2): 142-58.
Mena, J. (2003). Investigative data mining for security and criminal detection. NY: Butterworth-Heinemann.
National Research Council. (2002). Making the nation safer: The role of science and technology. Washington DC: National Academies Press.
Norwitz, J. (2002) "Combating terrorism: With a helmet or badge" Journal of Homeland Security, Nov. 6, Anser Institute. Also reproduced on pp. 424-31 of P. Bolt et al. (eds.) American defense policy, 8e. Baltimore: Johns Hopkins Press.
O'Hanlon, Michael. (Ed.) (2002). Protecting the American homeland. Washington D.C.: Brookings Institution.
Pyle, Christopher. (1986). Military surveillance of civilian politics. NY: Garland.
Ranum, Marcus. (2004). The myth of homeland security. NY: Wiley.
Ronczkowski, M. (2011). Terrorism and Organized Hate Crime, 3e. Boca Raton: CRC Press
Rosenau, W. (2005). "Waging the war of ideas." Pp. 1141-42 in D. Kamien (ed.) The McGraw-Hill homeland security handbook. NY: McGraw Hill.
Schulhofer, S. (2002). The enemy within: Intelligence gathering, law enforcement, and civil liberties in the wake of September 11. Washington DC: Brookings.
Spracher, W. (2005). "Homeland security and intelligence: Can oil mix with water in an open society." Pp. 139-161 in D. Clift, Learning with professionals: Selected works from the JMIC. Washington DC: JMIC.
Stephens, D. & Hartmann, F. (2002). "The policing challenge." Pp. 15- 22 in Beyond the beltway. Cambridge, MA: JFK School of Government, Harvard University. September.
Sulc, Lawrence. (1996). Law enforcement counter intelligence. Shawnee Mission, KS: Varno Press.
White, Jonathan. (2004). Defending the homeland. Belmont, CA: Wadsworth.
Zureik, E. & Salter, M. (Eds.) (2005). Global surveillance and policing. Portland, OR: Willan Publishing.
Last updated: May 01, 2013
Not an official webpage of APSU, copyright restrictions apply, see Megalinks in Criminal Justice
O'Connor, T. (2013). "Homeland Security and Law Enforcement," MegaLinks in Criminal Justice. Retrieved from http://www.drtomoconnor.com/3430/3430lect02b.htm.