US News and World Report, May 8, 2006
Spies Among Us
Despite a troubled history, police across the nation are keeping tabs on ordinary Americans
By David E. Kaplan
In the Atlanta suburbs of DeKalb County, local officials wasted no time after the 9/11 attacks. The second-most-populous county in Georgia, the area is home to the Centers for Disease Control and Prevention, the FBI’s regional headquarters, and other potential terrorist targets. Within weeks of the attacks, officials there boasted that they had set up the nation’s first local department of homeland security. Dozens of other communities followed, and, like them, DeKalb County put in for–and got–a series of generous federal counterterrorism grants. The county received nearly $12 million from Washington, using it to set up, among other things, a police intelligence unit.
The outfit stumbled in 2002, when two of its agents were assigned to follow around the county executive. Their job: to determine whether he was being tailed–not by al Qaeda but by a district attorney investigator looking into alleged misspending. A year later, one of its plainclothes agents was seen photographing a handful of vegan activists handing out antimeat leaflets in front of a HoneyBaked Ham store. Police arrested two of the vegans and demanded that they turn over notes, on which they’d written the license-plate number of an undercover car, according to the American Civil Liberties Union, which is now suing the county. An Atlanta Journal-Constitution editorial neatly summed up the incident: “So now we know: Glazed hams are safe in DeKalb County.”
Glazed hams aren’t the only items that America’s local cops are protecting from dubious threats. U.S. News has identified nearly a dozen cases in which city and county police, in the name of homeland security, have surveilled or harassed animal-rights and antiwar protesters, union activists, and even library patrons surfing the Web. Unlike with Washington’s warrantless domestic surveillance program, little attention has been focused on the role of state and local authorities in the war on terrorism. A U.S.News inquiry found that federal officials have funneled hundreds of millions of dollars into once discredited state and local police intelligence operations. Millions more have gone into building up regional law enforcement databases to unprecedented levels. In dozens of interviews, officials across the nation have stressed that the enhanced intelligence work is vital to the nation’s security, but even its biggest boosters worry about a lack of training and standards. “This is going to be the challenge,” says Los Angeles Police Chief William Bratton, “to ensure that while getting bin Laden we don’t transgress over the law. We’ve been burned so badly in the past–we can’t do that again.”
Rap sheets. Chief Bratton is referring to the infamous city “Red Squads” that targeted civil rights and antiwar groups in the 1960s and 1970s. Veteran police officers say no one in law enforcement wants a return to the bad old days of domestic spying. But civil liberties watchdogs warn that with so many cops looking for terrorists, real and imagined, abuses may be inevitable. “The restrictions on police spying are being removed,” says attorney Richard Gutman, who led a 1974 class action lawsuit against the Chicago police that obtained hundreds of thousands of pages of intelligence files. “And I don’t think you can rely on the police to regulate themselves.”
Good or bad, intelligence gathering by local police departments is back. Interviews with police officers, homeland security officials, and privacy experts reveal a transformation among state and local law enforcement.
Among the changes:
Since 9/11, the U.S. Departments of Justice and Homeland Security have poured over a half-billion dollars into building up local and state police intelligence operations. The funding has helped create more than 100 police intelligence units reaching into nearly every state.
To qualify for federal homeland security grants, states were told to assemble lists of “potential threat elements”–individuals or groups suspected of possible terrorist activity. In response, state authorities have come up with thousands of loosely defined targets, ranging from genuine terrorists to biker gangs and environmentalists.
Guidelines for protecting privacy and civil liberties have lagged far behind the federal money. After four years of doling out homeland security grants to police departments, federal officials released guidelines for the conduct of local intelligence operations only last year; the standards are voluntary and are being implemented slowly.
The resurgence of police intelligence operations is being accompanied by a revolution in law enforcement computing. Rap sheets, intelligence reports, and public records are rapidly being pooled into huge, networked computer databases. Much of this is a boon to crime fighting, but privacy advocates say the systems are wide open to abuse.
Behind the windfall in federal funding is broad agreement in Washington on two areas: first, that local cops are America’s front line of defense against terrorism; and second, that the law enforcement and intelligence communities must do a far better job of sharing information with state and local police. As a report by the International Association of Chiefs of Police stressed: “All terrorism is local.” Oklahoma City bomber Timothy McVeigh was arrested by a state trooper after a traffic stop. And last year, local police in Torrance, Calif., thwarted what the FBI says could have been America’s worst incident since 9/11–planned attacks on military sites and synagogues in and around Los Angeles by homegrown jihadists.
The numbers tell the story: There are over 700,000 local, state, and tribal police officers in the United States, compared with only 12,000 FBI agents. But getting the right information to all those eyes and ears hasn’t gone especially well. The government’s failure at “connecting the dots,” as the 9/11 commission put it, was key to the success of al Qaeda’s fateful hijackings in 2001. Three of the hijackers, including ringleader Mohamed Atta, were pulled over in traffic stops before the attacks, yet local cops had no inkling they might be on terrorist watch lists. A National Criminal Intelligence Sharing Plan, released by the Justice Department in 2003, found no shortage of problems in sharing information among local law enforcement: a lack of trust and communication; lack of funding for a national intelligence network; lack of database connectivity; a shortage of intelligence analysts, software, and training; and a lack of standards and policies.
The flood of post-9/11 funding and attention, however, has started making a difference, officials say. Indeed, it has catalyzed reforms already underway in state and local law enforcement, giving a boost to what reformers call intelligence-led policing–a kind of 21st-century crime fighting driven by computer databases, intelligence gathering, and analysis. “This is a new paradigm, a new philosophy of policing,” says the LAPD’s Bratton, who previously served as chief of the New York Police Department. In that job, Bratton says, he spent 5 percent of his time on counterterrorism; today, in Los Angeles, he spends 50 percent. The key to counterterrorism work, Bratton adds, is intelligence.
The change is “huge, absolutely huge,” says Michigan State University’s David Carter, the author of Law Enforcement Intelligence. “Intelligence used to be a dirty word. But it’s a more thoughtful process now.” During the 1980s and 1990s, intelligence units were largely confined to large police departments targeting drug smugglers and organized crime, but the national plan now being pushed by Washington calls for every law enforcement agency to develop some intelligence capability. Experts estimate that well over 100 police departments, from big-city operations to small county sheriffs’offices, have now established intelligence units of one kind or another. Hundreds of local detectives are also working with federal agents on FBI-run Joint Terrorism Task Forces, which have nearly tripled from 34 before 9/11 to 100 today. And over 6,000 state and local cops now have federal security clearances, allowing them to see classified intelligence reports.
“The front line.” Some police departments have grown as sophisticated as those of the feds. The LAPD has some 80 cops working counterterrorism, while other big units now exist in Atlanta, Chicago, and Las Vegas. Then there’s the NYPD, which is in a class by itself–with a thousand officers assigned to homeland security. The Big Apple’s intelligence chief is a former head of CIA covert operations; its counterterrorism chief is an ex-State Department counterterrorism coordinator. The NYPD has officers based in a half-dozen countries, and its counterterrorism agents visit some 200 businesses a week to check on suspicious activity.
Many of the nation’s new intelligence units are dubbed “fusion centers.” Run by state or local law enforcement, these regional hubs pool information from multiple jurisdictions. From a mere handful before 9/11, fusion centers now exist in 31 states, with a dozen more to follow. Some focus exclusively on terrorism; others track all manner of criminal activity. Federal officials hope to eventually see 70 fusion centers nationwide, providing a coast-to-coast intelligence blanket. This vision was noted by President Bush in a 2003 speech: “All across our country we’ll be able to tie our terrorist information to local information banks so that the front line of defeating terror becomes activated and real, and those are the local law enforcement officials.”
Intelligence centers are among the hottest trends in law enforcement. Last year, Massachusetts opened its Commonwealth Fusion Center, which boasts 18 analysts and 23 field-intelligence officers. The state of California is spending $15 million on a string of four centers this year, and north Texas and New Jersey are each setting up six. The best, officials say, are focused broadly and are improving their ability to counter sophisticated crimes that include not only terrorism but fraud, racketeering, and computer hacking. The federal Department of Homeland Security, which has bankrolled start-ups of many of the centers, has big plans for the emerging network. Jack Tomarchio, the agency’s new deputy director of intelligence, told a law enforcement conference in March of plans to embed up to three DHS agents and intelligence analysts at every site. “The states want a very close synergistic relationship with the feds,” he explained to U.S. News. “Nobody wants to play by the old rules. The old rules basically gave us 9/11.”
“Reasonable suspicion.” The problem, skeptics say, is that no one is quite sure what the new rules are. “Hardly anyone knows what a fusion center should do,” says Paul Wormeli of the Integrated Justice Information Systems Institute, a Justice Department-backed training and technology center. “Some states have responded by putting 10 state troopers in a room to look at databases. That’s a ridiculous approach.” Another law enforcement veteran, deeply involved with the fusion centers, expressed similar frustration. “The money has been moved without guidance or structure, technical assistance, or training,” says the official, who is not authorized to speak publicly. There are now guidelines, he adds, “but they’re not binding on anyone.” In the past year, the Justice Department has issued standards for local police on fusion centers and privacy issues, but they are only advisory. Most federal funding for the centers now comes from the Department of Homeland Security, but DHS also requires no intelligence standards from its grantees.
At the state level, regulations on police spying vary widely, but a general rule of thumb comes from the Justice Department’s internal guidelines that forbid intelligence gathering on individuals unless there is a “reasonable suspicion” of criminal activity. Since the reforms of the 1970s, the FBI says its agents have followed this standard; Justice Department regulations require local police who receive federal funding to do the same in maintaining any intelligence files. But there is considerable leeway at the local level, and since 2001, judges have watered down police spying limits in Chicago and New York. The federal regs, moreover, have not stopped a parade of questionable cases.
Suspicion of spying is so rife among antiwar activists, who have loudly protested White House policy on Iraq, that some begin meetings by welcoming undercover cops who might be present. “People know and believe their activities are being monitored,” says Leslie Cagan, national coordinator of United for Peace and Justice, the country’s largest antiwar coalition. There is some evidence to back this up. Documents and videotapes obtained from lawsuits against the NYPD reveal that its undercover officers have joined antiwar and even bicycle-rider rallies. In at least one case, an apparent undercover officer incited a crowd by faking his arrest. In  Fresno, Calif., activists learned in 2003 that their group, Peace Fresno, had been infiltrated by a local sheriff’s deputy–piecing it together after the man died in a car crash and his obituary appeared in the paper.
The California Anti-Terrorism Information Center, a $7 million fusion center run by the state Department of Justice, also ran into trouble in 2003 when it warned of potential violence at an antiwar protest at the port of Oakland. Mike Van Winkle, then a spokesman for the center, explained his concern to the Oakland Tribune: “You can make an easy kind of a link that, if you have a protest group protesting a war where the cause that’s being fought against is international terrorism, you might have terrorism at that protest. You can almost argue that a protest against [the war] is a terrorist act.” Officials quickly distanced themselves from the statement. The center’s staff had confused political protest with terrorism, announced California’s attorney general, who oversees the office.
“Absurd” threats. But this expansive view of homeland security has at times also extended to union activists and even library Web surfers. In February 2006 near Washington, D.C., two Montgomery County, Md., homeland security agents walked into a suburban Bethesda library and forcefully warned patrons that viewing Internet pornography was illegal. (It is not.) A county official later called the incident “regrettable” and said those officers had been reassigned. Similarly, in 2004, two plainclothes Contra Costa County sheriff’s deputies monitored a protest by striking Safeway workers in nearby San Francisco, identifying themselves to union leaders as homeland security agents.
Further blurring the lines over what constitutes “homeland security” has been a push by Washington for states to identify possible terrorists. In 2003, the Department of Homeland Security began requiring states to draft strategic plans that included figures on how many “potential threat elements” existed in their backyards. The definition of suspected terrorists was fairly loose — PTEs were groups or individuals who might use force or violence “to intimidate or coerce” for a goal “possibly political or social in nature.” In response, some states came up with alarming numbers. Most of the reports are not available publicly, but U.S. News obtained nine state homeland security plans and found that local officials have identified thousands of “potential” terrorists. There are striking disparities, as well. South Carolina, for example, found 68 PTEs, but neighboring North Carolina uncovered 506. Vermont and New Hampshire found none at all. Most impressive was Texas, where in 2004 investigators identified 2,052 potential threat elements. One top veteran of the FBI’s counterterrorism force calls the Texas number “absurd.” Included among the threats cited by the states, sources say, are biker gangs, militia groups, and “save the whales” environmentalists.
“The PTE methodology was flawed,” says a federal intelligence official familiar with the process, “and it’s no longer being used.” Nonetheless, these “threat elements” have, in some cases, become the basis for intelligence gathering by local and state police. Concern over the process prompted the ACLU in New Jersey to sue the state, demanding that eight towns turn over documents on PTEs identified by local police.
Another source of alarm for civil liberties watchdogs is the explosion in police computing power. Spurred by a 2004 White House directive ordering better information sharing, the Justice Department has poured tens of millions of dollars into expanding and tying together law enforcement databases and networks. In many respects, the changes are long overdue, yanking police into the 21st century and letting them use the tools that bankers, private investigators, and journalists routinely employ. From TV shows like 24 and CSI, Americans are accustomed to scenes of police accessing the most arcane data with a few keyboard clicks. The reality couldn’t be more different. Law enforcement was slow to get on the technology bandwagon, and its information systems have developed into a patchwork of networks and databases that cannot talk to one another–even within the same county. Rap sheets, prison records, and court files are often all on different systems. This means that days or even weeks can pass before court-issued warrants show up on police wanted lists–leaving criminals out on the streets.
States and cities began linking up their systems in the 1990s, but since 9/11 their progress has been dramatic. At least 38 states are working on some 200 projects tying together their criminal justice records. Concerned over disjointed police networks around its key bases, the Navy’s Criminal Investigative Service is funding projects in Norfolk, Va., and four other port cities, creating huge “data warehouses” stocked with crime files from dozens of law enforcement agencies. The FBI is also running pilot database centers in the St. Louis and Seattle areas in which the bureau makes its case files available to police. To local cops who have long complained about the FBI’s lack of sharing, the development is downright revolutionary. “It made people nervous as hell, including me,” says the FBI’s Thomas Bush, who oversaw the initial program and now runs the FBI’s Criminal Justice Information Services Division. “The technical aspect is easy, but you need to have the trust of the community and the security to safeguard the system.”
The benefits of all this are undeniable. Armed with the latest information, police will be better able to catch crooks and spot criminal trends. But in this digital age, with so much data available about individual Americans, the lines between what is acceptable investigation and what is intrusive spying can quickly grow unclear. Consider the case of Matrix. Backed by $12 million in federal funds, at its peak in 2004 the Matrix system tapped into law enforcement agencies from a dozen states. Using “data mining” technology, its search engine ripped through billions of public records and matched them with police files, creating instant dossiers. In the days after 9/11, Matrix researchers searched out individuals with what they called “high terrorist factor” scores, providing federal and state authorities a list of 120,000 “suspects.”
Law enforcement officials loved the system and made nearly 2 million queries to it. But what alarmed privacy advocates was the mixing of public data with police files, profiling techniques that smacked of fishing expeditions, and the fact that all these sensitive data were housed in a private corporation. Hounded by bad publicity and concerned that Matrix might be breaking privacy laws, states began pulling out of the system. Then, early last year, the Justice Department quietly cut off funding.
Matrix no longer exists [HA!], but similar projects are underway across the country, including one run by the California Department of Justice. Having learned from Matrix’s mistakes, users are employing what tech specialists call “distributed computing.” Instead of creating a single, vast database, they rapidly access information from sites in different states, often with a single query. The effect is essentially the same. “If people knew what we were looking at, they’d throw a fit,” says a database trainer at one prominent police department.
Hacker’s discovery. Another concern is the quality–and security–of all that information. In Minnesota, the state-run Multiple Jurisdiction Network Organization ran into controversy after linking together nearly 200 law enforcement agencies and over 8 million records. State Rep. Mary Liz Holberg, a Republican who oversees privacy issues, found much to be alarmed about when a local hacker contacted her after breaking into the system. The hacker had yanked out files on Holberg herself, showing she was classified as a “suspect” based on a neighbor’s old complaint about where she parked her car. “We had a real mess in Minnesota,” Holberg later wrote. “There was no effective policy for individuals to review the data in the system, let alone correct inaccuracies.” In late 2003, state officials shut down the system amid concerns that it violated privacy laws in its handling of records on juvenile offenders and gun permits.
Such problems threaten to grow as law enforcement expands its reach with increased intelligence and computing power. The key to avoiding trouble, say experts, is ensuring that concerns over privacy and civil liberties are dealt with head-on. In a recent advisory aimed at police intelligence units, the Department of Justice stressed that success in safeguarding civil liberties “depends on appointing a high-level member of your agency to champion the initiative.” But that message apparently hasn’t gotten through, judging from the response at a conference sponsored by the Justice Department a few weeks back on information sharing. Among the crowd of some 200 local and state officials were intelligence officers, database managers, and chiefs of police. When a speaker asked who in the audience was working with privacy officials, not a single hand went up.
As Washington doles out millions of dollars for police intelligence, its reliance on voluntary guidelines may backfire, warn critics, who worry that abuses could wreck the important work that needs to be done. “We’re still diddling around,” says police technology expert Wormeli. “We’re not setting clear policy on what we put in our databases. Should a patrol officer in Tallahassee be able to look at my credit report? Most people would say, ‘Hell, no.’” Current regulations on criminal intelligence, he adds, were written before the computer age. “They were great in their day, but they need to be updated and expanded.”
Civil liberties watchdogs like attorney Gutman, meanwhile, want to know how efforts to stop al Qaeda have ended up targeting animal rights advocates, labor leaders, and antiwar protesters. “You’ve got all this money and all this equipment–you’re going to find someone to use it on,” he warns. “If there aren’t any external checks, there’s going to be an inevitable drift toward abuses.” But boosters of intelligence-led policing say that today’s cops are too smart to repeat mistakes of the old Red Squads. “We’re trying to develop policies to build trust and relationships, not spy,” says Illinois State Police Deputy Director Kenneth Bouche. “We’ve learned a better way to do it.” Perhaps. But for now, at least, the jury on this case is still out.
With Monica M. Ekman and Angie C. Marek
