A new report from the Brennan Center for Justice finds that despite the vast surveillance state that has amassed in the days after 9/11, gaps in intelligence-sharing networks remain between local and federal police forces, which threaten Americans’ national security and undermine their civil liberties.
The report is based on the center’s surveys of 16 major police departments, 19 affiliated fusion centers, and 14 Joint Terrorism Task Forces (JTTF) and dozens of open records requests. The author of the report, Michael Price, counsel for the Brennan Center’s Liberty and National Security Program, said the study results show “organized chaos – a sprawling, federally subsidized, and loosely coordinated system designed to share information that is collected according to varying local standards.”
This kind of structure leaves local police to collect massive amounts of data on ordinary Americans that has almost no real counterterrorism value with almost no oversight mechanisms in place. But the massive collection of data by local police units has lead to an overall lowering of standards, including the untethering of intelligence activities from the traditional reasonable suspicion requirement.
This has happened so much that the FBI does not investigate 95 percent of the reports shared by local police departments, according to the report.
“The fusion centers are basically acting like junk collectors. They are pulling in a ton of reports that have no connection to criminal or terroristic activities, sharing them with other fusion centers throughout the country and creating a din of data that is making it more difficult to identify potential criminals,” Price told Truthout.
The expansion of data-collecting “fusion centers” across the nation in the aftermath of 9/11 was meant to enable better coordination across agencies, since a lack of information sharing between those agencies was cited by the 9/11 Commission as a major reason for intelligence failures leading to the 9/11 attacks. In addition to the fusion centers, federal grants have subsidized a national network of special intelligence and counterterrorism units, known as Joint Terrorism Task Forces, to investigate terrorism cases. But Price also pointed to the fact that federal agencies, local police forces, fusion centers and JTTFs have many overlapping roles, which help to confuse how they coordinate.
Price and the Brennan Center are calling for a couple of remedies to the “organized chaos,” however, including stronger and transparent standards for local police including re-emphasizing the standard of reasonable suspicion and applying that standard for data shared on federal networks and databases. Price is also calling on elected officials to consider establishing an independent police monitor or inspector general that could perform regular, independent audits as a condition of future federal funding on all fusion centers.
Price said that while most police departments have some kind of oversight structure, units now dealing with intelligence gathering and counterterrorism do not. He said that a structure that would normally allow for complaints from the public to go through an adjudication process would not work for these new intelligence structures because most citizens are unaware that their information is being gathered in the first place.
“It’s really a phenomenon of that fact that we haven’t had state and local police doing intelligence work in this role as the eyes and ears of the intelligence community. That’s a relatively new phenomenon, and the oversight for that is vague,” he said.
And this lack of oversight is endangering Americans’ civil liberties a bit more every day, according to the report:
Part of the problem today is the use of vague and poorly understood standards for placing information on the [information-sharing environment]. In order for a fusion center to share a report on the [information-sharing environment], the Functional Standard requires that information have a “potential terrorism nexus.” Of course, virtually all information has a potential link to terrorism, including everyday activities such as taking photographs or dining out with a group of friends. More specifically, information posted to the [information-sharing environment] must be “reasonably indicative of criminal activity associated with terrorism, including evidence of pre-operational planning related to terrorism.”
While the Functional Standard appears to narrow the window for inclusion, in practice there is no requirement that the information be related to an actual or planned crime. According to the DOJ, information that flows through the [information-sharing environment] need “not be indicative of a potential crime,” provided that it might help prevent a potential act of terrorism “when collated and analyzed with correlating pieces of data from other sources.” Consequently, there has been a regular problem with reporting and improperly characterizing First Amendment-protected activities without a nexus to violence or criminality.
What are some of those activities that may be considered “evidence of pre-operational planning related to terrorism”? A few include staying at bus or train stops for extended periods while buses and trains go by; carrying on long conversations on pay phones or cell phones; ordering food at a restaurant, but leaving before the food arrives; and joggers who stretch “for an inordinate amount of time.”