The changing face of intelligence

New domestic surveillance and data gathering proposals have civil liberties advocates weary

ALBUQUERQUE -- As the Bush administration prepares its exit, new domestic spying tactics are being pushed to solidify security measures enacted shortly after 9/11.

A recent Justice Department proposal would allow local law enforcement agencies to investigate individuals or groups suspected of terrorist activity. Meanwhile, the Department of Homeland Security has just released information about its Border Crossing Information system, which records border activities of all U.S. citizens and stores it in a database for 15 years.

Proponents of the measures say a broadening of intelligence collection is needed to monitor potential national threats. Civil liberties advocates question whether casting a larger intelligence net would catch innocent citizens in sweeps and whether such measures are even effective at preventing terrorist attacks.

Both measures strengthen the role that intelligence plays in law enforcement -- a role that was reined in after 1976 congressional hearings concerning the Nixon administration's illegal activities.

"This is a continuum that started back on 9/11 to reform law enforcement and the intelligence community to focus on the terrorism threat," said Kenneth L. Wainstein in a recent Washington Post story.

"Having worked terrorism cases, the most important thing for the investigation is to be really focused," says Michael German, a former FBI agent and policy counsel for the American Civil Liberties Union, in an interview with the New Mexico Independent. "These measures aren't focused."

While administration officials cite security concerns since 9/11 for pushes to gather more domestic intelligence, German says that we've never had an intelligence collection problem, "what we've had is an intelligence management problem."

The rule would allow for local law enforcement agencies to target individuals or groups who are suspected to be engaged in terrorist activity or aiding terrorist organizations. However, details about what comprises "suspected" activity is vague in the official wording. German points to Federal Fusion Centers that encourage and take tips on activities ranging from people using binoculars to individuals taking photos "with no aesthetic value."

The White House revised Executive Order 12333 on the day the Justice Department measures were put forth. This strengthened the role of the Director of National Intelligence, who answers directly to the president. It also "directed CIA and other spy agencies to 'provide specialized equipment, technical knowledge or assistance of expert personnel' to support state and local authorities," according to the Washington Post article.

The Albuquerque Police Department and Bernalillo County Sheriff's Department did not return repeated requests for comment on the measure.

The database for U.S. citizens crossing the border recently came to light in order to give greater transparency, according to the Federal Register document. It states: "When a traveler is admitted or paroled into the U.S., a traveler's biographical information, photograph, where available, and crossing details (time and location) will be maintained in accordance with this BCI system of records." This information is then kept in the federal database for 15 years with other federal agencies able to access it.

"The problem is that our government believes it is entitled to its citizens' personal information," says German, "and that's not the way this country was set up." He says that the Founding Fathers of this country recognized an indispensable need for checks and balances and transparency.

According to the Washington Post:

Homeland Security is proposing to exempt the database from some provisions of the 1974 Privacy Act, including the right of a citizen to know whether a law enforcement or intelligence agency has requested his or her records and the right to sue for access and correction in those disclosures.

Despite all the concerns over civil liberties, elected officials should really be questioning whether these programs are even effective, says German. He adds that if you have local police worrying about note-takers, how much resources are being taken away from their traditional role?

"If we were to judge these programs and their expenditure of resources by their effectiveness, you'd see a lot of them go by the wayside."

There was a bi-partisan call to delay the Justice Department's proposal last week. Judiciary Chairman Patrick Leahy, D-Vt., and Sen. Arlen Specter of Pennsylvania lauded the efforts to give front-line agents clear rules in their investigations, according to an Associated Press report. "Nevertheless, efforts to harmonize the rules governing criminal and national security matters also raise potential civil liberties concerns, given the broader latitude currently given to investigators to consider race and ethnicity in national security matters."

Four Democrats -- Sens. Dick Durbin of Illinois, Russ Feingold of Wisconsin, Edward M. Kennedy of Massachusetts and Sheldon Whitehouse of Rhode Island -- also sent a letter to Attorney General Michael Mukasey last week stating that they were uneasy about the measures even after the Justice Department's assurances in their briefing, according to a separate AP report.

In their letter, the Democrats said the guidelines would:

Let the FBI use 'a variety of intrusive investigative techniques' with no evidence of possible wrongdoing. The techniques could include: long-term FBI surveillance, interviewing neighbors and work-mates, recruiting informants and searching commercial databases for information on people 'all without any basis for suspicion'."

Within the last two months, numerous instances have surfaced in the press that call into question the FBI's, the Department of Homeland Security and local law enforcement agencies' targeting of innocent civilians.

A July report by the Baltimore Sun examines newly surfaced documents that illustrate local law enforcement agents infiltration into local peace and anti-death penalty groups. "Undercover Maryland State Police officers repeatedly spied on peace activists and anti-death penalty groups in recent years and entered the names of some in a law-enforcement database of people thought to be terrorists or drug traffickers," according to the report.

The documents of the infiltration into these groups was released by the American Civil Liberties Union of Maryland. None of the 288 hours of surveillance logs over a 14-month period uncovered any illegal activity.

A Washington Post article earlier this month reports that laptops can be detained at the border without any suspicion of wrongdoing. "Federal agents may take a traveler's laptop computer or other electronic device to an off-site location for an unspecified period of time without any suspicion of wrongdoing," according to the article. Copies of the computers content can then be shared with other Federal agencies, as well as private entities for the purpose of "language translation, data decryption or other reasons."

Members of the press have also been swept up in the widening of intelligence measures. A recent New York Times article reports that the FBI admitted "it had improperly obtained the phone records of reporters for The New York Times and The Washington Post in the newspapers’ Indonesia bureaus in 2004." The report goes on to say:

An initial report by the inspector general last year found that the F.B.I. had violated its own policies in tens of thousands of cases by obtaining phone records in terrorism investigations through what are known as national security letters, without first getting needed approval or meeting other standards. In some cases, the F.B.I. used a whole new class of demands — emergency or “exigent” letters — that are not authorized by law.

"When things are done in secrecy, they lose legitimacy," says German. He adds that from his experience, the greatest loss for law enforcement agencies is the trust of the public. These instances are contributing to an environment of distrust which actually hurts productive investigations, he says.

German also notes that the public can counter some of these measures within their local city councils and state legislation. "Local agencies can enact stricter safeguards for the protection of their citizens' information and privacy," he says.

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