HOMELAND SECURITY INTELLIGENCE:
ITS RELEVANCE AND LIMITATIONS
=======================================================================
HEARING
before the
SUBCOMMITTEE ON INTELLIGENCE, INFORMATION
SHARING, AND TERRORISM RISK ASSESSMENT
of the
COMMITTEE ON HOMELAND SECURITY
HOUSE OF REPRESENTATIVES
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
__________
MARCH 18, 2009
__________
Serial No. 111-9
__________
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COMMITTEE ON HOMELAND SECURITY
Bennie G. Thompson, Mississippi, Chairman
Loretta Sanchez, California Peter T. King, New York
Jane Harman, California Lamar Smith, Texas
Peter A. DeFazio, Oregon Mark E. Souder, Indiana
Eleanor Holmes Norton, District of Daniel E. Lungren, California
Columbia Mike Rogers, Alabama
Zoe Lofgren, California Michael T. McCaul, Texas
Sheila Jackson Lee, Texas Charles W. Dent, Pennsylvania
Henry Cuellar, Texas Gus M. Bilirakis, Florida
Christopher P. Carney, Pennsylvania Paul C. Broun, Georgia
Yvette D. Clarke, New York Candice S. Miller, Michigan
Laura Richardson, California Pete Olson, Texas
Ann Kirkpatrick, Arizona Anh ``Joseph'' Cao, Louisiana
Ben Ray Lujan, New Mexico Steve Austria, Ohio
Bill Pascrell, Jr., New Jersey
Emanuel Cleaver, Missouri
Al Green, Texas
James A. Himes, Connecticut
Mary Jo Kilroy, Ohio
Eric J.J. Massa, New York
Dina Titus, Nevada
Vacancy
I. Lanier Avant, Staff Director
Rosaline Cohen, Chief Counsel
Michael Twinchek, Chief Clerk
Robert O'Connor, Minority Staff Director
------
SUBCOMMITTEE ON INTELLIGENCE, INFORMATION SHARING, AND TERRORISM RISK
ASSESSMENT
Jane Harman, California, Chair
Christopher P. Carney, Pennsylvania Michael T. McCaul, Texas
Yvette D. Clarke, New York Charles W. Dent, Pennsylvania
Ann Kirkpatrick, Arizona Paul C. Broun, Georgia
Al Green, Texas Mark E. Souder, Indiana
James A. Himes, Connecticut Peter T. King, New York (Ex
Vacancy Officio)
Bennie G. Thompson, Mississippi (Ex
Officio)
Thomas M. Finan, Staff Director
Brandon Declet, Counsel
Natalie Nixon, Deputy Chief Clerk
Deron McElroy, Minority Subcommittee Lead
C O N T E N T S
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Page
STATEMENTS
The Honorable Jane Harman, a Representative in Congress From the
State of California, and Chair, Subcommittee on Intelligence,
Information Sharing, and Terrorism Risk Assessment............. 1
The Honorable Michael T. McCaul, a Representative in Congress
From the State of Texas, and Ranking Member, Subcommittee on
Intelligence, Information Sharing, and Terrorism Risk
Assessment..................................................... 3
The Honorable Bennie G. Thompson, a Representative in Congress
From the State of Mississippi, and Chair, Committee on Homeland
Security....................................................... 4
WITNESSES
Panel I
Commander Joan T. McNamara, Los Angeles Police Department:
Oral Statement................................................. 6
Prepared Statement............................................. 8
Sheriff Douglas C. Gillespie, Las Vegas Metropolitan Police
Department:
Oral Statement................................................. 10
Prepared Statement............................................. 12
Mr. Gary L. Edwards, Chief Executive Officer, National Native
American Law Enforcement Association (NNALEA):
Oral Statement................................................. 17
Prepared Statement............................................. 19
Chief John W. Gaissert, Commerce, Georgia, Police Department:
Oral Statement................................................. 23
Prepared Statement............................................. 24
Panel II
Ms. Caroline Fredrickson, Director, Washington Legislative
Office, American Civil Liberties Union:
Oral Statement................................................. 39
Prepared Statement............................................. 40
Mr. Gregory T. Nojeim, Director, Project on Freedom, Security &
Technology, Center for Democracy & Technology:
Oral Statement................................................. 48
Prepared Statement............................................. 50
Ms. Kate Martin, Director, Center for National Security Studies:
Oral Statement................................................. 58
Prepared Statement............................................. 59
HOMELAND SECURITY INTELLIGENCE:
ITS RELEVANCE AND LIMITATIONS
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Wednesday, March 18, 2009
U.S. House of Representatives,
Committee on Homeland Security,
Subcommittee on Intelligence, Information Sharing, and
Terrorism Risk Assessment,
Washington, DC.
The subcommittee met, pursuant to call, at 10:05 a.m., in
Room 311, Cannon House Office Building, Hon. Jane Harman [Chair
of the subcommittee] presiding.
Present: Representatives Harman, Carney, Clarke, Green,
Thompson (ex-officio), McCaul, Dent, Broun, and Souder.
Ms. Harman. The subcommittee will come to order.
Good morning, everyone. We are meeting today to receive
testimony on homeland security intelligence, its relevance, and
its limitations.
Last summer, Shirwa Ahmed, a U.S. citizen, traveled from
his home in Minneapolis, Minnesota, to Somalia. In October, he
got into a truck filled with explosives, drove to the north of
that country, and blew himself up, killing as many as 30 other
people. According to the FBI, Mr. Ahmed is the first known U.S.
citizen to conduct a suicide bombing overseas. Several of his
friends from Minneapolis also left the country for Somalia last
summer. They are presently unaccounted for.
Last month, Ahmadullah Sais Niazi, a Tustin, California,
man of Afghani origin, appeared in Federal court to answer
charges that could send him to prison for decades. He failed to
mention when he applied for U.S. citizenship several years ago
that his brother-in-law, Amin al-Haq, is an al Qaeda terrorist,
Osama bin Ladin's bodyguard to be exact. The United Nation's
Security Council identified Mr. Niazi's brother-in-law as an al
Qaeda operative in March, 2001; and the U.S. Government
designated him as a specially designated global terrorist
shortly after 9/11.
At Mr. Niazi's bail hearing several weeks ago, an FBI agent
testified that the Bureau had recent recordings of Mr. Niazi
referring to funding Afghan Mujihadin and blowing up vacant
buildings. On those tapes, Mr. Niazi also reportedly describes
Osama bin Ladin as ``an angel''.
In December of last year, Fahim Ahmid was named as a co-
conspirator in a terrorism case in Atlanta that included plans
to attack military bases, oil storage facilities, and
refineries in the United States. Mr. Fahim is an alleged
ringleader of the Toronto 18, a group of Canadian youth that in
2005 had planned to attack Parliament buildings, detonate truck
bombs, and behead the Canadian Prime Minister.
According to the indictment, Mr. Fahim met in early 2005
with two American citizens who came to visit him to discuss
traveling to Pakistan to receive paramilitary training with
Lashkar-e-Taiba. We all remember that they were associated with
the recent Mumbai incidents. Among Lashkar-e-Taiba's exploits
was the massacre in Mumbai.
Imagine a Mumbai in Minneapolis or Tustin or Atlanta. In
each of these American hometowns, local law enforcement
officers are first preventers, who are sitting in front of us,
walk the beat every day as part of their traditional work of
preventing, investigating, and prosecuting crime, which brings
me to a simple question: While we want police and sheriffs'
officers Nation-wide to keep their community safe from
traditional bad guys, don't we want them also to know about
potential terrorists in their midst who mean us harm?
That is what homeland security intelligence is all about:
getting accurate, actionable, and timely information to the
officers in our hometowns so they know who and what to look for
in order to prevent the next 9/11.
If homeland security intelligence is done the right way--
let me stress this again, because we have a second panel that
is going to address what the ``right way'' is--if homeland
security intelligence is done the right way, countless lives
can be saved. If patrol officers know what everyday materials
terrorists might purchase to build IED, law enforcement can
meet with store owners and share this information and invite
tips that might warrant further information.
As we are going to hear in a moment from one of our
witnesses, if they know what ricin looks like--ricin, a very
deadly agent, as we all know, which was discovered recently in
Las Vegas--they can prevent a ricin attack.
If those same officers know what crimes terrorists are
committing to finance their activities, they can dig deeper
into otherwise routine investigations to see if they can come
across terrorism dots that need connecting.
If our first preventers know what kinds of homeland attacks
are most likely to occur in the next 2, 4, 5, 6 years,
moreover, they can train appropriately, deploy efficiently, and
prepare more thoroughly to meet anticipated threats.
But let us not fool ourselves. If homeland security
intelligence is done the wrong way, then what we will have is
what some who will testify on the second panel have called the
``thought police''; and we will be the worse for it.
The National Applications Office is a glaring example, in
my view, of a homeland security intelligence program gone
wrong. Before Congress fenced its funding, the NAO would have
tasked military satellites with providing imagery for homeland
security and law enforcement purposes. Although the NAO may
have been created with good intentions, the Department of
Homeland Security did not create a clear legal framework
outlining the office's power. Instead, it created what lawyers
like me call a slippery slope for potential abuses, and U.S.
law enforcement officials haven't requested this additional
ability. So I hope that Secretary Napolitano follows my advice
and the advice of some other Members here and closes that
office permanently.
My goal in this Congress is to get DHS, the FBI, and other
Homeland Security officers where they need to be to disrupt
terror plots and protect American lives. I am not new to the
arguments about homeland security intelligence, but I want this
hearing to focus attention on the debate. This is something I
think is very important. I wish we had done it in the last
Congress, but we are doing it as our first hearing now.
As the second panel will recognize in testimony today, we
need clear definitions about what we are doing, we need
transparency and a process to hold people accountable, and we
need to shut down what doesn't work and what we know can't
work. The rule of law must always apply.
So this hearing is a starting point for talking with some
of those who fight this fight every day--thank you for your
service--and are trying to do homeland intelligence right. It
is also our starting point for those who are concerned that we
are not doing things right enough and who have good ideas about
how to get on a better track.
I welcome all of our witnesses and look forward to our
testimony; and I now yield to the Ranking Member, Mr. McCaul,
for his opening statement.
Mr. McCaul. Thank you, Madam Chair, and let me say how much
I look forward to working with you on this subcommittee.
I remember meeting with the Minister of Security in Israel
who said, we defeat the terrorists through intelligence. Good
intelligence, that is probably the most important weapon we
have on this war on terror.
Let me also thank the witnesses for being here today. I
know you have busy schedules. Your work is essential to our
frontline homeland security efforts, and we welcome you to this
committee.
When I worked on the Joint Terrorism Task Force in my home
State of Texas, I saw first-hand how important information
sharing and collaboration is between all levels of government.
An effective homeland security intelligence capability requires
that key State, local, and tribal law enforcement at least be
integrated into the homeland security enterprise. They are our
Nation's first preventers, as the Chair already said. You are
the eyes and the ears, and your participation in the
intelligence process is critical to preventing further attacks.
To illustrate this point, shortly before 9/11, three of the
highjackers were separately intercepted for traffic offenses by
local law enforcement. In fact, Mohammad Atta, the leader of
the 9/11 operation who piloted one of the planes that crashed
into the Twin Towers, was stopped and fined in Florida for
driving without a valid driver's license. Atta did not pay the
fine, and a warrant was issued for his arrest. However, he was
let go several weeks later when he was once again stopped for
speeding, as the officer who stopped him was not aware of this
warrant.
Had an integrated intelligence enterprise with State and
local law enforcement participation existed prior to 9/11, we
may have had a chance at intercepting and detaining him before
the dreaded 9/11 attacks.
While this State and local picture is essential, homeland
security intelligence is incomplete without a robust Federal
picture as well. A large part of that picture is provided by
DHS. In fact, according to DHS, in fiscal year 2008, the Office
of Intelligence and Analysis responded to over 1,200 Federal
requests for information. This is compared to approximately
1,700 from State, local, and tribal sources. This illustrates
that, while I&A is a key resource for locals, it is also relied
upon by many Federal agencies as well.
A comprehensive intelligence picture, including border
data, immigration information, and transportation security
information, is essential to defending our homeland. By
properly adding the State, local, and tribal perspectives, DHS
can provide or help provide a truly comprehensive picture of
the threats that we face as a Nation.
I look forward to the testimony and the critical work of
this subcommittee. I look forward to building a stronger, more
robust Office of Intelligence and Analysis that serves all of
its partners that is consistent with our constitutional rights.
I thank you, Madam Chair.
Ms. Harman. Now I will recognize the Chairman of the full
committee and welcome him to our subcommittee hearing; Mr.
Thompson, for opening remarks.
Mr. Thompson. Thank you very much, Madam Chair; and let me
also welcome our witnesses in the first panel here today.
Also, Madam Chair, I am pleased that we are getting back to
basics by addressing what homeland security intelligence is and
what DHS's mission in developing it should be.
In many ways, DHS's Office of Intelligence and Analysis is
at a crossroads. That is a good thing, because a crossroads is
a place where new directions can be taken, and that is exactly
what is needed at I&A. Secretary Napolitano has promised that
DHS going forward would partner better with State, local,
tribal, and private sector stakeholders. For its part, I&A,
therefore, should stop with its typical top-down approach to
intelligence and start putting State, local, tribal, and
private sector needs first. Refocusing I&A as a national fusion
center with strict privacy and civil liberties protections in
place would be a step in the right direction.
Put simply, Madam Chair, I&A must make it a priority to
analyze relevant State, local, tribal, and private sector
information and compare it with national intelligence. In doing
so, it would be uniquely able to connect the dots and create
situational awareness of both near-term and long-term threats
to the homeland.
Constitutional safeguards, in turn, must be the starting,
middle, and end points of this effort. Without them, it would
be a worrisome and wasted one.
I look forward to the witnesses' testimony, Madam Chair, on
all of these points; and welcome, again, to all of the
witnesses.
Ms. Harman. I thank the Chairman of the full committee and
fully endorse his comments about a new role and new focus for
I&A.
I just want our witnesses to know that some of us on this
committee have pushed as hard as we can to get Secretary
Napolitano to name someone from State or local law enforcement
as the head of I&A. The Chairman just said ``absolutely.'' I
believe she is going to name a deputy from State or local law
enforcement, but I want to say, on the record, that I am
disappointed. I think it is a huge missed opportunity to send a
new signal about the function of intelligence at the Department
of Homeland Security.
Our Members are reminded that, under the committee rules,
opening statements may be submitted for the record; and I now
welcome our witnesses this morning.
Our first witness, from my hometown, is Commander Joan
McNamara, a 27-year veteran of the LAPD, where she presently
serves as Assistant Commanding Officer of the Counter Terrorism
and Criminal Intelligence Bureau. Commander McNamara developed
both the threat stat analytical model and the system of
suspicious activity reporting that I believe holds tremendous
promise, if implemented correctly, for homeland security
intelligence. Her SAR initiative is being adopted Nation-wide
to identify and share counterterrorism information related with
State, local, and tribal Federal partners.
Commander McNamara has had numerous other accomplishments
with the LAPD as commanding officer of the Los Angeles harbor
area. She spearheaded unique efforts to combat crime in the
Wilmington Ghost Town area, a neighborhood that has been
plagued with violent crime, gang, and narcotics activity for 30
years. During her leadership of the Newton Patrol Division, she
likewise oversaw an unprecedented reduction in crime.
Commander McNamara has also initiated several highly-
successful community-based youth programs in Los Angeles.
Our second witness, Sheriff Doug Gillespie, is a 28-year
veteran of the Las Vegas Metropolitan Police Department. He
serves as the chairman of the Major Cities Chiefs Association's
Homeland Security Committee and as vice president of the Major
County Sheriffs Association. During his tenure, Sheriff
Gillespie has placed considerable emphasis on addressing the
terrorist threat at the local level.
His department includes a Homeland Security Division that
includes a newly-created Homeland Security Bureau, along with
an existing Vice and Narcotics Bureau.
Sheriff Gillespie has likewise committed additional
personnel to the Southern Nevada Task Force. He has also
advanced a newly-created counterterroism section within his
department in coordination with his existing criminal
intelligence technical and surveillance and special
investigations sections. Sheriff Gillespie has also developed
an all-hazard ARMOR response unit and emergency management
section to more accurately identify, prevent, and respond to
terror and other threats.
Our third witness, Gary Edwards, is the Chief Executive
Officer of the National Native American Law Enforcement
Association, a nonprofit public service association which
advocates for Native American law enforcement professionals
Nation-wide. Mr. Edwards serves on a number of national Federal
advisory committees and task forces, including the Interagency
Threat Assessment Coordination Group, the ITACG, Advisory
Council; and the National Center for State and local Law
Enforcement Training Advisory Committee, SALTAC; and the
regional Four Corners Homeland Security Commission.
Mr. Edwards is currently a recently retired deputy
assistant director of the United States Secret Service, where
he served for 28 years. During his tenure with the Secret
Service, Mr. Edwards worked in the Office of Human Resources
and Training, the Office of Inspection, and the Office of
Government and Public Affairs. His career was replete with
service and merit awards and honors.
Our next witness, John Gaissert, is Chief of Police for the
city of Commerce, Georgia.
Mr. Broun, I will let you do the honors to introduce him.
Mr. Broun. Thank you, Chair Harman; and thank you, Ranking
Member McCaul.
Today, I have the honor of introducing my friend, the Chief
of Police in Commerce, Georgia, Chief Gaissert. Chief Gaissert
has a 35-year career in the military, law enforcement, as well
as corporate experience. During his career, he has served with
distinction in uniform patrol, special operations, and criminal
investigation units. During the 1996 Centennial Olympic Games
in Georgia, Chief Gaissert performed the demanding task of
operations' officer for the Athens Clark County Police
Department and offered the operational plan supporting the
events.
Chief Gaissert obtained level 5 certification in homeland
security from the American College of Forensic Examiners. He
serves as Department of Homeland Security liaison for the
Sheriff of Jackson County, Georgia, and chairs the County
Threats Assessment Committee.
Chief Gaissert completed a law enforcement exchange program
in counterterrorism with Israeli National Police and was
awarded executive certification in counterterrorism from ICT,
the Lauder School of Government in Israel.
Chief Gaissert was recalled to active duty during the
Persian Gulf War and retired from the U.S. Navy at the rank of
commander.
I have the pleasure of introducing my good friend, Chief
Gaissert.
Ms. Harman. Without objection, the witnesses' full
statements will be inserted in the record.
I now ask Commander McNamara to summarize her statement in
5 minutes, and we will try to be quite vigilant about the
clock--I assume you can see it--because that will give us more
time for interaction with Members.
As you know, we have a second panel. Let me urge that you,
in particular, stick around for the second panel, because a
number of our witnesses want to address your initiatives.
STATEMENT OF COMMANDER JOAN T. McNAMARA, LOS ANGELES POLICE
DEPARTMENT
Ms. McNamara. Madam Chair, Ranking Member McCaul, Members
of the subcommittee, thank you for this opportunity to appear
before you today.
I have been asked to discuss efforts by the LAPD to gather,
document, review, analyze, and share terrorism-related
Suspicious Activity Reports, or SARs, and to describe to you
how these efforts relate to the national SAR Initiative.
In my written testimony, I have provided the subcommittee
background on both the Nation-wide SAR Initiative and the LAPD
SAR program. Instead of restating that today, I respectfully
request that my prepared statement be accepted into the record.
Ms. Harman. Without objection, all of your prepared
statements are accepted into the record.
Ms. McNamara. Thank you, Madam Chair.
In my limited time this morning, I would like to address
two questions that I believe are fundamental to today's
hearing: First, does SAR's process directly enhance the ability
of local police to protect our communities from violent crime,
including terrorism? Second, can the SAR process be carried out
in a manner that protects privacy, civil liberties, and the
civil rights of all Americans?
I believe the answer to both of these questions are a
resounding yes.
Protecting our communities. While our program is relatively
new, we are already seeing results. The LAPD SARs statistics
are as follows: We have 1,374 SARs in process. Of those, we
have made four arrests. Fifty-one of those have been sent over
to the Joint Terrorism Task Force for follow-up; and, in my
opinion, while the number of investigation and arrests are
important, they are almost secondary to a newfound ability to
connect events that in the past would have appeared unrelated.
For example, prior to SAR, when a suspicious package call
was received by the LAPD, our bomb squad would respond. If the
package was determined to be nonexplosive device, the bomb
squad would then call clear, and then no further analysis was
done. Today, the bomb squad also completes a Suspicious
Activity Report, and through the process we are now able to map
all bomb calls in the city of Los Angeles. This paints an
amazing picture in real time and over time.
Other cities are implementing the SAR process and are
seeing similar results.
Let me address the second part, the privacy and civil
rights.
The second question I would like to address is whether the
SAR process can be carried out in a manner that protects
privacy, civil liberties, and civil rights. As I have stated
previously, I believe the answer to this question is ``yes'' as
well. In almost 8 years following the 9/11 attacks, we have
sought to engage frontline law enforcement officers in the
event to prevent future terrorist attacks. Until now,
information and training provided to these frontline officers
was superficial and was not tailored in advance to the changing
roles from first responders to first preventers. Nor was there
a reporting mechanism in place.
The SAR Initiative is important because now, for the first
time, we are able to train our frontline personnel regarding
behaviors associated with terrorism-related crime and providing
them the information they need to distinguish between behaviors
that are reasonably associated with criminal activity and those
that are not.
Let me be very clear today: Not every person wearing a
trench coat is a robber, not every person loitering on a corner
is a drug dealer, and not every person taking a picture of a
monument today is a terrorist.
As a law enforcement executive, I do not want my officers
involved with confrontational interactions with innocent people
engaged in innocent activities. I do not want to fill them or
fill my systems with information regarding innocent people
involved in innocent activities. I do not want my officers
making stops based on race, their ethnicity, or religious
beliefs.
My officers, investigators, and analysts have been trained
on behaviors and indicators associated with criminal activity.
I have put into place clear policies regarding interactions and
how they are to be handled and how information about those
contacts and calls for service should be handled.
It means putting in place privacy and civil liberty
protections. It means reminding our officers that it is
inappropriate to collect information regarding people engaged
in constitutionally protected activities when there is no nexus
to criminal activity. Finally, it means holding people
accountable when they violate these rights and policies.
This is what LAPD SAR process is all about. This is what
the Nation-wide SAR process initiative seeks to place across
the Nation. This is what we need to do if we are going to
reduce the number of inappropriate police-citizen contacts.
There are some who will tell you today that we don't need a
SAR process. I will tell you they are missing the point. The
SAR process isn't about asking officers to collect a new type
of information. It is about information that they have already
gathered in the course of their day-to-day business. But the
process ensures that we carry out their first preventers'
response and abilities in a manner that protects privacy, civil
liberties, and rights.
Ms. Harman. Could you summarize at this point?
Ms. McNamara. In closing, the Nation-wide SARS initiative
has brought together Federal, State, local, and tribal
officials as well as representatives from the privacy and civil
liberties communities in a way that I have not seen in my 27
years. While the effort is still young, those of us involved
are convinced, through it we will be better able to protect our
communities from crime, including terrorism, and safeguard the
privacy, civil liberty, civil rights of people we are sworn to
protect and serve.
[The statement of Ms. McNamara follows:]
Prepared Statement of Joan T. McNamara
March 18, 2009
Madam Chair and Members of the committee. Thank you for the
opportunity to be here with you, to describe the tremendous progress
achieved by local law enforcement toward the integration of counter-
terrorism efforts into the day-to-day work by local law enforcement to
protect our communities from crime and violence.
The role of local police in counter-terrorism efforts has become
more clearly defined over the past 8 years. Front-line officers, with
their intimate knowledge of their communities and their keen
observational skills, have traditionally been thought of as first
responders.
That perception changed with the 9/11 terrorist attacks.
Policymakers, law enforcement executives and others increasingly called
for police to be redefined as ``first preventers'' of terrorism and the
emphasis at the local level shifted from response to prevention. Local
police were now considered an integral part of efforts to protect the
Nation from a variety of threats--including that posed by domestic and
international terrorist. Local law enforcement are now considered an
integral part of our ``national security'' effort. In the years
following the 9/11 attacks, enhanced collaboration and revolutionary
new sharing protocols had been forged with Federal partners to increase
knowledge, awareness, and information flow. Still, a critical gap
existed in the information-sharing cycle.
Tasking local law enforcement with the policing of traditional
crime and the prevention of terror attacks in their local jurisdictions
constituted a dramatic paradigm shift, both for the Federal Government
and for the local and State agencies themselves. If this shift in
established thought and practice were to be successful, it would
require law enforcement agencies Nation-wide to adopt universal
guidelines for effective communication with Federal partners and
information-sharing. This was far easier said than done. There was no
system in place at any level to facilitate this crucial and necessary
exchange.
The Suspicious Activity Reporting (SAR) program was the Los Angeles
Police Department's answer to this problem and now serves as a national
model for the American law enforcement community as it is being
institutionalized through the Nation-wide SAR Initiative (NSI). The
underlying premise of SARs is very simple: A police officer's
observation and reporting of just one of these events could be the
vital ``nugget'' of information needed to focus attention in the right
place, or to connect seemingly unrelated dots and predict or prevent a
terrorist act. The SAR program takes the emphasis off of the racial or
ethnic characteristics of individuals and places it on detecting
behaviors and activities with potential links to terrorism-related
criminal activity. Coupled with extensive training this approach
ensures that citizens' civil and privacy rights are protected.
The foundation to the SAR program is built upon behaviors and
activities, which have been historically linked to pre-operational
planning and preparation for terrorist attacks. They include actions
such as: acquiring illicit explosive material; taking measurements or
drawing diagrams; abandoning suspicious packages or vehicles; and
testing security measures.
This is the first program in the United States to create a national
standard for terrorism-related Modus Operandi (MO) codes. By creating
and assigning numbers, or codes, to the terrorism-related behaviors,
terrorist activities can be tracked by date, time, and location, just
as other crimes are currently tracked. With the advent of coding, an
agency's records management system has been transformed into a valuable
and viable terrorism prevention tool.
When the preliminary information contained on a SAR report is
analyzed using these codes, the system can be utilized to map, chart,
and graph suspicious behaviors, and allows counter-terrorism personnel
to run specific queries based on a particular behavior, location, or
time frame in order to identify emerging patterns. The eventuality of a
Nation-wide application of this behavioral coding and uniform reporting
and tracking method will provide the revolutionary basis for linking
behaviors and indicators and revealing emerging patterns for terrorist
throughout the United States. These standardized codes also enable
local agencies across the country to share information in a systematic
and uniform fashion that enables trends, spikes, and patterns to be
identified and placed in a national context. The SAR methodology has
the potential to revolutionize how American law enforcement reveals the
emerging patterns of terrorism-related indicators and behaviors. In
addition, these SARs provide police with the capability to search
through previously reported suspicious activity and identify important
links to behavior that might otherwise be overlooked. This ability to
query is crucial to law enforcement's ability to successfully analyze
and synthesize information and to produce actionable intelligence
toward prevention.
Fusing the SARs-related information with an ``all crimes'' picture
provides decisionmakers with: the statistical support they need to
allocate resources and police officers in a more strategic way; closes
gaps in training, investigation, enforcement and protection; and
reveals potential patterns that extend beyond the region to the rest of
the country and, potentially, overseas. Once information is shared
vertically and horizontally throughout the region and Nation,
activities previously viewed as having happened in isolation can be
placed in a national context.
privacy and civil liberties
In the process of creating the SARs program, the Los Angeles Police
Department has had the privilege of working closely with privacy and
civil liberty groups on both the local and the national initiatives. We
have collaborated to create a comprehensive and transparent process
that strikes an important balance between the safety of our communities
and the proper constitutional protections. The concerns that the
Nation-wide SAR Initiative will lead to increased police interactions
with individuals involved in innocent First Amendment-protected
behaviors are diminished with the transparency of the program. Closer
evaluation of the SAR process highlights layers of scrutiny which
includes vetting, auditing, and the un-founding of SAR reports that do
not meet set standards. Training provided to front-line and analytic
personnel is designed to enable them to distinguish between behaviors
associated with criminal activity and those behaviors that are innocent
or constitutionally protected. As the SAR process gains momentum, we
remain committed to collaboration with advocacy groups for the accurate
development and expansion of the Nation-wide SAR Initiative.
role of the department of homeland security
As the National SARs Initiative moves forward, it should be noted
that the successful institutionalization of the National SAR Initiative
has the potential to significantly enhance the Department of Homeland
Security's ability to work with State and local partners to identify
and mitigate a range of emerging threats to the homeland. But the DHS
Office of Intelligence & Analysis, which serves as the analytic hub for
all information and intelligence generated by the DHS work force,
currently has no mechanism for gathering and analyzing SARs generated
by individual DHS components. It also lacks a mechanism to blend those
SARs with others generated by Federal, State, and local entities.
sars and the national landscape
The SARs program is representative of the tremendous strides that
local law enforcement has made in the area of counter-terrorism. The
SARs program enables police to paint their own rich picture of what is
happening ``on the ground'' in their communities in relation to
terrorism, rather than relying solely on their Federal partners for
information. This goes a long way toward closing what were previously
wide gaps in information sharing. The program also makes local law
enforcement agencies stronger partners in the national effort to
prevent terrorism and other crimes on U.S. soil. It essentially flips
the age-old paradigm in which information is pushed from the Federal to
the local level with very little push the other way. Now local police
departments are valuable players in the information-sharing process and
are increasingly relied upon to provide their Federal partners with an
accurate picture of what is happening at the local level.
Fusion centers also stand to benefit from the SARs program. Reports
about suspicious activity that contain comprehensive data and are
provided by a trained work force will result in more informed
analytical products, valued dissemination, and more stringent
investigative requirements.
Leveraged properly, the SARs program stands to become one of the
essential threads that ensure the seamless information flow that is
critical to cooperation on the national and international levels. In
order to effectively counter a threat such as terrorism, we must first
know where these activities are taking place and with what frequency.
Law enforcement must have situational awareness that is enabled by
standardized processes with strong civil liberties protections that are
shared by most, if not all, across the Nation. The time has come for
local police to contribute to this process in a significant way. The
SARs program is one of the contributions that stands to make that
vision a reality.
Madam Chairwoman and Members of the subcommittee, thank you for
inviting me to speak today on this important subject. I am happy to
answer any questions you may have.
Ms. Harman. The Chair now recognizes Sheriff Gillespie for
5 minutes.
STATEMENT OF SHERIFF DOUGLAS C. GILLESPIE, LAS VEGAS
METROPOLITAN POLICE DEPARTMENT
Sheriff Gillespie. I hear you, Chair Harman, and sheriffs
aren't used to being limited in our time, but I will do my best
to stay within it.
Ms. Harman. That applies up here, too.
Sheriff Gillespie. Good morning, and I want to thank you
all for giving me this opportunity, Chair Harman, Ranking
Member McCaul, and distinguished Members of the subcommittee. I
represent Major City Chiefs as well as Major County Sheriffs
this morning in my summary of my comments.
We are committed to intelligence-led policing. The analysis
of crime data, coupled with execution of innovative policing
tactics, is the cornerstone of our efforts to successfully
fight crime. The same thing is true in our efforts to combat
terrorism in our homeland. Suspicious activity reporting is
long overdue, and I think Commander McNamara gave a very good
overview of that.
We must apply all crime policies to our fusion centers. To
establish robust information and intelligence sharing
capabilities in the Las Vegas area, we established a Southern
Nevada Counterterrorism Center, an all-crimes, all-hazards,
fusion center.
The committee should mandate all the provisions of LEAP.
For the chiefs and sheriffs, we wish to formally commend the
committee for your report, LEAP, Law Enforcement Assistance and
Partnerships. We endorse all seven of the initiatives
articulated in the report published by the House Committee on
Homeland Security, and we urge Congress to provide
appropriations to carry out those critical law enforcement
programs.
ITACG is a critical element in the national framework. We
cannot and should not rely on the Federal Government to find
and implement the solutions unilaterally. State, local, and
tribal government need to help carry this effort forward.
Major City Chiefs' Intelligence Commander Group plays a
vital role. The purpose of the Intelligence Commanders Group is
to strengthen and coordinate the intelligence capabilities and
operations of law enforcement agencies and major metropolitan
areas. NCTC must establish a stronger working relationship with
law enforcement agencies. Foreign liaison is essential.
When terrorists attacked the city of Mumbai on November 26,
2008, cities across America watched as armed gunmen created
chaos and carnage in a metropolitan city of 15 million. Every
sheriff and police chief in America asked him or herself, could
this be my town? Thankfully, the Indian government was
extraordinarily forthcoming with the details, and the U.S. news
media was providing near constant coverage, so information was
easily and quickly obtained. Had this not been the case, State,
local, and tribal law enforcement, exactly those agencies tasks
responding to the attacks, would not be able to prepare for
them.
We understand that the information will ultimately be
provided by the Federal Government. That is not the issue. The
problem lies in the timeliness of the distribution and the
relevance of the content. Would an FBI agent or DHS analyst
know what questions a street cop or a hotel security chief in
Las Vegas would ask?
Fighting crime is a priority, and fusion centers help.
Sustainment funding is needed for fusion centers. It is in this
area that we have seen the greatest improvement. DHS has
performed admirably in ensuring that funding was available to
train incumbent analysts as well as allocate moneys so that
agencies without sufficient analytical capability could
contract, especially trained personnel.
Private security personnel are critical. In the Las Vegas
area, our highly trained cadre of security professionals more
than double the number of sworn police officers employed by my
agency. Furthermore, they are in the best position to detect
suspicious activity, identify the behavior consistent with pre-
operational activities, and report or interdict the activity.
Security clearances continue to be a problem. DHS must
restore a Law Enforcement Terrorism Prevention Program, LETPP.
We need consistency in funding. DHS, I&A should establish an
advisory board to include Major County Sheriffs and Major City
Chiefs.
Madam Chair and Ranking Member McCaul, those of us on the
front lines look to you for leadership and support for our
mission; and thank you for allowing me to speak this morning.
Ms. Harman. Right on the button. Thank you, Sheriff
Gillespie. You are a timely man.
I also want to note, consistent with your testimony, that
this committee authored and it passed the House on the consent
calendar legislation to set up DHS as a petri dish to
declassify information that law enforcement needs to know what
to look for and what to do that will help with this problem
that you have just identified of not enough security
clearances.
[The statement of Sheriff Gillespie follows:]
Prepared Statement of Douglas C. Gillespie
March 18, 2009
Chairwoman Harman, Ranking Member McCaul, and distinguished Members
of the subcommittee: Today I speak for both the major cities chiefs of
police, representing the 56 largest cities in the Nation, as well as
the major county sheriffs, representing the top 100 counties. We
protect the majority of the American people and have authority in every
major urban area. To exemplify the coordination between chiefs and
sheriffs, I serve as both chair of the homeland security committee for
major cities, and I am vice president of the major county sheriffs.
I am the sheriff of the largest law enforcement agency in the State
of Nevada: the Las Vegas Metropolitan Police Department. Because Las
Vegas is home to many of the world's largest hotels, and a major center
of international tourism and entertainment, my jurisdiction is
continuously mentioned by our enemy as a potential target.
I will begin my remarks by quoting from a report prepared by the
committee, LEAP: A Law Enforcement Assistance and Partnership Strategy.
This document challenged Federal agencies to leverage the vast
resources of our Nation's ``first preventers'' in the Global War on
Terrorism--State, local, and Tribal law enforcement. As the authors
correctly concluded in 2006, ``Unfortunately, 5 years after 9/11,
critical failures of imagination continue to leave these `first
preventers' as a largely untapped resource in the war on terror.''\1\
Speaking for chiefs and sheriffs across the Nation, I can report today
that while progress has been realized in the more recent years, we have
not reached the goals established by the committee.
---------------------------------------------------------------------------
\1\ LEAP--Law Enforcement Assistance and Partnership Strategy:
Improving Information Sharing Between the Intelligence Community and
State, Local, and Tribal Law Enforcement. (2006) Prepared by the
Democratic Staff of the Committee on Homeland Security, U.S. House of
Representatives. (p.1)
---------------------------------------------------------------------------
This should not be construed as an indictment on the Department of
Homeland Security (DHS), the Federal Bureau of Investigation (FBI), or
any other agency included in the intelligence community. Indeed, the
progress made by the intelligence community with regard to information
sharing has been laudable. DHS has led the charge by incorporating
State, local, and tribal law enforcement into the national effort to
protect our homeland. The Department's success in organizing and
funding a robust network of 70 Fusion Centers in 3 short years is
nothing short of remarkable. The FBI has achieved dramatic improvement
in sharing information by enhancing the Joint Terrorism Task Force
(JTTF) program, and by sponsoring security clearances for senior police
officials so that they can receive the information from their employees
assigned to these JTTF's. The achievements notwithstanding, there is
still significant room for improvement as State, local, and tribal law
enforcement strives to be full partners with the Federal Government in
the fight to keep America safe.
We are committed to Intelligence-Led Policing.
The Major Cities Chiefs Association endorses, and the Las Vegas
Metropolitan Police Department employs, the Intelligence-Led Policing
philosophy. The analysis of crime data, coupled with the execution of
innovative policing tactics, is the cornerstone of our efforts to
successfully fight crime. But before analysis can be effectively
accomplished, information and crime data must be collected. The same is
true in our efforts to combat terrorism in our homeland. Before
analysts from our Fusion Centers and intelligence community can
synthesize and analyze data, the data must be collected from the
source. The 800,000 State, local, and tribal law enforcement officers
are better positioned than the Federal Government to collect this
information at the State, local, and tribal level.
Suspicious Activity Reporting (SAR) is long overdue.
Las Vegas has joined with Los Angeles and other agencies across the
Nation to establish a process for recording, screening and reporting
suspicious activity. We are pleased that the Federal Government came to
the Major Cities Chiefs to establish the SAR effort, and today the
committee is hearing from Commander Joan McNamara who pioneered SAR for
the LAPD and the Major Cities Chiefs. Las Vegas is a partner with LAPD
in SAR and we are moving forward with sensitivity to privacy concerns
and appropriate safeguards. Las Vegas will be adopting the privacy and
civil liberties policies that have been developed by the DOJ in
collaboration with the American Civil Liberties Union, to ensure
maximum accountability, transparency, protection of civil liberties.
We must apply All-Crimes policy to Fusion Centers.
To establish robust information and intelligence-sharing
capabilities in the Las Vegas area, I established the Southern Nevada
Counter Terrorism Center (SNCTC) as an all-crimes and all-hazards
fusion center. The SNCTC's core mission is to provide tactical and
strategic analytic support to regional stakeholders. The tactical
analysis section provides timely and actionable information to command
staff and field personnel. The strategic analysis section complements
tactical operations by developing analytical products. Gang, counter
terrorism, narcotics, and criminal analysts produce a variety of issue-
specific products on issues facing our region.
The SNCTC has established strong relationships with local industry,
the public health community, and emergency management agencies.
Awareness training is provided to major employers on how to identify
and report suspicious behavior.
Co-located with the analysts, the SNCTC houses a 24/7 watch
capability, investigators that handle tips, leads, and suspicious
activity reports, critical infrastructure protection group, and the All
Hazards Regional Multi Agency Operations and Response (ARMOR) Detail.
The team consists of local, county, State, and Federal experts in
chemical, biological, radiological, nuclear, and explosive (CBRNE)
response, detection, and identification.
At the SNCTC, we have developed a privacy policy that is founded on
28 CFR part 23, and with the guidance provided by the DOJ Privacy
Policy Development Guide, LEIU Intelligence File Guidelines, and the
Global Justice Information Sharing Initiative (Global). We are open
with our privacy policies, and welcome the review and input from our
local civil liberties community.
The Las Vegas ricin case as a case study.
The discovery of ricin in a Las Vegas area hotel last year was a
timely demonstration of why local agencies must be able to prepare for,
prevent, and respond before any Federal agency publishes a report. An
individual was suffering from respiratory distress, and because of
evidence at the scene, it was suspected that he had been exposed to
ricin. It would later be determined that he had in fact manufactured
ricin from castor beans.
Throughout the incident and the subsequent investigation, the SNCTC
provided officers on scene with critical information on ricin,
background on potential suspects, as well as intelligence on known
potential terrorist threats involving ricin. SNCTC provided situational
awareness to the hotel and casino industry and area hotels, alerting
them on what to do if anyone else displayed signs of ricin poisoning.
The Committee should mandate all the provisions of LEAP.
For the chiefs and sheriffs, we wish to formally commend the
committee for your report, Law Enforcement Assistance and Partnerships
(LEAP). We endorse all seven of the initiatives articulated in the
report published by the House Committee on Homeland Security and we
urge Congress to provide appropriations to carry out those critical law
enforcement programs. Until your report is fully adopted, our
intelligence efforts will have limited success.
All too often, the information we have received from Federal
agencies is less timely and less helpful than what is available from
CNN. For years, we have waited for a system to provide timely threat
intelligence, especially classified reports that contain information
that might help law enforcement to protect particular targets and
sectors. While progress has been made, much more needs to be done. On
behalf of the chiefs and sheriffs, I offer these recommendations:
ITACG is a critical element in the national framework.
We are grateful to Chair Jane Harman and those who supported her
efforts to establish this ITACG. A key recommendation in the LEAP
report is the Vertical Intelligence Terrorism Analysis Link (VITAL).
The core mission of VITAL is to improve the information sharing between
the intelligence community and the front line ``first preventers.'' We
cannot, and should not, rely on the Federal Government to find and
implement the solutions unilaterally--State, local, and tribal
governments need to help carry this effort forward. All we ask is the
opportunity to be full partners in these efforts.
But ITACG has been slow to realize its full potential and carry out
the intent of this committee. For example, ITACG is not allowed to
share intelligence with the local agencies that it is intended to
serve. Rather, ITACG is limited to editing intelligence and returning
those products to originating agencies where the information may or may
not reach State and local law enforcement agencies. The NCTC must work
with DHS and the FBI work to adopt a process that ensures this vital
information will get to the front lines. I believe that the creation of
the ITACG is a giant step in solving this problem. I believe in the
ITACG program so strongly, that I have assigned a Detective Sergeant to
the National Counterterrorism Center in Washington, DC for a 1-year
tour. This was not an easy decision, as staffing levels in Las Vegas
are at a critical level, and we are working hard in these difficult
economic times to increase our staffing.
Better intelligence products are needed and direct connectivity with
major agencies.
We commend Director Mike Leiter and the staff at NCTC for a new
report termed ``Roll Call,'' a new unclassified report for law
enforcement agencies. Other excellent classified NCTC resources are
available to some fusion centers but not accessible by operating
intelligence units. NCTC has pledged to work with major agencies to
allow access through DHS and the FBI.
Major Cities Chiefs' Intelligence Commanders Group plays a vital role.
As chairman of the homeland security committee, it has been my
pleasure to form an unprecedented alliance of the Nation's most
valuable intelligence resources--local police and sheriffs'
intelligence enterprise across the Nation. We ask for your support to
build an integrated national intelligence capability to counter
terrorism and protect our communities from crime. The purpose of the
Intelligence Commanders Group is to strengthen and coordinate the
intelligence capabilities and operations of law enforcement agencies in
major metropolitan areas. To date this vital network of intelligence
resources has been ignored and not funded by Federal agencies and we
ask the committee to support this effort so that your objectives may be
realized.
NCTC must establish a stronger working relationship with law
enforcement agencies.
I have been to NCTC and visited with the excellent staff who stand
ready to support law enforcement. But there has been no NCTC training
and this invaluable resource is not accessible by most local law
enforcement agencies. We ask that NCTC expand and empower its outreach
components to include training access and use of intelligence systems
and databases. Liaison personnel and desk officers are needed to
maintain a flow of current intelligence to State and local agencies.
Foreign Liaison is Essential.
I would like to discuss one of the programs recommended in the LEAP
document: the Foreign Liaison Officers Against Terrorism (FLOAT)
program. There is exceptional value in this program and it warrants
further dialog and close consideration. The Major Cities Chiefs
Association recognizes the legal authority of the FBI to engage in the
investigation of crimes against U.S. citizens abroad. But the needs of
State, local, and tribal law enforcement are different than those of
the FBI. We have little need to participate in the investigation and
ultimate prosecution of acts of terrorism occurring in foreign lands.
But, we have a tremendous need to quickly learn about acts of
terrorism, so that we can translate those lessons to better prepare our
street-level first responders for similar attacks. As my good friend
and colleague, Chief Bill Bratton, said, ``The aim is not to sever or
supplant information from Homeland Security and the Department of
Justice, but to have a multiplicity of channels of information that
will allow chiefs of police to make decisions . . . ''.\2\
---------------------------------------------------------------------------
\2\ Robert Block, ``Miffed at Washington, Police Develop Own Terror
Plans,'' Wall Street Journal (Oct. 10, 2005) at B1, available at
https://online.wsj.com/article/SB112889637083663974.html?.
---------------------------------------------------------------------------
The July 7 London subway attacks and the Madrid train bombing best
illustrate the fact that the enemy may already be within our borders,
and State, local, and tribal law enforcement stand ready to help in the
fight against these terrorists. More recently, when terrorists attacked
the city of Mumbai on November 26, 2007, cities across America watched
as armed gunman created chaos and carnage in a metropolitan city of 15
million. Every major city police chief in America asked him or herself:
``Could this happen in my city?'' and ``How would we react to a similar
attack?'' Thankfully, the Indian government was extraordinarily
forthcoming with details, and U.S. news media was providing near-
constant coverage, so information was easily and quickly obtained. Had
this not been the case, State, local, and tribal law enforcement
(exactly those agencies tasked with responding to the attacks) would
not be able to prepare for them.
We understand that the information will ultimately be provided by
the Federal Government. That is not the issue. The problems lie in the
timeliness of distribution, and the relevance of the content. Would an
FBI agent or DHS analyst know what questions a street cop or hotel
security chief in Las Vegas would ask?
We urge the distinguished members of this subcommittee to
objectively consider the advantage that State, local, and tribal law
enforcement would realize--as well as our private sector partners--by
quickly collecting and reporting the facts surrounding an overseas
terror attack. The decisions made by public safety executives and their
private sector counterparts in response to terror attacks overseas can
cost taxpayers and private industry millions of dollars. The Federal
Government should not interfere with, indeed they should facilitate,
the efforts to collect and transmit the most current and most accurate
information on which these leaders will base these decisions.
Violent crime and drug trafficking remain our top priority.
I would like to address the threat of violent crime and our
borders--particularly our southern border--and how intelligence can be
applied to address violent crime. While Nevada does not have a common
border with Mexico, we have seen the well-publicized violence spread to
our community. In October of last year, a 3-year-old boy was violently
kidnapped from his home in Las Vegas. It was quickly determined by our
investigators that he had been taken and was being held hostage by
members of a Mexican drug cartel for a drug debt owed by his
grandfather.
What we found during the investigation was that if properly
applied, the information gathering capability of the Fusion Centers
could be a true investigative asset. What we also found was that local
law enforcement could work with the FBI, DEA, and other Federal
agencies without degenerating into ``turf battles'' over jurisdiction.
This case has a happy ending, the young boy was recovered unharmed in
Las Vegas--abandoned on a suburban street by his abductors when media
and public attention became too great of a risk for the kidnappers.
We know that hostage taking for revenge, ransom, and profit is
widespread in South and Central America, and we can reasonably assume
that this crime trend may spread north into the United States as the
conditions in Mexico continue to deteriorate. As a crime that directly
affects State, local, and tribal law enforcement, yet with a clear
Federal nexus, we recommend that discussions begin in earnest to
consider the options available to Federal, State, local, and tribal law
enforcement.
Sustainment funding is needed for Fusion Centers.
In the LEAP document, it was recommended that State and Local
Fusion Centers receive funding for the operational costs, as well as
the costs associated with contracting and training intelligence
analysts. It is in this area that we have seen the greatest
improvement. DHS has performed admirably in ensuring that funding was
available to train incumbent analysts, as well as allocate moneys so
that agencies without sufficient analytical capability could contract
specially trained personnel. Thanks to the efforts of Chair Harman and
distinguished Members of this subcommittee, DHS was moved to eliminate
all time restrictions related to the funding of analytical personnel
assigned to Fusion Centers. As the committee has recommended, Congress
should establish a dedicated grant program for this purpose, the Fusion
and Law Enforcement Education and Training (FLEET). We further propose
an advisory panel for DHS to identify how to further strengthen UASI
and LETPP funding for intelligence and fusion centers.
Private security personnel are critical.
Included in the VITAL program was a recommendation to ``develop
clear policies and procedures for converting highly classified
intelligence into an unclassified or `less classified' law enforcement
sensitive format that can be shared rapidly with state, local and
tribal law enforcement.''\3\ Yet, there is an entire population of
``First Preventers'' employed in the private sector, who still are
unable to receive intelligence documents identified as ``law
enforcement sensitive'' (LES) or ``For Official Use Only'' (FOUO). In
Las Vegas, our highly skilled, highly trained cadre of security
professionals more than doubles the number of sworn police officers
employed by the Las Vegas Metropolitan Police Department, and is larger
than all but the very largest police agencies in this country.
Furthermore, they are the best positioned to detect suspicious
activity, identify the behavior consistent with pre-operational
activities, and report or interdict the activity. Yet, because of LES
or FOUO handling restrictions, we cannot provide private security with
these documents that would allow them to be better informed. Before
State, local, and tribal law enforcement can effectively team with our
private sector partners, we need to consider the necessity of including
LES and FOUO handling requirements. The default should be
``unclassified'' unless there is a compelling need to include handling
restrictions, due to attestable criminal case sensitivity, or National
Security reasons.
---------------------------------------------------------------------------
\3\ LEAP, supra note 1, (p. 21).
---------------------------------------------------------------------------
Security clearances remain a problem.
DHS has been very accommodating for sponsorship of security
clearances and the FBI has likewise sponsored clearances for police
officials that have membership in the JTTF, and those in the
responsible chain of command. Constant promotions, retirements, and
transfers of assignment in State, local, and tribal law enforcement can
make it very difficult for the FBI to keep up.
While the major cities chiefs and major county sheriffs applaud the
FBI and DHS for their willingness to provide clearances, there has been
little progress in accomplishing a process for reciprocal acceptance of
those clearances to access systems and conduct briefings. Refusal by
one Federal agency to routinely accept the clearances issued by another
is a disruptive policy that contradicts information sharing and
threatens our progress toward realizing the goals of this committee.
Chiefs and sheriffs ask for your help to resolve this issue once and
for all.
DHS must restore the Law Enforcement Terrorism Prevention Program
(LETPP).
Contrary to the intent of Congress, OMB, and DHS eliminated the Law
Enforcement Terrorism Prevention Program (LETPP)--the only program
dedicated to prevention of a terrorist attack. Although funded, LETPP
is merely a quota and no longer a separate program with goals and a
required plan. If there is truly a commitment on the part of the
Federal Government to the prevention of terrorism on U.S. soil, the
appropriation should be maintained at its original level of $500
million. I am submitting for the record a letter we previously sent to
the committee and we ask that you call on the administration to correct
this condition.
We need consistency in the Urban Areas Security Initiative (UASI).
Repeated changes to the UASI program have caused unnecessary
conflict and confusion, a ``roller coaster ride'' for agencies like my
own. It is impossible to plan intelligence programs from year to year
when we cannot rely on consistent funding to support those efforts.
Passing funds for urban areas through Governors has caused waste and
delay. Annual revisions to the list of eligible urban areas preclude
effective planning and coordination where it is most needed--in the
urban areas most likely to be attacked. Congress should provide more
clarity, stability, and consistency to the UASI program. The approved
list of high threat urban areas should be finalized and unchanging.
Fellowships are key to strong partnerships.
Major cities chiefs and major county sheriffs are grateful to DHS
I&A and NCTC for the recent assignment of local law enforcement
officers who serve tours in Washington, DC. It has been my privilege
and my pleasure to assign personnel from Las Vegas to serve at DHS in
the National Operations Center, our new assignment to ITAGC and I look
forward to the future assignment of our personnel to the DHS I&A
Directorate.
DHS I&A should establish an advisory panel of Major Cities Chiefs.
To receive guidance and assistance from local law enforcement, we
urge DHS I&A to establish an advisory panel from the major cities and
counties. This sounding board would help to guide the new products and
services to be provided by DHS, including threat advisories and other
intelligence products. The Under Secretary for Intelligence and
Analysis would receive support and technical assistance across a wide
range of issues, including fusion centers, infrastructure protection
and threat assessments.
Madam Chair and Ranking Member McCaul, those of us on the front
lines look to you for your leadership and support of our mission. Local
law enforcement is charged with the solemn duty to discover, disrupt,
and stop plots hatched within the United States. Please know that my
colleagues and I are committed to a purpose shared by this committee--
the prevention of another attack and the interdiction of those who
would bring us harm. We need your continued help to be successful, and
I look forward to working with the distinguished Members of this
subcommittee in the future.
Thank you.
Ms. Harman. Mr. Edwards, you are recognized for 5 minutes.
STATEMENT OF GARY L. EDWARDS, CHIEF EXECUTIVE OFFICER, NATIONAL
NATIVE AMERICAN LAW ENFORCEMENT ASSOCIATION (NNALEA)
Mr. Edwards. Thank you.
Distinguished Members of the committee and my distinguished
panel members, my name is Gary Edwards, the Chief Executive
Officer of the National Native American Law Enforcement
Association; and it is a privilege and honor to be able to
speak with you today regarding tribal inclusion in homeland
security and, in particular, intelligence and information
sharing.
We, the Native American people, are the most experienced
people at protecting homeland since we have been working at
that since 1492 and we are still active today. Today, though
our reservations are not as large as they used to be, represent
over 100 million acres in the Continental United States and
Alaskan villages. Also, the Hawaiian natives feel like their
homeland is also connected with the Native people as well.
We have in the Continental United States over 55 million
acres, over 300 reservations, 562 federally recognized tribes.
Our lands are replete with oil. We have the eighth financial
power in the world at the producing of natural gas. We have
pipelines that run across our lands. We have railways and also
interstate systems as critical junctures go right through
tribal lands. We have an enormous amount of borderland, and our
people sit on the border and straddle the border, which are
major issues to our local communities.
With all of these assets--and another thing, just to
mention that we also are a major contributor to some of the
hydroelectric power grids from hydroelectricity from the power
grids in the Western United States. So these critical
infrastructures and the law enforcement that protects these
infrastructures are still many years and decades behind our
non-tribal counterparts. Primarily that is because that we do
not have the training, funding, outreach, and connectivity that
other law enforcement and emergency and first responders have.
Our communication systems are not quite as good as our
smoke signals were when the first European intervention came to
the United States. That is, that we can read our smoke signals,
but the non-tribal people cannot, and their ability to send
smoke signals are almost non-existent, and it is literally that
bad.
We have to first become operable before we can become
interoperable, and we have to be interoperable before we can
really adequately share intelligence and information.
By Constitution, we are considered a little higher than the
States. However, we are treated in the situations with regard
to funding, information intelligence systems through the
States. We have been working to make that work, but the honest
answer to that question is that it isn't working. It is not
because our colleagues don't want to, and it is not because
they don't care about it and realize their importance. But they
have their own communities that they are working on and they
are responsible to, and we understand that. But it is the
Congress' responsibility to find the way to get what is needed
to Indian Country to be able to communicate and to be able to
participate in homeland security. Because, remember, most of
the attacks--even though we have a lot of rural lands--most of
the attacks were planned in non-rural lands. Just like the
September 11 attacks in the practice flying of the planes.
I mean, the whole thing about it is in intelligence we have
to be able to get intelligence from national and international
sources. With intelligence, sometimes it takes a while to
develop, but we need to have an awareness out in our
communities. The big things we need in the communities is the
ability to take that information and make it actionable
immediately, and that is the key and important part.
When you look right now at tribal land, you have a huge
hole in our ability to do that. The fusion centers, we can't
praise them enough, and they are a local initiative that would
provide the local communities with the ability to more quickly
and better share intelligence and communications. We want to be
a part of that, but, in reality, they are far away from our
homes, and we are really not a part of it. We are on paper, but
we are actually ancient people. We are out there somewhere. We
need to be an active part.
Our solution to that is to develop regional tribal fusion
centers that will connect into the State and local fusion
centers. But we are not going to be able to get anywhere unless
the Congress watches where the funding is going, making sure
that it is actually producing something. The one program that
we have from Homeland Security that deals with regionalization
and including tribes is due to sunset September 30. That is the
only program in Homeland Security for tribes.
So we need your help, our country needs your help, and we
will stand shoulder to shoulder with you and other Americans to
defend our country against all oppressors as we have done in
every war against the United States in history.
Ms. Harman. I want you to know your testimony is very
important to this committee. We appreciate you coming.
[The statement of Mr. Edwards follows:]
Prepared Statement of Gary L. Edwards
March 18, 2009
introduction
Chair Harman and distinguished Members of the committee, my name is
Gary Edwards and I am the Chief Executive Officer of the National
Native American Law Enforcement Association (``NNALEA ''). I am honored
and pleased to appear before the House Committee on Homeland Security,
Subcommittee on Intelligence, Information Sharing and Terrorism Risk
Assessment regarding ``Homeland Security Intelligence: Its Relevance
and Limitations.''
The assessment, judgments, evaluations, and opinions I offer to you
today is based upon my service of over 28 years as a Special Agent in
the United States Secret Service. During my tenure in the Service the
routine use of shared intelligence and information was a part of every
workday. My expertise and use of intelligence and information was honed
through extensive training and field work as a Special Agent. Secret
Service employees are ingrained with the deep-seated awareness that in
the Secret Service protective arena there is no room for error, no
excuse for not knowing and no reason for not eliminating any threat or
possible vulnerability to a protective mission. The success of our
protective missions depended greatly upon the help, cooperation, and
sharing of intelligence and information by many professionals,
organizations and agencies, especially those whose mission required
collection of intelligence and information regarding terrorist and
criminals.
As the CEO of NNALEA I have focused my attention on Indian
countries sharing of intelligence and information and tribal
participation in the information sharing environment. Much of my tribal
training and experience was gained from tribal professionals who work
every day on the streets and in rural communities, risking their lives
to secure our homeland.
In addition, I have served on numerous homeland security advisory
committees, task forces, and working groups for the Department of
Homeland Security, the Interagency Threat Assessment and Coordination
Group, the Department of the Interior, and the Department of Justice. I
have co-authored two NNLAEA publications: ``Tribal Lands Homeland
Security Report'' and ``The Importance of Tribes at the Frontlines of
Border and Homeland Security.'' Also, I co-developed the DHS-certified
training course ``Regional Collaboration and Tribal Partnerships''
which is currently being taught nationally.
background on nnalea
As many of you may be aware, NNALEA is a non-profit public service
organization founded in 1993, which among other things, provides a
media for the exchange of ideas and new techniques, and establishes
networks for training, collaboration, technical assistance, information
sharing, and investigative assistance between Federal, tribal, State,
and local governments and agencies and the private sector. NNALEA has
conducted sixteen (16) National Training Conferences across the United
States, and is currently preparing for its thirteenth (17th) [sic]
National Training Conference to be held on September 08-11, 2009 in
Catoosa, Oklahoma. Homeland Security Intelligence and Information
Sharing will be hot topics at this upcoming National Training
Conference.
a significant war
Our Nation is engaged in a significant war against terrorism,
criminal activity, and international threats against our freedom and
way of life. It is a guerrilla-type warfare that has already touched
our homeland and our hearts. It has violated our feeling of security.
This war threatens economic stability which is in the midst of a
depression. Those that wish us harm and are trying to make profit from
illegal drug dealings, smuggling, acts of terror, and other crimes are
waging terrible and violent war against our citizens.
On the international front our enemies threatening world peace and
world economic calamity. Our enemy has targeted battlefields in our
cities, towns, communities, and backyards. We have risen to the
occasion united, resilient, and determined with God's help to be
victorious. Our Nation's primary weapon in this fight is the timely
sharing of accurate intelligence and information by those who have a
responsibility to provide the intelligence necessary to protect lives,
property, critical infrastructure, economic stability, and our freedom.
Intelligence and information sharing is a significant tool in this
war that has been reinvented, to more seamlessly and speedily flow
massive amounts of intelligence and information vertically and
horizontally both domestically and internationally. There are many
experts more astute than I in the intelligence and information sharing
environment and I am confident they will apprise you of the latest
trends and future of intelligence and information sharing. I will share
with you NNALEA's assessments, observations, and opinions regarding
Indian Country's willingness to participate in the intelligence and
information sharing environment, Tribal opportunities to participate in
the intelligence community and the critical importance of Tribal
participation in the National Strategy for Intelligence and Information
Sharing.
the important of indian country
There are over 100 million acres of Tribal lands in the continental
United States and Alaska native villages. Tribal lands in the
continental Unites States consist of over 55 million acres and include
300 reservations. The largest reservation is the Navajo Reservation
which is larger than the entire State of West Virginia with parts of
the reservation in four States. Tribal lands and the Alaskan villages
are federally recognized and are referred to as Indian Country. Indian
Country is replete with critical infrastructure and key resources, some
of which are:
Dams; Water Impoundments and Reservoirs; Electrical
Generation Plants Feeding Major Power Grids; Natural Gas, Oil
and Coal Production Facilities; Major Entertainment Facilities;
Critical Pipelines, Railway and Vehicular Transcontinental
Highway Systems; Airports and Remote Landing Strips.
25 Tribal Reservations are located on and/or across the
Unites States International Borders with Canada and Mexico; 41
Tribal Reservations are within 100 miles of those International
U.S. Borders. Tribal Lands also include Ports and Waterways
Open to Navigation from International Waters.
Farming and Husbandry on an International Scale.
Timber, Wildlife and Green Eco-System-Friendly Management.
Bio-diesel-friendly farming lands.
Major Drinking Water and Waste Systems.
The above-cited Critical Infrastructure and Key Resources on Tribal
lands have much primary vulnerability and risk due to:
The existence of non-integrated Tribal law enforcement and a
lack of jurisdictional clarity;
The minimal emergency response, and medical capacity,
planning, and implementation;
A general lack of operable communications;
Drug cartels and terrorist organizations targeting Tribal
lands and casinos for terrorist acts, illegal operations, and
distribution of drugs on a national scale;
The lack of preparedness planning, partnering and
capabilities to protect citizens, property, critical
infrastructure and key resources;
Inadequate funding to develop emergency capabilities;
Widespread Tribal unemployment;
Inadequate medical care;
Non-participation in State and local Fusion Centers;
Non-Tribal organizations and agencies not willing to share
intelligence and information with Tribal authorities;
Federal Agencies unwillingness to share Tribal information
with each other.
The above-listed threats and vulnerabilities in Indian Country can
have a negative impact outside the reservations and do not solidify our
national efforts to eliminate terrorist acts, violent crime, and
international threats to our Nation.
the relevance of homeland security intelligence
``Not having the information you need when you need it leaves you
wanting. Not knowing where to look for that information leaves you
powerless. In a society where information is king, none of us can
afford that.''--Lois Horowitz
the office of the director of national intelligence (dni)
Relevance to Tribes.--The Director of National Intelligence is the
``Master Weaver'' of national intelligence, validates its collection,
accuracy, analysis, objectivity, and timely distribution to appropriate
users of the intelligence products produced, which include Tribes.
Limitations to Tribes.--The Office of the Director of National
Intelligence has been slow to develop a national action plan for Tribal
inclusion in the intelligence community (IC). There has been an effort
to produce a program in Indian Country. However, its first attempt met
with undesired results.
Solutions for Tribes.--We believe that DNI intelligence projects
for Indian Country would be better served and more likely to be
accepted by Tribes, if direct funding for the projects was made
directly to Tribes and their partners whose primary focus is a national
approach to Indian Country intelligence and information sharing.
the interagency threat assessment and coordination group (itacg)
Relevance to Tribes.--The IATCG Detail and Advisory Council purpose
and vision are consistent with the vision of intelligence sharing in
Indian Country. The ITACG's relationship within the information sharing
environment (ISE) is of great value to the Tribal and non-Tribal
intelligence community (IC). The products development by the ITACG
detail are right now actionable to all within the IC and ISE
partnerships. The men and women that make up the ITACG are exceptional,
dedicated professionals that always give their best efforts to serve
their counterparts in the field. The ITACG detail and advisory council
have worked hard to ensure Indian Country participation. The ITACG
recently completed an ITACG Dissemination Process and Issues Survey in
an effort to better serve the users of the ITACG detail products.
Limitations to Tribes.--Although the purpose and vision of the
ITACG Detail and Advisory Council are clear, some of the intelligence
products they would like to produce have not been forthcoming as
quickly as desired due largely to the cumbersome administrative process
that is to be expected in the intelligence arena.
The greatest concern for the Tribal Intelligence Community (TIC)
and for the ITACG Detail and Advisory Council is the disturbing results
of Tribal participation in the ITACG Dissimilation Process and Issues
Survey. Of the 480 responses to the survey only 3 were Tribal, two from
Tribal Fire Departments in California and one from a Tribal Law
Enforcement Department in Alabama. Therefore, the outreach and
awareness efforts of the ITACG are not reaching the Tribal intelligence
community. There may be too many Federal intelligence and information
sharing groups within the Federal Government that appear to duplicate
or replicate intelligence dissemination. Many Tribal departments do not
have the staff to participate in multiple groups and compare and
analyze which one best serves their need for a particular vulnerability
or threat. The result is that the good information provided in ITACG
intelligence products are not used to their full and desired potential.
We feel this is true for many non-Tribal departments as well, not to
mention the cost of duplicate programs in Government.
Solutions for Tribes.--We believe the Tribal solution to this
intelligence dissemination problem is answered in three actions: (1)
The ITACG should partner with a national organization whose primary
focus is a national approach to Indian Country for intelligence and
information sharing; (2) the ITACG should reach out to Tribes with
awareness training, exercises, and surveys through the partnership with
the National Indian Country partner cited above; and (3) this
congressional committee and the ITACG should advocate for the
elimination of costly duplicative Federal intelligence and information
sharing programs.
We feel the new leadership of the IATCG will remove road blocks and
empower the ITACG detail and advisory council to accurately produce and
rapidly disseminate ITACG intelligence products needed by State,
Tribal, and local intelligence community professionals in the field.
the department of homeland security--office of intelligence and
analysis (i&a)
Relevance to Tribes.--Indian Country embraces the DHS I&A's
commitment to change the national intelligence culture from ``a need to
know'' to ``a responsibility to provide'' intelligence and information
sharing to the Tribal and non-Tribal intelligence sharing environment
and culture. The best way to lead change is through example. Indian
Country law enforcement and other Tribal first responders desperately
need and seeks real-time, accurate intelligence and information from
the DHS I&A regarding: (1) Threats related to border security; (2) the
threat of radicalization and extremism; (3) threats from particular
groups entering the United States; (4) threats to the homeland's
critical infrastructure and key resources; and (5) information
regarding weapons of mass destruction and health threats. These five
areas of intelligence and information sharing for which DHS has
analytic thrusts are extremely important to Tribal communities on a
daily, even hourly basis to save lives, protect property, prevent
destruction of critical infrastructure and key resources, preserve
economic systems, and contribute to the defense of the United States of
America.
Indian Country is pleased with the appointment of Governor Janet
Napolitano as the Secretary of the Department of Homeland Security. In
her former position as Governor of Arizona, she has grained extensive
knowledge of Indian culture and values. Arizona has the greatest
population of Native Americans that any State in the continental United
States. Secretary Napolitano's quick action to bring consultation
between Tribe and DHS is historic and long overdue. We commend and join
the Secretary in her support for State and local Fusion Centers as the
``centerpiece of our mutual intelligence future.'' Currently, partners
in Indian Country are already planning for ``Tribal Regional Fusion
Centers'' (TRFC). We look with anticipation to the TRFC's interaction
with State and local Fusion Centers and becoming an integral part of
the intelligence community and the information sharing environment.
Limitations to Tribes.--Tribes have many limitations preventing
participation with the DHS I&A information sharing environment and
intelligence community. Some of the limitations are: (1) A lack of
recognition by DHS of Tribal sovereignty; (2) the DHS minimal outreach
to Tribal leaders and officials; (3) regularly overlooking Tribes to
participate in National, regional and State homeland security exercises
and events; (4) on a yearly basis, DHS's provides inadequate funding
for Tribal programs regarding homeland security planning, training,
equipment, connectivity, partnership building, and inclusion in DHS
national programs; and (5) the lack of outreach, awareness, a favorable
location, cooperation, funding, training, cultural issues, sharing of
intelligence and information, and partnership building on a national
basis, limits Indian Country's willingness to daily participate in
State and local Fusion Centers.
Solutions for Tribes.--Most of the above cited limitations can be
eliminated within a short time cycle with the combined effort of the
White House, this Congressional committee, and the Secretary of
Homeland Security. The DHS Tribal solutions are:
(1) Secretary Napolitano began removing the first cited limitation
when she recently instituted a DHS policy of Tribal
consultation between the DHS and Tribal governments. This
government-to-government relationship recognizes Tribal
sovereignty;
(2) The President, Secretary Napolitano and Congressional Members
participation in national Tribal events and meetings with
Tribal leaders can remove the 2nd limitation;
(3) A sincere effort by DHS program directors inviting Tribal
leaders send Tribal representatives to participate in National,
regional, and State exercises and events will yield
partnerships and Tribal support for DHS National, regional,
State, and Tribal projects and thereby remove another
limitation;
(4)(a) NNALEA and the National Congress of American Indians (NCAI)
request a minimal increase of the Tribal portion of the SHGP
from 0.1 percent to 1.0 percent and to allow Tribes to apply
directly to DHS for all grant programs rather than through the
States. (b) DHS provided funding and support for Tribal
Homeland Security programs and initiatives to national
organizations whose primary focus and body of work is a
national approach to Indian Country homeland security issues
and whose organization houses the expertise necessary to carry
out a national program for Indian Country. (c) DHS providing
continuation funding for successful Tribal training programs
and initiatives that encourage regional Tribal inclusion in
programs like intelligence and information sharing (note: the
only Tribal DHS certified ``Regional Collaboration and Tribal
Partnerships'' training program that will have reached 60
regional training sites Nation-wide should receive continuation
funding to deliver that critical partnership training after
October 1, 2009.)
(5)(a) Generally, Indian Country supports the concept of State and
local Fusion Centers so much so that plans are underway to
develop a Tribal Regional Fusion Center on the Navajo
Reservation to connect Tribes in its region directly to State
and local Fusion Centers. (b) DHS funding and DHS I&A support
are critical for TRFC plans to be successful. (c) The success
of Tribal Regional Fusion Centers can eliminate most of the
limitations cited above for Tribes and their participation in
State and local Fusion Centers. (d) The Bureau of Indian
Affairs, Office of Justice Services (BIA-OJS) must be a major
component of any intelligence and information sharing
initiative for Indian Country like the Tribal Regional Fusion
Centers. BIA-OJS is the premier national law enforcement agency
for Indian Country whose primary mission is Indian Country law
enforcement. (e) The DOI, Office of Indian Affairs should be a
partner and leader in Tribal homeland security intelligence and
information sharing initiatives by DHS I&A and the DHS
intelligence enterprise (IE) internal partners.
conclusion
For the protection of our homeland to be successful, our Nation
must have a seamless network of homeland security intelligence and
information sharing. To be seamless, this network must include Tribes.
Tribes, though, are often left wanting for homeland security
information. This, in turn, limits our Country's network of homeland
security intelligence and information sharing. Fortunately,
intelligence and information sharing with Tribes can be fixed rather
quickly through the actions delineated above by the White House, this
Congressional committee and the Department of Homeland Security.
I am happy to answer any questions you may have.
Ms. Harman. Chief Gaissert, you are recognized for 5
minutes.
STATEMENT OF CHIEF JOHN W. GAISSERT, COMMERCE, GEORGIA, POLICE
DEPARTMENT
Chief Gaissert. Thank you, Madam Chair, distinguished
committee Members, and esteemed panelists.
Terrorism is a phenomenon that perhaps represents the
defining issue of our time. It is a challenge that requires an
entirely new dimension for operational readiness for law
enforcement and all other public agencies.
We have been blessed as a Nation not to have had a major
terrorist event on United States soil since 9/11. However, to
quote Jefferson in 1801, ``Eternal vigilance is the price of
liberty.'' I submit that our resources for intelligence and
information sharing must be focused within this context.
I am making some recommendations and conclusions regarding
our intelligence efforts.
No. 1, the United States should make good use of the
Israeli model for homeland security. There is a reason that
their counterterrorism measures stopped more than 90 percent of
attacks. Central to this success is intelligence dominance
derived from integrated resources and combined with the ability
to rapidly conduct surgical interdiction of terrorist
operations. The result is to reduce or neutralize threats and
minimize collateral damage, including civilian casualties.
I want to add as an addendum here that I am not talking
about some KGB-style program to spy on citizens, but the
Israelis have the ability, from a grassroots level, to develop
information and data that can point to threats early. There are
any number of pre-attack indicators which do not include the
profiling of individuals. It is a matter, as most street cops
would tell you, of being able to determine things that are out
of character and out of place. The street cop isn't looking for
the normal; he is looking for the abnormal.
No. 2, domestic law enforcement must assess and evolve
their training doctrine to address the potential for
asymmetrical tactical threats posed by the phenomenon of
terrorism. In Israel, an officer responding to a traditional
crime reacts traditionally. If he finds something else, if it
is terrorist related, he stops thinking like a cop and starts
thinking like a soldier. Because his adversary is trained using
small unit infantry tactics with assault security and support
elements. It requires a different tactical approach; and we
need to train for that dimension, including its implication for
the rules of engagement.
No. 3, consider designating an intelligence officer in
every State or local law enforcement agency, regardless of
size, and process that officer for an appropriate level of
clearance. I believe unless something is changed, you can
obtain a ``secret'' with a national agency check.
No. 4, expand access to information technology such as the
GTIP program in Georgia to facilitate the flow of information
between partners. I applaud Commander McNamara. I think if we
could standardize a reporting format, it would be highly
advantageous to the national interest.
No. 5, money is policy. Consider additional funding of law
enforcement training for counterterrorism, particularly at the
local level. There are alternative mediums to facilitate such
training.
I also recommend expanding that to civilians, to civic
groups, and to educate our populace as to what they might be
seeing in terms of pre-attack indicators. This could be
facilitated through the United States Attorney, the auspices of
State training agencies, and so forth.
No. 6, review the Homeland Security Advisory System as it
relates to public release. Consider adding specific public
guidance at each level of alert or eliminating the alert status
altogether for public notice.
One of the weaknesses that I find in this system is that
what we are doing is issuing some vague public alarm which
causes potentially a sense of unease, and this could actually
support terrorist objectives.
Madam Chairman, in closing, let me say that any measure
considered for Homeland Security must be balanced with the
expectation of privacy and the inalienable rights of the
American people. As Dr. Franklin once observed, ``Those who
exchange freedom for security end up with neither freedom nor
security.'' If we concede our freedoms, the terrorists win.
I pray that the Lord will have mercy on this Nation and
that he will sustain our way of life.
[The statement of Chief Gaissert follows:]
Prepared Statement of John W. Gaissert
March 18, 2009
Terrorism is a phenomenon that perhaps represents the defining
issue of our time. It is a challenge that requires an entirely new
dimension of operational readiness for law enforcement and all other
public safety agencies. We have been blessed as a Nation not to have
had a major terrorist event on United States soil since
9/11. However, to quote Jefferson in 1801, ``Eternal vigilance is the
price of liberty.'' I submit that our resources for intelligence and
information sharing must be focused within this context.
In my professional judgment, failure to know the enemy is the
fundamental weakness in both developing homeland security
counterterrorism measures and prosecuting the war in general. In the
6th century B.C., General Sun Tzu wrote, ``The Art of War''. He said
that every battle is won before it is ever fought. One of his central
propositions is that you must become your enemy in the sense of not
only understanding his tactics but his epistemology; that is what he
believes about the world, his ideology, religion, and dedication to
those belief systems.
In my judgment, the radical Jihadists are committed to bringing the
world under submission to Allah. They are religiously motivated and
convinced that Allah has commissioned their Jihad to precipitate the
end of the world according to their teachings and tradition.
Alternatively, they intend to impose obedience by conversion or
eliminate infidels. Their endgame strategy is simple:
a. It is a zero-sum game; either win or lose.
b. Destroy the Jewish State of Israel.
c. Establish a global Islamic theocracy under Sharia Law.
d. No time constraint to accomplish both political and religious
goals.
Dr. Bruce Hoffman at Georgetown describes the conflict as a
ceaseless, generational struggle. This conclusion is arguably correct
in view of the last 1,500 years of Islamic fundamentalist history.
However, I place the genesis of the conflict in the Book of Genesis. It
began 4,000 years ago with a man named Abraham and two boys, Isaac and
Ishmael. No one will have a viable paradigm to understand the current
threat without a grasp of the Old Testament Canon, as well as The Koran
and the Hadith. The conflict can be viewed as a continued outworking of
the enmity set between these ancient protagonists. This same animus can
be traced through Biblical times to the sixth century A.D. and the
advent of Islamic fundamentalism. The result is for some to view the
current dilemma as a clash of cultures and others to view it as a clash
of civilizations. However, I submit that ultimately it can be
understood best as a clash of religious belief systems; Judeo/Christian
and all others versus Islamic. The scope of this testimony precludes
specific contrasts in beliefs, but it ultimately begs the question,
``How do you apply traditional secular solutions to a conflict which at
its nexus is a religious dispute?''
Without a grasp of this history, the United States' strategic
decisionmaking processes could result in serious miscalculations vis-a-
vis intelligence functions, public safety training and domestic
operational response. We are engaged in what could be characterized as
4th generation warfare and face asymmetrical threats. Terrorist
combatants are predominantly non-state actors but in many instances act
as proxies for nation-states. The transnational nature of terrorist
attacks should be examined from the perspective that these are not
random acts of violence, but they represent different fronts in a
global Jihad.
Since al Qaeda has become as generic to terrorism as Xerox has to
photocopies, I shall use that term to describe all affiliates and rogue
groups; albeit they largely have common purposes. As Dr. Boaz Ganor,
Institute for Counter Terror, Herzliya, Israel notes, ``Terrorists have
an inter-national network, battlefield experience and learn from their
mistakes.'' He further defines the salient difference between
terrorists and other labels such as guerilla or freedom fighter.
Terrorists target civilians and non-combatants; they sanctify death.
Based on my training and experience, it appears that our domestic
counterterrorism doctrine has not fully addressed the evolution of
terrorist strategies or their dedication to the endgame. We are not
just fighting a war on the battlefields of Iraq and Afghanistan,
Central Theatre. The Jihadists or their sympathizers are fighting us in
multiple dimensions largely transparent to the American public and
using deception as a key strategy. I shall name only a few examples
that bear directly on law enforcement responsibility and the need to
assist in developing actionable intelligence.
They are fighting us using financial crime to counterfeit clothing,
pirate CD's, DVD's, sunglasses, and other articles, perpetrate related
fraud and the criminal laundering of money. In the world of information
technology, there are over 7,000 Jihadist Web sites. Many of these
sites can be used covertly to communicate with potential sleeper cells.
They operate domestically using false identification or forged
documents. The Israeli concept that terrorists commit small crimes
before they commit big ones is particularly useful in domestic
deterrence efforts. By example, officers might detect traffic
violations, criminal trespass, false identification, or giving false
information.
This context and these considerations have profound implications
for the modalities ultimately employed to deter and interdict terrorist
operational capabilities. Dr. Boaz Ganor asserts that intelligence is
the key to successful counterterrorism initiatives. In fact, the
Israelis operate on the concept of intelligence dominance. Information
and/or data are fluidly moved through varied levels of responsibility
with potential corresponding operational responses initiated in a brief
period of time. I shall not discuss specific operational capabilities
in open source material, but the concept is reasonably clear.
We need to ensure minimum barriers consistent with operational
security (OPSEC). This approach should be integrated with State and
local law enforcement as well as Federal, regional, and international
security partners to achieve required intelligence objectives. While
there are obvious reasons to view intelligence strategically, I
recommend that greater emphasis be placed on training, funding, and
communicating with local resources. One of the best sources of
information in this Nation is the old street cop. On the beat or
mobile, cops are sensitive to things that do not look right or do not
sound right. By extension, involving corporate or private security,
educating the public and civic organizations are important tools for
developing the type of grassroots information required to enhance
deterrence of further terrorist events.
We can most assuredly benefit from Dr. G. Edward Deming's
organizational theory that quality of outcome is based on the
continuous improvement of processes. Additional emphasis on improving
intelligence sharing, particularly at the local level, could produce
dramatic results. Remember, it was a rookie cop on a routine check that
resulted in the arrest of Eric Robert Rudolph in North Carolina despite
the commitment of enormous Federal resources. In my own jurisdiction,
Commerce Police Department has been involved in providing many
potential leads and information of an unusual nature to the Georgia
Intelligence Sharing and Analysis Center (GISAC) since 2001.
The city of Commerce is in Jackson County, Georgia. It is located
approximately 55 miles northeast of Atlanta. We have a semi-rural
environment bisected by Interstate 85 and other major State
transportation corridors. Although we have emerging growth, there is
still a significant agricultural presence. Smaller towns and
communities dot the landscape. However, we are not immune from the
potential for atypical events. Two of the 9/11 hijackers did touch-and-
go landings at Jackson County Airport while flight training out of
Gwinnett County. Local jurisdictions must be cautious to heed the
``Terminal Philosophy''; it cannot happen here, and it cannot happen to
me. There is no guarantee that attacks or the training for those
operations will occur only in large cities.
Since 9/11, another example of concern for some local citizens is
the presence of a Muslim of America (MOA) compound less than 10 miles
from Commerce called Medina Village. I have been the Chief of Police in
Commerce since 2001 and have seen local concern ebb and flow through
the ensuing years. The MOA organization is reported to be affiliated or
linked to Sheik Mubarak Galani in Pakistan. There have been and are
residents of Medina Village who either work or patronize businesses
within our jurisdiction. No violent incidents have been associated with
the group at this time.
There are numerous examples of information provided by our agency
to GISAC. We had a reported theft of 300 gallons of diesel fuel from a
local supplier. In another time, we would start looking for farmers or
commercial drivers. In today's world, consideration also had to be
given to the possibility that the fuel might be used to construct an
improvised explosive device. In another instance, a phone call made to
a propane gas company resulted in the reporting of unusual questions
and interest expressed about tank capacities and operational procedures
not relevant to private use.
In my judgment, one of the considerable weaknesses that developed
during the decade of the '90s was the degradation of human intelligence
(HUMINT) in favor of signal intelligence (SIGINT). I simply do not know
how to successfully substitute technology for eyes and ears; boots on
the ground. The Israeli Model is well-suited to account for a balanced
approach to this issue. We are fortunate that our GISAC fusion center
has provided excellent support in the form of law enforcement
assistance and regular Law Enforcement Bulletins. However, most of the
information condensed and presented in the bulletins could be
researched from open-source material with the exception of some
additional law enforcement sensitive information.
The unclassified FBI briefs on terrorist attack planning and ``dry
run'' tactics indicate that terrorists use dry runs during the final
stages of operational planning to simulate an actual attack, expose
strengths and weaknesses in the plan and make adaptations to the
operating environment. Terrorist surveillance and reconnaissance of
potential targets offer law enforcement and security personnel
opportunities to observe their activities and implement investigative,
counterterrorism and force protection measures. Indicators include such
activities as observing security reaction drills or procedures,
monitoring police radio frequencies and response times, or
photographing unusual places. The best resource in position to
initially assess these types of activities is none other than the
street cop, security officer, or an observant citizen in the local
jurisdiction. Expanding the community policing programs in our local
jurisdictions to accommodate counterterrorism intelligence could
complement and leverage the gathering of pertinent information. This is
not to recommend a KGB-style program to spy on your neighbor, but we
should actively seek to educate the public on being aware of
surroundings and reporting events that are out of character or out of
place.
One of the striking observations that I made on several training
missions to Israel was the level of sensitivity on the part of average
citizens to odd occurrences and their willingness to report unusual
activity. Of course, a large percentage of Israeli citizens are
veterans of the armed forces, police, or other emergency services and
by extension have specialized training. I also found that the incident
response of street officers was dramatically different than basic
police training in Georgia. The Israelis have uniquely integrated both
military and civilian police doctrine such that an officer responding
to a traditional crime responds in a traditional way. However, should
they discover a terrorist-related event, they stop thinking like a cop,
start thinking like a soldier, and react accordingly. The reason is
that their adversary is trained using small unit infantry tactics
incorporating assault, security, and support elements. This is
particularly important in a Mumbai-style armed assault. However, it
demands crucial training officers regarding the rules of engagement.
Since the two most prevalent types of attack are still bombings and
armed assault, Israeli police actively train to tactically address
multiple assailants in a dynamic environment.
In Georgia, we have many officers limited to punching holes in two
targets when the whistle blows for annual qualification. They receive
little in the way of additional training in tactical response. My
opinion is that our tactical teams and other specialized police units
are very well-trained by comparison. Although it is perfectly fine and
desirable to have a state-mandated and standardized course of fire to
qualify annually, I am convinced based on professional experience that
officers will respond like they train. This is not to be critical but
to point out an opportunity to evolve our training doctrine in a
positive way. The great obstacle to advanced training today is the same
as it has been historically; funding. There is a symbiotic relationship
between policy and money. When I was a Navy Lieutenant, I once worked
for a Commander who had a big sign on his desk that said, ``Money is
Policy''. It stuck, and I have had that notion reinforced
experientially. The Law Enforcement Liaison for the United States
Attorney, Northern District of Georgia, advised me that their office
received $100,000 post-9/11 for counterterrorism training. They have
received no additional funding since that time. When training
requirements are triaged, the funding has to be carved out of the
operating budget highlighting continued resource limitations. This
condition is not limited to tactical training operations but general
training as well.
Some sources point to an emerging nexus between organized crime and
terrorism with mutually supportive interests. According to Associated
Press, about 7,000 people have been killed in the Mexican drug wars
since 2007. The violence is spilling into U.S. cities in some parts of
the country. There have been reports of drug cartel members settling
scores with adversaries in such places as Atlanta, Phoenix, and
Birmingham, Alabama. I suggest that the potential for drug violence to
spread into smaller communities will grow significantly. This is a
wake-up call to either secure or control the border. We probably should
know something about the individuals coming into the United States. In
any event, this issue places a further burden on State and local law
enforcement, and it highlights the escalating importance of the
intelligence partnership with Federal authorities. The southern border
could be an Achilles heel for the United States and serve al Qaeda as
an easy point of entry through which to infiltrate operational teams.
By the way, the border is the first line of defense in Israel.
Since al Qaeda is now using what might be characterized as a ``Dune
Model'' of operations, their strategy is disappearance instead of an
institutional presence. Command and control are shifting or based on
loose cells or lone operators. This approach was religiously validated
by Osama bin Laden's spiritual mentor, Abdallah Azzam. Subsequently,
Bin Laden issued a fatwa that Muslims have an individual as well as a
general duty to Jihad. We also are seeing the Da'awa (call) to recruit
and radicalize converts within western industrialized nations.
Remember, the attacks against the London subway system were perpetrated
by British citizens and not foreign terrorists. This is another issue
that ups the ante for State and local law enforcement resources. We
must be trained competently in counterterrorism measures supporting
intelligence dominance. The potential attackers could submerge anywhere
in our society as individuals or sleeper cells.
One bright spot in Georgia's intelligence effort is the development
of the GTIP Program by our fusion center. GTIP is a secure Web-based
threat/leads tracking system that is law enforcement-sensitive.
Complete access to the system is available to GTIP partners and limited
access, such as read-only, may be made available on an as-needed basis.
GTIP is a Georgia Bureau of Investigation (GBI) program funded by
Department of Homeland Security (DHS) grants to enhance the
intelligence capabilities of key major law enforcement agencies across
Georgia. The E-Team program is the name of the secure Web-based
software used by the participants and managed by GISAC fusion center
supervisors to process and address tips or leads for appropriate
action. This provides an emerging high-tech tool to facilitate
information sharing and coordination of counterterrorism activities
among partners. By definition, counterterrorism measures are offensive
(military) or proactive (law enforcement), whereas anti-terrorism
measures are defensive and tend to be self-enforcing such as the wall
of separation between parts of Israel and designated Palestinian areas
to prevent uncontrolled access to the country.
As a final note, my Israeli contacts do not hold the Homeland
Security Advisory System in high esteem. The primary reason is that it
conveys a vague sense of alarm to the public without specific guidance
for appropriate action. I recommend that this process be reviewed to
enhance its effectiveness. There is specific guidance for public safety
entities within each level of alert similar to the military defense
condition (DEFCON) system. However, vague alarms can arguably
precipitate a general unease that actually supports terrorist
objectives.
My recommendations and conclusions are summarized as follows:
1. The United States should make good use of the Israeli Model for
Homeland Security. There is a reason that their counter
measures stop more than 90 percent of attempted attacks.
Central to this success is intelligence dominance derived from
integrated resources and combined with the ability to rapidly
conduct surgical interdiction of terrorist operations. The
result is to reduce or neutralize threats and minimize
collateral damage including civilian casualties.
2. Domestic law enforcement must assess and evolve their training
doctrine to address the potential for asymmetrical tactical
threats posed by the phenomenon of terrorism.
3. Consider designating an intelligence officer in every State or
local law enforcement agency regardless of size. Process that
officer for a security clearance through the FBI Liaison
Program in order to enhance processing of sensitive or
classified information.
4. Expand access to information technology such as the GTIP Program
in Georgia to facilitate the flow of information between
partners.
5. Money is policy. Consider additional funding of law enforcement
training for counterterrorism particularly the local level.
There are alternative mediums through which to facilitate
training programs.
6. Review the Homeland Security Advisory System as it relates to
public release. Consider adding specific public guidance at
each level of alert or eliminating the alert status altogether
for public notice.
7. Winning does not necessarily mean annihilating the enemy.
Stabilizing areas of conflict and maintaining our way of life
may prove to be a better measure of success. Employing the
Roosevelt Doctrine of speaking softly but carrying a big stick
could prove to be useful while seeking diplomatic
accommodation.
Mr. Chairman, thank you for the privilege of testifying before your
committee on a topic so vitally important to the security interests of
the United States. In closing, may I say that all measures considered
for homeland security must be balanced with the expectation of privacy
and inalienable rights of the American people. As Dr. Franklin once
observed, ``Those who exchange freedom for security end up with neither
freedom nor security.'' If we concede our freedoms, the terrorists win.
I pray that G-d will have mercy on this Nation and sustain our way of
life.
Ms. Harman. Thank you all for excellent testimony. All of
you not only addressed the need to collect information but the
need to protect civil liberties, and I think every member of
this panel applauds that.
I often use a precious sound bite, Chief Gaissert, based on
what Ben Franklin said. My version is: Security and liberty are
not a zero-sum game. You either get more of both or less of
both.
Obviously, this committee is determined on a bipartisan
basis--I am sure everyone agrees--to get more of both; and that
is why we are starting today with this hearing.
Commander McNamara, I read ahead; and you are going to hear
some comments from the second panel about SARs and some of the
risk of SARs. Would you describe it briefly, what it is? I know
it is in your full testimony, but not everyone in the audience
has read it, your full testimony, that is. What is it, and what
isn't it?
You mentioned that you have gone national with this idea.
Who is using it, and is DHS using it or should DHS be using it?
Finally, if we would have had SARs up and running somewhere
here in some port city, could it have been useful to guard
against a Mumbai-style attack?
Ms. McNamara. Thank you, Madam Chair. All great questions
and thank you for that opportunity.
The SAR process, as the Sheriff or the Chief mentioned, is
about indicators, identifying the indicators that--all pre-
operational in terrorism in domestic and international cases.
We found a common thread. So we identified in Los Angeles about
65 indicators. Training your officers on those indicators so
that they are aware of what is happening.
Ms. Harman. Could you list a couple so we get a better
idea?
Ms. McNamara. Absolutely.
Obtaining illicit explosives is one that is an obvious one.
It is one that we never listed before. Putting our officers in
contact with that.
Securing security measures or taking security plans. Our
officers run across many times that type of thing.
Suspicious photography, but suspicious. I had a recent
example of a laundromat who found a disk in the pocket at a
local cleaners. They looked at the photographs, and they
happened to be of a local airport: the fence line, the TSA, the
airplanes on the tarmac. They handed that over. We took that
report.
Interesting enough, we did the investigation; and it
happened to be an airport personnel taking those photographs.
But had we not had that capability, that would have been one of
those unknown things.
So SARs gives us the ability not only to investigate and
connect dots; it helps us eliminate potential threats as well.
So we are training in Los Angeles specifically on the
indicators for our officers.
As you can see, it has garnered a lot of success.
Ms. Harman. Who makes a decision what becomes a ``dot'' on
your map and what doesn't? Does the individual who has the
training? Or is there some kind of supervision and perhaps some
punitive action against those who are not careful?
Ms. McNamara. I think that is the greatest thing about it.
We took our crime report from Los Angeles, and there is a lot
of value on our crime report, and we adjusted the crime report.
All cops in Los Angeles are very familiar with the crime
report. They just put exactly what happened. Like the case of
the laundromat, they write the details.
Those details, that report, is then--a supervisor in Los
Angeles then reviews the report, makes sure that it is reported
properly. So every supervisor in Los Angeles has been trained
on this SAR process. So they understand the difference at the
front-line level.
Once a SAR is signed by a supervisor, then it goes to our
Criminal Intelligence Bureau where they code it so they put the
indicator numbers so we know that that indicator is
appropriate.
Ms. Harman. So there are really three sets of eyes: the
intake, the supervisor, and the dot decisionmaker on each
report; and the reports are standardized--I know this is part
of the magic of this--so that it is apples-to-apples. Then you
put this stuff up on a map and these dots appear, and if a lot
of them appear around a particular facility, that is cause for
concern; is that right?
Ms. McNamara. That is correct.
I would like to add another layer. Because before managers
and executives at my level were not able to see these pictures
emerging, it is a management accountability tool as well. I
have seen several patterns emerge that I have been able to
address----
Ms. Harman. In 29 seconds, can you tell us if this device
could have helped with the Mumbai-style attack?
Ms. McNamara. Absolutely. Cops ask the right questions. In
the report, they are more specific to date, to time, to
location.
If the Mumbai attacks had SARs, we would have been able to
predict the time of attack. We would have been able to put the
proper resources into place to prevent a terror attack.
Ms. Harman. I yield 5 minutes of questions to the Ranking
Member, Mr. McCaul.
Mr. McCaul. Thank you, Madam Chair.
I want to make a few comments and throw out a general
question.
Commander McNamara, I commend you for putting out the SAR
program. I think it is a real model. It is a great idea coming
from a local area, and I look forward to the integration with
DHS in terms of trying to develop this model across the Nation.
Sheriff Gillespie, I want to comment on the idea of this
foreign liaison that you mentioned and the advisory board. That
is something I would like to take a stronger look at. Security
clearances are going to continue to be an issue, and I am sure
that Madam Chair and I will be working closely on that.
Mr. Edwards, the tribal lands had been ignored in this
process; and I think it is time we start looking and paying
attention to that. I have several tribes in my State of Texas,
many right on the border; and that is an area of tremendous
concern. So we look forward to working with you on that
important issue.
Finally, Chief Gaissert, I liked your comparison to the
Israeli model. As I mentioned in my opening statement, we met
over in Israel with the Minister of Security. He told us how it
is really intelligence. You win this by good intelligence.
They--we have a lot to learn, I think, from Israel; and I was
very interested in your comments on that.
Finally, you said in your statements that terrorist commit
small crimes before they commit big ones. We refer to the
traffic violations of the 9/11 highjackers, Tim McVeigh. It is
a good example of how we caught somebody on a traffic
violation.
What I am interested in is when I worked in the Justice
Department, really the only thing we had to share information
or integrate after 9/11 were the Joint Terrorism Task Forces.
The idea of these fusion centers was just a sort of a concept.
At that time, it was nowhere near a reality. It is still not a
reality, I think, to the extent that maybe it should be across
the Nation.
So I just wanted to throw that out with the 2\1/2\ minutes
that I have for anybody who would like to answer that question.
Can you tell me the current state of your relationship with
these fusion centers and with the Joint Terrorism Task Forces
and how we can better improve that coordination?
Sheriff Gillespie. You know, from the Las Vegas
perspective, Mr. McCaul, I would say we rely heavily on the
fusion process in our day-to-day crime fighting as well as the
integration of homeland security-type information. I think the
ricin incident that was talked about before was a prime example
of that.
No. 1, it was a cop on the street that realized that a sick
individual, some of the writings in the room, and animals not
feeling well--the cop put the dots together on this and
immediately contacted our fusion people. With the process of
that, from our standpoint, we started looking at a local. Then
when we started to see some of the signs that we did, we were
easily integrated into the Federal side of it.
Then our response to it. If we hadn't been proactive in our
all-hazards approach to not only the investigation but the
mitigation of these types of situations, we wouldn't have had
the ability to send a specially trained group, cross-
disciplined, cross-organizations. Our two fire departments and
our police department participate in our ARMOR program; and,
basically, we have a hazardous material, a C-burn, and an
explosive response with an investigative component. They
responded out there. They were able to determine if there were
any ricin levels out there or in another hotel room.
But the other part I will say is we are not there yet. We
at the local law enforcement need to be integrated at the
national level and developing the policies that are created to
expand upon that which we currently have. We can't be the
afterthought. We have to be there initially.
Mr. McCaul. Commander McNamara, can you tell me about your
relationship locally with your fusion center with your SARs
programs?
Ms. McNamara. I think as we move forward on the SARs
process it is going to add the structure that the fusion
centers need right now. I love the concept of the fusion
centers. By having the correct mechanisms at the fusion
centers, it adds that structure. It gives you that ability to
paint that regional picture that you are looking for and
connect those dots regionally. Then, of course, to our partners
like Sheriff Gillespie, we enjoy a great relationship and they
talk over cross-border.
So I really like what the future looks for at the fusion
center with the SARs process being interjected.
Ms. Harman. Thank you, Mr. McCaul. I just would note that
at a hearing in the last Congress, where Mike Leiter, the head
of National Counterterrorism Center, testified, he made the
point that someone in the ITACG suggested that in an
intelligence product prepared by the ITACG, they should
describe ricin. Now that you hear what I just said, it seems
incredible that a product saying ricin is a threat in local
areas wouldn't describe what it looks like. Fortunately in Las
Vegas they have very smart cops.
The Chair now yields 5 minutes for questions to Mr. Carney
of Pennsylvania.
Mr. Carney. Thank you, Madam Chair.
First let me say in listening to your testimony, I am very
heartened by the quality of folks we have in the field on the
front lines. It makes me feel a little bit better. The task
that you have is enormous. But for starting with this quality,
there is no task we can't manage.
Let me ask a question to all of you from about the 50,000-
foot level. What keeps you up at night in terms of terrorism?
Ladies first, I guess.
Ms. McNamara. I think I feel better about sleeping now that
we have the ability to connect these dots that we talk about.
Prior to this process, prior to being able to paint a picture
what is going on in your local communities, being able to
protect your communities, knowing that you had this tremendous
responsibility once the paradigm shift occurred after 9/11,
that you did not have the mechanisms and the standardizations
in place to see emerging patterns and to redeploy
appropriately, that is what kept me up.
What keeps me up now is the excitement of where this
process is going and what is going to happen to make this
America safer.
Mr. Carney. Thank you.
Sheriff.
Sheriff Gillespie. Actually I can be very honest in telling
you that I sleep well. I won't tell you that there aren't
things that bother me, but I know that there are many people in
my profession, State, local, and Federal, that are literally
working long hours and days to keep not only their communities,
but this country safe.
But with that being said, even pre- the Mumbai incident,
one of the things in my hometown that we have constantly talked
about and constantly worries us is not necessarily the al Qaeda
attack, but the individual and/or individuals wishing to make a
statement. They may not necessarily be from abroad; they could
be very well within. So I can tell you that that is the one
aspect of my job that continually raises the hair on the back
of my neck.
Mr. Carney. Thank you.
Mr. Edwards.
Mr. Edwards. There are actually two things that keep me
awake at night when I look at tribal issues. One is the tribal
families that live on or near the borders and the terror and
decisions that they have to go through on a daily basis. Most
of them are unemployed, or a lot of them are, very poor
incomes. You have a tremendous threat of people trying to pay
for their way to get their support. Some of them are family
members, you have those terrors, and some of them are just
afraid because of violence going on in their neighborhoods.
Then I worry about that spreading from Indian Country to the
other non-Indian Country outside the reservations.
The second thing that keeps me up is the vastness of Indian
lands and the lack of protection and the lack of law
enforcement. I worry about some group, whether it is national
or international, that plan and plot a terrorist act that takes
place in the United States, devastates the reservation,
devastates the non-Tribal communities, and the Tribes are
looked at as not doing their job and letting the country down,
and we are not that way as Indian people.
Thank you.
Mr. Carney. Chief.
Chief Gaissert. Congressman, I am confident in the
abilities of American law enforcement. With that said, I have a
concern about the potential for sleeper cells. We know that al
Qaeda is recruiting and radicalizing within the Western
industrialized nations. I would like to point out it was
British citizens who attacked the London subway, not foreign
insurgents or foreign terrorists.
Also, I want to take a moment to just tell you how
critically important I believe it is to educate and train our
first-line responders, particularly the street cop, because it
is the ability to interdict or to develop that critical data or
information at the ground level that may deter the attack.
Remember, it was a rookie cop that netted Eric Rudolph, not the
vast Federal resources committed in North Carolina. It touches
the local level.
We had two of the 9/11 highjackers who did touch-and-go
landings at Jackson County Airport in Georgia prior to 9/11. I
worked for a commander at one that had a sign on his desk that
said, money is policy. It assumes to be a symbiotic
relationship between the two. I hope we can at least place
greater emphasis on that process.
Thank you.
Mr. Carney. Thank you. That sign on the desk is amazingly
candid actually.
I have a lot more questions. I will yield back, though.
Ms. Harman. Thank you.
The Chair now recognizes Mr. Dent of Pennsylvania for 5
minutes.
Mr. Dent. Thank you, Madam Chair.
I guess I will take a slightly different spin on
Congressman Carney's question. As opposed to what keeps you up
at night, is there an overarching intelligence need that you
all have in common? If there is, do you think the DOJ and
Homeland Security Department are doing enough to help you meet
those needs?
I guess I will start at the other end. Chief Gaissert.
Chief Gaissert. Thank you, Congressman.
It has been my personal observation that we have certainly
improved the communication between State, local, and Federal
agencies since 9/11. But to use Dr. Deming's management concept
of trying to approach it from a process of continuous
improvement, there is certainly room to grow that relationship.
We receive bulletins both from the Fusion Center, from
Joint Terrorism Task Force and various sources, but I think
there is a huge opportunity to better improve that process. As
I indicated in my earlier testimony, if we had a designated
intelligence capability within each agency, that might help
facilitate that process.
Mr. Dent. Thank you.
Mr. Edwards. I believe that the greatest thing that is
needed is getting people on-line and getting the information
moved along more quickly. I think we have a lot of duplicative
efforts that now in times of troubled economy that we don't
need. We have people that don't know the roles in intelligence,
and they are not getting the information out in a timely
fashion. They don't understand about the collection procedures
and how it is distributed even on a national basis. I think a
lot of attention should be paid to that quickly, and there
should be demands made by Congress that they report back as to
progress they have made within a short period of time.
Mr. Dent. Sheriff Gillespie.
Sheriff Gillespie. No doubt improvements have been made
since 9/11; however, from my perspective, I read a book once,
``Five Dysfunctions of a Team'', and fear of conflict and lack
of trust--I believe those are the stumbling blocks to us in our
information-sharing process. I believe we are making inroads,
but as I stated before, that aspect of including us in the
development of policies and protocols is essential to this
information sharing from an intelligence standpoint throughout
America.
Mr. Dent. Who don't you trust?
Sheriff Gillespie. Well, I don't think it is that I don't
trust. I think other agencies don't necessarily trust. I think
there is ingrained levels of distrust within law enforcement
communities. I use an example, when I was a street cop, I would
carry around my notebook, and I still have it today. I used to
write a lot of information in it. In the early days in
policing, you didn't hand that off to someone, you kept it
pretty close to yourself.
Over the years we have learned that that is not the most
appropriate way nor the effective way or efficient way to do
policing. We are dealing with that at the national level, and I
don't think we can turn a blind eye to it. I don't think we can
ignore it. You have to deal with the brutal facts, and the
brutal facts are we are not necessarily exchanging the
information as quickly and as efficiently as we need to.
How do we overcome that? I believe including us in the
processes, asking us our thoughts. We made the commitment a few
weeks ago to Secretary Napolitano. She took time out of her day
to come and meet with myself, Gary and a variety of other law
enforcement officials, and we said to her, we are willing to
commit our resources to come back here and do that.
Behind me sit two officers from my agency, one of which is
assigned to the NCTC, part of the ITACG program. I tell you
what, if I will commit someone to that, I commit another person
to the NOC, I will definitely commit someone to working on
these policies.
Mr. Dent. Commander.
Ms. McNamara. I recently did a loan with Director Leiter at
the National Counterterrorism Center. It was very enlightening
for us, and it highlighted what we lack. Local law enforcement
lacks the timely, consistent flow of information and
intelligence that we could put on top of our SAR process for
true situational awareness. We also lack the proper receptacles
at local law enforcement and the processes. So we need
improvement as well. So it is not just the Federal look, but it
can be blended to do a better job in the future.
Mr. Dent. Yield back.
Ms. Harman. The gentleman yields back.
I would point out to our witnesses something that we say in
many hearings. This committee views its role as representing
you at the Federal level, not the other way around,
representing the Federal level in the communities. We think
your perspective that the way information is prepared and the
way information moves is--for you is exactly right, and that is
why we have made such an effort to include local law
enforcement in the ITACG team process, which we insisted on, by
the way. That is why we continue to think that the I&A function
should be primarily led by people with your perspective.
The Chair now yields 5 minutes to Mr. Green of Texas.
Mr. Green. Thank you, Madam Chair. I thank you and the
Ranking Member for this outstanding hearing. I am most
appreciative that we have these witnesses who have provided us
with information that I deem to be critical and exceedingly
important.
I believe that our mission is to limit the use of our first
responders by making greater use of our first preventers. I
think that a number, a good number, of you talked about how
first preventers can prevent the use of first responders. I
think it is important what has been said about educating first
preventers and understanding who the first preventers are.
Chief, you reference the officer on the street, clearly a
first preventer. But I would also add to a certain extent, with
your consent and permission, because I would like to hear your
response, the security officer who may be a licensed peace
officer or who may not be, but who does have a watch, who may
be at a hotel or on some apartment complex. I would add that we
broaden that concept of first preventers such that we include
literally anyone who has a watch, such that the person
understands that he or she is a part of a homeland security
network, and that intelligence acquisition is in his or her
hands while he or she is on watch, and perhaps while you are
off watch if something out of the ordinary should come within
your purview.
So, Chief, if you would, tell me how broad do you think the
definition of first preventers should be?
Chief Gaissert. Congressman, I appreciate your
observations. They are poignant, and I address this to some
extent in the full written testimony, but this is one of the
salient strengths of the Israeli model of homeland security,
because they integrate the ability to obtain information from
citizens, from private security companies, from civic groups,
from anyone who has eyes and ears on the ground. So first
preventers, in my view, would reasonably be the citizen on the
street. If we can get them to understand that when they see
things, it is like an old street cop: If it don't look right or
it don't sound right, and he starts scratching into it or she
starts looking into it a little bit, if it don't look right or
it don't sound right, somebody needs to notify the appropriate
authorities.
That doesn't mean to create some panic situation or to try
to foster some sort of mentality of paranoia, but it does mean
that we need to educate our first responders and the public in
general on preattack indicators.
Mr. Green. Thank you, Chief.
Let me make one additional comment--I have about a minute
and 10 seconds left--to Mr. Edwards. Sir, you indicated that,
and I am paraphrasing, that you perceive yourself to be on
paper, but off the radar, and I paraphrased it, but that was
the essence of what I heard. I would like to give you an
assurance, and I believe that this is what persons of goodwill
would say, is that we want to make sure that you are not only
on the radar, but you are part of the system that operates the
radar, and that we make good use of the intelligence that you
may be able to help us and provide to us. But for fear that I
may not have heard you entirely correct, would you kindly give
additional information as to the extent that you perceive
yourself to need greater inclusivity?
Mr. Edwards. Your statement was exactly accurate, and I
thank you for that, sir. I thank the committee for being
concerned here. I think that is exactly right. It is just like
everyone here today; whenever you talk about law enforcement or
partners or communications, you are talking about State and
local. When you talk about the head of DHS or I&A, you are
talking about State, local sheriffs, no mention of Tribal. If
you look at the legislation, we have done a good job of getting
Tribal in there. Everywhere it says Federal, State, and local,
we have got Tribal in there. But it is in there, but it is not
really happening out in the field.
To give you a prime example of that, with regard to a
survey that was just sent out by the ITACG and we just got back
regarding fusion centers and regarding the packages of
information that they are sending down, the intelligence down
to the field, they contacted 480 outlets. Of that 480 that
responded, only 3 were Tribal. Two represented Tribal fire
departments from California and one Tribal law enforcement from
Alabama. So consequently, that is a prime indicator that we are
not included.
Eighty percent of the Navajo reservation, larger than the
State of West Virginia and several Northeastern States, has 80
percent inability to communicate via radios or cell phones on
that vast reservation. A lot of people out there, their primary
first language is not English. Native Americans in dealing with
Native American communities are unique, and they must be dealt
with uniquely because of the cultural differences and the
isolation that has been placed on our people in dealing with
things for hundreds of years. But we are open to work and help.
We have had one hand tied behind us because we are a small
population, and in many places like the Navajo Reservation, we
have parts of the reservation in four separate States. It
almost makes it impossible to meet the requirements to be able
to get Homeland Security funding through the State.
But yet with that arm tied behind our back, we are still
fighting, and we are fighting for this country and the citizens
of this country, and we need your help to make sure we are
included.
Ms. Harman. Thank you, Mr. Edwards, and thank you, Mr.
Green. I let the time run over because I thought it was very
important for that statement to be on the record. I also want
to suggest, if it has not happened yet, that a Tribal person be
one of the local people included in the ITACG in the near
future. I think your perspective is very valuable.
A final set of questions comes from Mr. Broun of Georgia.
Mr. Broun. Thank you, Chair Harman.
We know that information sharing is a vital part of
preventing the next terrorist attack. I, as well as, I am sure,
you, have gathered from what Chair Harman has stated and my
dear friend Mr. Green has stated that we consider you guys to
be right on the front line of that information-gathering
process as well as sharing that information.
The Department of Homeland Security has the responsibility
to receive the information from and to provide information to
the State and local law enforcement. I know that everyone on
this subcommittee wants to ensure that the information that you
receive from the Department is useful at your level, the local
level, as well as the State level.
Chief Gaissert, could you elaborate on the specific
challenges that rural law enforcement agencies and officials
face with regard to dealing with terroristic threats in more
rural areas? Specifically are you getting enough information to
deal with the threats in your specific jurisdiction?
Chief Gaissert. Congressman, we have special challenges in
rural and semirural areas of this Nation. Primarily among them
would be manpower and boat, the equipment and type of
particularly tactical training that would be necessary to meet
that type of threat, certainly if we were engaged in some sort
of Mumbai attack.
In my view, training would be one of the most critical
components, and it is an area where we do need more support. I
think that you would find in most jurisdictions, such as ours
in Jackson County, Georgia, that the average police officer
does not receive much in the way of counterterrorism training
outside of the 4 hours in basic mandate, which is in basic
academy training. Once that is completed, unless they seek out
on their own or their agency will support that process, there
is little in the way of additional training. That is not to say
that we don't have very well-trained tactical teams and a
specialized or special operations unit. I was a street cop, and
my heart is with that street officer, and I think that is
probably one of the greatest opportunities we have to deter and
to interdict terrorist attacks.
We are facing a very determined enemy. Take a moment in
December 1978, the 40th Soviet Army rolled into Afghanistan. By
1985 they had approximately 130,000 troops in theater. They
left in 1988 with 26,000 casualties. Now, these were not Boy
Scouts; these were combat veterans, and they had reasonably
good equipment. Albeit we were providing sport to the
mujahideen; however, once that action was over, an American
journalist interviewed a Taliban leader and asked him this
question. He said, how is it that you were able to fight the
Russian Army to a stump on horseback? The response was this,
and I quote. He said, ``We intended to fight to the last man,
and they didn't.''
General Sun Tzu said in the 6th century you have to become
your enemy. You have to understand him and his epistemology
through his eyes. So I think we have a real opportunity and
duty to educate particularly down to the street officer level
exactly the nature and character of the enemy, as well as to
provide him with the tools necessary to meet that challenge
should it occur.
Mr. Broun. Well, thank you. I have got a whole bunch of
questions I am sure we are going to submit to you guys.
I as well as, I think, everybody on this committee are very
concerned about homegrown terrorists. So I would just like to
add that I am going to ask you all a question, each of you,
about preventing homegrown terrorism and how to interdict that
type of threat in this Nation. So I would like to get your
ideas in writing. So I look forward to your answers on that,
and, Madam Chair, I yield back.
Ms. Harman. Thank you, Mr. Broun. I assume it is fine with
the witnesses to respond in writing to that very important
question. Great.
This panel has been excellent. All of you have contributed
important information to the record of this committee. I would
love to go a second round, but we have a second panel. If it is
possible for you to remain here, that would be good, because
you will hear some thoughtful testimony, I promise you it is
very thoughtful, on some issues that are involved in getting
homeland security intelligence right. So please stick around if
you can. Certainly our committee Members will stick around.
It will take about a minute for the clerk to change the
witness table, so we will suspend for a minute or two. Thank
you.
Second panel are all set up? Very efficient. I want to
commend the clerk and welcome the second panel of witnesses.
Our first witness is not new to this committee and
certainly not new to me, Caroline Fredrickson, who is the
Director of the Washington Legislative Office of the ACLU. She
is that organization's top lobbyist and supervises a nearly 60-
person team in promoting ACLU priorities in Congress.
Ms. Fredrickson has years of experience as a senior staffer
on Capitol Hill, having previously served as Chief of Staff to
Senator Maria Cantwell and as Deputy Chief of Staff to then-
Senate Minority Leader Tom Daschle. In 1998 and 1999, she was a
Special Assistant to the President for Legislative Affairs, a
position that required her to work closely with both parties in
the Senate to forge bipartisan agreements on the White House's
legislative priorities. She is a Columbia University Law School
graduate and was a Harlan Fiske scholar.
Our second witness, Greg Nojeim, again is not new to me and
not new to the projects of this committee. He is the Director
of the Project on Freedom, Security & Technology at the Center
for Democracy & Technology.
Mr. Nojeim has substantial experience on the application of
the Foreign Intelligence Surveillance Act and on the civil
liberties protection it affords. His expertise also includes
governmental data mining, the PATRIOT Act, the state secrets
privilege, and the privacy implications of aviation security
measures.
Mr. Nojeim previously worked at the Washington Legislative
Office at the ACLU, a little incestuous here, for 12 years. He
has frequently testified before Congress about antiterrorism
and aviation security legislation counterterrorism proposals,
the use of secret evidence in immigration proceedings, driver's
license privacy, aviation security profiling, and the intrusive
body scan technologies, and finally the threat to civil
liberties that might be caused by national ID cards.
Our third witness, Kate Martin, is the Director of the
Center for National Security Studies, another old buddy. That
is a nonprofit human rights and civil liberties organization.
She previously served as litigation director for the center
when it was a joint project of the ACLU and the Fund for Peace.
From 1993 to 1999, Ms. Martin was also codirector of a
project on security services in a constitutional democracy in
12 former Communist countries in Europe. She has taught
strategic intelligence and public policy at Georgetown Law
School and also served as general counsel to the National
Security Archive, a research library located at the George
Washington University.
Ms. Martin has litigated causes involving the entire range
of national security and civil liberties issues, including
serving as lead counsel in a lawsuit brought by more than 20
organizations challenging the secret arrest of 1,200 people in
the wake of September 11.
As you all know, your written testimony will be printed in
the record in full. I am now asking that each of you summarize
your written testimony in 5 minutes. We will start with Ms.
Fredrickson.
STATEMENT OF CAROLINE FREDRICKSON, DIRECTOR, WASHINGTON
LEGISLATIVE OFFICE, AMERICAN CIVIL LIBERTIES UNION
Ms. Fredrickson. Good morning, Chair Harman, Ranking Member
McCaul, and my dear friends and colleagues on the panel. Thank
you very much for the opportunity to testify on behalf of the
American Civil Liberties Union.
The ACLU testified before the full Homeland Security
Committee in 2007 to express our concerns about the
Department's use of spy satellites through its National
Applications Office. We would like to thank Chairman Thompson
and Chair Harman for their leadership in challenging NA's
funding unless and until a proper legal framework can be
established to protect the privacy of Americans.
Recent news that DHS is using Predator drones for
surveillance on our northern border raises similar concerns, as
do warrantless laptop and cell phone searches and other data
seizures at the U.S. border, and we look forward to working
with you to address these concerns.
My written testimony explores both practical and
theoretical problems with the concept of homeland security
intelligence, but in my time today I will focus on known
abuses.
By their nature, all domestic intelligence operations pose
a threat to civil liberties and democratic processes. Whenever
the Government is involved in gathering information about
Americans, absent a reasonable suspicion of criminal activity,
there is a substantial risk of chilling lawful dissent and
associations.
As the Supreme Court observed in the Keith case, history
abundantly documents the tendency of Government, however
benevolent and benign its motives, to view with suspicion those
who most fervently dispute its policies.
Let me highlight a few recent incidents that suggest DHS is
ignoring this history in its zeal to establish an intelligence
role and improperly monitoring peaceful advocacy groups and
religious and racial minorities. Last month a Texas fusion
center supported by DHS released an intelligence bulletin that
described a purported conspiracy between Muslim civil rights
organizations' lobbying groups, the antiwar movement, a former
U.S. Congresswoman, the U.S. Treasury Department and hip-hop
bands to spread sharia law in United States.
The bulletin, which reportedly is sent to over 100
different agencies, would be laughable, except that it comes
with the imprimatur of a federally backed intelligence
operation, and it directs law enforcement officers to monitor
the activities of these groups in their areas.
We don't know whether anyone launched surveillance of hip-
hop artists based on this report, but if they did, it would be
far from the first such silly and unjustified investigation in
our history.
The ACLU of Maryland recently uncovered a Maryland State
Police intelligence operation that targeted 53 nonviolent
political activists, including peace activists, Quakers, and
death penalty opponents, based solely on the exercise of their
first amendment rights. We now know that DHS was involved in
collecting and disseminating the e-mails of one of the peace
groups subjected to the Maryland spying operation. This is
alarming, particularly because DHS representatives had
previously denied to Members of Congress that DHS had any
information on the matter. A DHS spokesman later told the
Washington Post that law enforcement agencies exchange
information regarding planned demonstrations, ``every day.''
A March 2006 protective intelligence bulletin issued by the
Federal Protective Service listed several advocacy groups that
were targets of the Maryland operation. It contains a, ``civil
activist and extremist action calendar,'' that details dozens
of demonstrations planned around the country, mostly peace
rallies. There is no indication anywhere in the document to
suggest that illegal activity might occur at any of these
demonstrations. The Federal Protective Service apparently
gleans this information from the Internet, but it is not clear
under what authority DHS officials are monitoring the Internet
to document and report on the activities of, ``civil
activists.''
What is clear is that the Maryland police and DHS spying
operations targeting peaceful activists serve no legitimate law
enforcement, intelligence, or homeland security purpose. They
were a threat to free expression, and they were a waste of time
and money.
Another intelligence report produced for DHS by a private
contractor smears environmental organizations like the Sierra
Club, the Humane Society, the Audubon Society as, ``mainstream
organizations with known or possible links to ecoterrorism.''
Spying on the innocent does not protect security. Domestic
intelligence operations are dangerous to our freedom unless
they are narrowly focused on real threats, tightly regulated,
and closely monitored.
We look forward to working with this subcommittee to
examine DHS's involvement in monitoring peaceful advocacy
organizations and to construct checks and balances that will
prevent abuses.
[The statement of Ms. Fredrickson follows:]
Prepared Statement of Caroline Fredrickson
March 18, 2009
Good morning Chair Harman, Ranking Member McCaul, and Members of
the subcommittee. Thank you for the opportunity to testify on behalf of
the American Civil Liberties Union, its hundreds of thousands of
members and 53 affiliates Nation-wide, regarding the intelligence
activities of the Department of Homeland Security (DHS). As you know,
the ACLU testified before the full Homeland Security Committee in 2007
to express our concerns about the Department's domestic use of spy
satellites through its National Applications Office (NAO).\1\ We know
this committee shares our unease with this program and we would like to
thank Chairman Thompson and Chair Harman for their leadership in
challenging the NAO's funding unless and until a proper legal framework
can be established to protect the privacy of ordinary Americans.\2\
Recent news that DHS is using Predator drones for surveillance on our
northern border raises similar concerns,\3\ as do warrantless laptop
and cell phone searches and other data seizures at the U.S. border. We
look forward to working with you to address these matters.
---------------------------------------------------------------------------
\1\ Turning Spy Satellites on the Homeland: the Privacy and Civil
Liberties Implications of the National Applications Office: Hearing
before the H. Comm. on Homeland Security, 110th Cong. (Sept. 6, 2007)
(statement of Barry Steinhardt, Director, Technology and Liberty
Program, American Civil Liberties Union), available at http://
www.aclu.org/images/asset_upload_file278_31829.pdf.
\2\ See Letter from Rep. Bennie G. Thompson, Chairman, Committee on
Homeland Security, U.S. House of Representatives, Rep. Jane Harman,
Chair, Subcommittee on Intelligence, Information Sharing, and Terrorism
Risk Assessment, Committee on Homeland Security, U.S. House of
Representatives, and Rep. Christopher P. Carney, Chairman, Subcommittee
on Management, Investigations, and Oversight, Committee on Homeland
Security, U.S. House of Representatives, to Michael Chertoff,
Department of Homeland Security and Charles Allen, Office of
Intelligence and Analysis, Department of Homeland Security (Apr. 7,
2008) (on file with authors), available at http://www.gwu.edu/nsarchiv/
NSAEBB/NSAEBB229/44c.pdf.
\3\ Drone to Patrol Border Between Manitoba and North Dakota, The
Canadian Press, Feb. 16, 2009, http://cnews.canoe.ca/CNEWS/World/2009/
02/16/8412951-cp.html.
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But rather than focus on particular programs I would like to ask
more fundamental questions about the role of intelligence in homeland
security, and particularly within DHS. As explained below, problems
inherent in the way the intelligence community produces
``intelligence'' limit its reliability, rendering its value in
improving security suspect. In addition, ``homeland security'' is a
relatively new and exceptionally broad concept that combines protecting
against traditional threats from hostile nations, terrorists, and other
criminal groups with preparing to respond to outbreaks of infectious
disease, natural disasters, and industrial accidents. While these are
all important missions, taking such an unfocused ``all crimes, all
hazards''\4\ approach to intelligence collection poses significant
risks to our individual liberties, our democratic principles and,
ironically, even our security. Frederick the Great warned that those
who seek to defend everything defend nothing. Especially at a point in
history when the troubled economy is regarded as the most significant
threat to national security, we must ensure that all of our security
resources are used wisely and focused on real threats.\5\
Unfortunately, U.S. intelligence activities have too often targeted
political dissent as a threat to security, which has led to misguided
investigations that violated rights, chilled free expression, and
wasted the time and resources of our security agencies. Recent events
indicate that in its zeal to fulfill its broad mandate and establish an
intelligence capability, DHS is repeating these mistakes. If DHS is to
have a meaningful intelligence role that actually enhances security, it
must assess the information it produces accurately, identify an
intelligence need to be served, and evaluate whether it can fill this
need without violating the privacy and civil rights of innocent
Americans. Congress should evaluate these programs regularly and
withhold funding from any activities that are unnecessary, ineffective,
or prone to abuse.
---------------------------------------------------------------------------
\4\ Todd Masse, Siobhan O'Neil & John Rollins, Congressional
Research Service, CRS Report for Congress: Fusion Centers: Issues and
Options for Congress 22 (July 6, 2007), available at http://
www.fas.org/sgp/crs/intel/RL34070.pdf.
\5\ Current and Projected National Security Threats to the United
States: Hearing before the S. Select Comm. on Intelligence, 111th Cong.
(Feb. 12, 2009) (statement of Admiral Dennis C. Blair, Director of
National Intelligence), http://www.dni.gov/testimonies/
20090212_testimony.pdf.
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i. the relevance of intelligence in homeland security
The immediate obstacle to determining the relevance of intelligence
in homeland security is the lack of a commonly understood definition of
``intelligence.''\6\ People often hear the word and assume that this
type of information has some magical quality giving it heightened
importance and meaning. But by its very nature, intelligence is often
uncorroborated, inadequately vetted, and fragmentary at best, and
unreliable, misleading, or just plain wrong at worst. This deficiency
is due to the secretive manner in which intelligence agencies gather,
analyze, use and report information. By allowing people to report
information against their neighbors or colleagues in secret, the social
mores and legal consequences that normally restrain people from making
false or misleading accusations are removed. By masking the sources and
methods used to obtain this information, ``intelligence'' is stripped
of the most essential clues for determining its value. Knowing whether
an accusation that a politician is misusing campaign funds is coming
from a trusted insider, a political opponent or an unemployed cab
driver makes all the difference in determining its credibility. By then
compartmentalizing this information and limiting its distribution,
outside experts are prevented from effectively evaluating or
challenging the finished ``intelligence.'' And finally, by keeping
contradictory pieces of intelligence and dissenting opinions secret,
policymakers can too easily ignore information or advice that might
weigh against the policies or activities they choose to pursue. None of
these processes necessarily make the final product false; they simply
reduce the probability that it is reliable. If we called this material
``unsubstantiated allegations,'' ``rumor,'' ``speculation,'' or
``educated guesses'' we would understand its value, but when we call it
``intelligence'' it takes on a significance it does not necessarily
deserve.
---------------------------------------------------------------------------
\6\ See, Mark A. Randol, Congressional Research Service, CRS Report
for Congress: Homeland Security Intelligence: Perceptions, Statutory
Definitions and Approaches 2 (Jan. 14, 2009), available at http://
fas.org/sgp/crs/intel/RL33616.pdf (``At the broadest level, there is a
plethora of definitions for intelligence.'').
---------------------------------------------------------------------------
Mark Randol of the Congressional Research Service argues that
``raw'' information does not become intelligence ``until its sources
have been evaluated, the information is combined or corroborated by
other sources, and analytical and due diligence methodologies are
applied to ascertain the information's value.''\7\ But this asks too
much of a closed analytical process. Investigations into the
intelligence failures regarding the presence of weapons of mass
destruction in Iraq prior to the U.S. invasion, for example, find no
shortage of attempts to validate the separate pieces of information.\8\
This information was subjected to all the processes Randol describes,
but in the end the ``finished'' intelligence was wrong. As the Senate
Intelligence Committee Phase II report concluded, ``[i]t is entirely
possible for an analyst to perform meticulous and skillful analysis and
be completely wrong.''\9\ In the end, the intelligence community chose
to rely on an untrustworthy source named ``Curveball'' despite ample
warnings that he was a fabricator,\10\ and policymakers failed to heed
dissenting opinions about whether aluminum tubes Iraq purchased were
designed for use in a nuclear centrifuge.\11\ These failures in pre-war
intelligence were not because of a lack of process, rather because of
what the process lacked.
---------------------------------------------------------------------------
\7\ Mark A. Randol, Congressional Research Service, CRS Report for
Congress: Homeland Security Intelligence: Perceptions, Statutory
Definitions and Approaches 2 (Jan. 14, 2009), available at http://
fas.org/sgp/crs/intel/RL33616.pdf.
\8\ See, S. Rep. No. 108-301(2004), available at http://
www.gpoaccess.gov/serialset/creports/iraq.html; S. Rep. NO. 109-331
(2006), available at http://intelligence.senate.gov/phaseiiaccuracy.pdf
(Phase II Report).
\9\ S. Rep. No. 109-331, at 6 (2006), available at http://
intelligence.senate.gov/phaseiiaccuracy.pdf (Phase II Report).
\10\ Bob Drogan and Greg Miller, Curveball Debacle Reignites CIA
Feud, L.A. Times, Apr. 2, 2005, available at http://
articles.latimes.com/2005/apr/02/nation/na-intel2.
\11\ David Barstow, William J. Broad, and Jeff Gerth, How the White
House Embraced Disputed Arms Intelligence, N.Y. Times, Oct. 3, 2004,
available at: http://www.nytimes.com/2004/10/03/international/
middleeast/03tube.html.
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Our legal system provides a contrasting method for determining the
reliability of information. Centuries of jurisprudence have distilled
rules of evidence and procedure that are specifically designed to
provide the analytical due diligence Randol says is necessary for
converting information into intelligence, though in the legal system
this information is called ``evidence.'' Evidence is ``something (as
testimony, writings, or objects) presented at a judicial or
administrative proceeding for the purpose of establishing the truth or
falsity of an alleged matter of fact'' (emphasis added).\12\ The rules
of evidence are not arbitrary obstacles for lawyers to navigate; they
represent time-tested methods for discerning truth. In order to be
admitted into evidence documents must be authenticated by the
individual or organization that produced them. Witnesses are examined
in public and under oath. Information known to be obtained through
unreliable means, such as coerced confessions, is not admissible. And
once entered, evidence is challenged in an adversarial process, before
a neutral arbiter and a jury of ordinary citizens serving as the
ultimate fact-finders. Finally, this process is conducted in public, so
that the justice system and those who work within it are accountable to
the people they serve. A closed intelligence process simply cannot
match this rigorous testing, and the reliability of the information it
produces suffers as a result.
---------------------------------------------------------------------------
\12\ Miriam-Webster's Dictionary of Law 171-72 (1996).
---------------------------------------------------------------------------
The one thing that is certain about ``intelligence,'' is that it is
only valuable to our security when it is true. Faulty intelligence is
worse than no intelligence at all because it compels policymakers to
take actions that may not have been necessary or to fail to take
actions that were. And errors in intelligence are often compounded
because security resources are finite. Increasing the assets directed
at one threat invariably means reducing efforts devoted to another. For
example, the New York Times reported that FBI officials began noticing
a surge of mortgage frauds in 2003 and 2004 but their requests for
additional resources to address financial crimes were denied by a
Justice Department focused on counterterrorism.\13\ Yet Director of
National Intelligence Dennis Blair now identifies the global economic
crisis as the ``primary near-term security concern of the United
States.''\14\ Intelligence programs that focus on the last crisis to
the detriment of anticipating the next crisis do not provide real
security.
---------------------------------------------------------------------------
\13\ Eric Lichtblau, David Johnston, and Ron Nixon, FBI Struggles
to Handle Financial Fraud Cases, N.Y. TIMES, Oct. 18, 2008, available
at http://www.nytimes.com/2008/10/19/washington/
19fbi.html?pagewanted=1&_r=1&dbk.
\14\ Current and Projected National Security Threats to the United
States: Hearing before the S. Select Comm. on Intelligence, 111th Cong.
2 (Feb. 12, 2009) (statement of Admiral Dennis C. Blair, Director of
National Intelligence), http://www.dni.gov/testimonies/
20090212_testimony.pdf.
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All of the problems of unreliability of intelligence are compounded
with a new system of collection, and the negative impacts are many
times greater when the ears and eyes are not pointed outward but inward
to the United States. When intelligence subjects are not foreign
nations or their military and intelligence operatives, but citizens,
lawful permanent residents, and visa holders of our country, the checks
and balances must be significantly enhanced over the minimal
supervision given other parts of the intelligence apparatus. Therefore,
Congress must be especially mindful of the limits of intelligence as it
evaluates DHS intelligence programs. Congress should demand empirical
evidence that these programs actually enhance security before funding
them, particularly where they impact the rights and privacy of innocent
Americans. So many of the broad information collection programs the
intelligence community instituted over the last 8 years were premised
on the idea that data mining tools could later be developed to find
meaning in these vast pools of data collected,\15\ but a recent study
funded by DHS found that such programs were likely a wasted effort:
---------------------------------------------------------------------------
\15\ Jeffrey W. Seifert, Congressional Research Service, CRS Report
for Congress: Data Mining and Homeland Security: An Overview (Jan. 18,
2007), available at http://www.fas.org/sgp/crs/intel/RL31798.pdf.
``Automated identification of terrorists through data mining (or any
other known methodology) is neither feasible as an objective nor
desirable as a goal of technology development efforts. One reason is
that collecting and examining information to inhibit terrorists
inevitably conflicts with efforts to protect individual privacy. And
when privacy is breached, the damage is real. The degree to which
privacy is compromised is fundamentally related to the sciences of
database technology and statistics as well as to policy and
process.''\16\
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\16\ National Research Council, Protecting Individual Privacy in
the Struggle Against Terrorists: A Framework for Program Assessments,
Committee on Technical and Privacy Dimensions of Information for
Terrorism Prevention and Other National Goals (Oct. 2007), available at
http://www.nap.edu/catalog.php?record_id=12452.
Congress cannot afford to allow DHS, or any other intelligence agency,
to continue investing in unproven technologies that harm privacy but
provide no real security benefit.
ii. the limitations of homeland security intelligence
Intelligence has traditionally been divided into two spheres,
foreign and domestic, which operate under different legal regimes.
``Foreign intelligence,'' which is directed at foreign powers and their
agents and is conducted primarily outside the United States, has less
restrictive regulations and oversight, while ``domestic intelligence,''
directed primarily at U.S. persons and conducted inside the United
States is generally more regulated. Randol suggests that the advantage
of ``homeland security intelligence'' as a discipline distinct from
foreign or domestic intelligence is that it allows a holistic approach
that is free from constraints of geography, level of government, or
mutual mistrust between the public and private sectors.\17\
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\17\ Mark A. Randol, Congressional Research Service, CRS Report for
Congress: Homeland Security Intelligence: Perceptions, Statutory
Definitions and Approaches 13 (Jan. 14, 2009), available at http://
fas.org/sgp/crs/intel/RL33616.pdf.
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The danger with this approach is that the constraints are often
specifically designed, or at least operate in practice, to protect the
privacy and civil rights of U.S. persons. Blending the two disciplines
necessarily leads to a dilution of privacy protections for U.S. persons
as less restrictive methods of gathering foreign intelligence are
increasingly used against U.S. persons. For instance, more than half of
the roughly 50,000 National Security Letters the FBI issues each year,
which were originally designed for use only against agents of foreign
powers, now target U.S. persons.\18\ Moreover, the compelling mission
to protect the homeland would likely drive routine overrides of
minimization procedures restricting the dissemination of U.S. person
information collected under a foreign intelligence rubric,\19\
particularly as intelligence agents take the ``better safe than sorry''
approach that led to excessive number of nominations to the terrorist
watch lists.\20\
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\18\ U.S. Department of Justice, Office of Inspector General, A
Review of the Federal Bureau of Investigation's Use of National
Security Letters (Mar. 2007), available at http://www.usdoj.gov/oig/
special/s0703b/final.pdf.
\19\ See, National Security Agency, Report to Congress: Legal
Standards for the Intelligence Community in Conducting Electronic
Surveillance (Feb. 2000), available at http://www.fas.org/irp/nsa/
standards.html (``The overarching standard as implemented in both E.O.
12333 and FISA minimization procedures is that to disseminate
personally identifiable information concerning a U.S. person, the
information must be found necessary to understand a particular piece of
foreign intelligence or assess its importance'').
\20\ Department of Justice, Office of Inspector General Review of
the Terrorist Screening Center viii (June 2005), available at http://
www.fas.org/irp/agency/doj/oig/tsc.pdf.
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More significantly, while DHS will undoubtedly require access to
foreign intelligence collected by the other intelligence agencies to
fulfill its mission, its focus on protecting the ``homeland'' will
drive a primarily domestic intelligence program. The DHS intelligence
mission statement, ``to provide homeland security intelligence and
information to the Secretary, other Federal officials, and our state,
local, tribal and private sector partners,'' suggests a domestic
focus.\21\ And the DHS intelligence components, the U.S. Citizenship
and Immigration Services, U.S. Coast Guard, U.S. Customs and Border
Protection, U.S. Immigration and Customs Enforcement and the
Transportation Security Administration, will disproportionately gather
U.S. person information in the course of fulfilling their mission
responsibilities.
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\21\ Department of Homeland Security, Office of Intelligence and
Analysis web page, http://www.dhs.gov/xabout/structure/
gc_1220886590914.shtm (last visited Mar. 11, 2009).
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By their nature, all domestic intelligence operations pose a threat
to civil liberties and democratic processes. Whenever the Government is
involved in gathering information about Americans without a reasonable
suspicion of criminal activity, there is substantial risk of chilling
lawful dissent and association. As the Supreme Court observed in United
States v. United States District Court (Keith), ``[h]istory abundantly
documents the tendency of Government--however benevolent and benign its
motives--to view with suspicion those who most fervently dispute its
policies.''\22\
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\22\ United States v. United States Dist. Court (Keith), 407 U.S.
297, 313-314 (1972).
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Evidence of Abuse
Several recent incidents seem to indicate DHS is ignoring this
history in its zeal to establish an intelligence role, and improperly
monitoring peaceful advocacy groups and religious and racial
minorities. Charles Allen, DHS Under Secretary for Intelligence and
Analysis, said one of the analytic elements his office assesses is the
threat of radicalization and extremism. The ACLU is concerned that
these terms are ill-defined and seem to suggest a connection between
terrorism and advocacy against Government policies. Under Secretary
Allen stated categorically in recent testimony that DHS does not
monitor known extremists and their activities, but documents obtained
by the ACLU suggest otherwise.\23\
---------------------------------------------------------------------------
\23\ Homeland Security Intelligence at a Crossroads: The Office of
Intelligence and Analysis' Vision for 2008: Hearing before the Subcomm.
on Intelligence, Information Sharing, and Terrorism Risk Assessment of
the H. Comm. on Homeland Security, 110th Cong. 4 (Feb. 26, 2008)
(Statement of Charles E. Allen, Under Secretary for Intelligence and
Analysis, Department of Homeland Security), available at http://
homeland.house.gov/SiteDocuments/20080226165154-47048.pdf.
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The ACLU of Maryland recently uncovered a Maryland State Police
(MSP) intelligence operation that targeted 23 non-violent political
advocacy organizations based solely on the exercise of their First
Amendment rights.\24\ MSP spying activities were aimed at peace
advocates like the American Friends Service Committee (a Quaker
organization) and Women in Black (a group of women who dress in black
and stand in silent vigil against war), immigrants rights groups like
CASA of Maryland, human rights groups like Amnesty International, anti-
death penalty advocates like the Maryland Citizens Against State
Executions, and gay rights groups like Equality Maryland, among others.
Many of the members of these organizations were referenced as
terrorists in a Federal database.
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\24\ See, ACLU of Maryland ``Stop Spying'' info page, http://
www.aclu-md.org/Index%20content/NoSpying/NoSpying.html (last visited
Mar. 11, 2009).
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The revelation that DHS was involved in collecting and
disseminating the e-mails of one of the peace groups subjected to the
MSP spying operation is alarming,\25\ particularly because DHS
representatives had previously denied that DHS had any information
regarding the MSP investigations targeting these protesters.\26\ In a
letter to U.S. Senators Benjamin Cardin, Barbara Mikulski and Russ
Feingold, DHS said it had done an ``exhaustive'' search of its
databases and could find no information relating to the MSP
surveillance operations. Yet MSP documents provided to the ACLU
indicate that DHS Atlanta provided MSP with information regarding its
investigation of the DC Anti-war Network (DAWN). An entry in the MSP
files dated June 21, 2005 says:
---------------------------------------------------------------------------
\25\ Lisa Rein, Federal Agency Aided Md. Spying, Washington Post,
Feb. 17, 2009, at: http://www.washingtonpost.com/wp-dyn/content/
article/2009/02/16/AR2009021601131.html.
\26\ Letter from Jim Howe, Acting Assistant Secretary, U.S.
Department of Homeland Security, to Senator Benjamin L. Cardin, (Jan
29, 2009) (on file with author).
``The US Department of Homeland Security, Atlanta, recently forwarded
two emails from [REDACTED] an affiliate of the DC DAWN Network and the
[REDACTED]. Activists from DAWN, [REDACTED] and other groups working
under the banner of [REDACTED] are going to stage several small (12-15)
weekly demonstrations at the Silver Spring Armed Forces Recruitment
Center (AFRC). If there is enough support these will become weekly
vigils.''\27\
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\27\ Maryland State Police Intelligence File on the D.C. Anti-War
Network (DAWN), p. 13, (2005) (on file with the ACLU). This document
was released pursuant to the Maryland's Public Information Act. See
Public Information Act, Md. Code Ann., State Gov't 10-630 (West
2008).
Not only was DHS apparently aware of the MSP investigation, it was
actually monitoring the communications of DAWN affiliates and
forwarding them to MSP. We want to know how and why DHS obtained these
e-mails (which contained no reference to any illegal activity), why DHS
disseminated them to the MSP, and why DHS could not find records
documenting this activity in the DHS databases.
Contrary to what DHS told the senators, a DHS spokesman quoted in
the Washington Post said that law enforcement agencies exchange
information regarding planned demonstrations ``every day.''\28\ Indeed,
a March 2006 ``Protective Intelligence Bulletin'' issued by the Federal
Protective Service (FPS) lists several advocacy groups that were
targets of the MSP operations, including Code Pink, Iraq Pledge of
Resistance and DAWN, and contains a ``civil activists and extremists
action calendar'' that details dozens of demonstrations planned around
the country, mostly peace rallies. FPS apparently gleans this
information from the Internet. However, it is still not clear under
what authority DHS officials monitor the Internet to document and
report on the activities of ``civil activists'', since there is no
indication anywhere in the document to suggest illegal activity might
occur at any of these demonstrations. What is clear is that MSP and DHS
spying operations targeting peaceful activists serve no legitimate law
enforcement, intelligence, or homeland security purpose. The operations
threatened free expression and association rights, and they were a
waste of time.
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\28\ Lisa Rein, Federal Agency Aided Md. Spying, Wash. Post, Feb.
17, 2009, at B01, available at http://www.washingtonpost.com/wp-dyn/
content/article/2009/02/16/AR2009021601131.html.
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This bulletin is not the only indication of abuse in DHS
intelligence operations. Another intelligence report produced for DHS
by a private contractor smears environmental organizations like the
Sierra Club, the Humane Society, and the Audubon Society as
``mainstream organizations with known or possible links to eco-
terrorism.''\29\ Slandering upstanding and respectable organizations
does not just violate the rights of these groups and those who
associate with them; it undermines the credibility of all intelligence
produced by and for DHS. There is simply no value in using limited DHS
resources to generate such intelligence products--and yet these events
continue to occur.
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\29\ Universal Adversary Dynamic Threat Assessment, Eco-Terrorism:
Environmental and Animal Rights Militants in the United States, (May 7,
2008), available at http://wikileaks.org/leak/dhs-ecoterrorism-in-us-
2008.pdf.
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Last month a Texas fusion center supported by DHS released an
intelligence bulletin that described a purported conspiracy between
Muslim civil rights organizations, lobbying groups, the anti-war
movement, a former U.S. Congresswoman, the U.S. Treasury Department and
hip-hop bands to spread Sharia law in the U.S.\30\ The bulletin, which
reportedly is sent to over 100 different agencies, would be laughable
except that it comes with the imprimatur of a federally backed
intelligence operation, and it directs law enforcement officers to
monitor the activities of these groups in their areas. The ACLU has
long warned that these State, local, and regional intelligence fusion
centers lacked proper oversight and accountability and we hope the
discovery of this shockingly inappropriate report leads to much needed
examination and reform. In December 2008 the DHS Privacy Office issued
a Privacy Impact Assessment of fusion centers that echoed the ACLU's
concerns regarding the threat these rapidly expanding intelligence
centers pose to the privacy of innocent Americans.\31\
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\30\ North Central Texas Fusion System Prevention Awareness
Bulletin, (Feb. 19, 2009), available at http://www.baumbach.org/fusion/
PAB_19Feb09.doc. For a discussion of DHS support of the North Central
Texas Fusion Center, See U.S. Department of Homeland Security, Office
of Inspector General, DHS's Role in State and Local Fusion Centers is
Evolving (Dec. 2008), available at http://www.fas.org/irp/agency/dhs/
ig-fusion.pdf; General Accountability Office, Homeland Security:
Federal Efforts Are Helping To Alleviate Some Challenges Encountered by
State and Local Information Fusion Centers (Oct. 2007), available at
http://www.gao.gov/new.items/d0835.pdf.
\31\ U.S. Department of Homeland Security Privacy Impact Assessment
for the Department of Homeland Security State, Local, and Regional
Fusion Center Initiative (Dec. 11, 2008), available at http://
www.dhs.gov/xlibrary/assets/privacy/privacy_pia_T3ia_slrfci.pdf.
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Dilution of Effective Regulation
It isn't surprising that an intelligence operation with an
overbroad ``all hazards'' mission and lax oversight would trample on
individual privacy rights. The police power to investigate combined
with the secrecy necessary to protect legitimate law enforcement
operations provide ample opportunity for error and abuse, which is why
in the 1970's the Federal Government sought to establish clear
guidelines for State and local law enforcement agencies engaged in the
collection of criminal intelligence information. Title 28, Part 23 of
the Code of Federal Regulations was promulgated pursuant to 42 U.S.C.
3789(g)(c) which requires State and local law enforcement agencies
receiving Federal funding to
`` . . . collect, maintain, and disseminate criminal intelligence
information in conformance with policy standards which are prescribed
by the Office of Justice Programs and which are written to assure that
the funding and operation of these systems further the purpose of this
chapter and to assure that some systems are not utilized in violation
of the privacy and constitutional rights of individuals.''\32\
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\32\ 42 U.S.C.A. 3789(g)(c) (WEST 2007). The provision
instructing the Office of Justice Programs to prescribe regulations to
assure that criminal intelligence systems are ``not utilized in
violation of the privacy and constitutional rights of individuals'' was
added when the Omnibus Crime Control and Safe Streets Act of 1968 was
reauthorized and amended by the Justice System Improvement Act of 1979
(See, Justice System Improvement Act of 1979, Pub. L. No. 96-157, 1979
U.S.C.C.A.N. (96 Stat.) 1167, 1213, 2471-77, 2539).
The regulation was part of a series of law enforcement reforms
initiated to curb widespread abuses of police investigative authorities
for political purposes, particularly by local police intelligence units
or ``red squads,'' which often amassed detailed dossiers on political
officials and engaged in ``disruptive'' activities targeting political
activists, labor unions, and civil rights advocates, among others. In
commentary published during a 1993 revision of the regulation, the
Department of Justice Office of Justice Programs (OJP) explained the
risks to civil liberties inherent in the collection of criminal
intelligence, and the need for regulation of criminal intelligence
---------------------------------------------------------------------------
systems:
``Because criminal intelligence information is both conjectural and
subjective in nature, may be widely disseminated through the
interagency exchange of information and cannot be accessed by criminal
suspects to verify that the information is accurate and complete, the
protections and limitations set forth in the regulation are necessary
to protect the privacy interests of the subjects and potential suspects
of a criminal intelligence system.''\33\
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\33\ See Office of Justice Programs, U.S. Department of Justice,
Final Revision to the Office of Justice Programs, Criminal Intelligence
Systems Operation Policies, 1993 Revision and Commentary, 28 C.F.R.
Part 23 (1993), at 4, http://www.homeland.ca.gov/pdf/civil_liberties/
1993RevisionCommentary_28CFRPart23.pdf.
Part 23 is designed to ensure that police intelligence operations are
properly focused on illegal behavior by requiring that criminal
intelligence systems ``collect information concerning an individual
only if there is reasonable suspicion that the individual is involved
in criminal conduct or activity and the information is relevant to that
criminal conduct or activity.'' The ``reasonable suspicion'' standard
is clear, well-defined, time-tested, and universally accepted by law
enforcement agencies around the country as the appropriate standard for
regulating the intelligence collection activities of law enforcement
officers.
Unfortunately, there is a new theory of domestic intelligence that
argues that collecting even outwardly innocuous behaviors will somehow
enhance security. In 2006, former DHS Secretary Michael Chertoff said,
``Intelligence is about thousands and thousands of routine, everyday
observations and activities. Surveillance, interactions--each of which
may be taken in isolation as not a particularly meaningful piece of
information, but when fused together, give us a sense of the patterns
and flow that really is at the core of what intelligence is all
about.''\34\
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\34\ Secretary of Homeland Security Michael Chertoff, Remarks at
the 2006, Bureau of Justice Assistance, U.S. Department of Justice and
SEARCH Symposium on Justice and Public Safety Information Sharing, Mar.
14, 2006, http://www.dhs.gov/xnews/speeches/speech_0273.shtm.
It is clear from this statement that Secretary Chertoff was relying on
the extravagant promises of the now-debunked data mining technologies
to make sense of the thousand routine observations that would be
recorded each day. But suspicious activity reporting programs are
moving forward nonetheless.
In January 2008 the Office of Director of National Intelligence
(ODNI) Information Sharing Environment (ISE) Program Manager published
functional standards for State and local law enforcement officers to
report ``suspicious'' activities to fusion centers and the ISE.\35\ The
behaviors described as inherently suspicious included such innocuous
activities as photography, acquisition of expertise, and eliciting
information. We are already seeing the results of such a program as
police increasingly stop, question, and even detain innocent Americans
engaging in First Amendment-protected activity, to collect their
personal information for later use by the intelligence community.\36\
This type of information collection does not improve security; it
merely clogs criminal intelligence and information sharing systems with
irrelevant and useless data.
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\35\ Information Sharing Environment (ISE) Functional Standard (FS)
Suspicious Activity Reporting (SAR) Version 1.0, ISE-FS-200, (Jan. 25,
2008) (on file with authors).
\36\ See, Mike German and Jay Stanley, American Civil Liberties
Union, Fusion Center Report Update (July 2008), http://www.aclu.org/
pdfs/privacy/fusion_update_20080729.pdf.
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The ACLU and other privacy and civil liberties advocates are
working with the ISE Program Manager, and with several State and local
law enforcement agencies such as the Los Angeles Police Department, to
modify these programs to avoid abrogation of First Amendment rights and
the Part 23 reasonable suspicion standard. While these efforts show
some progress in strengthening privacy guidelines for these programs,
even the best internal controls have rarely proved sufficient to
eliminate abuse in intelligence programs. This subcommittee should
examine these programs closely, assess whether they demonstrably
improve security and ensure that they operate in a manner that protects
individual rights before authorizing DHS resources to support them.
iii. the role of the department of homeland security in intelligence
The Homeland Security Act of 2002 tasked DHS with the
responsibility to manage programs for sharing law enforcement and
intelligence information between the Federal Government and State,
local, and tribal authorities.\37\ Unfortunately, other Federal law
enforcement and intelligence agencies, such as the FBI, already had
well-established relationships and information-sharing arrangements
with State and local law enforcement and resisted DHS efforts to manage
these programs. In 2004, Congress established the ODNI Information
Sharing Environment to address this on-going resistance to information
sharing, but this only further complicated the question of DHS's
intelligence role.\38\
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\37\ 6 U.S.C.A. 101 et seq. (West 2006).
\38\ See, Intelligence Reform and Terrorism Prevention Act of 2004,
50 U.S.C.A. 401, et seq. (West 2006).
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As it stands now there are several mechanisms for State and local
governments to engage with the Federal Government to share law
enforcement information: the DHS Office of Intelligence and Analysis,
the FBI Joint Terrorism Task Forces, the ODNI ISE, and the fusion
centers. Likewise there are several different portals to receive
information: Law Enforcement Online (LEO), the National Data Exchange
(N-Dex), the National Law Enforcement Telecommunication System (NLETS),
the FBI's Guardian and e-Guardian systems and the Homeland Secure
Information Network (HSIN) to name just a few. With several different
Federal agencies responsible for intelligence collection and analysis
and several different mechanisms for sharing intelligence with State
and local authorities, DHS intelligence operations risk being redundant
or even superfluous.
The problem from a civil rights perspective is that the existence
of competing intelligence programs creates the incentive for each
agency to collect and report more information than the others to prove
its value, to the detriment to the privacy and liberties of ordinary
Americans. Intelligence offices are too often judged by the number of
reports they disseminate rather than the value of the information in
those reports, which is part of what drives the over-collection and
over-reporting of innocuous information. In 2008, Under Secretary Allen
boasted that I&A increased production of Homeland Intelligence Reports
``from 2,000 to nearly 3,100'' over the previous year but this
statistic only represents an improvement if the information reported is
correct, relevant, and unique.\39\ Intelligence reports like those
produced by the North Central Texas Fusion Center provide nothing to
enhance homeland security, and may actually undermine it by diverting
attention from real threats.
---------------------------------------------------------------------------
\39\ Homeland Security Intelligence at a Crossroads: The Office of
Intelligence and Analysis' Vision for 2008: Hearing before the Subcomm.
on Intelligence, Information Sharing, and Terrorism Risk Assessment of
the H. Comm. on Homeland Security, 110th Cong. 4 (Feb. 26, 2008)
(Statement of Charles E. Allen, Under Secretary for Intelligence and
Analysis, Department of Homeland Security), available at http://
homeland.house.gov/SiteDocuments/20080226165154-47048.pdf.
---------------------------------------------------------------------------
DHS intelligence programs should not compete with other Federal
programs. DHS should assess what State, local, and other Federal
agencies need from DHS intelligence programs that they are not
currently receiving from other sources. It is possible that there is no
gap in intelligence, which would render DHS intelligence wholly
unnecessary. If there is a gap, then DHS should evaluate the
information produced by each of its intelligence components during the
normal course of business to determine whether it can tailor this
information to suit the specific intelligence needs identified. If DHS
intelligence activities produce no demonstrably useful information,
Congress should de-fund them. Where new types or sources of information
need to be developed to fill intelligence gaps, DHS should carefully
evaluate whether collection of this information is appropriate under
the law, whether DHS is the agency best suited to collect this
information, and whether the dissemination of such information can be
accomplished without violating the privacy or civil rights of U.S.
persons. Where DHS finds it can produce a necessary intelligence
product, such programs should be narrowly tailored to fulfill that
specific need and constantly reviewed to ensure conformance with all
laws and policies. Finally, Congress should evaluate these programs
regularly, and in public to the greatest extent possible. In the famous
words of Supreme Court Justice Louis Brandeis, sunshine is the best
disinfectant.
iv. conclusion
Intelligence operations directed at Americans pose serious risks to
liberty and democracy. First and foremost, we should not sacrifice our
liberty for the illusion of security. Congress should not implement or
fund new intelligence programs without empirical evidence that they
effectively improve security. Intelligence programs like the CIA's
Operation Chaos, the NSA's Shamrock, the FBI's COINTELPRO, and the red
squads of local police departments are infamous not just because they
violated the rights of innocent Americans and undermined democratic
processes, but also because they were completely ineffective in
enhancing national security in any meaningful way.\40\ It turns out,
not surprisingly, that spying on innocent people is not useful to
uncovering true threats to security. Reforms instituted after the
exposure of these abusive intelligence programs were designed not only
to protect the rights of innocent Americans, but to help our law
enforcement and intelligence agencies become more effective by focusing
their resources on people they reasonably suspected of wrongdoing.
Unfortunately these lessons of the past have too often been ignored,
and we are increasingly seeing a return to abusive intelligence
operations targeting protest groups and religious and racial
minorities.
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\40\ Select Comm. To Study Governmental Operations with Respect to
Intelligence Activities, U.S. Senate, 94th Cong., Final Report on
Supplemental Detailed Staff Reports on Intelligence Activities and The
Rights of Americans (Book III), S. Rep. No. 94-755 (1976).
---------------------------------------------------------------------------
It would be an enormous mistake to ignore the lessons of past
failure and abuse on a subject as critical as spying on the American
people. We don't have to choose between security and liberty. In order
to be effective, intelligence activities need to be narrowly focused on
real threats, tightly regulated and closely monitored. We look forward
to working with this subcommittee to examine DHS's involvement in
monitoring peaceful advocacy organizations. As the Keith Court warned,
``The price of lawful public dissent must not be a dread of subjection
to an unchecked surveillance power.''\41\
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\41\ United States v. United States Dist. Court (Keith), 407 U.S.
297, 314 (1972).
Ms. Harman. Thank you, Ms. Fredrickson.
Mr. Nojeim, you are recognized for 5 minutes.
STATEMENT OF GREGORY T. NOJEIM, DIRECTOR, PROJECT ON FREEDOM,
SECURITY & TECHNOLOGY, CENTER FOR DEMOCRACY & TECHNOLOGY
Mr. Nojeim. Thank you, Chair Harman, Ranking Member McCaul
and Members of the subcommittee. Thanks for the opportunity to
testify this morning on behalf of CDT.
Government agencies at the Federal, State, and local level
have created a vast domestic intelligence apparatus. The goal
is laudable: Connect the dots to prevent terrorism. But the
risks to civil liberties are large. We have some ideas on how
the subcommittee could mitigate those risks.
First we need to identify the problems. We see primarily
two. The first, as Ms. Fredrickson pointed out, is the
surveillance of protected first amendment activities. It is
reminiscent of the spying that happened in the 1960's and
1970's. In one instance the Maryland State Police surveilled
antiwar protesters and death penalty opponents for over a year.
They found no evidence of crime and continued the surveillance.
That is wrong.
The second problem is the increasing collection and sharing
of information on primarily innocent activity through
suspicious activity reporting. Conduct triggering only the
thinnest of suspicions is being recorded and widely shared.
Photographing bridges is described as suspicious activity, even
though tourists do it all the time, and so do photography
buffs.
These serious problems are exacerbated by digital
technologies for the storage, retrieval, and dissemination of
information. Nation-wide sharing systems greatly magnify the
risk that information will be taken out of context or
misinterpreted, resulting in false inferences and unjustified
adverse action.
The disparate guidelines that have been issued so far to
govern these efforts fail to provide adequate guidance. They
either permit intelligence collection without a predicate, or
they provide generic unhelpful guidance like this from the
Department of Homeland Security--I am sorry, from the
Information Sharing Environment Privacy Guidelines: ``All
agencies shall, without exception, comply with the Constitution
in all applicable laws and Executive Orders.'' Of course they
should, but that is just not helpful advice.
While guidelines should be tailored to the entities that
must follow them, there does not seem to be a set of principles
that guides the overall intelligence effort and protects civil
liberties. Remarkably there does not seem to be a set of
intelligence guidelines at all for DHS itself.
The subcommittee could take a number of steps to better
focus homeland security intelligence collection and sharing.
First it should ensure that DHS entities follow principles of
Fair Information Practices, or FIPs. FIPs establish a useful
framework for using information to make fair decisions about
people.
Second, the subcommittee should work to ensure that a
criminal predicate is required where it is appropriate. It is
probably the single most effective civil liberties protection
that could be imposed on the collection and sharing of homeland
security intelligence that includes personal information.
Requiring a criminal predicate signals the person who gathers
or shares the information that they need to focus on potential
wrongdoers and not on everyone else.
Third, the subcommittee should sample intelligence products
developed by DHS components and its partners. It should
ascertain what is being collected, how it is used, and whether
it is useful in preventing terrorism. It could test whether
SARs reporting is effective and efficient in preventing
terrorism and other crimes.
Finally, the subcommittee should review the training
materials that DHS entities use. If they permit or invite
inappropriate surveillance like that engaged by the Maryland
State Police, they need to be changed. Oversight focused on
adherence to privacy principles, compliance with strong privacy
guidelines, and requiring criminal predication where
appropriate would enhance both liberty and security.
Thank you very much.
Ms. Harman. Thank you, Mr. Nojeim.
[The statement of Mr. Nojeim follows:]
Prepared Statement of Gregory T. Nojeim
March 18, 2009
Chair Harman, Ranking Member McCaul, and Members of the
subcommittee, thank you for the opportunity to testify this morning
about homeland security intelligence on behalf of the Center for
Democracy & Technology.*
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* The Center for Democracy and Technology is a non-profit, public
interest organization dedicated to keeping the Internet open,
innovative, and free. Among our priorities is preserving the balance
between security and freedom after 9/11. CDT coordinates the Digital
Privacy and Security Working Group (DPSWG), a forum for computer,
communications, and public interest organizations, companies, and
associations interested in information privacy and security issues. CDT
has offices in Washington, DC and in San Francisco, CA.
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introduction and summary
Without a definitive decision to do so, and on something of an ad
hoc basis, government agencies at the Federal, State, and local level
have created a vast domestic intelligence apparatus. Until recently,
collection, analysis and dissemination efforts have been disjointed and
uncoordinated, which may offer some comfort to civil libertarians. Now,
a variety of efforts are underway to integrate the information that is
being collected and to share it more widely. The goal, of course, is
laudable: to collect and connect the dots that might reveal a terrorist
scheme. However, there is no overall theme to this collection and
sharing effort, no guiding principles. We continue to see homeland
intelligence efforts that classify legitimate political activity as
``terrorism'' and that spy on peaceful activists; the revelations about
the Maryland State Police are the latest example that has come to
light. Also, there is a trend toward the collection of huge quantities
of information with little or no predicate through ``suspicious
activity reports.'' There seems to us a high risk that this information
will be misinterpreted and used to the detriment of innocent persons.
Meanwhile, the security ``bang per byte'' of information gathered may
be diminishing. While ``stove piping'' was yesterday's problem,
tomorrow's problem may be ``pipe clogging,'' as huge amounts of
information are being gathered without apparent focus. All of this
occurs in the context of a powerful digital revolution that makes it
easier than ever to collect, store, exchange, and retrieve information
in personally identifiable ways, making it available far removed from
the context in which it was collected.
In our testimony today, we will consider what homeland security
intelligence is and will identify some of the efforts being made to
collect and share it. Then, we will turn to the risks to civil
liberties posed by homeland security intelligence activities and offer
some ideas on how they can be addressed.
what is homeland security intelligence and what risks does it pose?
So far, the term ``homeland security intelligence'' has not been
officially defined.\1\ ``Homeland security information'' is statutorily
defined as any information that relates to the threat of terrorist
activity and the ability to prevent it, as well as information that
would improve the response to terrorist activity or the identification
or investigation of a suspected terrorist or terrorist organization.
Homeland Security Act of 2002, Pub. L. 107-296, Section 892(f)(1), 6
U.S.C. 482(f)(1). From what we can tell, the homeland security
intelligence system is equally broad. The definition of homeland
security information is as significant for what it does not say as for
what it says: it does not distinguish between information collected
abroad and information collected in the United States; it does not
distinguish between information regarding foreign terrorist
organizations and information regarding domestic terrorist groups; it
does not distinguish among information collected under criminal
investigative powers, information collected under the national security
powers applicable to ``foreign intelligence'' or counterintelligence,
and information collected under regulatory or administrative
authorities or from open sources; it does not distinguish between
information collected by Federal agencies and information collected by
State, local, or tribal governments; and it does not distinguish
between information collected with terrorism in mind and information
collected for other purposes. It is broad enough to encompass all of
these, and to some degree that is appropriate, since one of the reasons
why the planning of the 9/11 attacks went undetected is that agencies
observed various artificial distinctions that prevented information
sharing and collaboration.
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\1\ CRS Report, Homeland Security Intelligence: Perceptions,
Statutory Definitions, and Approaches (August 18, 2006).
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However, with such an all-encompassing definition, the cycle of
collecting, sharing, and using homeland security information or
homeland security intelligence clearly poses risks to constitutional
values of privacy, free expression, free association, and democratic
participation. The solution lies, we believe, not in a narrower
definition, but in clear rules as to what can be collected and
retained, under what standard and subject to what supervision, with
whom it can be shared, and how it can be used. So far, this system of
rules remains incomplete, while the creation of a broad homeland
security intelligence system progresses apace.
In particular, this subcommittee should be concerned about two
distinct problems: (1) The continuing, even if isolated, collection of
information on First Amendment activities; and (2) the newly expanded
efforts to collect, exchange, and use ``suspicious activity reports''
based on the thinnest of suspicions. Both issues involve the
collection, retention, and dissemination of information collected
without either the criminal predicate or the ``agent of a foreign
power'' standard found in FISA.\2\ Intelligence activities not tethered
to the criminal predicate are dangerous to liberty because they can
cast a wide net, may encompass First Amendment activities, and tend to
be more secretive because the information collected is not likely to be
subject to the after-the-fact scrutiny afforded by the criminal justice
system. In both cases, the risks are exacerbated by the otherwise
appropriate application of digital technologies for storage, retrieval,
and dissemination. For example, although proponents of SARs argue that
they are an extension of long-standing police practices, the power of
information technology and the creation of Nation-wide sharing systems
greatly magnify the risks that information will be taken out of context
or misinterpreted, resulting in false inferences and unjustified
adverse action.
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\2\ CDT has made recommendations for improving both the criminal
investigative authorities and FISA in order to provide better privacy
protection while still empowering the Government to collect the
information it needs, but we focus today on the collection of
information outside of either a criminal predicate or the FISA
standards.
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In recommending serious application of the criminal predicate, we
are not arguing against the need to prevent acts of terrorism before
they occur. We are not seeking to force agencies with homeland security
obligations to limit themselves to prosecuting past crimes.
Furthermore, we fully recognize and support the integration, properly
controlled, of domestic intelligence information with information
collected overseas and information collected in the United States under
the authorities of the Foreign Intelligence Surveillance Act and
related laws. Instead, we are calling for adherence to a standard that
focuses on the intentions, capabilities, and future actions of
enterprises planning or otherwise involved in illegal activity. And we
are calling for rules that take into account the ability of modern
information technology to store and retrieve personally identifiable
information on an unprecedented basis.
who collects homeland security intelligence information?
As the subcommittee well knows, multiple agencies at the Federal
level collect and analyze information that fits under the homeland
security intelligence umbrella.
Within the Department of Homeland Security alone, there is a
departmental Office of Intelligence and Analysis and there are
intelligence activities within several of the Department's components
as well, including the U.S. Citizenship and Immigration Service, the
Coast Guard, Customs and Border Protection, Immigration and Customs
Enforcement, and the Transportation Security Administration.
Outside of the DHS, Federal agencies charged with collecting or
analyzing information that could be considered homeland security
intelligence include:
The FBI, which conducts counterintelligence,
counterterrorism and intelligence activities primarily, but not
exclusively, within the United States.
The CIA, which collects foreign intelligence and conducts
counterintelligence and counterterrorism activities related to
national security primarily, but not exclusively, outside of
the United States.
The State Department's Bureau of Intelligence and Research.
The Drug Enforcement Administration, which collects
intelligence about organizations involved in growing and
distributing controlled substances.
The Department of Energy, which assesses nuclear terrorism
threats.
The Treasury Department, which collects information relating
to the financing of terrorist organizations.
Intelligence entities within the Department of Defense,
including the Defense Intelligence Agency, the National
Security Agency, and the National Reconnaissance Office (whose
capabilities are available for domestic collection).
Outside of the Federal Government, State, local, and tribal police
forces of varying sizes also engage in the collection of homeland
security intelligence. The level of sophistication of these efforts
varies widely. For example, the New York City Police Department has a
sophisticated intelligence operation, which has grown and operates with
little public oversight. Likewise, the Los Angeles Police Department
has a very sophisticated intelligence gathering and integration
program. Other cities, as well as tribal police forces, have much less
sophisticated operations.
Some of the entities that engage in intelligence collection operate
under guidelines. Indeed, there is no lack of guidelines on domestic
intelligence. The guidelines in place include:
The Attorney General's Guidelines for Domestic FBI
Operations (September 29, 2008) http://www.usdoj.gov/ag/
readingroom/guidelines.pdf.
Department of Justice, Office of Justice Programs, Global
Justice Information Sharing Initiative (``Global''), ``Fusion
Center Guidelines: Developing and Sharing Information and
Intelligence in a New Era--Guidelines for Establishing and
Operating Fusion Centers at the Local, State, and Federal
Levels--Law Enforcement Intelligence, Public Safety, and the
Private Sector'' (2006) http://www.it.ojp.gov/documents/
fusion_center_guidelines.pdf.
Program Manager--Information Sharing Environment (PM-ISE),
Guidelines to Ensure that the Information Privacy and Other
Legal Rights of Americans are Protected in the Development and
Use of the Information Sharing Environment (2006) http://
www.ise.gov/docs/privacy/PrivacyGuidelines20061204.pdf. See
http://www.ise.gov/pages/privacy-implementing.html for related
materials.
PM-ISE, Nationwide Suspicious Activity Reporting
Initiative--Concept of Operations (December 2008) http://
www.ise.gov/docs/sar/NSI_CONOPS_Version_1_FINAL_2008-12-
11_r5.pdf. For further information on governance of the SARs
program, see http://www.ise.gov/pages/sar-initiative.html.
Law Enforcement Intelligence Unit (LEIU), Criminal
Intelligence File Guidelines (revised March 2002) http://
www.it.ojp.gov/documents/LEIU_Crim_Intell_File_Guidelines.pdf.
LAPD, Major Crimes Division Standards and Procedures (March
18, 2003) http://www.lapdonline.org/search_results/
content_basic_view/27435.
Memorandum of Agreement Between the Attorney General and the
Director of National Intelligence on Guidelines for Access,
Retention, Use, and Dissemination by the National
Counterterrorism Center of Terrorism Information Contained
within Datasets Identified as Including Non-Terrorism
Information and Information Pertaining Exclusively to Domestic
Terrorism (2008) http://fas.org/sgp/othergov/intel/nctc-
moa2008.pdf.
Remarkably, there does not seem to be a set of intelligence
guidelines for the Department of Homeland Security or for any of its
intelligence-collecting components. However, the main problem we see is
not the lack of guidelines per se, but the fact that the guidelines
that have been issued so far fail to provide adequate guidance. They
either permit intelligence collection without a predicate, as the
Attorney General guidelines do,\3\ or they provide generic, unhelpful
guidance, stating that ``all agencies shall, without exception, comply
with the Constitution and all applicable laws and Executive Orders,''
as the ISE guidelines do. We appreciate that guidelines must be
tailored to the nature and mission of the entity, the places where it
conducts its operations (whether primarily within the United States or
abroad), and the type of information it collects. However, there does
not seem to be a set of principles that guides the overall intelligence
effort and protects civil liberties. There are a lot of cooks in the
homeland security intelligence kitchen, and they are each using
different recipes.
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\3\ CDT's analysis of the Attorney General Guidelines can be found
here: http://cdt.org/publications/policyposts/2008/16.
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who shares and analyzes homeland security intelligence information?
As the 9/11 Commission found, and numerous other reports have
confirmed, better sharing of intelligence and criminal information is
needed to uncover and head off terrorist plans. Just last week, the
Markle Foundation Task Force on National Security in the Information
Age called for a recommitment to information sharing:
``The President and Congress must reaffirm information sharing as a top
priority, ensuring the policymakers have the best information to inform
their decisions . . . If there is another terrorist attack on the
United States, the American people will neither understand nor forgive
a failure to have taken this opportunity to get the right policies and
structures in place.''\4\
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\4\ Markle Foundation Task Force on National Security in the
Information Age, Nation at Risk: Policy Makers Need Better Information
to Protect the Country, March 2009, p. 1. CDT was represented on the
steering committee that produced the report and it receives financial
support from the Markle Foundation.
A number of information-sharing structures have been established that
could be effective in heading off terrorist attacks by sharing homeland
security intelligence information. However, they have overlapping
missions and insufficient guidance to protect civil liberties.
Information Sharing Environment.--The ISE, created by Congress and
housed in the Office of the Director of National Intelligence, is a
potentially revolutionary effort to create a means for sharing
terrorism, law enforcement, and homeland security information across
Federal agencies and among State, local, and tribal police forces. The
types of information that will be exchanged are broadly defined, and
tens of thousands of law enforcement and intelligence officials will
have access to the information.
The ISE is scheduled to go operational this summer. However, the
privacy guidance for the ISE is woefully inadequate. For example, the
guidance calls for agencies to develop redress mechanisms to handle
complaints about decisions made based on faulty information, but at the
same time allows them to decide not to adopt redress mechanisms on the
ground that they would be inconsistent with the agency's mission.\5\
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\5\ In February 2007, CDT issued an analysis of the ISE privacy
guidelines. http://www.cdt.org/security/20070205iseanalysis.pdf. We
noted that the guidelines never actually define what privacy is. The
title and text of the guidelines refer to ``other legal protections,''
but never explain what those are either. The guidelines never mention
the First Amendment or free speech. The cover memorandum to the
guidelines includes one reference to Fair Information Practices, and
the guidelines themselves contain some of the FIPs. However, there is
no engagement with the challenges of applying the Fair Information
Practices in the terrorism context. CDT is preparing a further major
study of all of the privacy materials associated with the ISE; our
results should be available early this summer.
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National Counterterrorism Center.--The NCTC employs more than 500
people, drawn from 16 Federal departments and agencies to integrate and
analyze counterterrorism intelligence, much of which fits under the
homeland security intelligence umbrella. It produces detailed
assessments to help senior policymakers make decisions. To facilitate
information sharing, the NCTC has access to more than 30 intelligence,
military, and law enforcement networks. Unlike the ISE--which operates
more as a pointer system to data maintained by various agencies--the
NCTC also takes in copies of data from other agencies, creating its own
depository of data that is analyzed and shared. Among other functions,
the NCTC maintains a consolidated repository of information about the
identities of terrorists from which is derived, among other subsets of
data, the watch list used to screen airline passengers.
E-Guardian.--E-Guardian can be thought of as the FBI's own version
of the ISE. It permits the sharing of unclassified information relating
to terrorism with 18,000 entities, including State and local law
enforcement entities. It also helps them submit their own information
to the FBI. According to a DOJ Inspector General's report, its
companion system, Guardian, which contains terrorism tips and reports
by Federal agencies, suffers from numerous data integrity failures,
including failure of supervisors to conduct a review to determine
whether a threat was adequately addressed, and failure to create a
complete record for fully 30 percent of examined records.\6\
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\6\ U.S. Department of Justice, Office of the Inspector General
Audit Division, November 2008, The FBI's Terrorist Threat and
Suspicious Incident Tracking System, http://www.usdoj.gov/oig/reports/
FBI/a0902/final.pdf.
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Fusion Centers.--State and local governments have created at least
58 fusion centers to improve information sharing across all levels of
government to prevent terrorism and other crimes, and in some cases, to
respond to public health and other emergencies. Non-Federal law
enforcement entities, such as State police, are the lead agencies in
most of the centers, though most have Federal personnel, usually from
the FBI and DHS. The National Strategy on Information Sharing that
President Bush issued in October 2007 indicates that the Federal
Government will provide grants, training, and technical assistance, and
Congress has appropriated funds to provide financial support to fusion
centers. Each fusion center is different, but there continue to be
questions about their mission and effectiveness and they face
significant challenges. Officials in over half of the fusion centers
contacted by the Government Accountability Office for a recent report
said that they had encountered challenges in accessing Federal
information systems, while at the same time over half reported that the
heavy volume of information they were receiving and the existence of
multiple systems with redundant information were difficult to
manage.\7\
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\7\ Testimony of Eileen R. Larence, Director of Homeland Security
and Justice Issues at the Government Accountability Office before a
subcommittee of the Senate Committee on Homeland Security and
Governmental Affairs, April 17, 2008, http://hsgac.senate.gov/public/
_files/LarenceTestimony.pdf, pp. 8-9.
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Joint Terrorism Task Forces.--JTTFs are comprised of Federal,
State, and local law enforcement officers and specialists. The JTTF
concept pre-dated 9/11 by several decades but was expanded after 9/11
and there are now 100 JTTFs, including one in each of the FBI's 56
field offices Nation-wide. DHS entities involved in JTTFs include
Customs and Border Protection and Immigration and Customs Enforcement.
Fifteen other Federal law enforcement and intelligence agencies are
involved in one or more JTTFs.
what civil liberties violations have been uncovered?
Monitoring of Peaceful Political Activity.--Despite the secrecy
surrounding the collection of homeland security intelligence, a number
of abuses and instances of misguided focus on peaceful activity have
already been uncovered, revealing a shocking lack of priorities that is
inexplicable in a time of genuine threats. The ACLU has compiled some
of these reports;\8\ we mention only a few of the more egregious ones
here:
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\8\ http://www.aclu.org/privacy/gen/32966pub20071205.html.
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Maryland State Police Surveillance of Peaceful Anti-War and
Anti-Death Penalty Activists.--As reported in the Washington
Post: ``Undercover Maryland State Police officers conducted
surveillance on war protesters and death penalty opponents
[from March 2005 until May 2006] . . . '' ``Organizational
meetings, public forums, prison vigils, rallies outside the
State House in Annapolis and e-mail group lists were
infiltrated by police posing as peace activists and death
penalty opponents, the records show. The surveillance continued
even though the logs contained no reports of illegal activity
and consistently indicated that the activists were not planning
violent protests.''\9\ The State police classified 53
nonviolent activists as terrorists and entered their names in
State and Federal terrorism databases.\10\
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\9\ Lisa Rein, ``Police Spied on Activists in Md.,'' July 18, 2008
p, A1, http://www.washingtonpost.com/wp-dyn/content/article/2008/07/17/
AR2008071701287_pf.html.
\10\ Lisa Rein, ``Md. Police Put Activists' Names on Terror
Lists,'' October 8, 2008, P. A1 http://www.washingtonpost.com/wp-dyn/
content/article/2008/10/07/AR2008100703245.html.
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Reporting on Lobbying Activities and Concern about
Tolerance.--The North Central Texas Fusion System distributes a
bi-weekly Prevention Awareness Bulletin to over 1,500 staff in
200 Texas agencies. The bulletin issued on February 19, 2009,
under the headline ``Middle Eastern Terrorist groups and their
supporting organizations have been successful in gaining
support for Islamic goals in the United States and providing an
environment for terrorist organizations to flourish,'' cited
incidents ranging from the installation of footbaths at the
Indianapolis airport to the Treasury Department's hosting of a
conference entitled ``Islamic Finance 101,'' as signs of
growing tolerance for ``Shariah law and support of terrorist
military activity against Western nations.'' The report
expressly singled out ``lobbying activities'' and concluded by
warning that ``it is imperative for law enforcement officers to
report these types of activities to identify potential
underlying trends emerging in the North Central Texas
region.''\11\
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\11\ The North Central Texas Fusion System Bulletin is available on
the Defending Dissent web site, http://www.defendingdissent.org/
spying.html.
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Compiling Nation-wide Lists of Marches and Rallies.--At
least as of 2006, the Intelligence Branch of the Federal
Protective Service in DHS was compiling a ``Protective
Intelligence Bulletin,'' mainly by using a ``media reporting
service'' available on the Internet. The March 3, 2006
bulletin,\12\ 17 pages long, listed dozens of events such as a
``Three Years Is Too Many Demonstration'' by the Central
Vermont Peace and Justice Center to be held at 1400 hours on
the sidewalk in front of Main Street Park in Rutland.
Recipients were advised that the Bulletin should be shredded or
burned when no longer required.
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\12\ The Bulletin is posted here: http://www.defendingdissent.org/
ICECalendar.pdf.
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These reports are reminiscent of the 1960's or 1970's in their
confusion between peaceful dissent and violent activity. The
misallocation of resources alone is cause for serious concern when the
Nation faces genuine threats. The potential for a chilling of the
exercise of First Amendment rights compounds the concern. Department
heads and elected officials, especially appropriators, at the Federal,
State, and local level should hesitate before supporting continuation
or expansion of homeland intelligence activities until there are rules
in place that require a focus on the potential for violence, training
programs that distinguish between political activity and terrorist
activity, and oversight mechanisms to ensure that prohibitions against
First Amendment monitoring are being adhered to.
Overbroad collection of information with SARs.--State, local,
tribal, and Federal entities are collaborating to develop a Nation-wide
system of Suspicious Activity Reporting. The SARs system is just
getting off the ground, but so far, the standards for the program
suggest that much innocent activity will be tracked. For example,
photographing bridges is described as a suspicious activity, even
though such sites are regularly photographed by tourists, journalists
and photography buffs.
The risks we are concerned with develop when such ``suspicious
activity'' is recorded and shared with information identifying the
person engaged in the ``suspicious activity.'' What prevents the
mistaken conclusion that a person is a terrorist because he or she is
the subject of two or more SARs, each reporting on innocent behavior?
Won't the next official who encounters the same person in a different
context and files a SAR to report other innocent activity assume that
his or her suspicion is confirmed because of the initial SAR in the
system? Will the subject even know how the data is being used or what
further scrutiny he faces? How does an individual ever prove the
legitimacy of his activity when the object of the process is not
evidence but only suspicion? Taking in huge amounts of personally
identifiable information about innocent activity and creating self-
generating affirmations that make it more likely that yet more
information will be taken in does not seem to be the most effective way
of conducting intelligence.
what can be done to address these problems and properly focus homeland
security intelligence?
Require DHS entities to follow principles of fair information
practices, including the minimization principle.--The internationally
accepted principles of Fair Information Practice (``FIPs'') establish a
useful framework for using information to make fair decisions about
people. There is no single authoritative statement of the FIPs, but the
DHS Privacy Office on December 29, 2008 issued a memorandum \13\
adopting FIPs as its privacy policy framework, and indicated that it
would seek to apply them to the ``full breadth and diversity of DHS
programs and activities.'' The DHS Privacy Office language is attached
as an appendix. If implemented, these principles would require DHS to:
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\13\ Privacy Policy Guidance Memorandum, issued December 29, 2008
by Hugo Teufel III, Chief Privacy Officer, available at http://
www.dhs.gov/xlibrary/assets/privacy/privacy_policyguide_2008-01.pdf.
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Give notice of collection and use of Personally Identifiable
Information (PII);
Seek consent, to the extent practicable, for collection and
use of PII;
Articulate the purpose for collecting PII;
Collect only PII that is necessary to accomplish the
specified purpose;
Use PII only for the purpose specified;
Ensure that PII collected is accurate, relevant, timely, and
complete;
Safeguard PII against unauthorized access and improper
disclosure;
Audit actual use of PII to demonstrate compliance with these
principles.
Clearly, not all of these concepts can be implemented in the
homeland security context in the way that they are applied in the
government benefits context, where they originated. One cannot, for
example, seek consent from the next Mohammed Attah for the sharing of
information about his plotting with al Qaeda operatives among elements
of the intelligence community. However, the principles do offer an
excellent framework for analyzing intelligence collection practices.
While the DHS Privacy Office took its action at the end of the last
administration, the new leadership of DHS could carry forward this
effort to develop Department-wide policies in the detail necessary for
effective implementation.
Applying these principles to, for example, the functioning of
fusion centers, would help alleviate the civil liberties concerns that
they have created. Indeed, the DHS Privacy Impact Assessment (PIA)\14\
for the Fusion Center Initiative, also issued last December, goes some
distance toward accomplishing this goal. The subcommittee should use
its oversight authority to see that the recommendations in the PIA are
being implemented.
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\14\ U.S. Department of Homeland Security Privacy Impact Assessment
for the Department of Homeland Security State, Local and Regional
Fusion Center Initiative, December 11, 2008, http://www.dhs.gov/
xlibrary/assets/privacy/privacy_pia_ia_slrfci.pdf.
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However, because State and local governments run the fusion
centers, the PIA recognizes that adoption of effective privacy
guidelines to implement FIPS at each fusion center is largely within
the control of local agencies. Materials that will address the privacy
protections required of fusion centers participating in the ISE are
still under development. The DHS Office of Intelligence and Analysis,
which leads the effort to create effective fusion centers, could also
work with the DHS Privacy Office to ensure that the fusion centers it
helped create comply with these principles, especially the ``Data
Minimization'' principle. Full fusion center compliance would mean that
only the information necessary to accomplish the center's purposes
would be collected.
Require a criminal predicate where appropriate.--Probably the
single most effective civil liberties protection that could be imposed
on the collection and sharing of homeland security intelligence that
includes personally identifiable information would be to require
criminal predication. This means that information is collected or
shared only because it has some degree of relevance to a violation of
the law. Requiring a criminal predicate in effect requires the person
who gathers or shares information to focus on potential wrongdoers, and
not on everyone else. Conversely, failure to require a tie to crime
invites reliance on inappropriate predicates for collection and sharing
of information, such as fear fostered by fiery speech, or by race and
religion.
Requiring a criminal predicate for the collection and sharing of
PII through homeland security intelligence is not inconsistent with the
purpose of an intelligence system because at bottom, these systems are
designed to prevent, investigate, or respond to terrorist activity that
is a crime.
This principle is captured in 28 CFR Section 23, the guidelines
that govern federally funded criminal intelligence systems. These
systems are used to exchange information much of which constitutes
homeland security intelligence information. The guidelines provide that
any federally funded project shall collect and maintain criminal
intelligence information concerning an individual or organization only
if there is reasonable suspicion that the individual or organization is
involved in criminal conduct. 28 CFR Section 23.20(a). To the extent
that fusion centers operate federally funded criminal intelligence
systems, those systems are bound by this regulation. Still, there is
considerable concern that the protections of the reasonable suspicion
standard are diluted when federally funded fusion centers collect and
share vast amounts of SAR information that does not meet the standard.
We would suggest that this is an area ripe for oversight by this
subcommittee.
Guard Against Circumvention of Applicable Guidelines.--
Circumvention of 28 CFR Section 23 requirements illustrates another
danger of inappropriate use of intelligence sharing mechanisms such as
fusion centers. Another circumvention problem that has not yet been
adequately addressed relates to the investigative guidelines under
which many law enforcement entities operate and under which the FBI
operates. These guidelines can take a number of forms and will have a
variety of provisions designed to protect civil liberties. For example,
often following litigation, a police department may adopt guidelines
that prohibit it from conducting surveillance of protest activity
except when directly tied to criminal activity. The FBI operated under
Attorney General Guidelines that included such a restriction, but it
was largely removed in 2002. Such restrictions are designed to protect
against a chilling of controversial political speech.
However, a partner agency, with which the restricted agency may
share information through the ISE, a fusion center, or another
mechanism, may have no such limitations. It could conduct the
surveillance that its partner agency is specifically barred from
conducting and share the fruits with the restricted agency. The civil
liberties protections embedded in the guidelines that govern activity
of the restricted agency would be circumvented. To our knowledge, no
adequate mechanism or binding and enforceable rule precludes the
circumvention of such guidelines. The circumvention problem can flow
across State and local agencies, and from or to Federal agencies that
participate in the information sharing enterprise.
Avoid redundancies.--As we mentioned above, there are already a lot
of cooks in the intelligence information sharing and collection
kitchen. The subcommittee should guard against adding more just because
a specific new need for information has been identified. The first step
should be to ask whether the information needed is already being
collected and shared through a system that could be employed to this
purpose.
Take a comprehensive look at homeland security intelligence
collection now taking place.--The subcommittee, in exercising its
oversight role, should sample intelligence products developed by DHS
components to more fully ascertain what is being collected, how it is
used, and whether it is useful in preventing terrorism. The
subcommittee should consider whether more targeted collection efforts
would be more effective. Finally, the subcommittee should review the
training materials that DHS entities use. The review should be
conducted with an eye toward ascertaining whether DHS officials are
being trained to avoid inappropriate surveillance, such as the
monitoring of death penalty opponents by the Maryland State Police.
The subcommittee could also identify processes that work at one
agency and that might be a source of useful guidance to another
component or agency facing similar challenges. For example, the
Transportation Security Administration has developed redress procedures
for air travelers who believe they have been watch-listed
inappropriately. While the procedures are not perfect and there are
reports that some travelers have found them ineffective, they are an
example of an approach to redress in a security environment from which
lessons could be learned and applied to other security environments.
Conduct an independent assessment of the value of SARs reporting.--
The subcommittee should test whether SARs reporting is both effective
and efficient in preventing terrorism. This may involve commissioning a
GAO study or conducting an independent staff level assessment. SARs
reporting may or may not be the best way to collect the ``dots'' that
need to be connected to head off terrorist attacks; whether it is or is
not should be tested. Because the SARs reporting system will result in
the collection of so much information about innocent activities, it
seems that it would be good to know at the front end that the results
are likely to be worth the risks.
conclusion
Many entities at the Federal, State, and local level gather and
share homeland security intelligence. More and more information is
being collected and shared about innocent activity, creating increased
risks to civil liberties. Some of these risks have matured into abuses,
including the monitoring of First Amendment activity without adequate
cause. Oversight that is focused on ensuring adherence to principles of
Fair Information Practices, requiring a criminal predicate to support
collection and sharing of personally identifiable information, and
compliance with strong privacy protective guidelines would enhance both
liberty and security.
Appendix
principles of fair information practices as articulated by the dhs
privacy office \15\
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\15\ Privacy Policy Guidance Memorandum, issued December 29, 2008
by Hugo Teufel III, Chief Privacy Officer, available at http://
www.dhs.gov/xlibrary/assets/privacy/privacy_policyguide_2008-01.pdf.
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Transparency.--DHS should be transparent and provide notice
to the individual regarding its collection, use, dissemination,
and maintenance of personally identifiable information (PII).
Individual Participation.--DHS should involve the individual
in the process of using PII and, to the extent practicable,
seek individual consent for the collection, use, dissemination,
and maintenance of PII. DHS should also provide mechanisms for
appropriate access, correction, and redress regarding DHS's use
of PII.
Purpose Specification.--DHS should specifically articulate
the authority that permits the collection of PII and
specifically articulate the purpose or purposes for which the
PII is intended to be used.
Data Minimization.--DHS should only collect PII that is
directly relevant and necessary to accomplish the specified
purpose(s) and only retain PII for as long as is necessary to
fulfill the specified purpose(s).
Use Limitation.--DHS should use PII solely for the
purpose(s) specified in the notice. Sharing PII outside the
Department should be for a purpose compatible with the purpose
for which the PII was collected.
Data Quality and Integrity.--DHS should, to the extent
practicable, ensure that PII is accurate, relevant, timely, and
complete.
Security.--DHS should protect PII (in all media) through
appropriate security safeguards against risks such as loss,
unauthorized access or use, destruction, modification, or
intended or inappropriate disclosure.
Accountability and Auditing.--DHS should be accountable for
complying with these principles, providing training to all
employees and contractors who use PII, and auditing the actual
use of PII to demonstrate compliance with these principles and
all applicable privacy protection requirements.
Ms. Harman. Ms. Martin, you are recognized for 5 minutes.
STATEMENT OF KATE MARTIN, DIRECTOR, CENTER FOR NATIONAL
SECURITY STUDIES
Ms. Martin. Thank you, Chair Harman, and Ranking Member
McCaul and the other Members of the subcommittee, for the
opportunity to testify today. I want to share Ms. Fredrickson's
thank you for your leadership on the NAO issue. I especially
appreciate the committee and the subcommittee taking the
opportunity to reassess and take a new look at this very
complicated and complex issue.
I want to start off by noting that the term
``intelligence'' itself is used in a wide variety of
situations, and that, as some of the witnesses on the previous
panel testified, there are definite intelligence tasks that
don't pose the same kind of risk to civil liberties,
dissemination of information about ricin. It doesn't oppose the
risk to civil liberties, and I think that the LAPD has some
examples of the use of SARs that don't pose risks of civil
liberties; for example, keeping track of bomb threats in the
city.
At the same time I think this subcommittee's inquiry could
not be more crucial, because we are at a point in our history
where we have seen an unprecedented and, I would say, a
fundamental change in the intelligence capabilities of the U.S.
Government in the last 7 years. Basically what we have seen is
an enormous expansion in the collection authorities across the
board, an expansion in the number of agencies in both the
Federal Government and in State and local who are authorized
to, ``collect intelligence,'' and a weakening of the
traditional safeguards and limitations on such collection.
I think that in looking at the problems that such
collections pose for civil liberties and privacy, that it is
important, as Caroline mentioned, to understand that it is not
simply a privacy problem. I think Senator Sam Ervin, one of
your predecessors, who was, of course, the author of the
Privacy Act, put it best when he explained that when the
Government knows all our secrets, we stand naked before
official power. Stripped of our privacy, we lose our rights and
privileges. The Bill of Rights then becomes just so many words.
The other problem, we have traditionally dealt with this
issue in two fashions. One is by limiting the amount of
information that the Government collects, which is also limited
by technological and logistical capabilities and, second, by
laws. I think that given the past history of the past 7 years,
we have to be mindful that we may not be able to rely upon laws
as sufficient to limit Government abuses when faced with
national crises. We have examples of an Executive branch
claiming the authority to go around and violate the laws and to
do so in secret.
So our recommendation to the committee is to begin with a
more comprehensive review and assessment of where we are, and
where we have come, and the risks, issues imposed by that. I
would like to suggest that the committee begin with requiring
and articulating specific missions for different kinds of
homeland security intelligence.
Second, I think we need a threat assessment. With all due
respect to the witnesses on the previous panel, I think there
is much to learn from the Israeli example, not least of how to
protect civil liberties and democratic processes while facing a
true national security threat. I do not think that any
objective assessment of the threat faced from homegrown
terrorism in the United States will find very much in common
with the Israeli experience, but that is an analysis that we
need, and we need for it to be done publicly.
We also need to have a more complete picture of what the
Government is doing, what its legal authorities are, and what
it is actually doing. I think the American public are entitled
to some metrics on how much information the Government has, how
many Americans are referred to in how many databases, and how
many Government officials have access to those databases.
I look forward to and I am certain that this committee will
provide leadership on reviewing and making some of the
information public with a classified annex if possible for us
to begin the real public debate that is needed.
Ms. Harman. Thank you, Ms. Martin.
[The statement of Ms. Martin follows:]
Prepared Statement of Kate Martin
March 18, 2009
Chair Harman, Ranking Member McCaul, and distinguished Members of
the House Homeland Security Subcommittee on Intelligence, Information
Sharing, and Terrorism Risk Assessment, thank you for inviting me to
testify today. I am the Director of the Center for National Security
Studies, a think tank and civil liberties organization, which for 30
years has worked to ensure that civil liberties and human rights are
not eroded in the name of national security. The Center is guided by
the conviction that our national security must and can be protected
without undermining the fundamental rights of individuals guaranteed by
the Bill of Rights. In our work on matters ranging from national
security surveillance to intelligence oversight, we begin with the
premise that both national security interests and civil liberties
protections must be taken seriously and that by doing so, solutions to
apparent conflicts can often be found without compromising either.
I especially appreciate the committee using the opportunities
created by the change in administration to hold this hearing and take
stock, evaluate, and reassess the role of the Department of Homeland
Security and in particular domestic intelligence. While there has been
much work done on the enormously complex task of creating the
Department of Homeland Security, defining its responsibilities and
authorities, etc., it is now time to take a broader look at the role,
usefulness, and risks of homeland security intelligence. The past 7
years have been marked by politicians using the rhetoric of fear for
political advantage and as a substitute for in-depth analysis and
public discussion of the admittedly difficult issues of
counterterrorism, domestic intelligence, and civil liberties. The
Executive branch has operated with unnecessary and in my view
unconstitutional secrecy, the Congress has largely acquiesced (despite
the objections of some, including Members of this subcommittee), and
intelligence and security issues have been used to score partisan
points. The result has been an unprecedented and insufficiently
understood expansion of Government power to conduct surveillance on
Americans, with very little evidence of its effectiveness, much less
its necessity.
Congress needs to examine domestic surveillance and intelligence as
a whole. There is no doubt that the Government made many mistakes
before 9/11, that globalization has changed the vulnerabilities of the
United States, that technology has outpaced the law in some areas, and
that changes were needed to ensure the most effective possible
counterterrorism effort consistent with our Constitution. The last
administration, enabled by an explosion in technological surveillance
capabilities took the opportunity to change basic principles and
practices limiting Government surveillance of Americans in fundamental
and far-reaching ways.
They did so, however, without any acknowledgment of the enormity of
the changes. As Suzanne Spaulding has pointed out, the legal framework
for surveillance is now a ``Rube Goldberg''-like structure, and this
patchwork of laws makes it very difficult to understand the full impact
of the changes. Moreover, the issues that have been the focus of public
debate have been largely technical and frequently subjected to less
scrutiny than they deserved because of the political pressures
surrounding the debate. There has also been a proliferation of agencies
and entities with domestic intelligence responsibilities, although it
is not clear that such arrangement was a deliberate effort to create
redundancy or just an accident resulting from so many different
initiatives by different actors.
Thus, this committee's examination of the role of DHS and
``homeland security intelligence'' is both timely and much needed. I
hope it will serve as a key part of a comprehensive review of the
changes made in domestic surveillance and intelligence in the past 7
years that will provide an understanding of the changes as a whole.
Such a review is essential to evaluate the effectiveness and necessity
of these changes and to recommend changes to make such activities more
effective and less threatening to the balance of power between the
Government and the people. I expect such review to be facilitated by
increased cooperation by the Executive branch.
Today, I want to outline a few issues that I would urge the
committee to consider in examining ``homeland security intelligence''
and the role of DHS in domestic intelligence. They will not be new
ideas to the Members of this committee because they are essentially
first principles. Yet an examination of recent testimony before the
committee suggests that they are frequently overlooked and even lost
sight of by witnesses focusing on the necessary details of bureaucratic
authorities, funding, and organization.
When evaluating any homeland security intelligence capability, the
first question should be whether it has a specific and concretely
defined mission. This is especially crucial in the case of DHS, which
has myriad and diverse departmental missions. It is not adequate to
describe the mission of ``homeland security intelligence'' as providing
intelligence to keep Americans safe or the ``homeland'' secure. While
intelligence may well be useful for many if not all of the Department's
missions, it is essential to distinguish conceptually between the
different objectives; for example, between the activity of collecting
and analyzing information in order to prevent another Katrina, and
intelligence aimed at preventing another Mohammed Atta from being
admitted into the United States.
Today, I will focus on domestic intelligence for counterterrorism
and criminal law enforcement purposes. However, even that mission
description is too general to be very useful. In the case of DHS, for
example, it could encompass evaluating the vulnerabilities of domestic
infrastructures, from water reservoirs to cyber networks; assessing how
best to prevent al Qaeda terrorists from entering the United States;
and trying to identify any ``homegrown terrorists.'' It is also
important to distinguish between activities intended to improve the
Government response to terrorist incidents by helping victims and
repairing property damage, and Government activities aimed at
identifying and apprehending those responsible for such crimes. (There
has been a fair amount of work done on analyzing such post-incident
tasks and the appropriate legal authorities therefor with regard to
Defense Department activities in such situations.)
While each of these objectives requires both information and smart
analysis as well as coordination, the relevant information and analysis
are quite different depending on the objective. Today, I will not
address what intelligence is needed to assess and protect against
infrastructure vulnerabilities. Members of this committee, and
especially Chair Harman, have long played a leadership role on these
issues. And much of the work necessary to protect against such
vulnerabilities does not raise the same kind of constitutional and
civil liberties concerns as other counterterrorism activities. Rather,
I will focus on homeland security intelligence that is aimed at
identifying, locating, and ``disabling'' individuals from carrying out
terrorist acts, whether through arrest, deportation, or surveillance.
In evaluating homeland security intelligence, it is crucial to
identify when the mission of such intelligence is to prevent or respond
to acts of terrorism in the United States, by identifying and locating
those individuals involved in such plans or responsible for such acts.
It is then equally important to articulate whether the intelligence
mission is focused on individuals inside the United States or the
intentions and activities of overseas individuals and groups that
threaten U.S. interests. It would be enormously useful to require DHS
officials when describing and testifying about intelligence activities
always to identify whether the activities under discussion include
collecting or analyzing information about Americans.
Of course, communications and transactions between Americans and
foreigners overseas can be a legitimate subject of inquiry and there
must be coordination between intelligence aimed overseas and
intelligence conducted in the United States. As the committee is aware,
an enormous amount of work has been done to ensure such coordination,
beginning with the most basic objective that foreign individuals
identified by U.S. agencies overseas as plotting terrorist attacks be
barred from entering the United States. But all too often, the mission
lines are blurred. One example is the terrorist watch list, which is
apparently designed as one list containing the names of both Americans
and suspected foreign terrorists living overseas. Such commingling,
which is unnecessary for operational purposes, misleadingly implies
that the rules and protections for Americans and for foreigners
overseas are the same. The civil liberties protections in the Bill of
Rights limit Government surveillance in the United States, but have not
been extended to foreigners overseas. Nevertheless, the claim is now
made that Americans communicating with foreigners overseas, somehow
lose their constitutional privacy protections because their
correspondents do not enjoy any such protections.
The first step toward restoring the full measure of these
protections is to require a fulsome accounting of when homeland
security intelligence includes collection or analysis of information
about Americans.
An objective threat assessment is needed of the terrorist threat
inside the United States. An assessment of the likelihood, magnitude,
scope, and source of terrorist threats inside the United States is
crucial to any examination of what kind of domestic intelligence makes
sense. This is perhaps the area that has been most subject to political
and partisan grandstanding and least subject to rigorous analysis.
Officials in the last administration regularly warned of ``sleeper
cells'', while wrongfully jailing hundreds of individuals who were
innocent of terrorist activities. The public needs a clear
understanding of the true nature of the threats from within and without
the country. When the Commission on Prevention of Weapons of Mass
Destruction Proliferation and Terrorism announced that a WMD attack on
the United States is likely in the next 5 years, the headline coverage
gave the impression that the Commission had concluded that there are
terrorist cells in the United States plotting such, when the report
focused mainly on threat activities overseas. When officials talk about
a new enemy operating in a networked world requiring a networked
response, they do not distinguish between al Qaeda in Iraq and would-be
terrorists in the United States. The impression gained from following
the terrorism cases brought in the United States in the past 7 years,
is that the alleged ``home-grown terrorists'' were by and large
discovered not through network analysis, but through the old-fashioned
use of undercover informants.
Assessment of the specific kinds of threats, including an
evaluation of how much is known and unknown is essential for evaluating
any program for homeland security intelligence. To date, there has been
no such assessment available for rational examination and discussion.
Instead, there has been a constant drumbeat to the effect that the
threat is an existential one.
But as Secretary Chertoff acknowledged, it is not possible to
prevent all acts of terrorist violence and keep everyone safe. It is
crucial to acknowledge that such incidents are not likely to constitute
existential threats to the Nation and that we must take account of the
magnitude of the actual threat. It is misleading, for example, to
compare the worldwide convulsions and horrors of World War II with the
activities of the homegrown terrorists arrested in the United States
since 9/11 or even with the attacks in Madrid, London, or Mumbai,
terrible as those were. Moreover, recognizing the true extent of the
domestic threat is important in order to avoid playing into terrorists'
hands who recognize the asymmetry of the power confronting them and
hope to provoke a disproportionate response by sowing fear through
terror.
Current domestic intelligence capabilities create the risk of a
mismatch between the domestic threat and the Government response. There
is no doubt that information is key to preventing terrorism and crime
and that analysis of information is even more important. But it does
not follow that current domestic intelligence activities are necessary
or the most effective means of prevention. The term ``intelligence''
itself has a variety of meanings, including ``criminal intelligence''
referring to the analysis of information by police and law enforcement
for prevention of crime and terrorism. But the more usual meaning of
the term implies that the collection and analysis of information is not
necessarily tied to law enforcement. Rather it refers to all the secret
collection and analysis activities undertaken by Government agencies to
counter threats to the national security. By definition it enjoys a
high degree of secrecy and it is seen as the province of experts, both
of which make difficult any informed examination of its reliability and
usefulness.
In 2003, I wrote an analysis of domestic intelligence and
counterterrorism arguing that domestic intelligence should be closely
tied to law enforcement in order to protect civil liberties and to
insure the most effective counterterrorism. See Kate Martin, ``Domestic
Intelligence and Civil Liberties'' SAIS Review, Vol. 24, No. 1, Winter-
Spring 2004. At that time, I wrote in part to argue against the
creation of a new domestic intelligence agency rather than tasking the
FBI to improve its counterterrorism activities. Since then, no new
stand-alone agency has been created, but there has been an
unprecedented increase in the number of agencies and entities engaged
in domestic intelligence and the scope of their activities. The legal
authorities permitting collection of information on Americans have been
expanded and the limitations and safeguards against abuse have been
weakened. Over the past 7 years, Government agencies have collected
enormous amounts of data on enormous numbers of Americans, which is
stored in electronic databases virtually forever, and is accessible to
enormous numbers of Government employees. Advances in technology have
meant that information about individual Americans is no longer
``practically obscure'' by being hidden within enormous data sets, but
instead can be quickly, easily and cheaply retrieved, analyzed, and
disseminated to a wide range of Federal, State, local, and tribal
officials and employees.
Such developments pose enormous challenges to the balance of power
between the Government and the citizens. As Senator Sam Ervin explained
in 1974:
``[D]espite our reverence for the constitutional principles of limited
Government and freedom of the individual, Government is in danger of
tilting the scales against those concepts by means of its information
gathering tactics and its technical capacity to store and distribute
information. When this quite natural tendency of Government to acquire
and keep and share information about citizens is enhanced by computer
technology and when it is subjected to the unrestrained motives of
countless political administrators, the resulting threat to individual
privacy makes it necessary for Congress to reaffirm the principle of
limited, responsive Government on behalf of freedom.
``Each time we give up a bit of information about ourselves to the
Government, we give up some of our freedom: the more the Government or
any institution knows about us, the more power it has over us. When the
Government knows all of our secrets, we stand naked before official
power. Stripped of our privacy, we lose our rights and privileges. The
Bill of Rights then becomes just so many words.''\1\
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\1\ Senator Sam Ervin, June 11, 1974, reprinted in Committee on
Government Operations, United States Senate and The Committee on
Government Operations, House of Representatives, Legislative History of
The Privacy Act of 1974 S. 3418, at 157 (Public Law 93-579) (Sept.
1976).
Senator Ervin is not describing the risks of individual misuse and
wrongdoing, such as identity theft or other illegal uses of personal
information by unauthorized Government officials. Rather, he is
describing a systemic danger to our form of Government.
Indeed, domestic intelligence activities--the secret collection of
information by a government on its own citizens and residents--have
always posed a serious threat to individual liberty and to
constitutional government. There is virtually no domestic intelligence
agency, including MI5 in Great Britain, untainted by scandal, political
spying and dirty tricks, activities that threaten not only individual
rights, but the proper functioning of democratic government. Risks to
civil liberties are inherent in the very nature of domestic
intelligence. This is because intelligence necessarily operates in
secret and, as a result, it is exceedingly difficult to subject
intelligence activities to the checks and balances that the framers of
the Constitution understood as essential to prevent abuses of power.
Secrecy operates to make congressional oversight less vigorous than
usual, even though it is more needed in this case to compensate for the
lack of the usual forms of public scrutiny over Government activity. In
addition, the Executive branch has been very successful in arguing that
judicial review of intelligence activities should be extremely
deferential and limited, even when constitutional rights are at stake.
Perhaps the greatest barrier to strong oversight and accountability is
the always-present notion that the interest served by intelligence--
national security--is of paramount concern and always outweighs other
interests.
While the 9/11 attacks are a reminder of the extent of national
security threats to the United States, the response by the last
administration confirmed the insights of the Founders concerning the
temptations of power and the ever-present need to defend the principles
of democratic government. In the name of national security, the
President claimed the authority to violate the laws passed by Congress
protecting individual liberties and to keep such claims a secret not
only from the American public, but even from the Congress. While the
warrantless surveillance and illegal interrogations are well known, the
administration also rounded up and jailed without due process hundreds
of individuals in the United States because of their religion or
ethnicity. We can have no confidence that such claims will not again be
made by an administration in the name of necessity when faced with
inevitable future crises.
It is against this backdrop, that Congress should examine homeland
security intelligence. A specific threat assessment is needed that is
targeted to the specific missions tasked to such intelligence. Equally
important a comprehensive understanding and public report is needed
concerning domestic surveillance authorities and the potential uses of
intelligence information against individuals, e.g., to place them on
watch lists, to deny them security clearances, jobs, legal residency,
or to prosecute them. Intelligence information also gives the
Government the power to pressure unwilling individuals to become
Government informants. Finally, the American public is entitled to
metrics concerning the amount of data that has already been collected
on them; how many individuals are referenced in how many Government
databases; how much information is stored in those databases; and how
many requests is the Government making to how many entities for more
information about Americans. What kind of information is the Government
collecting on how many Americans concerning their lawful political or
religious activities?
There is no doubt that all such data will be available to the
Government to be used as has happened repeatedly in the past, against
political, racial, or religious minorities, against dissenters or
against political opponents. We count on this committee and others to
examine how to prevent this, to consider whether more narrowly targeted
collection programs may be more effective in preventing terrorism while
posing fewer risks to constitutional government and individual
liberties.
We are grateful for the opportunity to do so with less fear-
mongering and partisanship and more public dialog and discussion.
Thank you for considering our views.
Ms. Harman. Two votes have been called, and we all agreed
to limit our questions to 4 minutes each strictly so that we
can make the votes and not inconvenience any of you. So here I
go.
First let me say that the witnesses on the first panel all
talked about privacy and civil liberties issues. I applaud them
for doing that. I think all of them are mindful of this.
Whether they have got it perfectly right, I don't know; whether
you have got it perfectly right, I don't know either. But
fortunately, the debate does include every time, every time I
hear the debate, the collection of information necessary to
protect against terror threats consistent with privacy and
civil liberties and constitutional concerns. So I like hearing
that.
I want to know whether you all agree with Ben Franklin and
me that security and liberty is not a zero-sum game. I want to
start with you, Ms. Fredrickson, because the other two witness
put forward some things that they feel should be done,
tightening of definitions and other efforts, so that we can
carry on with necessary activities to collect intelligence to
protect us against homegrown threats while we are very, very
focused on the need to protect innocent Americans and others
from abusive efforts.
So do you agree that security and liberty are not a zero-
sum game?
Ms. Fredrickson. Absolutely, and I think those acts show
that. When you look at law enforcement that makes a very
deliberate effort to get to know different communities and have
relationships, that is probably the most effective way of
ensuring that concerns are brought to them, that people are not
afraid of them and of keeping us all much safer. I think that
is an example that proves your point completely.
I would have to say that we commend Commander McNamara for
her interest in having dialog with the ACLU. I understand there
are civil liberties concerns in the process of collecting
information about people's daily lives and daily activities and
ensuring that there is not an improper overcollection of
activities such as taking photographs. I think we are
continuing to have discussion with her about how to put greater
protections into the SARs. We do think they are still
overbroad, but I think there is a way of refining it.
I was very pleased with the testimony of the prior panel. I
think that there were many quotes that we usually use at the
ACLU that were used by the law enforcement professions who were
here, and it is music to our ears. I think we are all trying to
sing from the same hymnal if we can and reach the same results.
Ms. Harman. Thank you.
Could each of you answer very briefly so I keep within my
time?
Mr. Nojeim. Yes.
Ms. Harman. Thank you, Mr. Nojeim.
Ms. Martin. Yes, and I would agree as well. How to
reconcile that it is not as----
Ms. Harman. I agree, but let us retire the word
``balance.'' It is not that you get more of one and less of the
other. We have got to do it right on the front end, or, let us
hope not, comes the next terror attack, and I think we are at
serious risk of shredding our Constitution, which to some
extent, in my view, happened in the last years since 9/11
because Congress and the public were not part of the dialog
about what policies made sense.
The Chair now yields 4 minutes to Mr. McCaul.
Mr. McCaul. I thank Madam Chair. I, too, join you in your
comments. We will not violate the Constitution in the name of
national security; that is what defines us from the terrorists.
I thank the witnesses for very thoughtful testimony.
I want to make a few quick points and then turn it over.
One, Mr. Nojeim, the idea of intelligence guidelines to test
SARs, I am very intrigued by that idea, and I think that is
something that the committee should follow up on.
Criminal predicate versus reasonable suspicion would be
something I would be interested in your thoughts on. There is a
little bit of a difference there.
Ms. Martin, the idea of studying the Israeli model and how
they deal with the privacy is something I would like to hear
from you on.
Then finally there is an Office of Civil Rights and Civil
Liberties at the DHS that did respond to the north central
Texas Fusion Center issue that you raised. How can they do a
better job? I guess if I can throw that out.
Ms. Harman. In 3 minutes and 14 seconds.
Ms. Fredrickson. I will be brief. I think the privacy and
civil liberties offices need to be strengthened. They have not
had enough independence from the departments that they sit in.
They don't have adequate authority to review documents,
subpoena documents, in effect, within the Department. So we
have regularly recommended that these offices, as well as the
Privacy and Civil Liberties Oversight Board, be strengthened so
that they can perform a role that is much more of an ombudsman
type of role rather than a subsidiary of Department of Homeland
Security.
Mr. McCaul. Thank you.
Ms. Martin, can you expand on the Israeli model and how we
can learn from that?
Ms. Harman. Please turn on your microphone.
Ms. Martin. Sorry.
The Israeli Supreme Court issued some extraordinary
decisions about how--the importance of protecting individual
liberty even when faced with the threats that Israel faces. I
think at the same time that the day-to-day threats that are
faced in Israel are quite different and perhaps not so useful
in looking at the day-to-day activities of the local police and
State police in the United States, and I would not urge that as
a model.
We do not have a history of people getting on buses to blow
themselves up and the passengers. I think one of the things I
would really like to see is a threat assessment that
distinguishes, for example, between the threat posed to U.S.
interests by persons overseas, some of whom want to attack U.S.
interests overseas, some of whom will try to get here, and the
terrorist threat posed by people who are already here. I think
that the discovery will be that the resources have been
mismatched, that the real threats to the United States are
overseas, that is what the Commission on WMD concluded, and
that we need to understand that in organizing for, ``homeland
security''.
Mr. McCaul. Thank you. I see my time has expired.
Ms. Harman. We have 5 minutes and 13 seconds on this vote.
Mr. Carney, you get 4.
Mr. Carney. Wow. Thank you, ma'am. I will skip the verbs.
I had twice at least sworn an oath to protect and defend
the Constitution as a naval officer and as a Member of
Congress, and I take those oaths very seriously obviously. But
when we look at sort of the post-9/11 world in which we are
living and connecting the dots, I am still a practitioner of
intelligence as a Navy intelligence officer. How do we kind of
make the--I guess the legal term was that I have always heard--
the Chinese wall between national intelligence issues and
domestic issues; how do we reach that in a way that protects
and defends the Constitution for all of you?
Mr. Nojeim. May I? I don't know that the constitutional
inquiry is actually the right one at this point, and I don't
think we have to reerect walls between domestic and
intelligence activities, because when you think about the
Constitution, what is it that protects privacy in the
Constitution? It is really the fourth amendment. Often we are
not talking about fourth amendment searches when we talk about
problems that information collection and sharing creates. We
are talking about a privacy value that is not based solely on
the fourth amendment.
So where I think would be a good place to start looking and
to start thinking about this problem would be to ask what is
the bang for our buck out of all of the intelligence sharing
and collection that is going on right now? Are SARs that are
being collected worth, if you will, the number of arrests that
they generate, or is there a more efficient way to do it, a
more efficient way that focuses more on wrongdoing and less on
the collection of information about innocent people? That is
where I think the inquiry ought to be.
Ms. Martin. If I might add in a sound bite kind of way, I
think that the mission ought to be to determine how to do smart
information sharing, how to determine what information about
what is going on overseas is actually useful and helpful to
people in the United States who are tasked with this mission,
and that there has been very little of that. Instead, all of
the bureaucratic incentives are, you better make sure you have
shared the information, whether or not the information has been
analyzed. It is a hard problem, but that that is what we need
to look at. That is what the NCTC is about, about trying to do,
but we need more of that.
Ms. Fredrickson. I would just add a little bit to that. I
think if my dear friends and colleagues would excuse me from
using a metaphor that we all use regularly, it is the haystack.
We are looking for the needle in the haystack.
Mr. Carney. No, you are looking for the needle in the stack
of needles.
Ms. Fredrickson. Well, when you make the haystack much
bigger, it gets harder to find the needle. So what we are
suggesting is making sure that the programs that we fund and
that are operating are actually efficient and effective, and
not letting fear drive our resources.
Mr. Carney. Well, when we have more time, I would love to
kind of specifically drill down on those recommendations when
we can, perhaps at another hearing. Thank you, Madam.
Ms. Harman. Thank you, Mr. Carney, and we certainly can. I
regularly call on all these witnesses for information and want
to suggest that you not be shy and help us get these policies
right.
I kind of like what Ms. Martin said about smart information
sharing. Dumb information sharing doesn't seem to be a value we
should support. Both panels, I believe, get that. I am glad the
first panel stuck around to talk to the second panel. That is a
form of information sharing, and we appreciate it. This was a
great first hearing.
The hearing stands adjourned.
[Whereupon, at 11:56 a.m., the subcommittee was adjourned.]
