Domestic Spying: A Mission in Search of a Cause
Civil rights advocates fear that anti-terrorism fusion centers are overstepping their bounds.
In the spring of 2006, Anne Havemann placed a call to the National Oceanic and Atmospheric Administration to make arrangements for a meeting at their headquarters in Rockville, Md. As public affairs director for the Chesapeake Climate Action Network, she had been assigned to organize a press conference coinciding with the first day of the hurricane season to discuss the link between global warming and powerful tropical storms.
After a few phone calls and e-mail exchanges with Maryland State Police and Department of Homeland Security staff, Havemann acquired the permits, and the press conference went off without a hitch. But two years later, and much to her alarm, Havemann learned that as a consequence of this innocent transaction, her name had been entered into a criminal activity database by Maryland State Police and tagged with the label “terrorist/environmental-extremist.”
CCAN describes itself as “a grassroots, nonprofit organization dedicated exclusively to fighting global warming,” and its name shows up frequently on the Web in relation to events in the Maryland and Virginia area that feature citizen input on environmental issues, from opposing new coal-burning power plants to a fundraising Polar Bear Plunge.
Havemann says she has no connection with terrorism or any other illegal activity — in her words, “not even a speeding ticket.” Nevertheless, Maryland State Police targeted her for surveillance along with more than 50 other apparently law-abiding citizens whose names had been associated with the terrorism tag in a federally funded database.
The surveillance was part of an undercover police operation that came to light when documents containing hints of spycraft on the part of police surfaced during pretrial discovery in an unrelated case.
Using Freedom of Information requests to dig deeper, lawyers with the American Civil Liberties Union unearthed a snooping program that spanned — at a minimum — 2005 through 2006 and that had targeted advocacy and activist organizations devoted to a range of causes — for peace, against the death penalty, for the environment — falling roughly on the left side of the political spectrum.
In July 2008, Maryland Gov. Martin O’Malley assigned former state Attorney General Stephen Sachs to review the surveillance program. According to Sachs’ critical 149-page report, while the department cooperated fully with his efforts, key high-ranking officials declined to comment for the report. Lower ranking police operatives, however, admitted to infiltrating activist organizations while posing as sympathetic participants and using fictitious identities to attend, and offer input, during the targeted groups’ organizational meetings.
The report says that officials also admitted to monitoring the groups’ electronic communications and befriending activists, chatting with them about art and social engagements while eliciting information about their organizations’ plans — in essence, employing tactics one might expect from those investigating organized crime, drug trafficking or life-threatening conspiracies.
Havemann said the subterfuge was unnecessary.
Despite having been spoofed into addressing e-mail messages directly to a Yahoo online account maintained by undercover police, she said the police would have received the same information had they signed up with their actual names, as representatives of the police department. “We have nothing to hide,” she said. “Nothing we do is secret, and we’re happy to share information about global warming and the environment with anyone who signs up for our e-mail list.”
Sachs’ review concluded that the spying project lacked justification. Police turned up no evidence of illegal activities and no threatening plans. Undercover officers noted repeatedly in their confidential reports, the activist groups’ strict adherence not only to nonviolence but also to common courtesy.
One officer identified in the review by only a code name observed a vigil for an impending execution and said demonstrators were careful to move out of the way “to allow Corrections Department personnel to get to their jobs.”
Pushing the Envelope
Though the spying operation may sound like a local aberration, the ACLU’s Mike German said it appears to stem from a wider initiative with nationwide implications.
“Our concern is that it’s part of a federal government national strategy to utilize state and local authorities to collect domestic intelligence — encouraging state and local officials to become intelligence officers,” he said.
As policy counsel for national security with the ACLU’s Washington Legislative Office, he connects these operations with a new pre-emptive anti-terrorism strategy revolving around emerging institutions known as “fusion centers.”
German said fusion centers are usually housed under the auspices of the state police agencies of the participating states and are intended to streamline information sharing between local, state and federal authorities as a means to plan for hazards ranging from natural disasters to terrorist attacks. They combine information gathered by undercover operations, data-mining projects and domestic intelligence operations with bits of information gathered from emergency-response workers and other sources into shared and networked databanks.
The fusion center concept was inspired by the recommendations of the 9/11 Commission in response to an incident where an individual, later connected with the attacks, had been stopped by police but was released because local authorities lacked information about his documented terrorist associations.
When first broaching the term “fusion center,” the report’s authors write: “A ‘smart’ government would integrate all sources of information to see the enemy as a whole. Integrated all-source analysis should also inform and shape strategies to collect more information.”
Because of the obvious wisdom in gathering and disseminating potentially vital information to agencies that can use it, the fusion center concept enjoys the strong support of numerous public safety officials and federal authorities at the Department of Homeland Security.
For all their popularity with law enforcement, German said the resulting fusion centers, now numbering fewer than 60, have shown little documented evidence of success. And he said they have begun to “push the envelope,” expanding their mission beyond tracking known terrorists. The Los Angeles Police Department’s program, for example, directs officers to take “suspicious activity reports” on individuals espousing extreme views, taking notes or “videotaping scenes with no inherent aesthetic value.”
German, in a recently released update to his 2007 study (“What’s Wrong With Fusion Centers“), writes that these activities keep the centers busy even when no terrorists are to be found. In these instances, he says the fusion center programs turn their focus to what they term “the precursors to terrorism.”
In October 2008, the National Academy of Sciences released a report titled “Protecting Individual Privacy in the Struggle Against Terrorists.” Commissioned by the Department of Homeland Security, the report cites weaknesses in the pre-emptive intelligence approach. Significantly, it holds that not enough is known about terrorism to reliably identify its precursors.
“No one knows what terrorism’s ‘precursors’ are,” German said. The fusion center approach, he added, sidesteps this challenge with the attitude, “If not real terrorist, we’ll go after ‘whomever.’”
Nothing to See Here
German is also concerned about the secrecy surrounding this nascent domestic intelligence program. According to The Washington Post and other local papers, the Commonwealth of Virginia recently moved to shield its fusion center operations from all public scrutiny. It approved a measure exempting Virginia’s fusion centers from the Freedom of Information Act, hobbling the public’s ability to assess either the performance or the propriety of the program’s methods and tactics.
At the federal level, the Bush administration in August proposed a modification to Code of Federal Regulations (CFR) 28, part 23, Criminal Intelligence Systems Operating Policies, (known as Part 23) that would relax the requirements for state and local agencies to safeguard the privacy and constitutional rights of individuals if an investigation can be said to concern a national security interest.
Homeland Security has noted privacy concerns and includes a Privacy Office, which oversees compliance at state and local fusion centers. In a listing of 2008 accomplishments, the department noted it had increased some compliance measures related to personal information and held workshops on issues such as data mining “to foster education and awareness of these key privacy issues.”
Just before Christmas, the Privacy Office released a 42-page “privacy impact assessment” of the fusion-center initiative that examined both practices and problems. It reported that existing safeguards are in place, citing a Havemann-like example to illustrate the point:
“(Part 23) implements the data minimization principle in fusion centers operating criminal intelligence systems by requiring a reasonable suspicion that the information relates to an individual involved in criminal conduct activity, and that the information is relevant to that conduct or activity; and, prohibiting the collection of information about the political, religious or social views, associations, or activities of any individual or any group, unless that information directly relates to criminal conduct and there is reasonable suspicion that the subject of the information is or may be involved in criminal conduct or activity.”
But at the same time, it notes, “No information sharing regime is free from privacy risks,” and Homeland Security Secretary Michael Chertoff publicly lauded fusion centers as a positive example of coordination during his end-of-year address in December.
Notwithstanding the real possibility of a danger from terrorism, German said the current fusion-center vision represents ample opportunities for abuse. He added that the programs and the sweeping initiatives encouraging them are off target; “potentially wasting the time of officers in pursuit of false leads” while “frightening” or alienating the populations they are intended to serve.
In German’s view, the complexity of balancing the legitimate need for confidentiality in terror investigations with the protection of individual rights calls for legislative oversight at the state level. As the DHS noted, “No two fusion centers define or carry out their missions in exactly the same way or are subject to the same authorities or regulations. Notions of comity and federalism, moreover, prohibit the Department from placing certain requirements on fusion centers.”
In its assessment, DHS noted eight areas of possible concern, including unchecked data mining, excessive secrecy, inaccurate information and mission creep to the participation of the military and private industry.
The National Academy of Science report recommends the adoption of objective standards for the evaluation of domestic intelligence initiatives. It calls for enhanced attention to privacy and civil liberties concerns, along with clear effective channels for redress of citizens’ grievances when they fall victim to error.
The simple selection of a term from a drop down list in Maryland State Police’s crime fighting software package was all it took to affix the designation “terrorist” to Havemann’s file.
Correcting that error may not be easy.
Despite assurances that the names of those targeted during the course of the Maryland surveillance program were, or will be, deleted from files in the state’s control, Havemann said she questions the implications of that step.
German said it’s hard to tell whether erroneous information can verifiably be deleted from an intricately integrated and networked system. “Once it’s been uploaded to one system, all systems have access,” he said. “If it was reported to the Joint Terrorism Task Force, we have no way of knowing if it’s still flowing out there only to repopulate the system at some point in the future.”
In November 2008, while checking in for a flight at a New England Airport, Havemann said she was singled out by Transportation Security Administration agents for an intensive search. The experience added to her doubts as to whether her record had been, or could be, cleared. “From now on, I won’t know if these searches are random or if they’re associated with this incident.”
Even after the revelations of the Maryland State Police surveillance operation had been publicized, and authorities had admitted their error, transparency and wholeness have not been restored to the satisfaction of those affected.
“Had I been pulled over in 2006 while the list was still active,” Havemann said, “a file very well could have been pulled up that might have said ‘terrorist, State of Maryland.’ It’s just scary to imagine what could have happened.”
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