Hearing Calls for Improved Intelligence Gathering Strategies That Protect Free Speech

Members of the private task force charged with making recommendations to help guide recent national, state and local law enforcement  information sharing efforts addressed the Senate Judiciary Subcommittee on Terrorism and Homeland Security [1] on April 21, 2009, agreeing with civil liberty advocates that more must be done to protect privacy and free speech amid the effort to detect terrorist plots.  Subcommittee Chairman Ben Cardin (D-MD) and Ranking member Jon Kyl (R-AZ) listened to testimony focused on fusion centers, inter-governmental information sharing hubs, many of which have recently drawn criticism for targeting events and peaceful protests as terrorist threats.

The hearing entitled, Protecting National Security and Civil Liberties: Strategies for Terrorism Information Sharing [2], came on the heels of several controversial fusion center bulletins [3] bolstering civil libertarians’ arguments that the Information Sharing Environment (ISE) and its national network of intelligence fusion centers are vulnerable to civil liberties abuses [4], such as unconstitutional police investigations of peaceful political and religious groups. In one case, the Maryland State Police investigated several non-violent antiwar and human rights groups [5], filed them as terrorist organizations, and transferred the data to a federal law enforcement database.

Zoë Baird, president of the nonprofit Markle Foundation and co-chair of its Task Force on National Security in the Information Age [6] said the success of the country’s new ISE is dependent upon the public’s trust, which can only be gained through safeguards for civil liberties. Baird recommended the establishment of a government-wide privacy policy to improve clarity on what information can be collected to discern terrorist plots.

The Markle Task Force has issued four reports on the role of information in national security since October of 2002. Each report has called for improving law enforcement intelligence sharing and strong protections of civil liberties. The most recent report, Nation At Risk: Policy Makers Need Better Information to Protect the Country [7], urges the President and Congress to take swift action to ensure that policy makers have the best information available to confront a stark set of 21st century national security challenges."

Echoing the call for protecting privacy, Caroline Fredrickson, Director of the Washington office of the American Civil Liberties Union told the Senators [8], "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."

Frederickson went on to say, "Sweeping changes in surveillance practices have turned federal, state and local law enforcement officers into de facto intelligence agents," said Fredrickson. "These changes coupled with the failure to enforce existing regulations will inevitably lead to more abuses like those seen in Maryland. When our government steadily increases its information sharing and spying capabilities without increasing our privacy protections proportionally, abuse will always be inevitable."

Frederickson was also critical of the recently amended Attorney General Guidelines [9] that allow a person's race or ethnic background to be used as a factor in opening an investigation. "The current Attorney General Guidelines give too much leeway for the FBI to engage in abusive investigations targeting First Amendment protected activity," said Fredrickson. "A person's race, religion or political beliefs do not constitute reasonable suspicion. Congress must address these guidelines and make a clear statement that it will not approve racial profiling."

Markle Task Force member and former U.S. Sen. Slade Gorton and Police Chief J. Thomas Manger of Maryland’s Montgomery County Police Department also spoke at the hearing. Gorton called on government agencies to eliminate "stovepiping" and collaborate more. He said, "Cultural, institutional, and perceived technological obstacles have slowed the implementation of laws intended to facilitate the flow of information and create new ways of collaborating." Manager voiced strong support for the development of a national Suspicious Activity Reporting System (SARS) by which fusion centers can "connect the dots” to recognize threats. SARS does have potential drawbacks. According to Manager, "No police chief wants his officers involved in confrontational interactions with people engaged in innocent, constitutionally protected behavior. Not every person wearing baggy pants is a gang-banger and not every person videotaping the Washington Monument is a terrorist."

Chairman Cardin called for additional hearings on this subject.