There is little if any independent oversight of or consistency in information-gathering procedures at some of the nation’s largest police departments, joint terrorism task forces and fusion centers, according to a new report published Tuesday by the Brennan Center for Justice.
The report, compiled from the findings from numerous Freedom of Information Act requests, reveals that there are large gaps in the local-federal intelligence-sharing systems that, the center says, pose a significant threat to national security and civil liberties.
“It’s organized chaos. That is the state of things at the moment,” said Michael Price, legal counsel at the Brennan Center and author of the report. “First is the lack of clear and consistent rules. Everyone has their own perception of what is suspicious, and what often happens is officers rely on their own biases and preconceptions.”
“The other half of it is, there’s nobody monitoring what these fusion centers are doing at the state and federal level,” he said.
The Brennan Center calls for more oversight and a clear set of standards that all the agencies can follow. Price says having an inspector general oversee the fusion centers could be a step in the right direction.
“Strong independent oversight has got to be a part of that,” he told Al Jazeera. “To the extent that police departments and local governments can create independent monitors, there need to be officials that can peer behind the curtain and see that the rules are being followed and then report back to the public. Reports about compliance, audits, are standard things that are at the heart of transparency.”
The report, based on findings from 16 major police departments, 19 affiliated fusion centers and 14 Joint Terrorism Task Forces, finds that information sharing among the various intelligence and security departments is governed by “a patchwork of inconsistent rules and procedures” and independent oversight of fusion centers is “virtually nonexistent.”
The vast majority of information that is collected is useless, Price said. The study points to a report by the Senate Intelligence Committee that says 95 percent of suspicious-activity reports are not even investigated by the FBI, saying analysts have “too many dots” to sort through.
The CIA, NSA and Department of Homeland Security did not respond to requests for comment. The FBI declined to comment.
A look at a training manual from the Los Angeles Police Department, titled “Characteristics of Terrorist Surveillance,” points to some of the dots the Senate report mentions.
The manual instructs officers to look for people who stay at bus or train stops for extended periods while buses and trains come and go, who carry on long conversations on pay or cellular telephones, who order food at restaurants and leave before the food arrives or order without eating or who are standing and stretching for an inordinate amount of time instead of jogging.
The Brennan report says these activities could either be “evidence of pre-operational planning related to terrorism or evidence of a sore hamstring.” Under such wide-ranging intelligence gathering, Price says, “anyone could end up on a terrorist watch list for ordering food and not eating it.”
He also says that it is unclear what happens with the 5 percent of reports that are investigated and that the information is not collected under the established standard of reasonable suspicion that has been used for years in intelligence gathering and local policing.
Mike Sena, director of the Northern California Regional Intelligence Center, told the Brennan Center that the information reported on the nationwide Intelligence Sharing Environment and the FBI’s eGaurdian intelligence-sharing portal may not always meet the reasonable-suspicion requirement — something Price said was the standard before the Sept. 11, 2001, terrorist attacks.
The Brennan Center is not alone in its concerns. The American Civil Liberties Union has been worried about some of the same issues for years.
"The ACLU has long expressed concerns about these new counterterrorism authorities and platforms that are being used,” said Mike German, senior policy counsel at the American Civil Liberties Union. “What the public needs to understand is that this type of suspicious intelligence collection is not really effective. It sacrifices privacy for no security benefits.”
Regional fusion centers in Los Angeles have determined that only 2 percent of suspicious-activity reports produced by the LAPD from 2008 to 2010 had information that was connected to possible terrorism. However, the agency kept 98 percent of the essentially useless intelligence files, purging only 66 of the nearly 2,800 records collected.
Fusion centers, spread across the country, cost up to $1.4 billion from 2003 to 2011 and routinely produce “irrelevant, useless or inappropriate” information, according to a bipartisan Senate investigation (PDF).
Price said the collection and retention of such information is a threat to civil liberties. “There’s no indication that the kind of reports they’re generating are contributing anything to counterterrorism,” he said. “If anything, they’re doing the exact opposite. By collecting large quantities of useless information, they’re making it harder to identify potential terrorist threats.”
Price pointed out the ineffectiveness of the procedures by looking at the Boston Marathon bombing in his report.
While Boston was not initially one of the cities the report studied, Price says it is the perfect example of why things aren't working. The Boston fusion center may have missed critical information that could have prevented the bombing had the right dots been connected regarding Tamerlan Tsarnaev, the now deceased older brother in the bombing duo, the report says.
“We know the FBI conducted an investigation of Tamerlan. They placed him on a watch list, and three months later he was implicated in a pretty gruesome triple homicide. And it doesn’t appear that the local fusion center was aware of this, or at least we don’t know if they or the FBI was aware of this,” Price said.
“What we do know is that at the time this was going on, the fusion center was fixated on monitoring Occupy Boston protesters,” he added.