Management and Reform of Intelligence

THE MANAGEMENT AND REFORM OF INTELLIGENCE
"At seventy, every man wants to reform the world." (Clarence Darrow)

From an administrative or management point of view, intelligence agencies, the intel community, and all intelligence activity, represent a distinct challenge. Administration and management of Intel is very different from the administration and management of any ordinary organization. How, for example, is effective oversight or control supposed to be accomplished when many activities and missions must remain secret? As we shall see, almost all the various reforms proposed over the years have touched on the issue of secrecy, and the role of secrecy (or secret organizations) in an open democracy. Another problem area is personnel management. There will be a number of very smart people working as analysts in one's organization, so how does the manager decide which one is the smartest, or most usually right, and which expert opinions (equally as smart and likely right) get relegated to the bottom of the heap? At some point, a consensus of opinion must emerge which is formed into a policymaking product. There used to be a procedure for placing dissenting opinion in an Intel report as a "footnote," but that procedure is used less and less these days. And then, there is the problem of embarrassment. Things don't often go right. Intelligence failures happen. There needs to be a mechanism whereby the policymakers and heads of government can credibly deny that they know anything about it -- and that mechanism is called "plausible denial," a very controversial topic.

There are some basic principles to follow. For one, each superior or supervisor should have the "need to know" all the information or intelligence that their subordinates have access to or produced. Two, for plausible denial to work, knowledge of potentially embarrassing activities must be restricted to the smallest number of officials possible, and it helps to have all traces of the "paper trail" removed (this, of course, going against the whole purpose of the Freedom of Information Act as well as various laws regarding obstruction of justice). Three, specialists in any one analytic technique or discipline of intelligence should NOT be the ones who present products to policymakers. The finished intelligence product ought to undergo its final edits and presentation by generalists in intelligence. This raises the questions of whether top-level analysts ought to be specialists or generalists, how one gets to be a generalist, and whether there really is a difference between an intelligence analyst and a policy analyst. Remember that intelligence analysis is not about making policy. The users should be free to take it or leave it. Also, there will be times when the intelligence recommendation goes against established policy, or doesn't support current policy. If intelligence work was nothing more than policy analysis, then it would lose its independence and ability to function effectively as an equal partner to policy. Unfortunately, there's a strong tendency to "kill the messenger" when an intelligence product doesn't support current policy, and an accompanying tendency to subordinate intelligence to policy. This almost always results in intelligence failure. Always telling the people in power what they want to hear is a recipe for disaster. Fortunately, most intelligence products are written so that they can support policy one way or the other. There should be no such thing as "Imperial Intelligence." Finally, there should always be some form of congressional oversight since somebody must pay the bills and the "advise and consent" function of the Senate, at least, has worked well for the U.S.

In principle, nobody would advocate that an intelligence service should be completely separate or independent from the head of government (Shulsky & Schmitt 2002). For the United States, this means there should be at least some regular connection to the Chief Executive in the White House. However, an intelligence service also ought to be sufficiently independent from this executive connection so that it can take the initiative without always being told what to do. We're not referring to covert action initiatives here -- those are always going to require Presidential direction -- but simply the kind of independence which allows the intelligence agency to look at problem areas or potential trouble spots around the world in geographic locations that are probably not paid enough attention to by the policymakers in power. Now, this "policymaker blind side" function of intelligence should not be confused with global news reporting. An intelligence service should not become the CNN for policymakers. Presidents and politicians have plenty of their own access to news, they have their own staff for this, they have the Internet, and there are many good fee-for-service commercial services like Jane's and Stratfor. Open source intelligence is increasingly available as part of the "information revolution" in today's world. The management problem that exists is when an intelligence service is forced to "fuse" the information coming in from traditional intelligence sources and those news reporting, open sources that the policymakers are relying upon. The term for this is "intelligence fusion" when secret sources are combined with open sources. The possibilities for fusion and all-source intelligence (the dissemination of intelligence among all the "tribes" or disciplines of intelligence, including law enforcement and the private sector) have been discussed extensively by Robert Steele (2000; 2002) who runs OSS.net and is a staunch advocate of intelligence reform aimed at getting the nation up to full capacity. Technically, all-source intelligence analysis is that analysis which is based on all available collection sources, and it is normally the opposite of a case-oriented, law enforcement approach that is focused on a specific mission, specific type of threat, and specific perpetrator or defendant.

Another principle could arguably be made for the independence of intelligence agencies from Congressional oversight. Far too often, the spectacle of testifying before Congress is a media event, and oversight committees should never be used as surrogates for public opinion. The intelligence community uniquely has two (2) oversight committees, perhaps one too many, as too many committees may result in an excessive number of people having access to secret information. Leaks are typically a problem associated with Congressional oversight. Congress also has a tendency to play "hard ball" with those who testify and do not fulfill the four basic criteria of "good" testimony in this context; i.e., (1) candor, (2) clear, (3) complete, and (4) consistent. In all fairness, these are tough criteria.

Administrative and management problems come into stark relief when we consider the need for a domestic intelligence service, like MI5 in England. The United States has a troublesome history with this, mostly because of Hoover's legacy in the FBI. However, in the post 9/11 environment, it's clear that we need some kind of domestic agency that is prepared to respond before an attack, not after an attack, and the FBI, like any law enforcement agency, is superbly qualified to respond and handle crime scenes after something has happened. The question becomes whether such an agency should be a law enforcement agency (with powers to arrest and detain), an intelligence agency (that collects and gathers information), or a mixture of both. If the experience of other nations is any guide, Chalk & Rosenau (2004) find that Britain, France, Canada, and Australia all maintain independent domestic Intel agencies (MI5, DST, CSIS, and ASIO respectively) that only have a "loose" relationship to law enforcement. In other words, these agencies don't use standard law enforcement techniques. Instead, they use intelligence techniques to proactively mitigate threats before they happen. Divesting the intelligence function from law enforcement has been a huge topic of discussion among reform commissions, going back to the famous Church Commission.

The Church Commission was formed in 1975 and was formally entitled the Select Committee to Study Governmental Operations with Respect to Intelligence Activities. It was charged with looking into alleged abuses of power by the CIA and FBI. Specific things that the commission looked into were: (a) the shooting death of Black Panther Freddy Hampton; (b) the wiretapping of Martin Luther King's motel rooms; (c) the attempted assassination of Fidel Castro; (d) missing evidence in the assassination case of John F. Kennedy; and (e) the disappearance of union leader Jimmy Hoffa. Suffice it to say that the Church Commission found enough evidence to characterize the domestic intelligence activities of the FBI and CIA as "rogue elephant" out-of-control behavior. COINTELPRO was the name of the program that came under the most attack.

Whole books have been written about Operation CHAOS and COINTELPRO (Donner 1980) during the Hoover period (1939-1971) when the FBI was a domestic intelligence agency that tracked "subversives" regarded as future threats to the undermining of government. The bureau perfected the theory and practice of counter-subversion, providing policymakers with intelligence on persons, organizations, and places where political agitation or unrest existed, or at least the gossip of such behavior existed. After a "vetting" process (a term for validating the truthfulness of information) of 90 days, in which informant tips were collaborated by record searches, mail opening, surveillance, and pretext contacts, agents frequently took proactive measures, such as raids, break-ins, detention without right to counsel, and blackmail. Liaisons were made with Military Intelligence, and the FBI established an international presence, but used MI domestically as well (the "greening" of intelligence), even after 1961 when National Guard intelligence functions were deactivated. College campuses, and their surveillance and infiltration, were a favorite target, with Hoover going after criminal justice departments in particular. Hoover distinguished general (strategic) files from intelligence (line) files, the former being kept secret in field offices until destruction orders were given, and of course, Hoover destroyed most of his own files before he left. Such was the domestic spy network set up under Operation CHAOS, which Hoover regarded as penetrative intelligence. Under COINTELPRO, the goal was disruption, or what Hoover called aggressive intelligence, which involved planting lies and deceptions into subversive organizations, putting a "snitch jacket" on someone (leaking that they were an FBI informer), spreading false rumors, getting people evicted, promoting marital discord, and other dirty tricks bordering on the unimaginable, often borrowed from the CIA. Hoover made regular use of his contacts in the IRS and ATF (then part of IRS but later moved to Treasury in 1972) to trigger tax audits on groups and individuals, as well as to spy on what books they were checking out of libraries. The private sector was enlisted to help the bureau in a number of ways, via recruitment of security firms like Pinkerton and Wackenhut, the local Chamber of Commerce, vigilante and militia groups, the John Birch Society, and even clergymen (Methodists in particular).

There has hardly been a time in history when there was not a commission investigating U.S. intelligence. Some recent commissions and reports include:

Basic reforms that the 9-11 commission recommended in 2004 include the following: (1) replace the CIA Director with a National Intelligence Director (NID), and make this person the president's principal adviser on intelligence matters who would also oversee existing agencies like the FBI, CIA, NSA and NRO; (2) make the CIA Director focus on rebuilding that agency's analytic and human intelligence capabilities, while emphasizing recruiting diversity so officers can blend easily into foreign cultures; (3) give the Defense Department full and complete responsibility for directing and executing paramilitary operations, consolidated with the efforts of the Special Operations Command; and (4) make intelligence budgets public, with Congress required to pass a separate appropriations act for intelligence. The key point of contention between the President and these recommendations (as of this writing) relates to #1 and whether or not the new position, the NID, would have control over all intelligence budgets and have the authority to choose who would run the CIA, FBI, DIA, and other agencies. The President also turned aside the commission's idea for placing both the NID and a new National Counterterrorism Center (NCTC) within the White House. The following are excerpts from the the White House Press Release of Aug. 2, 2004:

National Intelligence Director (NID). Once established in law, the NID will serve as the President's principal intelligence advisor and the head of the Intelligence Community. The NID's authorities and responsibilities will further enhance the ability of our intelligence community to give the President and his advisors an integrated intelligence product on threats to our national security and improve the warning function of intelligence. This will help to make certain that every President has the best, unbiased, unvarnished assessment of America's intelligence professionals. These organizational changes will allow a Director of the CIA to focus solely on foreign intelligence collection, analysis, and any additional responsibilities assigned by the President. It will not only lead to improvements in the quality of analysis, but will also ensure that our human intelligence collection capabilities continue to grow in their quantity and quality. The NID will:

Assume the responsibilities and authorities of the current Director of Central Intelligence as head of the Intelligence Community, including responsibilities to oversee the national intelligence program and its budget, and coordinate the activities of the CIA, DoD intelligence agencies, the FBI's intelligence and counterterrorism activities, and parts of the Department of Homeland Security.

Have the authority and responsibility for presenting an integrated intelligence budget to the President for his consideration through the existing OMB budget process, and increased authority in the selection of personnel at national intelligence agencies.

Oversee the work of the newly created National Counterterrorism Center (NCTC). The Director of the NCTC will report to the NID.

Through the NCTC, have overall responsibility within the U.S. Government for integrating foreign and domestic intelligence related to terrorism.

Be a Presidentially appointed, Senate-confirmed position who will serve at the pleasure of the President, report to the President, and be available to testify before a new, streamlined oversight structure set up by Congress. The NID will not be a member of the President's Cabinet and will not be located in the Executive Office of the President.

National Counterterrorism Center (NCTC). Building on the Terrorist Threat Integration Center (TTIC), the NCTC will be responsible for analyzing and integrating foreign and domestic intelligence acquired from all U.S. Government departments and agencies pertaining to terrorism. The Center will identify, coordinate, and prioritize the counterterrorism intelligence requirements of America's intelligence agencies. TTIC analytical capabilities will be integrated into the NCTC. All departments and agencies that have analytic resources on transnational terrorism, or conduct operations against transnational terrorism, will contribute analysts and staff to the NCTC. The Director of NCTC will report to the President through the NID, but will not be located in the Executive Office of the President. The NCTC will:

Support the development and coordination of U.S. Government action plans, ensuring that individual departments and agencies receive the all-source intelligence support needed to execute their plans to counter terrorist threats against the U.S. and U.S. interests.

Serve as the principal U.S. Government coordinator for plans and monitor action plans of the agencies and departments for the collection of terror-related intelligence and to counter terror threats against the United States and its interests and, as appropriate, the interests of its friends and allies.

Concentrate analytical expertise on foreign and domestic terrorism in one location and assure the flow of alternative analytic views, to the extent they exist in the Center and among agencies and departments, to policymakers, including to the President. Agencies and departments are to retain sufficient analytic expertise on counterterrorism to support their unique operational missions.

Prepare the President's Terrorist Threat Report (PTTR) and a range of other integrated analytic products on terrorism.

Support the National Security Council's preparation of the national counterterrorism strategy, which will be coordinated with the Homeland Security Council.

Help identify and coordinate intelligence requirements on terror targets both overseas and at home.

Serve as the U.S. Government's central and shared knowledge bank on known and suspected terrorists and international terror groups, as well as their goals, strategies, capabilities, and networks of contacts and support.

Coordinate counterterrorism plans and ensure all source intelligence support for counterterrorism operational planning efforts underway in the departments and agencies of government.

As necessary, coordinate the prioritization of and interagency law enforcement or counterterrorism response to terrorist threats, and de-conflict and track the actions of the United States Government as currently done by the interagency Counterterrorism Security Group.

Before there was the Foreign Intelligence Surveillance Act (FISA) of 1978, there used to be endless debates about whether intelligence agencies ought to be held accountable to the same Constitutional (the 4th, 5th, and 6th Amendment) standards that police are held accountable to. All that changed with FISA, that "great compromise between the White House, Congress, and Supreme Court" which settled those debates once and for all. If you don't remember what FISA is, it provides for the clandestine surveillance of espionage suspects, including electronic intercepts, communication taps, and break-ins to plant bugs.

Surveillance: There are seventeen (17) different types of surveillance: audio, infra/ultra-sound, sonar, radio, radar, infrared, visual, aerial, ultraviolent, x-ray, chemical and biological, biometrics, animals, genetic, magnetic, cryptologic, and computer. Surveillance basically involves listening in on other people's private conversations. Such eavesdropping has long been termed a "dirty business" by the U.S. Supreme Court as far back as Olmstead v. United States, 277 U.S. (1928). The Fourth Amendment jurisprudence of that decision is known as the "place-based" right to privacy. Under Olmstead, warrantless electronic surveillance could easily be launched by any government official over the phone lines or any other open space that is not a private place in a household. Later, however, the case of Katz v. United States, 389 U.S. 347 (1967) gave us what is known as the "person-based" right to privacy. Under Katz, a warrant would be required for electronic surveillance even in open spaces as long as the target was making a reasonable effort not to be overheard. Within months of Katz, Title III of the Omnibus Crime Control and Safe Streets Act of 1968 was passed, legislating that authorities apply for a Title III warrant, called an eavesdropping order or ex parte order, issued by a federal judge, and that the standard would be probable cause (a crime has been or is about to be committed). Title III did not adequately cover national security or intelligence activities, however. That was addressed in the Foreign Intelligence Surveillance Act (FISA) of 1978, which set up a special review court in Washington D.C., and made the standard a proportionality test (the benefits of surveillance outweigh the harms). Current judicial doctrine also stresses the exhaustion test (standard investigatory methods have been exhausted, failed, are reasonably likely to fail, or are too dangerous to try). A legislative extension to FISA passed in 1994 which allowed surreptitious entry, or clandestine break-in, to conduct "sneak and peek" searches.

Wiretapping: Wiretapping is technically different from eavesdropping in that the covert interception involves communications content (numbers, not conversations) from telephones, telegraphs, fax machines, computers, pagers, wireless devices, and any circuit or packet switch device. Most wiretapping does not record all the content of the conversation, but records only the numbers called out or the numbers called in, and this is called a pen register or trap and trace, respectively. A pen register or trap and trace is authorized by the Electronic Communications Privacy Act of 1986 and similar statutes at the state level. Full wiretaps are authorized by Title III of the Omnibus Crime Control and Safe Streets Act of 1968 and a number of similar statutes at the state level. Wiretapping is also authorized under the Foreign Intelligence Surveillance Act (FISA), and pen registers (which record numbers called out) are used the most frequently. Programs like CARNIVORE that the FBI use is a type of pen register that can record all outgoing emails and web sites visited, but is designed to only record header information and not the message body. ESCHELON and Total Information Awareness are similar wiretapping programs. Wiretaps are generally for the purpose of a specific criminal investigation or law enforcement purpose. Authorization for a wiretap requires proof of probable cause (a crime has or is about to be committed) as well as proof of exhaustion (other investigatory methods have been exhausted, failed, are reasonably likely to fail, or are too dangerous to try). Authorization for a wiretap under FISA presumably requires a proportionality test (the benefits outweigh the harm) and a bona fide intelligence purpose, however the actual criteria that FISA uses is classified.

At about the time FISA was passed (1978), there came about a series of legal tests known as the Levi Guidelines (named after Edward Levi, the Attorney General at the time). These guidelines formed the basis for holding intelligence activities to the same standards as police activities. They still have some relevance today, particularly with regard to military intelligence spying on civilians (Pyle 1986), and it is worth reviewing some of Levi's principles. First of all, no government agency should spy on civilians unless it is suspected that the civilian is working under the direction of a foreign power or enemy of the United States. Secondly, no individual or group is to be considered "subversive" or "un-American" unless: (a) they are not just hostile to the current policies of the government in power, but are hostile to the whole Constitution and its principles; AND (b) they seek to deprive some class of persons, such as an ethnic or religious group, of their civil rights; OR (c) they seek to bring about political change by violent means. Now, what this means is that surveillance and wiretapping cannot take place against U.S. citizens simply because they are exercising their rights to free speech, freedom of the press, or freedom of association. The government's "need to know" must not have a "chilling effect" on the expression of these 1st Amendment rights. However, according to Laird v. Tatum 408 U.S. 1 at 10 (1972), a person must have "standing" to claim they experience a "chilling effect." This means that civil rights groups, such as the ACLU cannot file lawsuits on behalf of people or in general, just claim that there is a "chilling effect" for all Americans. This seems a significant tradeoff, and I appreciate your learning about the many balances and compromises with the law in this regard.

One of the things we have not yet discussed are the challenges of integrating homeland security, intelligence, and law enforcement. The federal government defines homeland security as: "a concerted national effort to prevent terrorist attacks within the United States, reduce America's vulnerability to terrorism, and minimize the damage and recover from attacks that do occur" (Bush 2003). The key part of this definition is "concerted national effort" which means that it is not solely a federal effort, but based on the principle of partnership between governments, the private sector, and the American people. The partner known as law enforcement has always served a first responder role, and it even has some experience at counter-subversive and anti-terrorist (domestic) activities, but today's challenge involves taking on enemies (modern international terrorists) who fight in asymmetric ways that mock constitutional safeguards which balance criminal rights with police powers. Law enforcement has also always been a small-town, decentralized phenomena in American society, and without new models, theories, and laws, it may not be up to the task of collecting, sharing, coordinating, and analyzing the intelligence necessary to successfully assess and respond to modern-day threats. We shall begin with an overview of three ways to approach domestic security, and discuss the implications for law enforcement throughout.

The idea of some sort of super-agency that tracks the ideological (read "subversive" or un-American) commitments of its citizens has been around for a long time. It has been implemented in many nations with internal, state security forces. It is implicit in most proposals to federalize, centralize, or consolidate police forces. It is explicit in most proposals to reorganize the intelligence community, such as the 1970 Huston Plan (named after White House staffer Tom Charles Huston) which advocated combining the CIA, FBI, NSA, and DIA into one big superagency. While far from being anything like MI5 in Britain, the creation of the Department of Homeland Security (DHS) is a significant transformation of U.S. government. Formed in the aftermath of terrorist attacks on September 11th, 2001, the new department's first priority became protection of the nation against further terrorist attacks, followed by additional duties for intelligence and threat analysis, guardianship of borders and airports, protection of critical infrastructure, and emergency response coordination. Along with the Coast Guard and Secret Service, twenty-two (22) separate agencies were consolidated into the DHS, and housed in one of four major directorates:

1. Border and Transportation Security directorate: U.S. Customs Service (Treasury); Immigration and Naturalization Service (Justice); Federal Protective Service (GSA); Transportation Security Administration (Transportation); Federal Law Enforcement Training Center (Treasury); Animal and Plant Health Inspection Service (Agriculture); Office for Domestic Preparedness (Justice)
2. Emergency Preparedness and Response directorate: Federal Emergency Management Agency (FEMA); Strategic National Stockpile and the National Disaster Medical System (HHS); Nuclear Incident Response Team (Energy); Domestic Emergency Support Teams (Justice); National Domestic Preparedness Office (FBI)
3. Science and Technology directorate: CBRN Countermeasures Programs (Energy); Environmental Measurements Laboratory (Energy); National BW Defense Analysis Center (Defense); Plum Island Animal Disease Center (Agriculture);
4. Information Analysis and Infrastructure Protection directorate: Critical Infrastructure Assurance Office (Commerce); Federal Computer Incident Response Center (GSA); National Communications System (Defense); National Infrastructure Protection Center (FBI); Energy Security and Assurance Program (Energy)

The most frequent criticism of DHS is not that it's too big (America has had similar super-agencies such as LEAA, the Law Enforcement Assistance Administration, established under the 1968 Crime Control and Safe Streets Act and dismantled in 1980 with NCJRS remaining as a remnant), but that it's too small, and doesn't include two critical agencies, CIA and FBI, which seem like logical choices for inclusion in the mission of DHS. Apparently, the CIA and FBI are already overwhelmed by a sea of information, and DHS is to go about using new and different intelligence to uncover threats. As the National Strategy for Homeland Security (2003) makes clear, existing agencies like the CIA and FBI are to enhance their analytic capabilities, and new agencies like the DHS are to build new capabilities. Some of those new capabilities the DHS is tasked to develop include the following:

The most important function of DHS will deal with domestic counterterrorism, an idea that encompasses the notion of an informed and proactive citizenry (informed via new Alertness and Awareness systems) who see something unusual and report it to the appropriate authorities. This is very similar to the voluntary cooperation that police need from citizens for crime reporting, or by another stretch of the imagination, to the idea of community policing. It begs the question, however, of how far law enforcement ought to go with investigating suspicious, non-criminal activity. Clearly, the purpose is to identify, halt, and where appropriate, prosecute terrorists as well as those who provide them logistic support. It primarily involves a tracking mission for law enforcement, and only secondarily a prosecutorial mission, or bringing terrorists to justice. It is, in short, the "Eyes and Ears" approach to intelligence gathering. It is a system of detecting hostile intent. A number of initiatives have been designed to promote individual citizen involvement, such as the following:

The most frequent criticism of initiatives like the above (especially Operation Tips) is that they smack of police state measures, reminiscent of Nazi Germany, Stalinist Russia, or America's own sorry experience with COINTELPRO. The magazine, Mother Jones, has a good retrospective piece on the furor over Operation Tips, if you are interested, and EPIC has a chronology of the National ID Card movement which basically dissolved into a crackdown on driver's licenses. The central dilemma remains of how to incorporate citizen reporting of suspicions behavior into a system of intelligence and law enforcement. Without guidelines, laws, constitutional safeguards, and training of civilians, the citizen role may be doomed to defeat on fears that it is dangerous domestic spying.

Again, more history, this time about Watergate. In 1967, the Katz case condemned warrantless electronic surveillance, and the following year, the Omnibus Crime Control and Safe Streets Act established probable cause as the standard for obtaining a wiretap against U.S. citizens. A 1969 case (the Alderman case) ruled that the methods and transcripts of a wiretap should be open in court for public and adversarial scrutiny. This jeopardized exposure of ongoing intelligence operations, so Attorney General Mitchell established the "Mitchell Doctrine" as it came to be called, which insisted that the President, acting through the Attorney General, had the inherent constitutional power to authorize warrantless, secret surveillance in the name of national security or for purposes of pure or preventive intelligence. A number of court cases followed, all along the lines of the judiciary warning the executive branch of government to avoid using foreign intelligence techniques in domestic cases. In 1972, the Court (in the Keith case) disposed of the Mitchell doctrine, and in the 1973 acquittal of Daniel Ellsberg (who released the Pentagon Papers to the press), the President was determined not to be immune from civil liability for authorizing an illegal wiretap. Watergate, which is closely connected to the Ellsberg case, but technically refers to a 1972-1974 period most remembered for a break-in and bugging of Democratic Party headquarters, signaled an end to abuses in the name of national security along with claims of executive immunity. In 1974, Congress passed the Privacy Act which forbade any federal agency from collecting information about the political and religious beliefs of individuals unless in connection with a bona fide criminal investigation, and in 1975, the Freedom of Information Act, allowed individual access to any personal information which might be secret in the name of national security, and applied it to the FBI. The final separation of domestic and foreign intelligence came in 1978 with the Foreign Intelligence Surveillance Act (FISA), which brings us up to amendments in FISA and the Patriot Act of 2001, foundations for modern-day legal approaches to domestic security.

The U.S.A. PATRIOT Act of 2001 can be seen as another amendment to FISA because under the latter, agencies don't need probable cause to gather intelligence if their targets are operating as agents of foreign powers, and modern (sub-national) terrorists don't usually work for a foreign power, but for some nebulous cause. Specifically, the Patriot Act enhances roving surveillance authority and streamlines wiretap authorizations, sets up anti-terrorism asset forfeiture procedures, approves detention of suspected terrorists, removes obstacles to investigating terrorism, increases the penalties for terrorist crimes, removes any statute of limitations, encourages federal involvement in domestic preparedness exercises, and supports activities by the Department of Homeland Security. More significantly, Title I (Intelligence Gathering) of the Patriot Act permits disclosure of foreign intelligence information to any domestic or law enforcement intelligence operation. It permits foreign intelligence techniques to be used for criminal justice purposes, and it maintains the secrecy of the intelligence apparatus (the Mitchell Doctrine) as well.

The Patriot Act replaces probable cause with a showing of need for an ongoing terrorism investigation, and goes a step further by placing a gag order on the person served with the warrant. They cannot notify the real target of the investigation, or in any way disclose what information law enforcement was seeking. It amends the Family Educational Rights and Privacy Act, and forces school officials to release information, as well as allows law enforcement officials to obtain information on use of library resources, books, and Internet usage. Again, school officials are prohibited from disclosing what law enforcement was looking for. Some experts think the Patriot Act was rushed too quickly through Congress, and violates the Fourth Amendment as well as the Balance of Powers principle in the Constitution. When the Department of Justice announced it would eavesdrop on attorney-client conversations with suspected terrorists, many experts thought that crossed the line of reasonableness.

The basic dilemma is that law enforcement has for years been accustomed to working within legal constraints, collecting evidence that can be used for prosecution in a criminal court. There is a natural terminus to a criminal investigation. The intelligence community has for years been accustomed to working with few legal constraints, and there is no natural terminus, or end, to an intelligence investigation. Criminal intelligence is governed by constitutional rules of evidence; national security intelligence is not. Going to trial in a terrorism investigation often means exposing the intelligence sources for the sake of a criminal conviction. This irony, as well as other twists having to do with military tribunals, has produced some rather strange effects in the war on terrorism -- American citizens being detained like prisoners of war and foreigners being treated like citizens in criminal courts. To be sure, terrorist groups (according to al Qaeda's training manual) instruct their captured agents to make a mockery of justice systems - to insist they were tortured or mistreated, to learn the names of their captors and lie about them, and to use religion at every turn to their advantage. Nonetheless, this is not sufficient reason to proceed in a constitutional vacuum, or make up the rules as you go along. And, there are other factors that dampen the prospects for successful use of law enforcement for intelligence purposes:

The National Strategy for Homeland Security (2003) calls for connecting computer databases used in federal law enforcement, immigration, intelligence, public health surveillance, and emergency management, and further, DARPA's plan for Total Information Awareness (TIA) is to merge some of these interconnections into a data mining system of systems involving the private sector, the finance/credit system, and the Internet. Most of the databases involved would be government owned, where they are not so different from one another, and can probably be interconnected. Some, such as CDC's (Center for Disease Control) epidemiology program, continuously scan disease patterns throughout the nation's healthcare system for signs of an outbreak. Others, such as the Department of State's TIPOFF system compiles information on suspected terrorists collected by consular offices overseas, and is already interconnected. There's some rather large databases involved, two of the largest being those from Immigration (the Border Patrol uses a two-finger fingerprint system while the FBI uses a ten-finger fingerprint system) and the FBI (NCIC, or the National Crime Information Center, tracks everything greater than a Class C misdemeanor and is already overburdened by the size of graphics on some items). The following is a list of government databases related to homeland security:

Regarding the so-called 26 or more terrorist "watch lists," Washington Post writers Walter Pincus & Dan Eggen (Feb. 2006) report that the National Counterterrorism Center (NCTC) -- created in 2004 to be the primary U.S. terrorism intelligence agency -- possesses a central repository of 325,000 names of international terrorism suspects or people who allegedly aid them, a number that has more than quadrupled since the fall of 2003. However, officials know that because the same person may appear under different spellings or aliases, the true number of people on such a list may be closer to 200,000. The vast majority of people are non-U.S. persons and do not live in the U.S., but a small number ("a fraction") are U.S. citizens. Names get put on the list via reports by the CIA, the FBI, and the National Security Agency (NSA), the last of which involves covert wiretapping of U.S. citizens. Terrorist-related names and other data are sent to the NCTC under standards set by Homeland Security Presidential Directive 6 (a directive which calls upon agencies to supply data only about people who are "known or appropriately suspected to be . . . engaged in conduct constituting, in preparation for, in aid of, or related to terrorism.") Names from the NCTC list are provided to the FBI's Terrorist Screening Center (TSC), which in turn provides names for watch lists maintained by the Transportation Security Administration and other agencies. The NCTC name repository began under its predecessor agency in 2003 with 75,000 names. The center was created as part of a broad reorganization of U.S. intelligence agencies after the failure to disrupt the Sept. 11, 2001, attacks. It is the main agency for analyzing and integrating terrorism intelligence and is under direction of Director of National Intelligence John D. Negroponte. Analysts at the NCTC review all incoming names and can reject them if they do not have an apparent link to international terrorists. Reports to the FBI from the NCTC normally include a reference about how the individual is associated with international terrorism, and each individual is assigned one of 25 codes indicating exactly how they have engaged in terrorism or engaged in supporting terrorism. Some 32,000 people on the list are considered "armed and dangerous," and an unknown number of others typically are on the list because they are associated in some way with domestic terrorist movements such as radical environmentalists and neo-Nazi white supremacists. The TSC consolidates NCTC data on individuals associated with foreign terrorism with the FBI's purely domestic terrorism data to create a unified, unclassified terrorist watch list. The TSC, in turn, provides, for official use only, a version giving each person's name, country, date of birth, photos and other data to the Transportation Security Agency for its no-fly list, the State Department for its visa program, the Department of Homeland Security for border crossings, and the National Crime Information Center for distribution to police.

The problem with government databases is not necessarily only with the federal government's integration of "watch lists," but with any integration at the state and local level of law enforcement. Real-time information sharing may take place among federal agencies, but it's not going to get to the larger law enforcement community in real-time. Some of this is due to federal bias or suspicion against local law enforcement, and another problem is that some state and municipal police departments are as far behind as five years in such basic things as updating parking ticket records. A greater problem arises when one tries to integrate, or commingle (the proper term), government databases with those in the private sector, such as credit card companies, e-commerce firms, retailers, etc. You would need about 15,000 fields just for merging the header (demographic) information across these databases, which would represent about 300,000 bytes per person. If you multiply this by 500 million people, the header records alone would require approximately 150,000,000,000,000 bytes (136 terabytes) and almost five years to stabilize. Then, there's the key identifier fields (also called crosswalk tables) which contain numerical records such as social security numbers or driver's license numbers which link the different databases together, and one of these has to be a unique identifier (pivot table) to put an interface on it. Since terrorists are likely to use fake IDs, a new unique identifier system may have to be developed, and this will require about ten years of data input time. Then, the transaction data is brought in, which generally produces crashes and errors, generating the need for continual validation, de-duplication, and normalization. The computer database approach is doable, but it will take years to get it right, lots of improvements in technology, and something a whole lot faster than T1 Internet connections for law enforcement. Subcontracting vendors like InferX are already at work on distributed data mining solutions. The CIA's In-Q-Tel helps companies get started up on advanced technology, and GCN usually announces who has produced finished products. Other venders of homeland security exist, such as:
Information Sharing (for "integrated" databases)
Factiva - Dow Jones/Reuters competitive intelligence news search engine
Matrix - Multistate Antiterrorism Information Exchange, produces terrorist quotient
MetaMatrix - specialists in the scaling of extremely large databases
Information Builders - offers the WebFOCUS product for intelligence collection
Informatica - a global metadata management firm
BEA Systems - standards leader in J2EE, XML, and web services
Juice Software - real-time Excel spreadsheeting
Nimble Technology - (Actuate Corp) - XML management dashboards
SRD - leading identity recognition/privacy provider
IBM, Unisys, Oracle - giant companies providing TSA, DHS, and DoD services
Link Analysis (for association/entity mapping)
i2 - leading visual investigative analysis product used by FBI and police
Inxight Time Wall - information visualization 3-D software
NetMap Analytics - state of the art fraud detection tools
Orion Scientific Systems - research, analysis, and software development firm
VisualLink (Connetica software) - for SCADA and remote sensor monitoring
Spotfire - interactive 3-D graphic visualization of large datasets
Knowledge Management (for content dissemination)
Appian - software than runs most military procurement systems
Attensity - trend and exception analysis software
Convera - leading retrievalware text miner and taxonomy developer
Documentum - leading online help content platform provider
Hyperwave - leading provider of e-learning platforms [academic users group]
Intelliseek - cutting edge search and discovery tools for actionable intelligence
Open Text - sophisticated collaboration tools for teams and organizations
Stratify - automated categorization of Internet content thru text mining
Tacit - automated discovery of workgroup collaboration opportunities
Verity - leading intellectual property and personalization software
Zaplet - collaborative management software
Text Mining (for content categorization)
Autonomy Systems - global leader of intelligent XML products
Clairvoyance - automated intelligence analysis of human languages
ClearForest - intelligent tagging platform that finds buried "nuggets" of info
Copernic and Atomz - two search engine agents (this site uses Atomz)
DolphinSearch - a semantic network trawler and search agent
Kofax - content capture, scanning, and management
MetaCarta - a geographic context-based search engine agent
Mohomine - automated text extraction and classifier
PiXlogic - visual search engine for graphic images
Data Mining (for knowledge categorization)
ANGOSS - advanced webminer with real-time analysis tools
Endeca - customizable, guided navigation search tools
Magnify - speedy webminer with statistical tools
MegaPuter - flexible webminer with choice of analytical algorithms [academic users]
Quadstone - programmable customer/client analysis tools
SAS - well-known NC company with statistical products and customized analysis tools
SPSS - well-known Chicago company with statistical prediction tools
Teradata (NCR corp) - well-known data warehousing and data analysis company
InferX - friendly McLean, VA distributed data mining provider

Secure intranets (on the .gov domain) and secure videoconferences will most likely remain the federal government's main way of information sharing with state and local governments, along with renaming the 93 Anti-Terrorist Task Forces (ATTFs) throughout the federal court districts into Homeland Security Task Forces (HSTFs). The ATTF/HSTF approach simply involves prosecutors, but Joint Terrorist Task Forces (JTTFs), which have a longer history, going back to Chicago in the late 1970s, are a different thing, and now exist in all 56 FBI field offices where some elite state and local police are picked to be temporarily federalized, and true, joint cooperation exists between the levels of government since the power of arrest is equalized. The newly-formed (2003) Terrorist Threat Integration Center could make use of the JTTFs, if it wanted to, but TTIC's mission is simply to make sure that all federal agencies in the intelligence community have access to the same information. Within TTIC, however, there is another agency, the Terrorist Screening Center (TSC), and The TTIC will provide to the TSC all appropriate and necessary information connected to international terrorism about any individuals - U.S. citizens or not - that TTIC partner agencies hold pursuant to their own authorities and the FBI will provide to the TSC appropriate and necessary information concerning domestic terrorism, regardless of whether it involves U.S. citizens. If the TSC receives information on U.S. citizens connected with terrorism, its use of that information is subject to the same legal limitations to which it would be subject if the information were not included in the database. Purely domestic terrorism information will not go through TTIC, but will be placed directly into the TSC database by the FBI.

Another approach to information sharing would build upon what few successes law enforcement has had with "vertical" integration - crossing federal, state, and local levels of government. Bodrero (2002) as well as White (2004) recommend using the six-region information network known as RISS (Regional Information Sharing Systems). The RISS network was designed for sharing criminal intelligence, primarily about gang crime, hate crime, and cybercrime, and would provide a model that works and makes effective use of existing intelligence analysts who work for police departments. RISS is the closest thing to a nationwide criminal investigation network.

Another idea is to build on the War on Drugs as an intelligence model, and NDIC (National Drug Intelligence Center) holds some promise for development because it has always involved excellent cooperation between levels of government. In addition, America has several identified High Intensity Drug Trafficking Areas (HIDTAs), the El Paso Intelligence Center (EPIC) being most notable, which represent excellent working models of how intelligence analysts, from both law enforcement and the military, can come together to work on a common problem.

In addition, there are numerous states with highly-developed criminal intelligence units, such as the New Jersey State Police Intelligence Services which has long had an effective intelligence gathering and analysis capability. Most state police intelligence units maintain liaisons with INTERPOL (International Criminal Police Organization), EUROPOL, the RISS network, FINCEN (Financial Crime Enforcement Network), IALEIA (International Association of Law Enforcement Analysts), and LEIU (Law Enforcement Intelligence Unit, another association that holds annual seminars). It makes little sense for the federal government to ignore these resources as they represent the "best and brightest" that local law enforcement has to offer.

The type of intelligence that DHS hopes to produce is warning intelligence, the kind that eliminates surprise. This kind of intelligence is used by policymakers not so much to inform citizens via reverse-911 or other civil defense measures, but so that preemptive action can be taken against the would-be attackers. This is an intense form of intelligence that will primarily require informers and infiltrators (HUMINT, or human intelligence) crossing every known subcultural and foreign-language barrier. In the language of risk assessment, this type of intelligence is known as tactical threat analysis, and is sometimes called actionable or flash intelligence. It is the first priority of DHS, and it places the Secretary of DHS on the same footing as the DCI (Director of Central Intelligence) and Attorney General (or Director of FBI as proxy) in being able to order action such as strikes and raids on would-be attackers. It will require data collection and analysis systems that share information in real-time or near-real-time.

The second type of intelligence product sought by DHS is strategic analysis of the enemy, which is a deep, almost-academic understanding of motives, goals, identities, organizational structure, sources of support, capabilities, and points of vulnerability. It is optimistically aimed at the sources of terrorism - those seething hotbeds of extremism and fanaticism that typically characterize the world's trouble spots. At this level, also, the Secretary of DHS is on equal footing with the DCI and AG, but disagreements can be expected on the basis of human differences among interpretations of background information. Where DHS has a monopoly is with the area of vulnerability assessment - the constant measurement and monitoring of how vulnerable America's critical infrastructure is. This is the area that DHS hopes to automate with remote sensors and computer modeling, and it is also the area that is part of the Advisory system for warning the private sector and public. However, the hardest task is going to be involving law enforcement in the intelligence work.

To integrate homeland security with law enforcement, much more training beyond SLATT (State and Local Anti-Terrorism Training) will be needed. Police will need to learn how to collect and analyze intelligence. Police will need to improve their profiling skills, and learn, for example, how to monitor their communities for sudden shifts and expansions in anti-American rhetoric. More bi-lingual and multi-lingual police will surely be needed. Police will have to read a lot of radical literature, and investigate every charity. They will have to infiltrate alienated groups that kill without the slightest compunction, and are often well-financed. They will have to infiltrate religious groups, and pick up on squabbles that go on within such organizations. Police will have to improve their ability at computer forensics, because terrorists often are fairly sophisticated at encryption and computer use. Police will have to become sensitive to trends and indicators in community tension, especially as these tensions are tied into international tensions. If new groups come to town, and keep to themselves, or try hard to blend in, either of these should arouse police suspicion. It will seem like an impossible job, but maybe with a few tweaks, police can do it. In any event, it should portend a new role for some agency - a role that involves America learning how to spy on itself.

PRINTED RESOURCES
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Last updated: Sept. 07, 2008
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