[Infowarrior] - U.S. May Ease Police Spy Rules

[Richard Forno]

http://www.washingtonpost.com/wp-dyn/content/article/2008/08/15/AR2008081503497_pf.html

U.S. May Ease Police Spy Rules
More Federal Intelligence Changes Planned

By Spencer S. Hsu and Carrie Johnson
Washington Post Staff Writers
Saturday, August 16, 2008; A01

The Justice Department has proposed a new domestic spying measure that  
would make it easier for state and local police to collect  
intelligence about Americans, share the sensitive data with federal  
agencies and retain it for at least 10 years.

The proposed changes would revise the federal government's rules for  
police intelligence-gathering for the first time since 1993 and would  
apply to any of the nation's 18,000 state and local police agencies  
that receive roughly $1.6 billion each year in federal grants.

Quietly unveiled late last month, the proposal is part of a flurry of  
domestic intelligence changes issued and planned by the Bush  
administration in its waning months. They include a recent executive  
order that guides the reorganization of federal spy agencies and a  
pending Justice Department overhaul of FBI procedures for gathering  
intelligence and investigating terrorism cases within U.S. borders.

Taken together, critics in Congress and elsewhere say, the moves are  
intended to lock in policies for Bush's successor and to enshrine  
controversial post-Sept. 11 approaches that some say have fed the  
greatest expansion of executive authority since the Watergate era.

Supporters say the measures simply codify existing counterterrorism  
practices and policies that are endorsed by lawmakers and independent  
experts such as the 9/11 Commission. They say the measures preserve  
civil liberties and are subject to internal oversight.

White House spokesman Tony Fratto said the administration agrees that  
it needs to do everything possible to prevent unwarranted  
encroachments on civil liberties, adding that it succeeds the  
overwhelming majority of the time.

Bush homeland security adviser Kenneth L. Wainstein said, "This is a  
continuum that started back on 9/11 to reform law enforcement and the  
intelligence community to focus on the terrorism threat."

Under the Justice Department proposal for state and local police,  
published for public comment July 31, law enforcement agencies would  
be allowed to target groups as well as individuals, and to launch a  
criminal intelligence investigation based on the suspicion that a  
target is engaged in terrorism or providing material support to  
terrorists. They also could share results with a constellation of  
federal law enforcement and intelligence agencies, and others in many  
cases.

Criminal intelligence data starts with sources as basic as public  
records and the Internet, but also includes law enforcement databases,  
confidential and undercover sources, and active surveillance.

Jim McMahon, deputy executive director of the International  
Association of Chiefs of Police, said the proposed changes "catch up  
with reality" in that those who investigate crimes such as money  
laundering, drug trafficking and document fraud are best positioned to  
detect terrorists. He said the rule maintains the key requirement that  
police demonstrate a "reasonable suspicion" that a target is involved  
in a crime before collecting intelligence.

"It moves what the rules were from 1993 to the new world we live in,  
but it maintains civil liberties," McMahon said.

However, Michael German, policy counsel for the American Civil  
Liberties Union, said the proposed rule may be misunderstood as  
permitting police to collect intelligence even when no underlying  
crime is suspected, such as when a person gives money to a charity  
that independently gives money to a group later designated a terrorist  
organization.

The rule also would allow criminal intelligence assessments to be  
shared outside designated channels whenever doing so may avoid danger  
to life or property -- not only when such danger is "imminent," as is  
now required, German said.

On the day the police proposal was put forward, the White House  
announced it had updated Reagan-era operating guidelines for the U.S.  
intelligence community. The revised Executive Order 12333 established  
guidelines for overseas spying and called for better sharing of  
information with local law enforcement. It directed the CIA and other  
spy agencies to "provide specialized equipment, technical knowledge or  
assistance of expert personnel" to support state and local authorities.

And last week, Attorney General Michael B. Mukasey said that the  
Justice Department will release new guidelines within weeks to  
streamline and unify FBI investigations of criminal law enforcement  
matters and national security threats. The changes will clarify what  
tools agents can employ and whose approval they must obtain.

The recent moves continue a steady expansion of the intelligence role  
of U.S. law enforcement, breaking down a wall erected after  
congressional hearings in 1976 to rein in such activity.

The push to transform FBI and local police intelligence operations has  
triggered wider debate over who will be targeted, what will be done  
with the information collected and who will oversee such activities.

Many security analysts faulted U.S. authorities after the 2001  
terrorist attacks, saying the FBI was not combating terrorist plots  
before they were carried out and needed to proactively use  
intelligence. In the years since, civil liberties groups and some  
members of Congress have criticized the administration for  
unilaterally expanding surveillance and moving too fast to share  
sensitive information without safeguards.

Critics say preemptive law enforcement in the absence of a crime can  
violate the Constitution and due process. They cite the  
administration's long-running warrantless-surveillance program, which  
was set up outside the courts, and the FBI's acknowledgment that it  
abused its intelligence-gathering privileges in hundreds of cases by  
using inadequately documented administrative orders to obtain  
telephone, e-mail, financial and other personal records of U.S.  
citizens without warrants.

Former Justice Department official Jamie S. Gorelick said the new FBI  
guidelines on their own do not raise alarms. But she cited the recent  
disclosure that undercover Maryland State Police agents spied on death  
penalty opponents and antiwar groups in 2005 and 2006 to emphasize  
that the policies would require close oversight.

"If properly implemented, this should assure the public that people  
are not being investigated by agencies who are not trained in how to  
protect constitutional rights," said the former deputy attorney  
general. "The FBI will need to be vigilant -- both in its policies and  
its practices -- to live up to that promise."

German, an FBI agent for 16 years, said easing established limits on  
intelligence-gathering would lead to abuses against peaceful political  
dissenters. In addition to the Maryland case, he pointed to reports in  
the past six years that undercover New York police officers  
infiltrated protest groups before the 2004 Republican National  
Convention; that California state agents eavesdropped on peace, animal  
rights and labor activists; and that Denver police spied on Amnesty  
International and others before being discovered.

"If police officers no longer see themselves as engaged in protecting  
their communities from criminals and instead as domestic intelligence  
agents working on behalf of the CIA, they will be encouraged to  
collect more information," German said. "It turns police officers into  
spies on behalf of the federal government."

Civil liberties groups also have warned that forthcoming Justice  
Department rules for the FBI may permit the use of terrorist profiles  
that could single out religious or ethnic groups such as Muslims or  
Arabs for investigation.

Mukasey said the changes will give the next president "some of the  
tools necessary to keep us safe" and will not alter Justice rules that  
prohibit investigations based on a person's race, religion or speech.  
He said the new guidelines will make it easier for the FBI to use  
informants, conduct physical and photographic surveillance, and share  
data in intelligence cases, on the grounds that doing so should be no  
harder than in investigations of ordinary crimes.

Rep. Bennie Thompson (D-Miss.), chairman of the House Homeland  
Security Committee, said that updating police intelligence rules is a  
move "in the right direction. However, the vagueness of the provisions  
giving broad access to criminal intelligence to undefined  
agencies . . . is very troubling."

Staff writers Joby Warrick and Ellen Nakashima contributed to this  
report.