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domestic surveillance
What Business Do Former CIA Agents Have in Domestic Law Enforcement?
Behind all the law enforcement mumbo-jumbo is a commitment to racist broken-windows policing.
Mar 24, 2023
This exercise of fitting a square into a circular peg is precisely what now guides New Jersey’s contemporary policing regime. The Regional Operations Intelligence Center (ROIC), the only Department of Homeland Security-affiliated fusion center within the Garden State is led by a former CIA agent trained in international espionage, not state and municipal law enforcement tactics that must adhere to constitutional rights. As New Jersey's experience makes clear, the way fusion centers operate render them rife for abuse, and offer outdated models of policing.
The Rutgers Center for Security, Race and Rights’ (CSRR) recent report Shining a Light on New Jersey’s Secret Intelligence System shows how the ROIC wastes limited state resources doubling down on “broken windows policing” – a method consistently rebuked by legal and criminal justice scholars as a tool of mass incarceration. Broken windows models emphasize aggressive enforcement of misdemeanor and non-violent “quality of life” offenses. ROIC intelligence gathering focuses on these methods, as the example of the City of Camden attests. There, ROIC intelligence has given rise to open season on privacy and petty offenses, with police issuing fines for offenses like riding a bicycle without a bell. Invariably, such tactics overwhelmingly target minority communities. Rather than fight terrorism, ROIC intelligence furthers the overreach of the carceral state with little benefit.
This misalignment of input and outcome is not innocuous, but by design. The architecture of the ROIC is not vested in proven or progressive policing, but by the methods native to global spy networks. Indeed, the last two directors of the New Jersey Office of Homeland Security and Preparedness, the body overseeing the ROIC, are former CIA agents.
Over the past six months, CSRR has sought accountability for the ROIC’s overreach, by filing several dozen Open Records Act (OPRA) requests into the ROIC’s relationship with county and state law enforcement agencies. Regrettably, those requests were almost summarily stonewalled, allowing the ROIC and its partners to operate in an accountability-free zone.
Shining a Light on New Jersey’s Secret Intelligence System exposes the extent of secrecy shrouding the ROIC and expansively documents those efforts. The report highlights the lack of transparency, the legal regimes that allow agencies to push back against basic public information requests, and the general apparatus that promotes this wall of secrecy.
Like with so many fusion centers across the country, the ROIC is engaging in mission creep far from its original purpose of fighting terrorism by over-policing non-violent crimes and justifying its budget behind closed-off series of feedback loops.
Open-source research shows the ROIC operating in ways banal and embarrassing – and less than strictly observant of civil liberties and civil rights. But even the most basic questions surrounding the ROIC’s budget and role in local and state information-sharing and structure are routinely ignored by various local, state, and county law enforcement agencies.
Responses from law enforcement to basic questions we posed could have provided an opportunity for public discourse on ROIC’s role, policies, and costs. Instead, CSRR received opaque responses, Kafkaesque riddles, and flimsy legal arguments. New Jersey's law enforcement agencies collectively flouted transparency duties under state open records law with only one law enforcement agency providing one substantive response to exactly one request.
The litany of unpersuasive rejections may have varied in form but the results were the same: obstructive and non-transparent. In one combination of denials, agencies would offer to provide some requested information for an exorbitant sum of money while denying the rest.
The underlying theme put forth was an adherence to a regime of secrecy to protect law enforcement’s long-standing preference of substantially operating in the dark. Law enforcement agencies’ lawyers, across the state, using substantially similar language from various jurisdictions, rely on understandings of case law that, divorced of all the typical chicanery, allows the government to deny a request because the person or group making the request has asked for: (1) something that is too specific; and/or (2) not specific enough.
The irony, of course, is that the purpose of an OPRA request is to shine light into hidden troves being kept from citizens. To pinpoint a specific detailed description of a document when the government entity claiming the exemptions continues to hide behind the same wall of secrecy that gives rise to the request flies in the face of the object and purpose of the OPRA statute.
For example, to date, and despite multiple rounds of open records requests, CSRR could not get a clear answer on what the ROIC budget is, what its basic structure looks like, and what mechanisms are in place to protect civil rights and civil liberties.
This kind of secrecy is precisely what empowers the ROIC’s insidious commitment to broken windows policing. The ROIC serves as what Professor Brendan McQuade describes as an “outsourced intelligence division” for local police departments. Rather than meaningfully contributing to policing, the ROIC’s major efforts are instead aimed at “information sharing” and the creation and provision of “higher level intelligence products” like crime mapping, data on so-called “hot spots,” and predictive analyses.
This sort of language is anodyne and important-sounding but little more than the jargon of spy craft let loose on historically hollowed-out communities of color. Behind all the law enforcement mumbo-jumbo is a commitment to racist broken-windows policing.
New Jersey’s laws meant to ensure that state agencies can be held accountable to the public are failing. It is thus long overdue for the New Jersey legislature to engage in robust oversight of the state’s fusion center – and to reformulate the basic OPRA law at a statutory level to undo years of bad, anti-transparency activist precedent. Otherwise, New Jersey’s Secret Surveillance System will continue to operate with no regard, much less accountability, for civil liberties violations.
The full report, titled "Shining a Light on New Jersey’s Secret Intelligence System," can be downloaded here.Keep ReadingShow Less
New Docs Raise Questions About CIA Spying Here at Home
The current debate about government surveillance has largely overlooked the CIA, possibly because we know little about the agency's activities within the United States. While the relevant legal authorities governing the CIA, including Executive Order 12333, set out the CIA's mandate, they do so in broad terms. Beyond the generalities in EO 12333 and other laws, the public has had few opportunities to examine the rules governing the CIA's activities.
Jun 16, 2015
The current debate about government surveillance has largely overlooked the CIA, possibly because we know little about the agency's activities within the United States. While the relevant legal authorities governing the CIA, including Executive Order 12333, set out the CIA's mandate, they do so in broad terms. Beyond the generalities in EO 12333 and other laws, the public has had few opportunities to examine the rules governing the CIA's activities.
But we know more today than we did a few weeks ago. In response to a Freedom of Information Act lawsuit filed by the ACLU and Yale Law School's Media Freedom and Information Access Clinic, the CIA has released a slew of documents concerning CIA surveillance under EO 12333. (The Justice Department has also recently released a set of documents related to the executive order.)
The national debate in the 1970s about the proper limits of U.S. government spying on its own citizens was, to a large extent, about the CIA. In the wake of the Watergate scandal and news stories about other illegal CIA activity, President Gerald Ford and Congress launched investigations into the full range of CIA misdeeds -- from domestic spying programs and infiltration of leftist organizations to experimentation on non-consenting human subjects and attempts to assassinate foreign leaders.
Although the CIA's legal authority to spy on Americans was very narrow, these investigative committees -- chaired by Sen. Frank Church, Vice President Nelson Rockefeller, and Rep. Otis Pike -- discovered that the CIA had engaged in a massive domestic spying project, "Operation CHAOS," which targeted anti-war activists and political dissenters. The committee reports also revealed that, for more than 20 years, the CIA had indiscriminately intercepted and opened hundreds of thousands of Americans' letters. In addition to documenting the intelligence agencies' extensive violations of the law, the Church Committee concluded that the constitutional system of checks and balances "has not adequately controlled intelligence activities."
The Church Committee's conclusion -- at core, an admonition -- still resonates today. While the documents that the CIA has released are heavily redacted, raising more questions than they answer, they strongly suggest that the agency's domestic activities are extensive.
Some highlights from the documents:
- A key CIA regulation -- titled "AR 2-2" -- governs the conduct of the CIA's activities, which include domestic intelligence collection.
AR 2-2, which has never been publicly released before, includes rules governing a wide range of activities, including surveillance of U.S. persons, human experimentation, contracts with academic institutions, relations with journalists and staff of U.S. news media, and relations with clergy and missionaries.
Several annexes to AR 2-2 contain the agency's EO 12333 implementing procedures. For example, Annex A, "Guidance for CIA Activities Outside the United States," sets forth the procedures that apply to CIA activity directed toward U.S. citizens and permanent residents who are abroad. Much of the relevant information is redacted. Annex F, "Procedures Governing Conduct and Coordination by CIA and DEA of Narcotics Activities Abroad," is similarly redacted in key sections, including the section discussing the agencies' "Specific Agreement Concerning Electronic Surveillance."
- The documents indicate that the CIA engages in a wide array of domestic activity, often in conjunction with the FBI.
Domestically, the CIA's spying is governed by Annex B to AR 2-2, "Guidance for CIA Activities Within the United States." This document explains:
Although EO 12333, AR 2-2, and Annex B prohibit the agency from engaging in electronic surveillance within the United States, the CIA can nevertheless ask the FBI to do its bidding:
Annex B and the CIA-FBI memorandum of understanding comport with past reporting that the Foreign Intelligence Surveillance Court authorized the FBI to work with the CIA to collect Americans' financial records in bulk under Patriot Act Section 215.
In addition, Annex B explains that the CIA may "use a monitoring device within the United States under circumstances in which a warrant would not be required for law enforcement purposes if the CIA General Counsel concurs."
But what qualifies as a "monitoring device"? And how exactly does monitoring differ from "electronic surveillance," which the CIA is prohibited from doing domestically? We don't know. In the newly released documents, the definition of "monitoring" (as distinct from "electronic surveillance") is redacted.
The CIA also turned over several years' worth of annual reports to Congress about the agency's activities under EO 12333. These reports begin by discussing "Intelligence Activities Conducted by CIA Within the United States." This header is followed by dozens of entirely redacted pages -- once again suggesting that the agency is engaged in a significant amount of intelligence activity here at home.
- The rules for the handling of Americans' information are so complex that the CIA struggled to apply them properly.
A 2002 report by the CIA inspector general, "Intelligence Activity Assessment: Compliance with Executive Order 12333: The Use of [redacted] Collection [redacted] from 1995-2000," observed "a general and widespread lack of understanding" within the CIA of the rules governing the retention and sharing of U.S. citizens' and permanent residents' information. In particular, the OIG found that few managers or other officers "could accurately state the appropriate procedures for retaining or disseminating U.S. person information," and it concluded that these rules were "not being applied consistently" by the agency.
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The independent and bi-partisan Privacy and Civil Liberties Oversight Board is currently examining the intelligence community's counterterrorism-related activities under EO 12333. Notably, one of the topics the board plans to focus on is the CIA's collection of information within the United States. We hope that, when the board eventually issues its public report about the agencies' activities under EO 12333, it sheds a little more light on what exactly the CIA is doing here at home.
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Between Spymasters and People, Says Snowden, 'Power Beginning to Shift'
'We are witnessing the emergence of a post-terror generation,' writes the NSA whistleblower, "one that rejects a worldview defined by a singular tragedy.'
Jun 05, 2015
Two years since he met with a trio of journalists in a Hong Kong hotel room and explained for the first time why he leaked some of the NSA's most closely-guarded secrets about its global surveillance empire, whistleblower Edward Snowden has penned an op-ed for the New York Times declaring relief that his decision was not in vain and championed those who have picked up the fight against the expansive practices of the world's most powerful intelligence agencies.
"As a society, we rediscover that the value of a right is not in what it hides, but in what it protects." --Edward SnowdenThough recognizing that he and the key journalists who assisted him--including Laura Poitras and Glenn Greenwald--put their own "privileged lives at risk" by bringing the documents to the world, Snowden said his initial worries that the world would respond with "indifference, or practiced cynicism" to the information they contained were fortunately not realized.
"Never have I been so grateful to have been so wrong," Snowden writes. "Two years on, the difference is profound. In a single month, the N.S.A.'s invasive call-tracking program was declared unlawful by the courts and disowned by Congress. After a White House-appointed oversight board investigation found that this program had not stopped a single terrorist attack, even the president who once defended its propriety and criticized its disclosure has now ordered it terminated."
Earlier this week, thanks to the firestorm created since the public first became aware of its existence, one of the most contested portions of the NSA's domestic surveillance--the bulk collection of American's phone records--was put to an end. But for Snowden, the impact and power of what he describes as an "informed public" has--like the NSA operations themselves--had truly global reach.
"Ending the mass surveillance of private phone calls under the Patriot Act is a historic victory for the rights of every [American] citizen," Snowden writes, "but it is only the latest product of a change in global awareness. Since 2013, institutions across Europe have ruled similar laws and operations illegal and imposed new restrictions on future activities. The United Nations declared mass surveillance an unambiguous violation of human rights. In Latin America, the efforts of citizens in Brazil led to the Marco Civil, an Internet Bill of Rights. Recognizing the critical role of informed citizens in correcting the excesses of government, the Council of Europe called for new laws to protect whistle-blowers."
But even with that progress, he warns the need for much deeper reform remains. According to Snowden:
Though we have come a long way, the right to privacy -- the foundation of the freedoms enshrined in the United States Bill of Rights -- remains under threat. Some of the world's most popular online services have been enlisted as partners in the N.S.A.'s mass surveillance programs, and technology companies are being pressured by governments around the world to work against their customers rather than for them. Billions of cellphone location records are still being intercepted without regard for the guilt or innocence of those affected. We have learned that our government intentionally weakens the fundamental security of the Internet with "back doors" that transform private lives into open books. Metadata revealing the personal associations and interests of ordinary Internet users is still being intercepted and monitored on an unprecedented scale: As you read this online, the United States government makes a note.
Despite his continued political asylum status in Russia, where he continues to speak and work on issues related to digital privacy and civil liberties, Snowden argues that the people of the world have made a collective declaration against the need for mass surveillance and the various tangled programs operated by the NSA, the UK's GCHQ, and the other powerful agencies of the 'Five Eyes' nations and others.
"Yet the balance of power is beginning to shift," he concludes. "We are witnessing the emergence of a post-terror generation, one that rejects a worldview defined by a singular tragedy. For the first time since the attacks of Sept. 11, 2001, we see the outline of a politics that turns away from reaction and fear in favor of resilience and reason. With each court victory and every law change, we demonstrate facts are more convincing than fear. As a society, we rediscover that the value of a right is not in what it hides, but in what it protects."
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