CQ: Pentagon Accessing Local Police Intelligence

Wed Jul 7 10:29:52 EDT 2004

Here's another chapter in the defense intelligence story.  Always happy to
hear thoughts - jrood at cq.com.

Best,

Justin Rood
CQ

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CQ HOMELAND SECURITY - INTELLIGENCE
July 6, 2004 - 9:22 p.m.

Pentagon Has Access to Local Police Intelligence Through Office in Homeland
Security Department

By Justin Rood, CQ Staff

The Defense Department, largely prohibited from gathering information on
U.S. citizens, has arranged for access to state and local police
intelligence that it says will help defend its forces and the country at
large against terrorist attacks.

Through a secure, Internet-based law enforcement information exchange
network, the Pentagon has access to information involving U.S. citizens,
resident foreigners and other individuals that has been collected by state
and local police and is considered to have a terrorism connection.

Created by the Defense Intelligence Agency (DIA) in 2002, the program was
transferred to the Department of Homeland Security in February 2004 and
given a new name.

The project manager, however, is still a Pentagon employee, the Pentagon
maintains a seat on the program's executive board, and various Pentagon
entities, from the Northern Command to the DIA, remain participants in the
program.

The Department of Homeland Security is also on the executive board, as well
as the Texas Department of Public Safety and the police departments of New
York City; New York state; Washington, D.C.; Pennsylvania; and Louisiana.

The program - known as the Joint Regional Information Exchange System
(JRIES) - was designed to avoid a briar patch of intelligence collection
prohibitions and privacy laws, and provide DoD with information on what
state and local police consider to be terrorist-related information on U.S.
residents.

It was launched in the wake of 9/11 by the DIA, in conjunction with
California's terrorist intelligence fusion center and the New York Police
Department.

"For obvious statutory and directive reasons and rules and laws and things,
[the Defense Department] couldn't do the same type of collection in the
United States we could do overseas," said Jonathan Duecker, a former DIA
official who was part of the small team that developed JRIES.

"We started looking at various laws and perceived prohibitions that impacted
the type of information the military could receive from law enforcement,"
Duecker said, "and determined that there was no prohibition from the
Department of Defense receiving this information from state and local law
enforcement."

Once that was determined, Duecker said, Pentagon intelligence officials
realized that "our sources in the United States are law enforcement
reporting. That's the legal way of getting information on threats in the
U.S."

After a stint as deputy director of homeland security for the Commonwealth
of Pennsylvania, Duecker is now a DHS consultant working to promote JRIES
among state and local agencies.

Comfort Factor
In some ways, JRIES could be a model information-sharing program, its
defenders and others say. At the very least, it is unconventional.

And it is cheap: The program requires agencies to pay less than $500 per
computer to connect to the network.

It is also voluntary - a legal necessity. But it also goes some distance to
create a sense of investment in the program by local agencies, according to
several sources, many of whom contrasted it favorably with the FBI's 66
Joint Terrorism Task Forces scattered around the country. In the JTTFs, FBI
agents, police officers and representatives from other agencies are
physically co-located together to encourage information-sharing.

"There's a huge difference" between how JRIES and JTTFs work, according to
one local law enforcement officer who asked not to be named.

At his JTTF, "the sharing has a lot of room for improvement," he said -
friction between local police and the FBI is legendary. JRIES "dramatically
improves our ability to communicate with other agencies, especially at the
state and local level."

Not only can a local police department receive unclassified intelligence
analyses from the Pentagon or DHS through the system, it can query other
police departments for information on such leads as license plates.

"The other day . . . someone asked if anyone had information in regard to a
Kansas plate" over the JRIES network, said Det. Bessie Wellington of the
Kansas City (Mo.) Police Department. "I have access to Kansas information,"
she explained, "so I could help them, and I sent them a response."

That kind of query can come from the Pentagon, too. Known as "requesting,"
any JRIES participant, including the DIA, can ask the others for information
on any topic.

However, no one can "task," or order, other agencies to provide information,
according to its director, Tom Marenic.

Exchange Program
Some departments might post information from an investigation when they are
looking for leads to follow, explained a former DIA official intimately
involved in the creation of JRIES. Other departments might offer information
in the hope it could help others' investigations.

"It might take the form of a [message] like, 'Here's something we're
assessing and we're posting this information,' " said the official, who
asked not to be named. "Or it could take the form of posting raw data -
'Here's a bunch of phone numbers that have been used by these people that
you might find helpful in your investigations,' " he said.

The Pentagon, meanwhile, has access to everything posted on the network. In
addition to license plate information or a list of telephone numbers, that
can include information relating to anything considered terrorism-related by
one of its members.

Present and former Defense officials involved with the project make clear
that DIA analysts are not interested in any information that is not clearly
terrorism-related. In particular, they say they are not interested in
accessing intelligence on the kinds of activities that got the Pentagon in
hot water more than 30 years ago - legitimate political activity,
particularly by anti-war groups.

"If you had some kind of law enforcement agency post information that was
political in nature - a group that was protesting Bush administration
policies - the [Defense] intelligence officer who's looking at that and is
following the [DoD] regulations is going to conclude that that's not
terrorism information," said the former DIA official.

"If you look at his incentives, it's not like he's going to score any points
with anybody writing a report on how there are groups out there that don't
like Bush's policies," he explained. "It's not of any intelligence value."

But state and local police departments that participate in JRIES - including
three with key roles in the JRIES program - have been involved in
high-profile controversies after it was reported they had collected
intelligence against legitimate political groups. For some local police, the
lines between terrorist-related behavior and political activity remain
blurry.

JRIES has few formal safeguards, however, that would prevent such
information from being included and disseminated on the network, Defense
sources say.

In fact, the current director of JRIES' executive board - and one of its
founding members - believes information on political protests can be
considered legitimate terror intelligence.

Reports on Protesters
Under the direction of Ed Manavian, the current JRIES executive board
director, California Anti-Terrorism Information Center (CATIC) distributed
numerous warnings on the actions of peaceful anti-war protesters.

One such report circulated by CATIC and obtained by the Oakland Tribune
through an open records request, warned of a Nov. 14, 2001, protest headed
by a group founded by Ramsey Clark, attorney general in the Johnson
administration. It was headlined "Terrorism Advisory."

As one of the Pentagon's first regional partners, Manavian and his
organization played a key role in forming the intelligence network now in
use by dozens of law enforcement agencies around the country.

When contacted by phone, Manavian said information such as the Nov. 14
warning would not be shared on JRIES "unless there's some type of national
security issue, terrorism issue or public safety issue."

"We all follow the guidelines, and the laws we have to adhere to in
responding to requests for information," Manavian said.

The New York City and Washington, D.C., police departments, both with
representatives on the 10-member JRIES executive board, have acknowledged
using their intelligence capabilities to gather information on political
groups.

In New York City last February, police interrogated protesters they had
arrested on their political affiliations and activities, and created a
database to store the information. They promised to stop the practice after
the American Civil Liberties Union complained.

They later promised to destroy the database, and stated they had not shared
the information with any other agency.

And in Washington, D.C., this March, the City Council released a draft
report concluding that the D.C. Metropolitan Police Department used
undercover officers "to infiltrate political organizations in the absence of
criminal activity" and failed to acknowledge and protect individuals' rights
to privacy, free speech and assembly.

When asked if JRIES had ever carried information on political protests,
Marenic responded, "As far as political protesters - I can't honestly say
that there's been absolutely none."

DHS spokeswoman Michelle Petrovich, who was listening in on the interview,
then interjected, "We're not going to comment on something of that nature.
Unless we know how that was deemed appropriate, we can't comment on that."

Marenic, who played a central role in JRIES' development and was detailed
from DIA to DHS' Information Analysis and Infrastructure Protection
Directorate (IAIP) to run the program when it was transferred in February,
stressed that its originators and participants have worked hard to protect
the rights of U.S. citizens and residents.

"We're trying to do everything to keep states' rights and human rights
protected to the maximum extent possible," Marenic said.

"The political problems CATIC was having," he added in a separate interview,
[were] all internal in California and had nothing to do with JRIES at all.
It had strictly to do with CATIC in California."

He conceded that JRIES has no privacy officer and no formal vetting process
to ensure the information posted is relevant to anti-terrorism efforts.

Policing Themselves
"It's part of everybody's job description" to watch for and delete
inappropriate information, said Marenic, a retired Air Force colonel.

Others familiar with the program echo Marenic: It is the responsibility of
law enforcement and intelligence agencies to respect the laws and policies
in place to prevent such abuses, and employ their own internal mechanisms -
including the Defense Department's own assistant to the secretary of Defense
for intelligence oversight.

Whatever protections it may or may not afford the subjects of the
information shared, JRIES appears designed to keep the Pentagon from
violating laws and its own policies.

Because participation by state and local law enforcement is voluntary and
the Defense agencies say they do not attempt to "task" the other
participants to collect information, the Pentagon avoids conflicts with the
Posse Comitatus statute, which prevents it from taking on domestic law
enforcement powers. The arrangement also avoids conflicts with its own
policies against collecting information on U.S. persons. Because the
information is stored on local computers, moreover, and not centralized on
DoD hardware, it also sidesteps Privacy Act prohibitions against DoD and
other federal agencies from storing information on U.S. persons without
telling the subjects.

Good Appearances
Civil liberties experts agree with JRIES founders that the arrangement looks
legal.

"There really isn't much in the way of prohibition" regarding how the
military might get information from state and local police, said Timothy
Edgar, legislative counsel for the American Civil Liberties Union. "The
question would be, why would they want that information?" Edgar asked.

"They have a valid role in securing bases and there are certain exceptions
on the military being involved in civilian policing," said Edgar. "I think
it's very problematic that they're receiving it, but I don't think it's
against the law."

"There's no law that I know of that prevents local [law enforcement] and DoD
from exchanging information," said Christopher Pyle, a professor of
constitutional law and expert in intelligence matters who uncovered the
Pentagon's intelligence abuses of the 1960s - although, he was quick to
note, "this is the way the Army intelligence of the 1960s got into spying."

A legal question, Pyle said, would arise not from the two sharing
information, but from storing it in Defense Department databases.

"The problem is the Privacy Act of 1974 - if you're going to keep the stuff,
put it in [Defense Department] data banks, you're under the Privacy Act. In
the 1970s, that was seen as a partial limit on collection."

It was that Privacy Act, Pyle said, that led the Army to burn its warehouse
of files on civilian political activity in the mid-1970s rather than show
what it had. A provision in the 2005 Senate Intelligence Authorization bill
(S 2386) would exempt the Defense Department from such Privacy Act
requirements.

"That warehouse was massive," Pyle said of the Army's repository. "It was as
big as six Home Depots."

Justin Rood can be reached via jrood at cq.com

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