Within a day or two of the Sept. 11, 2001, attacks, everyone from the president to the press were citing “intelligence failures” as the main reason for the government’s failure to detect and foil the plot. After the 9/11 Commission concluded that intelligence and law enforcement agencies should increase information sharing, the Bush administration created the Office of the Director of National Intelligence to coordinate and oversee the exchange of information. The administration also sought to increase its intelligence gathering capabilities by pressuring municipal and local governments to create joint terrorism task forces. Some cities, such as Portland, rejected the government’s proposals because our elected officials recognized the potential danger for abuse.
Information sharing among agencies is tricky. On May 10, The Washington Post reported ongoing inter-agency squabbling between the FBI and the ATF that pre-dates 9/11, and which, in the opinion of intelligence experts, is hampering both agencies. But the federal government continues to look for a streamlined information sharing model that is as unburdened by privacy protections.
The most recent efforts are joint agreements between federal and state governments, known as fusion centers, to “compile, analyze, and disseminate criminal/terrorist information and intelligence and other information . . . to support efforts to anticipate, identify, prevent, and/or monitor criminal/terrorist activity,” according to the Department of Justice’s Fusion Center Guidelines. The guidelines also indicate that the “criminal information and intelligence should be both strategic (i.e., designed to provide general guidance of patterns and trends) and tactical (i.e., focused on a specific criminal event).”
My colleague Linda Olson-Osterlund and I recently visited Oregon’s Titan Fusion Center as we prepared a report on this issue for KBOO’s monthly civil liberties show, “We, The People.” After two substantive interviews with Fusion Center lawyers it was apparent to me that if the fusion center has not engaged in investigative fishing expeditions of innocent Oregonians, it is because of Oregon’s strong privacy and open government laws.
Although investigations conducted with the help of fusion center data are supposed to occur only if there is a criminal nexus and a reasonable suspicion that the person under investigation is involved in the commission of a crime, these are not sufficient safeguards to ensure that civil liberties are not violated. John Verdi of the Electronic Privacy Information Center told me that reasonable suspicion is a “junior level of suspicion for a junior level search” and is a “far lower level of suspicion than probable cause.” But, Verdi says, the reasonable suspicion standard is “not an adequate safeguard because it has resulted in massive amounts of data being compiled by these fusion centers, much of which has no nexus to terrorism activity or criminal activity.”
So, even if the government can articulate facts that amount to reasonable suspicion, Oregon privacy laws would protect our privacy, right? The answer is “For now.” The federal government is apparently pressuring some state lawmakers to carve out exemptions from state privacy safeguards for the fusion centers throughout the country. Last March the Virginia State Assembly passed, and the governor signed into law, HB 1007 which, according to EPIC, “exempts the (Virginia Fusion Center) – and other Commonwealth agencies assigned to the Virginia Fusion Center – from Virginia privacy and government transparency laws.” Moreover, the bill removes whistleblower protections and “would prevent the enforcement of privacy rights established by Virginia courts,” according to EPIC.
Clearly, we can either pressure state lawmakers to shut down the fusion center by cutting off funding or by repealing any agreements with the federal government. But that would be unpopular and politically costly for most Oregon lawmakers. The other option then is whether there is proper oversight of the fusion center’s activities. Currently, Oregon’s fusion center is under the jurisdiction of the state attorney general, so we can hold this elected official accountable for any investigative abuses that may happen. That’s if Oregon privacy and open government laws remain untouched.
But as the experience from Virginia shows, federal agencies are eager and ready to pressure state legislatures to forfeit whatever privacy protections may exist at the state level. And it is almost a certainty that the Bush administration would oppose any state efforts to create reasonable legislative oversight mechanisms of fusion centers.
Civilian oversight through our elected officials is the key to balancing intelligence gathering tactics with privacy protections. The L.A. Times reported last Monday that while spying on Americans is up, prosecutions of alleged terrorists are down. This raises the obvious question: Who are they spying on? These questions must be pursued by our elected representatives and should give them pause when approached by federal officials trying to thwart Oregon’s strong privacy and open government laws. Similarly, we must hold the next state attorney general (whether John Kroger or Greg MacPherson) accountable for any breaches of privacy or lack of proper oversight.
