Members of the private task force that has helped guide post-9-11 information sharing efforts addressed lawmakers Tuesday, agreeing with civil libertarians that more must be done to protect privacy amid the effort to detect terrorist plots.
Zoë Baird, president of the nonprofit Markle Foundation and co-chair of its Task Force on National Security in the Information Age, told members of the Senate Judiciary Committee's Subcommittee on Terrorism and Homeland Security that the country’s new information sharing environment (ISE) cannot succeed without the public’s trust, which can only be gained through proper privacy protections.
The hearing came on the heels of several revelations bolstering civil libertarians’ arguments that the ISE and its national network of intelligence fusion centers are fertile ground for abuse of civil liberties, such as unconstitutional police investigations of peaceful political and religious groups.
In one case, the Maryland State Police investigated several non-violent antiwar and human rights groups, filed them as terrorist organizations, and transferred the data to a federal law enforcement database.
Witness Caroline Fredrickson, director of the Washington office of the American Civil Liberties Union, told senators:
It would be an enormous mistake to ignore the lessons of past failure and abuse on a subject as critical as spying on the American people. We don’t have to choose between security and liberty. In order to be effective, intelligence activities need to be narrowly focused on real threats, tightly regulated and closely monitored.
Chief J. Thomas Manger of Maryland’s Montgomery County Police Department urged continued development of the national suspicious activity reporting (SAR) system, by which fusion centers map suspicious activity to “connect the dots” and detect elevated threats or plots themselves.
Manger, however, noted the potential pitfalls of SARs:
No police chief wants his officers involved in confrontational interactions with people engaged in innocent, constitutionally protected behavior. Not every person wearing baggy pants is a gang-banger and not every person videotaping the Washington Monument is a terrorist.
Instead, proper practice can thwart terrorist activity, Manger said, pointing to an incident in 1995:
Sgt. Robert Fromme from the Iredell County (North Carolina) Sheriff's Office saw two men enter a discount tobacco shop with over $20,000 cash in a plastic grocery bag. These men came into the shop almost daily buying many cartons of cigarettes. Fast-forward several years and the [Bureau of Alcohol, Tobacco, Firearms and Explosives] and FBI indicted 26 individuals who were using proceeds from criminal activity to fund a terrorist group based in Lebanon. A suspicious activity noted by local law enforcement, appropriately documented and legally investigated, results in a terrorist operation being shut down.
The Markle Task Force, co-chaired by former Netscape CEO James Barkesdale, has issued four reports on the role of information in national security since October of 2002. Prior to 2004’s 9/11 Commission Report and that year’s Intelligence Reform and Terrorism Prevention Act (IRTPA), the panel called for a decentralized, network-based ISE, with strong protections for civil liberties.
In its most recent report, issued last month, the task force recommended improved capability to locate and access needed information across the country and jurisdictions. “We still don’t know what we know,” Baird told lawmakers.
Task Force member and former U.S. Sen. Slade Gordon of Washington testified that IRTPA and 2007’s 9/11 Commission Act laid an adequate legal foundation for information sharing, but the government must do more to change cultures to encourage sharing, despite the potential for complacency as years pass without a major terrorist attack on U.S. soil.