Preventing The Inevitable
By Eric J. Weinberg

The United States Federal Government Needs to Give Law Enforcement Authorities Better Training and Guidance for Intelligence & Information Sharing

In recent years, policy makers and intelligence professionals have struggled mightily to find the best means by which to, “connect the dots”. This phrase, made more ubiquitous by the findings of the 9/11 Commission, spoke to the need to connect disparate, compartmentalized, and seemingly incongruous information sources in to a cohesive and comprehensive intelligence mosaic. The intended result of such integration and insight would be the nugget of knowledge that would allow authorities to prevent the next attack on the Homeland.

Ironically enough, more than five years after 9/11, in an attempt to “connect the dots” better, we have spent hundreds of millions of tax payer dollars in disparate and patchwork attempts to “fuse” information, to declassify intelligence for domestic law enforcement operations, and to balance these proactive measures while still protecting fundamental legal rights and simultaneously utilizing appropriate legal authority in pursuit of our National security. Big metropolitan police departments and small state police organizations alike have secured federal dollars to build their own intelligence and information sharing capabilities. They have done this largely independent of one another and largely free of any guidance or standardization from their federal government benefactors. While progress has been made, there is much undone that leaves the consumers of intelligence, and those tasked with protecting us domestically from terrorist activity, unnerved.

Today, state and local law enforcement is still unclear on how or where exactly they are to report possible terrorist activity that may result from a routine investigation, a random car stop or a report of suspicious activity. Federal agencies, competing for jurisdiction and budgetary turf, make the job a bit more complicated for these law enforcement officers on the front lines. The result is that most big city police departments or state police agencies will report activity through at least two channels, to both the FBI and to the US Department of Homeland Security. By law, the FBI has primary jurisdiction to investigate terrorist activities within the United States, but the US Department of Homeland Security has a tangential, but competing, legal mandate to collect, analyze and coordinate intelligence on such matters.

Where does the intelligence process begin and at what point does that collection and assessment of data cross the line of applicable legal controlling authorities and become an investigation? The answers for many of these questions do exist in precedent, but may other similar considerations are still undefined and untested in judicial decisions. Still others rely on “institutional knowledge” or past practices to make decisions on when investigations begin and where intelligence ends. Still others, as matters of individual interpretation, perpetuate mythologies and lend only confusion to an already muddled dialogue.

The reality is that today, the authorities tasked with protecting us from attack, are still stuck in a morass of confusing legal guidance and bureaucratic molasses. The enemy does not worry about the soundness of the narrative of Title III wiretapping warrant application, they do not struggle in their pre-operational planning with complex and competing legal controlling authorities between federal, state and local jurisdictions. They do not spend time debating such things on competing talk shows. Rather, they simply operate and continue to press ahead with their designs of inflicting injury and spreading fear. That is to say, that the enemy is much more efficient than we who seek to stop them. The challenge is naturally to determine how best to protect and balance the law and the individual’s rights with the need to combat an enemy unconstrained by such luxuries and obligations of a democratic civilization.

The Patriot Act, and more disconcertingly Patriot Act II, attempted to do this but ignored many provisions, within disparate state laws, and even federal laws, that prohibit or limit  the sharing of criminal data. These newest federal laws tread so lightly around the matter of state’s rights that they completely fail to offer a unifying, codified direction of how, when and where criminal predicate information can or should be shared. In fact, Patriot Acts I & II each fail to offer any guidance on conflicting federal laws in the realm of information sharing.

For example, 28 CFR, part 23 is a federal rule that mandates state and local law enforcement to very specifically control the manner in which they collect, store, share and destroy criminal investigative information. The same rule also puts in place severe penalties for those agencies that fall out of compliance, and those agencies that make such mistakes stand to lose precious funding dollars that support essential components of their operations. The Patriot Act incongruously ignores its federal legal sibling and simply requires all law enforcement agencies everywhere to share information.

The Patriot Acts provide no direction, authority or business process construct for the purpose of clarifying the conflicting laws and leaves local jurisdictions with little more than the notion that they need to share information. How? When? Where? With whom? Under what circumstances? What technologies can or should be used? Who is authorized for access to what level of information? These routine questions are largely unanswered and remain omnipresent in the course of daily law enforcement intelligence operations. Big federal agencies in the mission area have different and competing policies that attempt to address some of these questions from the law enforcement consumer, but they are solutions that are many times uncoordinated amongst the Feds themselves.

The consequence of so many questions left undefined is unnecessary confusion in the marketplace. Law enforcement professionals in many major jurisdictions have all but said they are going it alone and have resorted to building their own indigenous intelligence capabilities, complete with information technology tools, in-house legal counsels and advanced technologies and operational capabilities. Their initiative is to be commended and we are all better off that they have not waited for the federal government to arrive with a solution in a box.

What is disappointing is that the inability of the federal government to establish some national standards and consistency as it applies to the collection, analysis and dissemination of intelligence - whether it is terror-related or simply criminal predicate reporting on gangs, narcotics cartels, organized crime or identity theft rings – leaves these organizations with systems that cannot necessarily speak across jurisdictional or legal boundaries. In more extreme cases, information may not be shared as a result of personal rivalries or political vendettas. The need to institutionalize information sharing business processes, standards, training and the compatibility of interoperable technologies remains a fundamental and as yet, unanswered need in the war on terror.

In recent months, working groups comprised mostly of state and local law enforcement leaders have come together to agree on certain basic information sharing protocols. The Global Justice Information Sharing Working Group, responsible for establishing an XML data sharing standard for law enforcement, is such an example of how multi-jurisdictional needs can be met through common practices and leadership. If we are to continue to protect the nation, particularly in our homeland, we will need to do more in terms of policy leadership on matters of information sharing. The complexities of the mission, the necessity of protecting legal authorities and individual rights, and the determination of the enemy demand nothing less.

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