Domestic Surveillance: What you need to know about what is going on, and what you can do
There are things you can do to preserve your rights.
Summary
This is the basis to assert that the issues in the ACLU complaint warrant increased public attention. Ref Ref.
What you can do: Read, prepare, and stay alert. Only you can ultimately protect your own rights.
Communicate lawfully to the media, public officials, and your friends and in no uncertain terms that the matters the ACLU-NC complaint relate to: - unlawful search and seizure; - failures to take complaints; - willfully violating, not complying with, statutes requiring state auditors to take information; - local officials to file investigation reports with their appointing officials in accordance with statutes. Hoc Voluerunt. |
Discussion
Information obtained through intelligence databases clearly indicates that non-criminal information is routinely stored and used during subsequent "interviews." When inputting data related to associates, work history, room mates, private use of time one invariably makes religious-related entries into the intelligence files.
DoJ, despite requirements under Brady, to disclose all pertinent information to defense counsel, has failed to provide a straight story on why the FBI I-files were so long in use, but no one bothered to notify the US Attorney of the failure to provide all data per Brady.
Law enforcement regularly lies all the time to create the illusion of a constitutional stop, when in fact, the basis for the stop is merely pre-textual. In those cases where officers engage in a non-constitutional stop, FTO's teach new recruits in the field how to make up stories to justify the stop to meet the loose "reasonable suspicion standard" under Terry.
Threat Management Unit personnel have policies and instructions to government personnel to use as necessary allegations of "suspicious activity" in order to remove personnel who are making reasonable requests for assistance, but the office staffing is not willing to provide this assistance.
Despite clear policies that indicate the requirement to provide this standard, and clearly promulgated management policies outlining management expectations on employees, employees know they can provide misleading information to the public in the hopes that the public relies on this information and invariably fits the "suspicious person" profile, thereby justifying their removal, detention, and interrogation as retribution for engaging in constitutionally protected activities.
Despite the existence of intelligence files and data related to complaints, this information is not effectively used to manage employees. Indeed, despite complaints about law enforcement, management is unable to do data sampling, trend analysis, or effectively communicate with civilian oversight the status of investigations.
Rather, civilian oversight will promise to look into matters, but outside observations cannot confirm the existence of such investigations. Moreover, despite clearly promulgated statutes mandating filing investigation reports with appointing officials, civilian oversight of managers is weak, cursory.
First line civilian management fails to demonstrate that they effectively monitor, investigate, or provide facts to oversight; nor do they effectively disseminate findings to mid level law enforcement management in the wake of an investigation.
In those cases where identifying information is stored, retained for tracking purposes, this information is not effectively used to do data sampling or ensure the public is adequately served relative to the management goals. Rather, management relies on "feedback by abrasion" which typically involves substantive complaints or lawsuits, and does not effectively solicit feedback from those who have no interest to complain.
In short, because the pool of complaints tends to be from a group of people who have adverse relations with law enforcement, civilian oversight tends to bias the analysis in terms of "skewing the results in favor of law enforcement" and deferring back to law enforcement, rather than taking an objective, impartial look.
Management also fails to ensure that the original complaint or concerns prompting the first contact with law enforcement are adequately solved or addressed. Indeed, the goal of law enforcement is not directly to appease the individual wishes of a particular victims, but to serve the law and justice. However, it is problematic when there is a disconnect between "what the public expect" and "what law enforcement actually does."
Management does not effectively demonstrate that it independently does no notice sampling on complaints to ensure the original concern was adequately resolved, or that the information law enforcement provides to the public is correct, consistent with policies, or supports civilian-oversight objectives.
It is reasonable for management to be challenged to do sampling of cases to ensure, in fact, that the original call to law enforcement is satisfactorily addressed in terms of customer service, post-sentencing results, and final disposition of the victims relative to their status immediately prior to the incident.
We also find problems in cases where state auditors and the attorney general have inputs into the oversight process. State attorney generals have not adequately shown that they provide reliable information to the public on "whether issues are local or state-level." It is troubling when clearly promulgated statues identify an AG-role, but receptionists defer the public to local officials [not state] on the basis that "the state statutes do not apply" when, in fact, they do.
In those cases where first line government staff discover they are the object of a civilian complaint it is normal for government officials to side with their own, and turn the basis of the concern back onto the public-victim. In cases where the public has concerns about law enforcement conduct and there is a clearly promulgated rule outlining management responsibility to act as first-line public interface, it is troubling that requests for assistance are rebuffed with, "We are not going to second guess the officer."
When pressed, rather than being able to demonstrate factual evidence justifying the existence of an investigation [as required by the rules, statutes, or guidelines], we are troubled that multiple requests for information fail to reveal any evidence of there having been any substantive investigation into the matter, issue, complaint, trend, or concern.
This comes at a time when despite public states that government is "for the people" and "We are here to help" or "checks and balances is important," the various branches of government are designed to achieve the opposite.
Despite speeches celebrating public input, there is no formal complaint system nor a formal focal point to identify trends and ensure they are timely resolved; nor is there a meaningful feedback loop to ensure in cases where civilians are rebuffed and not adequately served that there is a clearly identified person who can inject themselves into the issue to validate the requirements, procedures, facts, and what was done.
More often than not, despite a clear statutory requirement to investigate, take information, or take action, the public is more likely to be rebuffed, given a non-sense story, or sent on a maze. Invariably, the fact that the civilian is subsequently disoriented and "not doing what is expected" becomes yet another "justification" to identify this person to security as a "suspicious person."
What is of concern is when newly assigned personnel are brought into the issues, yet have no experience or understanding of the basic rules, statues, procedures or rules. We wonder on what basis these personnel are hired, how rigorous the entrance interview was, and whether the job announcement truly had any meaningful hurdles to surmount. The objective of job interview is to hire qualified candidates, not create the illusion of a hurdle where a rubber stamp exists.
Of concern is the regular habit of law enforcement to "feel out the victim-witness" to calibrate 'what story would most likely convince the person they have no case," when, in fact, the public always has the right to make a complaint. It is troubling that despite their oath of office to serve the public, law enforcement will not communicate in a manner that reflects well on them, but is designed more to intimidate and dissuade public awareness and comments on issues related to discipline, procedural compliance, adequacy of management, or training effectiveness.
Despite POST oversight, we see little evidence that POST internal controls conducts no notice visits on Field Training Officers [FTOs], or adequately ensures field training practices are consistent with lesson plans on file. It is of concern when FTOs provide new recruits the "excuses to avoid a 42 USC 1983 claim" checklist; and instruct the new hires how to dissuade a victim-complaint using incorrect statements on the statutes.
It is not uncommon for law enforcement to use intimidation against the public not because the public is doing anything wrong, but because civilians are familiar with the statutes. In those cases where personnel with legal backgrounds have gone undercover, it is striking how law enforcement will quickly trip themselves up not knowing the "deranged, rambling complainer" is actually a highly educated, trained and degreed accomplice that is not only miked but being recorded for purposes of gathering evidence.
The public has learned that in order to preserve its rights, it must know the laws better than law enforcement; and must also know the statutes, rules, and policies better than civilian management. This is not simply a sign of a leadership problem, but more broadly we ask, "We have these people in positions of power when they have to be reminded by those they are supposed to work?"
Indeed, this rhetorical question is curtly answered with, "That's the nature of checks and balances." Yet, we are not persuaded.
For in those cases where the "knowing public" actually attempts to engage in constitutionally-protected activities of "public inquiry", that line of questioning becomes the basis to assert, "You are wasting our time" and "there is no problem" and "they are doing their job." Strange, we find nothing in the record to substantiate these defenses.
Public oversight is warranted, more so, because conduct and practices are at odds with public statements raising reasonable doubts about compliance within government with clearly promulgated statutes.
In short, regardless the approach used, we find that across the spectrum law enforcement will engage in misconduct, abuse, and routinely misstate the statutes in order to rebuff complaints, protect their own careers and "do what they have to" advance their own interests over that of the public. Succinctly, law enforcement looks at the public, as the Americans look at Iraqis, as the enemy.
This state of affairs is unacceptable.
It would be appropriate if there were more meaningful POST no notice visits to local law enforcement FTOs, and better demonstrations that the original complaints are effectively resolved. Unfortunately, the courts have given a green light to law enforcement in their deceptions to "gather information," and this invariably has provided the public with a jaded interaction with law enforcement.
The public is held to a different standard, required to provide truthful statements; in those cases where the public seeks silence, they are not unknown to be accused of being "in trouble with the law" or being "threatened with detention and handcuffing" for exercising their rights to silence. We see relevant comparisons between the British Monrarchy in 1776 and the US law enforcement tactics in 2004.
Strikingly, law enforcement during budget reviews is quick to bemoan the "lack of resources", yet we find this argument not compelling. Law enforcement is not unknown to trump up charges; having those case struck down, law enforcement is actually making more work for itself. By spending a large amount of time and energy on "big cases that fail," the public learns to "not bother" to provide information that is of real intelligence value related to criminal activity.
At this juncture it is clear that law enforcement intelligence gathering has more to do with "justifying budgets" and "giving agents something to do" than actually brining about meaningful convictions. Please, we see little evidence the interrogations in Guantanamo have yielded much but deaths and greater open hostility toward the United States.
What law enforcement ultimately does with the information is not in doubt: This information is not used primarily for criminal investigations, but is used to simply build up databases, for the basis for additional inquiry, and intimidate the public.
Despite the catalyst of 9-11, DoJ shows little capability in effectively managing or transcribing the existing information; why they need more information to similarly not be adequately managed or investigated remains reasonably dubious.
It is striking how difficult it is to get information into the law enforcement files; but once there is used freely to intimidate the witness or victim; bluntly, law enforcement will rebuff a complaint from a victim, and turn the proximity to that victim into a another "interview" to gather additional intelligence not about any criminal activity, but just "gossip" that will go into the intelligence file. This practice tends to dissuade the public to report crimes, and contributes to the climate of "criminals can do what they want."
The solution is to start with law enforcement, ensure there are meaningful sanctions for abuses, not excuses; we grow tired of the voluminous excuses law enforcement is permitted to wield as if a barrier that no civilian could hope to use in a criminal trial.
We are puzzled by the well known practice within the courts of permitting trumped up charges to appear before counsel, prosecutors, and the ultimate adjudicator, but there are few and far between any meaningful sanctions placed on law enforcement for trumped up charges. Units with a known veracity problem have complaints returned, but the intelligence-gleaned is not filtered or purged.
Indeed, rather than take a complaint, law enforcement is more likely to use a "consensual encounter" with the victims, witness, information, or public as another excuse to follow-up on previously gathered intelligence; yet, it is striking that there are no formal complaints or documentation of these interviews in the incident files.
Regardless how the information is stored, it is a surprise to some to find that their "request for assistance" has turned into another excuse for law enforcement to engage in another fishing expedition. Again, the objective is not to pursue a specific criminal complaint, but merely to continue digging into a convenient target. Apparently, their POST-training was not adequate and they require additional "practice sessions".
Law enforcement likes to bemoan the scarce resources, but has a tough time arguing this point. Invariably, the problem isn't resources or personnel, but management of that information. It is troubling that information contained in the FBI I-files remains unsearchable; offers to provide additional information to substantiate allegations related to criminal activity are rebuffed with accusations of "don't come here looking for gainful employment." So much for FBI public relations.
FBI agents have the ability to freely conduct interviews and follow-up research on other cases. Invariably a case will dead-end, get put on the backburner, but agents are still capable of going over these dormant cases.
Although nothing stops the FBI to re-engage once the trail warms, the US Attorney and SACs are not on the same sheet of music. It is striking that in situations where the US attorney has litigated against law enforcement or judicial branch personnel, FBI rebuffs additional information related to these allegations and the US attorney defers back to the FBI on "what their priorities are."
The issue is DoJ has priorities that are clear, but neither the FBI or US Attorney are necessarily on the same page when it comes to oversight, priorities, investigations, information. On one hand we have the FBI I-files which surprised the US Attorney; and at the same time, the FBI will rebuff information that they are not aware the US Attorney is actively pursuing.
On top of this, the public is asked to provide additional information. The reasonable conclusion is that DoJ and law enforcement doesn't have a manning problem, it has a leadership, ethics, integrity, and training problem. The information is already there. The problem is that law enforcement will take on the character of those they prosecute in the "great cause of a greater good."
Rather than provide the requisite information to assess the management flaws in DoJ that Congress and auditors have clearly failed to remedy, DoJ's standard practice is to circle the wagons. Failure to respond to this FOIA reasonably confirms the suspicions that the allegations are true, as were the rumors about torture in Abu Ghraib.
The failure to timely respond to reasonable requests and oversight raises reasonable doubts in the public's mind about the ability of the government to comply with their freely chosen professional standards and constitutional constraints. The Bill of Rights are a shield the public must be encouraged to wield, not a spear which DoJ yields without warning.
Law enforcement has shown its true colors. It is not reliable. Indeed, this is the reason the farmers injected into the constitution/bill of rights clear provisions for counsel to be present. Yet, in this day and age the request for assistance is then used by law enforcement to intimidate the civilian population with threats, innuendo, unprofessional treatment, and abuse: "Are you in trouble with the law," and "I'll cuff you and detain you" if you exercise your right to silence.
Again, this is a training issue. The public at large is looked at as the enemy, the potential pool of information, and law enforcement will use any method even torture as they did in Guantanamo, to get information however unreliable. Naturally, those who refuse to assent to this abuse are targeted for greater attention and emphasis.
We ask, where is POST, where is the FBI OPR, and why is the House and Senate Judiciary Committee not actively involved? We are troubled that on the very day that the 9-11 committee looked into the DOJ and FBI, Senator Hatch was not at the hearings or in DC; he was in Utah on April 12-13 2004 attending a promotional tour for the Patriot Act, statutes which the court subsequently struck down.
We are not surprised why DoJ and local law enforcement engages the "targets" as they do. They have meaningless oversight from the Senate Judiciary Staff, a staff that is so poorly disciplined that it inappropriately accesses the opposing party's private files. We await a timely explanation from Senator Hatch why we should believe his staff can credibly oversee DoJ despite these transgressions. Further, the Senate Staff's reluctance to look into allegations of misconduct by Sibel Edmonds equally raise substantive questions as to the adequacy of DoJ oversight.
DoJ and the FBI pride itself on sending their FBI agents at Quantico to the Holocaust Memorial as a reminder. Yet, why did this visit not act as a check on the abuses we have seen in Guantanamo and Abu Ghraib? Clearly the "never forget" visits were forgotten.
FBI agents "selective memory problem" is not isolated to human rights standards, but to the MAOP and simple courtesies like taking complaints, information, and responding in a professional manner to requests to see identification. The public is told so often to "put with with tis abuse," that criminals can now masquerade as FBI or ICE team members without fear of adequate challenges.
What is needed is a better education of the public of "what to expect of their FBI agents" so that the public "when this conduct does not occur" will know that they might not be interacting with a bonafide agent. The purpose of warrants is to ensure that the courts are overseeing this person; the excuse of "we need to keep this secret" was struck down when the Patriot Act began to dissolve.
Also troubling are the intelligence sweeps made of protestors, held in confinement, threatened with being thrown in "Guantanamo on the Hudson" for simply walking down the road. It is not the first time the nation has gone to war and had protestors, yet each time it appears the legal community is "caught off guard" and "once again" the government has to be reminded of the clearly promulgated Bill of Rights which clearly establish protections.
clearly, the provisions and mechanisms in place are not working. The constitution is clear, but law enforcement requires greater oversight, more reminders despite 42 USC 1983, training, oversight, POST, OPR. This problem, if the public is asked to provide inputs, is not unique to this age; but rather than demonstrate leadership, we are troubled that additional lawsuits are the only mechanism to remedy this problem.
If this abuse and misconduct does not stop, it will simply continue. That is not acceptable.
There is a leadership problem within DoJ and local law enforcement. If the public has to "step in" to provide the answers, then local law enforcement has failed; the answer is not to ignore the complaints, but to address the credibility and integrity issues.
The constitution is clear, as are the standards, policies, training, lesson plans, POST guidelines, and basis for FBI reviews into misconduct.
The public can only rely on law enforcement so long before it simply says, "not going to bother with that hassle." The answer, in law enforcement's view, is to subject the civilian population to greater intrusions when the civilians choose to "not take part" and "opt out" of the information-providing game.
We've seen in Iraq how far the US will go when it wants something. The only thing stopping this FBI, DoJ, ICE, and local law enforcement is the constitution, courts, and civilian populations assertiveness in standing up for themselves.
Gone are the days when law enforcement might have been given the 'benefit of the doubt'. Law enforcement shows that it requires close oversight, a tight leash, and more credible sanctions for violations of clearly established rights.
In a nutshell, FBI intelligence activities are no different than the abuses we have seen under the Denver Spy files. Law enforcement will use any method to gather information, acquire contacts, and gain proximity to the target. At the same time, it will use any ruse and method, even abuse and torture, to gain that information regardless its probative value.
Testilying, lying in court under oath by law enforcement, is standard operating procedure. Intelligence is actively shared with the media when it suits DoJ's interests and this can be confirmed through discovery by examining the FBI fax machines that have preprogrammed lines to the media, the frequency of the faxes, and also testimony from former field agents.
ACLU would do well to identify the specific holes in it interests and identify the specific questions that it is having trouble filling. There are methods and sources outside DoJ control that can provide this information and support discovery. Specifically, it would be helpful if there were specific allegations, pattern of misconduct, or concerns that the public could be sensitive to, be on the look out for, and could provide timely inputs to ACLU and other organizations collecting information on the pattern of abuses.
There is no doubt that the tactics used are an effort to stir the part in the hopes of igniting a flame where there is no smoke. DoJ would do well if it would apply the same pressure it applies to the public on its own agents when conducting internal reviews, screening personnel, or fact checking agent explanations on "what happened" and "why is there this recurring problem."
We should not be surprised why the FBI, JTTF, and ICE are so intimidating: They have learned how to intimidate oversight, congress, POST, OPR, and the Inspector General in re Guantanamo and Abu Ghraib. This victory is merely a green light for more abuse and non-sense faxes from the US Attorney's office. Yet, Virginia, the court did strike down significant portions of the Patriot Act as unconstitutional.
Why is the FBI conducting these interviews?
What is the purpose of asking the civilian population questions related to non-criminal activity?
Why is the FBI rebuffing questions related to allegations of criminal activity?
Why does DoJ and FBI refuse to assent to reasonable questions, while demanding the public immediately comply with requests for information?
Why does DoJ and the FBI treat public questions as "efforts to intimidate", yet DoJ, JTTF, FBI, and ICE use these methods as a frequent course of conduct?
Why should we believe DoJ is conducting its affairs above board?
Law enforcement lies all the time; why should we believe their responses DoJ provides to either Congress or the Courts?
Threat management unit personnel brief government workers to report anything suspicious, fully knowing that "public oversight" can be thwarted with allegations of "being suspicious."
What is the DoJ plan to ensure that asserting federally protected rights and engaging in innocent behavior is not used as a basis to question, detain, monitor, intrude, annoy, harass, threaten, accuse the civilian population?
What method will DoJ use to demonstrate that it respects the civilians' population's right to an attorney being present during questioning?
It is troubling that the the civilian population have to require DoJ to publish procedures demonstrating that it complies with the constitution. Yet, in this day an age, DoJ has the burden of proof.
How much information will be gathered?
What method will DoJ use to ensure that non-Muslims like Terry Nichols and Timothy McVeigh are adequately screened?
DoJ complains that it is in a "new era" and "new methods must be used." No, the constitution remains in place; and the reason DoJ has a problem is that DoJ has failed to reorganize, respond, or use the information it already has. It does little to inspire trust in DoJ when DoJ cannot manage the existing information it has, cannot transcribe all the tapes, but is intent on gathering more information that it has no plan to credibly organize, access, or use for prosecutions.
DoJ would have more credibility it it effectively disciplined its own agents and ensure they met the standards in the MAOP, before lecturing the public and telling the public "what they should do" and "how they should spend their time" or "what is, or is not, appropriate conduct."
It is striking that the "reasonableness threshold test" to generate a complaint would dare to include the "media interest" -- the very institution that failed us prior to 9-11 and Iraq: Where were the questions, were was the interest, and where was the demand that government address issues which former agents brought to the media's attention? No answer, just more non-sense.
DoJ and law enforcement "integrity" is not yet at rock bottom, as they have more ways to go before they truly hit bottom of their own cess pool. They have proven themselves incapable of self-management, unresponsive to reasonable concerns, and anti-thetical to the US Constitution. Yet, despite the post 9-11 outrage, DoJ magically escaped the reorganization efforts.
There are 300 million Americans. DoJ cannot expect to interrogate them all; yet, it is possible DoJ might build prisons to house all those who dare assert their right to silence.
What's needed is better oversight by Congress, a wake-up call for Orin Hatch in the terms of a reduced amount of oversight over Core DoJ functions, and a dissembling of DoJ into core units that are more effectively managed, overseen, and regulated. All this power under DHS and DoJ does little to inspire confidence in the nation of checks and balances.
In those cases where DoJ, ICE, JTTF, and the FBI deem it "appropriate" to interview, those agencies need to first provide clear evidence that their own agents are meeting that standard first: Provide explanations on how they use their time; who their associates are; why they are unresponsive; why they choose to engage in "protected" activities that are the "basis of suspicion" in others.
First demonstrate you can meet the standard you impose on others, and perhaps the civilian population might think about reciprocating.
DoJ, JTTF, and ICE: You have invited a vote of no confidence and you have made your own jobs harder by simply ignoring the fundamental principles outlined in the US Constitution. A civilian population can collectively invoke its right to silence, regardless the threatened detentions and abuse we have seen in Guantanamo and Abu Ghraib. Many lied about 9-11, Iraq, and WMD -- you have exhausted any hope of reform and you are now on your own.
DoJ also likes to assert that "we can't disclose that as it will be a primer on how to engage in criminal activity." This is absurd, as the constitution, statutes, rules, and procedures are clearly established and the public is "presumed to know the law." Failing to provide this information ensures that the public "does not know why they are being detained" and can do nothing to either adjust their behavior, or challenge the accusations made.
The court has already found that secret trials in re Patriot Act are unconstitutional; so too is it reasonable to expect openness about the reasons for the questions so that the public might effectively oversee where DoJ, the inspector general, the courts, and Congress have fallen down in re oversight, accountability, and discipline.
Failure to ensure agents conduct themselves in a manner consistent with these professional standards is a green light for criminals to mimic "whatever standards they want" and pretend to be law enforcement. There should be clear signals to the public "whether they are dealing with a bonafide law enforcement officer."
Part of the checks and balances is to have valid warrants, credible showing of personal identification, and professional demeanor expected of government "professionals." When those standards are not met, they should be the reasonable basis for the public to suspect they are not dealing with a bonafide "professional" agent and alert law enforcement management that they have an imposter posing as a member of law enforcement.
Of concern is law enforcement sensitive information is shared with the media and non-government entities like corporations and private investigators. We are troubled that the law enforcement opens its databases to non-official uses by agents-turned-contractors who are using government resources to benefit their personal business interests. For example, despite denials that the information is leaked, later discovery shows information is used during data runs at Jet Blue.
We are also concerned that information gleaned is shared with non-government entities like the American Legion and Americanism Committee in the hopes of using members of these organizations to intimidate targets, or those who speak out against allegations of unlawful or criminal activity by US government agents, troops, and respresentatives both at home and abroad.
Of concern is private information can be accessed, obtained without adequate disclosure of information; and civilian oversight of these databases profess that they "have no responsibility"for that data security, despite the 1974 privacy act.
References in the complaint
at 4 US Attorney and FBI are not on the same page.
FBI MAOP, standards of conduct, is here. Unclear why protected activity is the basis for abuse, mistreatment, arrogance, or accusations based on engaging in protected activities.
para 11, FBI and law enforcement do engage in "selective" application of the rules, telling the public whatever they believe the public can be told to justify 'whatever the FBI and local law enforcement chooses to do or not do."
Para 15, 16 The issue is not simply the aggressive conduct in re targets, but also to those who dare provide information related to criminal activity. One one hand the FBI-DOJ-JTTF claims that this is a new era, yet the same abusive conduct continues despite the need for information.
Para 33: What you can do, because DoJ has not "detected" public interest in this issue, tell everyone you know that you are interested and have them fax DoJ Public Affairs, your local media, and local government to raise these issues:
- Why are local government civilian officials not better overseeing law enforcement;
- Why does the media not timely investigate complaints related to these matters; and
- Why are DoJ-JTTF-DHS-ICE personnel reticent to timely respond to public concerns about the conduct, operations, and efficiency of their operations?
Ref, Ref, Ref.
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posted by Constant @ 4:02 PM
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