By Thomas J. Martinelli, Adjunct Professor, Wayne State University, Detroit, Michigan and member, IACP Police Image and Ethics Committee
“Experience should teach us to be most on our guard to protect liberty when the Government’s purposes are beneficent.…The greatest dangers to liberty lurk in the insidious encroachment by men of zeal, well meaning but without understanding.
— U.S. Supreme Court Justice Louis D. Brandeis (1856-1941)”1
ith today’s national emphasis for an Intelligence-Sharing Environment (ISE), there are greater opportunities for noble cause corruption (NCC) in law enforcement’s efforts to combat terrorism and fight major crimes. Law enforcement officers vow to protect and serve, and that oath implies strictly adhering to the constitutional guidelines interpreted via our Bill of Rights. Yet, there lies the potential privacy violations that are rationalized by officers in an effort to achieve “the desired ends.” Agency administrators and trainers must address intelligence scenarios wherein noble cause corruption may occur in order to better educate their officers in the intelligence unit.
Noble cause corruption in policing occurs when officers circumvent the profession’s mandatory constitutional restrictions. The Fourth Amendment protects citizens from “unreasonable” governmental intrusions into their private lives in order to prevent arbitrary and malicious police actions. Noble cause corruption is a felony, not a misdemeanor, because it is an abuse of police powers, “it is the corruption of police power when officers do bad things because they believe that the outcomes will be good.”2 It is not a “bending” of the constitutional rules, as some try to suggest, but rather a breaking of those rules in an effort to get the upper hand on society’s terrorist and criminal element: “NCC is intended to cover a certain type of corruption with the mantle of respectability, much as the designation of a lie as white is usually intended to sanitize it.”3 It is not misconduct for personal gain; rather, “it is a misguided rationalization that such behavior is part of the job description, in a utilitarian sense, to get the criminals off the streets no matter what the means.”4
Such rationalized corruption has been in policing for years and has been an ongoing challenge for police administrators educated in the nuances of this occupational rationalization.
Street-level NCC occurs when officers plant evidence, use their “sixth sense” as opposed to establishing probable cause facts, describe the elements of misdemeanor in such a way that it becomes a felony;5 and commit testilying.6 All of these are police felonies based on the passion to prevent crime, a rationale that is the linchpin of noble cause corruption.
|Noble cause corruption is “committed in the name of good ends, corruption that happens when police officers care too much about their work. It is corruption committed in order to get the bad guys off the streets…the corruption of police power, when officers do bad things because they believe that the outcomes will be good.”|
—John P. Crank and Michael A. Caldero, Police Ethics: The Corruption of Noble Cause
However, each action violates the U.S. Constitution, the officer’s oath of office, and the public’s trust in the policing profession. One of the most egregious cases in recent times was the Los Angeles Police Department’s Ramparts case.7 This incident cost the city millions of dollars in lawsuits, settlements, investigative hours reviewing previous convictions, and an overall decrease in organizational morale. Further, the agency suffered long-term distrust issues with the media and with the citizens they served.
The Intelligence-Led Policing (ILP) mission is to gather, analyze, and disseminate intelligence data, in an effort to thwart the next terrorist attack or prevent the commission of a major felony. In applying a utilitarian philosophy to prevention efforts, the “greatest good for the greatest number,” is to detect preoperational terrorist acts and prevent another 9/11.
ILP has so many challenges to its implementation that it is vulnerable to noble cause corruption scenarios. In this “war against terrorism,” potential Fourth Amendment privacy violations may be rationalized by a few in law enforcement, especially when dealing with preoperational investigations. At this stage, there are very few oversight mechanisms. The moral dilemma for all police administrators involves the issue of where to draw the organization’s line of demarcation between legal intelligence gathering and committing noble cause corruption.
A Willingness to Deceive
Intelligence-Led Policing involves an advanced philosophical appreciation and understanding of legal and illegal law enforcement techniques and a working understanding of the constitutional privacy protections carved out by Supreme Court decisions in case law.
But in ILP, words are the tools of the trade. Intelligence analysts study Suspicious Activity Reports (SARs), tips and leads, arrest reports, and other open source documents to piece together puzzle parts in an effort to thwart serious crime threats. However, these analysts must rely on the puzzle pieces being true, placing greater faith in law enforcement-generated reports than to an anonymous tip or lead. Law enforcement officers who are willing to lie in a written report or omit a pertinent exculpatory fact taint the efforts of those committed toward perfecting the intelligence sharing module.
Testilying is officer perjury in open court, offered under oath and witnessed by judges, prosecutors, and often juries.8 A very few officers have rationalized such willful deception as an ends-justify-the-means rationale, arguing that their necessary deception results in societal predators being incarcerated for as long as possible.9 However, our entire criminal justice system is based on the premise that all police officers always tell the truth.
Furthermore, report writing is a gray area. Report writing has fewer supervisory oversight mechanisms, and administrators assume that officers tell the truth in their reports. Academy training sometimes glosses over the critical importance of truthfulness in an officer’s initial report and even fails to emphasize the need to establish the elements of the crime in these reports. Several agencies no longer have their street-level officers swear to their reports’ accuracy when offering them for supervisory review. Today’s street-level supervisors must emphasize the need to specifically articulate the probable cause facts of arrests so warrants may be issued and convictions successfully obtained.
Suspicious Activity Reports, Tips, and Leads
Suspicious Activity Reports (SARs) have no mandatory prerequisite to establish probable cause or a criminal predicate nexus to generate reports. Rather, suspicious activity is defined as “observed behavior reasonably indicative of pre-operational planning related to terrorism or other criminal activity.”10 It includes activities such as photographing or videotaping municipal structures with no apparent esthetic value; counting footsteps in an apparent effort to measure distances between security posts; or making suspiciously large purchases of materials such as pool chemicals, fertilizer, and components for explosive devices.11 Of course, all of these actions are ostensibly legal devoid of any criminal intentions.
ILP training educates officers in how to use their powers of observation and intuitive skills and to draft concise SARs that describe articulable, preoperational activities that cross the constitutional threshold of criminal predicate.12
The Intelligence Sharing Environment relies heavily on the individual character of each and every law enforcement officer engaged in the gathering and networking of intelligence data. Police administrators must be ever vigilant in their efforts to supervise their agency’s intelligence handling procedures in order to eliminate the potential for noble cause corruption as it pertains to homeland security policies at the local level. Privacy is a sacred right enjoyed by U.S. citizens, but if court-ordered search warrants for telephonic bugs or for the seizure of target citizens’ laptops are premised on an officer’s willingness to deceive, that right is violated.
Privacy, “refers to individuals’ interests in preventing the inappropriate collection, use, and release of personally identifiable information. Privacy interests include personal behavior, privacy of personal communications, and privacy of personal data.”13 Crime due to noble cause corruption in privacy protections is not as explicit as planting tangible evidence. Rather, it is the crime of implication by law enforcement—planting prejudicial ideas, profiling, labeling, using preconceived notions and anti-religious beliefs—to conclude that a certain person or group is (or might be) involved in terrorist activity. Insinuations, implications, assumptions, associations and omissions, and improper procedural intelligence gathering can ruin a citizen’s business, reputation in the community, and family name.
Words are intelligence operatives’ tools of the trade, and words must be vigilantly edited, challenged, deciphered, and sworn to before they are entered into any intelligence database. Unsubstantiated fishing expeditions by law enforcement agencies violate both the U.S. Constitution and the public’s trust.
Passion and Perspective
Intelligence-Led Policing by its very nature is shrouded in secrecy, requiring privacy guidelines for data collection and networking. Appropriate networking between agencies, in the Intelligence-Sharing Environment, is critical to successfully thwarting terrorist acts and major crime in our cities. ILP is the legal invasion of privacy with vigilant adherence to Fourth Amendment rights, national guidelines for intelligence systems, and zealous supervision.
Addressing noble cause corruption issues in the intelligence field is no different than addressing corruption issues in any other law enforcement specialty. The challenge is always balancing an officer’s individual passion for fighting crime and protecting citizens, with the constitutional controls and restraints necessary to protect the target citizens’ privacy rights. As stated by William Ker Muir Jr. in his seminal book Police: Streetcorner Politicians this police means-ends conflict is one between passionate “enforcers” who lack perspective and “reciprocators” who have perspective.14 His theory expounded a conundrum for officers: Cops either fight crime using illegal means, thus breaking the law themselves under the noble cause corruption rationalization, or they might become too obsessed with constitutional restraints and choose to abandon their law enforcement mission to protect and serve. This conundrum poses a moral dilemma for the intelligence officer. The professional law enforcement officer must balance a passion for crime fighting with respect for the constitutionally imposed restraints. It is in the job description and the oath of office.
Vigilantism in Intelligence
The American Civil Liberties Union (ACLU) continues to correctly argue that ISE lacks nationwide systemic accountability. The ACLU generally recommends more “independent oversight mechanisms and a rigorous set of standards to ensure the use of proper methods” to protect privacy rights and the network sharing system itself.15 There are as yet no mandatory, national ILP guidelines, nor clear legal recourse for citizens who feel victimized by overt law enforcement tactics in the intelligence field.
The ACLU demands nationwide implementation for the intelligence-sharing environment that offers all citizens security from unreasonable governmental intrusions. Without such guidelines, secrecy and abuses are bound to occur.16 National efforts and training curriculums are constantly evolving in order to better educate ISE members, and recent transgressions provide lessons learned for police administrators and ILP trainers alike.
In the Los Angeles County Terrorism Early Warning Center case, two military analysts with access to highly sensitive intelligence data pled guilty to myriad charges in a military tribunal, the most serious being “mishandling classified material and stealing government property.”17 These individuals were part of an intelligence ring involving both military and law enforcement personnel. These military analysts admitted they shared these classified materials with local law enforcement personnel to secretly monitor alleged terrorist cells in their own police jurisdictions. (The involved law enforcement officers previously worked at the same military base as these analysts, but have yet to be charged with any crimes.)
This above-the-law mentality is what ILP critics fear the most and for good reason. When ostensibly good cops, frustrated with the lack of intelligence networking in this war against terrorism, create their own intelligence-sharing subculture, it undermines the efforts of legitimate Intel units. The analysts’ clandestine actions were unsupervised, lacked systemic accountability, judicial oversight, and media scrutiny.
This is the antithesis of transparency in policing, public service, and the ISE—exactly what the ACLU refers to when they argue that the ILP efforts are reverting back to the days of illegal intelligence collections during Operation Chaos, the NSA’s Shamrock, the FBI’s COINTELPRO, and the red squads local police agencies used to combat communism in the 1950s.18
One of the convicted analysts admitted that he “broke national security protocols out of concern the FBI officials were not sharing anti-terrorism intelligence with local law enforcement or were doing it slowly because of bureaucracy. There was a feeling that lack of cooperation prevented aggressive efforts to prevent future terrorist attacks.”19 He believed that his actions were patriotic, and that violating the law was the greatest good for the greatest number of citizens living in the Southern California region.
Recommendations—Educate, Educate, and Re-Educate
Intelligence-Led Policing has its own terminology. Qualifying terms such as “need to know,” “right to know,” “memorandums of understanding and agreement,” and “non-disclosure statements” are just a few. Mastering these concepts is part of minimizing an agency’s potential liability. Police chiefs and intelligence commanders must commit funding to train their intelligence personnel or to a “train-the-trainer” program so this information can be disseminated through organizational training and policy implementation.
Training educates an agency’s sworn personnel in how to identify potential pre-operational warning cues. For example, terrorists have used black market sales proceeds of stolen baby formula to fund their organizations’ efforts.20 An officer successfully thwarting such a theft may have more to deal with than just a felony arrest and stolen property recovered. The arrest may be a piece of a larger puzzle that needs further investigation and analysis, so the arresting officer will need to forward the arrest report to a local intelligence analyst or fusion center. But most critical is the need to educate sworn personnel regarding the sensitive nature of the gathering and networking of citizens’ personal identifying information in combating terrorism and major crimes.
Admittedly, intelligence units are tasked to secretly investigate and pursue tips and leads that may have a legitimate criminal nexus. Whether the investigation be gang related, organized crime, or threats of terrorist acts, secrecy has always been necessary for success. Clearly without such secrecy, police investigations would fail. But the prerequisite of a legitimate criminal nexus cannot be ascertained without committing time and manpower hours to such an investigation to decipher whether or not there is a potential preoperational threat.
Without a system of accountability, this shroud of secrecy can be the foundation for human error or abuses. Intelligence training focuses on this shroud when discussing the legal and ethical ramifications of failing to acknowledge the potential for noble cause corruption rationalization scenarios. Zealously adhering to the philosophical tenets of policing reinforces subordinates’ commitment to the profession; re-educates them as to the sensitive nature of constitutionally restrictive privacy guidelines; and bolsters the commitment to, and demand for, professional policing.
Police integrity is “the normative inclination among police to resist temptation to abuse the rights and privileges of their occupation.”21 Like other law enforcement officers, intelligence officers cannot violate the law in order to enforce the law. They handle sensitive information and must strictly adhere to the constitutional protections afforded all citizens and must respect the privacy issues associated with the handling of citizens’ personal identifying information. ILP training focuses on the beneficent purposes of protecting individual liberties with respect and understanding for the law, well meaning and with understanding. ■
|Thomas J. Martinelli, J.D., M.S., is an adjunct professor at Wayne State University, Detroit, Michigan. He is a former police officer and a practicing attorney and trains law enforcement officers in the fields of police ethics and liability and intelligence-led policing issues. He is a member of the IACP’s Police Image and Ethics Committee.|
1The Words of Justice Brandeis, ed. Solomon Goldman (New York: Schuman Publishing, 1953), 89.
2John P.Crank and Michael A. Caldero, Police Ethics: The Corruption of the Noble Cause, (Cincinnati: Anderson Publishing Company, 2000). All police administrators should have a working knowledge of this book, or they do a disservice to their rank and file and their citizen clientele.
3John Kleinig, “Rethinking Noble Cause Corruption,” International Journal of Police Science and Management 4, no. 4 (October 2002): 287.
4Joycelyn Pollock, Ethics in Crime and Justice: Dilemmas and Decisions, (Belmont, CA: Wadsworth/Thomson Learning, 2004), 127.
1Thomas J. Martinelli, “Unconstitutional Policing: The Ethical Challenges in Dealing with Noble Cause Corruption,” The Police Chief 73 (October 2006): 146–156.
6Alan M. Dershowitz, testimony before the House of Representatives Judiciary Committee, December 1, 1998, 105th Cong., 2nd sess., http://www.constitution.org/lrev/dershowitz_test_981201.txt (accessed August 31, 2009).
7Bernard C. Parks, Los Angeles Police Department Board of Inquiry into the Rampart Area Corruption Incident: Public Report, March 1, 2000, 317, http://www.lapdonline.org/assets/pdf/boi_pub.pdf (accessed August 31, 2009).
8See Jeff Noble, “Police Officer Truthfulness and the Brady Decision,” The Police Chief 70, no. 10 (October 2003): 92–101; Elliot Spector, “Should Police Officers Who Lie Be Terminated as a Matter of Public Policy?” The Police Chief 75, no. 4 (April 2008): 10–12; and Lisa A. Judge, “Disclosing Officer Untruthfulness to the Defense: Is a Liars Squad Coming to Your Town?” The Police Chief 72, no. 11 (November 2005): 10–11.
9Christopher Slobogin, “Testilying: Police Perjury and What to Do about It,” University of Colorado Law Review 67 (Fall 1996): 1037–1060.
10Information Sharing Environment (ISE) Functional Standard (FS) Suspicious Activity Reporting (SAR), Version 1.5 (ISE FS200), 2, http://www.ise.gov/docs/ctiss/ISE-FS-200_ISE-SAR_Functional_Standard_V1_5_Issued_2009.pdf (accessed September 1, 2009).
11“Appendix C: Los Angeles Police Department Terrorism-Related CCAD Codes,” in Findings and Recommendations of the Suspicious Activity Report, Support and Implementation Project (DOJ, June 2008), 43, http://online.wsj.com/public/resources/documents/mccarecommendation-06132008.pdf (accessed September 1, 2009).
12See 28 C.F.R. 23 for a more concise definition of criminal predicate http://www.it.ojp.gov/documents/28CFR_Part_23.PDF (accessed September 1, 2009).
13Department of Homeland Security, Office for Civil Rights and Civil Liberties and Privacy Office and the Department of Justice, Office of Justice Programs, definition of privacy, “Commonly Used Terms,” Justice Information Sharing, http://it.ojp.gov/default.aspx?area=privacy&page=1268#top (accessed September 1, 2009).
14William Ker Muir Jr., Police: Streetcorner Politicians, (Chicago: University of Chicago Press, 1977), 55.
15“Protecting National Security and Civil Liberties: Strategies for Terrorism Information Sharing,” statement by Caroline Frederickson, Director, American Civil Liberties Union Washington Legislative Office before the Subcommittee on Terrorism and Homeland Security, Senate Committee on the Judiciary, April 21, 2009, 111th Cong., 1st sess., http://www.fas.org/irp/congress/2009_hr/042109fredrickson.pdf (accessed September 1, 2009).
17Rick Rogers, “Former Marine Outlines Secret Dossiers: Muslims, Arabs Not Targeted, FBI Says,” The San Diego Union-Tribune, November 17, 2008, http://www.uniontrib.com/uniontrib/20081117/news_1m17maziarz.html (accessed September 1, 2009).
18Caroline Frederickson “Protecting National Security and Civil Liberties,” 13.
19Rick Rogers, “Former Marine Outlines Secret Dossiers.”
20Walter E. Palmer and Chris Richardson, Organized Retail Crime: Assessing the Risk and Developing Effective Strategies, Crisp Report (Alexandria, Va.: ASIS Foundation, 2009), 14, http://www.popcenter.org/library/crisp/organized-retail-crime.pdf (accessed September 1, 2009).
21Carl B. Klockars et al., eds., The Contours of Police Integrity (Thousand Oaks, Calif.: Sage, 2003), 268.