By Ray Guidetti, Lieutenant, New Jersey State Police Newark, New Jersey; and Thomas J. Martinelli, Adjunct Professor, Wayne State University, Detroit, Michigan
tate, local, and tribal agencies are committing more effort towards the Intelligence-Sharing Environment, (ISE) to complement the federal government’s efforts to prevent the next terrorist attack. This commitment comes at a cost. When agencies are tasked to do more with less, administrators are challenged to constitutionally use information and intelligence to establish preventative strategies, prioritize resource allocation, guide operational decision-making and establish preventative strategies. Additionally, agencies are risking more than the department’s budget: failing to strictly adhere to constitutional parameters in intelligence collection, use, and dissemination, can result in financial liability, heightened media scrutiny, and public skepticism instead of trust.
The philosophical foundations of intelligence-led policing (ILP) are not new to policing. Simply put, ILP incorporates the central tenets of command and control, community policing, problem-solving policing, and data analysis. The philosophy implementation is meant to anticipate crime trends and proactively create prevention strategies while at the same time respecting citizens’ privacy rights. ILP is a conceptual framework of conducting policing as “a business model and an information-organizing process that allows police agencies to better understand their crime problems and take measure of the resources available to be able to decide on an enforcement tactic or prevention strategy best designed to control crime.”1
Granted, policing has come a long way from pin-mapping crime hotspots. Yet the constitutional challenges of legally sharing preoperational information and intelligence, prioritizing it, and timely auditing and purging it still remain.
IACP’s March 2002 Intelligence-Sharing Summit, prepared the framework for intelligence-led policing issues in response to 9/11. The goals were straightforward: opening the lines of communication between agencies, federal and state, state and local, federal and local, state and state, and local with local. This educational awareness mandate also included addressing constitutional sensitivities involved in ILP, building community trust, addressing systemic deficits, and enhancing training and technology in this new model of law enforcement investigations.2
Subsequently, the Bureau of Justice Assistance acknowledged that “the intelligence operations of state and local law enforcement agencies often are plagued by a lack of policies, procedures, and training for gathering and assessing essential information.”3
In November 2007 the IACP hosted a follow-up summit on intelligence sharing. The resulting report found that “state, local, and tribal law enforcement agencies have made great strides in their ability to share intelligence … however, the full benefits of intelligence sharing has yet to be realized because the process itself remains a mystery to many police officers, and some law enforcement executives consider their agencies too small or too remote to participate in criminal intelligence sharing.”4
This dichotomy presents an interesting challenge for law enforcement executives. On the one hand, national best practices urge police agencies to engage in information and intelligence sharing. On the other hand, many of these agencies lack the capacity to apply intelligence principles and manpower hours. The pressure to engage in intelligence operations coupled with the limited experiences of applying the intelligence tradecraft at the local level, can result in major legal issues for any agency, large or small.
All state and local agencies need to participate in the intelligence-sharing environment (ISE). That may mean having an intelligence unit consisting of one sworn member with assigned part-time duties for receiving, compiling, and disseminating information and intelligence with a timeliness that is actionable.
Proper Training Is Essential
A properly trained intelligence officer schooled in the art of networking can strengthen an agency’s information-sharing and intelligence capacity. With only a laptop and agency authorization, an intelligence officer can leverage relationships and, in effect, outsource capabilities his or her agency may lack. For instance, an officer familiar with the capabilities of his or her region’s fusion center can overcome local budgetary limitations that often cripple a barebones intelligence initiative. Intelligence training shows officers how to collect and share criminal data and pieces of the preoperational puzzle. Comparing and contrasting this information against other intelligence streams just may prevent serious felony acts or thwart the next terrorist preoperational plan.
In addition, intelligence training encompasses a wide range of other issues that officers who operate within this domestic intelligence realm must master to reduce, or limit, the likelihood of liability. Risk management, in this sense, is about knowing and respecting the law, all the while thinking outside of the box to help prevent and detect serious crimes. Distinguishing between raw information and analyzed intelligence; possessing a working knowledge of the national standards for information collection, use, and dissemination; knowing the minimal training standards proposed by the U.S. Department of Justice; and mastering the tenets of 28 C.F.R. Part 23,5 take time, commitment, and a professionalism that honors and respects the philosophy of privacy protections in the law.
Personnel assigned to carry out an agency’s intelligence function cannot be expected to perform a catchall role. It is not a paper-processing job where agencies can transfer anyone to fill a billet. Personnel involved with the practice of intelligence must understand two core attributes.
The first is the value of collaboration. The intelligence officer must have the aptitude to work cooperatively with others in the field and establish official lines of communications with the local fusion center.
The second is appreciating and respecting the sensitivity and liability associated with handling the targeted citizens’ personal identifying information. This personal data may eventually prove to have no criminal predicate or probable cause, and when audited, must be purged.
Tips and leads and Suspicious Activity Reports (SARs), have proven to be even more delicate an issue in the field of intelligence since such data may lack a criminal predicate nexus. A trained intelligence officer will recognize and respect the legal pitfalls associated with handling such sensitive personal information. Annual training in this regard helps insulate an agency from the likelihood of severe liability.
Top-Down Prioritization Is Essential
Training is considered the key to reducing liability, and incident prioritization is the key management task. This top-down approach to policing may run counter to traditional police operations where field personnel possess greater discretionary decision-making authority, however, a true ILP philosophy requires a top-down approach. This approach also minimizes criticism of individual value judgments and ensures proper resource allocation.
Through tasking and coordination, commanders set the organization’s “strategic priorities for prevention, intelligence, and enforcement.”6 This strategic framework ensures that all collection operations follow strict investigative guidelines set by commanders as opposed to relying upon individual, officer value-based decision-making (VBDM). These guidelines protect valid ILP initiatives from the threat of the overzealous, renegade acts of a few.
Recognition-Primed Decision-Making Concept
As the ILP philosophy becomes more ingrained in the profession, policy makers and supervisors must adopt the concept of recognition-primed decision-making (RPDM) approach7 and avoid personal VBDM.8 The American Civil Liberties Union repeatedly cites VBDM’s history when it criticizes the ISE by pointing to certain civil rights violations by a few in law enforcement during the 1950s and 60s.9 Since then significant corrective steps have been taken to avoid such violations from ever happening again and continual efforts are made on a daily basis to fine tune the intelligence system as it exists today.
But an RPDM philosophy enables commanders to prioritize their operations, using their experience, training, and intuition to direct their decision making to deploy manpower- and intelligence-related resources. As noted in a 2006 Police Chief article this works “since they have accumulated a comprehensive storehouse of knowledge and experience, leaders who have become true experts in their fields rely on recognition-primed decision making…the commander’s brain does not have to scroll down a list of options until the right one appears…”10 Commanders’ time in rank, wisdom, and training for dealing with preoperational data, allow them to make intuitive decisions balancing the duty to serve and protect while simultaneously respecting the constitutional rights of their constituents and the citizen targets.
New Jersey State Police Policies
The New Jersey State Police (NJSP) has policies that incorporate and prioritize their goals for intelligence and investigative operations. Their mission is basic: to protect against organized crime, terrorism (international and domestic), violent criminals, and other illegal activity. Their focus is to identify, target, and infiltrate organized criminal groups and to enhance their alliance with the FBI to combat terrorism.11 This mission is concise, descriptive, limited, and goal oriented. Everyone—the intelligence personnel, their supervisors, their critics, and the public—knows how the NJSP goes about its business in terms of intelligence operations. Clearly, any deviation from its mission, will raise eyebrows within the organization and give plaintiffs’ attorneys more than enough fodder to sue on civil rights privacy violation cases.
Avoiding the Pitfalls—Lessons Learned
The ACLU repeatedly documents the same isolated ILP missteps in order to negatively broad brush today’s entire national intelligence effort. Mistakes have been made and will be made, and lessons will be learned from those mistakes. By understanding these missteps, law enforcement professionals and the ISE can minimize their liability and demonstrate their professional commitment to constitutionally based intelligence sharing.
The ACLU has relied on a case that involved all the pitfalls associated with VBDM intelligence gathering, and a lack of systemic accountability and poor judgment. This incident had the combination of (1) a peaceful public protest over ham use, distributing literature about vegetarian and vegan diets, (2) with an undercover anti-gang unit member in an undercover vehicle attempting to surreptitiously photograph the ham protesters being observed and the protestor writing down the undercover vehicle license number, (3) where one of the involved officers’ off-duty job was head of security for the private ham business, linked (4) with the issuance of jaywalking tickets, and (5) the resulting disorderly conduct arrests of the peaceful public ham protesters.12 ILP critics have cited this as an example of the abuses of law enforcement “spying” on innocent Americans, implying that such actions are occurring all around the country and, generally speaking, that law enforcement is out of control in its “intelligence-gathering” efforts.13
In considering the facts of this case, the 11th Circuit appellate court ruled that the protesters’ Fourth Amendment rights to privacy were violated and their eventual seizure illegal. Protesters observed the undercover detective from the anti-gang unit in his undercover car photographing them. They wrote down the license plate number of his car, which action led to their illegal traffic stop, which further resulted in their arrests for disorderly conduct. The court ruled that because the involved officers testified that they did not have reasonable suspicion, or criminal predicate, to believe the protesters had committed or were about to commit a crime, their traffic stop was illegal. But because the officers were undercover photographing peaceful constitutionally protected behavior, this case continues to haunt those agencies involved in the intelligence-gathering business.
As for the involvement of nuns in intelligence gathering, the ACLU has repeatedly documented incidents wherein peaceful anti-death penalty or anti-war demonstrators, including nuns, have been “spied” on by law enforcement without any criminal predicate nexus. Sr. Antonia Anthony, a 74-year-old Franciscan nun, was a named plaintiff in a 2002 ACLU case, because she had a dossier kept on her, in the spy files as a result of her constitutionally protected protest efforts.14 Again, this case involved value-based decision making, a lack of policy compliance and poor supervisory judgment that all contributed to the agency’s privacy violations. Clearly Sr. Anthony was not a felon, was not involved in preoperational terrorist activity, and was simply exercising her constitutional right to freely speak and associate.
Critical to this discussion though is the ripple effect resulting from the cases. The public’s trust deteriorates, civil lawsuits unveil unaccountability and abuses, and discovery requests for the offending officers’ internal affairs files, all lead to the ACLU’s moniker of “Mission Creep.” Such a chilling effect on citizens exercising their constitutional rights provides ILP critics with enough ammunition to invoke memories of COINTELPRO days.15 Policing has moved far beyond those days, but only with a continuous vigilance and adherence to the national standards promulgated for intelligence-led policing.
The ISE is still in the early stages of networking capabilities and functions, and national guidelines and model policies have been disseminated throughout the ISE in order to avoid such mistakes. Both federal and state efforts continue to refine policies and procedures in this field.
To minimize the risk associated with the privacy issues related to gathering, using, and disseminating potential criminal data, policymakers must implement these formal policies and directives prioritizing their investigations and manpower allocation. Felonious criminal activities and articulable, potential terrorist activities must be the focus.
By whittling down intelligence-gathering efforts and investigations to this finite focus of “potential terrorist-related activities and serious felonies,” agencies can do more, with less, reduce their critics’ cries of unconstitutional policing, and minimize the civil liability and public distrust suffered by their predecessors.
Keep It Simple
The New Jersey State Police keeps it simple. An Intel Unit must prioritize serious threats, and all intelligence-gathering efforts must have an articulable criminal predicate. The unit specifically focuses solely on felonious activity and/or terrorist-related behavior to silence critics and reduce civil rights actions for privacy rights violations. Citizen clients demand that we thwart the next homeland terrorist attack while subscribing to the constitutional parameters set forth in the profession when gathering intelligence and sharing personally identifying information. ■
|Ray Guidetti, M.A., Adjunct Professor, Long Island University Homeland Security Management Institute. He is a Lieutenant for the New Jersey State Police, a member of the IACP’s State and Provincial Police Division Homeland Security Committee and trains in the field of Intelligence Led Policing.|
|Thomas J. Martinelli, J.D., M.S., Adjunct Professor, Wayne State University, Detroit, Michigan. He is a practicing attorney and trains law enforcement in the field of police ethics and liability and Intelligence Led Policing issues. He is a member of the IACP’s Police Image and Ethics Committee.|
1Jerry H. Ratcliffe and Ray Guidetti, “State Police Investigative Structure and the Adoption of Intelligence-Led Policing,” Policing: An International Journal of Police Strategies and Management 31, no. 1 (2008): 109–128.
2U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Assistance, Intelligence-Led Policing: The New Intelligence Architecture, by Marilyn Peterson, for the International Association of Chiefs of Police (September 2005), a href="http://www.cops.usdoj.gov/files/RIC/CDROMs/LEIntelGuide/pubs/BJAIntelLedPolicing.pdf">http://www.cops.usdoj.gov/files/RIC/CDROMs/LEIntelGuide/pubs/BJAIntelLedPolicing.pdf.
4International Association of Chiefs of Police, “IACP Releases National Summit on Intelligence Report,” press release, November 18, 2008, http://www.theiacp.org/PublicationsGuides/ResearchCenter/Publications/tabid/299/Default.aspx?id=1023&v=1 (accessed August 28, 2009).
528 C.F.R. Part 23, Criminal Intelligence Systems Operating Policies, minimal national guidelines.
6National Centre for Policing Excellence, “Practical Advice on Tasking and Co-Ordination,” for Centrex and the Association of Chief Police Officers, (2006).
7Laurence Miller, “Psychological Principles and Practices for Superior Law Enforcement Leadership,” The Police Chief 73, no. 10 (October, 2006): 160–167.
8John P. Crank and Michael A. Caldero, Police Ethics: The Corruption of Noble Cause (Cincinnati, OH: Anderson Pub., 2000); Ibid.
9See the 1975 Church Committee findings http://www.aarclibrary.org/publib/contents/church/contents_church_reports.htm and recent congressional hearings http://www.gpoaccess.gov/chearings/index.html and Statement of Caroline Frederickson, Director, American Civil Liberties Union Washington Legislative Office before the Subcommittee on Terrorism and Homeland Security Senate Committee on the Judiciary, “Protecting National Security and Civil Liberties: Strategies for Terrorism Information Sharing,” 111th Cong., 1st sess., April 21, 2009, http://www.fas.org/irp/congress/2009_hr/042109fredrickson.pdf (accessed August 28, 2009).
10Miller, “Psychological Principles,” 163.
11Ratcliffe and Guidetti, “State Police Investigative Structure.”
12Childs v. Dekalb County, 286 Fed. Appx. 687, 689 (11th Cir. Ga. 2008).
13Statement of Caroline Frederickson, April 21, 2009.
14American Civil Liberties Union of Colorado, “News: Complaints” (2002) http://www.aclu-co.org/news/complaints/complaint_spyfiles.htm (accessed August 28, 2009).
15COINTELPRO stands for Counter Intelligence Programs, which were run during the late 1950s through 1971 under the direction of J. Edgar Hoover when he was the Director of the Federal Bureau of Investigation. These programs targeted groups and individuals suspected of being subversive, such as the Communist Party; the women’s rights movement; members of the civil rights movement, such as Dr. Martin Luther King Jr.; and other groups and individuals.