By Michael Berkow, Deputy Chief of Police, Los Angeles, California
A CNN lead story in February 2004 should scare every police chief in America. The story is a military story-a member of the National Guard is alleged to have tried to pass military secrets to al Qaeda-but the implications for policing are profound.
American policing is well into the new post-September 11 era of new duties. Before the attacks, the world of counterterrorism, site security, and intelligence gathering was generally restricted to either the largest of police agencies or those departments that were responsible for specific identified threats. Most police agencies in the United States were neither trained to carry out these tasks nor focused on them.
Since the attacks, every agency in the United States regardless of size or location has accepted these new homeland security missions to some degree. Every agency has now added a counterterrorism mindset to their regular mission and is focused on building and enhancing that capability.
Historically the federal government has used local grant funding as one means of shaping local law enforcement. The federal government used the Crime Bill of 1994 and the resulting federal grants and the U.S. Office of Community Oriented Policing (COPS Office) to move police departments throughout the United States into community oriented policing over the last decade. Today, the federal government is funding state and local police to obtain terrorism-related equipment and training. The recent grant allocations clearly illustrate the change in direction to homeland security and counter terrorism expectations in the future. Indeed, local departments have already committed their most expensive and valuable resources and personnel to joint terrorism task forces run by the FBI. Local police involvement in homeland security and counter terrorism activities is today's reality.
Direct and Indirect Impact
Now, more than two years later, it is likely that September 11 will affect police internal affairs as well. The impact will be both direct and indirect. Direct impact occurs when officers are engaged in or supporting counterterrorist activities. The indirect impact is the concern over counterterrorism and intelligence functions in general and the interrelationship between these generalized concerns and the overall powers given to police agencies.
The infiltration of police departments by members of terrorist groups or their sympathizers is a real threat. It is important that police leadership begin to focus on and address the possible penetration of the law enforcement community in much the same manner as addressing intelligence-gathering and counterterrorism processes. To do less is to ignore the lessons of history. The unfortunate fact is that a few police officers have engaged in criminal activities in the past, and to protect against this threat policies, procedures, and technology must be in place while local police undertake the new homeland security missions.
Current precedents for concern over internal threats have been seen in the arrests of members of the U.S. armed forces for espionage activity; soldiers, translators, even pastors have been implicated in illegal activity in support of terrorists. Recent years have revealed the arrest of FBI agents as well as members of the Central Intelligence Agency for spying and collaborating with enemy governments and forces. Right-wing extremists and members of militia movements and supremacist groups and their sympathizers have infiltrated some local police departments. Considering that there are more than 800,000 local, state, and federal police officers, is it not likely that some of them may engage in terrorist activity or support the missions of terrorist groups?
Traditional intelligence identifies a variety of motives that lead members of the security forces to switch sides, to begin to work for the enemy. These include what the world of espionage calls MICE-money, ideology, compromise, and ego-the reasons why people become spies against their own government. There is every reason to believe that these same motives apply to police officers. This is especially true in light of the strong religious overtones in the current conflict. In many parts of the world, it is being described as a war between the West and Islam. Some moderate Muslims feel under attack and threatened.1
Identifying Illegal Activities
There are a variety of ways that police employees could be identified as engaging in illegal or improper activity in this arena. The identification methods tend to parallel traditional corruption activity that most departments have already experienced. For example, federal agencies, using electronic monitoring and intercept abilities overseas, may find U.S. police employees calling numbers or communicating via e-mail with known terrorists or terrorist-affiliated locations and persons. This is similar to the "run-acrosses" that occur on domestic drug-related wiretaps or surveillance where a member of the police department turns up in a place or manner that suggests a possible connection with either criminals or criminal activity. Indeed, as the scope of domestic surveillance related to terrorism increases, it is likely that police employees will come into the surveillances in unexpected ways. Many of these unexpected encounters may be legitimate, but all will need to be evaluated.
Another way that a police employee may surface is via the various computer systems and databases that every police department relies on daily to carry out normal operations. Police departments have access to national databases of the National Crime Information Center (NCIC) and the National Law Enforcement Telecommunication System (NLETS) and many other systems such as their state motor vehicle records, criminal warrant records, and wanted information. Suspected terrorists (persons suspected of terrorist-related activities) are flagged in various systems, and when anyone attempts to "run" them an alert identifying the inquiry is sent to the agency with responsibility for the investigation. The question then requires some investigation: Did the police officer running the suspected person have a legitimate right to know and a need to know? Were they conducting a legitimate investigation or not?
Again, the parallels to previous criminal cases involving police officers in the United States are relevant. For example, there have been cases where officers engaged in drug trafficking would run a monthly computer check on coconspirators' arrest records to ensure they had not been arrested and perhaps decided to cooperate with authorities.
Finally, an informant-either an active, cooperative informant or a person arrested and willing to work for the police in return for consideration-could uncover an officer engaged in terrorist related activities. Again, it must be noted that some officers have been identified as corrupt in these circumstances. Based on this history, preparation to identify corruption in this new war on terrorism is a responsibility of the agencies engaged in homeland security.
Internal Investigative Considerations
There are new and important investigative considerations for these types of internal investigations. If surveillance is to be used, it is not enough for license plates of surveillance vehicles to be registered as confidential. A suspected police officer under surveillance can run the license plate number of a vehicle he spotted, and he would be immediately alerted to the possibility of a surveillance if the registration information indicated either a police address or was classified confidential. Rather, arrangements must be made for a variety of covert addresses and the registration to match.
Although secrecy and security are important in the normal police misconduct investigation, they assume absolutely essential roles in the investigation of a possible police terrorist suspect. Depending on the role, rank, and tenure of the affected employee and the size of the local jurisdiction, it is likely that the suspect officer will know many of the investigators and surveillance officers. Therefore it is critical either to have a pool of investigators who are not well known in the department or to use mutual aid investigators from another agency whom the suspect is not likely to know.
Within the Los Angeles Police Department, for example, a select group of sworn employees have been created to address these investigative realities. These employees, called "650 status" officers, are not allowed to enter police facilities; they take their training at remote, off-site locations, and their names do not appear on internal departmental records. Although this group was created to investigate normal police misconduct, the concepts are equally applicable to an investigation of a potential police terrorist suspect and are extremely useful for surveillance, even of a nonpolice terrorist suspect.
Data Collection and Protection Concerns
The postmortem examinations of September 11 events have made clear to law enforcement communities the shortfalls of disparate, noncommunicative databases. Experts agree that in every known attack, there were early indicators. In response to the gaps in the law enforcement databases, there has been a strong push for increasing the size and scope of these databases, putting more information into these databases and connecting disparate databases so that a fuller, more complete picture of a suspect can be assembled. Both changes have created significant opposition and raised serious concerns about privacy.
The USA Patriot Act is an excellent example of this issue. The Patriot Act has a number of provisions that increase government's ability to collect data on a suspect. The response has been significant, with numerous individuals and organizations expressing strong resistance to this increased data collection. More than 200 cities have passed resolutions against the Patriot Act even as the current federal administration seeks ways to build support for the act and the ability of law enforcement to investigate terrorism.2
This increase in concern is broad and generalized, and it affects other traditional police misconduct that had previously been characterized as minor. The most glaring example is the misuse of police computer systems and databases. Historically, officers have accessed police databases for myriad improper purposes, ranging from running the vehicle registration of an attractive motorist to seeking names and information in connection with a private investigation business.
Improper and illegal use of official law enforcement databases in the past has rarely been pursued as a crime by the affected department, and administrative discipline has often placed these violations at the low end of the penalty scale. Two factors combine to suggest that police management must change this: the real need for law enforcement to have better, stronger, and more comprehensive databases, and the public's legitimate concerns about privacy and official misuse of the enhanced databases.
The Los Angeles Police Department has undertaken a change in its approach to these misuses of the databases. First, a clear statement of the law and the change in policy was communicated to the entire department. A department-wide video was distributed that explained both the law and management's approach to any future violations. It was expressly acknowledged that this was a change in policy and that these violations had, in the past, been treated as minor.
Contact was made with the district attorney and federal prosecutors to enlist their support in making appropriate prosecutions of violators. The internal ability to search databases for violations was reviewed, and plans to strengthen and streamline investigative searches are under way. Training on both the databases themselves and the criminal violations associated with improper usage were provided to internal affairs investigators. In short, a total organizational commitment to the change in policy with efforts at prevention, detection, investigation, and, ultimately, prosecution was undertaken. Good, proactive management would suggest that these steps are needed throughout law enforcement.
Widespread Sharing of Information
A final area of immediate concern relates to the increased size and scope of joint terrorist task forces. Since September 11, 2001, local law enforcement has been demanding that the federal government generally, and the FBI specifically, share intelligence. In its starkest and simplest terms, nonfederal agencies perceive the federal agencies to have sensitive, relevant information and the local police want it now to protect their communities. The result of this pressure has been an increase in the issuance of federal security clearances, an increase in the sharing of sensitive and classified material and an increase in the number of local law enforcement officers working as members of federal counterterrorism task forces. With this necessary sharing, the potential for leaks of classified material clearly increases.
With increasingly better information sharing, it is essential that the local agencies develop a necessary appreciation for handling, managing, and using classified information and an acceptance of the responsibility that accompanies access to this information. Leaks, by anyone, of classified information will probably implicate federal criminal statutes and local enforcement should be prepared to assist in and perhaps be the subject of such investigations.
Finally, the FBI should not be overlooked as a critical resource when the need arises for an internal counterterrorism investigation. The hard reality is that the FBI's experience with internal compromises has caused them to address the surveillance and investigation of law enforcement employees and all of the security issues that entails. They have successfully investigated and removed employees guilty of these crimes, and that real-world experience truly sets them apart from local law enforcement at this time.
Beyond the practical and pragmatic reasons for turning to the FBI for assistance is the additional reality that if a police employee engages in misconduct in support of terrorism then the FBI would have a jurisdictional basis pursuant to both the federal criminal code and various presidential executive orders and should be involved.
Preparing for Future Unintended Consequences
The changes that have been forced on law enforcement as a result of the terrorist attacks are dramatic, far-reaching, and ongoing. No one in policing yet knows where this new and expanded mission will take the profession. One thing is clear: there will be unintended consequences of these additional duties and sources of information. Law enforcement executives need to be mindful of the issues raised in this article and clearly recognize there will be an impact on the internal operations and on the potential misconduct-administrative and criminal-that police officers may engage in. Police leaders need to develop appropriate prevention and investigative measures to combat these new possibilities, and this needs to be done quickly. A police officer engaged in terrorist activities or supporting terrorists with information and advanced warning is a chilling prospect and one that police leaders need to be mindful of.
1 Although it is easy to be dismissive of the various conspiracy theories about different terrorist events, the hard reality is that in the rest of the world these theories are thriving. The author was in Kenya in November 2003 and spoke with members of an educated, wealthy Turkish family days after the bomb blasts directed against the British in Istanbul. These Turks, educated and living part-time in the United States, explained that the blasts were carried out by either Israel or the United States as a method to push Turkey to support U.S. interests. They called the suggestion that al Qaeda had carried out these attacks "stupid.".
2 American Civil Liberties Union, "Largest City in America Passes Pro-Civil Liberties Resolution; New York City Becomes 250th to Join Call to Keep America Safe and Free," press release, February 4, 2004, (www.aclu.org/SafeandFree/), April 21, 2004.