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                               before the


                                 of the

                        HOUSE OF REPRESENTATIVES


                             FIRST SESSION


                             MARCH 18, 2009


                            Serial No. 111-9


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               Bennie G. Thompson, Mississippi, Chairman
Loretta Sanchez, California          Peter T. King, New York
Jane Harman, California              Lamar Smith, Texas
Peter A. DeFazio, Oregon             Mark E. Souder, Indiana
Eleanor Holmes Norton, District of   Daniel E. Lungren, California
    Columbia                         Mike Rogers, Alabama
Zoe Lofgren, California              Michael T. McCaul, Texas
Sheila Jackson Lee, Texas            Charles W. Dent, Pennsylvania
Henry Cuellar, Texas                 Gus M. Bilirakis, Florida
Christopher P. Carney, Pennsylvania  Paul C. Broun, Georgia
Yvette D. Clarke, New York           Candice S. Miller, Michigan
Laura Richardson, California         Pete Olson, Texas
Ann Kirkpatrick, Arizona             Anh ``Joseph'' Cao, Louisiana
Ben Ray Lujan, New Mexico            Steve Austria, Ohio
Bill Pascrell, Jr., New Jersey
Emanuel Cleaver, Missouri
Al Green, Texas
James A. Himes, Connecticut
Mary Jo Kilroy, Ohio
Eric J.J. Massa, New York
Dina Titus, Nevada
                    I. Lanier Avant, Staff Director
                     Rosaline Cohen, Chief Counsel
                     Michael Twinchek, Chief Clerk
                Robert O'Connor, Minority Staff Director



                     Jane Harman, California, Chair
Christopher P. Carney, Pennsylvania  Michael T. McCaul, Texas
Yvette D. Clarke, New York           Charles W. Dent, Pennsylvania
Ann Kirkpatrick, Arizona             Paul C. Broun, Georgia
Al Green, Texas                      Mark E. Souder, Indiana
James A. Himes, Connecticut          Peter T. King, New York (Ex 
Vacancy                                  Officio)
Bennie G. Thompson, Mississippi (Ex 

                    Thomas M. Finan, Staff Director
                        Brandon Declet, Counsel
                   Natalie Nixon, Deputy Chief Clerk
               Deron McElroy, Minority Subcommittee Lead

                            C O N T E N T S



The Honorable Jane Harman, a Representative in Congress From the 
  State of California, and Chair, Subcommittee on Intelligence, 
  Information Sharing, and Terrorism Risk Assessment.............     1
The Honorable Michael T. McCaul, a Representative in Congress 
  From the State of Texas, and Ranking Member, Subcommittee on 
  Intelligence, Information Sharing, and Terrorism Risk 
  Assessment.....................................................     3
The Honorable Bennie G. Thompson, a Representative in Congress 
  From the State of Mississippi, and Chair, Committee on Homeland 
  Security.......................................................     4

                                Panel I

Commander Joan T. McNamara, Los Angeles Police Department:
  Oral Statement.................................................     6
  Prepared Statement.............................................     8
Sheriff Douglas C. Gillespie, Las Vegas Metropolitan Police 
  Oral Statement.................................................    10
  Prepared Statement.............................................    12
Mr. Gary L. Edwards, Chief Executive Officer, National Native 
  American Law Enforcement Association (NNALEA):
  Oral Statement.................................................    17
  Prepared Statement.............................................    19
Chief John W. Gaissert, Commerce, Georgia, Police Department:
  Oral Statement.................................................    23
  Prepared Statement.............................................    24

                                Panel II

Ms. Caroline Fredrickson, Director, Washington Legislative 
  Office, American Civil Liberties Union:
  Oral Statement.................................................    39
  Prepared Statement.............................................    40
Mr. Gregory T. Nojeim, Director, Project on Freedom, Security & 
  Technology, Center for Democracy & Technology:
  Oral Statement.................................................    48
  Prepared Statement.............................................    50
Ms. Kate Martin, Director, Center for National Security Studies:
  Oral Statement.................................................    58
  Prepared Statement.............................................    59



                       Wednesday, March 18, 2009

             U.S. House of Representatives,
                    Committee on Homeland Security,
    Subcommittee on Intelligence, Information Sharing, and 
                                 Terrorism Risk Assessment,
                                                    Washington, DC.
    The subcommittee met, pursuant to call, at 10:05 a.m., in 
Room 311, Cannon House Office Building, Hon. Jane Harman [Chair 
of the subcommittee] presiding.
    Present: Representatives Harman, Carney, Clarke, Green, 
Thompson (ex-officio), McCaul, Dent, Broun, and Souder.
    Ms. Harman. The subcommittee will come to order.
    Good morning, everyone. We are meeting today to receive 
testimony on homeland security intelligence, its relevance, and 
its limitations.
    Last summer, Shirwa Ahmed, a U.S. citizen, traveled from 
his home in Minneapolis, Minnesota, to Somalia. In October, he 
got into a truck filled with explosives, drove to the north of 
that country, and blew himself up, killing as many as 30 other 
people. According to the FBI, Mr. Ahmed is the first known U.S. 
citizen to conduct a suicide bombing overseas. Several of his 
friends from Minneapolis also left the country for Somalia last 
summer. They are presently unaccounted for.
    Last month, Ahmadullah Sais Niazi, a Tustin, California, 
man of Afghani origin, appeared in Federal court to answer 
charges that could send him to prison for decades. He failed to 
mention when he applied for U.S. citizenship several years ago 
that his brother-in-law, Amin al-Haq, is an al Qaeda terrorist, 
Osama bin Ladin's bodyguard to be exact. The United Nation's 
Security Council identified Mr. Niazi's brother-in-law as an al 
Qaeda operative in March, 2001; and the U.S. Government 
designated him as a specially designated global terrorist 
shortly after 9/11.
    At Mr. Niazi's bail hearing several weeks ago, an FBI agent 
testified that the Bureau had recent recordings of Mr. Niazi 
referring to funding Afghan Mujihadin and blowing up vacant 
buildings. On those tapes, Mr. Niazi also reportedly describes 
Osama bin Ladin as ``an angel''.
    In December of last year, Fahim Ahmid was named as a co-
conspirator in a terrorism case in Atlanta that included plans 
to attack military bases, oil storage facilities, and 
refineries in the United States. Mr. Fahim is an alleged 
ringleader of the Toronto 18, a group of Canadian youth that in 
2005 had planned to attack Parliament buildings, detonate truck 
bombs, and behead the Canadian Prime Minister.
    According to the indictment, Mr. Fahim met in early 2005 
with two American citizens who came to visit him to discuss 
traveling to Pakistan to receive paramilitary training with 
Lashkar-e-Taiba. We all remember that they were associated with 
the recent Mumbai incidents. Among Lashkar-e-Taiba's exploits 
was the massacre in Mumbai.
    Imagine a Mumbai in Minneapolis or Tustin or Atlanta. In 
each of these American hometowns, local law enforcement 
officers are first preventers, who are sitting in front of us, 
walk the beat every day as part of their traditional work of 
preventing, investigating, and prosecuting crime, which brings 
me to a simple question: While we want police and sheriffs' 
officers Nation-wide to keep their community safe from 
traditional bad guys, don't we want them also to know about 
potential terrorists in their midst who mean us harm?
    That is what homeland security intelligence is all about: 
getting accurate, actionable, and timely information to the 
officers in our hometowns so they know who and what to look for 
in order to prevent the next 9/11.
    If homeland security intelligence is done the right way--
let me stress this again, because we have a second panel that 
is going to address what the ``right way'' is--if homeland 
security intelligence is done the right way, countless lives 
can be saved. If patrol officers know what everyday materials 
terrorists might purchase to build IED, law enforcement can 
meet with store owners and share this information and invite 
tips that might warrant further information.
    As we are going to hear in a moment from one of our 
witnesses, if they know what ricin looks like--ricin, a very 
deadly agent, as we all know, which was discovered recently in 
Las Vegas--they can prevent a ricin attack.
    If those same officers know what crimes terrorists are 
committing to finance their activities, they can dig deeper 
into otherwise routine investigations to see if they can come 
across terrorism dots that need connecting.
    If our first preventers know what kinds of homeland attacks 
are most likely to occur in the next 2, 4, 5, 6 years, 
moreover, they can train appropriately, deploy efficiently, and 
prepare more thoroughly to meet anticipated threats.
    But let us not fool ourselves. If homeland security 
intelligence is done the wrong way, then what we will have is 
what some who will testify on the second panel have called the 
``thought police''; and we will be the worse for it.
    The National Applications Office is a glaring example, in 
my view, of a homeland security intelligence program gone 
wrong. Before Congress fenced its funding, the NAO would have 
tasked military satellites with providing imagery for homeland 
security and law enforcement purposes. Although the NAO may 
have been created with good intentions, the Department of 
Homeland Security did not create a clear legal framework 
outlining the office's power. Instead, it created what lawyers 
like me call a slippery slope for potential abuses, and U.S. 
law enforcement officials haven't requested this additional 
ability. So I hope that Secretary Napolitano follows my advice 
and the advice of some other Members here and closes that 
office permanently.
    My goal in this Congress is to get DHS, the FBI, and other 
Homeland Security officers where they need to be to disrupt 
terror plots and protect American lives. I am not new to the 
arguments about homeland security intelligence, but I want this 
hearing to focus attention on the debate. This is something I 
think is very important. I wish we had done it in the last 
Congress, but we are doing it as our first hearing now.
    As the second panel will recognize in testimony today, we 
need clear definitions about what we are doing, we need 
transparency and a process to hold people accountable, and we 
need to shut down what doesn't work and what we know can't 
work. The rule of law must always apply.
    So this hearing is a starting point for talking with some 
of those who fight this fight every day--thank you for your 
service--and are trying to do homeland intelligence right. It 
is also our starting point for those who are concerned that we 
are not doing things right enough and who have good ideas about 
how to get on a better track.
    I welcome all of our witnesses and look forward to our 
testimony; and I now yield to the Ranking Member, Mr. McCaul, 
for his opening statement.
    Mr. McCaul. Thank you, Madam Chair, and let me say how much 
I look forward to working with you on this subcommittee.
    I remember meeting with the Minister of Security in Israel 
who said, we defeat the terrorists through intelligence. Good 
intelligence, that is probably the most important weapon we 
have on this war on terror.
    Let me also thank the witnesses for being here today. I 
know you have busy schedules. Your work is essential to our 
frontline homeland security efforts, and we welcome you to this 
    When I worked on the Joint Terrorism Task Force in my home 
State of Texas, I saw first-hand how important information 
sharing and collaboration is between all levels of government. 
An effective homeland security intelligence capability requires 
that key State, local, and tribal law enforcement at least be 
integrated into the homeland security enterprise. They are our 
Nation's first preventers, as the Chair already said. You are 
the eyes and the ears, and your participation in the 
intelligence process is critical to preventing further attacks.
    To illustrate this point, shortly before 9/11, three of the 
highjackers were separately intercepted for traffic offenses by 
local law enforcement. In fact, Mohammad Atta, the leader of 
the 9/11 operation who piloted one of the planes that crashed 
into the Twin Towers, was stopped and fined in Florida for 
driving without a valid driver's license. Atta did not pay the 
fine, and a warrant was issued for his arrest. However, he was 
let go several weeks later when he was once again stopped for 
speeding, as the officer who stopped him was not aware of this 
    Had an integrated intelligence enterprise with State and 
local law enforcement participation existed prior to 9/11, we 
may have had a chance at intercepting and detaining him before 
the dreaded 9/11 attacks.
    While this State and local picture is essential, homeland 
security intelligence is incomplete without a robust Federal 
picture as well. A large part of that picture is provided by 
DHS. In fact, according to DHS, in fiscal year 2008, the Office 
of Intelligence and Analysis responded to over 1,200 Federal 
requests for information. This is compared to approximately 
1,700 from State, local, and tribal sources. This illustrates 
that, while I&A is a key resource for locals, it is also relied 
upon by many Federal agencies as well.
    A comprehensive intelligence picture, including border 
data, immigration information, and transportation security 
information, is essential to defending our homeland. By 
properly adding the State, local, and tribal perspectives, DHS 
can provide or help provide a truly comprehensive picture of 
the threats that we face as a Nation.
    I look forward to the testimony and the critical work of 
this subcommittee. I look forward to building a stronger, more 
robust Office of Intelligence and Analysis that serves all of 
its partners that is consistent with our constitutional rights.
    I thank you, Madam Chair.
    Ms. Harman. Now I will recognize the Chairman of the full 
committee and welcome him to our subcommittee hearing; Mr. 
Thompson, for opening remarks.
    Mr. Thompson. Thank you very much, Madam Chair; and let me 
also welcome our witnesses in the first panel here today.
    Also, Madam Chair, I am pleased that we are getting back to 
basics by addressing what homeland security intelligence is and 
what DHS's mission in developing it should be.
    In many ways, DHS's Office of Intelligence and Analysis is 
at a crossroads. That is a good thing, because a crossroads is 
a place where new directions can be taken, and that is exactly 
what is needed at I&A. Secretary Napolitano has promised that 
DHS going forward would partner better with State, local, 
tribal, and private sector stakeholders. For its part, I&A, 
therefore, should stop with its typical top-down approach to 
intelligence and start putting State, local, tribal, and 
private sector needs first. Refocusing I&A as a national fusion 
center with strict privacy and civil liberties protections in 
place would be a step in the right direction.
    Put simply, Madam Chair, I&A must make it a priority to 
analyze relevant State, local, tribal, and private sector 
information and compare it with national intelligence. In doing 
so, it would be uniquely able to connect the dots and create 
situational awareness of both near-term and long-term threats 
to the homeland.
    Constitutional safeguards, in turn, must be the starting, 
middle, and end points of this effort. Without them, it would 
be a worrisome and wasted one.
    I look forward to the witnesses' testimony, Madam Chair, on 
all of these points; and welcome, again, to all of the 
    Ms. Harman. I thank the Chairman of the full committee and 
fully endorse his comments about a new role and new focus for 
    I just want our witnesses to know that some of us on this 
committee have pushed as hard as we can to get Secretary 
Napolitano to name someone from State or local law enforcement 
as the head of I&A. The Chairman just said ``absolutely.'' I 
believe she is going to name a deputy from State or local law 
enforcement, but I want to say, on the record, that I am 
disappointed. I think it is a huge missed opportunity to send a 
new signal about the function of intelligence at the Department 
of Homeland Security.
    Our Members are reminded that, under the committee rules, 
opening statements may be submitted for the record; and I now 
welcome our witnesses this morning.
    Our first witness, from my hometown, is Commander Joan 
McNamara, a 27-year veteran of the LAPD, where she presently 
serves as Assistant Commanding Officer of the Counter Terrorism 
and Criminal Intelligence Bureau. Commander McNamara developed 
both the threat stat analytical model and the system of 
suspicious activity reporting that I believe holds tremendous 
promise, if implemented correctly, for homeland security 
intelligence. Her SAR initiative is being adopted Nation-wide 
to identify and share counterterrorism information related with 
State, local, and tribal Federal partners.
    Commander McNamara has had numerous other accomplishments 
with the LAPD as commanding officer of the Los Angeles harbor 
area. She spearheaded unique efforts to combat crime in the 
Wilmington Ghost Town area, a neighborhood that has been 
plagued with violent crime, gang, and narcotics activity for 30 
years. During her leadership of the Newton Patrol Division, she 
likewise oversaw an unprecedented reduction in crime.
    Commander McNamara has also initiated several highly-
successful community-based youth programs in Los Angeles.
    Our second witness, Sheriff Doug Gillespie, is a 28-year 
veteran of the Las Vegas Metropolitan Police Department. He 
serves as the chairman of the Major Cities Chiefs Association's 
Homeland Security Committee and as vice president of the Major 
County Sheriffs Association. During his tenure, Sheriff 
Gillespie has placed considerable emphasis on addressing the 
terrorist threat at the local level.
    His department includes a Homeland Security Division that 
includes a newly-created Homeland Security Bureau, along with 
an existing Vice and Narcotics Bureau.
    Sheriff Gillespie has likewise committed additional 
personnel to the Southern Nevada Task Force. He has also 
advanced a newly-created counterterroism section within his 
department in coordination with his existing criminal 
intelligence technical and surveillance and special 
investigations sections. Sheriff Gillespie has also developed 
an all-hazard ARMOR response unit and emergency management 
section to more accurately identify, prevent, and respond to 
terror and other threats.
    Our third witness, Gary Edwards, is the Chief Executive 
Officer of the National Native American Law Enforcement 
Association, a nonprofit public service association which 
advocates for Native American law enforcement professionals 
Nation-wide. Mr. Edwards serves on a number of national Federal 
advisory committees and task forces, including the Interagency 
Threat Assessment Coordination Group, the ITACG, Advisory 
Council; and the National Center for State and local Law 
Enforcement Training Advisory Committee, SALTAC; and the 
regional Four Corners Homeland Security Commission.
    Mr. Edwards is currently a recently retired deputy 
assistant director of the United States Secret Service, where 
he served for 28 years. During his tenure with the Secret 
Service, Mr. Edwards worked in the Office of Human Resources 
and Training, the Office of Inspection, and the Office of 
Government and Public Affairs. His career was replete with 
service and merit awards and honors.
    Our next witness, John Gaissert, is Chief of Police for the 
city of Commerce, Georgia.
    Mr. Broun, I will let you do the honors to introduce him.
    Mr. Broun. Thank you, Chair Harman; and thank you, Ranking 
Member McCaul.
    Today, I have the honor of introducing my friend, the Chief 
of Police in Commerce, Georgia, Chief Gaissert. Chief Gaissert 
has a 35-year career in the military, law enforcement, as well 
as corporate experience. During his career, he has served with 
distinction in uniform patrol, special operations, and criminal 
investigation units. During the 1996 Centennial Olympic Games 
in Georgia, Chief Gaissert performed the demanding task of 
operations' officer for the Athens Clark County Police 
Department and offered the operational plan supporting the 
    Chief Gaissert obtained level 5 certification in homeland 
security from the American College of Forensic Examiners. He 
serves as Department of Homeland Security liaison for the 
Sheriff of Jackson County, Georgia, and chairs the County 
Threats Assessment Committee.
    Chief Gaissert completed a law enforcement exchange program 
in counterterrorism with Israeli National Police and was 
awarded executive certification in counterterrorism from ICT, 
the Lauder School of Government in Israel.
    Chief Gaissert was recalled to active duty during the 
Persian Gulf War and retired from the U.S. Navy at the rank of 
    I have the pleasure of introducing my good friend, Chief 
    Ms. Harman. Without objection, the witnesses' full 
statements will be inserted in the record.
    I now ask Commander McNamara to summarize her statement in 
5 minutes, and we will try to be quite vigilant about the 
clock--I assume you can see it--because that will give us more 
time for interaction with Members.
    As you know, we have a second panel. Let me urge that you, 
in particular, stick around for the second panel, because a 
number of our witnesses want to address your initiatives.


    Ms. McNamara. Madam Chair, Ranking Member McCaul, Members 
of the subcommittee, thank you for this opportunity to appear 
before you today.
    I have been asked to discuss efforts by the LAPD to gather, 
document, review, analyze, and share terrorism-related 
Suspicious Activity Reports, or SARs, and to describe to you 
how these efforts relate to the national SAR Initiative.
    In my written testimony, I have provided the subcommittee 
background on both the Nation-wide SAR Initiative and the LAPD 
SAR program. Instead of restating that today, I respectfully 
request that my prepared statement be accepted into the record.
    Ms. Harman. Without objection, all of your prepared 
statements are accepted into the record.
    Ms. McNamara. Thank you, Madam Chair.
    In my limited time this morning, I would like to address 
two questions that I believe are fundamental to today's 
hearing: First, does SAR's process directly enhance the ability 
of local police to protect our communities from violent crime, 
including terrorism? Second, can the SAR process be carried out 
in a manner that protects privacy, civil liberties, and the 
civil rights of all Americans?
    I believe the answer to both of these questions are a 
resounding yes.
    Protecting our communities. While our program is relatively 
new, we are already seeing results. The LAPD SARs statistics 
are as follows: We have 1,374 SARs in process. Of those, we 
have made four arrests. Fifty-one of those have been sent over 
to the Joint Terrorism Task Force for follow-up; and, in my 
opinion, while the number of investigation and arrests are 
important, they are almost secondary to a newfound ability to 
connect events that in the past would have appeared unrelated.
    For example, prior to SAR, when a suspicious package call 
was received by the LAPD, our bomb squad would respond. If the 
package was determined to be nonexplosive device, the bomb 
squad would then call clear, and then no further analysis was 
done. Today, the bomb squad also completes a Suspicious 
Activity Report, and through the process we are now able to map 
all bomb calls in the city of Los Angeles. This paints an 
amazing picture in real time and over time.
    Other cities are implementing the SAR process and are 
seeing similar results.
    Let me address the second part, the privacy and civil 
    The second question I would like to address is whether the 
SAR process can be carried out in a manner that protects 
privacy, civil liberties, and civil rights. As I have stated 
previously, I believe the answer to this question is ``yes'' as 
well. In almost 8 years following the 9/11 attacks, we have 
sought to engage frontline law enforcement officers in the 
event to prevent future terrorist attacks. Until now, 
information and training provided to these frontline officers 
was superficial and was not tailored in advance to the changing 
roles from first responders to first preventers. Nor was there 
a reporting mechanism in place.
    The SAR Initiative is important because now, for the first 
time, we are able to train our frontline personnel regarding 
behaviors associated with terrorism-related crime and providing 
them the information they need to distinguish between behaviors 
that are reasonably associated with criminal activity and those 
that are not.
    Let me be very clear today: Not every person wearing a 
trench coat is a robber, not every person loitering on a corner 
is a drug dealer, and not every person taking a picture of a 
monument today is a terrorist.
    As a law enforcement executive, I do not want my officers 
involved with confrontational interactions with innocent people 
engaged in innocent activities. I do not want to fill them or 
fill my systems with information regarding innocent people 
involved in innocent activities. I do not want my officers 
making stops based on race, their ethnicity, or religious 
    My officers, investigators, and analysts have been trained 
on behaviors and indicators associated with criminal activity. 
I have put into place clear policies regarding interactions and 
how they are to be handled and how information about those 
contacts and calls for service should be handled.
    It means putting in place privacy and civil liberty 
protections. It means reminding our officers that it is 
inappropriate to collect information regarding people engaged 
in constitutionally protected activities when there is no nexus 
to criminal activity. Finally, it means holding people 
accountable when they violate these rights and policies.
    This is what LAPD SAR process is all about. This is what 
the Nation-wide SAR process initiative seeks to place across 
the Nation. This is what we need to do if we are going to 
reduce the number of inappropriate police-citizen contacts.
    There are some who will tell you today that we don't need a 
SAR process. I will tell you they are missing the point. The 
SAR process isn't about asking officers to collect a new type 
of information. It is about information that they have already 
gathered in the course of their day-to-day business. But the 
process ensures that we carry out their first preventers' 
response and abilities in a manner that protects privacy, civil 
liberties, and rights.
    Ms. Harman. Could you summarize at this point?
    Ms. McNamara. In closing, the Nation-wide SARS initiative 
has brought together Federal, State, local, and tribal 
officials as well as representatives from the privacy and civil 
liberties communities in a way that I have not seen in my 27 
years. While the effort is still young, those of us involved 
are convinced, through it we will be better able to protect our 
communities from crime, including terrorism, and safeguard the 
privacy, civil liberty, civil rights of people we are sworn to 
protect and serve.
    [The statement of Ms. McNamara follows:]
                 Prepared Statement of Joan T. McNamara
                             March 18, 2009
    Madam Chair and Members of the committee. Thank you for the 
opportunity to be here with you, to describe the tremendous progress 
achieved by local law enforcement toward the integration of counter-
terrorism efforts into the day-to-day work by local law enforcement to 
protect our communities from crime and violence.
    The role of local police in counter-terrorism efforts has become 
more clearly defined over the past 8 years. Front-line officers, with 
their intimate knowledge of their communities and their keen 
observational skills, have traditionally been thought of as first 
    That perception changed with the 9/11 terrorist attacks. 
Policymakers, law enforcement executives and others increasingly called 
for police to be redefined as ``first preventers'' of terrorism and the 
emphasis at the local level shifted from response to prevention. Local 
police were now considered an integral part of efforts to protect the 
Nation from a variety of threats--including that posed by domestic and 
international terrorist. Local law enforcement are now considered an 
integral part of our ``national security'' effort. In the years 
following the 9/11 attacks, enhanced collaboration and revolutionary 
new sharing protocols had been forged with Federal partners to increase 
knowledge, awareness, and information flow. Still, a critical gap 
existed in the information-sharing cycle.
    Tasking local law enforcement with the policing of traditional 
crime and the prevention of terror attacks in their local jurisdictions 
constituted a dramatic paradigm shift, both for the Federal Government 
and for the local and State agencies themselves. If this shift in 
established thought and practice were to be successful, it would 
require law enforcement agencies Nation-wide to adopt universal 
guidelines for effective communication with Federal partners and 
information-sharing. This was far easier said than done. There was no 
system in place at any level to facilitate this crucial and necessary 
    The Suspicious Activity Reporting (SAR) program was the Los Angeles 
Police Department's answer to this problem and now serves as a national 
model for the American law enforcement community as it is being 
institutionalized through the Nation-wide SAR Initiative (NSI). The 
underlying premise of SARs is very simple: A police officer's 
observation and reporting of just one of these events could be the 
vital ``nugget'' of information needed to focus attention in the right 
place, or to connect seemingly unrelated dots and predict or prevent a 
terrorist act. The SAR program takes the emphasis off of the racial or 
ethnic characteristics of individuals and places it on detecting 
behaviors and activities with potential links to terrorism-related 
criminal activity. Coupled with extensive training this approach 
ensures that citizens' civil and privacy rights are protected.
    The foundation to the SAR program is built upon behaviors and 
activities, which have been historically linked to pre-operational 
planning and preparation for terrorist attacks. They include actions 
such as: acquiring illicit explosive material; taking measurements or 
drawing diagrams; abandoning suspicious packages or vehicles; and 
testing security measures.
    This is the first program in the United States to create a national 
standard for terrorism-related Modus Operandi (MO) codes. By creating 
and assigning numbers, or codes, to the terrorism-related behaviors, 
terrorist activities can be tracked by date, time, and location, just 
as other crimes are currently tracked. With the advent of coding, an 
agency's records management system has been transformed into a valuable 
and viable terrorism prevention tool.
    When the preliminary information contained on a SAR report is 
analyzed using these codes, the system can be utilized to map, chart, 
and graph suspicious behaviors, and allows counter-terrorism personnel 
to run specific queries based on a particular behavior, location, or 
time frame in order to identify emerging patterns. The eventuality of a 
Nation-wide application of this behavioral coding and uniform reporting 
and tracking method will provide the revolutionary basis for linking 
behaviors and indicators and revealing emerging patterns for terrorist 
throughout the United States. These standardized codes also enable 
local agencies across the country to share information in a systematic 
and uniform fashion that enables trends, spikes, and patterns to be 
identified and placed in a national context. The SAR methodology has 
the potential to revolutionize how American law enforcement reveals the 
emerging patterns of terrorism-related indicators and behaviors. In 
addition, these SARs provide police with the capability to search 
through previously reported suspicious activity and identify important 
links to behavior that might otherwise be overlooked. This ability to 
query is crucial to law enforcement's ability to successfully analyze 
and synthesize information and to produce actionable intelligence 
toward prevention.
    Fusing the SARs-related information with an ``all crimes'' picture 
provides decisionmakers with: the statistical support they need to 
allocate resources and police officers in a more strategic way; closes 
gaps in training, investigation, enforcement and protection; and 
reveals potential patterns that extend beyond the region to the rest of 
the country and, potentially, overseas. Once information is shared 
vertically and horizontally throughout the region and Nation, 
activities previously viewed as having happened in isolation can be 
placed in a national context.
                      privacy and civil liberties
    In the process of creating the SARs program, the Los Angeles Police 
Department has had the privilege of working closely with privacy and 
civil liberty groups on both the local and the national initiatives. We 
have collaborated to create a comprehensive and transparent process 
that strikes an important balance between the safety of our communities 
and the proper constitutional protections. The concerns that the 
Nation-wide SAR Initiative will lead to increased police interactions 
with individuals involved in innocent First Amendment-protected 
behaviors are diminished with the transparency of the program. Closer 
evaluation of the SAR process highlights layers of scrutiny which 
includes vetting, auditing, and the un-founding of SAR reports that do 
not meet set standards. Training provided to front-line and analytic 
personnel is designed to enable them to distinguish between behaviors 
associated with criminal activity and those behaviors that are innocent 
or constitutionally protected. As the SAR process gains momentum, we 
remain committed to collaboration with advocacy groups for the accurate 
development and expansion of the Nation-wide SAR Initiative.
              role of the department of homeland security
    As the National SARs Initiative moves forward, it should be noted 
that the successful institutionalization of the National SAR Initiative 
has the potential to significantly enhance the Department of Homeland 
Security's ability to work with State and local partners to identify 
and mitigate a range of emerging threats to the homeland. But the DHS 
Office of Intelligence & Analysis, which serves as the analytic hub for 
all information and intelligence generated by the DHS work force, 
currently has no mechanism for gathering and analyzing SARs generated 
by individual DHS components. It also lacks a mechanism to blend those 
SARs with others generated by Federal, State, and local entities.
                    sars and the national landscape
    The SARs program is representative of the tremendous strides that 
local law enforcement has made in the area of counter-terrorism. The 
SARs program enables police to paint their own rich picture of what is 
happening ``on the ground'' in their communities in relation to 
terrorism, rather than relying solely on their Federal partners for 
information. This goes a long way toward closing what were previously 
wide gaps in information sharing. The program also makes local law 
enforcement agencies stronger partners in the national effort to 
prevent terrorism and other crimes on U.S. soil. It essentially flips 
the age-old paradigm in which information is pushed from the Federal to 
the local level with very little push the other way. Now local police 
departments are valuable players in the information-sharing process and 
are increasingly relied upon to provide their Federal partners with an 
accurate picture of what is happening at the local level.
    Fusion centers also stand to benefit from the SARs program. Reports 
about suspicious activity that contain comprehensive data and are 
provided by a trained work force will result in more informed 
analytical products, valued dissemination, and more stringent 
investigative requirements.
    Leveraged properly, the SARs program stands to become one of the 
essential threads that ensure the seamless information flow that is 
critical to cooperation on the national and international levels. In 
order to effectively counter a threat such as terrorism, we must first 
know where these activities are taking place and with what frequency. 
Law enforcement must have situational awareness that is enabled by 
standardized processes with strong civil liberties protections that are 
shared by most, if not all, across the Nation. The time has come for 
local police to contribute to this process in a significant way. The 
SARs program is one of the contributions that stands to make that 
vision a reality.
    Madam Chairwoman and Members of the subcommittee, thank you for 
inviting me to speak today on this important subject. I am happy to 
answer any questions you may have.

    Ms. Harman. The Chair now recognizes Sheriff Gillespie for 
5 minutes.


    Sheriff Gillespie. I hear you, Chair Harman, and sheriffs 
aren't used to being limited in our time, but I will do my best 
to stay within it.
    Ms. Harman. That applies up here, too.
    Sheriff Gillespie. Good morning, and I want to thank you 
all for giving me this opportunity, Chair Harman, Ranking 
Member McCaul, and distinguished Members of the subcommittee. I 
represent Major City Chiefs as well as Major County Sheriffs 
this morning in my summary of my comments.
    We are committed to intelligence-led policing. The analysis 
of crime data, coupled with execution of innovative policing 
tactics, is the cornerstone of our efforts to successfully 
fight crime. The same thing is true in our efforts to combat 
terrorism in our homeland. Suspicious activity reporting is 
long overdue, and I think Commander McNamara gave a very good 
overview of that.
    We must apply all crime policies to our fusion centers. To 
establish robust information and intelligence sharing 
capabilities in the Las Vegas area, we established a Southern 
Nevada Counterterrorism Center, an all-crimes, all-hazards, 
fusion center.
    The committee should mandate all the provisions of LEAP. 
For the chiefs and sheriffs, we wish to formally commend the 
committee for your report, LEAP, Law Enforcement Assistance and 
Partnerships. We endorse all seven of the initiatives 
articulated in the report published by the House Committee on 
Homeland Security, and we urge Congress to provide 
appropriations to carry out those critical law enforcement 
    ITACG is a critical element in the national framework. We 
cannot and should not rely on the Federal Government to find 
and implement the solutions unilaterally. State, local, and 
tribal government need to help carry this effort forward.
    Major City Chiefs' Intelligence Commander Group plays a 
vital role. The purpose of the Intelligence Commanders Group is 
to strengthen and coordinate the intelligence capabilities and 
operations of law enforcement agencies and major metropolitan 
areas. NCTC must establish a stronger working relationship with 
law enforcement agencies. Foreign liaison is essential.
    When terrorists attacked the city of Mumbai on November 26, 
2008, cities across America watched as armed gunmen created 
chaos and carnage in a metropolitan city of 15 million. Every 
sheriff and police chief in America asked him or herself, could 
this be my town? Thankfully, the Indian government was 
extraordinarily forthcoming with the details, and the U.S. news 
media was providing near constant coverage, so information was 
easily and quickly obtained. Had this not been the case, State, 
local, and tribal law enforcement, exactly those agencies tasks 
responding to the attacks, would not be able to prepare for 
    We understand that the information will ultimately be 
provided by the Federal Government. That is not the issue. The 
problem lies in the timeliness of the distribution and the 
relevance of the content. Would an FBI agent or DHS analyst 
know what questions a street cop or a hotel security chief in 
Las Vegas would ask?
    Fighting crime is a priority, and fusion centers help. 
Sustainment funding is needed for fusion centers. It is in this 
area that we have seen the greatest improvement. DHS has 
performed admirably in ensuring that funding was available to 
train incumbent analysts as well as allocate moneys so that 
agencies without sufficient analytical capability could 
contract, especially trained personnel.
    Private security personnel are critical. In the Las Vegas 
area, our highly trained cadre of security professionals more 
than double the number of sworn police officers employed by my 
agency. Furthermore, they are in the best position to detect 
suspicious activity, identify the behavior consistent with pre-
operational activities, and report or interdict the activity.
    Security clearances continue to be a problem. DHS must 
restore a Law Enforcement Terrorism Prevention Program, LETPP. 
We need consistency in funding. DHS, I&A should establish an 
advisory board to include Major County Sheriffs and Major City 
    Madam Chair and Ranking Member McCaul, those of us on the 
front lines look to you for leadership and support for our 
mission; and thank you for allowing me to speak this morning.
    Ms. Harman. Right on the button. Thank you, Sheriff 
Gillespie. You are a timely man.
    I also want to note, consistent with your testimony, that 
this committee authored and it passed the House on the consent 
calendar legislation to set up DHS as a petri dish to 
declassify information that law enforcement needs to know what 
to look for and what to do that will help with this problem 
that you have just identified of not enough security 
    [The statement of Sheriff Gillespie follows:]
               Prepared Statement of Douglas C. Gillespie
                             March 18, 2009
    Chairwoman Harman, Ranking Member McCaul, and distinguished Members 
of the subcommittee: Today I speak for both the major cities chiefs of 
police, representing the 56 largest cities in the Nation, as well as 
the major county sheriffs, representing the top 100 counties. We 
protect the majority of the American people and have authority in every 
major urban area. To exemplify the coordination between chiefs and 
sheriffs, I serve as both chair of the homeland security committee for 
major cities, and I am vice president of the major county sheriffs.
    I am the sheriff of the largest law enforcement agency in the State 
of Nevada: the Las Vegas Metropolitan Police Department. Because Las 
Vegas is home to many of the world's largest hotels, and a major center 
of international tourism and entertainment, my jurisdiction is 
continuously mentioned by our enemy as a potential target.
    I will begin my remarks by quoting from a report prepared by the 
committee, LEAP: A Law Enforcement Assistance and Partnership Strategy. 
This document challenged Federal agencies to leverage the vast 
resources of our Nation's ``first preventers'' in the Global War on 
Terrorism--State, local, and Tribal law enforcement. As the authors 
correctly concluded in 2006, ``Unfortunately, 5 years after 9/11, 
critical failures of imagination continue to leave these `first 
preventers' as a largely untapped resource in the war on terror.''\1\ 
Speaking for chiefs and sheriffs across the Nation, I can report today 
that while progress has been realized in the more recent years, we have 
not reached the goals established by the committee.
    \1\ LEAP--Law Enforcement Assistance and Partnership Strategy: 
Improving Information Sharing Between the Intelligence Community and 
State, Local, and Tribal Law Enforcement. (2006) Prepared by the 
Democratic Staff of the Committee on Homeland Security, U.S. House of 
Representatives. (p.1)
    This should not be construed as an indictment on the Department of 
Homeland Security (DHS), the Federal Bureau of Investigation (FBI), or 
any other agency included in the intelligence community. Indeed, the 
progress made by the intelligence community with regard to information 
sharing has been laudable. DHS has led the charge by incorporating 
State, local, and tribal law enforcement into the national effort to 
protect our homeland. The Department's success in organizing and 
funding a robust network of 70 Fusion Centers in 3 short years is 
nothing short of remarkable. The FBI has achieved dramatic improvement 
in sharing information by enhancing the Joint Terrorism Task Force 
(JTTF) program, and by sponsoring security clearances for senior police 
officials so that they can receive the information from their employees 
assigned to these JTTF's. The achievements notwithstanding, there is 
still significant room for improvement as State, local, and tribal law 
enforcement strives to be full partners with the Federal Government in 
the fight to keep America safe.
We are committed to Intelligence-Led Policing.
    The Major Cities Chiefs Association endorses, and the Las Vegas 
Metropolitan Police Department employs, the Intelligence-Led Policing 
philosophy. The analysis of crime data, coupled with the execution of 
innovative policing tactics, is the cornerstone of our efforts to 
successfully fight crime. But before analysis can be effectively 
accomplished, information and crime data must be collected. The same is 
true in our efforts to combat terrorism in our homeland. Before 
analysts from our Fusion Centers and intelligence community can 
synthesize and analyze data, the data must be collected from the 
source. The 800,000 State, local, and tribal law enforcement officers 
are better positioned than the Federal Government to collect this 
information at the State, local, and tribal level.
Suspicious Activity Reporting (SAR) is long overdue.
    Las Vegas has joined with Los Angeles and other agencies across the 
Nation to establish a process for recording, screening and reporting 
suspicious activity. We are pleased that the Federal Government came to 
the Major Cities Chiefs to establish the SAR effort, and today the 
committee is hearing from Commander Joan McNamara who pioneered SAR for 
the LAPD and the Major Cities Chiefs. Las Vegas is a partner with LAPD 
in SAR and we are moving forward with sensitivity to privacy concerns 
and appropriate safeguards. Las Vegas will be adopting the privacy and 
civil liberties policies that have been developed by the DOJ in 
collaboration with the American Civil Liberties Union, to ensure 
maximum accountability, transparency, protection of civil liberties.
We must apply All-Crimes policy to Fusion Centers.
    To establish robust information and intelligence-sharing 
capabilities in the Las Vegas area, I established the Southern Nevada 
Counter Terrorism Center (SNCTC) as an all-crimes and all-hazards 
fusion center. The SNCTC's core mission is to provide tactical and 
strategic analytic support to regional stakeholders. The tactical 
analysis section provides timely and actionable information to command 
staff and field personnel. The strategic analysis section complements 
tactical operations by developing analytical products. Gang, counter 
terrorism, narcotics, and criminal analysts produce a variety of issue-
specific products on issues facing our region.
    The SNCTC has established strong relationships with local industry, 
the public health community, and emergency management agencies. 
Awareness training is provided to major employers on how to identify 
and report suspicious behavior.
    Co-located with the analysts, the SNCTC houses a 24/7 watch 
capability, investigators that handle tips, leads, and suspicious 
activity reports, critical infrastructure protection group, and the All 
Hazards Regional Multi Agency Operations and Response (ARMOR) Detail. 
The team consists of local, county, State, and Federal experts in 
chemical, biological, radiological, nuclear, and explosive (CBRNE) 
response, detection, and identification.
    At the SNCTC, we have developed a privacy policy that is founded on 
28 CFR part 23, and with the guidance provided by the DOJ Privacy 
Policy Development Guide, LEIU Intelligence File Guidelines, and the 
Global Justice Information Sharing Initiative (Global). We are open 
with our privacy policies, and welcome the review and input from our 
local civil liberties community.
The Las Vegas ricin case as a case study.
    The discovery of ricin in a Las Vegas area hotel last year was a 
timely demonstration of why local agencies must be able to prepare for, 
prevent, and respond before any Federal agency publishes a report. An 
individual was suffering from respiratory distress, and because of 
evidence at the scene, it was suspected that he had been exposed to 
ricin. It would later be determined that he had in fact manufactured 
ricin from castor beans.
    Throughout the incident and the subsequent investigation, the SNCTC 
provided officers on scene with critical information on ricin, 
background on potential suspects, as well as intelligence on known 
potential terrorist threats involving ricin. SNCTC provided situational 
awareness to the hotel and casino industry and area hotels, alerting 
them on what to do if anyone else displayed signs of ricin poisoning.
The Committee should mandate all the provisions of LEAP.
    For the chiefs and sheriffs, we wish to formally commend the 
committee for your report, Law Enforcement Assistance and Partnerships 
(LEAP). We endorse all seven of the initiatives articulated in the 
report published by the House Committee on Homeland Security and we 
urge Congress to provide appropriations to carry out those critical law 
enforcement programs. Until your report is fully adopted, our 
intelligence efforts will have limited success.
    All too often, the information we have received from Federal 
agencies is less timely and less helpful than what is available from 
CNN. For years, we have waited for a system to provide timely threat 
intelligence, especially classified reports that contain information 
that might help law enforcement to protect particular targets and 
sectors. While progress has been made, much more needs to be done. On 
behalf of the chiefs and sheriffs, I offer these recommendations:
ITACG is a critical element in the national framework.
    We are grateful to Chair Jane Harman and those who supported her 
efforts to establish this ITACG. A key recommendation in the LEAP 
report is the Vertical Intelligence Terrorism Analysis Link (VITAL). 
The core mission of VITAL is to improve the information sharing between 
the intelligence community and the front line ``first preventers.'' We 
cannot, and should not, rely on the Federal Government to find and 
implement the solutions unilaterally--State, local, and tribal 
governments need to help carry this effort forward. All we ask is the 
opportunity to be full partners in these efforts.
    But ITACG has been slow to realize its full potential and carry out 
the intent of this committee. For example, ITACG is not allowed to 
share intelligence with the local agencies that it is intended to 
serve. Rather, ITACG is limited to editing intelligence and returning 
those products to originating agencies where the information may or may 
not reach State and local law enforcement agencies. The NCTC must work 
with DHS and the FBI work to adopt a process that ensures this vital 
information will get to the front lines. I believe that the creation of 
the ITACG is a giant step in solving this problem. I believe in the 
ITACG program so strongly, that I have assigned a Detective Sergeant to 
the National Counterterrorism Center in Washington, DC for a 1-year 
tour. This was not an easy decision, as staffing levels in Las Vegas 
are at a critical level, and we are working hard in these difficult 
economic times to increase our staffing.
Better intelligence products are needed and direct connectivity with 
        major agencies.
    We commend Director Mike Leiter and the staff at NCTC for a new 
report termed ``Roll Call,'' a new unclassified report for law 
enforcement agencies. Other excellent classified NCTC resources are 
available to some fusion centers but not accessible by operating 
intelligence units. NCTC has pledged to work with major agencies to 
allow access through DHS and the FBI.
Major Cities Chiefs' Intelligence Commanders Group plays a vital role.
    As chairman of the homeland security committee, it has been my 
pleasure to form an unprecedented alliance of the Nation's most 
valuable intelligence resources--local police and sheriffs' 
intelligence enterprise across the Nation. We ask for your support to 
build an integrated national intelligence capability to counter 
terrorism and protect our communities from crime. The purpose of the 
Intelligence Commanders Group is to strengthen and coordinate the 
intelligence capabilities and operations of law enforcement agencies in 
major metropolitan areas. To date this vital network of intelligence 
resources has been ignored and not funded by Federal agencies and we 
ask the committee to support this effort so that your objectives may be 
NCTC must establish a stronger working relationship with law 
        enforcement agencies.
    I have been to NCTC and visited with the excellent staff who stand 
ready to support law enforcement. But there has been no NCTC training 
and this invaluable resource is not accessible by most local law 
enforcement agencies. We ask that NCTC expand and empower its outreach 
components to include training access and use of intelligence systems 
and databases. Liaison personnel and desk officers are needed to 
maintain a flow of current intelligence to State and local agencies.
Foreign Liaison is Essential.
    I would like to discuss one of the programs recommended in the LEAP 
document: the Foreign Liaison Officers Against Terrorism (FLOAT) 
program. There is exceptional value in this program and it warrants 
further dialog and close consideration. The Major Cities Chiefs 
Association recognizes the legal authority of the FBI to engage in the 
investigation of crimes against U.S. citizens abroad. But the needs of 
State, local, and tribal law enforcement are different than those of 
the FBI. We have little need to participate in the investigation and 
ultimate prosecution of acts of terrorism occurring in foreign lands. 
But, we have a tremendous need to quickly learn about acts of 
terrorism, so that we can translate those lessons to better prepare our 
street-level first responders for similar attacks. As my good friend 
and colleague, Chief Bill Bratton, said, ``The aim is not to sever or 
supplant information from Homeland Security and the Department of 
Justice, but to have a multiplicity of channels of information that 
will allow chiefs of police to make decisions . . . ''.\2\
    \2\ Robert Block, ``Miffed at Washington, Police Develop Own Terror 
Plans,'' Wall Street Journal (Oct. 10, 2005) at B1, available at 
    The July 7 London subway attacks and the Madrid train bombing best 
illustrate the fact that the enemy may already be within our borders, 
and State, local, and tribal law enforcement stand ready to help in the 
fight against these terrorists. More recently, when terrorists attacked 
the city of Mumbai on November 26, 2007, cities across America watched 
as armed gunman created chaos and carnage in a metropolitan city of 15 
million. Every major city police chief in America asked him or herself: 
``Could this happen in my city?'' and ``How would we react to a similar 
attack?'' Thankfully, the Indian government was extraordinarily 
forthcoming with details, and U.S. news media was providing near-
constant coverage, so information was easily and quickly obtained. Had 
this not been the case, State, local, and tribal law enforcement 
(exactly those agencies tasked with responding to the attacks) would 
not be able to prepare for them.
    We understand that the information will ultimately be provided by 
the Federal Government. That is not the issue. The problems lie in the 
timeliness of distribution, and the relevance of the content. Would an 
FBI agent or DHS analyst know what questions a street cop or hotel 
security chief in Las Vegas would ask?
    We urge the distinguished members of this subcommittee to 
objectively consider the advantage that State, local, and tribal law 
enforcement would realize--as well as our private sector partners--by 
quickly collecting and reporting the facts surrounding an overseas 
terror attack. The decisions made by public safety executives and their 
private sector counterparts in response to terror attacks overseas can 
cost taxpayers and private industry millions of dollars. The Federal 
Government should not interfere with, indeed they should facilitate, 
the efforts to collect and transmit the most current and most accurate 
information on which these leaders will base these decisions.
Violent crime and drug trafficking remain our top priority.
    I would like to address the threat of violent crime and our 
borders--particularly our southern border--and how intelligence can be 
applied to address violent crime. While Nevada does not have a common 
border with Mexico, we have seen the well-publicized violence spread to 
our community. In October of last year, a 3-year-old boy was violently 
kidnapped from his home in Las Vegas. It was quickly determined by our 
investigators that he had been taken and was being held hostage by 
members of a Mexican drug cartel for a drug debt owed by his 
    What we found during the investigation was that if properly 
applied, the information gathering capability of the Fusion Centers 
could be a true investigative asset. What we also found was that local 
law enforcement could work with the FBI, DEA, and other Federal 
agencies without degenerating into ``turf battles'' over jurisdiction. 
This case has a happy ending, the young boy was recovered unharmed in 
Las Vegas--abandoned on a suburban street by his abductors when media 
and public attention became too great of a risk for the kidnappers.
    We know that hostage taking for revenge, ransom, and profit is 
widespread in South and Central America, and we can reasonably assume 
that this crime trend may spread north into the United States as the 
conditions in Mexico continue to deteriorate. As a crime that directly 
affects State, local, and tribal law enforcement, yet with a clear 
Federal nexus, we recommend that discussions begin in earnest to 
consider the options available to Federal, State, local, and tribal law 
Sustainment funding is needed for Fusion Centers.
    In the LEAP document, it was recommended that State and Local 
Fusion Centers receive funding for the operational costs, as well as 
the costs associated with contracting and training intelligence 
analysts. It is in this area that we have seen the greatest 
improvement. DHS has performed admirably in ensuring that funding was 
available to train incumbent analysts, as well as allocate moneys so 
that agencies without sufficient analytical capability could contract 
specially trained personnel. Thanks to the efforts of Chair Harman and 
distinguished Members of this subcommittee, DHS was moved to eliminate 
all time restrictions related to the funding of analytical personnel 
assigned to Fusion Centers. As the committee has recommended, Congress 
should establish a dedicated grant program for this purpose, the Fusion 
and Law Enforcement Education and Training (FLEET). We further propose 
an advisory panel for DHS to identify how to further strengthen UASI 
and LETPP funding for intelligence and fusion centers.
Private security personnel are critical.
    Included in the VITAL program was a recommendation to ``develop 
clear policies and procedures for converting highly classified 
intelligence into an unclassified or `less classified' law enforcement 
sensitive format that can be shared rapidly with state, local and 
tribal law enforcement.''\3\ Yet, there is an entire population of 
``First Preventers'' employed in the private sector, who still are 
unable to receive intelligence documents identified as ``law 
enforcement sensitive'' (LES) or ``For Official Use Only'' (FOUO). In 
Las Vegas, our highly skilled, highly trained cadre of security 
professionals more than doubles the number of sworn police officers 
employed by the Las Vegas Metropolitan Police Department, and is larger 
than all but the very largest police agencies in this country. 
Furthermore, they are the best positioned to detect suspicious 
activity, identify the behavior consistent with pre-operational 
activities, and report or interdict the activity. Yet, because of LES 
or FOUO handling restrictions, we cannot provide private security with 
these documents that would allow them to be better informed. Before 
State, local, and tribal law enforcement can effectively team with our 
private sector partners, we need to consider the necessity of including 
LES and FOUO handling requirements. The default should be 
``unclassified'' unless there is a compelling need to include handling 
restrictions, due to attestable criminal case sensitivity, or National 
Security reasons.
    \3\ LEAP, supra note 1, (p. 21).
Security clearances remain a problem.
    DHS has been very accommodating for sponsorship of security 
clearances and the FBI has likewise sponsored clearances for police 
officials that have membership in the JTTF, and those in the 
responsible chain of command. Constant promotions, retirements, and 
transfers of assignment in State, local, and tribal law enforcement can 
make it very difficult for the FBI to keep up.
    While the major cities chiefs and major county sheriffs applaud the 
FBI and DHS for their willingness to provide clearances, there has been 
little progress in accomplishing a process for reciprocal acceptance of 
those clearances to access systems and conduct briefings. Refusal by 
one Federal agency to routinely accept the clearances issued by another 
is a disruptive policy that contradicts information sharing and 
threatens our progress toward realizing the goals of this committee. 
Chiefs and sheriffs ask for your help to resolve this issue once and 
for all.
DHS must restore the Law Enforcement Terrorism Prevention Program 
    Contrary to the intent of Congress, OMB, and DHS eliminated the Law 
Enforcement Terrorism Prevention Program (LETPP)--the only program 
dedicated to prevention of a terrorist attack. Although funded, LETPP 
is merely a quota and no longer a separate program with goals and a 
required plan. If there is truly a commitment on the part of the 
Federal Government to the prevention of terrorism on U.S. soil, the 
appropriation should be maintained at its original level of $500 
million. I am submitting for the record a letter we previously sent to 
the committee and we ask that you call on the administration to correct 
this condition.
We need consistency in the Urban Areas Security Initiative (UASI).
    Repeated changes to the UASI program have caused unnecessary 
conflict and confusion, a ``roller coaster ride'' for agencies like my 
own. It is impossible to plan intelligence programs from year to year 
when we cannot rely on consistent funding to support those efforts. 
Passing funds for urban areas through Governors has caused waste and 
delay. Annual revisions to the list of eligible urban areas preclude 
effective planning and coordination where it is most needed--in the 
urban areas most likely to be attacked. Congress should provide more 
clarity, stability, and consistency to the UASI program. The approved 
list of high threat urban areas should be finalized and unchanging.
Fellowships are key to strong partnerships.
    Major cities chiefs and major county sheriffs are grateful to DHS 
I&A and NCTC for the recent assignment of local law enforcement 
officers who serve tours in Washington, DC. It has been my privilege 
and my pleasure to assign personnel from Las Vegas to serve at DHS in 
the National Operations Center, our new assignment to ITAGC and I look 
forward to the future assignment of our personnel to the DHS I&A 
DHS I&A should establish an advisory panel of Major Cities Chiefs.
    To receive guidance and assistance from local law enforcement, we 
urge DHS I&A to establish an advisory panel from the major cities and 
counties. This sounding board would help to guide the new products and 
services to be provided by DHS, including threat advisories and other 
intelligence products. The Under Secretary for Intelligence and 
Analysis would receive support and technical assistance across a wide 
range of issues, including fusion centers, infrastructure protection 
and threat assessments.
    Madam Chair and Ranking Member McCaul, those of us on the front 
lines look to you for your leadership and support of our mission. Local 
law enforcement is charged with the solemn duty to discover, disrupt, 
and stop plots hatched within the United States. Please know that my 
colleagues and I are committed to a purpose shared by this committee--
the prevention of another attack and the interdiction of those who 
would bring us harm. We need your continued help to be successful, and 
I look forward to working with the distinguished Members of this 
subcommittee in the future.
    Thank you.

    Ms. Harman. Mr. Edwards, you are recognized for 5 minutes.


    Mr. Edwards. Thank you.
    Distinguished Members of the committee and my distinguished 
panel members, my name is Gary Edwards, the Chief Executive 
Officer of the National Native American Law Enforcement 
Association; and it is a privilege and honor to be able to 
speak with you today regarding tribal inclusion in homeland 
security and, in particular, intelligence and information 
    We, the Native American people, are the most experienced 
people at protecting homeland since we have been working at 
that since 1492 and we are still active today. Today, though 
our reservations are not as large as they used to be, represent 
over 100 million acres in the Continental United States and 
Alaskan villages. Also, the Hawaiian natives feel like their 
homeland is also connected with the Native people as well.
    We have in the Continental United States over 55 million 
acres, over 300 reservations, 562 federally recognized tribes. 
Our lands are replete with oil. We have the eighth financial 
power in the world at the producing of natural gas. We have 
pipelines that run across our lands. We have railways and also 
interstate systems as critical junctures go right through 
tribal lands. We have an enormous amount of borderland, and our 
people sit on the border and straddle the border, which are 
major issues to our local communities.
    With all of these assets--and another thing, just to 
mention that we also are a major contributor to some of the 
hydroelectric power grids from hydroelectricity from the power 
grids in the Western United States. So these critical 
infrastructures and the law enforcement that protects these 
infrastructures are still many years and decades behind our 
non-tribal counterparts. Primarily that is because that we do 
not have the training, funding, outreach, and connectivity that 
other law enforcement and emergency and first responders have.
    Our communication systems are not quite as good as our 
smoke signals were when the first European intervention came to 
the United States. That is, that we can read our smoke signals, 
but the non-tribal people cannot, and their ability to send 
smoke signals are almost non-existent, and it is literally that 
    We have to first become operable before we can become 
interoperable, and we have to be interoperable before we can 
really adequately share intelligence and information.
    By Constitution, we are considered a little higher than the 
States. However, we are treated in the situations with regard 
to funding, information intelligence systems through the 
States. We have been working to make that work, but the honest 
answer to that question is that it isn't working. It is not 
because our colleagues don't want to, and it is not because 
they don't care about it and realize their importance. But they 
have their own communities that they are working on and they 
are responsible to, and we understand that. But it is the 
Congress' responsibility to find the way to get what is needed 
to Indian Country to be able to communicate and to be able to 
participate in homeland security. Because, remember, most of 
the attacks--even though we have a lot of rural lands--most of 
the attacks were planned in non-rural lands. Just like the 
September 11 attacks in the practice flying of the planes.
    I mean, the whole thing about it is in intelligence we have 
to be able to get intelligence from national and international 
sources. With intelligence, sometimes it takes a while to 
develop, but we need to have an awareness out in our 
communities. The big things we need in the communities is the 
ability to take that information and make it actionable 
immediately, and that is the key and important part.
    When you look right now at tribal land, you have a huge 
hole in our ability to do that. The fusion centers, we can't 
praise them enough, and they are a local initiative that would 
provide the local communities with the ability to more quickly 
and better share intelligence and communications. We want to be 
a part of that, but, in reality, they are far away from our 
homes, and we are really not a part of it. We are on paper, but 
we are actually ancient people. We are out there somewhere. We 
need to be an active part.
    Our solution to that is to develop regional tribal fusion 
centers that will connect into the State and local fusion 
centers. But we are not going to be able to get anywhere unless 
the Congress watches where the funding is going, making sure 
that it is actually producing something. The one program that 
we have from Homeland Security that deals with regionalization 
and including tribes is due to sunset September 30. That is the 
only program in Homeland Security for tribes.
    So we need your help, our country needs your help, and we 
will stand shoulder to shoulder with you and other Americans to 
defend our country against all oppressors as we have done in 
every war against the United States in history.
    Ms. Harman. I want you to know your testimony is very 
important to this committee. We appreciate you coming.
    [The statement of Mr. Edwards follows:]
                 Prepared Statement of Gary L. Edwards
                             March 18, 2009
    Chair Harman and distinguished Members of the committee, my name is 
Gary Edwards and I am the Chief Executive Officer of the National 
Native American Law Enforcement Association (``NNALEA ''). I am honored 
and pleased to appear before the House Committee on Homeland Security, 
Subcommittee on Intelligence, Information Sharing and Terrorism Risk 
Assessment regarding ``Homeland Security Intelligence: Its Relevance 
and Limitations.''
    The assessment, judgments, evaluations, and opinions I offer to you 
today is based upon my service of over 28 years as a Special Agent in 
the United States Secret Service. During my tenure in the Service the 
routine use of shared intelligence and information was a part of every 
workday. My expertise and use of intelligence and information was honed 
through extensive training and field work as a Special Agent. Secret 
Service employees are ingrained with the deep-seated awareness that in 
the Secret Service protective arena there is no room for error, no 
excuse for not knowing and no reason for not eliminating any threat or 
possible vulnerability to a protective mission. The success of our 
protective missions depended greatly upon the help, cooperation, and 
sharing of intelligence and information by many professionals, 
organizations and agencies, especially those whose mission required 
collection of intelligence and information regarding terrorist and 
    As the CEO of NNALEA I have focused my attention on Indian 
countries sharing of intelligence and information and tribal 
participation in the information sharing environment. Much of my tribal 
training and experience was gained from tribal professionals who work 
every day on the streets and in rural communities, risking their lives 
to secure our homeland.
    In addition, I have served on numerous homeland security advisory 
committees, task forces, and working groups for the Department of 
Homeland Security, the Interagency Threat Assessment and Coordination 
Group, the Department of the Interior, and the Department of Justice. I 
have co-authored two NNLAEA publications: ``Tribal Lands Homeland 
Security Report'' and ``The Importance of Tribes at the Frontlines of 
Border and Homeland Security.'' Also, I co-developed the DHS-certified 
training course ``Regional Collaboration and Tribal Partnerships'' 
which is currently being taught nationally.
                          background on nnalea
    As many of you may be aware, NNALEA is a non-profit public service 
organization founded in 1993, which among other things, provides a 
media for the exchange of ideas and new techniques, and establishes 
networks for training, collaboration, technical assistance, information 
sharing, and investigative assistance between Federal, tribal, State, 
and local governments and agencies and the private sector. NNALEA has 
conducted sixteen (16) National Training Conferences across the United 
States, and is currently preparing for its thirteenth (17th) [sic] 
National Training Conference to be held on September 08-11, 2009 in 
Catoosa, Oklahoma. Homeland Security Intelligence and Information 
Sharing will be hot topics at this upcoming National Training 
                           a significant war
    Our Nation is engaged in a significant war against terrorism, 
criminal activity, and international threats against our freedom and 
way of life. It is a guerrilla-type warfare that has already touched 
our homeland and our hearts. It has violated our feeling of security. 
This war threatens economic stability which is in the midst of a 
depression. Those that wish us harm and are trying to make profit from 
illegal drug dealings, smuggling, acts of terror, and other crimes are 
waging terrible and violent war against our citizens.
    On the international front our enemies threatening world peace and 
world economic calamity. Our enemy has targeted battlefields in our 
cities, towns, communities, and backyards. We have risen to the 
occasion united, resilient, and determined with God's help to be 
victorious. Our Nation's primary weapon in this fight is the timely 
sharing of accurate intelligence and information by those who have a 
responsibility to provide the intelligence necessary to protect lives, 
property, critical infrastructure, economic stability, and our freedom.
    Intelligence and information sharing is a significant tool in this 
war that has been reinvented, to more seamlessly and speedily flow 
massive amounts of intelligence and information vertically and 
horizontally both domestically and internationally. There are many 
experts more astute than I in the intelligence and information sharing 
environment and I am confident they will apprise you of the latest 
trends and future of intelligence and information sharing. I will share 
with you NNALEA's assessments, observations, and opinions regarding 
Indian Country's willingness to participate in the intelligence and 
information sharing environment, Tribal opportunities to participate in 
the intelligence community and the critical importance of Tribal 
participation in the National Strategy for Intelligence and Information 
                    the important of indian country
    There are over 100 million acres of Tribal lands in the continental 
United States and Alaska native villages. Tribal lands in the 
continental Unites States consist of over 55 million acres and include 
300 reservations. The largest reservation is the Navajo Reservation 
which is larger than the entire State of West Virginia with parts of 
the reservation in four States. Tribal lands and the Alaskan villages 
are federally recognized and are referred to as Indian Country. Indian 
Country is replete with critical infrastructure and key resources, some 
of which are:
   Dams; Water Impoundments and Reservoirs; Electrical 
        Generation Plants Feeding Major Power Grids; Natural Gas, Oil 
        and Coal Production Facilities; Major Entertainment Facilities; 
        Critical Pipelines, Railway and Vehicular Transcontinental 
        Highway Systems; Airports and Remote Landing Strips.
   25 Tribal Reservations are located on and/or across the 
        Unites States International Borders with Canada and Mexico; 41 
        Tribal Reservations are within 100 miles of those International 
        U.S. Borders. Tribal Lands also include Ports and Waterways 
        Open to Navigation from International Waters.
   Farming and Husbandry on an International Scale.
   Timber, Wildlife and Green Eco-System-Friendly Management.
   Bio-diesel-friendly farming lands.
   Major Drinking Water and Waste Systems.
    The above-cited Critical Infrastructure and Key Resources on Tribal 
lands have much primary vulnerability and risk due to:
   The existence of non-integrated Tribal law enforcement and a 
        lack of jurisdictional clarity;
   The minimal emergency response, and medical capacity, 
        planning, and implementation;
   A general lack of operable communications;
   Drug cartels and terrorist organizations targeting Tribal 
        lands and casinos for terrorist acts, illegal operations, and 
        distribution of drugs on a national scale;
   The lack of preparedness planning, partnering and 
        capabilities to protect citizens, property, critical 
        infrastructure and key resources;
   Inadequate funding to develop emergency capabilities;
   Widespread Tribal unemployment;
   Inadequate medical care;
   Non-participation in State and local Fusion Centers;
   Non-Tribal organizations and agencies not willing to share 
        intelligence and information with Tribal authorities;
   Federal Agencies unwillingness to share Tribal information 
        with each other.
    The above-listed threats and vulnerabilities in Indian Country can 
have a negative impact outside the reservations and do not solidify our 
national efforts to eliminate terrorist acts, violent crime, and 
international threats to our Nation.
            the relevance of homeland security intelligence
``Not having the information you need when you need it leaves you 
wanting. Not knowing where to look for that information leaves you 
powerless. In a society where information is king, none of us can 
afford that.''--Lois Horowitz
       the office of the director of national intelligence (dni)
    Relevance to Tribes.--The Director of National Intelligence is the 
``Master Weaver'' of national intelligence, validates its collection, 
accuracy, analysis, objectivity, and timely distribution to appropriate 
users of the intelligence products produced, which include Tribes.
    Limitations to Tribes.--The Office of the Director of National 
Intelligence has been slow to develop a national action plan for Tribal 
inclusion in the intelligence community (IC). There has been an effort 
to produce a program in Indian Country. However, its first attempt met 
with undesired results.
    Solutions for Tribes.--We believe that DNI intelligence projects 
for Indian Country would be better served and more likely to be 
accepted by Tribes, if direct funding for the projects was made 
directly to Tribes and their partners whose primary focus is a national 
approach to Indian Country intelligence and information sharing.
    the interagency threat assessment and coordination group (itacg)
    Relevance to Tribes.--The IATCG Detail and Advisory Council purpose 
and vision are consistent with the vision of intelligence sharing in 
Indian Country. The ITACG's relationship within the information sharing 
environment (ISE) is of great value to the Tribal and non-Tribal 
intelligence community (IC). The products development by the ITACG 
detail are right now actionable to all within the IC and ISE 
partnerships. The men and women that make up the ITACG are exceptional, 
dedicated professionals that always give their best efforts to serve 
their counterparts in the field. The ITACG detail and advisory council 
have worked hard to ensure Indian Country participation. The ITACG 
recently completed an ITACG Dissemination Process and Issues Survey in 
an effort to better serve the users of the ITACG detail products.
    Limitations to Tribes.--Although the purpose and vision of the 
ITACG Detail and Advisory Council are clear, some of the intelligence 
products they would like to produce have not been forthcoming as 
quickly as desired due largely to the cumbersome administrative process 
that is to be expected in the intelligence arena.
    The greatest concern for the Tribal Intelligence Community (TIC) 
and for the ITACG Detail and Advisory Council is the disturbing results 
of Tribal participation in the ITACG Dissimilation Process and Issues 
Survey. Of the 480 responses to the survey only 3 were Tribal, two from 
Tribal Fire Departments in California and one from a Tribal Law 
Enforcement Department in Alabama. Therefore, the outreach and 
awareness efforts of the ITACG are not reaching the Tribal intelligence 
community. There may be too many Federal intelligence and information 
sharing groups within the Federal Government that appear to duplicate 
or replicate intelligence dissemination. Many Tribal departments do not 
have the staff to participate in multiple groups and compare and 
analyze which one best serves their need for a particular vulnerability 
or threat. The result is that the good information provided in ITACG 
intelligence products are not used to their full and desired potential. 
We feel this is true for many non-Tribal departments as well, not to 
mention the cost of duplicate programs in Government.
    Solutions for Tribes.--We believe the Tribal solution to this 
intelligence dissemination problem is answered in three actions: (1) 
The ITACG should partner with a national organization whose primary 
focus is a national approach to Indian Country for intelligence and 
information sharing; (2) the ITACG should reach out to Tribes with 
awareness training, exercises, and surveys through the partnership with 
the National Indian Country partner cited above; and (3) this 
congressional committee and the ITACG should advocate for the 
elimination of costly duplicative Federal intelligence and information 
sharing programs.
    We feel the new leadership of the IATCG will remove road blocks and 
empower the ITACG detail and advisory council to accurately produce and 
rapidly disseminate ITACG intelligence products needed by State, 
Tribal, and local intelligence community professionals in the field.
    the department of homeland security--office of intelligence and 
                             analysis (i&a)
    Relevance to Tribes.--Indian Country embraces the DHS I&A's 
commitment to change the national intelligence culture from ``a need to 
know'' to ``a responsibility to provide'' intelligence and information 
sharing to the Tribal and non-Tribal intelligence sharing environment 
and culture. The best way to lead change is through example. Indian 
Country law enforcement and other Tribal first responders desperately 
need and seeks real-time, accurate intelligence and information from 
the DHS I&A regarding: (1) Threats related to border security; (2) the 
threat of radicalization and extremism; (3) threats from particular 
groups entering the United States; (4) threats to the homeland's 
critical infrastructure and key resources; and (5) information 
regarding weapons of mass destruction and health threats. These five 
areas of intelligence and information sharing for which DHS has 
analytic thrusts are extremely important to Tribal communities on a 
daily, even hourly basis to save lives, protect property, prevent 
destruction of critical infrastructure and key resources, preserve 
economic systems, and contribute to the defense of the United States of 
    Indian Country is pleased with the appointment of Governor Janet 
Napolitano as the Secretary of the Department of Homeland Security. In 
her former position as Governor of Arizona, she has grained extensive 
knowledge of Indian culture and values. Arizona has the greatest 
population of Native Americans that any State in the continental United 
States. Secretary Napolitano's quick action to bring consultation 
between Tribe and DHS is historic and long overdue. We commend and join 
the Secretary in her support for State and local Fusion Centers as the 
``centerpiece of our mutual intelligence future.'' Currently, partners 
in Indian Country are already planning for ``Tribal Regional Fusion 
Centers'' (TRFC). We look with anticipation to the TRFC's interaction 
with State and local Fusion Centers and becoming an integral part of 
the intelligence community and the information sharing environment.
    Limitations to Tribes.--Tribes have many limitations preventing 
participation with the DHS I&A information sharing environment and 
intelligence community. Some of the limitations are: (1) A lack of 
recognition by DHS of Tribal sovereignty; (2) the DHS minimal outreach 
to Tribal leaders and officials; (3) regularly overlooking Tribes to 
participate in National, regional and State homeland security exercises 
and events; (4) on a yearly basis, DHS's provides inadequate funding 
for Tribal programs regarding homeland security planning, training, 
equipment, connectivity, partnership building, and inclusion in DHS 
national programs; and (5) the lack of outreach, awareness, a favorable 
location, cooperation, funding, training, cultural issues, sharing of 
intelligence and information, and partnership building on a national 
basis, limits Indian Country's willingness to daily participate in 
State and local Fusion Centers.
    Solutions for Tribes.--Most of the above cited limitations can be 
eliminated within a short time cycle with the combined effort of the 
White House, this Congressional committee, and the Secretary of 
Homeland Security. The DHS Tribal solutions are:
    (1) Secretary Napolitano began removing the first cited limitation 
        when she recently instituted a DHS policy of Tribal 
        consultation between the DHS and Tribal governments. This 
        government-to-government relationship recognizes Tribal 
    (2) The President, Secretary Napolitano and Congressional Members 
        participation in national Tribal events and meetings with 
        Tribal leaders can remove the 2nd limitation;
    (3) A sincere effort by DHS program directors inviting Tribal 
        leaders send Tribal representatives to participate in National, 
        regional, and State exercises and events will yield 
        partnerships and Tribal support for DHS National, regional, 
        State, and Tribal projects and thereby remove another 
    (4)(a) NNALEA and the National Congress of American Indians (NCAI) 
        request a minimal increase of the Tribal portion of the SHGP 
        from 0.1 percent to 1.0 percent and to allow Tribes to apply 
        directly to DHS for all grant programs rather than through the 
        States. (b) DHS provided funding and support for Tribal 
        Homeland Security programs and initiatives to national 
        organizations whose primary focus and body of work is a 
        national approach to Indian Country homeland security issues 
        and whose organization houses the expertise necessary to carry 
        out a national program for Indian Country. (c) DHS providing 
        continuation funding for successful Tribal training programs 
        and initiatives that encourage regional Tribal inclusion in 
        programs like intelligence and information sharing (note: the 
        only Tribal DHS certified ``Regional Collaboration and Tribal 
        Partnerships'' training program that will have reached 60 
        regional training sites Nation-wide should receive continuation 
        funding to deliver that critical partnership training after 
        October 1, 2009.)
    (5)(a) Generally, Indian Country supports the concept of State and 
        local Fusion Centers so much so that plans are underway to 
        develop a Tribal Regional Fusion Center on the Navajo 
        Reservation to connect Tribes in its region directly to State 
        and local Fusion Centers. (b) DHS funding and DHS I&A support 
        are critical for TRFC plans to be successful. (c) The success 
        of Tribal Regional Fusion Centers can eliminate most of the 
        limitations cited above for Tribes and their participation in 
        State and local Fusion Centers. (d) The Bureau of Indian 
        Affairs, Office of Justice Services (BIA-OJS) must be a major 
        component of any intelligence and information sharing 
        initiative for Indian Country like the Tribal Regional Fusion 
        Centers. BIA-OJS is the premier national law enforcement agency 
        for Indian Country whose primary mission is Indian Country law 
        enforcement. (e) The DOI, Office of Indian Affairs should be a 
        partner and leader in Tribal homeland security intelligence and 
        information sharing initiatives by DHS I&A and the DHS 
        intelligence enterprise (IE) internal partners.
    For the protection of our homeland to be successful, our Nation 
must have a seamless network of homeland security intelligence and 
information sharing. To be seamless, this network must include Tribes. 
Tribes, though, are often left wanting for homeland security 
information. This, in turn, limits our Country's network of homeland 
security intelligence and information sharing. Fortunately, 
intelligence and information sharing with Tribes can be fixed rather 
quickly through the actions delineated above by the White House, this 
Congressional committee and the Department of Homeland Security.
    I am happy to answer any questions you may have.

    Ms. Harman. Chief Gaissert, you are recognized for 5 


    Chief Gaissert. Thank you, Madam Chair, distinguished 
committee Members, and esteemed panelists.
    Terrorism is a phenomenon that perhaps represents the 
defining issue of our time. It is a challenge that requires an 
entirely new dimension for operational readiness for law 
enforcement and all other public agencies.
    We have been blessed as a Nation not to have had a major 
terrorist event on United States soil since 9/11. However, to 
quote Jefferson in 1801, ``Eternal vigilance is the price of 
liberty.'' I submit that our resources for intelligence and 
information sharing must be focused within this context.
    I am making some recommendations and conclusions regarding 
our intelligence efforts.
    No. 1, the United States should make good use of the 
Israeli model for homeland security. There is a reason that 
their counterterrorism measures stopped more than 90 percent of 
attacks. Central to this success is intelligence dominance 
derived from integrated resources and combined with the ability 
to rapidly conduct surgical interdiction of terrorist 
operations. The result is to reduce or neutralize threats and 
minimize collateral damage, including civilian casualties.
    I want to add as an addendum here that I am not talking 
about some KGB-style program to spy on citizens, but the 
Israelis have the ability, from a grassroots level, to develop 
information and data that can point to threats early. There are 
any number of pre-attack indicators which do not include the 
profiling of individuals. It is a matter, as most street cops 
would tell you, of being able to determine things that are out 
of character and out of place. The street cop isn't looking for 
the normal; he is looking for the abnormal.
    No. 2, domestic law enforcement must assess and evolve 
their training doctrine to address the potential for 
asymmetrical tactical threats posed by the phenomenon of 
terrorism. In Israel, an officer responding to a traditional 
crime reacts traditionally. If he finds something else, if it 
is terrorist related, he stops thinking like a cop and starts 
thinking like a soldier. Because his adversary is trained using 
small unit infantry tactics with assault security and support 
elements. It requires a different tactical approach; and we 
need to train for that dimension, including its implication for 
the rules of engagement.
    No. 3, consider designating an intelligence officer in 
every State or local law enforcement agency, regardless of 
size, and process that officer for an appropriate level of 
clearance. I believe unless something is changed, you can 
obtain a ``secret'' with a national agency check.
    No. 4, expand access to information technology such as the 
GTIP program in Georgia to facilitate the flow of information 
between partners. I applaud Commander McNamara. I think if we 
could standardize a reporting format, it would be highly 
advantageous to the national interest.
    No. 5, money is policy. Consider additional funding of law 
enforcement training for counterterrorism, particularly at the 
local level. There are alternative mediums to facilitate such 
    I also recommend expanding that to civilians, to civic 
groups, and to educate our populace as to what they might be 
seeing in terms of pre-attack indicators. This could be 
facilitated through the United States Attorney, the auspices of 
State training agencies, and so forth.
    No. 6, review the Homeland Security Advisory System as it 
relates to public release. Consider adding specific public 
guidance at each level of alert or eliminating the alert status 
altogether for public notice.
    One of the weaknesses that I find in this system is that 
what we are doing is issuing some vague public alarm which 
causes potentially a sense of unease, and this could actually 
support terrorist objectives.
    Madam Chairman, in closing, let me say that any measure 
considered for Homeland Security must be balanced with the 
expectation of privacy and the inalienable rights of the 
American people. As Dr. Franklin once observed, ``Those who 
exchange freedom for security end up with neither freedom nor 
security.'' If we concede our freedoms, the terrorists win.
    I pray that the Lord will have mercy on this Nation and 
that he will sustain our way of life.
    [The statement of Chief Gaissert follows:]
                 Prepared Statement of John W. Gaissert
                             March 18, 2009
    Terrorism is a phenomenon that perhaps represents the defining 
issue of our time. It is a challenge that requires an entirely new 
dimension of operational readiness for law enforcement and all other 
public safety agencies. We have been blessed as a Nation not to have 
had a major terrorist event on United States soil since 
9/11. However, to quote Jefferson in 1801, ``Eternal vigilance is the 
price of liberty.'' I submit that our resources for intelligence and 
information sharing must be focused within this context.
    In my professional judgment, failure to know the enemy is the 
fundamental weakness in both developing homeland security 
counterterrorism measures and prosecuting the war in general. In the 
6th century B.C., General Sun Tzu wrote, ``The Art of War''. He said 
that every battle is won before it is ever fought. One of his central 
propositions is that you must become your enemy in the sense of not 
only understanding his tactics but his epistemology; that is what he 
believes about the world, his ideology, religion, and dedication to 
those belief systems.
    In my judgment, the radical Jihadists are committed to bringing the 
world under submission to Allah. They are religiously motivated and 
convinced that Allah has commissioned their Jihad to precipitate the 
end of the world according to their teachings and tradition. 
Alternatively, they intend to impose obedience by conversion or 
eliminate infidels. Their endgame strategy is simple:
    a. It is a zero-sum game; either win or lose.
    b. Destroy the Jewish State of Israel.
    c. Establish a global Islamic theocracy under Sharia Law.
    d. No time constraint to accomplish both political and religious 
    Dr. Bruce Hoffman at Georgetown describes the conflict as a 
ceaseless, generational struggle. This conclusion is arguably correct 
in view of the last 1,500 years of Islamic fundamentalist history. 
However, I place the genesis of the conflict in the Book of Genesis. It 
began 4,000 years ago with a man named Abraham and two boys, Isaac and 
Ishmael. No one will have a viable paradigm to understand the current 
threat without a grasp of the Old Testament Canon, as well as The Koran 
and the Hadith. The conflict can be viewed as a continued outworking of 
the enmity set between these ancient protagonists. This same animus can 
be traced through Biblical times to the sixth century A.D. and the 
advent of Islamic fundamentalism. The result is for some to view the 
current dilemma as a clash of cultures and others to view it as a clash 
of civilizations. However, I submit that ultimately it can be 
understood best as a clash of religious belief systems; Judeo/Christian 
and all others versus Islamic. The scope of this testimony precludes 
specific contrasts in beliefs, but it ultimately begs the question, 
``How do you apply traditional secular solutions to a conflict which at 
its nexus is a religious dispute?''
    Without a grasp of this history, the United States' strategic 
decisionmaking processes could result in serious miscalculations vis-a-
vis intelligence functions, public safety training and domestic 
operational response. We are engaged in what could be characterized as 
4th generation warfare and face asymmetrical threats. Terrorist 
combatants are predominantly non-state actors but in many instances act 
as proxies for nation-states. The transnational nature of terrorist 
attacks should be examined from the perspective that these are not 
random acts of violence, but they represent different fronts in a 
global Jihad.
    Since al Qaeda has become as generic to terrorism as Xerox has to 
photocopies, I shall use that term to describe all affiliates and rogue 
groups; albeit they largely have common purposes. As Dr. Boaz Ganor, 
Institute for Counter Terror, Herzliya, Israel notes, ``Terrorists have 
an inter-national network, battlefield experience and learn from their 
mistakes.'' He further defines the salient difference between 
terrorists and other labels such as guerilla or freedom fighter. 
Terrorists target civilians and non-combatants; they sanctify death. 
Based on my training and experience, it appears that our domestic 
counterterrorism doctrine has not fully addressed the evolution of 
terrorist strategies or their dedication to the endgame. We are not 
just fighting a war on the battlefields of Iraq and Afghanistan, 
Central Theatre. The Jihadists or their sympathizers are fighting us in 
multiple dimensions largely transparent to the American public and 
using deception as a key strategy. I shall name only a few examples 
that bear directly on law enforcement responsibility and the need to 
assist in developing actionable intelligence.
    They are fighting us using financial crime to counterfeit clothing, 
pirate CD's, DVD's, sunglasses, and other articles, perpetrate related 
fraud and the criminal laundering of money. In the world of information 
technology, there are over 7,000 Jihadist Web sites. Many of these 
sites can be used covertly to communicate with potential sleeper cells. 
They operate domestically using false identification or forged 
documents. The Israeli concept that terrorists commit small crimes 
before they commit big ones is particularly useful in domestic 
deterrence efforts. By example, officers might detect traffic 
violations, criminal trespass, false identification, or giving false 
    This context and these considerations have profound implications 
for the modalities ultimately employed to deter and interdict terrorist 
operational capabilities. Dr. Boaz Ganor asserts that intelligence is 
the key to successful counterterrorism initiatives. In fact, the 
Israelis operate on the concept of intelligence dominance. Information 
and/or data are fluidly moved through varied levels of responsibility 
with potential corresponding operational responses initiated in a brief 
period of time. I shall not discuss specific operational capabilities 
in open source material, but the concept is reasonably clear.
    We need to ensure minimum barriers consistent with operational 
security (OPSEC). This approach should be integrated with State and 
local law enforcement as well as Federal, regional, and international 
security partners to achieve required intelligence objectives. While 
there are obvious reasons to view intelligence strategically, I 
recommend that greater emphasis be placed on training, funding, and 
communicating with local resources. One of the best sources of 
information in this Nation is the old street cop. On the beat or 
mobile, cops are sensitive to things that do not look right or do not 
sound right. By extension, involving corporate or private security, 
educating the public and civic organizations are important tools for 
developing the type of grassroots information required to enhance 
deterrence of further terrorist events.
    We can most assuredly benefit from Dr. G. Edward Deming's 
organizational theory that quality of outcome is based on the 
continuous improvement of processes. Additional emphasis on improving 
intelligence sharing, particularly at the local level, could produce 
dramatic results. Remember, it was a rookie cop on a routine check that 
resulted in the arrest of Eric Robert Rudolph in North Carolina despite 
the commitment of enormous Federal resources. In my own jurisdiction, 
Commerce Police Department has been involved in providing many 
potential leads and information of an unusual nature to the Georgia 
Intelligence Sharing and Analysis Center (GISAC) since 2001.
    The city of Commerce is in Jackson County, Georgia. It is located 
approximately 55 miles northeast of Atlanta. We have a semi-rural 
environment bisected by Interstate 85 and other major State 
transportation corridors. Although we have emerging growth, there is 
still a significant agricultural presence. Smaller towns and 
communities dot the landscape. However, we are not immune from the 
potential for atypical events. Two of the 9/11 hijackers did touch-and-
go landings at Jackson County Airport while flight training out of 
Gwinnett County. Local jurisdictions must be cautious to heed the 
``Terminal Philosophy''; it cannot happen here, and it cannot happen to 
me. There is no guarantee that attacks or the training for those 
operations will occur only in large cities.
    Since 9/11, another example of concern for some local citizens is 
the presence of a Muslim of America (MOA) compound less than 10 miles 
from Commerce called Medina Village. I have been the Chief of Police in 
Commerce since 2001 and have seen local concern ebb and flow through 
the ensuing years. The MOA organization is reported to be affiliated or 
linked to Sheik Mubarak Galani in Pakistan. There have been and are 
residents of Medina Village who either work or patronize businesses 
within our jurisdiction. No violent incidents have been associated with 
the group at this time.
    There are numerous examples of information provided by our agency 
to GISAC. We had a reported theft of 300 gallons of diesel fuel from a 
local supplier. In another time, we would start looking for farmers or 
commercial drivers. In today's world, consideration also had to be 
given to the possibility that the fuel might be used to construct an 
improvised explosive device. In another instance, a phone call made to 
a propane gas company resulted in the reporting of unusual questions 
and interest expressed about tank capacities and operational procedures 
not relevant to private use.
    In my judgment, one of the considerable weaknesses that developed 
during the decade of the '90s was the degradation of human intelligence 
(HUMINT) in favor of signal intelligence (SIGINT). I simply do not know 
how to successfully substitute technology for eyes and ears; boots on 
the ground. The Israeli Model is well-suited to account for a balanced 
approach to this issue. We are fortunate that our GISAC fusion center 
has provided excellent support in the form of law enforcement 
assistance and regular Law Enforcement Bulletins. However, most of the 
information condensed and presented in the bulletins could be 
researched from open-source material with the exception of some 
additional law enforcement sensitive information.
    The unclassified FBI briefs on terrorist attack planning and ``dry 
run'' tactics indicate that terrorists use dry runs during the final 
stages of operational planning to simulate an actual attack, expose 
strengths and weaknesses in the plan and make adaptations to the 
operating environment. Terrorist surveillance and reconnaissance of 
potential targets offer law enforcement and security personnel 
opportunities to observe their activities and implement investigative, 
counterterrorism and force protection measures. Indicators include such 
activities as observing security reaction drills or procedures, 
monitoring police radio frequencies and response times, or 
photographing unusual places. The best resource in position to 
initially assess these types of activities is none other than the 
street cop, security officer, or an observant citizen in the local 
jurisdiction. Expanding the community policing programs in our local 
jurisdictions to accommodate counterterrorism intelligence could 
complement and leverage the gathering of pertinent information. This is 
not to recommend a KGB-style program to spy on your neighbor, but we 
should actively seek to educate the public on being aware of 
surroundings and reporting events that are out of character or out of 
    One of the striking observations that I made on several training 
missions to Israel was the level of sensitivity on the part of average 
citizens to odd occurrences and their willingness to report unusual 
activity. Of course, a large percentage of Israeli citizens are 
veterans of the armed forces, police, or other emergency services and 
by extension have specialized training. I also found that the incident 
response of street officers was dramatically different than basic 
police training in Georgia. The Israelis have uniquely integrated both 
military and civilian police doctrine such that an officer responding 
to a traditional crime responds in a traditional way. However, should 
they discover a terrorist-related event, they stop thinking like a cop, 
start thinking like a soldier, and react accordingly. The reason is 
that their adversary is trained using small unit infantry tactics 
incorporating assault, security, and support elements. This is 
particularly important in a Mumbai-style armed assault. However, it 
demands crucial training officers regarding the rules of engagement. 
Since the two most prevalent types of attack are still bombings and 
armed assault, Israeli police actively train to tactically address 
multiple assailants in a dynamic environment.
    In Georgia, we have many officers limited to punching holes in two 
targets when the whistle blows for annual qualification. They receive 
little in the way of additional training in tactical response. My 
opinion is that our tactical teams and other specialized police units 
are very well-trained by comparison. Although it is perfectly fine and 
desirable to have a state-mandated and standardized course of fire to 
qualify annually, I am convinced based on professional experience that 
officers will respond like they train. This is not to be critical but 
to point out an opportunity to evolve our training doctrine in a 
positive way. The great obstacle to advanced training today is the same 
as it has been historically; funding. There is a symbiotic relationship 
between policy and money. When I was a Navy Lieutenant, I once worked 
for a Commander who had a big sign on his desk that said, ``Money is 
Policy''. It stuck, and I have had that notion reinforced 
experientially. The Law Enforcement Liaison for the United States 
Attorney, Northern District of Georgia, advised me that their office 
received $100,000 post-9/11 for counterterrorism training. They have 
received no additional funding since that time. When training 
requirements are triaged, the funding has to be carved out of the 
operating budget highlighting continued resource limitations. This 
condition is not limited to tactical training operations but general 
training as well.
    Some sources point to an emerging nexus between organized crime and 
terrorism with mutually supportive interests. According to Associated 
Press, about 7,000 people have been killed in the Mexican drug wars 
since 2007. The violence is spilling into U.S. cities in some parts of 
the country. There have been reports of drug cartel members settling 
scores with adversaries in such places as Atlanta, Phoenix, and 
Birmingham, Alabama. I suggest that the potential for drug violence to 
spread into smaller communities will grow significantly. This is a 
wake-up call to either secure or control the border. We probably should 
know something about the individuals coming into the United States. In 
any event, this issue places a further burden on State and local law 
enforcement, and it highlights the escalating importance of the 
intelligence partnership with Federal authorities. The southern border 
could be an Achilles heel for the United States and serve al Qaeda as 
an easy point of entry through which to infiltrate operational teams. 
By the way, the border is the first line of defense in Israel.
    Since al Qaeda is now using what might be characterized as a ``Dune 
Model'' of operations, their strategy is disappearance instead of an 
institutional presence. Command and control are shifting or based on 
loose cells or lone operators. This approach was religiously validated 
by Osama bin Laden's spiritual mentor, Abdallah Azzam. Subsequently, 
Bin Laden issued a fatwa that Muslims have an individual as well as a 
general duty to Jihad. We also are seeing the Da'awa (call) to recruit 
and radicalize converts within western industrialized nations. 
Remember, the attacks against the London subway system were perpetrated 
by British citizens and not foreign terrorists. This is another issue 
that ups the ante for State and local law enforcement resources. We 
must be trained competently in counterterrorism measures supporting 
intelligence dominance. The potential attackers could submerge anywhere 
in our society as individuals or sleeper cells.
    One bright spot in Georgia's intelligence effort is the development 
of the GTIP Program by our fusion center. GTIP is a secure Web-based 
threat/leads tracking system that is law enforcement-sensitive. 
Complete access to the system is available to GTIP partners and limited 
access, such as read-only, may be made available on an as-needed basis. 
GTIP is a Georgia Bureau of Investigation (GBI) program funded by 
Department of Homeland Security (DHS) grants to enhance the 
intelligence capabilities of key major law enforcement agencies across 
Georgia. The E-Team program is the name of the secure Web-based 
software used by the participants and managed by GISAC fusion center 
supervisors to process and address tips or leads for appropriate 
action. This provides an emerging high-tech tool to facilitate 
information sharing and coordination of counterterrorism activities 
among partners. By definition, counterterrorism measures are offensive 
(military) or proactive (law enforcement), whereas anti-terrorism 
measures are defensive and tend to be self-enforcing such as the wall 
of separation between parts of Israel and designated Palestinian areas 
to prevent uncontrolled access to the country.
    As a final note, my Israeli contacts do not hold the Homeland 
Security Advisory System in high esteem. The primary reason is that it 
conveys a vague sense of alarm to the public without specific guidance 
for appropriate action. I recommend that this process be reviewed to 
enhance its effectiveness. There is specific guidance for public safety 
entities within each level of alert similar to the military defense 
condition (DEFCON) system. However, vague alarms can arguably 
precipitate a general unease that actually supports terrorist 
    My recommendations and conclusions are summarized as follows:
    1. The United States should make good use of the Israeli Model for 
        Homeland Security. There is a reason that their counter 
        measures stop more than 90 percent of attempted attacks. 
        Central to this success is intelligence dominance derived from 
        integrated resources and combined with the ability to rapidly 
        conduct surgical interdiction of terrorist operations. The 
        result is to reduce or neutralize threats and minimize 
        collateral damage including civilian casualties.
    2. Domestic law enforcement must assess and evolve their training 
        doctrine to address the potential for asymmetrical tactical 
        threats posed by the phenomenon of terrorism.
    3. Consider designating an intelligence officer in every State or 
        local law enforcement agency regardless of size. Process that 
        officer for a security clearance through the FBI Liaison 
        Program in order to enhance processing of sensitive or 
        classified information.
    4. Expand access to information technology such as the GTIP Program 
        in Georgia to facilitate the flow of information between 
    5. Money is policy. Consider additional funding of law enforcement 
        training for counterterrorism particularly the local level. 
        There are alternative mediums through which to facilitate 
        training programs.
    6. Review the Homeland Security Advisory System as it relates to 
        public release. Consider adding specific public guidance at 
        each level of alert or eliminating the alert status altogether 
        for public notice.
    7. Winning does not necessarily mean annihilating the enemy. 
        Stabilizing areas of conflict and maintaining our way of life 
        may prove to be a better measure of success. Employing the 
        Roosevelt Doctrine of speaking softly but carrying a big stick 
        could prove to be useful while seeking diplomatic 
    Mr. Chairman, thank you for the privilege of testifying before your 
committee on a topic so vitally important to the security interests of 
the United States. In closing, may I say that all measures considered 
for homeland security must be balanced with the expectation of privacy 
and inalienable rights of the American people. As Dr. Franklin once 
observed, ``Those who exchange freedom for security end up with neither 
freedom nor security.'' If we concede our freedoms, the terrorists win. 
I pray that G-d will have mercy on this Nation and sustain our way of 

    Ms. Harman. Thank you all for excellent testimony. All of 
you not only addressed the need to collect information but the 
need to protect civil liberties, and I think every member of 
this panel applauds that.
    I often use a precious sound bite, Chief Gaissert, based on 
what Ben Franklin said. My version is: Security and liberty are 
not a zero-sum game. You either get more of both or less of 
    Obviously, this committee is determined on a bipartisan 
basis--I am sure everyone agrees--to get more of both; and that 
is why we are starting today with this hearing.
    Commander McNamara, I read ahead; and you are going to hear 
some comments from the second panel about SARs and some of the 
risk of SARs. Would you describe it briefly, what it is? I know 
it is in your full testimony, but not everyone in the audience 
has read it, your full testimony, that is. What is it, and what 
isn't it?
    You mentioned that you have gone national with this idea. 
Who is using it, and is DHS using it or should DHS be using it?
    Finally, if we would have had SARs up and running somewhere 
here in some port city, could it have been useful to guard 
against a Mumbai-style attack?
    Ms. McNamara. Thank you, Madam Chair. All great questions 
and thank you for that opportunity.
    The SAR process, as the Sheriff or the Chief mentioned, is 
about indicators, identifying the indicators that--all pre-
operational in terrorism in domestic and international cases. 
We found a common thread. So we identified in Los Angeles about 
65 indicators. Training your officers on those indicators so 
that they are aware of what is happening.
    Ms. Harman. Could you list a couple so we get a better 
    Ms. McNamara. Absolutely.
    Obtaining illicit explosives is one that is an obvious one. 
It is one that we never listed before. Putting our officers in 
contact with that.
    Securing security measures or taking security plans. Our 
officers run across many times that type of thing.
    Suspicious photography, but suspicious. I had a recent 
example of a laundromat who found a disk in the pocket at a 
local cleaners. They looked at the photographs, and they 
happened to be of a local airport: the fence line, the TSA, the 
airplanes on the tarmac. They handed that over. We took that 
    Interesting enough, we did the investigation; and it 
happened to be an airport personnel taking those photographs. 
But had we not had that capability, that would have been one of 
those unknown things.
    So SARs gives us the ability not only to investigate and 
connect dots; it helps us eliminate potential threats as well. 
So we are training in Los Angeles specifically on the 
indicators for our officers.
    As you can see, it has garnered a lot of success.
    Ms. Harman. Who makes a decision what becomes a ``dot'' on 
your map and what doesn't? Does the individual who has the 
training? Or is there some kind of supervision and perhaps some 
punitive action against those who are not careful?
    Ms. McNamara. I think that is the greatest thing about it. 
We took our crime report from Los Angeles, and there is a lot 
of value on our crime report, and we adjusted the crime report. 
All cops in Los Angeles are very familiar with the crime 
report. They just put exactly what happened. Like the case of 
the laundromat, they write the details.
    Those details, that report, is then--a supervisor in Los 
Angeles then reviews the report, makes sure that it is reported 
properly. So every supervisor in Los Angeles has been trained 
on this SAR process. So they understand the difference at the 
front-line level.
    Once a SAR is signed by a supervisor, then it goes to our 
Criminal Intelligence Bureau where they code it so they put the 
indicator numbers so we know that that indicator is 
    Ms. Harman. So there are really three sets of eyes: the 
intake, the supervisor, and the dot decisionmaker on each 
report; and the reports are standardized--I know this is part 
of the magic of this--so that it is apples-to-apples. Then you 
put this stuff up on a map and these dots appear, and if a lot 
of them appear around a particular facility, that is cause for 
concern; is that right?
    Ms. McNamara. That is correct.
    I would like to add another layer. Because before managers 
and executives at my level were not able to see these pictures 
emerging, it is a management accountability tool as well. I 
have seen several patterns emerge that I have been able to 
    Ms. Harman. In 29 seconds, can you tell us if this device 
could have helped with the Mumbai-style attack?
    Ms. McNamara. Absolutely. Cops ask the right questions. In 
the report, they are more specific to date, to time, to 
    If the Mumbai attacks had SARs, we would have been able to 
predict the time of attack. We would have been able to put the 
proper resources into place to prevent a terror attack.
    Ms. Harman. I yield 5 minutes of questions to the Ranking 
Member, Mr. McCaul.
    Mr. McCaul. Thank you, Madam Chair.
    I want to make a few comments and throw out a general 
    Commander McNamara, I commend you for putting out the SAR 
program. I think it is a real model. It is a great idea coming 
from a local area, and I look forward to the integration with 
DHS in terms of trying to develop this model across the Nation.
    Sheriff Gillespie, I want to comment on the idea of this 
foreign liaison that you mentioned and the advisory board. That 
is something I would like to take a stronger look at. Security 
clearances are going to continue to be an issue, and I am sure 
that Madam Chair and I will be working closely on that.
    Mr. Edwards, the tribal lands had been ignored in this 
process; and I think it is time we start looking and paying 
attention to that. I have several tribes in my State of Texas, 
many right on the border; and that is an area of tremendous 
concern. So we look forward to working with you on that 
important issue.
    Finally, Chief Gaissert, I liked your comparison to the 
Israeli model. As I mentioned in my opening statement, we met 
over in Israel with the Minister of Security. He told us how it 
is really intelligence. You win this by good intelligence. 
They--we have a lot to learn, I think, from Israel; and I was 
very interested in your comments on that.
    Finally, you said in your statements that terrorist commit 
small crimes before they commit big ones. We refer to the 
traffic violations of the 9/11 highjackers, Tim McVeigh. It is 
a good example of how we caught somebody on a traffic 
    What I am interested in is when I worked in the Justice 
Department, really the only thing we had to share information 
or integrate after 9/11 were the Joint Terrorism Task Forces. 
The idea of these fusion centers was just a sort of a concept. 
At that time, it was nowhere near a reality. It is still not a 
reality, I think, to the extent that maybe it should be across 
the Nation.
    So I just wanted to throw that out with the 2\1/2\ minutes 
that I have for anybody who would like to answer that question. 
Can you tell me the current state of your relationship with 
these fusion centers and with the Joint Terrorism Task Forces 
and how we can better improve that coordination?
    Sheriff Gillespie. You know, from the Las Vegas 
perspective, Mr. McCaul, I would say we rely heavily on the 
fusion process in our day-to-day crime fighting as well as the 
integration of homeland security-type information. I think the 
ricin incident that was talked about before was a prime example 
of that.
    No. 1, it was a cop on the street that realized that a sick 
individual, some of the writings in the room, and animals not 
feeling well--the cop put the dots together on this and 
immediately contacted our fusion people. With the process of 
that, from our standpoint, we started looking at a local. Then 
when we started to see some of the signs that we did, we were 
easily integrated into the Federal side of it.
    Then our response to it. If we hadn't been proactive in our 
all-hazards approach to not only the investigation but the 
mitigation of these types of situations, we wouldn't have had 
the ability to send a specially trained group, cross-
disciplined, cross-organizations. Our two fire departments and 
our police department participate in our ARMOR program; and, 
basically, we have a hazardous material, a C-burn, and an 
explosive response with an investigative component. They 
responded out there. They were able to determine if there were 
any ricin levels out there or in another hotel room.
    But the other part I will say is we are not there yet. We 
at the local law enforcement need to be integrated at the 
national level and developing the policies that are created to 
expand upon that which we currently have. We can't be the 
afterthought. We have to be there initially.
    Mr. McCaul. Commander McNamara, can you tell me about your 
relationship locally with your fusion center with your SARs 
    Ms. McNamara. I think as we move forward on the SARs 
process it is going to add the structure that the fusion 
centers need right now. I love the concept of the fusion 
centers. By having the correct mechanisms at the fusion 
centers, it adds that structure. It gives you that ability to 
paint that regional picture that you are looking for and 
connect those dots regionally. Then, of course, to our partners 
like Sheriff Gillespie, we enjoy a great relationship and they 
talk over cross-border.
    So I really like what the future looks for at the fusion 
center with the SARs process being interjected.
    Ms. Harman. Thank you, Mr. McCaul. I just would note that 
at a hearing in the last Congress, where Mike Leiter, the head 
of National Counterterrorism Center, testified, he made the 
point that someone in the ITACG suggested that in an 
intelligence product prepared by the ITACG, they should 
describe ricin. Now that you hear what I just said, it seems 
incredible that a product saying ricin is a threat in local 
areas wouldn't describe what it looks like. Fortunately in Las 
Vegas they have very smart cops.
    The Chair now yields 5 minutes for questions to Mr. Carney 
of Pennsylvania.
    Mr. Carney. Thank you, Madam Chair.
    First let me say in listening to your testimony, I am very 
heartened by the quality of folks we have in the field on the 
front lines. It makes me feel a little bit better. The task 
that you have is enormous. But for starting with this quality, 
there is no task we can't manage.
    Let me ask a question to all of you from about the 50,000-
foot level. What keeps you up at night in terms of terrorism? 
Ladies first, I guess.
    Ms. McNamara. I think I feel better about sleeping now that 
we have the ability to connect these dots that we talk about. 
Prior to this process, prior to being able to paint a picture 
what is going on in your local communities, being able to 
protect your communities, knowing that you had this tremendous 
responsibility once the paradigm shift occurred after 9/11, 
that you did not have the mechanisms and the standardizations 
in place to see emerging patterns and to redeploy 
appropriately, that is what kept me up.
    What keeps me up now is the excitement of where this 
process is going and what is going to happen to make this 
America safer.
    Mr. Carney. Thank you.
    Sheriff Gillespie. Actually I can be very honest in telling 
you that I sleep well. I won't tell you that there aren't 
things that bother me, but I know that there are many people in 
my profession, State, local, and Federal, that are literally 
working long hours and days to keep not only their communities, 
but this country safe.
    But with that being said, even pre- the Mumbai incident, 
one of the things in my hometown that we have constantly talked 
about and constantly worries us is not necessarily the al Qaeda 
attack, but the individual and/or individuals wishing to make a 
statement. They may not necessarily be from abroad; they could 
be very well within. So I can tell you that that is the one 
aspect of my job that continually raises the hair on the back 
of my neck.
    Mr. Carney. Thank you.
    Mr. Edwards.
    Mr. Edwards. There are actually two things that keep me 
awake at night when I look at tribal issues. One is the tribal 
families that live on or near the borders and the terror and 
decisions that they have to go through on a daily basis. Most 
of them are unemployed, or a lot of them are, very poor 
incomes. You have a tremendous threat of people trying to pay 
for their way to get their support. Some of them are family 
members, you have those terrors, and some of them are just 
afraid because of violence going on in their neighborhoods. 
Then I worry about that spreading from Indian Country to the 
other non-Indian Country outside the reservations.
    The second thing that keeps me up is the vastness of Indian 
lands and the lack of protection and the lack of law 
enforcement. I worry about some group, whether it is national 
or international, that plan and plot a terrorist act that takes 
place in the United States, devastates the reservation, 
devastates the non-Tribal communities, and the Tribes are 
looked at as not doing their job and letting the country down, 
and we are not that way as Indian people.
    Thank you.
    Mr. Carney. Chief.
    Chief Gaissert. Congressman, I am confident in the 
abilities of American law enforcement. With that said, I have a 
concern about the potential for sleeper cells. We know that al 
Qaeda is recruiting and radicalizing within the Western 
industrialized nations. I would like to point out it was 
British citizens who attacked the London subway, not foreign 
insurgents or foreign terrorists.
    Also, I want to take a moment to just tell you how 
critically important I believe it is to educate and train our 
first-line responders, particularly the street cop, because it 
is the ability to interdict or to develop that critical data or 
information at the ground level that may deter the attack. 
Remember, it was a rookie cop that netted Eric Rudolph, not the 
vast Federal resources committed in North Carolina. It touches 
the local level.
    We had two of the 9/11 highjackers who did touch-and-go 
landings at Jackson County Airport in Georgia prior to 9/11. I 
worked for a commander at one that had a sign on his desk that 
said, money is policy. It assumes to be a symbiotic 
relationship between the two. I hope we can at least place 
greater emphasis on that process.
    Thank you.
    Mr. Carney. Thank you. That sign on the desk is amazingly 
candid actually.
    I have a lot more questions. I will yield back, though.
    Ms. Harman. Thank you.
    The Chair now recognizes Mr. Dent of Pennsylvania for 5 
    Mr. Dent. Thank you, Madam Chair.
    I guess I will take a slightly different spin on 
Congressman Carney's question. As opposed to what keeps you up 
at night, is there an overarching intelligence need that you 
all have in common? If there is, do you think the DOJ and 
Homeland Security Department are doing enough to help you meet 
those needs?
    I guess I will start at the other end. Chief Gaissert.
    Chief Gaissert. Thank you, Congressman.
    It has been my personal observation that we have certainly 
improved the communication between State, local, and Federal 
agencies since 9/11. But to use Dr. Deming's management concept 
of trying to approach it from a process of continuous 
improvement, there is certainly room to grow that relationship.
    We receive bulletins both from the Fusion Center, from 
Joint Terrorism Task Force and various sources, but I think 
there is a huge opportunity to better improve that process. As 
I indicated in my earlier testimony, if we had a designated 
intelligence capability within each agency, that might help 
facilitate that process.
    Mr. Dent. Thank you.
    Mr. Edwards. I believe that the greatest thing that is 
needed is getting people on-line and getting the information 
moved along more quickly. I think we have a lot of duplicative 
efforts that now in times of troubled economy that we don't 
need. We have people that don't know the roles in intelligence, 
and they are not getting the information out in a timely 
fashion. They don't understand about the collection procedures 
and how it is distributed even on a national basis. I think a 
lot of attention should be paid to that quickly, and there 
should be demands made by Congress that they report back as to 
progress they have made within a short period of time.
    Mr. Dent. Sheriff Gillespie.
    Sheriff Gillespie. No doubt improvements have been made 
since 9/11; however, from my perspective, I read a book once, 
``Five Dysfunctions of a Team'', and fear of conflict and lack 
of trust--I believe those are the stumbling blocks to us in our 
information-sharing process. I believe we are making inroads, 
but as I stated before, that aspect of including us in the 
development of policies and protocols is essential to this 
information sharing from an intelligence standpoint throughout 
    Mr. Dent. Who don't you trust?
    Sheriff Gillespie. Well, I don't think it is that I don't 
trust. I think other agencies don't necessarily trust. I think 
there is ingrained levels of distrust within law enforcement 
communities. I use an example, when I was a street cop, I would 
carry around my notebook, and I still have it today. I used to 
write a lot of information in it. In the early days in 
policing, you didn't hand that off to someone, you kept it 
pretty close to yourself.
    Over the years we have learned that that is not the most 
appropriate way nor the effective way or efficient way to do 
policing. We are dealing with that at the national level, and I 
don't think we can turn a blind eye to it. I don't think we can 
ignore it. You have to deal with the brutal facts, and the 
brutal facts are we are not necessarily exchanging the 
information as quickly and as efficiently as we need to.
    How do we overcome that? I believe including us in the 
processes, asking us our thoughts. We made the commitment a few 
weeks ago to Secretary Napolitano. She took time out of her day 
to come and meet with myself, Gary and a variety of other law 
enforcement officials, and we said to her, we are willing to 
commit our resources to come back here and do that.
    Behind me sit two officers from my agency, one of which is 
assigned to the NCTC, part of the ITACG program. I tell you 
what, if I will commit someone to that, I commit another person 
to the NOC, I will definitely commit someone to working on 
these policies.
    Mr. Dent. Commander.
    Ms. McNamara. I recently did a loan with Director Leiter at 
the National Counterterrorism Center. It was very enlightening 
for us, and it highlighted what we lack. Local law enforcement 
lacks the timely, consistent flow of information and 
intelligence that we could put on top of our SAR process for 
true situational awareness. We also lack the proper receptacles 
at local law enforcement and the processes. So we need 
improvement as well. So it is not just the Federal look, but it 
can be blended to do a better job in the future.
    Mr. Dent. Yield back.
    Ms. Harman. The gentleman yields back.
    I would point out to our witnesses something that we say in 
many hearings. This committee views its role as representing 
you at the Federal level, not the other way around, 
representing the Federal level in the communities. We think 
your perspective that the way information is prepared and the 
way information moves is--for you is exactly right, and that is 
why we have made such an effort to include local law 
enforcement in the ITACG team process, which we insisted on, by 
the way. That is why we continue to think that the I&A function 
should be primarily led by people with your perspective.
    The Chair now yields 5 minutes to Mr. Green of Texas.
    Mr. Green. Thank you, Madam Chair. I thank you and the 
Ranking Member for this outstanding hearing. I am most 
appreciative that we have these witnesses who have provided us 
with information that I deem to be critical and exceedingly 
    I believe that our mission is to limit the use of our first 
responders by making greater use of our first preventers. I 
think that a number, a good number, of you talked about how 
first preventers can prevent the use of first responders. I 
think it is important what has been said about educating first 
preventers and understanding who the first preventers are.
    Chief, you reference the officer on the street, clearly a 
first preventer. But I would also add to a certain extent, with 
your consent and permission, because I would like to hear your 
response, the security officer who may be a licensed peace 
officer or who may not be, but who does have a watch, who may 
be at a hotel or on some apartment complex. I would add that we 
broaden that concept of first preventers such that we include 
literally anyone who has a watch, such that the person 
understands that he or she is a part of a homeland security 
network, and that intelligence acquisition is in his or her 
hands while he or she is on watch, and perhaps while you are 
off watch if something out of the ordinary should come within 
your purview.
    So, Chief, if you would, tell me how broad do you think the 
definition of first preventers should be?
    Chief Gaissert. Congressman, I appreciate your 
observations. They are poignant, and I address this to some 
extent in the full written testimony, but this is one of the 
salient strengths of the Israeli model of homeland security, 
because they integrate the ability to obtain information from 
citizens, from private security companies, from civic groups, 
from anyone who has eyes and ears on the ground. So first 
preventers, in my view, would reasonably be the citizen on the 
street. If we can get them to understand that when they see 
things, it is like an old street cop: If it don't look right or 
it don't sound right, and he starts scratching into it or she 
starts looking into it a little bit, if it don't look right or 
it don't sound right, somebody needs to notify the appropriate 
    That doesn't mean to create some panic situation or to try 
to foster some sort of mentality of paranoia, but it does mean 
that we need to educate our first responders and the public in 
general on preattack indicators.
    Mr. Green. Thank you, Chief.
    Let me make one additional comment--I have about a minute 
and 10 seconds left--to Mr. Edwards. Sir, you indicated that, 
and I am paraphrasing, that you perceive yourself to be on 
paper, but off the radar, and I paraphrased it, but that was 
the essence of what I heard. I would like to give you an 
assurance, and I believe that this is what persons of goodwill 
would say, is that we want to make sure that you are not only 
on the radar, but you are part of the system that operates the 
radar, and that we make good use of the intelligence that you 
may be able to help us and provide to us. But for fear that I 
may not have heard you entirely correct, would you kindly give 
additional information as to the extent that you perceive 
yourself to need greater inclusivity?
    Mr. Edwards. Your statement was exactly accurate, and I 
thank you for that, sir. I thank the committee for being 
concerned here. I think that is exactly right. It is just like 
everyone here today; whenever you talk about law enforcement or 
partners or communications, you are talking about State and 
local. When you talk about the head of DHS or I&A, you are 
talking about State, local sheriffs, no mention of Tribal. If 
you look at the legislation, we have done a good job of getting 
Tribal in there. Everywhere it says Federal, State, and local, 
we have got Tribal in there. But it is in there, but it is not 
really happening out in the field.
    To give you a prime example of that, with regard to a 
survey that was just sent out by the ITACG and we just got back 
regarding fusion centers and regarding the packages of 
information that they are sending down, the intelligence down 
to the field, they contacted 480 outlets. Of that 480 that 
responded, only 3 were Tribal. Two represented Tribal fire 
departments from California and one Tribal law enforcement from 
Alabama. So consequently, that is a prime indicator that we are 
not included.
    Eighty percent of the Navajo reservation, larger than the 
State of West Virginia and several Northeastern States, has 80 
percent inability to communicate via radios or cell phones on 
that vast reservation. A lot of people out there, their primary 
first language is not English. Native Americans in dealing with 
Native American communities are unique, and they must be dealt 
with uniquely because of the cultural differences and the 
isolation that has been placed on our people in dealing with 
things for hundreds of years. But we are open to work and help. 
We have had one hand tied behind us because we are a small 
population, and in many places like the Navajo Reservation, we 
have parts of the reservation in four separate States. It 
almost makes it impossible to meet the requirements to be able 
to get Homeland Security funding through the State.
    But yet with that arm tied behind our back, we are still 
fighting, and we are fighting for this country and the citizens 
of this country, and we need your help to make sure we are 
    Ms. Harman. Thank you, Mr. Edwards, and thank you, Mr. 
Green. I let the time run over because I thought it was very 
important for that statement to be on the record. I also want 
to suggest, if it has not happened yet, that a Tribal person be 
one of the local people included in the ITACG in the near 
future. I think your perspective is very valuable.
    A final set of questions comes from Mr. Broun of Georgia.
    Mr. Broun. Thank you, Chair Harman.
    We know that information sharing is a vital part of 
preventing the next terrorist attack. I, as well as, I am sure, 
you, have gathered from what Chair Harman has stated and my 
dear friend Mr. Green has stated that we consider you guys to 
be right on the front line of that information-gathering 
process as well as sharing that information.
    The Department of Homeland Security has the responsibility 
to receive the information from and to provide information to 
the State and local law enforcement. I know that everyone on 
this subcommittee wants to ensure that the information that you 
receive from the Department is useful at your level, the local 
level, as well as the State level.
    Chief Gaissert, could you elaborate on the specific 
challenges that rural law enforcement agencies and officials 
face with regard to dealing with terroristic threats in more 
rural areas? Specifically are you getting enough information to 
deal with the threats in your specific jurisdiction?
    Chief Gaissert. Congressman, we have special challenges in 
rural and semirural areas of this Nation. Primarily among them 
would be manpower and boat, the equipment and type of 
particularly tactical training that would be necessary to meet 
that type of threat, certainly if we were engaged in some sort 
of Mumbai attack.
    In my view, training would be one of the most critical 
components, and it is an area where we do need more support. I 
think that you would find in most jurisdictions, such as ours 
in Jackson County, Georgia, that the average police officer 
does not receive much in the way of counterterrorism training 
outside of the 4 hours in basic mandate, which is in basic 
academy training. Once that is completed, unless they seek out 
on their own or their agency will support that process, there 
is little in the way of additional training. That is not to say 
that we don't have very well-trained tactical teams and a 
specialized or special operations unit. I was a street cop, and 
my heart is with that street officer, and I think that is 
probably one of the greatest opportunities we have to deter and 
to interdict terrorist attacks.
    We are facing a very determined enemy. Take a moment in 
December 1978, the 40th Soviet Army rolled into Afghanistan. By 
1985 they had approximately 130,000 troops in theater. They 
left in 1988 with 26,000 casualties. Now, these were not Boy 
Scouts; these were combat veterans, and they had reasonably 
good equipment. Albeit we were providing sport to the 
mujahideen; however, once that action was over, an American 
journalist interviewed a Taliban leader and asked him this 
question. He said, how is it that you were able to fight the 
Russian Army to a stump on horseback? The response was this, 
and I quote. He said, ``We intended to fight to the last man, 
and they didn't.''
    General Sun Tzu said in the 6th century you have to become 
your enemy. You have to understand him and his epistemology 
through his eyes. So I think we have a real opportunity and 
duty to educate particularly down to the street officer level 
exactly the nature and character of the enemy, as well as to 
provide him with the tools necessary to meet that challenge 
should it occur.
    Mr. Broun. Well, thank you. I have got a whole bunch of 
questions I am sure we are going to submit to you guys.
    I as well as, I think, everybody on this committee are very 
concerned about homegrown terrorists. So I would just like to 
add that I am going to ask you all a question, each of you, 
about preventing homegrown terrorism and how to interdict that 
type of threat in this Nation. So I would like to get your 
ideas in writing. So I look forward to your answers on that, 
and, Madam Chair, I yield back.
    Ms. Harman. Thank you, Mr. Broun. I assume it is fine with 
the witnesses to respond in writing to that very important 
question. Great.
    This panel has been excellent. All of you have contributed 
important information to the record of this committee. I would 
love to go a second round, but we have a second panel. If it is 
possible for you to remain here, that would be good, because 
you will hear some thoughtful testimony, I promise you it is 
very thoughtful, on some issues that are involved in getting 
homeland security intelligence right. So please stick around if 
you can. Certainly our committee Members will stick around.
    It will take about a minute for the clerk to change the 
witness table, so we will suspend for a minute or two. Thank 
    Second panel are all set up? Very efficient. I want to 
commend the clerk and welcome the second panel of witnesses.
    Our first witness is not new to this committee and 
certainly not new to me, Caroline Fredrickson, who is the 
Director of the Washington Legislative Office of the ACLU. She 
is that organization's top lobbyist and supervises a nearly 60-
person team in promoting ACLU priorities in Congress.
    Ms. Fredrickson has years of experience as a senior staffer 
on Capitol Hill, having previously served as Chief of Staff to 
Senator Maria Cantwell and as Deputy Chief of Staff to then-
Senate Minority Leader Tom Daschle. In 1998 and 1999, she was a 
Special Assistant to the President for Legislative Affairs, a 
position that required her to work closely with both parties in 
the Senate to forge bipartisan agreements on the White House's 
legislative priorities. She is a Columbia University Law School 
graduate and was a Harlan Fiske scholar.
    Our second witness, Greg Nojeim, again is not new to me and 
not new to the projects of this committee. He is the Director 
of the Project on Freedom, Security & Technology at the Center 
for Democracy & Technology.
    Mr. Nojeim has substantial experience on the application of 
the Foreign Intelligence Surveillance Act and on the civil 
liberties protection it affords. His expertise also includes 
governmental data mining, the PATRIOT Act, the state secrets 
privilege, and the privacy implications of aviation security 
    Mr. Nojeim previously worked at the Washington Legislative 
Office at the ACLU, a little incestuous here, for 12 years. He 
has frequently testified before Congress about antiterrorism 
and aviation security legislation counterterrorism proposals, 
the use of secret evidence in immigration proceedings, driver's 
license privacy, aviation security profiling, and the intrusive 
body scan technologies, and finally the threat to civil 
liberties that might be caused by national ID cards.
    Our third witness, Kate Martin, is the Director of the 
Center for National Security Studies, another old buddy. That 
is a nonprofit human rights and civil liberties organization. 
She previously served as litigation director for the center 
when it was a joint project of the ACLU and the Fund for Peace.
    From 1993 to 1999, Ms. Martin was also codirector of a 
project on security services in a constitutional democracy in 
12 former Communist countries in Europe. She has taught 
strategic intelligence and public policy at Georgetown Law 
School and also served as general counsel to the National 
Security Archive, a research library located at the George 
Washington University.
    Ms. Martin has litigated causes involving the entire range 
of national security and civil liberties issues, including 
serving as lead counsel in a lawsuit brought by more than 20 
organizations challenging the secret arrest of 1,200 people in 
the wake of September 11.
    As you all know, your written testimony will be printed in 
the record in full. I am now asking that each of you summarize 
your written testimony in 5 minutes. We will start with Ms. 


    Ms. Fredrickson. Good morning, Chair Harman, Ranking Member 
McCaul, and my dear friends and colleagues on the panel. Thank 
you very much for the opportunity to testify on behalf of the 
American Civil Liberties Union.
    The ACLU testified before the full Homeland Security 
Committee in 2007 to express our concerns about the 
Department's use of spy satellites through its National 
Applications Office. We would like to thank Chairman Thompson 
and Chair Harman for their leadership in challenging NA's 
funding unless and until a proper legal framework can be 
established to protect the privacy of Americans.
    Recent news that DHS is using Predator drones for 
surveillance on our northern border raises similar concerns, as 
do warrantless laptop and cell phone searches and other data 
seizures at the U.S. border, and we look forward to working 
with you to address these concerns.
    My written testimony explores both practical and 
theoretical problems with the concept of homeland security 
intelligence, but in my time today I will focus on known 
    By their nature, all domestic intelligence operations pose 
a threat to civil liberties and democratic processes. Whenever 
the Government is involved in gathering information about 
Americans, absent a reasonable suspicion of criminal activity, 
there is a substantial risk of chilling lawful dissent and 
    As the Supreme Court observed in the Keith case, history 
abundantly documents the tendency of Government, however 
benevolent and benign its motives, to view with suspicion those 
who most fervently dispute its policies.
    Let me highlight a few recent incidents that suggest DHS is 
ignoring this history in its zeal to establish an intelligence 
role and improperly monitoring peaceful advocacy groups and 
religious and racial minorities. Last month a Texas fusion 
center supported by DHS released an intelligence bulletin that 
described a purported conspiracy between Muslim civil rights 
organizations' lobbying groups, the antiwar movement, a former 
U.S. Congresswoman, the U.S. Treasury Department and hip-hop 
bands to spread sharia law in United States.
    The bulletin, which reportedly is sent to over 100 
different agencies, would be laughable, except that it comes 
with the imprimatur of a federally backed intelligence 
operation, and it directs law enforcement officers to monitor 
the activities of these groups in their areas.
    We don't know whether anyone launched surveillance of hip-
hop artists based on this report, but if they did, it would be 
far from the first such silly and unjustified investigation in 
our history.
    The ACLU of Maryland recently uncovered a Maryland State 
Police intelligence operation that targeted 53 nonviolent 
political activists, including peace activists, Quakers, and 
death penalty opponents, based solely on the exercise of their 
first amendment rights. We now know that DHS was involved in 
collecting and disseminating the e-mails of one of the peace 
groups subjected to the Maryland spying operation. This is 
alarming, particularly because DHS representatives had 
previously denied to Members of Congress that DHS had any 
information on the matter. A DHS spokesman later told the 
Washington Post that law enforcement agencies exchange 
information regarding planned demonstrations, ``every day.''
    A March 2006 protective intelligence bulletin issued by the 
Federal Protective Service listed several advocacy groups that 
were targets of the Maryland operation. It contains a, ``civil 
activist and extremist action calendar,'' that details dozens 
of demonstrations planned around the country, mostly peace 
rallies. There is no indication anywhere in the document to 
suggest that illegal activity might occur at any of these 
demonstrations. The Federal Protective Service apparently 
gleans this information from the Internet, but it is not clear 
under what authority DHS officials are monitoring the Internet 
to document and report on the activities of, ``civil 
    What is clear is that the Maryland police and DHS spying 
operations targeting peaceful activists serve no legitimate law 
enforcement, intelligence, or homeland security purpose. They 
were a threat to free expression, and they were a waste of time 
and money.
    Another intelligence report produced for DHS by a private 
contractor smears environmental organizations like the Sierra 
Club, the Humane Society, the Audubon Society as, ``mainstream 
organizations with known or possible links to ecoterrorism.''
    Spying on the innocent does not protect security. Domestic 
intelligence operations are dangerous to our freedom unless 
they are narrowly focused on real threats, tightly regulated, 
and closely monitored.
    We look forward to working with this subcommittee to 
examine DHS's involvement in monitoring peaceful advocacy 
organizations and to construct checks and balances that will 
prevent abuses.
    [The statement of Ms. Fredrickson follows:]
               Prepared Statement of Caroline Fredrickson
                             March 18, 2009
    Good morning Chair Harman, Ranking Member McCaul, and Members of 
the subcommittee. Thank you for the opportunity to testify on behalf of 
the American Civil Liberties Union, its hundreds of thousands of 
members and 53 affiliates Nation-wide, regarding the intelligence 
activities of the Department of Homeland Security (DHS). As you know, 
the ACLU testified before the full Homeland Security Committee in 2007 
to express our concerns about the Department's domestic use of spy 
satellites through its National Applications Office (NAO).\1\ We know 
this committee shares our unease with this program and we would like to 
thank Chairman Thompson and Chair Harman for their leadership in 
challenging the NAO's funding unless and until a proper legal framework 
can be established to protect the privacy of ordinary Americans.\2\ 
Recent news that DHS is using Predator drones for surveillance on our 
northern border raises similar concerns,\3\ as do warrantless laptop 
and cell phone searches and other data seizures at the U.S. border. We 
look forward to working with you to address these matters.
    \1\ Turning Spy Satellites on the Homeland: the Privacy and Civil 
Liberties Implications of the National Applications Office: Hearing 
before the H. Comm. on Homeland Security, 110th Cong. (Sept. 6, 2007) 
(statement of Barry Steinhardt, Director, Technology and Liberty 
Program, American Civil Liberties Union), available at http://
    \2\ See Letter from Rep. Bennie G. Thompson, Chairman, Committee on 
Homeland Security, U.S. House of Representatives, Rep. Jane Harman, 
Chair, Subcommittee on Intelligence, Information Sharing, and Terrorism 
Risk Assessment, Committee on Homeland Security, U.S. House of 
Representatives, and Rep. Christopher P. Carney, Chairman, Subcommittee 
on Management, Investigations, and Oversight, Committee on Homeland 
Security, U.S. House of Representatives, to Michael Chertoff, 
Department of Homeland Security and Charles Allen, Office of 
Intelligence and Analysis, Department of Homeland Security (Apr. 7, 
2008) (on file with authors), available at http://www.gwu.edu/nsarchiv/
    \3\ Drone to Patrol Border Between Manitoba and North Dakota, The 
Canadian Press, Feb. 16, 2009, http://cnews.canoe.ca/CNEWS/World/2009/
    But rather than focus on particular programs I would like to ask 
more fundamental questions about the role of intelligence in homeland 
security, and particularly within DHS. As explained below, problems 
inherent in the way the intelligence community produces 
``intelligence'' limit its reliability, rendering its value in 
improving security suspect. In addition, ``homeland security'' is a 
relatively new and exceptionally broad concept that combines protecting 
against traditional threats from hostile nations, terrorists, and other 
criminal groups with preparing to respond to outbreaks of infectious 
disease, natural disasters, and industrial accidents. While these are 
all important missions, taking such an unfocused ``all crimes, all 
hazards''\4\ approach to intelligence collection poses significant 
risks to our individual liberties, our democratic principles and, 
ironically, even our security. Frederick the Great warned that those 
who seek to defend everything defend nothing. Especially at a point in 
history when the troubled economy is regarded as the most significant 
threat to national security, we must ensure that all of our security 
resources are used wisely and focused on real threats.\5\ 
Unfortunately, U.S. intelligence activities have too often targeted 
political dissent as a threat to security, which has led to misguided 
investigations that violated rights, chilled free expression, and 
wasted the time and resources of our security agencies. Recent events 
indicate that in its zeal to fulfill its broad mandate and establish an 
intelligence capability, DHS is repeating these mistakes. If DHS is to 
have a meaningful intelligence role that actually enhances security, it 
must assess the information it produces accurately, identify an 
intelligence need to be served, and evaluate whether it can fill this 
need without violating the privacy and civil rights of innocent 
Americans. Congress should evaluate these programs regularly and 
withhold funding from any activities that are unnecessary, ineffective, 
or prone to abuse.
    \4\ Todd Masse, Siobhan O'Neil & John Rollins, Congressional 
Research Service, CRS Report for Congress: Fusion Centers: Issues and 
Options for Congress 22 (July 6, 2007), available at http://
    \5\ Current and Projected National Security Threats to the United 
States: Hearing before the S. Select Comm. on Intelligence, 111th Cong. 
(Feb. 12, 2009) (statement of Admiral Dennis C. Blair, Director of 
National Intelligence), http://www.dni.gov/testimonies/
         i. the relevance of intelligence in homeland security
    The immediate obstacle to determining the relevance of intelligence 
in homeland security is the lack of a commonly understood definition of 
``intelligence.''\6\ People often hear the word and assume that this 
type of information has some magical quality giving it heightened 
importance and meaning. But by its very nature, intelligence is often 
uncorroborated, inadequately vetted, and fragmentary at best, and 
unreliable, misleading, or just plain wrong at worst. This deficiency 
is due to the secretive manner in which intelligence agencies gather, 
analyze, use and report information. By allowing people to report 
information against their neighbors or colleagues in secret, the social 
mores and legal consequences that normally restrain people from making 
false or misleading accusations are removed. By masking the sources and 
methods used to obtain this information, ``intelligence'' is stripped 
of the most essential clues for determining its value. Knowing whether 
an accusation that a politician is misusing campaign funds is coming 
from a trusted insider, a political opponent or an unemployed cab 
driver makes all the difference in determining its credibility. By then 
compartmentalizing this information and limiting its distribution, 
outside experts are prevented from effectively evaluating or 
challenging the finished ``intelligence.'' And finally, by keeping 
contradictory pieces of intelligence and dissenting opinions secret, 
policymakers can too easily ignore information or advice that might 
weigh against the policies or activities they choose to pursue. None of 
these processes necessarily make the final product false; they simply 
reduce the probability that it is reliable. If we called this material 
``unsubstantiated allegations,'' ``rumor,'' ``speculation,'' or 
``educated guesses'' we would understand its value, but when we call it 
``intelligence'' it takes on a significance it does not necessarily 
    \6\ See, Mark A. Randol, Congressional Research Service, CRS Report 
for Congress: Homeland Security Intelligence: Perceptions, Statutory 
Definitions and Approaches 2 (Jan. 14, 2009), available at http://
fas.org/sgp/crs/intel/RL33616.pdf (``At the broadest level, there is a 
plethora of definitions for intelligence.'').
    Mark Randol of the Congressional Research Service argues that 
``raw'' information does not become intelligence ``until its sources 
have been evaluated, the information is combined or corroborated by 
other sources, and analytical and due diligence methodologies are 
applied to ascertain the information's value.''\7\ But this asks too 
much of a closed analytical process. Investigations into the 
intelligence failures regarding the presence of weapons of mass 
destruction in Iraq prior to the U.S. invasion, for example, find no 
shortage of attempts to validate the separate pieces of information.\8\ 
This information was subjected to all the processes Randol describes, 
but in the end the ``finished'' intelligence was wrong. As the Senate 
Intelligence Committee Phase II report concluded, ``[i]t is entirely 
possible for an analyst to perform meticulous and skillful analysis and 
be completely wrong.''\9\ In the end, the intelligence community chose 
to rely on an untrustworthy source named ``Curveball'' despite ample 
warnings that he was a fabricator,\10\ and policymakers failed to heed 
dissenting opinions about whether aluminum tubes Iraq purchased were 
designed for use in a nuclear centrifuge.\11\ These failures in pre-war 
intelligence were not because of a lack of process, rather because of 
what the process lacked.
    \7\ Mark A. Randol, Congressional Research Service, CRS Report for 
Congress: Homeland Security Intelligence: Perceptions, Statutory 
Definitions and Approaches 2 (Jan. 14, 2009), available at http://
    \8\ See, S. Rep. No. 108-301(2004), available at http://
www.gpoaccess.gov/serialset/creports/iraq.html; S. Rep. NO. 109-331 
(2006), available at http://intelligence.senate.gov/phaseiiaccuracy.pdf 
(Phase II Report).
    \9\ S. Rep. No. 109-331, at 6 (2006), available at http://
intelligence.senate.gov/phaseiiaccuracy.pdf (Phase II Report).
    \10\ Bob Drogan and Greg Miller, Curveball Debacle Reignites CIA 
Feud, L.A. Times, Apr. 2, 2005, available at http://
    \11\ David Barstow, William J. Broad, and Jeff Gerth, How the White 
House Embraced Disputed Arms Intelligence, N.Y. Times, Oct. 3, 2004, 
available at: http://www.nytimes.com/2004/10/03/international/
    Our legal system provides a contrasting method for determining the 
reliability of information. Centuries of jurisprudence have distilled 
rules of evidence and procedure that are specifically designed to 
provide the analytical due diligence Randol says is necessary for 
converting information into intelligence, though in the legal system 
this information is called ``evidence.'' Evidence is ``something (as 
testimony, writings, or objects) presented at a judicial or 
administrative proceeding for the purpose of establishing the truth or 
falsity of an alleged matter of fact'' (emphasis added).\12\ The rules 
of evidence are not arbitrary obstacles for lawyers to navigate; they 
represent time-tested methods for discerning truth. In order to be 
admitted into evidence documents must be authenticated by the 
individual or organization that produced them. Witnesses are examined 
in public and under oath. Information known to be obtained through 
unreliable means, such as coerced confessions, is not admissible. And 
once entered, evidence is challenged in an adversarial process, before 
a neutral arbiter and a jury of ordinary citizens serving as the 
ultimate fact-finders. Finally, this process is conducted in public, so 
that the justice system and those who work within it are accountable to 
the people they serve. A closed intelligence process simply cannot 
match this rigorous testing, and the reliability of the information it 
produces suffers as a result.
    \12\ Miriam-Webster's Dictionary of Law 171-72 (1996).
    The one thing that is certain about ``intelligence,'' is that it is 
only valuable to our security when it is true. Faulty intelligence is 
worse than no intelligence at all because it compels policymakers to 
take actions that may not have been necessary or to fail to take 
actions that were. And errors in intelligence are often compounded 
because security resources are finite. Increasing the assets directed 
at one threat invariably means reducing efforts devoted to another. For 
example, the New York Times reported that FBI officials began noticing 
a surge of mortgage frauds in 2003 and 2004 but their requests for 
additional resources to address financial crimes were denied by a 
Justice Department focused on counterterrorism.\13\ Yet Director of 
National Intelligence Dennis Blair now identifies the global economic 
crisis as the ``primary near-term security concern of the United 
States.''\14\ Intelligence programs that focus on the last crisis to 
the detriment of anticipating the next crisis do not provide real 
    \13\ Eric Lichtblau, David Johnston, and Ron Nixon, FBI Struggles 
to Handle Financial Fraud Cases, N.Y. TIMES, Oct. 18, 2008, available 
at http://www.nytimes.com/2008/10/19/washington/
    \14\ Current and Projected National Security Threats to the United 
States: Hearing before the S. Select Comm. on Intelligence, 111th Cong. 
2 (Feb. 12, 2009) (statement of Admiral Dennis C. Blair, Director of 
National Intelligence), http://www.dni.gov/testimonies/
    All of the problems of unreliability of intelligence are compounded 
with a new system of collection, and the negative impacts are many 
times greater when the ears and eyes are not pointed outward but inward 
to the United States. When intelligence subjects are not foreign 
nations or their military and intelligence operatives, but citizens, 
lawful permanent residents, and visa holders of our country, the checks 
and balances must be significantly enhanced over the minimal 
supervision given other parts of the intelligence apparatus. Therefore, 
Congress must be especially mindful of the limits of intelligence as it 
evaluates DHS intelligence programs. Congress should demand empirical 
evidence that these programs actually enhance security before funding 
them, particularly where they impact the rights and privacy of innocent 
Americans. So many of the broad information collection programs the 
intelligence community instituted over the last 8 years were premised 
on the idea that data mining tools could later be developed to find 
meaning in these vast pools of data collected,\15\ but a recent study 
funded by DHS found that such programs were likely a wasted effort:
    \15\ Jeffrey W. Seifert, Congressional Research Service, CRS Report 
for Congress: Data Mining and Homeland Security: An Overview (Jan. 18, 
2007), available at http://www.fas.org/sgp/crs/intel/RL31798.pdf.

``Automated identification of terrorists through data mining (or any 
other known methodology) is neither feasible as an objective nor 
desirable as a goal of technology development efforts. One reason is 
that collecting and examining information to inhibit terrorists 
inevitably conflicts with efforts to protect individual privacy. And 
when privacy is breached, the damage is real. The degree to which 
privacy is compromised is fundamentally related to the sciences of 
database technology and statistics as well as to policy and 
    \16\ National Research Council, Protecting Individual Privacy in 
the Struggle Against Terrorists: A Framework for Program Assessments, 
Committee on Technical and Privacy Dimensions of Information for 
Terrorism Prevention and Other National Goals (Oct. 2007), available at 

Congress cannot afford to allow DHS, or any other intelligence agency, 
to continue investing in unproven technologies that harm privacy but 
provide no real security benefit.
         ii. the limitations of homeland security intelligence
    Intelligence has traditionally been divided into two spheres, 
foreign and domestic, which operate under different legal regimes. 
``Foreign intelligence,'' which is directed at foreign powers and their 
agents and is conducted primarily outside the United States, has less 
restrictive regulations and oversight, while ``domestic intelligence,'' 
directed primarily at U.S. persons and conducted inside the United 
States is generally more regulated. Randol suggests that the advantage 
of ``homeland security intelligence'' as a discipline distinct from 
foreign or domestic intelligence is that it allows a holistic approach 
that is free from constraints of geography, level of government, or 
mutual mistrust between the public and private sectors.\17\
    \17\ Mark A. Randol, Congressional Research Service, CRS Report for 
Congress: Homeland Security Intelligence: Perceptions, Statutory 
Definitions and Approaches 13 (Jan. 14, 2009), available at http://
    The danger with this approach is that the constraints are often 
specifically designed, or at least operate in practice, to protect the 
privacy and civil rights of U.S. persons. Blending the two disciplines 
necessarily leads to a dilution of privacy protections for U.S. persons 
as less restrictive methods of gathering foreign intelligence are 
increasingly used against U.S. persons. For instance, more than half of 
the roughly 50,000 National Security Letters the FBI issues each year, 
which were originally designed for use only against agents of foreign 
powers, now target U.S. persons.\18\ Moreover, the compelling mission 
to protect the homeland would likely drive routine overrides of 
minimization procedures restricting the dissemination of U.S. person 
information collected under a foreign intelligence rubric,\19\ 
particularly as intelligence agents take the ``better safe than sorry'' 
approach that led to excessive number of nominations to the terrorist 
watch lists.\20\
    \18\ U.S. Department of Justice, Office of Inspector General, A 
Review of the Federal Bureau of Investigation's Use of National 
Security Letters (Mar. 2007), available at http://www.usdoj.gov/oig/
    \19\ See, National Security Agency, Report to Congress: Legal 
Standards for the Intelligence Community in Conducting Electronic 
Surveillance (Feb. 2000), available at http://www.fas.org/irp/nsa/
standards.html (``The overarching standard as implemented in both E.O. 
12333 and FISA minimization procedures is that to disseminate 
personally identifiable information concerning a U.S. person, the 
information must be found necessary to understand a particular piece of 
foreign intelligence or assess its importance'').
    \20\ Department of Justice, Office of Inspector General Review of 
the Terrorist Screening Center viii (June 2005), available at http://
    More significantly, while DHS will undoubtedly require access to 
foreign intelligence collected by the other intelligence agencies to 
fulfill its mission, its focus on protecting the ``homeland'' will 
drive a primarily domestic intelligence program. The DHS intelligence 
mission statement, ``to provide homeland security intelligence and 
information to the Secretary, other Federal officials, and our state, 
local, tribal and private sector partners,'' suggests a domestic 
focus.\21\ And the DHS intelligence components, the U.S. Citizenship 
and Immigration Services, U.S. Coast Guard, U.S. Customs and Border 
Protection, U.S. Immigration and Customs Enforcement and the 
Transportation Security Administration, will disproportionately gather 
U.S. person information in the course of fulfilling their mission 
    \21\ Department of Homeland Security, Office of Intelligence and 
Analysis web page, http://www.dhs.gov/xabout/structure/
gc_1220886590914.shtm (last visited Mar. 11, 2009).
    By their nature, all domestic intelligence operations pose a threat 
to civil liberties and democratic processes. Whenever the Government is 
involved in gathering information about Americans without a reasonable 
suspicion of criminal activity, there is substantial risk of chilling 
lawful dissent and association. As the Supreme Court observed in United 
States v. United States District Court (Keith), ``[h]istory abundantly 
documents the tendency of Government--however benevolent and benign its 
motives--to view with suspicion those who most fervently dispute its 
    \22\ United States v. United States Dist. Court (Keith), 407 U.S. 
297, 313-314 (1972).
Evidence of Abuse
    Several recent incidents seem to indicate DHS is ignoring this 
history in its zeal to establish an intelligence role, and improperly 
monitoring peaceful advocacy groups and religious and racial 
minorities. Charles Allen, DHS Under Secretary for Intelligence and 
Analysis, said one of the analytic elements his office assesses is the 
threat of radicalization and extremism. The ACLU is concerned that 
these terms are ill-defined and seem to suggest a connection between 
terrorism and advocacy against Government policies. Under Secretary 
Allen stated categorically in recent testimony that DHS does not 
monitor known extremists and their activities, but documents obtained 
by the ACLU suggest otherwise.\23\
    \23\ Homeland Security Intelligence at a Crossroads: The Office of 
Intelligence and Analysis' Vision for 2008: Hearing before the Subcomm. 
on Intelligence, Information Sharing, and Terrorism Risk Assessment of 
the H. Comm. on Homeland Security, 110th Cong. 4 (Feb. 26, 2008) 
(Statement of Charles E. Allen, Under Secretary for Intelligence and 
Analysis, Department of Homeland Security), available at http://
    The ACLU of Maryland recently uncovered a Maryland State Police 
(MSP) intelligence operation that targeted 23 non-violent political 
advocacy organizations based solely on the exercise of their First 
Amendment rights.\24\ MSP spying activities were aimed at peace 
advocates like the American Friends Service Committee (a Quaker 
organization) and Women in Black (a group of women who dress in black 
and stand in silent vigil against war), immigrants rights groups like 
CASA of Maryland, human rights groups like Amnesty International, anti-
death penalty advocates like the Maryland Citizens Against State 
Executions, and gay rights groups like Equality Maryland, among others. 
Many of the members of these organizations were referenced as 
terrorists in a Federal database.
    \24\ See, ACLU of Maryland ``Stop Spying'' info page, http://
www.aclu-md.org/Index%20content/NoSpying/NoSpying.html (last visited 
Mar. 11, 2009).
    The revelation that DHS was involved in collecting and 
disseminating the e-mails of one of the peace groups subjected to the 
MSP spying operation is alarming,\25\ particularly because DHS 
representatives had previously denied that DHS had any information 
regarding the MSP investigations targeting these protesters.\26\ In a 
letter to U.S. Senators Benjamin Cardin, Barbara Mikulski and Russ 
Feingold, DHS said it had done an ``exhaustive'' search of its 
databases and could find no information relating to the MSP 
surveillance operations. Yet MSP documents provided to the ACLU 
indicate that DHS Atlanta provided MSP with information regarding its 
investigation of the DC Anti-war Network (DAWN). An entry in the MSP 
files dated June 21, 2005 says:
    \25\ Lisa Rein, Federal Agency Aided Md. Spying, Washington Post, 
Feb. 17, 2009, at: http://www.washingtonpost.com/wp-dyn/content/
    \26\ Letter from Jim Howe, Acting Assistant Secretary, U.S. 
Department of Homeland Security, to Senator Benjamin L. Cardin, (Jan 
29, 2009) (on file with author).

``The US Department of Homeland Security, Atlanta, recently forwarded 
two emails from [REDACTED] an affiliate of the DC DAWN Network and the 
[REDACTED]. Activists from DAWN, [REDACTED] and other groups working 
under the banner of [REDACTED] are going to stage several small (12-15) 
weekly demonstrations at the Silver Spring Armed Forces Recruitment 
Center (AFRC). If there is enough support these will become weekly 
    \27\ Maryland State Police Intelligence File on the D.C. Anti-War 
Network (DAWN), p. 13, (2005) (on file with the ACLU). This document 
was released pursuant to the Maryland's Public Information Act. See 
Public Information Act, Md. Code Ann., State Gov't   10-630 (West 

Not only was DHS apparently aware of the MSP investigation, it was 
actually monitoring the communications of DAWN affiliates and 
forwarding them to MSP. We want to know how and why DHS obtained these 
e-mails (which contained no reference to any illegal activity), why DHS 
disseminated them to the MSP, and why DHS could not find records 
documenting this activity in the DHS databases.
    Contrary to what DHS told the senators, a DHS spokesman quoted in 
the Washington Post said that law enforcement agencies exchange 
information regarding planned demonstrations ``every day.''\28\ Indeed, 
a March 2006 ``Protective Intelligence Bulletin'' issued by the Federal 
Protective Service (FPS) lists several advocacy groups that were 
targets of the MSP operations, including Code Pink, Iraq Pledge of 
Resistance and DAWN, and contains a ``civil activists and extremists 
action calendar'' that details dozens of demonstrations planned around 
the country, mostly peace rallies. FPS apparently gleans this 
information from the Internet. However, it is still not clear under 
what authority DHS officials monitor the Internet to document and 
report on the activities of ``civil activists'', since there is no 
indication anywhere in the document to suggest illegal activity might 
occur at any of these demonstrations. What is clear is that MSP and DHS 
spying operations targeting peaceful activists serve no legitimate law 
enforcement, intelligence, or homeland security purpose. The operations 
threatened free expression and association rights, and they were a 
waste of time.
    \28\ Lisa Rein, Federal Agency Aided Md. Spying, Wash. Post, Feb. 
17, 2009, at B01, available at http://www.washingtonpost.com/wp-dyn/
    This bulletin is not the only indication of abuse in DHS 
intelligence operations. Another intelligence report produced for DHS 
by a private contractor smears environmental organizations like the 
Sierra Club, the Humane Society, and the Audubon Society as 
``mainstream organizations with known or possible links to eco-
terrorism.''\29\ Slandering upstanding and respectable organizations 
does not just violate the rights of these groups and those who 
associate with them; it undermines the credibility of all intelligence 
produced by and for DHS. There is simply no value in using limited DHS 
resources to generate such intelligence products--and yet these events 
continue to occur.
    \29\ Universal Adversary Dynamic Threat Assessment, Eco-Terrorism: 
Environmental and Animal Rights Militants in the United States, (May 7, 
2008), available at http://wikileaks.org/leak/dhs-ecoterrorism-in-us-
    Last month a Texas fusion center supported by DHS released an 
intelligence bulletin that described a purported conspiracy between 
Muslim civil rights organizations, lobbying groups, the anti-war 
movement, a former U.S. Congresswoman, the U.S. Treasury Department and 
hip-hop bands to spread Sharia law in the U.S.\30\ The bulletin, which 
reportedly is sent to over 100 different agencies, would be laughable 
except that it comes with the imprimatur of a federally backed 
intelligence operation, and it directs law enforcement officers to 
monitor the activities of these groups in their areas. The ACLU has 
long warned that these State, local, and regional intelligence fusion 
centers lacked proper oversight and accountability and we hope the 
discovery of this shockingly inappropriate report leads to much needed 
examination and reform. In December 2008 the DHS Privacy Office issued 
a Privacy Impact Assessment of fusion centers that echoed the ACLU's 
concerns regarding the threat these rapidly expanding intelligence 
centers pose to the privacy of innocent Americans.\31\
    \30\ North Central Texas Fusion System Prevention Awareness 
Bulletin, (Feb. 19, 2009), available at http://www.baumbach.org/fusion/
PAB_19Feb09.doc. For a discussion of DHS support of the North Central 
Texas Fusion Center, See U.S. Department of Homeland Security, Office 
of Inspector General, DHS's Role in State and Local Fusion Centers is 
Evolving (Dec. 2008), available at http://www.fas.org/irp/agency/dhs/
ig-fusion.pdf; General Accountability Office, Homeland Security: 
Federal Efforts Are Helping To Alleviate Some Challenges Encountered by 
State and Local Information Fusion Centers (Oct. 2007), available at 
    \31\ U.S. Department of Homeland Security Privacy Impact Assessment 
for the Department of Homeland Security State, Local, and Regional 
Fusion Center Initiative (Dec. 11, 2008), available at http://
Dilution of Effective Regulation
    It isn't surprising that an intelligence operation with an 
overbroad ``all hazards'' mission and lax oversight would trample on 
individual privacy rights. The police power to investigate combined 
with the secrecy necessary to protect legitimate law enforcement 
operations provide ample opportunity for error and abuse, which is why 
in the 1970's the Federal Government sought to establish clear 
guidelines for State and local law enforcement agencies engaged in the 
collection of criminal intelligence information. Title 28, Part 23 of 
the Code of Federal Regulations was promulgated pursuant to 42 U.S.C.   
3789(g)(c) which requires State and local law enforcement agencies 
receiving Federal funding to

`` . . . collect, maintain, and disseminate criminal intelligence 
information in conformance with policy standards which are prescribed 
by the Office of Justice Programs and which are written to assure that 
the funding and operation of these systems further the purpose of this 
chapter and to assure that some systems are not utilized in violation 
of the privacy and constitutional rights of individuals.''\32\
    \32\ 42 U.S.C.A.   3789(g)(c) (WEST 2007). The provision 
instructing the Office of Justice Programs to prescribe regulations to 
assure that criminal intelligence systems are ``not utilized in 
violation of the privacy and constitutional rights of individuals'' was 
added when the Omnibus Crime Control and Safe Streets Act of 1968 was 
reauthorized and amended by the Justice System Improvement Act of 1979 
(See, Justice System Improvement Act of 1979, Pub. L. No. 96-157, 1979 
U.S.C.C.A.N. (96 Stat.) 1167, 1213, 2471-77, 2539).

    The regulation was part of a series of law enforcement reforms 
initiated to curb widespread abuses of police investigative authorities 
for political purposes, particularly by local police intelligence units 
or ``red squads,'' which often amassed detailed dossiers on political 
officials and engaged in ``disruptive'' activities targeting political 
activists, labor unions, and civil rights advocates, among others. In 
commentary published during a 1993 revision of the regulation, the 
Department of Justice Office of Justice Programs (OJP) explained the 
risks to civil liberties inherent in the collection of criminal 
intelligence, and the need for regulation of criminal intelligence 

``Because criminal intelligence information is both conjectural and 
subjective in nature, may be widely disseminated through the 
interagency exchange of information and cannot be accessed by criminal 
suspects to verify that the information is accurate and complete, the 
protections and limitations set forth in the regulation are necessary 
to protect the privacy interests of the subjects and potential suspects 
of a criminal intelligence system.''\33\
    \33\ See Office of Justice Programs, U.S. Department of Justice, 
Final Revision to the Office of Justice Programs, Criminal Intelligence 
Systems Operation Policies, 1993 Revision and Commentary, 28 C.F.R. 
Part 23 (1993), at 4, http://www.homeland.ca.gov/pdf/civil_liberties/

Part 23 is designed to ensure that police intelligence operations are 
properly focused on illegal behavior by requiring that criminal 
intelligence systems ``collect information concerning an individual 
only if there is reasonable suspicion that the individual is involved 
in criminal conduct or activity and the information is relevant to that 
criminal conduct or activity.'' The ``reasonable suspicion'' standard 
is clear, well-defined, time-tested, and universally accepted by law 
enforcement agencies around the country as the appropriate standard for 
regulating the intelligence collection activities of law enforcement 
    Unfortunately, there is a new theory of domestic intelligence that 
argues that collecting even outwardly innocuous behaviors will somehow 
enhance security. In 2006, former DHS Secretary Michael Chertoff said,

``Intelligence is about thousands and thousands of routine, everyday 
observations and activities. Surveillance, interactions--each of which 
may be taken in isolation as not a particularly meaningful piece of 
information, but when fused together, give us a sense of the patterns 
and flow that really is at the core of what intelligence is all 
    \34\ Secretary of Homeland Security Michael Chertoff, Remarks at 
the 2006, Bureau of Justice Assistance, U.S. Department of Justice and 
SEARCH Symposium on Justice and Public Safety Information Sharing, Mar. 
14, 2006, http://www.dhs.gov/xnews/speeches/speech_0273.shtm.

It is clear from this statement that Secretary Chertoff was relying on 
the extravagant promises of the now-debunked data mining technologies 
to make sense of the thousand routine observations that would be 
recorded each day. But suspicious activity reporting programs are 
moving forward nonetheless.
    In January 2008 the Office of Director of National Intelligence 
(ODNI) Information Sharing Environment (ISE) Program Manager published 
functional standards for State and local law enforcement officers to 
report ``suspicious'' activities to fusion centers and the ISE.\35\ The 
behaviors described as inherently suspicious included such innocuous 
activities as photography, acquisition of expertise, and eliciting 
information. We are already seeing the results of such a program as 
police increasingly stop, question, and even detain innocent Americans 
engaging in First Amendment-protected activity, to collect their 
personal information for later use by the intelligence community.\36\ 
This type of information collection does not improve security; it 
merely clogs criminal intelligence and information sharing systems with 
irrelevant and useless data.
    \35\ Information Sharing Environment (ISE) Functional Standard (FS) 
Suspicious Activity Reporting (SAR) Version 1.0, ISE-FS-200, (Jan. 25, 
2008) (on file with authors).
    \36\ See, Mike German and Jay Stanley, American Civil Liberties 
Union, Fusion Center Report Update (July 2008), http://www.aclu.org/
    The ACLU and other privacy and civil liberties advocates are 
working with the ISE Program Manager, and with several State and local 
law enforcement agencies such as the Los Angeles Police Department, to 
modify these programs to avoid abrogation of First Amendment rights and 
the Part 23 reasonable suspicion standard. While these efforts show 
some progress in strengthening privacy guidelines for these programs, 
even the best internal controls have rarely proved sufficient to 
eliminate abuse in intelligence programs. This subcommittee should 
examine these programs closely, assess whether they demonstrably 
improve security and ensure that they operate in a manner that protects 
individual rights before authorizing DHS resources to support them.
  iii. the role of the department of homeland security in intelligence
    The Homeland Security Act of 2002 tasked DHS with the 
responsibility to manage programs for sharing law enforcement and 
intelligence information between the Federal Government and State, 
local, and tribal authorities.\37\ Unfortunately, other Federal law 
enforcement and intelligence agencies, such as the FBI, already had 
well-established relationships and information-sharing arrangements 
with State and local law enforcement and resisted DHS efforts to manage 
these programs. In 2004, Congress established the ODNI Information 
Sharing Environment to address this on-going resistance to information 
sharing, but this only further complicated the question of DHS's 
intelligence role.\38\
    \37\ 6 U.S.C.A.   101 et seq. (West 2006).
    \38\ See, Intelligence Reform and Terrorism Prevention Act of 2004, 
50 U.S.C.A.   401, et seq. (West 2006).
    As it stands now there are several mechanisms for State and local 
governments to engage with the Federal Government to share law 
enforcement information: the DHS Office of Intelligence and Analysis, 
the FBI Joint Terrorism Task Forces, the ODNI ISE, and the fusion 
centers. Likewise there are several different portals to receive 
information: Law Enforcement Online (LEO), the National Data Exchange 
(N-Dex), the National Law Enforcement Telecommunication System (NLETS), 
the FBI's Guardian and e-Guardian systems and the Homeland Secure 
Information Network (HSIN) to name just a few. With several different 
Federal agencies responsible for intelligence collection and analysis 
and several different mechanisms for sharing intelligence with State 
and local authorities, DHS intelligence operations risk being redundant 
or even superfluous.
    The problem from a civil rights perspective is that the existence 
of competing intelligence programs creates the incentive for each 
agency to collect and report more information than the others to prove 
its value, to the detriment to the privacy and liberties of ordinary 
Americans. Intelligence offices are too often judged by the number of 
reports they disseminate rather than the value of the information in 
those reports, which is part of what drives the over-collection and 
over-reporting of innocuous information. In 2008, Under Secretary Allen 
boasted that I&A increased production of Homeland Intelligence Reports 
``from 2,000 to nearly 3,100'' over the previous year but this 
statistic only represents an improvement if the information reported is 
correct, relevant, and unique.\39\ Intelligence reports like those 
produced by the North Central Texas Fusion Center provide nothing to 
enhance homeland security, and may actually undermine it by diverting 
attention from real threats.
    \39\ Homeland Security Intelligence at a Crossroads: The Office of 
Intelligence and Analysis' Vision for 2008: Hearing before the Subcomm. 
on Intelligence, Information Sharing, and Terrorism Risk Assessment of 
the H. Comm. on Homeland Security, 110th Cong. 4 (Feb. 26, 2008) 
(Statement of Charles E. Allen, Under Secretary for Intelligence and 
Analysis, Department of Homeland Security), available at http://
    DHS intelligence programs should not compete with other Federal 
programs. DHS should assess what State, local, and other Federal 
agencies need from DHS intelligence programs that they are not 
currently receiving from other sources. It is possible that there is no 
gap in intelligence, which would render DHS intelligence wholly 
unnecessary. If there is a gap, then DHS should evaluate the 
information produced by each of its intelligence components during the 
normal course of business to determine whether it can tailor this 
information to suit the specific intelligence needs identified. If DHS 
intelligence activities produce no demonstrably useful information, 
Congress should de-fund them. Where new types or sources of information 
need to be developed to fill intelligence gaps, DHS should carefully 
evaluate whether collection of this information is appropriate under 
the law, whether DHS is the agency best suited to collect this 
information, and whether the dissemination of such information can be 
accomplished without violating the privacy or civil rights of U.S. 
persons. Where DHS finds it can produce a necessary intelligence 
product, such programs should be narrowly tailored to fulfill that 
specific need and constantly reviewed to ensure conformance with all 
laws and policies. Finally, Congress should evaluate these programs 
regularly, and in public to the greatest extent possible. In the famous 
words of Supreme Court Justice Louis Brandeis, sunshine is the best 
                             iv. conclusion
    Intelligence operations directed at Americans pose serious risks to 
liberty and democracy. First and foremost, we should not sacrifice our 
liberty for the illusion of security. Congress should not implement or 
fund new intelligence programs without empirical evidence that they 
effectively improve security. Intelligence programs like the CIA's 
Operation Chaos, the NSA's Shamrock, the FBI's COINTELPRO, and the red 
squads of local police departments are infamous not just because they 
violated the rights of innocent Americans and undermined democratic 
processes, but also because they were completely ineffective in 
enhancing national security in any meaningful way.\40\ It turns out, 
not surprisingly, that spying on innocent people is not useful to 
uncovering true threats to security. Reforms instituted after the 
exposure of these abusive intelligence programs were designed not only 
to protect the rights of innocent Americans, but to help our law 
enforcement and intelligence agencies become more effective by focusing 
their resources on people they reasonably suspected of wrongdoing. 
Unfortunately these lessons of the past have too often been ignored, 
and we are increasingly seeing a return to abusive intelligence 
operations targeting protest groups and religious and racial 
    \40\ Select Comm. To Study Governmental Operations with Respect to 
Intelligence Activities, U.S. Senate, 94th Cong., Final Report on 
Supplemental Detailed Staff Reports on Intelligence Activities and The 
Rights of Americans (Book III), S. Rep. No. 94-755 (1976).
    It would be an enormous mistake to ignore the lessons of past 
failure and abuse on a subject as critical as spying on the American 
people. We don't have to choose between security and liberty. In order 
to be effective, intelligence activities need to be narrowly focused on 
real threats, tightly regulated and closely monitored. We look forward 
to working with this subcommittee to examine DHS's involvement in 
monitoring peaceful advocacy organizations. As the Keith Court warned, 
``The price of lawful public dissent must not be a dread of subjection 
to an unchecked surveillance power.''\41\
    \41\ United States v. United States Dist. Court (Keith), 407 U.S. 
297, 314 (1972).

    Ms. Harman. Thank you, Ms. Fredrickson.
    Mr. Nojeim, you are recognized for 5 minutes.


    Mr. Nojeim. Thank you, Chair Harman, Ranking Member McCaul 
and Members of the subcommittee. Thanks for the opportunity to 
testify this morning on behalf of CDT.
    Government agencies at the Federal, State, and local level 
have created a vast domestic intelligence apparatus. The goal 
is laudable: Connect the dots to prevent terrorism. But the 
risks to civil liberties are large. We have some ideas on how 
the subcommittee could mitigate those risks.
    First we need to identify the problems. We see primarily 
two. The first, as Ms. Fredrickson pointed out, is the 
surveillance of protected first amendment activities. It is 
reminiscent of the spying that happened in the 1960's and 
1970's. In one instance the Maryland State Police surveilled 
antiwar protesters and death penalty opponents for over a year. 
They found no evidence of crime and continued the surveillance. 
That is wrong.
    The second problem is the increasing collection and sharing 
of information on primarily innocent activity through 
suspicious activity reporting. Conduct triggering only the 
thinnest of suspicions is being recorded and widely shared. 
Photographing bridges is described as suspicious activity, even 
though tourists do it all the time, and so do photography 
    These serious problems are exacerbated by digital 
technologies for the storage, retrieval, and dissemination of 
information. Nation-wide sharing systems greatly magnify the 
risk that information will be taken out of context or 
misinterpreted, resulting in false inferences and unjustified 
adverse action.
    The disparate guidelines that have been issued so far to 
govern these efforts fail to provide adequate guidance. They 
either permit intelligence collection without a predicate, or 
they provide generic unhelpful guidance like this from the 
Department of Homeland Security--I am sorry, from the 
Information Sharing Environment Privacy Guidelines: ``All 
agencies shall, without exception, comply with the Constitution 
in all applicable laws and Executive Orders.'' Of course they 
should, but that is just not helpful advice.
    While guidelines should be tailored to the entities that 
must follow them, there does not seem to be a set of principles 
that guides the overall intelligence effort and protects civil 
liberties. Remarkably there does not seem to be a set of 
intelligence guidelines at all for DHS itself.
    The subcommittee could take a number of steps to better 
focus homeland security intelligence collection and sharing. 
First it should ensure that DHS entities follow principles of 
Fair Information Practices, or FIPs. FIPs establish a useful 
framework for using information to make fair decisions about 
    Second, the subcommittee should work to ensure that a 
criminal predicate is required where it is appropriate. It is 
probably the single most effective civil liberties protection 
that could be imposed on the collection and sharing of homeland 
security intelligence that includes personal information. 
Requiring a criminal predicate signals the person who gathers 
or shares the information that they need to focus on potential 
wrongdoers and not on everyone else.
    Third, the subcommittee should sample intelligence products 
developed by DHS components and its partners. It should 
ascertain what is being collected, how it is used, and whether 
it is useful in preventing terrorism. It could test whether 
SARs reporting is effective and efficient in preventing 
terrorism and other crimes.
    Finally, the subcommittee should review the training 
materials that DHS entities use. If they permit or invite 
inappropriate surveillance like that engaged by the Maryland 
State Police, they need to be changed. Oversight focused on 
adherence to privacy principles, compliance with strong privacy 
guidelines, and requiring criminal predication where 
appropriate would enhance both liberty and security.
    Thank you very much.
    Ms. Harman. Thank you, Mr. Nojeim.
    [The statement of Mr. Nojeim follows:]
                Prepared Statement of Gregory T. Nojeim
                             March 18, 2009
    Chair Harman, Ranking Member McCaul, and Members of the 
subcommittee, thank you for the opportunity to testify this morning 
about homeland security intelligence on behalf of the Center for 
Democracy & Technology.*
    * The Center for Democracy and Technology is a non-profit, public 
interest organization dedicated to keeping the Internet open, 
innovative, and free. Among our priorities is preserving the balance 
between security and freedom after 9/11. CDT coordinates the Digital 
Privacy and Security Working Group (DPSWG), a forum for computer, 
communications, and public interest organizations, companies, and 
associations interested in information privacy and security issues. CDT 
has offices in Washington, DC and in San Francisco, CA.
                        introduction and summary
    Without a definitive decision to do so, and on something of an ad 
hoc basis, government agencies at the Federal, State, and local level 
have created a vast domestic intelligence apparatus. Until recently, 
collection, analysis and dissemination efforts have been disjointed and 
uncoordinated, which may offer some comfort to civil libertarians. Now, 
a variety of efforts are underway to integrate the information that is 
being collected and to share it more widely. The goal, of course, is 
laudable: to collect and connect the dots that might reveal a terrorist 
scheme. However, there is no overall theme to this collection and 
sharing effort, no guiding principles. We continue to see homeland 
intelligence efforts that classify legitimate political activity as 
``terrorism'' and that spy on peaceful activists; the revelations about 
the Maryland State Police are the latest example that has come to 
light. Also, there is a trend toward the collection of huge quantities 
of information with little or no predicate through ``suspicious 
activity reports.'' There seems to us a high risk that this information 
will be misinterpreted and used to the detriment of innocent persons. 
Meanwhile, the security ``bang per byte'' of information gathered may 
be diminishing. While ``stove piping'' was yesterday's problem, 
tomorrow's problem may be ``pipe clogging,'' as huge amounts of 
information are being gathered without apparent focus. All of this 
occurs in the context of a powerful digital revolution that makes it 
easier than ever to collect, store, exchange, and retrieve information 
in personally identifiable ways, making it available far removed from 
the context in which it was collected.
    In our testimony today, we will consider what homeland security 
intelligence is and will identify some of the efforts being made to 
collect and share it. Then, we will turn to the risks to civil 
liberties posed by homeland security intelligence activities and offer 
some ideas on how they can be addressed.
  what is homeland security intelligence and what risks does it pose?
    So far, the term ``homeland security intelligence'' has not been 
officially defined.\1\ ``Homeland security information'' is statutorily 
defined as any information that relates to the threat of terrorist 
activity and the ability to prevent it, as well as information that 
would improve the response to terrorist activity or the identification 
or investigation of a suspected terrorist or terrorist organization. 
Homeland Security Act of 2002, Pub. L. 107-296, Section 892(f)(1), 6 
U.S.C. 482(f)(1). From what we can tell, the homeland security 
intelligence system is equally broad. The definition of homeland 
security information is as significant for what it does not say as for 
what it says: it does not distinguish between information collected 
abroad and information collected in the United States; it does not 
distinguish between information regarding foreign terrorist 
organizations and information regarding domestic terrorist groups; it 
does not distinguish among information collected under criminal 
investigative powers, information collected under the national security 
powers applicable to ``foreign intelligence'' or counterintelligence, 
and information collected under regulatory or administrative 
authorities or from open sources; it does not distinguish between 
information collected by Federal agencies and information collected by 
State, local, or tribal governments; and it does not distinguish 
between information collected with terrorism in mind and information 
collected for other purposes. It is broad enough to encompass all of 
these, and to some degree that is appropriate, since one of the reasons 
why the planning of the 9/11 attacks went undetected is that agencies 
observed various artificial distinctions that prevented information 
sharing and collaboration.
    \1\ CRS Report, Homeland Security Intelligence: Perceptions, 
Statutory Definitions, and Approaches (August 18, 2006).
    However, with such an all-encompassing definition, the cycle of 
collecting, sharing, and using homeland security information or 
homeland security intelligence clearly poses risks to constitutional 
values of privacy, free expression, free association, and democratic 
participation. The solution lies, we believe, not in a narrower 
definition, but in clear rules as to what can be collected and 
retained, under what standard and subject to what supervision, with 
whom it can be shared, and how it can be used. So far, this system of 
rules remains incomplete, while the creation of a broad homeland 
security intelligence system progresses apace.
    In particular, this subcommittee should be concerned about two 
distinct problems: (1) The continuing, even if isolated, collection of 
information on First Amendment activities; and (2) the newly expanded 
efforts to collect, exchange, and use ``suspicious activity reports'' 
based on the thinnest of suspicions. Both issues involve the 
collection, retention, and dissemination of information collected 
without either the criminal predicate or the ``agent of a foreign 
power'' standard found in FISA.\2\ Intelligence activities not tethered 
to the criminal predicate are dangerous to liberty because they can 
cast a wide net, may encompass First Amendment activities, and tend to 
be more secretive because the information collected is not likely to be 
subject to the after-the-fact scrutiny afforded by the criminal justice 
system. In both cases, the risks are exacerbated by the otherwise 
appropriate application of digital technologies for storage, retrieval, 
and dissemination. For example, although proponents of SARs argue that 
they are an extension of long-standing police practices, the power of 
information technology and the creation of Nation-wide sharing systems 
greatly magnify the risks that information will be taken out of context 
or misinterpreted, resulting in false inferences and unjustified 
adverse action.
    \2\ CDT has made recommendations for improving both the criminal 
investigative authorities and FISA in order to provide better privacy 
protection while still empowering the Government to collect the 
information it needs, but we focus today on the collection of 
information outside of either a criminal predicate or the FISA 
    In recommending serious application of the criminal predicate, we 
are not arguing against the need to prevent acts of terrorism before 
they occur. We are not seeking to force agencies with homeland security 
obligations to limit themselves to prosecuting past crimes. 
Furthermore, we fully recognize and support the integration, properly 
controlled, of domestic intelligence information with information 
collected overseas and information collected in the United States under 
the authorities of the Foreign Intelligence Surveillance Act and 
related laws. Instead, we are calling for adherence to a standard that 
focuses on the intentions, capabilities, and future actions of 
enterprises planning or otherwise involved in illegal activity. And we 
are calling for rules that take into account the ability of modern 
information technology to store and retrieve personally identifiable 
information on an unprecedented basis.
        who collects homeland security intelligence information?
    As the subcommittee well knows, multiple agencies at the Federal 
level collect and analyze information that fits under the homeland 
security intelligence umbrella.
    Within the Department of Homeland Security alone, there is a 
departmental Office of Intelligence and Analysis and there are 
intelligence activities within several of the Department's components 
as well, including the U.S. Citizenship and Immigration Service, the 
Coast Guard, Customs and Border Protection, Immigration and Customs 
Enforcement, and the Transportation Security Administration.
    Outside of the DHS, Federal agencies charged with collecting or 
analyzing information that could be considered homeland security 
intelligence include:
   The FBI, which conducts counterintelligence, 
        counterterrorism and intelligence activities primarily, but not 
        exclusively, within the United States.
   The CIA, which collects foreign intelligence and conducts 
        counterintelligence and counterterrorism activities related to 
        national security primarily, but not exclusively, outside of 
        the United States.
   The State Department's Bureau of Intelligence and Research.
   The Drug Enforcement Administration, which collects 
        intelligence about organizations involved in growing and 
        distributing controlled substances.
   The Department of Energy, which assesses nuclear terrorism 
   The Treasury Department, which collects information relating 
        to the financing of terrorist organizations.
   Intelligence entities within the Department of Defense, 
        including the Defense Intelligence Agency, the National 
        Security Agency, and the National Reconnaissance Office (whose 
        capabilities are available for domestic collection).
    Outside of the Federal Government, State, local, and tribal police 
forces of varying sizes also engage in the collection of homeland 
security intelligence. The level of sophistication of these efforts 
varies widely. For example, the New York City Police Department has a 
sophisticated intelligence operation, which has grown and operates with 
little public oversight. Likewise, the Los Angeles Police Department 
has a very sophisticated intelligence gathering and integration 
program. Other cities, as well as tribal police forces, have much less 
sophisticated operations.
    Some of the entities that engage in intelligence collection operate 
under guidelines. Indeed, there is no lack of guidelines on domestic 
intelligence. The guidelines in place include:
   The Attorney General's Guidelines for Domestic FBI 
        Operations (September 29, 2008) http://www.usdoj.gov/ag/
   Department of Justice, Office of Justice Programs, Global 
        Justice Information Sharing Initiative (``Global''), ``Fusion 
        Center Guidelines: Developing and Sharing Information and 
        Intelligence in a New Era--Guidelines for Establishing and 
        Operating Fusion Centers at the Local, State, and Federal 
        Levels--Law Enforcement Intelligence, Public Safety, and the 
        Private Sector'' (2006) http://www.it.ojp.gov/documents/
   Program Manager--Information Sharing Environment (PM-ISE), 
        Guidelines to Ensure that the Information Privacy and Other 
        Legal Rights of Americans are Protected in the Development and 
        Use of the Information Sharing Environment (2006) http://
        www.ise.gov/docs/privacy/PrivacyGuidelines20061204.pdf. See 
        http://www.ise.gov/pages/privacy-implementing.html for related 
   PM-ISE, Nationwide Suspicious Activity Reporting 
        Initiative--Concept of Operations (December 2008) http://
        11_r5.pdf. For further information on governance of the SARs 
        program, see http://www.ise.gov/pages/sar-initiative.html.
   Law Enforcement Intelligence Unit (LEIU), Criminal 
        Intelligence File Guidelines (revised March 2002) http://
   LAPD, Major Crimes Division Standards and Procedures (March 
        18, 2003) http://www.lapdonline.org/search_results/
   Memorandum of Agreement Between the Attorney General and the 
        Director of National Intelligence on Guidelines for Access, 
        Retention, Use, and Dissemination by the National 
        Counterterrorism Center of Terrorism Information Contained 
        within Datasets Identified as Including Non-Terrorism 
        Information and Information Pertaining Exclusively to Domestic 
        Terrorism (2008) http://fas.org/sgp/othergov/intel/nctc-
    Remarkably, there does not seem to be a set of intelligence 
guidelines for the Department of Homeland Security or for any of its 
intelligence-collecting components. However, the main problem we see is 
not the lack of guidelines per se, but the fact that the guidelines 
that have been issued so far fail to provide adequate guidance. They 
either permit intelligence collection without a predicate, as the 
Attorney General guidelines do,\3\ or they provide generic, unhelpful 
guidance, stating that ``all agencies shall, without exception, comply 
with the Constitution and all applicable laws and Executive Orders,'' 
as the ISE guidelines do. We appreciate that guidelines must be 
tailored to the nature and mission of the entity, the places where it 
conducts its operations (whether primarily within the United States or 
abroad), and the type of information it collects. However, there does 
not seem to be a set of principles that guides the overall intelligence 
effort and protects civil liberties. There are a lot of cooks in the 
homeland security intelligence kitchen, and they are each using 
different recipes.
    \3\ CDT's analysis of the Attorney General Guidelines can be found 
here: http://cdt.org/publications/policyposts/2008/16.
  who shares and analyzes homeland security intelligence information?
    As the 9/11 Commission found, and numerous other reports have 
confirmed, better sharing of intelligence and criminal information is 
needed to uncover and head off terrorist plans. Just last week, the 
Markle Foundation Task Force on National Security in the Information 
Age called for a recommitment to information sharing:

``The President and Congress must reaffirm information sharing as a top 
priority, ensuring the policymakers have the best information to inform 
their decisions . . . If there is another terrorist attack on the 
United States, the American people will neither understand nor forgive 
a failure to have taken this opportunity to get the right policies and 
structures in place.''\4\
    \4\ Markle Foundation Task Force on National Security in the 
Information Age, Nation at Risk: Policy Makers Need Better Information 
to Protect the Country, March 2009, p. 1. CDT was represented on the 
steering committee that produced the report and it receives financial 
support from the Markle Foundation.

A number of information-sharing structures have been established that 
could be effective in heading off terrorist attacks by sharing homeland 
security intelligence information. However, they have overlapping 
missions and insufficient guidance to protect civil liberties.
    Information Sharing Environment.--The ISE, created by Congress and 
housed in the Office of the Director of National Intelligence, is a 
potentially revolutionary effort to create a means for sharing 
terrorism, law enforcement, and homeland security information across 
Federal agencies and among State, local, and tribal police forces. The 
types of information that will be exchanged are broadly defined, and 
tens of thousands of law enforcement and intelligence officials will 
have access to the information.
    The ISE is scheduled to go operational this summer. However, the 
privacy guidance for the ISE is woefully inadequate. For example, the 
guidance calls for agencies to develop redress mechanisms to handle 
complaints about decisions made based on faulty information, but at the 
same time allows them to decide not to adopt redress mechanisms on the 
ground that they would be inconsistent with the agency's mission.\5\
    \5\ In February 2007, CDT issued an analysis of the ISE privacy 
guidelines. http://www.cdt.org/security/20070205iseanalysis.pdf. We 
noted that the guidelines never actually define what privacy is. The 
title and text of the guidelines refer to ``other legal protections,'' 
but never explain what those are either. The guidelines never mention 
the First Amendment or free speech. The cover memorandum to the 
guidelines includes one reference to Fair Information Practices, and 
the guidelines themselves contain some of the FIPs. However, there is 
no engagement with the challenges of applying the Fair Information 
Practices in the terrorism context. CDT is preparing a further major 
study of all of the privacy materials associated with the ISE; our 
results should be available early this summer.
    National Counterterrorism Center.--The NCTC employs more than 500 
people, drawn from 16 Federal departments and agencies to integrate and 
analyze counterterrorism intelligence, much of which fits under the 
homeland security intelligence umbrella. It produces detailed 
assessments to help senior policymakers make decisions. To facilitate 
information sharing, the NCTC has access to more than 30 intelligence, 
military, and law enforcement networks. Unlike the ISE--which operates 
more as a pointer system to data maintained by various agencies--the 
NCTC also takes in copies of data from other agencies, creating its own 
depository of data that is analyzed and shared. Among other functions, 
the NCTC maintains a consolidated repository of information about the 
identities of terrorists from which is derived, among other subsets of 
data, the watch list used to screen airline passengers.
    E-Guardian.--E-Guardian can be thought of as the FBI's own version 
of the ISE. It permits the sharing of unclassified information relating 
to terrorism with 18,000 entities, including State and local law 
enforcement entities. It also helps them submit their own information 
to the FBI. According to a DOJ Inspector General's report, its 
companion system, Guardian, which contains terrorism tips and reports 
by Federal agencies, suffers from numerous data integrity failures, 
including failure of supervisors to conduct a review to determine 
whether a threat was adequately addressed, and failure to create a 
complete record for fully 30 percent of examined records.\6\
    \6\ U.S. Department of Justice, Office of the Inspector General 
Audit Division, November 2008, The FBI's Terrorist Threat and 
Suspicious Incident Tracking System, http://www.usdoj.gov/oig/reports/
    Fusion Centers.--State and local governments have created at least 
58 fusion centers to improve information sharing across all levels of 
government to prevent terrorism and other crimes, and in some cases, to 
respond to public health and other emergencies. Non-Federal law 
enforcement entities, such as State police, are the lead agencies in 
most of the centers, though most have Federal personnel, usually from 
the FBI and DHS. The National Strategy on Information Sharing that 
President Bush issued in October 2007 indicates that the Federal 
Government will provide grants, training, and technical assistance, and 
Congress has appropriated funds to provide financial support to fusion 
centers. Each fusion center is different, but there continue to be 
questions about their mission and effectiveness and they face 
significant challenges. Officials in over half of the fusion centers 
contacted by the Government Accountability Office for a recent report 
said that they had encountered challenges in accessing Federal 
information systems, while at the same time over half reported that the 
heavy volume of information they were receiving and the existence of 
multiple systems with redundant information were difficult to 
    \7\ Testimony of Eileen R. Larence, Director of Homeland Security 
and Justice Issues at the Government Accountability Office before a 
subcommittee of the Senate Committee on Homeland Security and 
Governmental Affairs, April 17, 2008, http://hsgac.senate.gov/public/
_files/LarenceTestimony.pdf, pp. 8-9.
    Joint Terrorism Task Forces.--JTTFs are comprised of Federal, 
State, and local law enforcement officers and specialists. The JTTF 
concept pre-dated 9/11 by several decades but was expanded after 9/11 
and there are now 100 JTTFs, including one in each of the FBI's 56 
field offices Nation-wide. DHS entities involved in JTTFs include 
Customs and Border Protection and Immigration and Customs Enforcement. 
Fifteen other Federal law enforcement and intelligence agencies are 
involved in one or more JTTFs.
          what civil liberties violations have been uncovered?
    Monitoring of Peaceful Political Activity.--Despite the secrecy 
surrounding the collection of homeland security intelligence, a number 
of abuses and instances of misguided focus on peaceful activity have 
already been uncovered, revealing a shocking lack of priorities that is 
inexplicable in a time of genuine threats. The ACLU has compiled some 
of these reports;\8\ we mention only a few of the more egregious ones 
    \8\ http://www.aclu.org/privacy/gen/32966pub20071205.html.
   Maryland State Police Surveillance of Peaceful Anti-War and 
        Anti-Death Penalty Activists.--As reported in the Washington 
        Post: ``Undercover Maryland State Police officers conducted 
        surveillance on war protesters and death penalty opponents 
        [from March 2005 until May 2006] . . . '' ``Organizational 
        meetings, public forums, prison vigils, rallies outside the 
        State House in Annapolis and e-mail group lists were 
        infiltrated by police posing as peace activists and death 
        penalty opponents, the records show. The surveillance continued 
        even though the logs contained no reports of illegal activity 
        and consistently indicated that the activists were not planning 
        violent protests.''\9\ The State police classified 53 
        nonviolent activists as terrorists and entered their names in 
        State and Federal terrorism databases.\10\
    \9\ Lisa Rein, ``Police Spied on Activists in Md.,'' July 18, 2008 
p, A1, http://www.washingtonpost.com/wp-dyn/content/article/2008/07/17/
    \10\ Lisa Rein, ``Md. Police Put Activists' Names on Terror 
Lists,'' October 8, 2008, P. A1 http://www.washingtonpost.com/wp-dyn/
   Reporting on Lobbying Activities and Concern about 
        Tolerance.--The North Central Texas Fusion System distributes a 
        bi-weekly Prevention Awareness Bulletin to over 1,500 staff in 
        200 Texas agencies. The bulletin issued on February 19, 2009, 
        under the headline ``Middle Eastern Terrorist groups and their 
        supporting organizations have been successful in gaining 
        support for Islamic goals in the United States and providing an 
        environment for terrorist organizations to flourish,'' cited 
        incidents ranging from the installation of footbaths at the 
        Indianapolis airport to the Treasury Department's hosting of a 
        conference entitled ``Islamic Finance 101,'' as signs of 
        growing tolerance for ``Shariah law and support of terrorist 
        military activity against Western nations.'' The report 
        expressly singled out ``lobbying activities'' and concluded by 
        warning that ``it is imperative for law enforcement officers to 
        report these types of activities to identify potential 
        underlying trends emerging in the North Central Texas 
    \11\ The North Central Texas Fusion System Bulletin is available on 
the Defending Dissent web site, http://www.defendingdissent.org/
   Compiling Nation-wide Lists of Marches and Rallies.--At 
        least as of 2006, the Intelligence Branch of the Federal 
        Protective Service in DHS was compiling a ``Protective 
        Intelligence Bulletin,'' mainly by using a ``media reporting 
        service'' available on the Internet. The March 3, 2006 
        bulletin,\12\ 17 pages long, listed dozens of events such as a 
        ``Three Years Is Too Many Demonstration'' by the Central 
        Vermont Peace and Justice Center to be held at 1400 hours on 
        the sidewalk in front of Main Street Park in Rutland. 
        Recipients were advised that the Bulletin should be shredded or 
        burned when no longer required.
    \12\ The Bulletin is posted here: http://www.defendingdissent.org/
    These reports are reminiscent of the 1960's or 1970's in their 
confusion between peaceful dissent and violent activity. The 
misallocation of resources alone is cause for serious concern when the 
Nation faces genuine threats. The potential for a chilling of the 
exercise of First Amendment rights compounds the concern. Department 
heads and elected officials, especially appropriators, at the Federal, 
State, and local level should hesitate before supporting continuation 
or expansion of homeland intelligence activities until there are rules 
in place that require a focus on the potential for violence, training 
programs that distinguish between political activity and terrorist 
activity, and oversight mechanisms to ensure that prohibitions against 
First Amendment monitoring are being adhered to.
    Overbroad collection of information with SARs.--State, local, 
tribal, and Federal entities are collaborating to develop a Nation-wide 
system of Suspicious Activity Reporting. The SARs system is just 
getting off the ground, but so far, the standards for the program 
suggest that much innocent activity will be tracked. For example, 
photographing bridges is described as a suspicious activity, even 
though such sites are regularly photographed by tourists, journalists 
and photography buffs.
    The risks we are concerned with develop when such ``suspicious 
activity'' is recorded and shared with information identifying the 
person engaged in the ``suspicious activity.'' What prevents the 
mistaken conclusion that a person is a terrorist because he or she is 
the subject of two or more SARs, each reporting on innocent behavior? 
Won't the next official who encounters the same person in a different 
context and files a SAR to report other innocent activity assume that 
his or her suspicion is confirmed because of the initial SAR in the 
system? Will the subject even know how the data is being used or what 
further scrutiny he faces? How does an individual ever prove the 
legitimacy of his activity when the object of the process is not 
evidence but only suspicion? Taking in huge amounts of personally 
identifiable information about innocent activity and creating self-
generating affirmations that make it more likely that yet more 
information will be taken in does not seem to be the most effective way 
of conducting intelligence.
what can be done to address these problems and properly focus homeland 
                         security intelligence?
    Require DHS entities to follow principles of fair information 
practices, including the minimization principle.--The internationally 
accepted principles of Fair Information Practice (``FIPs'') establish a 
useful framework for using information to make fair decisions about 
people. There is no single authoritative statement of the FIPs, but the 
DHS Privacy Office on December 29, 2008 issued a memorandum \13\ 
adopting FIPs as its privacy policy framework, and indicated that it 
would seek to apply them to the ``full breadth and diversity of DHS 
programs and activities.'' The DHS Privacy Office language is attached 
as an appendix. If implemented, these principles would require DHS to:
    \13\ Privacy Policy Guidance Memorandum, issued December 29, 2008 
by Hugo Teufel III, Chief Privacy Officer, available at http://
   Give notice of collection and use of Personally Identifiable 
        Information (PII);
   Seek consent, to the extent practicable, for collection and 
        use of PII;
   Articulate the purpose for collecting PII;
   Collect only PII that is necessary to accomplish the 
        specified purpose;
   Use PII only for the purpose specified;
   Ensure that PII collected is accurate, relevant, timely, and 
   Safeguard PII against unauthorized access and improper 
   Audit actual use of PII to demonstrate compliance with these 
    Clearly, not all of these concepts can be implemented in the 
homeland security context in the way that they are applied in the 
government benefits context, where they originated. One cannot, for 
example, seek consent from the next Mohammed Attah for the sharing of 
information about his plotting with al Qaeda operatives among elements 
of the intelligence community. However, the principles do offer an 
excellent framework for analyzing intelligence collection practices. 
While the DHS Privacy Office took its action at the end of the last 
administration, the new leadership of DHS could carry forward this 
effort to develop Department-wide policies in the detail necessary for 
effective implementation.
    Applying these principles to, for example, the functioning of 
fusion centers, would help alleviate the civil liberties concerns that 
they have created. Indeed, the DHS Privacy Impact Assessment (PIA)\14\ 
for the Fusion Center Initiative, also issued last December, goes some 
distance toward accomplishing this goal. The subcommittee should use 
its oversight authority to see that the recommendations in the PIA are 
being implemented.
    \14\ U.S. Department of Homeland Security Privacy Impact Assessment 
for the Department of Homeland Security State, Local and Regional 
Fusion Center Initiative, December 11, 2008, http://www.dhs.gov/
    However, because State and local governments run the fusion 
centers, the PIA recognizes that adoption of effective privacy 
guidelines to implement FIPS at each fusion center is largely within 
the control of local agencies. Materials that will address the privacy 
protections required of fusion centers participating in the ISE are 
still under development. The DHS Office of Intelligence and Analysis, 
which leads the effort to create effective fusion centers, could also 
work with the DHS Privacy Office to ensure that the fusion centers it 
helped create comply with these principles, especially the ``Data 
Minimization'' principle. Full fusion center compliance would mean that 
only the information necessary to accomplish the center's purposes 
would be collected.
    Require a criminal predicate where appropriate.--Probably the 
single most effective civil liberties protection that could be imposed 
on the collection and sharing of homeland security intelligence that 
includes personally identifiable information would be to require 
criminal predication. This means that information is collected or 
shared only because it has some degree of relevance to a violation of 
the law. Requiring a criminal predicate in effect requires the person 
who gathers or shares information to focus on potential wrongdoers, and 
not on everyone else. Conversely, failure to require a tie to crime 
invites reliance on inappropriate predicates for collection and sharing 
of information, such as fear fostered by fiery speech, or by race and 
    Requiring a criminal predicate for the collection and sharing of 
PII through homeland security intelligence is not inconsistent with the 
purpose of an intelligence system because at bottom, these systems are 
designed to prevent, investigate, or respond to terrorist activity that 
is a crime.
    This principle is captured in 28 CFR Section 23, the guidelines 
that govern federally funded criminal intelligence systems. These 
systems are used to exchange information much of which constitutes 
homeland security intelligence information. The guidelines provide that 
any federally funded project shall collect and maintain criminal 
intelligence information concerning an individual or organization only 
if there is reasonable suspicion that the individual or organization is 
involved in criminal conduct. 28 CFR Section 23.20(a). To the extent 
that fusion centers operate federally funded criminal intelligence 
systems, those systems are bound by this regulation. Still, there is 
considerable concern that the protections of the reasonable suspicion 
standard are diluted when federally funded fusion centers collect and 
share vast amounts of SAR information that does not meet the standard. 
We would suggest that this is an area ripe for oversight by this 
    Guard Against Circumvention of Applicable Guidelines.--
Circumvention of 28 CFR Section 23 requirements illustrates another 
danger of inappropriate use of intelligence sharing mechanisms such as 
fusion centers. Another circumvention problem that has not yet been 
adequately addressed relates to the investigative guidelines under 
which many law enforcement entities operate and under which the FBI 
operates. These guidelines can take a number of forms and will have a 
variety of provisions designed to protect civil liberties. For example, 
often following litigation, a police department may adopt guidelines 
that prohibit it from conducting surveillance of protest activity 
except when directly tied to criminal activity. The FBI operated under 
Attorney General Guidelines that included such a restriction, but it 
was largely removed in 2002. Such restrictions are designed to protect 
against a chilling of controversial political speech.
    However, a partner agency, with which the restricted agency may 
share information through the ISE, a fusion center, or another 
mechanism, may have no such limitations. It could conduct the 
surveillance that its partner agency is specifically barred from 
conducting and share the fruits with the restricted agency. The civil 
liberties protections embedded in the guidelines that govern activity 
of the restricted agency would be circumvented. To our knowledge, no 
adequate mechanism or binding and enforceable rule precludes the 
circumvention of such guidelines. The circumvention problem can flow 
across State and local agencies, and from or to Federal agencies that 
participate in the information sharing enterprise.
    Avoid redundancies.--As we mentioned above, there are already a lot 
of cooks in the intelligence information sharing and collection 
kitchen. The subcommittee should guard against adding more just because 
a specific new need for information has been identified. The first step 
should be to ask whether the information needed is already being 
collected and shared through a system that could be employed to this 
    Take a comprehensive look at homeland security intelligence 
collection now taking place.--The subcommittee, in exercising its 
oversight role, should sample intelligence products developed by DHS 
components to more fully ascertain what is being collected, how it is 
used, and whether it is useful in preventing terrorism. The 
subcommittee should consider whether more targeted collection efforts 
would be more effective. Finally, the subcommittee should review the 
training materials that DHS entities use. The review should be 
conducted with an eye toward ascertaining whether DHS officials are 
being trained to avoid inappropriate surveillance, such as the 
monitoring of death penalty opponents by the Maryland State Police.
    The subcommittee could also identify processes that work at one 
agency and that might be a source of useful guidance to another 
component or agency facing similar challenges. For example, the 
Transportation Security Administration has developed redress procedures 
for air travelers who believe they have been watch-listed 
inappropriately. While the procedures are not perfect and there are 
reports that some travelers have found them ineffective, they are an 
example of an approach to redress in a security environment from which 
lessons could be learned and applied to other security environments.
    Conduct an independent assessment of the value of SARs reporting.--
The subcommittee should test whether SARs reporting is both effective 
and efficient in preventing terrorism. This may involve commissioning a 
GAO study or conducting an independent staff level assessment. SARs 
reporting may or may not be the best way to collect the ``dots'' that 
need to be connected to head off terrorist attacks; whether it is or is 
not should be tested. Because the SARs reporting system will result in 
the collection of so much information about innocent activities, it 
seems that it would be good to know at the front end that the results 
are likely to be worth the risks.
    Many entities at the Federal, State, and local level gather and 
share homeland security intelligence. More and more information is 
being collected and shared about innocent activity, creating increased 
risks to civil liberties. Some of these risks have matured into abuses, 
including the monitoring of First Amendment activity without adequate 
cause. Oversight that is focused on ensuring adherence to principles of 
Fair Information Practices, requiring a criminal predicate to support 
collection and sharing of personally identifiable information, and 
compliance with strong privacy protective guidelines would enhance both 
liberty and security.
  principles of fair information practices as articulated by the dhs 
                          privacy office \15\
    \15\ Privacy Policy Guidance Memorandum, issued December 29, 2008 
by Hugo Teufel III, Chief Privacy Officer, available at http://
   Transparency.--DHS should be transparent and provide notice 
        to the individual regarding its collection, use, dissemination, 
        and maintenance of personally identifiable information (PII).
   Individual Participation.--DHS should involve the individual 
        in the process of using PII and, to the extent practicable, 
        seek individual consent for the collection, use, dissemination, 
        and maintenance of PII. DHS should also provide mechanisms for 
        appropriate access, correction, and redress regarding DHS's use 
        of PII.
   Purpose Specification.--DHS should specifically articulate 
        the authority that permits the collection of PII and 
        specifically articulate the purpose or purposes for which the 
        PII is intended to be used.
   Data Minimization.--DHS should only collect PII that is 
        directly relevant and necessary to accomplish the specified 
        purpose(s) and only retain PII for as long as is necessary to 
        fulfill the specified purpose(s).
   Use Limitation.--DHS should use PII solely for the 
        purpose(s) specified in the notice. Sharing PII outside the 
        Department should be for a purpose compatible with the purpose 
        for which the PII was collected.
   Data Quality and Integrity.--DHS should, to the extent 
        practicable, ensure that PII is accurate, relevant, timely, and 
   Security.--DHS should protect PII (in all media) through 
        appropriate security safeguards against risks such as loss, 
        unauthorized access or use, destruction, modification, or 
        intended or inappropriate disclosure.
   Accountability and Auditing.--DHS should be accountable for 
        complying with these principles, providing training to all 
        employees and contractors who use PII, and auditing the actual 
        use of PII to demonstrate compliance with these principles and 
        all applicable privacy protection requirements.

    Ms. Harman. Ms. Martin, you are recognized for 5 minutes.

                        SECURITY STUDIES

    Ms. Martin. Thank you, Chair Harman, and Ranking Member 
McCaul and the other Members of the subcommittee, for the 
opportunity to testify today. I want to share Ms. Fredrickson's 
thank you for your leadership on the NAO issue. I especially 
appreciate the committee and the subcommittee taking the 
opportunity to reassess and take a new look at this very 
complicated and complex issue.
    I want to start off by noting that the term 
``intelligence'' itself is used in a wide variety of 
situations, and that, as some of the witnesses on the previous 
panel testified, there are definite intelligence tasks that 
don't pose the same kind of risk to civil liberties, 
dissemination of information about ricin. It doesn't oppose the 
risk to civil liberties, and I think that the LAPD has some 
examples of the use of SARs that don't pose risks of civil 
liberties; for example, keeping track of bomb threats in the 
    At the same time I think this subcommittee's inquiry could 
not be more crucial, because we are at a point in our history 
where we have seen an unprecedented and, I would say, a 
fundamental change in the intelligence capabilities of the U.S. 
Government in the last 7 years. Basically what we have seen is 
an enormous expansion in the collection authorities across the 
board, an expansion in the number of agencies in both the 
Federal Government and in State and local who are authorized 
to, ``collect intelligence,'' and a weakening of the 
traditional safeguards and limitations on such collection.
    I think that in looking at the problems that such 
collections pose for civil liberties and privacy, that it is 
important, as Caroline mentioned, to understand that it is not 
simply a privacy problem. I think Senator Sam Ervin, one of 
your predecessors, who was, of course, the author of the 
Privacy Act, put it best when he explained that when the 
Government knows all our secrets, we stand naked before 
official power. Stripped of our privacy, we lose our rights and 
privileges. The Bill of Rights then becomes just so many words.
    The other problem, we have traditionally dealt with this 
issue in two fashions. One is by limiting the amount of 
information that the Government collects, which is also limited 
by technological and logistical capabilities and, second, by 
laws. I think that given the past history of the past 7 years, 
we have to be mindful that we may not be able to rely upon laws 
as sufficient to limit Government abuses when faced with 
national crises. We have examples of an Executive branch 
claiming the authority to go around and violate the laws and to 
do so in secret.
    So our recommendation to the committee is to begin with a 
more comprehensive review and assessment of where we are, and 
where we have come, and the risks, issues imposed by that. I 
would like to suggest that the committee begin with requiring 
and articulating specific missions for different kinds of 
homeland security intelligence.
    Second, I think we need a threat assessment. With all due 
respect to the witnesses on the previous panel, I think there 
is much to learn from the Israeli example, not least of how to 
protect civil liberties and democratic processes while facing a 
true national security threat. I do not think that any 
objective assessment of the threat faced from homegrown 
terrorism in the United States will find very much in common 
with the Israeli experience, but that is an analysis that we 
need, and we need for it to be done publicly.
    We also need to have a more complete picture of what the 
Government is doing, what its legal authorities are, and what 
it is actually doing. I think the American public are entitled 
to some metrics on how much information the Government has, how 
many Americans are referred to in how many databases, and how 
many Government officials have access to those databases.
    I look forward to and I am certain that this committee will 
provide leadership on reviewing and making some of the 
information public with a classified annex if possible for us 
to begin the real public debate that is needed.
    Ms. Harman. Thank you, Ms. Martin.
    [The statement of Ms. Martin follows:]
                   Prepared Statement of Kate Martin
                             March 18, 2009
    Chair Harman, Ranking Member McCaul, and distinguished Members of 
the House Homeland Security Subcommittee on Intelligence, Information 
Sharing, and Terrorism Risk Assessment, thank you for inviting me to 
testify today. I am the Director of the Center for National Security 
Studies, a think tank and civil liberties organization, which for 30 
years has worked to ensure that civil liberties and human rights are 
not eroded in the name of national security. The Center is guided by 
the conviction that our national security must and can be protected 
without undermining the fundamental rights of individuals guaranteed by 
the Bill of Rights. In our work on matters ranging from national 
security surveillance to intelligence oversight, we begin with the 
premise that both national security interests and civil liberties 
protections must be taken seriously and that by doing so, solutions to 
apparent conflicts can often be found without compromising either.
    I especially appreciate the committee using the opportunities 
created by the change in administration to hold this hearing and take 
stock, evaluate, and reassess the role of the Department of Homeland 
Security and in particular domestic intelligence. While there has been 
much work done on the enormously complex task of creating the 
Department of Homeland Security, defining its responsibilities and 
authorities, etc., it is now time to take a broader look at the role, 
usefulness, and risks of homeland security intelligence. The past 7 
years have been marked by politicians using the rhetoric of fear for 
political advantage and as a substitute for in-depth analysis and 
public discussion of the admittedly difficult issues of 
counterterrorism, domestic intelligence, and civil liberties. The 
Executive branch has operated with unnecessary and in my view 
unconstitutional secrecy, the Congress has largely acquiesced (despite 
the objections of some, including Members of this subcommittee), and 
intelligence and security issues have been used to score partisan 
points. The result has been an unprecedented and insufficiently 
understood expansion of Government power to conduct surveillance on 
Americans, with very little evidence of its effectiveness, much less 
its necessity.
    Congress needs to examine domestic surveillance and intelligence as 
a whole. There is no doubt that the Government made many mistakes 
before 9/11, that globalization has changed the vulnerabilities of the 
United States, that technology has outpaced the law in some areas, and 
that changes were needed to ensure the most effective possible 
counterterrorism effort consistent with our Constitution. The last 
administration, enabled by an explosion in technological surveillance 
capabilities took the opportunity to change basic principles and 
practices limiting Government surveillance of Americans in fundamental 
and far-reaching ways.
    They did so, however, without any acknowledgment of the enormity of 
the changes. As Suzanne Spaulding has pointed out, the legal framework 
for surveillance is now a ``Rube Goldberg''-like structure, and this 
patchwork of laws makes it very difficult to understand the full impact 
of the changes. Moreover, the issues that have been the focus of public 
debate have been largely technical and frequently subjected to less 
scrutiny than they deserved because of the political pressures 
surrounding the debate. There has also been a proliferation of agencies 
and entities with domestic intelligence responsibilities, although it 
is not clear that such arrangement was a deliberate effort to create 
redundancy or just an accident resulting from so many different 
initiatives by different actors.
    Thus, this committee's examination of the role of DHS and 
``homeland security intelligence'' is both timely and much needed. I 
hope it will serve as a key part of a comprehensive review of the 
changes made in domestic surveillance and intelligence in the past 7 
years that will provide an understanding of the changes as a whole. 
Such a review is essential to evaluate the effectiveness and necessity 
of these changes and to recommend changes to make such activities more 
effective and less threatening to the balance of power between the 
Government and the people. I expect such review to be facilitated by 
increased cooperation by the Executive branch.
    Today, I want to outline a few issues that I would urge the 
committee to consider in examining ``homeland security intelligence'' 
and the role of DHS in domestic intelligence. They will not be new 
ideas to the Members of this committee because they are essentially 
first principles. Yet an examination of recent testimony before the 
committee suggests that they are frequently overlooked and even lost 
sight of by witnesses focusing on the necessary details of bureaucratic 
authorities, funding, and organization.
    When evaluating any homeland security intelligence capability, the 
first question should be whether it has a specific and concretely 
defined mission. This is especially crucial in the case of DHS, which 
has myriad and diverse departmental missions. It is not adequate to 
describe the mission of ``homeland security intelligence'' as providing 
intelligence to keep Americans safe or the ``homeland'' secure. While 
intelligence may well be useful for many if not all of the Department's 
missions, it is essential to distinguish conceptually between the 
different objectives; for example, between the activity of collecting 
and analyzing information in order to prevent another Katrina, and 
intelligence aimed at preventing another Mohammed Atta from being 
admitted into the United States.
    Today, I will focus on domestic intelligence for counterterrorism 
and criminal law enforcement purposes. However, even that mission 
description is too general to be very useful. In the case of DHS, for 
example, it could encompass evaluating the vulnerabilities of domestic 
infrastructures, from water reservoirs to cyber networks; assessing how 
best to prevent al Qaeda terrorists from entering the United States; 
and trying to identify any ``homegrown terrorists.'' It is also 
important to distinguish between activities intended to improve the 
Government response to terrorist incidents by helping victims and 
repairing property damage, and Government activities aimed at 
identifying and apprehending those responsible for such crimes. (There 
has been a fair amount of work done on analyzing such post-incident 
tasks and the appropriate legal authorities therefor with regard to 
Defense Department activities in such situations.)
    While each of these objectives requires both information and smart 
analysis as well as coordination, the relevant information and analysis 
are quite different depending on the objective. Today, I will not 
address what intelligence is needed to assess and protect against 
infrastructure vulnerabilities. Members of this committee, and 
especially Chair Harman, have long played a leadership role on these 
issues. And much of the work necessary to protect against such 
vulnerabilities does not raise the same kind of constitutional and 
civil liberties concerns as other counterterrorism activities. Rather, 
I will focus on homeland security intelligence that is aimed at 
identifying, locating, and ``disabling'' individuals from carrying out 
terrorist acts, whether through arrest, deportation, or surveillance.
    In evaluating homeland security intelligence, it is crucial to 
identify when the mission of such intelligence is to prevent or respond 
to acts of terrorism in the United States, by identifying and locating 
those individuals involved in such plans or responsible for such acts. 
It is then equally important to articulate whether the intelligence 
mission is focused on individuals inside the United States or the 
intentions and activities of overseas individuals and groups that 
threaten U.S. interests. It would be enormously useful to require DHS 
officials when describing and testifying about intelligence activities 
always to identify whether the activities under discussion include 
collecting or analyzing information about Americans.
    Of course, communications and transactions between Americans and 
foreigners overseas can be a legitimate subject of inquiry and there 
must be coordination between intelligence aimed overseas and 
intelligence conducted in the United States. As the committee is aware, 
an enormous amount of work has been done to ensure such coordination, 
beginning with the most basic objective that foreign individuals 
identified by U.S. agencies overseas as plotting terrorist attacks be 
barred from entering the United States. But all too often, the mission 
lines are blurred. One example is the terrorist watch list, which is 
apparently designed as one list containing the names of both Americans 
and suspected foreign terrorists living overseas. Such commingling, 
which is unnecessary for operational purposes, misleadingly implies 
that the rules and protections for Americans and for foreigners 
overseas are the same. The civil liberties protections in the Bill of 
Rights limit Government surveillance in the United States, but have not 
been extended to foreigners overseas. Nevertheless, the claim is now 
made that Americans communicating with foreigners overseas, somehow 
lose their constitutional privacy protections because their 
correspondents do not enjoy any such protections.
    The first step toward restoring the full measure of these 
protections is to require a fulsome accounting of when homeland 
security intelligence includes collection or analysis of information 
about Americans.
    An objective threat assessment is needed of the terrorist threat 
inside the United States. An assessment of the likelihood, magnitude, 
scope, and source of terrorist threats inside the United States is 
crucial to any examination of what kind of domestic intelligence makes 
sense. This is perhaps the area that has been most subject to political 
and partisan grandstanding and least subject to rigorous analysis. 
Officials in the last administration regularly warned of ``sleeper 
cells'', while wrongfully jailing hundreds of individuals who were 
innocent of terrorist activities. The public needs a clear 
understanding of the true nature of the threats from within and without 
the country. When the Commission on Prevention of Weapons of Mass 
Destruction Proliferation and Terrorism announced that a WMD attack on 
the United States is likely in the next 5 years, the headline coverage 
gave the impression that the Commission had concluded that there are 
terrorist cells in the United States plotting such, when the report 
focused mainly on threat activities overseas. When officials talk about 
a new enemy operating in a networked world requiring a networked 
response, they do not distinguish between al Qaeda in Iraq and would-be 
terrorists in the United States. The impression gained from following 
the terrorism cases brought in the United States in the past 7 years, 
is that the alleged ``home-grown terrorists'' were by and large 
discovered not through network analysis, but through the old-fashioned 
use of undercover informants.
    Assessment of the specific kinds of threats, including an 
evaluation of how much is known and unknown is essential for evaluating 
any program for homeland security intelligence. To date, there has been 
no such assessment available for rational examination and discussion. 
Instead, there has been a constant drumbeat to the effect that the 
threat is an existential one.
    But as Secretary Chertoff acknowledged, it is not possible to 
prevent all acts of terrorist violence and keep everyone safe. It is 
crucial to acknowledge that such incidents are not likely to constitute 
existential threats to the Nation and that we must take account of the 
magnitude of the actual threat. It is misleading, for example, to 
compare the worldwide convulsions and horrors of World War II with the 
activities of the homegrown terrorists arrested in the United States 
since 9/11 or even with the attacks in Madrid, London, or Mumbai, 
terrible as those were. Moreover, recognizing the true extent of the 
domestic threat is important in order to avoid playing into terrorists' 
hands who recognize the asymmetry of the power confronting them and 
hope to provoke a disproportionate response by sowing fear through 
    Current domestic intelligence capabilities create the risk of a 
mismatch between the domestic threat and the Government response. There 
is no doubt that information is key to preventing terrorism and crime 
and that analysis of information is even more important. But it does 
not follow that current domestic intelligence activities are necessary 
or the most effective means of prevention. The term ``intelligence'' 
itself has a variety of meanings, including ``criminal intelligence'' 
referring to the analysis of information by police and law enforcement 
for prevention of crime and terrorism. But the more usual meaning of 
the term implies that the collection and analysis of information is not 
necessarily tied to law enforcement. Rather it refers to all the secret 
collection and analysis activities undertaken by Government agencies to 
counter threats to the national security. By definition it enjoys a 
high degree of secrecy and it is seen as the province of experts, both 
of which make difficult any informed examination of its reliability and 
    In 2003, I wrote an analysis of domestic intelligence and 
counterterrorism arguing that domestic intelligence should be closely 
tied to law enforcement in order to protect civil liberties and to 
insure the most effective counterterrorism. See Kate Martin, ``Domestic 
Intelligence and Civil Liberties'' SAIS Review, Vol. 24, No. 1, Winter-
Spring 2004. At that time, I wrote in part to argue against the 
creation of a new domestic intelligence agency rather than tasking the 
FBI to improve its counterterrorism activities. Since then, no new 
stand-alone agency has been created, but there has been an 
unprecedented increase in the number of agencies and entities engaged 
in domestic intelligence and the scope of their activities. The legal 
authorities permitting collection of information on Americans have been 
expanded and the limitations and safeguards against abuse have been 
weakened. Over the past 7 years, Government agencies have collected 
enormous amounts of data on enormous numbers of Americans, which is 
stored in electronic databases virtually forever, and is accessible to 
enormous numbers of Government employees. Advances in technology have 
meant that information about individual Americans is no longer 
``practically obscure'' by being hidden within enormous data sets, but 
instead can be quickly, easily and cheaply retrieved, analyzed, and 
disseminated to a wide range of Federal, State, local, and tribal 
officials and employees.
    Such developments pose enormous challenges to the balance of power 
between the Government and the citizens. As Senator Sam Ervin explained 
in 1974:

``[D]espite our reverence for the constitutional principles of limited 
Government and freedom of the individual, Government is in danger of 
tilting the scales against those concepts by means of its information 
gathering tactics and its technical capacity to store and distribute 
information. When this quite natural tendency of Government to acquire 
and keep and share information about citizens is enhanced by computer 
technology and when it is subjected to the unrestrained motives of 
countless political administrators, the resulting threat to individual 
privacy makes it necessary for Congress to reaffirm the principle of 
limited, responsive Government on behalf of freedom.

``Each time we give up a bit of information about ourselves to the 
Government, we give up some of our freedom: the more the Government or 
any institution knows about us, the more power it has over us. When the 
Government knows all of our secrets, we stand naked before official 
power. Stripped of our privacy, we lose our rights and privileges. The 
Bill of Rights then becomes just so many words.''\1\
    \1\ Senator Sam Ervin, June 11, 1974, reprinted in Committee on 
Government Operations, United States Senate and The Committee on 
Government Operations, House of Representatives, Legislative History of 
The Privacy Act of 1974 S. 3418, at 157 (Public Law 93-579) (Sept. 

Senator Ervin is not describing the risks of individual misuse and 
wrongdoing, such as identity theft or other illegal uses of personal 
information by unauthorized Government officials. Rather, he is 
describing a systemic danger to our form of Government.
    Indeed, domestic intelligence activities--the secret collection of 
information by a government on its own citizens and residents--have 
always posed a serious threat to individual liberty and to 
constitutional government. There is virtually no domestic intelligence 
agency, including MI5 in Great Britain, untainted by scandal, political 
spying and dirty tricks, activities that threaten not only individual 
rights, but the proper functioning of democratic government. Risks to 
civil liberties are inherent in the very nature of domestic 
intelligence. This is because intelligence necessarily operates in 
secret and, as a result, it is exceedingly difficult to subject 
intelligence activities to the checks and balances that the framers of 
the Constitution understood as essential to prevent abuses of power. 
Secrecy operates to make congressional oversight less vigorous than 
usual, even though it is more needed in this case to compensate for the 
lack of the usual forms of public scrutiny over Government activity. In 
addition, the Executive branch has been very successful in arguing that 
judicial review of intelligence activities should be extremely 
deferential and limited, even when constitutional rights are at stake. 
Perhaps the greatest barrier to strong oversight and accountability is 
the always-present notion that the interest served by intelligence--
national security--is of paramount concern and always outweighs other 
    While the 9/11 attacks are a reminder of the extent of national 
security threats to the United States, the response by the last 
administration confirmed the insights of the Founders concerning the 
temptations of power and the ever-present need to defend the principles 
of democratic government. In the name of national security, the 
President claimed the authority to violate the laws passed by Congress 
protecting individual liberties and to keep such claims a secret not 
only from the American public, but even from the Congress. While the 
warrantless surveillance and illegal interrogations are well known, the 
administration also rounded up and jailed without due process hundreds 
of individuals in the United States because of their religion or 
ethnicity. We can have no confidence that such claims will not again be 
made by an administration in the name of necessity when faced with 
inevitable future crises.
    It is against this backdrop, that Congress should examine homeland 
security intelligence. A specific threat assessment is needed that is 
targeted to the specific missions tasked to such intelligence. Equally 
important a comprehensive understanding and public report is needed 
concerning domestic surveillance authorities and the potential uses of 
intelligence information against individuals, e.g., to place them on 
watch lists, to deny them security clearances, jobs, legal residency, 
or to prosecute them. Intelligence information also gives the 
Government the power to pressure unwilling individuals to become 
Government informants. Finally, the American public is entitled to 
metrics concerning the amount of data that has already been collected 
on them; how many individuals are referenced in how many Government 
databases; how much information is stored in those databases; and how 
many requests is the Government making to how many entities for more 
information about Americans. What kind of information is the Government 
collecting on how many Americans concerning their lawful political or 
religious activities?
    There is no doubt that all such data will be available to the 
Government to be used as has happened repeatedly in the past, against 
political, racial, or religious minorities, against dissenters or 
against political opponents. We count on this committee and others to 
examine how to prevent this, to consider whether more narrowly targeted 
collection programs may be more effective in preventing terrorism while 
posing fewer risks to constitutional government and individual 
    We are grateful for the opportunity to do so with less fear-
mongering and partisanship and more public dialog and discussion.
    Thank you for considering our views.

    Ms. Harman. Two votes have been called, and we all agreed 
to limit our questions to 4 minutes each strictly so that we 
can make the votes and not inconvenience any of you. So here I 
    First let me say that the witnesses on the first panel all 
talked about privacy and civil liberties issues. I applaud them 
for doing that. I think all of them are mindful of this. 
Whether they have got it perfectly right, I don't know; whether 
you have got it perfectly right, I don't know either. But 
fortunately, the debate does include every time, every time I 
hear the debate, the collection of information necessary to 
protect against terror threats consistent with privacy and 
civil liberties and constitutional concerns. So I like hearing 
    I want to know whether you all agree with Ben Franklin and 
me that security and liberty is not a zero-sum game. I want to 
start with you, Ms. Fredrickson, because the other two witness 
put forward some things that they feel should be done, 
tightening of definitions and other efforts, so that we can 
carry on with necessary activities to collect intelligence to 
protect us against homegrown threats while we are very, very 
focused on the need to protect innocent Americans and others 
from abusive efforts.
    So do you agree that security and liberty are not a zero-
sum game?
    Ms. Fredrickson. Absolutely, and I think those acts show 
that. When you look at law enforcement that makes a very 
deliberate effort to get to know different communities and have 
relationships, that is probably the most effective way of 
ensuring that concerns are brought to them, that people are not 
afraid of them and of keeping us all much safer. I think that 
is an example that proves your point completely.
    I would have to say that we commend Commander McNamara for 
her interest in having dialog with the ACLU. I understand there 
are civil liberties concerns in the process of collecting 
information about people's daily lives and daily activities and 
ensuring that there is not an improper overcollection of 
activities such as taking photographs. I think we are 
continuing to have discussion with her about how to put greater 
protections into the SARs. We do think they are still 
overbroad, but I think there is a way of refining it.
    I was very pleased with the testimony of the prior panel. I 
think that there were many quotes that we usually use at the 
ACLU that were used by the law enforcement professions who were 
here, and it is music to our ears. I think we are all trying to 
sing from the same hymnal if we can and reach the same results.
    Ms. Harman. Thank you.
    Could each of you answer very briefly so I keep within my 
    Mr. Nojeim. Yes.
    Ms. Harman. Thank you, Mr. Nojeim.
    Ms. Martin. Yes, and I would agree as well. How to 
reconcile that it is not as----
    Ms. Harman. I agree, but let us retire the word 
``balance.'' It is not that you get more of one and less of the 
other. We have got to do it right on the front end, or, let us 
hope not, comes the next terror attack, and I think we are at 
serious risk of shredding our Constitution, which to some 
extent, in my view, happened in the last years since 9/11 
because Congress and the public were not part of the dialog 
about what policies made sense.
    The Chair now yields 4 minutes to Mr. McCaul.
    Mr. McCaul. I thank Madam Chair. I, too, join you in your 
comments. We will not violate the Constitution in the name of 
national security; that is what defines us from the terrorists. 
I thank the witnesses for very thoughtful testimony.
    I want to make a few quick points and then turn it over. 
One, Mr. Nojeim, the idea of intelligence guidelines to test 
SARs, I am very intrigued by that idea, and I think that is 
something that the committee should follow up on.
    Criminal predicate versus reasonable suspicion would be 
something I would be interested in your thoughts on. There is a 
little bit of a difference there.
    Ms. Martin, the idea of studying the Israeli model and how 
they deal with the privacy is something I would like to hear 
from you on.
    Then finally there is an Office of Civil Rights and Civil 
Liberties at the DHS that did respond to the north central 
Texas Fusion Center issue that you raised. How can they do a 
better job? I guess if I can throw that out.
    Ms. Harman. In 3 minutes and 14 seconds.
    Ms. Fredrickson. I will be brief. I think the privacy and 
civil liberties offices need to be strengthened. They have not 
had enough independence from the departments that they sit in. 
They don't have adequate authority to review documents, 
subpoena documents, in effect, within the Department. So we 
have regularly recommended that these offices, as well as the 
Privacy and Civil Liberties Oversight Board, be strengthened so 
that they can perform a role that is much more of an ombudsman 
type of role rather than a subsidiary of Department of Homeland 
    Mr. McCaul. Thank you.
    Ms. Martin, can you expand on the Israeli model and how we 
can learn from that?
    Ms. Harman. Please turn on your microphone.
    Ms. Martin. Sorry.
    The Israeli Supreme Court issued some extraordinary 
decisions about how--the importance of protecting individual 
liberty even when faced with the threats that Israel faces. I 
think at the same time that the day-to-day threats that are 
faced in Israel are quite different and perhaps not so useful 
in looking at the day-to-day activities of the local police and 
State police in the United States, and I would not urge that as 
a model.
    We do not have a history of people getting on buses to blow 
themselves up and the passengers. I think one of the things I 
would really like to see is a threat assessment that 
distinguishes, for example, between the threat posed to U.S. 
interests by persons overseas, some of whom want to attack U.S. 
interests overseas, some of whom will try to get here, and the 
terrorist threat posed by people who are already here. I think 
that the discovery will be that the resources have been 
mismatched, that the real threats to the United States are 
overseas, that is what the Commission on WMD concluded, and 
that we need to understand that in organizing for, ``homeland 
    Mr. McCaul. Thank you. I see my time has expired.
    Ms. Harman. We have 5 minutes and 13 seconds on this vote. 
Mr. Carney, you get 4.
    Mr. Carney. Wow. Thank you, ma'am. I will skip the verbs.
    I had twice at least sworn an oath to protect and defend 
the Constitution as a naval officer and as a Member of 
Congress, and I take those oaths very seriously obviously. But 
when we look at sort of the post-9/11 world in which we are 
living and connecting the dots, I am still a practitioner of 
intelligence as a Navy intelligence officer. How do we kind of 
make the--I guess the legal term was that I have always heard--
the Chinese wall between national intelligence issues and 
domestic issues; how do we reach that in a way that protects 
and defends the Constitution for all of you?
    Mr. Nojeim. May I? I don't know that the constitutional 
inquiry is actually the right one at this point, and I don't 
think we have to reerect walls between domestic and 
intelligence activities, because when you think about the 
Constitution, what is it that protects privacy in the 
Constitution? It is really the fourth amendment. Often we are 
not talking about fourth amendment searches when we talk about 
problems that information collection and sharing creates. We 
are talking about a privacy value that is not based solely on 
the fourth amendment.
    So where I think would be a good place to start looking and 
to start thinking about this problem would be to ask what is 
the bang for our buck out of all of the intelligence sharing 
and collection that is going on right now? Are SARs that are 
being collected worth, if you will, the number of arrests that 
they generate, or is there a more efficient way to do it, a 
more efficient way that focuses more on wrongdoing and less on 
the collection of information about innocent people? That is 
where I think the inquiry ought to be.
    Ms. Martin. If I might add in a sound bite kind of way, I 
think that the mission ought to be to determine how to do smart 
information sharing, how to determine what information about 
what is going on overseas is actually useful and helpful to 
people in the United States who are tasked with this mission, 
and that there has been very little of that. Instead, all of 
the bureaucratic incentives are, you better make sure you have 
shared the information, whether or not the information has been 
analyzed. It is a hard problem, but that that is what we need 
to look at. That is what the NCTC is about, about trying to do, 
but we need more of that.
    Ms. Fredrickson. I would just add a little bit to that. I 
think if my dear friends and colleagues would excuse me from 
using a metaphor that we all use regularly, it is the haystack. 
We are looking for the needle in the haystack.
    Mr. Carney. No, you are looking for the needle in the stack 
of needles.
    Ms. Fredrickson. Well, when you make the haystack much 
bigger, it gets harder to find the needle. So what we are 
suggesting is making sure that the programs that we fund and 
that are operating are actually efficient and effective, and 
not letting fear drive our resources.
    Mr. Carney. Well, when we have more time, I would love to 
kind of specifically drill down on those recommendations when 
we can, perhaps at another hearing. Thank you, Madam.
    Ms. Harman. Thank you, Mr. Carney, and we certainly can. I 
regularly call on all these witnesses for information and want 
to suggest that you not be shy and help us get these policies 
    I kind of like what Ms. Martin said about smart information 
sharing. Dumb information sharing doesn't seem to be a value we 
should support. Both panels, I believe, get that. I am glad the 
first panel stuck around to talk to the second panel. That is a 
form of information sharing, and we appreciate it. This was a 
great first hearing.
    The hearing stands adjourned.
    [Whereupon, at 11:56 a.m., the subcommittee was adjourned.]