Since September 11, 2001, advancements in technology and shifts in counterterrorism DOMESTIC INTELLIGENCE: strategies have transformed America’s national security infrastructure. These shifts have eroded the boundaries between law enforcement and intelligence gathering and resulted in surveillance and intelligence collection programs that are more invasive than ever. Domestic Intelligence: Our Rights and Our Safety captures the voices of leading government officials, academics, and advocates on the burgeoning role RIGHTSOUR AND SAFETY of law enforcement in the collection of domestic intelligence. Brought together by a Brennan Center for Justice symposium, this diverse range of perspectives challenges us to reevaluate how we DOMESTIC can secure the safety of the nation while remaining faithful to the liberties we seek to protect. INTELLIGENCE: BRENNAN CENTER FOR JUSTICE OUR RIGHTS AND SAFETY Faiza Patel, editor Faiza Patel, editor at New York University School of Law 161 Avenue of the Americas 12th Floor New York, NY 10013 (646) 292-8310 www.brennancenter.org Brennan Center for Justice at New York University School of Law Brennan Center for Justice at New York University School of Law DOMESTIC INTELLIGENCE: OUR RIGHTS AND OUR SAFETY Faiza Patel, editor About the Brennan Center The Brennan Center for Justice at New York University School of Law is a non- partisan public policy and law institute that focuses on the fundamental issues of democracy and justice. Our work ranges from voting rights to campaign finance reform, from racial justice in criminal law to constitutional protection in the fight against terrorism. A singular institution — part think tank, part public interest law firm, part advocacy group — the Brennan Center combines scholarship, legislative and legal advocacy, and communications to win meaningful, measurable change in the public sector. The Brennan Center would like to acknowledge The Atlantic Philanthropies, CS Fund/Warsh-Mott Legacy, Democracy Alliance Partners, Herb Block Foundation, Open Society Foundations, and the Security & Rights Collaborative, a Proteus Fund initiative, for their generous support of our Liberty & National Security Program. The editor would like to thank R. Kyle Alagood, Sadia Ahsanuddin, Madeline Friedman, Elizabeth Goitein, Seth Hoy, Kimberly Lubrano, Jim Lyons, Jeanine Plant- Chirlin, Desiree Ramos Reiner, and Frederick A.O. Schwarz, Jr., for their invaluable input and assistance, and Michael Waldman and John Kowal for their guidance and support. The editor also greatly benefited from conversations with Zachary Carter, Glenn Fine, Lawrence Pedowitz, SungHee Suh, Stephen Schulhofer, and the Muslim American Civil Liberties Coalition. In addition, we are grateful for the advice and comments of Jethro Eisenstein, Udi Ofer, Hina Shamsi, Shirin Sinnar, and Matthew Waxman. The essays and transcripts in this document emerged from a symposium hosted by the Brennan Center on March 18, 2011. Intelligence Collection and Law Enforcement: New Roles, New Challenges, brought together an array of perspectives to discuss the implications on civil liberties of the new roles that evolved for law enforcement officials post 9/11. Transcripts have been edited for clarity and accuracy. Contents Foreword by Michael Waldman ix Introductory Address: “An inquiry into extreme ideology and 1 violent action should be a broad-based examination…”: The Honorable Bennie G. Thompson Keynote Address: “Our counterterrorism efforts are guided 5 by several core principals…” The Honorable John O. Brennan PART ONE: INTELLIGENCE COLLECTION BY STATE AND LOCAL LAW ENFORCEMENT 15 Introduction: Faiza Patel 17 “Law enforcement’s core values should be predicated on the 23 Constitution, the Bill of Rights, civil rights, and human rights...”: The Honorable Leroy D. Baca The Expanding State and Local Intelligence Enterprise and the 25 Threat to Civil Liberties: Michael German “The Department of Homeland Security has a responsibility... 37 to contribute to a robust information sharing environment…”: Kara Dansky American Policing and the Interior Dimension of 41 Counterterrorism Strategy: Matthew Waxman An Historic Perspective of Intelligence Gathering: 53 Frederick A.O. Schwarz, Jr. PART TWO: THE FIRST AMENDMENT AND DOMESTIC INTELLIGENCE GATHERING 57 Introduction: Elizabeth Goitein 59 “To think clearly about the First Amendment, it is useful to 65 identify basic principles before trying to resolve particularly difficult or vexing issues…”: Geoffrey R. Stone FBI Surveillance and Customs and Border Patrol Questioning: 69 Impact on the First Amendment Rights of the American Muslim Community: Nura Maznavi & Jawziya Zaman Protections for First Amendment-Protected Speech and Religion 79 When Investigating Terrorism: Kate Martin PART THREE: REGULATION OF DOMESTIC INTELLIGENCE GATHERING 85 AND POTENTIAL FOR REFORM Introduction: Emily Berman 87 National Security vs. Democracy in America: Shahid Buttar 93 “[O]ur dominant notion of privacy is too limited to do the work 101 necessary for effective regulation of domestic intelligence.”: Aziz Huq ENDNOTES 105 ABOUT THE CONTRIBUTORS 131 Foreword n September 20, 2001, when President George W. Bush declared a global war on Oterror, he set in motion an unprecedented expansion of the nation’s intelligence services in a bid to detect and thwart possible attacks both at home and abroad. More than a decade later, the end of the war on terror may be in sight, but America remains in a perpetual state of emergency. At one level, these policies have been hugely successful. Despite initial fears, the September 11, 2001 attacks did not commence a sustained period of domestic violence. Although there have been a handful of smaller attacks, such as the recent Boston Marathon bombing, it remains true that widespread domestic terrorism has failed to materialize. This must be counted as a significant victory, and our national security apparatus surely deserves enormous credit. But the war on terror has been marked by a major, often unremarked shift – with uncounted costs and unresolved challenges. Counterterrorism efforts, once traditionally the mandate of the federal government, are now aggressively pursued at the state and local levels. In addition to the FBI, state police and local sheriffs have entered the fray. No longer confined to their traditional mission of preventing and investigating crime, police departments are now equipped with extensive resources and powers to collect intelligence and conduct surveillance. At the same time, in the wake of the Boston Marathon bombing, we learned that the system will not prevent all attacks. These new powers of intelligence collection and their lack of structured oversight have gone largely unexamined and unchecked. Restrictions have been relaxed on how the government gathers, shares, and uses information that is not related to any suspicion of criminal or terrorist activity. The few remaining curbs are inadequate to contain the rapid improvements in surveillance technology, which has spawned new ways to gather information on Americans. Such lapses in accountability, oversight, and intelligence structure threaten to erode both our safety and civil liberties. Counterterrorism efforts, whether pursued by an FBI agent or a beat cop, should be guided by sound theory and practice, not stereotypes and the politics of fear. America’s vast intelligence network requires thoughtful and consistently enforced standards. Above all, we must demand that law enforcement is held accountable IX to the people whose lives they have pledged to protect. These new and powerful members of the intelligence community must be constrained by checks and balances, respect for fundamental constitutional rights, and the rule of law. This collection of essays and remarks and the symposium that inspired them are crucial first steps in ensuring that our nation’s domestic intelligence infrastructure is true to our values. The strength of this volume lies in the diversity of its contributions. The Brennan Center for Justice at the New York University School of Law brought together policymakers, government leaders, scholars, civil rights lawyers, and law enforcement officials to examine law enforcement’s role in intelligence collection. There are no easy answers and, at times, there is sharp disagreement. Nevertheless, as our counterterrorism efforts evolve, this conversation is vital to protect our essential freedoms and the foundation of American democracy. Michael Waldman President Brennan Center for Justice X Introductory Address “An inquiry into extreme ideology and violent action should be a broad-based examination…” TRANSCRIPT OF REMARKS The Honorable Bennie G. Thompson Ranking Member House Committee on Homeland Security ’m one of those individuals who has been on the Homeland Security Committee Iever since it was a select committee, when it was created [in 2002]. A select committee is a committee with no jurisdiction. So you say, “Why in the world would you want to be on a committee with no jurisdiction, no authority in law?” Well, if you could see the future, you understood homeland security would be important. Some of us saw the future and got on the committee and labored in the vineyard until we received authority and jurisdiction. We’re still trying to consolidate the jurisdiction. We’re kind of split between several other committees, but basically the buck starts with the Homeland Security Committee. The only other anecdotal comment I’d like to make before I go through my prepared presentation