Domestic Intelligence: Our Rights and Our Safety

November 8, 2013

Following the attacks of September 11, the U.S. government greatly expanded federal and local intelligence authority to collect data and conduct surveillance. These new powers, however, have gone largely unexamined. 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.These lapses in accountability, oversight, and intelligence structure threaten to erode our safety and civil liberties.

The following essays — a product of thoughtful discussion among policymakers, government leaders, scholars, civil rights lawyers, and law enforcement officials — are crucial first steps in ensuring that our nation’s domestic intelligence infrastructure is true to our values.

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Table of Contents

Foreword by Michael Waldman

Introductory Address:An inquiry into extreme ideology and violent action should be a broad-based examination...” by The Honorable Bennie G. Thompson

Keynote Address:Our counterterrorism efforts are guided by several core principals...” by The Honorable John O. Brennan

Introduction to Part One:Intelligence Collection by State and Local Law Enforcement” by Faiza Patel

 “Law enforcement’s core values should be predicated on the Constitution, the Bill of Rights, civil rights, and human rights...” by The Honorable Leroy D. Baca

The Expanding State and Local Intelligence Enterprise and the Threat to Civil Liberties” by Michael German

The Department of Homeland Security has a responsibility to contribute to a robust information sharing environment...” by Kara Dansky

American Policing and the Interior Dimension of Counterterrorism Strategy” by Matthew Waxman

An Historic Perspective of Intelligence Gathering” by Frederick A.O. Schwarz, Jr.

Introduction to Part Two: The First Amendement and Domestic Intelligence Gathering” by Elizabeth Goitein

 “To think clearly about the First Amendment, it is useful to identify basic principles before trying to resolve particularly difficult or vexing issues...” by Geoffrey R. Stone

FBI Surveillance and Customs and Border Patrol Questioning: Impact on the First Amendment Rights of the American Muslim Community” by Nura Maznavi & Jawziya Zaman

Protections for First Amendment-Protected Speech and Religion When Investigating Terrorism” by Kate Martin

Introduction to Part Three: “Regulation of Domestic Intelligence Gather and Potential for Reform” by Emily Berman

National Security vs. Democracy in America” by Shahid Buttar

[O]ur dominant notion of privacy is too limited to do the work necessary for effective regulation of domestic intelligence” by Aziz Huq
 


Foreword

On September 20, 2001, when President George W. Bush declared a global war on terror, 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 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.


Domestic Intelligence: Our Rights and Our Safety