Stretching During a Jog Is "Suspicious Activity"? America's "Counterrorism" Efforts Out of Control

Thirteen years after the attacks on the World Trade Center, the amorphous and costly war on terror continues unabated. But now we aren’t just worried about threats from overseas. Republican House leaders, the media and the intelligence community have fixated on a new menace: so-called homegrown terrorists. As global intelligence firm Stratfor put it in a July headline, “Domestic Terrorism Is No Joke.”

Yet according to the ACLU and other watchdog groups, U.S. anti-domestic terror initiatives have taken things too far.

The Nationwide Suspicious Activity Reporting Initiative (NSI) kind of speaks for itself. It is an effort by the Department of Homeland Security, the FBI, the Department of Justice and other agencies to promote civic counter-terror engagement. To do this, the federal agencies enlist the help of state, local and tribal police departments, as well as private security firms, in collecting Suspicious Activity Reports (SARs) filed by citizens and officers. Federally funded publicity campaigns like “If You See Something, Say Something” are made available for local adoption—provided regional law enforcement officials share what intelligence they gather.

And that’s where the ACLU’s legal concerns begin to surface. When SARs get filed in federal counterterrorism databases, like the FBI’s standardized eGuardian system, they can remain there for up to 30 years—even if said suspicious activity is lawful. 

The ACLU and others have filed a lawsuit challenging that apparatus. The plaintiffs argue that the NSI lowers federal standards for information that can be stored on people. Department of Justice privacy regulations allow intelligence to be saved "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 NSI lowers that standard to "suspicious activity," defined as “behavior reasonably indicative of preoperational planning related to terrorism or other criminal activity.” Note how terrorism is defined as a type of criminal activity. The plaintiffs point out that this definition encompasses constitutionally protected activities, like taking photos, buying computers or standing in a train station. “Reasonably indicative” of terrorism paints with a broad brush.

In Los Angeles, suspicious activity includes “joggers who stand and stretch for an inordinate amount of time” while in Kentucky “people avoiding eye contact” are suspect.

The bottom line in the ACLU's case is that SARs filed on the plaintiffs have been stored in counterterrorism databases, despite any proof of criminal wrongdoing. And though the storing of digital surveillance might be old news at this point, the newfound weight given to eyewitness surveillance is another beast entirely. 

For one, it is now much easier for private security guards and citizens—people with no law-enforcement authority—to file reports that may stain people’s record for decades.

The private sector has also proven a strong ally to the expansion of eyewitness surveillance in the United States. Walmart, Mall of America, Amtrak, the American Hotel & Lodging Association, and many sports arenas now participate in “If You See Something, Say Something” and the umbrella NSI. As Bill Whitmore, Chairman & CEO of AlliedBarton Security Services, writes in the Huffington Post, “Every corporate citizen plays a role in identifying and reporting suspicious activities and threats.”

If you go to Mall of America “you may be subject to a security interview.” And though the U.S. Constitution protects citizens’ rights from intrusion by public law enforcement, those same protections do not guard us from private entities. Rent-a-cops don’t have the authority that police do, and we don’t have the same legal protections from them as we do from public police. But now Mall of America security guards can file SARs that are shared with local and federal authorities. Does this bear any significance for the powers of private security in the United States? It isn't yet clear. 

But other than the ambiguous role of private guards, what is most striking to me—someone new to the subject—is how this surveillance binge is dually facilitating the pseudo-nationalization of the country’s police force. All NSI participants, be they city, county, state or tribal departments—or Walmart—have to share their intelligence with the feds.

This sharing takes place through “fusion centers.” According to the National Center of Fusion Centers Fact Sheet, "A fusion center is a collaborative effort of two or more agencies that provide resources, expertise and information to the center with the goal of maximizing their ability to detect, prevent, investigate, and respond to criminal and terrorist activity." This is where local, state, federal and private partners share intelligence and support.

Though fusion centers are owned by state and local police forces, the feds offer the centers deployed personnel, training, technical assistance, exercise support, security clearances, connectivity to federal systems, technology and grant funding.

That means Walmart security personnel and local police now have institutional relationships with the U.S. military and federal agents. Richland County, South Carolina even has its very own Homeland Security Coordinator. There are now 78 fusion centers and counting, blurring the boundaries between federal and local policing jurisdictions in the United States. But fusion centers are not the only way local law enforcers can collaborate with the feds. Initiatives like Immigration and Customs Enforcement’s (ICE) “Secure Communities” also bond local enforcement to federal authorities.

After receiving federal training and entering into a 287(g) law enforcement partnership with ICE, local police can then detain suspected undocumented immigrants for the Department of Homeland Security. According to ICE’s website, the initiative is responsible for over 283,000 deportations as of July 2014. It also extends existing local-to-FBI fingerprint sharing to the DHS.

As with the NSI, participation in “Secure Communities” is optional for local police departments (thanks to local and state policing powers). In fact, multiple states and localities have explicitly refused to participate in “Secure Communities.” It was also recently ruled that the local police department is held liable if any of the detentions are unlawful, not the DHS—further deterring local compliance. However, grant money provides incentives to join up. And jurisdictions with empty jail space are doubly incentivized to participate because of the revenue afforded from housing detainees.

Federal initiatives like “Secure Communities” and NSI blur the distinction between federal and local law enforcement—regardless of what Stratfor representatives say about the lack of “a national will for a nationalized police force.” For better or worse, the autonomy of state and local policing appears to be in limbo.

So how did this all get started?

After 9/11 a prevailing narrative blamed the devastating attacks on inept federal communication skills, which then led to strong calls to unify federal intelligence. The 9/11 Commission Report and others reinforced this sentiment. Soon the narrative expanded to include sub-federal entities.

The federal “Information Sharing Environment” opened its doors to state, local and tribal forces. As the perceived threat of domestic terror grew, so too did the call for those on the ground—local officers and citizens—to participate. Both the Intelligence Reform and Terrorism Prevention Act of 2004 and the 2007 National Strategy for Information Sharing report called on local-federal intelligence cooperation to fight terror.

Today, the public is told through service announcements that “There are individuals in the United States who seek to carry out acts of terrorism and violence against our communities and our country.” But, there is hope: “People like you can notice something you feel is suspicious or out of the ordinary, and report it.” To prepare children for this civic duty, the FBI’s iGuardian program gives kids the opportunity to report sexual predators and other dangerous online situations.

The threat of domestic terrorism has turned our attention inward, at an alarming rate. And the geopolitical conflicts roiling across the globe have exacerbated concerns about attacks on American soil.  

Due to the ascent of the vicious Islamic State in Iraq and Syria (ISIS), says Senator Lindsey Graham, “seeds of 9/11s are being planted all over Iraq and Syria.” The prospect of US citizens returning home after fighting with groups like ISIS is raising serious “homeland” security concerns. CNN headlines like “Terror havens in Syria and Iraq: Five reasons the West should Worry” are the norm.

The Los Angeles Times reports that “as many as” 100 U.S. citizens are now fighting alongside terrorist organizations in Iraq and Syria, along with “as many as” 3,000 Europeans. Though the war ISIS is fighting in Iraq and Syria occupies its full attention, many are concerned that its focus may shift toward the West in the years to come. To make things clear, ISIS launched a hashtag (#CalamityWillBefallUS).

Eric Holder, the United States attorney general, has pivoted his attention toward foreign policy. In a recent speech in Oslo, Norway, Holder appealed to European allies to criminalize “preparatory acts” of terrorism and to begin implementing their own anti-domestic terror programs. Just this spring Holder’s Department of Justice assigned a head prosecutor from its National Security Division to legal cases involving Americans returning home from the Syrian civil war, and revived the US Domestic Terror Task Force.

Domestic terror arrests are on an upswing. In March a young man named Nicholas Teausant was arrested on the Canadian boarder on his way to join up with ISIS. In June, two men in Texas were arrested after the FBI discovered their intentions to travel to Syria to fight. One of their charges: attempting to provide “material support and resources to terrorists, including but not limited to personnel, including himself.” After she was reported behaving suspiciously last November, Denver teenager Shannon Conley was arrested en route to Turkey. The FBI had uncovered her intentions to practice as a nurse in Syria.

Anyone can join ISIS, so anyone could be a terrorist. Suspicious activity reporting is poised for a boom in the United States. And we’re not alone. France recently launched an impressive terrorist hotline. And the British Home Office, empowered by a May 2014 law, has since revoked over 20 Britons' citizenship for suspected support of terrorists. As revealed by US diplomatic cables, the U.S. also helped Pakistan set up an anti-terrorist hotline, which is now run in cooperation with India.


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