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(MC Barnes / LA Activist)

Nearly every day Los Angles police file reports on someone for their simply being suspicious. Suspicious of what, however, is unclear.

It is part of the Los Angeles Police Department’s suspicious activity reporting program, which is touted as a first line of defense against possible terrorist attacks. Though law enforcement praises the reporting system, significant questions are being raised as to the program’s effectiveness and transparency.

LA’s War on Terrorism

Since March 2008, when the reporting program began, to July 2012, over 4,000 suspicious activity reports, or SARs, have been filed on Angelenos. Public records requests filed by the Stop LAPD Spying Coalition have revealed that of the 3,001 SARs sent to a fusion center, a local information-sharing hub in Norwalk where the reports would be entered into national databases, 80 percent were found to be useless.

As of yet, no documents or statements made by police officials have revealed that any SAR has thwarted a terrorist plot or led to an arrest, raising the question if the program has any value in keeping Los Angeles safe from terrorism. The Stop LAPD Spying Coalition wants the SARs program rescinded.

“In essence, the LAPD has nothing to show for this,” said Hamid Khan, an organizer for the Coalition. “It looks like a major waste of resources.”

For a person in Los Angeles to have a SAR written on them, they must engage in behavior that police may consider related to terrorism. This was defined for officers in Special Order 1, a department directive outlining the program. Some of these acts are obvious, such as possessing “unusual amounts of weapons [or] explosives.” However, a crime is not a prerequisite for a SAR. Taking photographs of buildings or infrastructure, questioning people about a building’s hours of operation or demonstrating an “unusual” interest in a building are all activities that may get one entered into national terrorism databases.

Though SARs may or may not have a person’s name attached to them, it is the fact that non-criminal behavior is being reported on as though it were a criminal act which most disturbs critics.

“There is a potential for false positives — people being falsely identified and placed into databases for activity that is completely innocent,” said Khan.

Deputy Chief Michael Downing, the head of the LAPD’s counterterrorism bureau, has been a vocal supporter of the SARs program. The LAPD did not respond to LA Activist’s request for an interview, but Downing’s public statements can provide some measure of his opinions about the program.

In a 2009 article in Police Chief Magazine, Downing wrote about the important role local law enforcement agencies can play in fighting terrorism. He argued that the SARs program could be integral in unraveling any local links to international terrorist events.

“This program has the potential to become the bread and butter of U.S. fusion centers, and it can inspire the so-called boots on the ground and the community to get involved in the counterterrorism effort,” he wrote.

In 2008, the LAPD was widely commended in law enforcement circles for being instrumental in helping the Department of Homeland Security take the SARs program to a national level. But after a few years into the program, according to a Senate investigation, the national SARs program never became “the bread and butter of U.S. fusion centers” that Downing had hoped for.

In October 2012, the Senate Subcommittee on Homeland Security and Governmental Affairs published a report that described DHS and its 77 fusion centers as an albatross around the neck of national security. The two-year investigation revealed an agency bereft with poor training, constitutional and privacy violations, grossly inadequate accounting and ineffective — and even counterproductive — intelligence gathering.

“It’s troubling that the very ‘fusion’ centers that were designed to share information in a post-9/11 world have become part of the problem,” said Sen. Tom Coburn (R-OK), a ranking member of the Subcommittee, in a statement. “Instead of strengthening our counterterrorism efforts, they have too often wasted money and stepped on Americans’ civil liberties.”

Downing on some level was aware of the incompetence within DHS and its fusion centers. In his position as a senior fellow at George Washington University’s Homeland Security Policy Institute, he co-authored a June 2012 report that found fusion centers failing to live up to their stated goal of fighting terrorism.

“The fusion centers are acting as hubs of information — but are they acting as hubs for intelligence? At this point, the answer is: not quite, not yet,” stated the report.

Yet four months later, after the Senate’s report was released, Downing, along with DHS, laagered wagons in defense of fusion centers and its vast amount of useless reporting.

“There’s a lot of white noise, but there are occasionally gold nuggets,” he said to the Los Angeles Times, though admitting in the same interview there have been no convictions from such information.

Since 2003, when the LAPD’s counterterrorism bureau was created, they have “gained considerable … case experience” in fighting terrorism, according to Downing in Police Chief Magazine. For instance, in 2005, the department helped bring down a group called Jam’yyat Al-Islam Al-Saheeh. Formed in prison by a former Hoover Street Crip gang member, the four-man group plotted to attack Army National Guard installations, Israeli offices and synagogues. The group was apprehended and successfully prosecuted.

Downing also mentions how, in late 2008, the LAPD, along with the FBI and DEA, helped expose an alleged source of funding for Hezbollah from laundered drug money. However, according to The New York Times, because the CIA suddenly wanted in on the case, it forced an important meeting between an informant and Hezbollah contacts to be postponed. The contacts were spooked and as a result were never identified and the scheme was never revealed.

But the other cases that Downing highlights in his article seem questionable, either for their lack of terrorist merit or for a lack of results. He mentions an alleged plot in 2007 organized by the Black Riders Liberation Party, a sort-of next generation Black Panther Party which the department considers a domestic terrorist group. The Black Riders’ plan was to “take over four police stations in Los Angeles and shoot and kill as many police officers as possible,” wrote Downing.

But the LAPD’s case against the Black Riders went nowhere.According to Los Angeles Indymedia, four members were arrested on conspiracy to possess automatic weapons. However, the groups leader, General T.A.C.O., a moniker which stands for “Taking All Capitalists Out,” accepted a plea bargain so the other three Black Riders would be released, LA Indymedia also reported. Terrorism had been alleged, but it was never the woof and warp of the case.

The Animal Liberation Front, or ALF, is a group that also operates in LA, which Downing refers to as an “extremist organization.” For several years, ALF members targeted UCLA vivisectors. Some of the ALF’s actions included death threats, firebombing UCLA transport vans, setting ablaze one researcher’s car and turning on a garden hose inside a researcher’s home, which caused thousands of dollars in water damage.

Downing also lists the ALF as being a group that has given the LAPD counterterrorism experience. However, the department never made an arrest or a conviction of an ALF member for a terrorist-related crime, said Dr. Jerry Vlasak of the Animal Liberation Press Office, a group that speaks to the media on behalf of the ALF. He called Downing’s statements concerning the ALF to be “pure self-promotion.”

“To be quite honest, [the police] don’t know how to find the people who are doing the real underground actions,” he said. “They have been spectacularly unsuccessful.”

When Downing spoke of these cases, the SARs program was only 11 months old. The cases that did involve convictions or at least arrests were accomplished with old-fashioned police work and a little bit of luck.

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Trust and Transparency in a Post-9/11 World

On March 12, the police commission’s Office of the Inspector General, or OIG, released the results of its first audit of the SARs program in five years. The OIG examined a four-month period — Feb. 1 to May 31 of 2012 — to test the department’s compliance with Special Order 1. The report did not address any of the Coalition’s points of interest and found the department to be in compliance with the police directive.

On the same day, the Stop LAPD Spying Coalition presented an audit of its own. It was called a “people’s audit,” and its findings were much different.

Khan said he and the Coalition expected the OIG’s audit to “be very superficial” and accused the OIG of “cherry-picking” the data it inspected.

“It was not an audit; it was a memo,” he said at a Coalition gathering held on the night of the police commission meeting. “It was a nine-page document of a policy that has been in effect for five years. There was no audit of any civil rights or privacy violations; there was no audit on the budget or expenses.”

However, the OIG’s audit was revelatory in one respect.

In May 2012, the department said it would no longer keep unfounded SARs in their databases for more than a year. Both hard and electronic copies were to be deleted once the reports were deemed to have no value. The OIG audit, however, revealed that despite these reports being deleted from the LAPD’s SARs database, the reports were “still retained in the Department’s [Division of Records].” On top of that, police want to go further and keep all reports “regardless whether the SAR met Department criteria” for 10 years.

“Not only do they not purge [the SARs, they are] maintained in three databases forever,” said Khan.

“In essence, what is happening is, and what we have been saying all along, that it is all about data collection, data mining and retaining people’s personal information,” he added. “Anyone of us can now expect to have our personal record — for engaging in completely innocent activity — to have that information with the LAPD for 10 years in three different databases.”

The protection of constitutional rights has been central to the Coalition’s argument against the SARs program. However, even before the Coalition’s birth in the summer of 2011, the rights of Americans was a concern for law enforcement. In June 2008, the DHS, the Justice Dept. and the Major Cities Chiefs Association addressed these issues in their recommendations for the national implementation of the SARs program.

“A strong privacy and civil liberties policy will not only protect the rights of citizens, but also protect the agency,” states the report.

In the end, DHS failed to uphold those protections, and, according to the Coalition, nor has the LAPD.

The department’s Special Order 1 expresses some precaution, but its language has the Coalition concerned. Special Order 1 does state that constitutionally protected acts should not be in a SAR, unless, however, those acts “support the source’s suspicion that the behavior observed is not innocent, but rather reasonably indicative of suspicious activity associated with terrorism.”

Jim Lafferty of the National Lawyers Guild said the nebulous language in Special Order 1 goes against established legal standards.

“Many of us in the legal community pointed out that the idea of a ‘reasonable indication’ is completely unprecedented,” he said. “It is an intentionally watered-down version of ‘reasonable suspicion,’ which is a U.S. legal standard that officers must meet when they stop and frisk people or detain and question them.

“It leaves the cop on the beat pretty free to call anything he doesn’t like the looks of, or smells funny to him, as reason enough open a SARs file,” he added. “Why would you want this to be such a watered-down version of Fourth Amendment protections? Why would you want to do that? Unless you want to, in a sense, give almost unfettered discretion to a police officer on the street.”

The Coalition would like to build up a case showing how that “unfettered discretion” has violated people’s rights. The difficulty, however, in accomplishing that has to do with the secretive nature of the SARs program. For one, they are not mentioned or referenced on arrest reports, but are done secretly. Also, a suspicious activity report is not like an FBI file, which a citizen can gain access to with a public records request. For someone to find out if a SAR has been written on them, they must obtain a court order.

“A normal California Public Records Act request would not release that information,” said Lafferty. “They would consider that privileged information as part of an ‘ongoing investigation.’”

The fact that the LAPD has been dragging its heels in complying with the Coalition’s public records requests compounds the air of secrecy surrounding its SARs program. The Coalition first requested SARs-related documents from the department in April 2012. Some documents have come forward, but, a year later, the Coalition is still waiting for more. The National Lawyers Guild has since threatened to sue the department for the documents.

When the Coalition’s concerns are added up — the concern over privacy, the rights of citizens and institutional transparency — it is the future the Coalition is worried about. They fear suspicion becoming ingrained in the culture.

Under the SARs umbrella is a civilian method of reporting on suspicious behavior. It is called iWatch, and like the department’s SARs program, there isn’t much to boast about. Public records requests have also revealed that, from October 2009 to March 2012, 70 percent of iWatch reports didn’t meet the basic standards of the department. The Coalition argues that iWatch has become a means for people to snitch on each other for no reason.

Khan says the SARs program is a flawed effort on the part of law enforcement to engage in preemptive policing, or what proponents call “intelligence-led” policing. A March 2010 reportpublished by Political Research Associates, a progressive think tank, argued that this method of policing could cause officers to gradually be seen, not as those who protect and serve, but as intelligence agents “prone to politicization and bias.”

Still, the LAPD has to deal with potential threats to public safety. Los Angeles may not be a hive of terrorist activity, but if we take Downing’s word for it, the department has been tracking among others “government of Iran operatives, Hezbollah, sovereign citizen, homegrown violent extremists [and] animal rights groups.”

“In this region we have active terrorist plots, in this region, right now,” he said to CBS Los Angeles in August 2012.

Khan agrees that law enforcement needs the tools necessary to protect Americans from attack, but he does not think the SARs program is any such tool. With suspicious activity reports, he sees a high potential for racial profiling, as well as an excuse for law enforcement to criminalize dissenters, who often have extreme views concerning politics and society, but who never step outside the law except for the occasional non-violent act of civil disobedience.

dan bluemel

“I think we would all advocate for the safety of the public and yet, at the same time, at what cost?” said Khan. “On many different levels it is absolutely a dangerous policy.”

Dan Bluemel
LA Activist

Tuesday, 2 April 2013