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DOJ’s new rules – AEDPA, 12 years hence


“Those who would sacrifice freedom for security deserve neither.”
— Benjamin Franklin (Image from University of Pennsylvania)

In late July, the Justice Department quietly unveiled proposed changes to rules governing the measures local law enforcement officers can take for intelligence-gathering in domestic counterterrorism efforts. According to a story in the Washington Post, the “proposed changes would revise the federal government’s rules for police intelligence-gathering for the first time since 1993 and would apply to any of the nation’s 18,000 state and local police agencies that receive roughly $1.6 billion each year in federal grants.”

Justice says that the new rules will not affect policies prohibiting police from initiating investigations based on a person’s race, religion, or speech, but will make it considerably easier for police to “target groups as well as individuals, and to launch a criminal intelligence investigation based on the suspicion that a target is engaged in terrorism or providing material support to terrorists.”

While counterterrorism within the U.S. borders has principally been a Federal enterprise, it’s important to note that local law enforcement has been on the front lines of tracking down domestic terrorists for quite a long time. Jim Glennon rightly points out in this article that both Timothy McVeigh (the Oklahoma City bomber) and Eric Rudolph (the Olympic Park bomber) were observed, questioned, detained, and captured by local cops.

This is a train that has long-since left the station, and for more than a decade been hurdling inexorably down the rails toward becoming SOP in law enforcement agencies across America. But when did this train get underway? The USA Patriot Act, which expands the definition of terrorism to include domestic terrorism, certainly enhanced the ability local law enforcement officers for intelligence-gathering in counter-terror operations, but that wasn’t it.

Surprisingly, the localization of this Federal authority dates back a federal law that was signed into law by President Bill Clinton. This law created new pathways for wiretapping and other surveillance aimed at studying the behavior patterns of people on the domestic front – Americans – and presenting the issue of their potential involvement in terrorist activities to the Alien Terrorist Removal Court (consisting of five sitting U.S. District Judges) which essentially operates in secrecy.

The Antiterrorism and Effective Death Penalty Act of 1996 – AEDPA – had broad bipartisan support in Congress. It passed 91-8-1 in the Senate and 293-133-7 in the House following the first World Trade Center bombing (in 1993) and the Oklahoma City bombing (in 1995). The stated intent of this act was to “deter terrorism, provide justice for victims, provide for an effective penalty, and for other purposes.” The net effect of the law was to impose a statute of limitations for all habeas proceedings in capital cases, but in addition to its impact on the law of habeas corpus in the United States, AEDPA also outlined ways in which local law enforcement officials can pursue domestic terror suspects.

What the Justice Department did in July was to float a trial balloon to determine the reactions among the general public, civil rights advocates, and other potential critics to an impending addition to, or new iteration of, that law. The changes Justice alluded to with the July announcement are the next logical step in the progression begun with AEDPA (and strengthened by the Patriot Act) to grant national security responsibility (and authority) to local law enforcement. The July announcement was basically a move to telegraph the fact that at some point in the not-too-distant future, someone from the Justice Department will say: “Here’s how it’s going to be structured. Here’s how it will work.”

Which begs the question, how would it work?

No one would dispute the assumption that the Justice Department is seeking to expand its database of information on potential terrorist suspects, and there will certainly be a provision for the collection and retention (for up to ten years according to reports) of information on individuals and groups. But there will also likely be a mechanism for sharing that information back out to officers on the street. That would be outstanding news, because armed with this sort of information, the likelihood becomes much higher that any officer in America can prevent a planned attack.

With all the advancements in computer technology available to police officers in their vehicles, it’s all but certain that these new rules will enable mobile computers to display a limited about of personal data on people who are considered to be potential terror suspects. In the event of a “routine” traffic stop – and Betsy Brantner-Smith recently reminded us that there’s no such thing as a routine traffic stop – instead of checking for warrants or whether a subject has a valid driver’s license, an officer would have access to information that would help assess whether an individual would cause you to want to inquire further about the possibility of terrorist behavior.

Any new Justice Department policy on domestic counterterrorism activities will almost certainly give local law enforcement broader rights to investigate some of the symptoms of terrorists’ conduct, even at their most mundane level. For example, if a subject is stopped for a traffic infraction, and the officer observes a strong scent of almonds – a characteristic of C-4 explosives that would give him or her reasonable suspicion to question the individual on terrorist activities – they would under these new rules have the authority to say: “Time for you to get out of your car, I want to search your vehicle.” Giving officers the entrée to inquire further when such an instance occurs is a terrific new ripple in the fight against terrorism.

From a practical standpoint, the manner in which these suspects should be approached will differ somewhat from the way one interacts with a typical, garden-variety criminal who just likes the idea of wreaking havoc. The hard-core, fundamentalist Islamic terrorist has very likely been trained in accordance with the al Qaeda Jihad Training Manual, which was discovered after 9/11. The existence of the al Qaeda Jihad Training Manual was classified for a long time but it is no longer classified so it is subject to discussion. The officer who’s going to attempt to conduct any Q&A with a person who has been trained under it has to understand that the person they’re dealing with has been deliberately and explicitly instructed how to deal with interrogations. They’ve been taught to be prepared, to have disinformation so that if they are accosted in any interrogational setting, they can provide disinformation and do it convincingly. They have probably been taught things like non-compliance and defiance. They probably know about behavior analysis, and the probably know they the officer is watching for certain non-verbal signals of deception.

They probably know about that stuff because it’s all in the al Qaeda Jihad Training Manual. Stay tuned, because Police1 will be pursuing and posting articles on this, written by experts in the fields of interrogation and counterterrorism.

All indications are that local law enforcement agencies will soon be allowed to target groups as well as individuals, and to launch a criminal intelligence investigation based on the suspicion that a target is engaged in terrorism or providing material support to terrorists. It’s important to note that with the new authority to address domestic terror cells that police officers (and some say even private security companies) will likely soon have, come some pretty heavy responsibilities.

We’ll have to wait to see how it will be codified, instituted, and managed, but one thing is clear: the Justice Department and local law enforcement agencies will work hard to increase our security against terrorist attacks while at the same time seek to secure the inalienable rights and liberties outlined in the Constitution of the United States of America.

Michael German, policy counsel for the American Civil Liberties Union (and 16-year veteran of the FBI) was quoted in the aforementioned Washington Post article as saying that the proposed rule “may be misunderstood as permitting police to collect intelligence even when no underlying crime is suspected, such as when a person gives money to a charity that independently gives money to a group later designated a terrorist organization.”

In the same Post article, Jim McMahon, deputy executive director of the International Association of Chiefs of Police, correctly said that those who investigate crimes such as money laundering, drug trafficking and document fraud are best positioned to detect terrorists, and noted that the rule changes will maintain civil liberties.

To complete the railroad metaphor, because this is one locomotive that will not be derailed once it’s underway, it will be absolutely critical to achieve a balance – from the get-go – that satisfies both the needs of law enforcement and the privacy concerns of the citizens they protect.

Doug Wyllie writes police training content on a wide range of topics and trends affecting the law enforcement community. Doug was a co-founder of the Policing Matters podcast and a longtime co-host of the program.