Spying is Back

Also: What Can Go Wrong? following article

The most unsettling moment in the first public meeting of the Governor’s Task Force on Homeland Security, held in Austin in early October, came late in the afternoon, as Texas Land Commissioner and task force chairman David Dewhurst questioned a Houston FBI supervisor. Dewhurst, himself a former CIA agent, complained that U.S. foreign intelligence agents had been hampered in recent years by their inability to use operatives suspected of human rights violations. “Are you similarly restricted,” asked Dewhurst, “or are you aggressively pursuing the penetration of terrorist organizations?” The agent responded that while this was a policy matter better addressed by headquarters, he would allow that yes, the FBI’s hands were closely tied. The follow-up question was from task force member Ken Armbrister, a state senator from Victoria: “As policy makers, we need to know what we can guard against to insure that we’re not tying the hands of local, county, or state law enforcement intelligence gathering activities,” he said. “Can you talk to us a little bit about insuring that we don’t do that?”

Rather than pursue this ominous line of questioning further, Dewhurst tabled the matter until the group could meet in closed session later that day. Armbrister’s question—and Dewhurst’s secretive response—epitomizes the growing concern among civil liberties advocates about the mission of the task force. The governor’s instructions are loosely written, and the task force itself has done little to indicate its ultimate scope and intentions. For many organizations, the Homeland Security Task Force, with its strangely nativist moniker and secretive ways, has raised the specter of a rollback of privacy rights and civil liberties. While it’s too early to assess what sort of effort the state may see, a brief survey of both the background of the task force members and the histories of previous forays into domestic intelligence gathering indicates that some caution may be justified.

The Task Force is a statewide advisory body only, which means that any recommendations it makes will have to be implemented by the state Legislature or by local law enforcement and emergency services providers. Coordination between these disparate bodies has been a key concern. Thus far, the task force has largely concerned itself with examining the infrastructure already established in Texas for responding to a “weapons of mass destruction” attack. The two meetings—one in Austin, one in Houston—have been dominated by appeals from local police chiefs and emergency response officials for more resources and standardized equipment.

There is little controversy here, and in fact, Texas seems relatively well prepared to respond to a biological or chemical attack. Since 1998, Texas A&M’s Engineering Extension Service (TEEX) and the state’s Department of Emergency Management have been training firefighters, police, EMS crews, and others in how to respond to such an attack. In cooperation with the National Emergency Response and Rescue Training Consortium, TEEX (rhymes with “weeks”) also trains public officials in what it calls “Incident Command Level” management, which includes coordination of the various public and private entities that respond to crises. TEEX operates its own Texas Task Force One, a special weapons-of-mass-destruction search and rescue team, which flew to New York in September to assist with the World Trade Center rescue operation. The Austin-Bergstrom International Airport also hosts the 6th Civil Support Team, a 22-person unit of the National Guard that can bring advanced chemical and biological analysis tools anywhere in the state with a one-hour response time. Texas ranks second nationally (after Ohio) in number of jurisdictions that have undergone chem/bio training exercises, according to testimony heard by the Task Force.

The controversy arises over the intelligence-gathering portion of the group’s mission, the charge to “identify individuals who might be planning attacks and stop them before they do any harm.” Perry’s selections to lead the task force have done little to reassure civil liberties advocates. All told, 10 of the 21 members have military backgrounds; seven have experience in law enforcement. The civilian contingent includes former ambassador Anne Armstrong, who served on the President’s Foreign Intelligence Advisory Board under Reagan and the senior Bush. Armstrong is currently chair of the executive committee of the Board of Trustees of the Center for Strategic and International Studies, a military and intelligence think tank with a long history of aggressively pushing for greater domestic measures against terrorism. The group recently released a document detailing the legal premises for designating the U.S. military the “lead agency” in homeland security affairs.

Perry selected another former Reagan appointee, William Sessions, as vice-chair of the Task Force. Sessions was head of the FBI from 1987 through 1993. Shortly after taking office, he announced in a press conference that the Bureau’s notorious investigation into the Coalition In Solidarity with the People of El Salvador (CISPES), a U.S. group with branches across the country, had been “poorly directed” but was nonetheless “legitimate” because CISPES might have been “complicit in terrorism.” CISPES was just one of hundreds of groups opposed to U.S. policy in Central America that had its activities monitored in the 1980s, though no evidence of terrorist activity was ever found. A Senate investigation later condemned the monitoring of what it called the “peaceful political activities of domestic groups.” Sessions, who remained head of the FBI during the Waco and Ruby Ridge shootouts, was removed by Clinton for alleged ethics violations. He is currently a federal judge in San Antonio.

By far the most interesting Homeland Security appointee is the Task Force’s chair, Texas Land Commissioner David Dewhurst. In 1995, The Nation broke the story that Dewhurst, a former Air Force intelligence lieutenant, was the CIA’s “number two man” in Bolivia from 1971 through 1973. It was during this period that a coup led by U.S. School of the Americas-trained Col. Hugo Banzer Suarez deposed the elected president and installed a military junta. Banzer’s insurrection was conducted with help from U.S. Air Force communications systems, according to the Washington Post. Within two years, Banzer had imprisoned some 2,000 political dissidents without trial. “All the fundamental laws protecting human rights were regularly violated,” The New York Times reported.

In his campaign for Land Commissioner, Dewhurst downplayed the CIA revelations, saying he “thought it was the patriotic thing to do.” Dewhurst has said his involvement with the CIA ended before he was 30, but it has left a clear mark on his career. He retains an interest in Bogan Aerotech, whose Huey II helicopter is sold to governments worldwide for “military, counter-terrorism, and counter-narcotics” uses. Dewhurst is also a former vice president of the Jewish Institute for National Security Affairs, a pro-Israeli think tank whose board includes Vice President Dick Cheney and former CIA director Admiral James Woolsey.

Dewhurst is already leveraging his chairmanship of the Homeland Security Task Force in his current campaign for Lieutenant Governor. A recent advertisement in Texas Monthly reads in part: “as Chairman of the Governor’s Task Force on Homeland Security, David Dewhurst encourages you to support President Bush” in the fight against terrorism. (Aside from the crass self-promotion, an oversight in this ad has brought Dewhurst considerable ridicule: Close observers noted that a stock photo intended to represent an alert and ready American soldier is actually a German officer, prompting some to quip that Dewhurst had already found his first spy.)

Although the task force has held only two public meetings, Dewhurst has already made it clear that he wishes to proceed without public scrutiny or input. In his opening address at the October 11 meeting, Dewhurst announced that the task force would not be hearing any public testimony—citizens who wished to comment on the proceedings were encouraged to do so via the Internet. The opening remarks were immediately followed by a briefing from the Attorney General’s office on how the Task Force could conduct its inquiries without falling under the scrutiny of Texas’ open records and open meetings acts. Indeed, despite William Sessions’ frequent remarks that the public would not be reassured by secrecy, much of the business of the hearing was tabled to closed-door meetings.

After the initial hearing on October 11, the Texas ACLU’s Police Accountability Project fired off a critique of the unbalanced makeup of the panel and the secrecy around the closed sessions. “Chairman Dewhurst indicated that expanding law enforcement wiretapping and intelligence activities should only be discussed in closed meetings,” wrote the Project’s Scott Henson. “ACLU strongly disagrees. Since all such activities are prospective, the Task Force would only be debating policy, not operational details that could harm an investigation. Those meetings should be open.” On November 4, the ACLU of Texas circulated a letter addressed to Dewhurst, asking to be allowed to testify and warning that the organization would “stand firm against any proposals that undermine freedom in the name of security.” Dewhurst acknowledged the letter at the hearing on November 8, saying the task force would discuss testimony from the ACLU “at a later date.”

Despite the secrecy, there are already some indications that Texas is in for an increase in domestic surveillance. In the truncated discussion of intelligence gathering at the October 11 meeting, task force member and Texas Public Safety Commissioner Colleen McHugh announced that the Department of Public Safety was “back in the intelligence business.” Homeland security at DPS will be handled by the department’s Special Crimes Service Unit, which has already received $200,000 of Governor Perry’s announced $1.2 million grant to train local law enforcement agencies in intelligence operations.

In fact, DPS has always had an intelligence division, since the agency was created in 1935. Originally charged with the “identification and investigation of subversive forces” during World War II, the Bureau of Intelligence, as it was then known, became the central database on “un-American activities in Texas.” The unit later changed its name to the Crime Intelligence Service, which earned a reputation for spying on Texas political activists. During the movement against the Vietnam War, according to Austin Attorney Jim Simons, the Criminal Intelligence Service acted as “sort of a red squad,” photographing and surveilling his clients. The objective, Simons said, was to discourage people from going to demonstrations. “DPS seemed to think that any kind of demonstration was a violation of law,” he recalled. In 1996, the CIS became the Special Crimes Service and officially broadened its focus from purely intelligence to organized crime and gambling regulation. Until recently, the SCS was the only non-federal organization in Texas permitted to own, install, or operate wiretapping equipment; local police agencies had to go through the SCS (or the FBI) to wiretap in their own jurisdictions.

The prospect of the SCS reorienting itself to “security-related” intelligence gathering is possibly the development of most concern to civil libertarians. Early signs indicate a larger role for the department. Among the Task Force’s recommendations, released November 8, was a little-noticed item recommending “funding of additional personnel and training” for the Special Crimes Service. This funding, according to debate during the November hearing, will primarily come from federal grants and the governor’s discretionary fund, neither of which are subject to legislative oversight in Texas. In deciding on the final wording of the recommendation, Armbrister insisted that the grants must be provided “without a specific area of expenditure” and with minimal oversight in order to avoid “micromanagement.” Dewhurst concurred, stating that “an ounce of prevention is worth, in this case, tons of cure.”

For his part, Armbrister has already done much to erode restrictions on law enforcement intelligence gathering practices. Last session, a bill that expanded wiretapping authority to local police forces and relaxed restrictions on “emergency wiretaps” (which do not require a judge’s approval), cell-phone intercepts, and “trap-and-trace” devices was authored by DPS counsel David Boatwright and sponsored by Armbrister. The bill became law this year. “Its strange that he would talk about [excessively] limiting law enforcement,” at the Task Force hearing, commented Ann Del Llano, an attorney with the Police Accountability Project, “especially in light of his legislative history.” Neither Del Llano nor the Texas Criminal Defense Lawyers’ Association had heard of any case in Texas where wiretap evidence had been successfully challenged under existing law. Expanding the laws further, said the ACLU’s Henson, “would be a disaster for Texans’ privacy rights.”

Is it likely to happen? Jim Simons, the veteran Austin civil rights attorney, does not like what he sees. “The levee is about to break in terms of civil liberties,” he said.

Anne Farbman is a freelance writer living in Austin.

What Can Go Wrong?

If there is a precedent for the kind of local domestic intelligence gathering envisioned by the Homeland Security Task Force, it is the FBI’s Joint Terrorism Task Force program begun in 1979. The JTTF program allows local jurisdictions to create a team of municipal, state, and federal law enforcement agents to “investigate domestic and foreign terrorist groups and individuals for the purpose of detecting, preventing, and prosecuting their criminal activity.” There are four JTTFs in Texas, one each in Dallas, Houston, San Antonio, and El Paso. All four maintain a low profile.

The best-known JTTF may be the one in Portland, Oregon, which came to public attention somewhat fortuitously last year. A member of a police accountability group known as CopWatch noticed a mention of the FBI task force on the Portland city council’s “consent agenda” of items to be resolved without public debate or testimony. Portland CopWatch took an interest in the activities of the Portland JTTF, and turned up some troubling information.

At that time, Portland was the base of operations of the Earth Liberation Front Press Office, a non-profit organization that handles media requests on behalf of an underground group known as the Earth Liberation Front. The ELF, a radical environmental organization that has taken credit for numerous attacks against buildings and machinery, notably a ski lodge in Vail in 1998, has been designated a terrorist organization by the FBI. The press office would seem to be a logical target for investigation by the Portland JTTF, but CopWatch’s research revealed otherwise.

ELF Press Office spokesman Craig Rosebraugh has been repeatedly arrested and indicted over the last three years, but according to Dan Handleman of CopWatch, none of the federal agents involved in either the investigation or the arrests have any connection to the task force. Instead, Portland JTTF agents have mostly been involved with the monitoring of labor disputes and legal protests, Handelman said. All seven Portland Police officers on the task force are members of the Criminal Intelligence Unit or “red squad,” which has been frequently charged with maintaining files on the political affiliations of Portland activists.

Joint Terrorism Task Forces, Handleman and his colleagues discovered, do not necessarily target confirmed terrorist groups, but focus instead on what they term “potential threat elements” or PTEs. PTEs, which are c
assified as left-wing, right-wing, or
“special interest” (environmental, animal rights, or anti-abortion), are “any group or individual in which there are allegations or information indicating a possibility of the unlawful use of force or violence in furtherance of a specific motivation or goal, possibly political or social in nature.” An actual history of criminal activity increases a PTE’s “point scale” in the threat assessment, but merely meeting the above definition, with its vague “allegations or information indicating a possibility” clause is sufficient to become a target of the task force.

Armed with this information, CopWatch was able to successfully challenge the city’s re-authorization of the Portland JTTF on September 26th. As a coalition of 24 community groups, including five labor unions, lined up to testify against the task force, the city council decided, by a single vote, not to reauthorize the memorandum of understanding between the city and the FBI. In explaining his dissent, councilmember Charlie Hales observed that the memorandum “sounded like Nixon wrote it.” Citing the September 11th attacks, Hales said that “we have to fight terrorism, but this isn’t the way to do it.”

The Portland City Council met again on October 10th to discuss the issue, this time without hearing public testimony. The second time around, the reauthorization passed. Yet city officials remain wary of the intelligence business. On November 24, the Associated Press reported that Portland police have refused to assist the U.S. Department of Justice’s ongoing nationwide effort to interview recent Middle Eastern immigrants. The feds have asked local police forces to assist in locating and interviewing a list of 5,000 men, mostly Arabs or Muslims, who have entered the country since January 1, 2000. But such an undertaking would violate Oregon law, according to acting Police Chief Andrew Kirkland. “The law says, generally, we can interview people that we may suspect have committed a crime,” Kirkland told the AP. “But the law does not allow us to go out and arbitrarily interview people whose only offense is immigration or citizenship, and it doesn’t give them authority to arbitrarily gather information on them.” In any case, such interviews might constitute racial profiling, which is also illegal in Oregon, Kirkland said. –A.F.