September 23, 2014 | By Dia Kayyali

Local Use of Military Equipment is Drawing Scrutiny—But Local Use of Surveillance Equipment and Training Needs Attention Too

Since the police shooting of Michael Brown and the response in the streets, militarization of the police, especially with surplus military hardware like armored vehicles, has been a hot topic, both in the news and in Congress. And that's a good thing.

But the equipment we can see on the news isn’t the only thing flowing from our military to local cops. Alongside armored vehicles and guns, local police are getting surveillance technology with help from the federal government. And while we don’t know the full contours of that aid, what we do know is worrisome and should spur further scrutiny, both locally and nationally.

The risks of militarizing the local cops are easy to see—and they’re compounded by folding local law enforcement into homeland security. Military technology, and suspicionless mass surveillance, are based on a military mindset— everyone is a possible enemy and no one deserves privacy. While some lawmakers justify this shift by pointing to the “war on drugs” and “the war on terror,” the United States is not technically a war zone. This raises the specter of the Posse Comitatus Act, passed in the late 1800s to prevent use of the military in domestic law enforcement. 

Congress is Finally Taking a Look into the Transfers of Hardware

Fortunately, Congress is starting to take seriously some parts of this transformation of local law enforcement. On September 9, spurred on by the horrifying use of military technology on the streets of Ferguson, the Homeland Security and Governmental Affairs Committee held a hearing on “the effectiveness of federal programs that provide state and local police with surplus military equipment and grant funding for exercises and for training.” The hearing looked at the Department of Defense (DOD) 1033 program—which allows the DOD to give away for free surplus equipment to local law enforcement, the Department of Homeland Security's (DHS) Homeland Security Grant Programs, and the Department of Justice's Justice Assistance Grant (JAG) program.

Each of these three programs has transferred millions of dollars of equipment and funding to local law enforcement, from bayonets to drones. This includes funding for fusion centers, the state and local criminal intelligence information clearinghouses that allow local law enforcement to access and input information into federal databases like the FBI’s eGuardian without even meeting a "probable cause" standard

The hearing gave the committee a chance to hear direct testimony from representatives of these three programs, as well as other experts and stakeholders. Written statements from speakers are available here. Senators closely questioned the representatives of each of the three programs, revealing some startling truths:

  • The DOD and DHS do not provide any training to departments that get equipment or money from them, including high tech surveillance equipment like drones and mine-resistant ambush-protected vehicles (MRAPs).
  • None of the agencies look into whether a state or local law enforcement agency is under active investigation or has a history of civil rights or civil liberties violations.
  • Prior to Ferguson, these three officials had never met, even though they were providing similar equipment and funding for equipment to the same police departments.
  • The total number of pieces of controlled property, such as weapons, currently in the possession of law enforcement agencies is approximately 460,000.

The questions that were not answered, or partially answered, were also revealing:

  • “What (is) the difference between a militarized and increasingly federalized police force and a standing army?"
  • "When was the last time you can recall that equipment from the 1033 program was used for counterterrorism?”

The overall picture that emerged was that the federal officials are willing to fund surveillance and military technologies to local law enforcement but provide little or no training to police officers—and have no policies in place to ensure this equipment isn’t misused. The White House is conducting a review of these programs, and while there is no clear timeline for completion, it's a step in the right direction

Surveillance Deserves a Look Too

Congress and the White House need to include surveillance technologies in their inquiries. The same money that funds MRAPs and night vision goggles also funds intelligence gathering at the local level. DHS's Homeland Security Grant Program directly funds fusion centers. In fact, its 2014 grant announcement emphasized that funding fusion centers and integrating them nationally is a high priority. And DHS Urban Area Security Initiative money funds events like Urban Shield, a 4 day long event that featured "preparedness" exercises as well as a marketplace of military and surveillance technology.

Another possible avenue for review is the Privacy and Civil Liberties Oversight Board (PCLOB). PCLOB asked for public comments on its proposed mid- and long-term agenda, which includes an examination of the “functional standards" used for Suspicious Activity Reporting (SAR),” a program coordinated through fusion centers.1 EFF, along with others, submitted comments encouraging PCLOB to take a close look more generally at fusion centers. The comments emphasized that accountability for fusion centers, like all the programs reviewed in the Senate hearing, is a major problem: 

The bidirectional flow of data in fusion centers, as well as interagency cooperation and jurisdictional blurriness, makes accountability and a clear understanding of the applicability of laws and regulations difficult… In the midst of this ambiguous and opaque environment, fusion centers have access to a staggering amount of data including the FBI's eGuardian database and a variety of other federal databases. They may even potentially have access to unminimized NSA data. And as data gathered under the problematic SAR standards is entered into these databases, the lines of responsibility for unconstitutional invasions of privacy and civil liberties become ever more unclear.

Local Cops, Local Action

There is a silver lining to all of this, though. Unlike the onerous task of reforming the NSA, FBI, and other federal agencies, addressing militarization of and surveillance by local law enforcement is much easier for grassroots activists. Groups like the coalition that helped push the Urban Shield exercise out of Oakland, the coalition that stopped Berkeley from purchasing an armored vehicle, and the coalition that helped to stop the purchase of a drone in Alameda County, are springing up all over the country.

For those concerned about the use of military surveillance equipment domestically, it’s a good time to do some research into your own local government to find out not only whether they are obtaining the kinds of military equipment that you can see, but also whether they are obtaining surveillance technologies that you can’t. Public records act requests are a great way to find out whether your town or city has gotten any of these funds and how it has, or plans to, spend them. Let us know what you find out, and let your elected officials know what you think.

  • 1. Suspicious activity reporting (SAR) is a criminal intelligence report that is generated by law enforcement or private parties and routed through fusion centers.

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