Don't Do It!! Perry moves to consolidate intelligence gathering in Governor's office

Another major Gubernatorial power grab lies waiting in the wings related to border enforcement in the form of HB 13 by Swinford, which will be heard in the House State Affairs Committee this morning at 8 a.m.. It's the only bill on the agenda.

Jake Bernstein at the Texas Observer has excellent coverage of the Governor's efforts to consolidate information, databases, and ultimately power over key law enforcement functions in his office away from its traditional home in the Department of Public Safety. Reports Bernstein ("The Governor's Database," April 20):

What is most striking, and disturbing, about the database is that it is not being run by the state’s highest law enforcement agency—the Texas Department of Public Safety. Instead, control of TDEx, and the power to decide who can use it, resides in the governor’s office.

That gives Perry, his staff, future governors, and their staffs potential access to a trove of sensitive data on everything from ongoing criminal investigations to police incident reports and even traffic stops. In their zeal to assemble TDEx, Perry and his homeland security director, Steve McCraw, have plunged ahead with minimal oversight from law enforcement agencies, and even DPS is skittish about the direction the project has taken.

Jake's article is a must-read. He focuses particularly (as does Capitol Annex in this post) on the Nixonian-type accumulation of raw intelligence data under the auspices of a politician instead of law enforcement professionals:

“Criminal intelligence data should be in the hands of a professional law enforcement agency that has distance from the political pressures on elected officials,” says Rebecca Bernhardt, immigration, border and national security policy director for the Texas ACLU. “How can we be sure that we will never have a governor who will misuse this power?”

Rather than take a serious look at these issues, the Texas Legislature seems intent on giving Perry even more power. The governor is pushing an appropriation of $100 million for border and homeland security. Presumably, some of that money would be used for TDEx. House State Affairs Chairman David Swinford, a Dumas Republican, is offering House Bill 13, “relating to homeland security issues.” The bill is scheduled for hearing on Friday, April 13. Leading up to the hearing, the bill’s content was a bit of a moving target. Two days before the hearing, there already had been two committee substitutes, with the possibility of a third on the way.

As noted yesterday, the House approved the Governor's $100 million request, but the Senate only approved $54 million, just $10 million of which would come from General Revenue.

We've already seen that Governor Perry's efforts to consolidate intelligence gathering under Homeland Security Director Steve McCraw have taken on a Keystone Kops flavor. As I mentioned recently,

I mentioned that I spoke to Patrick O'Burke about drug task forces earlier today - he's the Deputy Commander of DPS' Narcotics division. While I had him on the phone, I asked O'Burke about the Governor's joint operational intelligence centers that were announced earlier this year. Much to my surprise, he told me DPS Narcotics "didn't have anything to do" with any of that.

Understandably the deputy commander didn't feel comfortable baring his soul to an unemployed blogger, but he said he'd addressed these issues last Wednesday at a joint hearing of the State Affairs and Border & International Security Committees. So I went to look, and indeed he gave his "Border Threat Briefing" as the very last invited speaker on quite a long agenda.

Here's the link to an audio file of the committee hearing. O'Burke's testimony begins at the 9:34:45 mark (yes, the hearing lasted more than 10 hours!). Interesting stuff, and worth a listen for anyone who cares about the border or the drug war.

The most shocking news came at the end of his testimony in response to questioning, I couldn't tell by whom. There is no coordination at all between DPS and the Governor's Border Security Operations Center, O'Burke replied in response to a query. He said DPS' Narcotics division didn't know about some of the Governor's proposals until after they were operational. He knew nothing, he said, about any of their training, protocols, or after-operation procedures, and said he wasn't even aware if there were any - to his knowledge the sheriffs, he said, mostly "do whatever they want." ...

DPS is the state's primary statewide drug trafficking enforcement agency, and if they're not dialed in then the operation is neither very "joint" nor "intelligent." If they're not coordinating with DPS Narcotics, if they're not working with federal "deconfliction" centers, if they're not party to intelligence from secret agreements with the Mexican government, then these "joint operational intelligence centers" aren't really in the drug enforcement game on the border - that's just a fact.

Before the Lege sinks $100 million into the Governor's plan, perhaps they ought to consider making sure the money already sunk into border enforcement was spent wisely.

So the Governor's border operations have spent tens of millions of dollars without coordinating with key agencies. The Senate Criminal Justice Committee studied the program during the interim and recommended that:

Future grants to border operations should be made through a fiscally accountable state agency. The method of distribution did not account for population size, department size, or crime rates. There was no measure for success or failure built into the program, and an alarming lack of stipulations for use of the money.

What does that tell you about the wisdom of consolidating operations in the Governor's office?

HB 13 has changed since the filed version, but I obtained a copy yesterday evening of what I believe to be the latest committee substitute. The most egregious portion by far would place the Department of Public Safety's "criminal intelligence division" under the purview of the Governor's office and the Homeland Security Director Steve McCraw. According to a fact sheet on the bill prepared by the ACLU:

HB 13 formally changes the focus of the Office of Homeland Security from emergency planning and preparedness to intelligence gathering. HB 13 would eliminate the Texas Infrastructure Protection Communications Center and create a new entity called the “Texas Fusion Center” that does not have a limited or even clearly defined purpose. Texans deserve to know what information is being collected by the “Texas Fusion Center” and for what purposes.

What's the Texas Fusion Center? I don't know a lot about it, but I first heard of the entity after Texas removed restrictions on law enforcement's use of fingerprint and biometric data from Texas' civilian drivers license database. The data was handed over lock stock and barrel to the Fusion Center, which proceeded to start matching the data with unnamed federal databases that no one had ever mentioned in debates at the Legislature over eliminating constraints on using Texans personal information. As I wrote at the time:

So Texas has not only removed restrictions on police using drivers' fingerprints, now the state will routinely vet them through federal databases nobody ever mentioned before. That's almost the definition of a slippery slope. (Before HB 2337 passed, drivers' fingerprints in Texas were considered private, personal data only accessible with a court order.)

I honestly can't imagine a worse idea from a pure accountability perspective that putting the state's intelligence apparatus under the Governor. It's just inappropriate bordering on corrupt to give the state's executive that power - the kind of thing you expect from the East German Stasi, not liberty-loving Texans.

Criminal intelligence is the division that manages wiretaps statewide, even for local departments (though legislation moving this session aims to change that). They gather intelligence from a wide variety of sources, but much of the raw intelligence contains faulty information or at least unverified data of questionable veracity.

Such information should not be in the hands of a political appointee like McCraw, but of the career law enforcement officers who've managed those functions for Texas since the division was first established 75 years ago or so as a sort of "red squad" to root out Communists. Despite that ignominious history, the agency has professionalized greatly in recent decades and remains IMO the best location for Texas' criminal intelligence functions. I trust DPS more than I do the Governor's political operatives to respect the law and the public's privacy.

Remember, even if you like this Governor, you probably won't like the next one, or the one after that. Keeping this power separated from the executive's direct control is an important check and balance on abuse of power by ANY governor, and there's no compelling argument I've heard as to why they should be removed now. The Legislature should reject or neuter this bill - as it stands HB 13 is a recipe for abuse.