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One year after the Boston Marathon bombing, the ACLU’s Kade Crockford questions whether the surveillance practices of law enforcement and an increasingly militarized police force will prevent terrorism

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JESSICA DESVARIEUX, TRNN PRODUCER: Welcome to The Real News Network. I’m Jessica Desvarieux in Baltimore.

Tuesday marks the one-year anniversary of the Boston Marathon bombing, where three people were killed and more than 260 people were wounded. Civil liberties groups have criticized the FBI’s inability to stop last year’s attacks despite investigating one of the bombers in 2011. They’re also critical of how militarized the police response was to the incident.

Now joining us to discuss militarization of the police in cities like Boston is our guest, Kade Crockford. Kade is the director of the Technology for Liberty Project at the ACLU of Massachusetts, where she edits and writes for the Privacy Matters blog.

Thank you for joining us, Kade.


DESVARIEUX: So, Kade, what are the police actually capable of doing now that they weren’t capable of doing a decade ago in terms of surveillance and things like that? And can you speak specifically to the FBI’s practices in Boston after the bombing? I know at the end of the day people are going to say they got their bad guy, so why does it really matter how they got their bad guy. But I know you’re critical, and you call it heavy-handed. Why is that?

CROCKFORD: So there are a couple of things. First is that after 9/11, the FBI was granted huge authority to investigate anyone they want, even absent any criminal predicate or reasonable suspicion that someone’s involved in criminal activity. So the ACLU has long criticized this. And, you know, we found out after the Boston Marathon bombings that our criticisms were justified.

Essentially, the situation that we have right now is that the FBI investigates so many people, again, who are not suspected of criminal activity or any involvement in terrorism, that it can’t even remember the important people they do investigate. And they’re wasting tons of resources going after people against whom they have no allegation of criminal activity or other wrongdoing.

So, you know, this sort of suspicionless spying doesn’t only impact civil liberties in a negative way; it also has a negative impact on public safety, because it means that precious law enforcement resources that should be dedicated towards, for example, pursuing–investigations of people like Tamerlan Tsarnaev, whom the Russians told the United States was planning to travel to Dagestan to work with terrorist groups, can be conducted thoroughly.

What happened is that the FBI did its first tier of investigation on Tamerlan, which is called an assessment. Again, that requires no criminal predicate. They said that they checked all of their bases, they met with him in person, they interviewed him, he seemed fine. And they weren’t worried, it seems, because–you know, I’ve read reports that basically say that the FBI thought that Tamerlan was a Chechen terrorist who wanted to kill Russians and wasn’t necessarily a threat to the United States. But they certainly had the authority to conduct a much broader investigation into him, because traveling abroad to participate in terrorism is a federal crime.

DESVARIEUX: Do you think that there is another approach for preventing potential future terrorist attacks that doesn’t require amassing these massive databases?

CROCKFORD: Yeah, I do. And I’ll say just one more thing about that. You know, another reason why these massive databases and, you know, compiling lists of many millions of people in these terrorism watch databases–again, who are not tied to any criminal or terrorist activity–is dangerous from a public safety perspective is that, sort of like Peter-wolf style, when alerts in these systems go off, for example, like when Tamerlan went to Dagestan and the Boston FBI officials were notified that he was about to go to Dagestan on a plane, they did nothing. They didn’t act on that alert. And we’ve hear now that the reason for that is because they receive so many of these alerts every single day that they basically just ignore them.

Now my question is: what is the purpose of these dragnet databases that implicate the privacy of hundreds of millions of people if these alerts are just going to be routinely ignored because there are so many of them? It seems like we are both losing on the privacy front and losing on the public safety front.

Now, what could work is, you know, barebones back-to-basics criminal investigations. I used to have a colleague named Mike German who was an FBI agent before he came to work for the ACLU for a number of years, and he said it all the time. He said the criminal predicate in investigations works both for public safety and for civil liberties, because as an investigator, when I wanted to look at someone and I couldn’t prove that they had any sort of involvement in any crimes, it was actually a waste of my resources and energy to be chasing them down. You know, the criminal predicate requirement, or at least a reasonable suspicion requirement, helped me as an investigator, he said, focus on people who were truly dangerous, and therefore my investigations turned out, more often than not, to yield results, instead of going nowhere, which is where most of these assessments most likely go.

Now, in the particular case in Boston, we have a clear illustration of this problem. You know, after the Boston Marathon attacks, the FBI said all of a sudden that Tamerlan Tsarnaev was responsible for a gruesome triple murder that occurred on the tenth anniversary of 9/11 in Waltham, Massachusetts. Now, why police did not solve that murder back then if they apparently had forensic evidence connecting Tamerlan to the murder two years later, I don’t understand. But what is clear is that if that sort of gumshoe routine homicide investigation had followed through to its conclusion and police had arrested Tamerlan as a suspect in that murder and tried him and convicted him, then the Boston Marathon attacks never would have happened.

So, you know, it’s a perfect illustration of the fact that we actually don’t need dragnet mass surveillance. What we need is for cops to be able to solve murders, to be able to follow real leads and to react when people are truly dangerous.

DESVARIEUX: But, Kade, you’ll have people argue that this attack couldn’t be stopped unless we have an increased police presence and that we can still have a larger, more mobilized police presence in order to deter violence. What’s your response to that?

CROCKFORD: Well, you know, violence happens for all sorts of different reasons in our society. But, again, in fact, the facts, according to the FBI, at least, in this case, are very clear, and they show that had the murder been solved in 2011 in Waltham, you know, we wouldn’t have been facing the tragedy that we did in 2013.

So murder clearance rates across the country are very, very bad at police departments nationwide. I think one in four murders in the city of Chicago is solved. This is a critical crisis in public safety in this country, and I think it’s really telling that instead of developing the resources and the skills of homicide investigations and homicide investigators and detectives to go after–to figure out how actual crimes were committed, police departments and the Department of Justice and the Department of Homeland Security and criminal justice researchers are spending so much time and energy figuring out how to turn large data sets into crime prevention, sort of in the way that you see in Minority Report, to use futuristic technologies that implicate the privacy of millions of people instead of just doing gumshoe police work. And again, the facts in this case demonstrate that gumshoe police work and not those massive databases could have made all the difference.

DESVARIEUX: Kade, I’m going to present you a statistic. There are an estimated 300 million privately owned firearms in the U.S. That’s according to the Pew Research Center. So in a heavily armed country you’re going to have people that argue, don’t police have the right to be equally protected by arming themselves against folks who have these weapons?

CROCKFORD: So this is a little bit of a red herring. When we talk about police militarization, the kinds of things that we civil libertarians have problems with are, for example, no-knock raids, militarized raids in the middle of the night, as if it’s, you know, a suspected terrorist’s house somewhere in a foreign battlefield and it’s Joint Special Operations Command. I mean, these are very similarly conducted. You know, bust down the door, shoot pets, you know, kill innocent people sometimes.

And what we have found, actually, is that often there is no showing that anyone in the house has a weapon. Police officers don’t often need to make a showing to a judge these days in no-knock raids that anyone in the house is armed. They don’t have to have any evidence of that, often. And so what we see, then, is that innocent people die. And it’s not because the targets of the raid are armed and are shooting at police. It’s because police come in with this over-the-top, adrenaline, you know, junky style, militarized raid environment and really bad things can happen.

You know, nobody is saying–the ACLU is not saying that if law enforcement has evidence to show that somebody is holed up in their house with a bunch of machine guns and bombs that, you know, a SWAT raid can’t take place. No one is saying that. What we’re saying is that when there’s no evidence that anyone’s violent and, you know, the warrant being served has to do with a nonviolent drug offense, which is so often the case, that the response from law enforcement is increasingly militarized and heavy-handed, and it’s hurting people and it’s hurting our communities.

DESVARIEUX: Alright. Kade Crockford, ACLU of Massachusetts, thank you so much for joining us.

CROCKFORD: Thanks for having me.

DESVARIEUX: And thank you for joining us on The Real News Network.


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Kade Crockford is director of the Technology for Liberty Project at the ACLU of Massachusetts, where she edits and writes for the Privacy Matters blog.