Because Freedom Can't Protect Itself

January 14, 2002

The Honorable Brent Coles

Boise City Council Members

Boise City Hall

Hand Delivered

RE:  Proposed Criminal Intelligence Unit (CIU)

Dear Mayor Coles and Council Members: 

The American Civil Liberties Union of Idaho has reviewed the Policies and Procedures drafted by Chief Pierce to govern the proposed Criminal Intelligence Unit of the Boise Police Department.  Following discussion with Chief Pierce, several important issues and concerns remain unresolved and we must at this time oppose the creation of the proposed CIU.

Our first concern is that no need for such a unit has been shown.   We are opposed to the creation of a unit with such great potential for civil liberties abuses in the absence of a clear and immediate need.  This need has yet to be demonstrated.  Some weeks ago, in answering our query regarding the need for such a unit, the Chief reported that Boise police had gone undercover to investigate potential plans for illegal actions associated with protests of Boise Cascade timber harvesting practices, only to learn that no local activists intended any illegal activity.  What more than this is there to suggest a need for an intelligence gathering unit at the Boise Police Department?  We have not heard.

We are also concerned that there is a long and disturbing history of intelligence units systematically and repeatedly violating First Amendment rights by harassing and spying on citizens who engage in peaceful political protest.   Chicago, Los Angeles and Memphis have all experienced such egregious abuses by their CIUs that court intervention was necessary.  Their CIUs operate under consent decrees curtailing their actions and specifically prohibiting them from investigating lawful First Amendment activities, which had previously been a common and accepted practice. The Seattle CIU’s practices were so offensive that a municipal ordinance was created to govern their activities and, again, prohibit them from investigating lawful political dissent.  The Seattle experience includes the destruction of hundreds of files, including one on then Seattle journalist Charles Royer who later became Seattle’s mayor.  The Portland CIU infiltrated a group of peace and justice activists, stating that they were concerned this group would try to take over the local police civilian review board.  The Court found this justification “preposterous.”  While the Portland example may seem humorous, the serious lesson is that even the most absurd practice can somehow be justified by a CIU as a legitimate investigation of suspected criminal activity. 

The ACLU has no reason to believe that Chief Pierce is proposing the creation of an intelligence unit to investigate legitimate political protest.  However, we cannot ignore history.  We are also concerned that two full-time police officers dedicated to intelligence gathering in Boise may very well run out of serious targets to investigate and, to justify the continuation of their positions, engage in more nefarious intelligence gathering of persons who simply have no reason to be the subject of investigation.     

Should the need for a CIU in Boise be demonstrated, it must operate only under guarantees that the unit will not investigate any individual or group based solely on political or religious beliefs, ethnicity or sexual orientation.  The current proposal does not contain strong guarantees and we encourage inclusion of the following protections:

"I.      PURPOSE

These Policies and Procedures shall be interpreted and implemented in a manner to permit the collection and recording of information for law enforcement purposes, so long and these police activities do not unreasonably:  (a) infringe upon individual rights, liberties, and freedoms guaranteed by the Constitution of the United States or of the State of Idaho, including, among others, the freedom of speech, press, association, and assembly; liberty of conscience; the exercise of religion; and the right to petition government for redress of grievances; or (b) violate an individual’s right to privacy.”  

          “III.    POLICIES

The following policies shall govern the collection and recording of information by department personnel:

A.      No person shall become the subject of the collection of information on account of a lawful exercise of a constitutional right or civil liberty; no information shall be collected upon a person who is active in politics or community affairs, unless under the same or similar circumstances the information would be collected upon another person who did not participate actively in politics or community affairs;

B.       All information collected shall reasonably appear relevant to the performance of an authorized police function; no information shall be collected or used for political purposes;

C.       When two (2) or more techniques are available to collect criminal intelligence information and each would be equally practical and effective, a police officer shall use the technique which he or she reasonably believes will have the least adverse impact upon lawful political and/or religious activity.”

Finally, we urge you to require any CIU to be subject to at least some independent audit.  The current proposal provides for review of CIU files and activities only by members of law enforcement.  We do not believe that such audit would provide adequate protection, especially considering the sensitive nature of the information gathered and the cloak of secrecy under which this unit would operate.  We are not asking for complete civilian review, we are only asking that at least one member of the review committee be independent from law enforcement.  We strongly encourage you to include the Boise Ombudsman on the review committee, or to provide that the Boise Ombudsman be independently responsible for auditing the CIU, just as the Boise Ombudsman acts independently of the Boise Police Department’s Internal Affairs Unit.  This would create independent audit and increase public confidence.

We are aware that 28 C.F.R. § 23.20(f)(1) prohibits the dissemination of criminal intelligence information to anyone but law enforcement authorities.  However, we urge you to seek a waiver of this provision pursuant to 28 C.F.R. § 23.20(o) to allow the Boise Ombudsman to audit CIU files to ensure that information is gathered consistent with established policies, procedures and constitutional protections.  In the alternative, we ask you to consider deputizing a citizen as a law enforcement authority for the sole purpose of auditing the work of the CIU.

Given the painful history of police intelligence gathering units, the lack of demonstrated need for such a unit in Boise, and the failure of the Boise Police Department’s proposal to include an independent auditor, we must oppose the proposed budget authorization and creation of a CIU.  Whether or not a CIU is funded, we strongly recommend that the city mandate strict limits on all intelligence gathering practices of the Boise Police Department.

Yours very truly,

Marty Durand

Legislative Counsel

                                                          Jack Van Valkenburgh

                                                          Executive Director