Covert Human Intelligence Sources - Coursework Example

Student Name: Tutor: Title: Covert Human Intelligence Sources Course: Table of Contents Introduction 3 Description of What Happened 4 Analysis and Evaluation 12 Conclusion 16 References 17 Pearlstein, D., 2008. National intelligence and the rule of law. Retrieved from 19 FAS, 1996, Preparing for the 21st century. Appraisal of U.S. intelligence. Retrieved from 19 Fas, 1996, Russian federation federal law No. 5. Available at 19 Vitkauskas, D., 1999, The role of security intelligence in a democracy. 19 Introduction The use of Covert Human Source Intelligence has been a significant investigative professional practice for the police. This is based on the fact that the practice has supported the investigation process through provision of evidence against criminal activities. Many police departments have been utilizing the approach essentially in terms of undercover police. The expansion of covert human intelligence could not grow in an environment without guidelines and regulations. In the USA the major guidelines for covert human intelligence is the constitution with all major activities of these services being regulated by the fourth amendment, the fifth amendment, Foreign intelligence surveillance act, the patriot act and the wire and electronic communication interception and interception of oral communication act. These laws are related to the 1989 security service act, the police act of 1997 and the 200 Regulation of investigatory powers act of the United Kingdom. This particular paper seeks present a portfolio that relates to a legislative change in the practice of Covert Human Source Intelligence in my work station. Description of What Happened An undercover officer working in my department was dealing crucial case of investing a drug dealing syndicate. He therefore initiated his investigation by establishing a relationship with one of the leaders of the drug dealing syndicate. Initially the leader of the syndicate was greatly suspicious about the intentions of the officer. Nevertheless, as time went by, the officer was able to make the leader develop confidence in the relationship. A few days letter the officer got hint of the involvement of a local politician from the area. The problem was that the politician has built himself as a public figure beyond reproach, a man of the church, and has been vocal about the use of undercover police officers claiming the loss of life that usually arise in such cases is not worth it. As he is a greatly respected leader, with no criminal past, getting a warrant for searching his house would be next to impossible. Searching his house without a warrant would also be in violation of the fourth amendment which states that the people of the United States of America have a right to be secure in their possessions and protected against unfair searches without provision of a warrant. The warrant shall only be provided if a strong case is presented to a judge. With the politician’s good public image and lack of evidence against him except the word of mouth of my undercover officer I was effectively handicapped and could do nothing to bring the politician to book. My undercover officer took matters into his own hands, with my silent permission, and broke into the house of the politician and planted a listening device effectively violating the FISA amendment act which was passed in 2008 and the Wire and electronic communications interception and interception of oral communication act (Title III wire tap act). These legislations in the USA prohibit the surveillance and eavesdropping on individuals without the prior permission of the individual in question or without a court order (NCSL, 2012 and LII, 2013). After a considerable length of time, the politician was got on tape discussing the dealings of drugs and their profits. When my undercover officer got me the evidence I knew that he had obtained the evidence against the politician unconstitutionally and violated the rights of a citizen of the United States. On the other hand, I have evidence linking one of the most prominent people in the region to drug trafficking. Another dilemma is that the undercover officer cannot be put to testify because of his safety, therefore, I would have to commit perjury in court as I would have to lie about the true origin of the evidence. Perjury is the willful submission of false information to a judicial process when under oath (Doyle, 2010). Is it right for one to break the law in order to save it? What would be the right course of action? Following the laid down rules and regulations and strictly adhering to the constitution would let a criminal walk free and continue his activities while breaking the constitution also begs a moral question. In this case there is no black and white, every decision made will have consequences. To the use of covert human intelligence, to how far undercover officers should go to obtain evidence and whether they are allowed to break the law. The mandate of law enforcement officers defines and provides the tasks that are to be performed by the organization. It provides the leading principles that guide the service in the conduction of its operations and concurrently measures its effectiveness in the performance of these duties. The mandate of the agency or law enforcement organization should be such that they reflect the balance needed; the mandate should be broad sufficiently to allow it to come up with satisfactory intelligence on available threats and those that are feared to come to pass. However, the mandate of all law enforcement organizations must have visibly defined limits that enable it ensures the value of human rights and respects the essential freedoms of individuals. The availability of a well structured mandate ensures that the organization carries out it functions within the confines of a statutory remit. In the United Kingdom, they have Regulation of Investigatory powers act of 2000 defines covert human intelligence as an individual who has a relationship with another individual for the sole reason of getting information or getting access to information for another individual by virtue of the existing relationship. It provides the rules and guidelines set out for public authorities on how to make use of covert human intelligence in such a way that the rights and liberties of individuals are not infringed upon. This legislation was made to work in tandem with police and criminal evidence act which took effect in 1984 and states the circumstances under which the court, during criminal prosecutions, can refuse the admission of certain evidence if the judge feels that the evidence in question was obtained unfairly or in a way to infringe upon the rights of the accused. This brings a dilemma when the law requires the use of caution by an officer posing under cover. The use of the caution is a requirement for law enforcement officers to caution the offenders before posing questions to them otherwise the evidence obtained may be inadmissible in court. The act therefore gives the presiding judge the power to discount evident gathered by human intelligence sources on technicalities that could very well be removed if the officer was given enough room to maneuver and avoid being hampered by legislation that protects the rights of the offender more than the rights and privileges enjoyed by their victims and police officers. Most defendants claim that the use of covert human intelligence in crime solving is unfair to the offender because the officer undercover, being a provocateur, initiates the offense in question and had he been absent, the offense would not have taken place (Home office, 2013 and PACE, 2008). The defense of security, well being of the economy and crime prevention are all identified by article 8 of the European convention of Human rights (ECHR) as sufficiently important for a public authority of a nation to interfere with a national’s right to privacy and liberties at home and his family life. Even though the European court of human rights puts forward its agreement of the above, it also cautions that the services involved in cases of covert human intelligence put in place measures to avoid abuse of the mandate given to the organization in practice. All European countries that are affiliated with NATO as well as the United States are subjected to these ECHR requirements (Vitkauskas, 1999). The feeling that I, as a law enforcement officer, have not been sufficiently protected by the law is overwhelming. The feeling that my undercover officer, who is risking his life for the greater good and fighting to get individuals to respect the constitution, is being betrayed and hampered by the same constitution leaves a bad taste in my mouth. The patriot act of 2001 which was meant to ease the work of law enforcement is not particularly helpful in this situation. The act was enacted after the events of 11th September, to prevent and punish terrorism activities on US soil and around the rest of the world. The act has been maligned and accused of sacrificing the political freedoms of individuals and some rights and liberties of individuals in the name of national security but in certain cases the USA patriot act has been hailed as a positive step towards fighting terrorism and crime. The act is supposed to decrease cases of domestic terrorism by granting law enforcement powers to carry out surveillance without obtaining a court order before the said activity. This clause, it has been argued, undermines the fourth amendment which puts into place measures to protect the privacy of citizens. The patriot act gives law enforcement powers to covertly search a premise and obtain the court order later in what is known as delayed warrant scenario but in this case there was so little evidence against the politician that it would have been unreasonable to expect the warrant to be given at all. Furthermore, the courts have been known to side with defendants in some cases where the fourth amendment rights of an individual have been tampered with as evidenced in the United States vs. Kyllo case where the use of surveillance equipment was termed ‘unreasonable’ without the provision of a warrant. In the case, the judge found the use of surveillance equipment as intrusive and that it examined features of private life that were not possible to discovered without its application (criminal procedure, 2001). Even if a court order had been obtained, there is argument against section 213 0f the USA patriot act which allows the covert exploration of a person’s premises without his consent and notifying them of its execution only after the event. Section 213 permits delayed notice for the search warrant execution. Those against the section point out that when notifications for the search are held up; an individual is foreclosed to point out shortages and inconsistencies in the warrant to the executor of the warrant (Chang, 2001). With all the limitation facing covert human intelligence sources in law enforcement, I am at a stage to evaluate whether the hustle is worth it at all if the end results are hinged on a constitution that seemingly hinders its own implementation. Criminals violate the constitution when they break the law. When the politician made his decision to get involved in drug distribution in the United States, he ran afoul of the law. The country has strong legislations covering drug use and abuse which were among the first laws to be drafted. The Harrison narcotics act which was passed in 1914 to eliminate the distribution of cocaine and heroin by physicians over the counter as prescriptive drugs. The marihuana tax act was passed in 1937 to regulate the use of marijuana in the country. The controlled substance act of 1970 repealed these laws and placed restrictions on scheduled drugs. These are drugs that are prohibited unless they are for research cases in which case their use is controlled. The anti drug abuse act enacted in 1986 and its amendment, the antidrug abuse amendment act of 1988 set high punishments for drug offences and boosted the funding for organizations fighting crime. The drug dealer liability act passed in 1999 and enacted in 2000 as the protect our children from drugs act added on the penalties imposed on drug dealers especially those that used children in the trade of drugs (Dolin, 2001). It can be seen that past legislators who made these laws understood the effects and dangers of drug abuse and clearly wanted a generation that would not be afflicted with the problems associated with drug abuse. It is a pity that they did not consider the difficulties law enforcement personnel will go through to bring this individuals to book. The limitations I face are as a result of a constitution that provides equal rights to both offenders and victims. With an estimate of around 14.8 million individuals using marijuana, 2.4 individuals using cocaine, 1 million using hallucinogens and 7 million using drugs for non medical reasons the health of young people is definitely at risk and all stops should be pulled to prevent the continued use of drugs even if it means accommodating one or two constitutional violations. While the arrests made of people found in possession of drugs keep rising, the number of arrests made of individuals involved in either the sales, manufacture or sponsoring of the drug business have continued to be constant or at certain times, decreasing. This begs the question; will this be enough to clean our streets of drugs? The arrest of low level users does not affect the supply of the drugs at all hence the need to get to the individuals really running the enterprise. Cutting of the head is essentially more effective than cutting of the tail hence my determination to get the politician behind bars. Arresting the big guns would dent the supply and distribution of the drugs and put a hole in their operational procedures. This compared to arresting teenagers who always end up back on the streets to offer more demand for the drugs, would be a more substantial blow. Under the circumstances, I was limited by the choice of actions I had. In other words, I was between a rock and a hard place. Either of the two choices I had had great limitations. If I had decided to ask my officer to stand down (cease and desist) in his quest to bug the house of the politician, I would be left with no evidence against the man responsible for financing drug activities in our town and yet the decision I took was not exactly right either. I have evidence that I am not sure will be accepted in court because records of previous cases of individuals against the state due to violation of the fourth amendment have gone either way. In a case pitting Olmstead and the United States, the defendant (Olmstead) was accused of violating the National prohibitions act where the officers on the case had tapped telephone conversations of the defendant over a five month period. Both home telephones and those at work were tapped. Officers assigned to the case listened over the conversations made over the telephone and presented the typewritten copies of the conversations as evidence in court. The defendant’s counsel pushed for the court to refuse the admission of the conversations acquired by wiretapping as evidence because it represented an irrational search and seizure and that it violated the fourth amendment. They also argued that presenting the conversations as evidence in the case violated the Fifth Amendment as it forced the defendants to bear witness against themselves. Lawyers came out in strong support of the defendants pointing out that the constitution does not empower officers to break the rules and regulations set down by the constitution itself and that the officers in violating the fourth amendment were doing so as individuals and not on behalf of the government of the united states. The government was therefore innocent of any wrongdoing because no federal or government official is empowered to commit a crime in its name or behalf. The problem with the constitution is that it views everything in black and white, right or wrong and does not give consideration to some decisions made for the greater good. In covert human surveillance the operation procedure more often than not lack the necessary guidelines for the continuation of a particular operation. The officer on the ground has to make a call as he sees fit and even though he might be wrong, the decision made is nearly always to promote his safety or to further the solution to the case he is working on. This begs the question of what would I do if presented with a similar predicament in the future. This decision will depend on several things. The success of my undercover officers depends on the perception that their work is appreciated and this can only be done by having higher conviction rates of individuals whom they incriminate in their investigations. But their work cannot be continually ignored and sneered upon because in obtaining the evidence in question, they broke the law. There is therefore need to balance the actions of my undercover officers with the requirements of the constitution so as avoid conflict of interest between them. This will ensure that the information provided by the covert human intelligence will be easily admissible in our courts of law. Analysis and Evaluation The use of covert human intelligence has a large part to play in society. It has influenced the major events of our time since the formation of the republic through the First World War, the Second World War, and the cold war until now. Most people believe that the use of human covert surveillance started during the cold war period but nothing can be further from the truth. Use of human covert intelligence started much earlier during the formation of the republic. General George Washington used covert human intelligence to learn about the strength and movement of British forces. Using information obtained from his sources, he was able to defeat the British at Yorktown. While he was president, he asked for funds from the congress to set up intelligence operations. Subsequent governments neglected the use of this service and in 1812, due to failure from intelligence sources; the presence of British troops was not noted until they were 16 miles from Washington. During the civil war, use of covert human intelligence was prominent as both the Union army and the Confederates established department with the primary purpose of obtain information about the other side. The United States secret service came into existence in 1865 after the collapse of the Bureau of military intelligence that had been tasked with evaluating the strengths and weaknesses of the union forces. Before the 1880s, the use of covert human intelligence had been limited to obtaining information for the use of the military. The first permanent intelligence organization was formed in 1882 within the navy to collect information on foreign navies during war time and peace time. Theodore Roosevelt actively used covert human intelligence to set foreign policy and is known to have used these sources to incite the panama revolution that made annexing the canal possible. The turn of the 20th century saw the use of covert human intelligence for domestic safety. Before the First World War, there was no coordination of intelligence in the United States as the president at the time; President Wilson was not overly fond of the use spies as he did not trust them. However, association with the British changed his perception when they showed him reports of German plans to give the Mexican government several sections of the USA if they agreed to join Germany to attack the USA. After the war, use of covert human intelligence slackened a bit but the formation of the Federal Bureau of Investigations in 1935 enhanced this practice especially before the commencement of the Second World War. After the world war several groups lobbied for the formation of a civilian intelligence organization which led to the formation of the CIA in 1947 which would come to be known to be the organization with the biggest use of covert human intelligence. The 1950s and most of the 1960s brought about the cold war. The use of covert human intelligence was relied on now more than ever and it was the use of these that the USA was able to successfully launch reconnaissance aircraft over Russia. The use of covert human intelligence was not constrained to the armed forces and intelligence gathering community alone. Law enforcement agencies such as the drug enforcement administration which was established in 1973 use covert human intelligence in gathering data in conjunction with other law enforcement organizations to enable it start and investigate drug related cases and organizations. Other law enforcement agencies also developed their own programs for the collection and dissemination of information for police use. This includes the use of undercover police officers or the use of street informers (FAS, 1996) The legislations that regulate the activities of the use of covert human intelligence have had both negative and positive effects on the operational effectiveness of these organizations. The greatest deterrent is the fourth amendment that limits the length to which these organizations can go in establishing the innocence and guilt of offenders. A well known fact in the use of covert human intelligence is that the fewer the liberties extended to individuals, the easier the work of the covert agent in place would be and the better the security situation for the country. This is not to say that the law enforcement agents under cover or carrying out surveillance activities should be given carte blanche to break the constitution but rather they should not be extremely limited in the carrying out of their activities. Undercover officers and informants of the police should not be judged the same way other law enforcement officers are judged because the conditions they operate in are significantly different. Pearlstein (2008) suggests that it is not the use and utilization of forbidden techniques that is essential to gain the support and collaboration of interrogation sources. She further adds that use of unconstitutional means and methods in intelligence collection produces unreliable results and it may lead to subsequent failure in the collection of additional information. In certain countries like Russia, even though the rights and citizens of the republic are protected by the constitution, chapter II of the Russian federation federal law number signed by president Yeltsin enables the use of covert and overt means by law enforcement agencies in the collection of information. Article thirteen, chapter II of the act states that to meet the objectives and aims of the intelligence gathering organizations, they are authorized to put to use video and audio recording devices, photographing equipment and other means of information systems as long as these methods will not harm the lives of people, damage their health or have adverse effects on the environment (FAS, 1996) This article does not wish for the country to go the communist way of granting unilateral powers to intelligence services that are eventually abused. Rather it advocates for legislations that will balance the needs of individuals and the safety and effectiveness of covert intelligence officers. The rights and freedoms of individuals should be upheld at all times but the judicial system should also be encouraged to widen its doors to accommodate extreme scenarios. In this case, law enforcement officers should be given the power to make tough choices when the need arises without fearing the repercussions from the judiciary. The relationship between law enforcement community and the intelligence service should also be ironed out. In England, the Regulation of investigatory powers act outlines the process of sharing information between these two entities while in the United States the relationship is not necessarily symbiotic. The National Security act of 1947 and its subsequent amendments paid more attention to the cooperation between the military organizations and services and sidelined the law enforcement agencies. Law enforcement agencies usually accuse the intelligence services of obtaining information from them but providing nothing in return. Working at cross purposes may have significantly negative impacts on the efficiency of covert human intelligence in the long run. Undercover police officers working for different organizations working the same case may pose a serious security risk. Information sharing between these organizations is therefore highly recommended for increased efficiency and effectiveness of their covert human intelligence programs (Goldman and Apuzzo, 2012) Conclusion Law enforcement organizations obtain information in criminal investigations mostly by the use of covert human intelligence. This is usually from undercover police officers of long and short term informants. Undercover police officers who use covert means to obtain information from criminals are sometimes restricted by the constitution in the application of their duties. Collection of information from criminal elements may force them to break the law in certain aspects so as to get the job done. One of the most often broke rights by these officers is the right to privacy as provided by the fourth amendment. The fourth amendment protects the right of privacy of people and prevents unauthorized searches and authorization shall only be after a probable cause has been established. This amendment of the USA constitution provides an important human right service. Violation of the fourth amendment by law enforcement personnel during investigations may cause the evidence collected to be branded inadmissible in a court of law. There is therefore need for measures to be put into place to balance the actions and procedures of covert human intelligence and the constitution to enable better operational satisfaction of both the officers and the courts of law. References Legal Information Institute, 2013, Fourth Amendment. Available at National Conference of State Legislature, 2012, Electronic surveillance laws. Available at Doyle, C., 2010, Perjury under federal law: A brief overview. Available at Home office, 2013, Regulation of investigatory powers act. Available at PACE, 2008, Code of practice for the detention treatment and questioning of persons by police officers. Retrieved from Criminal procedure, 2001.The rest of Kyllo’s holding. Available at Chang, N., 2001.The USA patriotic act: what’s so patriotic about trampling on the bill of rights? Available at Dolin, B., 2001.National drug policy: United States of America. Available at Goldman, A. and Apuzzo, M., 2012, Consequences for security as NYPD-FBI rift widens. Available at Pearlstein, D., 2008. National intelligence and the rule of law. Retrieved from FAS, 1996, Preparing for the 21st century. Appraisal of U.S. intelligence. Retrieved from Fas, 1996, Russian federation federal law No. 5. Available at Vitkauskas, D., 1999, The role of security intelligence in a democracy. Read More