It’s really amusing that Texas State GOP Chair Sarah Weddington told her colleagues to use phrases like “on the lam” when describing the Killer D’s walkout because it connotes “criminal wrongdoing”, especially given that the justification being bandied about by the Texas Department of Public Safety for destroying all records having to do with the search for the Killer D’s is that it was not a criminal matter.
DPS spokeswoman Tela Mange said the agency acted appropriately in destroying the records because federal law mandates that law enforcement agencies cannot keep intelligence information on individuals who are not suspected of a crime. The missing lawmakers were not accused of any crimes.
Which leads to a question that Josh Marshall asked:
Does this regulation even exist? In each of the stories I’ve read this evening, the writer passes on that claim without any comment giving the reader a clue as to whether it has any validity.
Is there really a federal regulation stipulating that nothing that police agencies compile — pictures, notes, phone logs, anything — can be kept unless it pertains to a specific criminal investigation? I find it really hard to believe that such a sweeping regulation exists. Now, mind you, my question is not purely rhetorical. I have certainly asked such questions before, with great incredulity, only to find out that yes, believe it or not, the answer is ‘yes.’ It just doesn’t sound true to me, though — and I think the failure to mention any specific regulation and the, shall we say, diminishing credibility of the source [DPS] makes me think so even more.
If this “regulation” does in fact exist, it isn’t used all that much:
It also was not immediately revealed today whether the DPS had ever before destroyed documents under the federal regulations it cited in its prepared statement.
I’m finding it harder and harder to not lapse into Dana Carvey mode and make with the “How Conveeeeenient” asides, let me tell you.
While I cannot speak for law enforcement and the possible changes resulting from the Patriot Act, but as a former military intelligence officer I do know that we were severely restricted under the Posse Comitatus Act from using military assets for law enforcement and domestic surveillance. It was something that we took very seriously.
For example, military assets could be used to map federally held bombing ranges, but should we capture imagery of privately held lands, that imagery had to be immediately destroyed – even if it had evident marijuana fields, meth labs or Osama bin Laden’s Nevada training camp.
Granted that is a federal law that applies to the military, but it would not surprise me if a similar law requiring document destruction existed for state agencies.
But allow me to take a different tack. So DPS destroyed their records, but has anyone requested the Department of Homeland Security records?
State law seems to be a bit muddy to me – as I noted yesterday, Greg Abbott’s office says “it would be a crime to destroy records that had been requested under the Texas Open Records Act”. So far, no one has said that there is or was such a request in the system, but there was a Texas Public Information Act request filed on Monday (after the records were destroyed, but before anyone outside of DPS knew they’d been destroyed), which may or may not amount to the same thing.
So, all this still strikes me as being too fast and too convenient for DPS and Tom Craddick. Your point is well taken, but until someone quotes me the right regulation, this has a bad smell to it.
But allow me to take a different tack. So DPS destroyed their records, but has anyone requested the Department of Homeland Security records?
From that Fort Worth Star Telegram story I linked to yesterday:
More recently, the Homeland Security Department has declined to release tapes or transcripts of the conversations between DPS and the federal interdiction center.
In Washington on Tuesday, Homeland Security Secretary Tom Ridge — in an appearance before the House Select Committee on Homeland Security — was asked why the information had not been released as requested by several Democratic members of Congress.
Ridge said he would review the denial to release the tapes but pointed to an investigation of the matter being conducted by the department’s internal watchdog.
“We thought it was very appropriate, based on the multiple inquiries that we received from members of Congress . . . that we deploy the means with which Congress has given us, and that’s an inspector-general within our department, Ridge said.
So yes, it has been requested, and no, it has not been released yet.
We know the revenooers DO NOT destroy all records — cf., background checks on gun buyers and Maryland’s hunt for same during the Malvo hunt.
You can’t destroy records in Texas until a certain time has passed, dependent on the records. You can’t destroy them even after that time, if there is a pending Open Records Request.
The law the DPS is trying to figleaf is this one (28 CFR 23), I believe:
http://www.iir.com/28cfr/guideline1.htm:
“
(a) A project shall collect and maintain criminal intelligence information concerning an individual only if there is reasonable suspicion that the individual is involved in criminal conduct or activity and the information is relevant to that criminal conduct or activity.
(b) A project shall not collect or maintain criminal intelligence information about the political, religious or social views, associations, or activities of any individual or any group, association, corporation, business, partnership, or other organization unless such information directly relates to criminal conduct or activity and there is reasonable suspicion that the subject of the information is or may be involved in criminal conduct or activity.
”
If DPS was bound by it, they violated it in the first place by gathering data on obviously non-criminal political activities. But of course, they didn’t violate it, because it doesn’t apply to them:
“
(a) These policy standards are applicable to all criminal intelligence systems operating through support under the Omnibus Crime Control and Safe Streets Act of 1968, 42 U.S.C. 3711, et seq., as amended (Pub. L. 90-351, as amended by Pub. L. 91-644, Pub. L. 93-83, Pub. L. 93-415, Pub. L. 94-430, Pub. L. 94-503, Pub. L. 95-115, Pub. L. 96-157, Pub. L. 98-473, Pub. L. 99-570, Pub. L. 100-690, and Pub. L. 101-647).
”
DPS is not a “criminal intelligence system” operating under the relevant act. I’ve blogged this myself.
I did blog on it, because everyone keeps wondering about it. I’m sure all 30 people a day (18 of which are searching for Matrix: Reloaded thoughs, and 8 of which are there because of a mathematician) will be thrilled to know the results of an afternoon’s work. 🙂
Still, DPS is pretty screwed. They messed up big time.