Administration's Review Of Pentagon's 1033 Program Finds It Has No Rules, No Transparency And No Oversight

SOURCE: TECH DIRT

No sooner had I chastised the executive branch for its half-assery in all things 1033-related than it delivers its findings on the much-criticized program [pdf link]. A little over a week ago, I wrote this.

Others -- including President Obama -- promised to look into the program. Obama orderedthe first top-level review of the Pentagon's 1033 program in over 20 years, but weeks later, there's been nothing reported.

The administration is now forcing me to eat my words, having responded fairly quickly to my caustic single-sentence editorial. The pithily-titled "Review: Federal Support for Law Enforcement Equipment Acquisition" has been released, detailing the review's findings and concerns about the Pentagon's "An MRAP in every PD" program. 

The opening "Background" plays up a few talking points:

Particularly in the years since September 11, 2001, Congress and the Executive Branch have steadily increased spending and support for these programs, in light of legitimate concerns about the growing threat of terrorism, shrinking local budgets, and the relative ease with which some criminals are able to obtain high-powered weapons.

Of course, the "growing threat of terrorism" often cited on acquisition forms usually becomes "toys for drug warriors" or "nothing says warrant service like an armored vehicle" in practice. Or in Keane, New Hampshire's (pop. 23,000) case: "the terrorists hate us for our annual PumpkinFest." 

The review posits that there are three possible issues with the 1033 program, which it acknowledges has expanded at a faster rate than the policies governing it.

During the course of this review, White House components have explored whether existing federal programs: 1) provide LEAs with equipment that is appropriate to the needs of their communities, 2) ensure that LEAs are properly trained to the equipment they obtain, and 3) encourage LEAs to adopt organizational and operational practices and standards that prevent misuse/abuse of the equipment.

A large percentage of the program's dispersals (96%) are routine: office equipment, medical supplies, computers and basic protective gear. But because of the size of the program, the remaining 4% ("controlled equipment," which covers the most controversial items) is still very sizable.

However, this 4% translates into 78,000 pieces of controlled equipment transferred from DOD to LEAs. To date, approximately 460,000 pieces of controlled property are currently in the possession of LEAs across the country.

That's a lot of equipment, almost all of it deployed without training, oversight or specific policies. It's also distributed without transparency in many cases. Utilizing DHS grants often allows local law enforcement agencies to bypass city councils and other parts of the purchasing process that would allow for at least a littlepublic oversight. The review makes several suggestions to plug the many loopholes in the 1033 program.

Develop a consistent list of controlled property allowable for acquisition by LEAs. 

Require local civilian (non-police) review of and authorization for LEAs to request or acquire controlled equipment. 

Mandate that LEAs which participate in federal equipment programs receive necessary training and have policies in place that address appropriate use and employment of controlled equipment, as well as protection of civil rights and civil liberties. Agencies should identify existing training opportunities and help LEAs avail themselves of those opportunities, including those offered by the Federal Law Enforcement Training Center (FLETC) and the International Association of Law Enforcement Standards and Training. 

Require after-action analysis reports for significant incidents involving federally provided or federally-funded equipment. 

Harmonize Federal programs so that they have consistent and transparent policies. 

Develop a database that includes information about controlled equipment purchased or acquired through Federal programs.

As it stands now, any sort of tracking or accountability has been performed by civilians, usually in the form of FOIA requests. MuckRock has compiled all of its responsive documents for 1033 acquisitions and other FOIA requests have uncovered multiple incidents in which the normal purchase process has been bypassed. 

While it's nice to see the administration realize that the program has created multiple issues, the corrective measures still rely on honest self-reporting, something law enforcement agencies aren't known for. See also: the gaping holes in data on citizens shot by law enforcement officers. Agencies will continue to cite the protection of investigative means and methods to justify the withholding of data, much as they do with their IMSI catchers. 

Interestingly, the administration's review also touches on the subject of asset forfeiture, even though it's not directly related to the 1033 program (agencies can buy 1033 equipment with seized funds). However, its assessment of the program doesn't touch on the numerous problems inherent in policing for profit, instead focusing on the particulars of participating in the program.

LEAs participating in the ESP [Equitable Sharing Program] must comply with three basic requirements: 1) Funds must be maintained in a separate revenue account, 2) Participants must maintain a log of all tangible property purchased with equitable sharing funds or received from DOJ, and 3) Participants must maintain records of all expenditures made from equitably shared funds.

Not addressed is the loophole this program creates for law enforcement agencies that are forbidden by state laws from directly profiting from seizures. Partnering with the federal government allows agencies to bypass state restrictions and receive a portion of its seizures from the US government, rather than turning everything seized over to the state. This has lead to 7,500 law enforcement agencies splitting up $2.7 billion since 2009, even when limited to making seizures above $5,000 without an accompanying criminal prosecution. (This falls to $1,000 with a criminal prosecution.) While this may put a damper on nickel-and-dime seizures, it has no discernible effect on the overall abuse of this law enforcement privilege. 

Overall, the recommendations for fixing the 1033 program are a step forward. But considering the free-for-all it's been for years, the fixes are not so much groundbreaking as they are the re-introduction of common sense and (minimal) oversight.

SHARE THIS ARTICLE...