Understanding Contemporary Law
Enforcement Intelligence:
Concept and Definition
2
CHAPTER TWO
Understanding Contemporary Law
Enforcement Intelligence:
Concept and Definition
In the purest sense, intelligence is the product of an analytic
process that evaluates information collected from diverse
sources, integrates the relevant information into a cohesive
package, and produces a conclusion or estimate about a
criminal phenomenon by using the scientific approach to
problem solving (i.e., analysis). Intelligence, therefore, is a
synergistic product intended to provide meaningful and
trustworthy direction to law enforcement decision makers
about complex criminality, criminal enterprises, criminal
extremists, and terrorists.
7
There are essentially two broad purposes for an intelligence function
within a law enforcement agency:
Prevention. Includes gaining or developing information related to
threats of terrorism or crime and using this information to apprehend
offenders, harden targets, and use strategies that will eliminate or
mitigate the threat. This is known as tactical intelligence.
Planning and Resource Allocation. The intelligence function provides
information to decision makers about the changing nature of threats,
the characteristics and methodologies of threats, and emerging threat
idiosyncrasies for the purpose of developing response strategies and
reallocating resources, as necessary, to accomplish effective
prevention. This is known as strategic intelligence.
While investigation1 is clearly part of the information collection2 process,
the intelligence function is often more exploratory and more broadly
1 "Investigation" is defined as
the pursuit of information focused than a criminal investigation, per se. For example, a law
based on leads and evidence
associated with a particularly
enforcement agency may have a reasonable suspicion to believe that a
defined criminal act to identify person or group of people have the intent, capacity, and resolve to commit
and apprehend criminal
offenders for prosecution in a a crime or terrorist act. Evidence, however, may fall short of the probable
criminal trial.
cause standard, even for an arrest of criminal attempt or conspiracy.
2 "Information collection" in the Moreover, there may be a compelling community safety reason to keep an
context of law enforcement
intelligence is the capture of enquiry open to identify other criminal offenders – notably leaders – and
information based on a weapons that may be used.
reasonable suspicion of
criminal involvement for use
in developing criminal cases,
identifying crime trends, and Because of this broader role, the need to keep information secure and the
protecting the community by necessity of keeping records on individuals for whom evidence of criminal
means of intervention, 3
apprehension, and/or target involvement is uncertain or tangential, rigid guidelines must be followed.
hardening.
These guidelines are designed to protect the constitutional rights of
3 This includes information that citizens while at the same time permitting law enforcement agencies to
would be in the intelligence
"Temporary File" as well as proceed with an inquiry for purposes of community safety. The guidelines
"Non-Criminal Identifying
Information" as defined in 28
are also designed to facilitate accurate and secure information sharing
CFR Part 23. between law enforcement agencies because the nature of terrorism and
criminal enterprise threats are inherently multijurisdictional. Further, if law
enforcement agencies at all strata of government subscribe to the same
guidelines, information sharing can be more widespread because there is
surety that regardless of with whom the information is shared, the security
and integrity of the records will remain intact.
8 Law Enforcement Intelligence: A Guide for State, Local, and Tribal Law Enforcement Agencies
Defining Intelligence
Definitions become problematic because of context, tradition, and the
different use of language by specialists, generalists, and lay persons. This
guide uses definitions based on generally accepted practice and standards
by the law enforcement intelligence community at the local, state, and
tribal levels. This does not mean that other definitions of terms are wrong,
but provides a common understanding of words and concepts as most
applicable to the targeted audience of this guide.
Before defining intelligence, it is essential to understand the meaning of
"information" in the context of this process. Information may defined as
"pieces of raw, unanalyzed data that identifies persons, evidence, events,
or illustrates processes that indicate the incidence of a criminal event or
witnesses or evidence of a criminal event.”4 As will be seen, information is
collected as the currency that produces intelligence. 4 Global Intelligence Working
Group. (2004). Criminal
Intelligence for the Chief
The phrase “law enforcement intelligence,” used synonymously with Executive. A Training
Program for the Chief
“criminal intelligence,” is frequently found in conjunction with discussions Executive. Glossary.
of the police role in homeland security. In most cases, the term is used
improperly. Too often, intelligence is erroneously viewed as pieces of
information about people, places, or events that can be used to provide
insight about criminality or crime threats. It is further complicated by the
failure to distinguish between law enforcement intelligence and national
security intelligence.
Law enforcement intelligence, therefore, is the PRODUCT of an
analytic process that provides an INTEGRATED PERSPECTIVE to
disparate information about crime, crime trends, crime and security
threats, and conditions associated with criminality.”5
Pieces of information gathered from diverse sources, for example,
wiretaps, informants, banking records, or surveillance (see Figure 1-1), are
simply raw data which frequently have limited inherent meaning.
Intelligence is when a wide array of raw information is assessed for validity
Understanding Contemporary Law Enforcement Intelligence: Concept and Definition 9
and reliability, reviewed for materiality to the issues at question, and given
meaning through the application of inductive or deductive logic. Law
enforcement intelligence, therefore, is the product of an analytic process
that provides an integrated perspective to disparate information about
crime, crime trends, crime and security threats, and conditions associated
with criminality.”5 The need for carefully analyzed, reliable information is
essential because both policy and operational decisions are made using
intelligence; therefore, a vigilant process must be in place to ensure that
decisions are made on objective, informed criteria, rather than on
presumed criteria.
Figure 1-11: Diverse Information Collected for Intelligence Analysis
5 Carter, David L. (2002). Law
Enforcement Intelligence
Operations. 8th ed.
Tallahassee, FL: SMC
Sciences, Inc.
Often “information sharing” and “intelligence sharing” are used
interchangeably by persons who do not understand the subtleties, yet
importance, of the distinction. In the strictest sense, care should be taken
to use terms appropriately because, as will be seen in later discussions,
there are different regulatory and legal implications for “intelligence” than
for “information” (see Figure 1-2). As such, the subtleties of language can
become an important factor should the management of a law enforcement
agency's intelligence records come under scrutiny.
10 Law Enforcement Intelligence: A Guide for State, Local, and Tribal Law Enforcement Agencies
Figure 1-22: Comparative Illustrations of Information and Intelligence
Information Intelligence
• Criminal history and driving records • A report by an analyst that draws
• Offense reporting records conclusions about a person's
• Statements by informants, criminal liability based on an
witnesses, and suspects integrated analysis of diverse
• Registration information for motor information collected by
vehicles, watercraft, and aircraft investigators and/or researchers
• Licensing details about vehicle • An analysis of crime or terrorism
operators and professional licenses trends with conclusions drawn
of all forms about characteristics of offenders,
• Observations of behaviors and probable future crime, and optional
incidents by investigators, methods for preventing future
surveillance teams, or citizens crime/terrorism
• Details about banking, investments, • A forecast drawn about potential
credit reports, and other financial victimization of crime or terrorism
matters based on an assessment of limited
• Descriptions of travel including the information when an analysts uses
traveler(s) names, itinerary, past experience as context for the
methods of travel, date, time, conclusion
locations, etc. • An estimate of a person's income
from a criminal enterprise based on 6 International Association of
a market and trafficking analysis of Chiefs of Police. (2002).
Criminal Intelligence Sharing:
illegal commodities A National Plan for
Intelligence-Led Policing at
Definitions and Context the Federal, State, and Local
Levels. A summit report.
Alexandria, VA: IACP., p. v.
State and local law enforcement have consistently defined law 7 Global Intelligence Working
Group. (2003). National
enforcement intelligence as containing the critical element of “analysis” Criminal Intelligence Sharing
before any information can be characterized as “intelligence.” For Plan. Washington, DC:
Office of Justice Programs,
example, the Intelligence-Led Policing report funded by the Office of p. 6.
Community Oriented Policing Services observes that:
…intelligence is the combination of credible information with
quality analysis–information that has been evaluated and from
which conclusions have been drawn.6
Similarly, the Global Intelligence Working Group, a project funded by the
Office of Justice Programs and is part of the Global Information Sharing
Initiative, discusses law enforcement intelligence by observing:
…the collection and analysis of information to produce an
intelligence end product designed to inform law enforcement
decision making at both the tactical and strategic levels.7
Understanding Contemporary Law Enforcement Intelligence: Concept and Definition 11
Following a consistent vision, the International Association of Law
Enforcement Intelligence Analysts (IALEIA) states that intelligence is an
analytic process:
…deriving meaning from fact. It is taking information collected in
the course of an investigation, or from internal or external files,
and arriving at something more than was evident before. This
could be leads in a case, a more accurate view of a crime
problem, a forecast of future crime levels, a hypothesis of who
may have committed a crime or a strategy to prevent crime.8
Beyond these descriptions, the Office of Domestic Preparedness9 of the
Department of Homeland Security simply defines law enforcement
intelligence as:
8 International Association of
Law Enforcement Intelligence
Analysts. (undated). …the product of adding value to information and data through
Successful Law Enforcement
Using Analytic Methods. analysis.10
Internet-published document.
p. 2.
In creating standards for state, local, and tribal law enforcement, the
9 The Office of Domestic
Preparedness is not the
Commission on Accreditation of Law Enforcement Agencies (CALEA) seeks
Office of State and Local to provide specific guidance on policies and practices that ensures
Government Coordination
and Preparedness. efficacy and protection from liability on all aspects of law enforcement
10 Office of Domestic
duties. With respect to intelligence, CALEA's standards note:
Preparedness. (2003).
The Office of Domestic
Preparedness Guidelines for Certain essential activities should be accomplished by an
Homeland Security. intelligence function, to include a procedure that permits the
Washington, DC: U.S.
Department of Homeland continuous flow of raw data into a central point from all sources; a
Security. p.27.
secure records system in which evaluated data are properly
11 Commission on Accreditation cross-referenced to reflect relationships and to ensure complete
of Law Enforcement
Agencies. (2002). Standards and rapid retrieval; a system of analysis capable of developing
for Law Enforcement
Accreditation. “Standard intelligence from both the records system and other data sources;
51.1.1 - Criminal Intelligence.” and a system for dissemination of information to appropriate
Washington, DC: CALEA.
components.11
It is clear not only from these discussions, but also from the legacy of law
enforcement intelligence of various national commissions examining
intelligence activities at the state and local level, that a common thread is
that information must be analyzed before it is classified as intelligence.”
12 Law Enforcement Intelligence: A Guide for State, Local, and Tribal Law Enforcement Agencies
Chapter 3 will show that there is a fundamental reason for this: regulations
applying to state, local, and tribal intelligence records12 must meet
standards of assessment that do not apply to federal agencies.13 As a
consequence, the analytic component is essential for the definition.
It is often stated that for every rule there is an exception. The definition of
law enforcement intelligence fits this axiom. As a matter of functional
practicality, the FBI Office of Intelligence (OI) categorizes intelligence
somewhat differently. As observed by FBI Deputy Assistant Director of the
Office of Intelligence Robert Casey:
In the law enforcement/national security business, [intelligence] is
information about those who would do us harm in the form of
terrorist acts or other crimes, be they property crimes or violent
crimes. … [The FBI OI] produces both “raw” (or un-evaluated
intelligence) and “finished” intelligence products (those that
12 Most notably, 28 CFR Part 23
report intelligence that has had some degree of analysis).14 as well as various court
decisions.
Given the nature of the FBI OI's responsibilities and the need to get the 13 These issues are described in
detail, both in Chapter 3 and
critical threat information into the hands of the law enforcement community Chapter 7.
quickly, this definition is more appropriate for its role. Law enforcement 14 Robert Casey, Deputy
executives need to be aware of the different roles and the different context Assistant Director, FBI Office
of Intelligence. Personal
when interpreting information. These differences are not in conflict, rather correspondence July 17,
they exist to support the different missions and responsibilities of agencies 2004.
at all levels of government. Similarly, the need for a different approach to
the “intelligence cycle” exists more for the FBI than for state, local, and
tribal law enforcement (SLTLE) because of different intelligence demands
(described in Chapter 5).
…a COMMON THREAD is that analysis must be performed on
information before it is CLASSIFIED AS “INTELLIGENCE.”
Understanding Contemporary Law Enforcement Intelligence: Concept and Definition 13
The remedy is simple: Those responsible for the intelligence function need
to understand the differences and apply policies and practices (described
later) that are most appropriate for the types of intelligence being produced
and consumed.
National Security Intelligence
In understanding the broad arena of intelligence, some perspective of
national security intelligence (NSI) is useful for SLTLE agencies. This
primer is meant to familiarize the law enforcement reader with basic terms,
concepts, and issues, and is not an exhaustive description.
NSI may be defined as “the collection and analysis of information
concerned with the relationship and homeostasis of the United States with
foreign powers, organizations, and persons with regard to political and
economic factors as well as the maintenance of the United States'
15 Carter, David L. (2002). Law
Enforcement Intelligence sovereign principles.”15 NSI seeks to maintain the United States as a free,
Operations. 8th ed.
Tallahassee, FL: SMC
capitalist republic with its laws and constitutional foundation intact and
Sciences, Inc. identify and neutralize threats or actions which undermine the American
16 See also www.odci.gov way of life.
NSI embodies both policy intelligence and military intelligence. Policy
intelligence is concerned with threatening actions and activities of entities
hostile to the U.S., while military intelligence focuses on hostile entities,
weapons systems, warfare capabilities, and order of battle. Since the fall
of the Soviet Union and the rise of threats from terrorist groups, both policy
and military intelligence have evolved to grapple with the character of new
threats. The organizations responsible for NSI are collectively known as
the Intelligence Community (IC) (see Figure 1-3).16
As seen in the definition and descriptions of NSI, there is no jurisdictional
concern for crime. As a result, constitutional restrictions that attach to
criminal cases that law enforcement faces on information collection,
records retention, and use of information in a raw capacity do not apply to
IC responsibilities where there is no criminal investigation.
14 Law Enforcement Intelligence: A Guide for State, Local, and Tribal Law Enforcement Agencies
Figure 1-33: Intelligence Community17
SLTLE agencies have no direct jurisdiction as related to NSI; however, this
does not mean that they will not encounter NSI nor receive collection tasks
to support NSI. Indeed, given that the FBI is a member of the IC, there is a
strong likelihood that SLTLE officers serving on a Joint Terrorism Task 17 On August 28, 2004 President
Bush announced: “I have
Force will encounter or be exposed to NSI. Similarly, officers working on ordered the Director of
an Organized Crime Drug Enforcement Task Force (OCDETF) may also Central Intelligence to perform
the functions of the National
encounter this intelligence. In both instances the officers typically will Intelligence Director within the
constraints of existing law,
have Top Secret or Secret security classifications that provide additional until Congress establishes
details and background information. Nonetheless, it is a “slippery slope” that position. I agree with the
9/11 Commission that
for SLTLE officers to rely on this information for a criminal investigation America needs a single
official to coordinate the
because there is a strong likelihood that the methods of collecting the NSI foreign and domestic activities
would not meet constitutional muster in a criminal trial. Even if it appeared of the intelligence community
with authority over personnel
that constitutional standards may be met, there are other potential budgeting and policy. I am
working with members of
problems of using the information in a criminal enquiry. Since the accused Congress to create this
in a criminal proceeding has the right to be confronted by his or her position. And while we act,
the Director of Central
accusers, the exercise of this right could compromise sensitive sources Intelligence will play an
expanded role.”
and methods. While the Classified Information Procedures Act (CIPA) www.whitehouse.gov/news/rel
provides a mechanism to deal with the process, some find that it is eases/2004/08/20040828.html
cumbersome and may result in greater complications than would otherwise 18 The author has elected not to
be necessary.18 discuss CIPA in any detail
because it deals with federal
investigations rather than
state, local, and tribal criminal
The next issue deals with constitutional law. If the information was investigations. For the
collected via NSI sources in a manner inconsistent with the Constitution, it person interested in further
exploring CIPA, see
is likely, based on the “Fruits of the Poisonous Tree Doctrine,” that any www.usdoj.gov/usao/eousa/foi
a_reading_room/usam/title9/c
subsequent evidence developed during the course of that investigation rm02054.htm.
Understanding Contemporary Law Enforcement Intelligence: Concept and Definition 15
would be subject to the Exclusionary Rule. Consequently, the evidence
would be inadmissible.
A final issue with respect to state, local, and tribal officers' access to NSI
is liability. Specifically, if in a criminal investigation SLTLE officers used
NSI that was collected in a manner inconsistent with constitutional
standards or if that information (including personal records) was kept as
intelligence records that were under the custodianship of a state, local, or
tribal law enforcement officer, it is possible that the officer(s) and the chain
of command (through vicarious liability) of that officer's agency could be
liable under 42 USC 1983, Civil Action for Deprivation of Civil Rights. As
most officers are well aware, under this provision if a state or local officer,
acting under the color of state law, violates the civil rights of a person, the
officer and his or her chain of command may be sued in federal court.
Even though that officer may be working on a federal task force under the
supervision of a federal officer such as an FBI agent, the applicable test is
19 The FBI may keep such
records in its custody on the whether the officer is paid by and bound by the employment rules of his or
basis of its national security
responsibilities. While it is
her state or local employing jurisdiction.19
possible to hold a federal
officer liable based on what is
known as a “Bivens Suit” - In sum, based on authorities from the National Security Act of 1947,
derived from the case of
Bivens v. Six Unknown
Executive Order 12333, various Directives from the Director of Central
Agents 403 US 388 (1971) – Intelligence, and the U.S. Attorney General Guidelines, the FBI is the lead
it would be difficult,
particularly under the agency in domestic intelligence collection. It is important that SLTLE
conditions of understand the distinction between the FBI's authority to both collect and
counterterrorism.
produce intelligence within the territory of the United States and the
20 The Coast Guard of the
Department of Homeland authority of the Central Intelligence Agency (CIA), National Security
Security is the only other IC Agency (NSA), and other intelligence community members to collect in
member authorized to collect
intelligence in U.S. territory. foreign territories.20 The Department of Homeland Security can produce
intelligence as a result of analysis for dissemination to SLTLE. U.S. foreign
intelligence agencies, however, are prohibited from working with state and
local law enforcement in a manner that could be interpreted as “tasking
intelligence collection.” As a result, SLTLE should rely on their relationship
with the FBI in matters of intelligence collection in the territory of the U.S.,
including where those matters involve international terrorism activity.
16 Law Enforcement Intelligence: A Guide for State, Local, and Tribal Law Enforcement Agencies
The lessons learned from this brief review of national security intelligence
are threefold:
1. State, local, and tribal law enforcement officers have no jurisdiction to
collect or manage national security intelligence.
2. Use of NSI in a criminal investigation by a state, local, or tribal law
enforcement officer could derail the prosecution of a case because of
Fourth Amendment protections afforded by the Fruits of the Poisonous
Tree Doctrine and the Exclusionary Rule.
3. Use of NSI in a criminal investigation by an SLTLE officer and/or retention
of NSI in a records system or in the personal records of an SLTLE officer
could open the possibility of civil liability from a Section 1983 lawsuit.
CONCLUSION
The intent of this chapter was to give the reader insight into what
intelligence is, its role, and some of the complications that emerge from
using the term. Law enforcement intelligence, for example, is defined
somewhat differently by the FBI than it is by SLTLE. The reason for the
difference is based on the sources of information used by the FBI and the
responsibility it holds for disseminating unique critical information in a
timely fashion. The important point is that the consumer simply needs to
know the different definitions and the different context. With this
knowledge, information can be interpreted and used most effectively.
Chapter 2 also addressed the meaning of NSI and the complications it
conceivably can pose for SLTLE agencies. Once again, it is important to
understand the issues and parameters of each type of intelligence. The
proverbial bottom line is that understanding the definitions and their
application is an essential foundation for the remaining topics discussed
throughout the guide.
Understanding Contemporary Law Enforcement Intelligence: Concept and Definition 17
