Sunday, December 6, 2015

The Year of Col. McCraw's Discontent, or How I Learned to Stop Worrying and Love Counterterrorism

         


This has not been a good year for Texas’s top cop. We’re not talking about Attorney General Ken Paxton who may soon face trial for securities fraud, instead it’s a reference to the head of the gun-toting arm of state government, Col. Steve McCraw of the Department of Public Safety. For the colonel it’s hard to imagine a more problematic short span of time: in fact it’s hard to imagine a worse run of a few months for any bureaucrat, much less one who’s supposed to be enforcing the laws of the Lone Star State. The hot seat has been so hot McCraw’s pants are literally on fire—as in liar, liar.
The colonel’s troubles hit in a wave. There was the Sandra Bland suicide in Waller County, a tragedy which gained worldwide attention and that, in all fairness to the colonel, is related to the Department’s longstanding race and gender issues which pre-date Steve McCraw’s arrival on the scene. Of the two prior colonels running DPS, one white male and one black, both left after gender issues: one colonel for inappropriate behavior with a subordinate and the second colonel, who called out the first in an “intervention” in the DPS headquarters suite, for retaliating against a secretary in a field office who complained that a Highway Patrol sergeant showed his penis to her, unprompted, at work. The state had to pay the lady off (the figure $80,000 sticks in mind) after courts ruled the original action whipping out Mr. Johnson during business hours was un-provable but the retaliation by the colonel was not. It was at that point more or less that Steve McCraw, former state trooper and FBI agent, rode to the Department’s rescue.
Recently under McCraw’s leadership the Department has gone from the frying pan into the fire. There have been the well-documented complaints by legal Texas residents of the Mexican border that they have been stopped multiple times by DPS troopers as part of the border “surge”—a policy of increased immigration enforcement brought to you by state leadership and directed by Col. McCraw. More serious is the recent revelation by television station KXAN that state troopers have been doctoring their racial profiling data by describing, in their reports, Latinos whom they have stopped as white. The effect is to make it seem that the Department is pulling over fewer minorities than it really is. “I can assure you this is a leadership issue, not a trooper issue,” McCraw recently told lawmakers, falling back on contrition—and then proceeding to blame patrol car computers. Software defects now serve as the bureaucratic scapegoat of choice throughout government but in few cases, this one included, are computer glitches the real issue.
Texans like to brag how law-and-order tough they are but in any of the wimpy Democratic-controlled states on the coasts, California and New York for example, the practice of gaming racial profiling data would have led to a grand jury investigation and possible criminal charges. In Washington D.C., military officers are being investigated at the moment for skewing stats about the effect of strikes against Islamic State. In Austin, a similar kind of deception is being patiently but persistently swept under the rug—although Col. McCraw does seem to be spending more time answering questions at Capitol subcommittees than he does working at DPS headquarters, across town. It gets worse. The Dallas Morning News, which is no bleeding-heart liberal rag, recently noted that DPS has had to destroy 2 million full sets of fingerprints of individuals seeking driver’s licenses—complete sets which were taken instead of the legislatively-permitted mere thumbprint—although it’s unclear that this kind of information, once collected, can ever really be “destroyed.” Now another issue has arisen at DPS headquarters. On the surface it may appear good for the Department, and for the colonel, that Steve McCraw has shown restraint and, in that respect, shown good stewardship of our civil liberties as well. But if you look a little deeper there’s evidence that the Texas Department of Public Safety is in the shit yet again.
Among DPS’s various tools of enforcement, troopers can club you, cuff you, shoot you, shock you or merely jail you. They can also eavesdrop on you although the difference between wiretapping and other interventions is that wiretapping has to be approved and signed off by the commanding colonel, McCraw himself. The Texas state wiretapping statute unlike its federal counterpart, and unlike the law in some other states, is very limited—it does not permit eavesdropping in political corruption cases for example—and must be requested by a district attorney, approved by the colonel and the wire hung and administered by DPS. What’s interesting is that just a couple of years ago the state’s total of wires by local D.A.s was about a dozen yearly and growing. For the last two years DPS reports there have only been three or four approved, depending on how you do the count. It’s not because there’s less drug trafficking in Texas, mind you: meth is still an epidemic here as elsewhere. That any law enforcement agency is actually wiretapping less in this day and age is exceptional, and especially in Texas where cops like their tools to fight crime and presumably would like even more.
In the last yearly summary by the Administrative Office of the U.S. Courts, which reports on state and federal wiretapping activity, the single most active area of the country for federal wiretapping was the single federal district that comprises Arizona. But if you look at the four federal districts that make up Texas the amount of activity in total outstrips any other state and especially for the crime which leads to most government eavesdropping in the first place, narcotics trafficking. The U.S. Attorney’s Office in San Antonio alone—one of four in the state—has hung more wire recently than AT&T. Why the sudden reluctance to follow suit by DPS which was increasing its interceptions until just recently? The reason may be the colonel’s signature. Steve McCraw can’t claim he’s out of the loop on this one. He can’t blame the software. He has to sign off on those D.A. requests and the last time the state figures were made public, two years ago, it was clear that some of the D.A.’s offices asking for wires (that McCraw approved) did not know what they were doing: Harris County bugged somebody’s house in a case that went south. The Tarrant County D.A. did 2000 intercepts of 100 people for a single conspiracy to commit murder. Travis County D.A. Rosemary Lehmberg was the frequent flyer of state wiretaps with the most approved by Col. McCraw—but that was before her after-hours exploits led to the indictment of Gov. Perry. Texas D.A.s seemed to like murder investigations for eavesdropping almost as much as for narcotics, which shows a particular misunderstanding of the use of the technology.
Narcotics like terrorism is by its very business model an on-going criminal enterprise. Murder or even conspiracy to commit murder is much less likely to be captured on tape, especially after the fact, unless the people involved are chatting on the phone about whom they just whacked. McCraw signed off on these cases in the past and got burned, as it turned out, when they were publicized, and it wasn’t like he could say, as he is now saying with the Department’s racial profiling scam, that he didn’t know. Even in today’s modern high tech age a signature in ink is still a powerful thing. And that’s important because even though the colonel may have lost his taste for hanging wire he hasn’t lost his interest in extending the reach of his department. In that respect, the Legislature has given him both an in and an out—and we should all be worried.
The Texas Department of Public Safety is not a particularly hard agency to understand. A few years ago a president of the Austin police union, deflecting criticism of the white male culture of his own force, described DPS as “the ultimate old boys’ club” and in many ways that’s true. Bubba has lived and prospered at DPS through the decades—since the inception of the agency, circa Bonnie & Clyde, fighting any attempts to dislodge the white rural male ethos—although even Bubba may soon have trouble resisting the on-going demographic changes in the state. Still, he tries: two legislative sessions ago an aide to a powerful female House member mentioned that his boss, who was offended by a Highway Patrol supervisor carrying on an open affair with a married employee in a county courthouse in the legislator’s district, contacted DPS to complain and was told, basically, to piss off. Bubba apparently has his perks. Left to its own devices the Department divides up power between old boys just like a cake. If you look at all the gun-carrying certified law enforcement officers in the agency (some 4,000 of them) and divide the badges between those who wear uniforms, like the Highway Patrol, and those who wear suits, like criminal investigation or criminal intelligence, the top slot—the colonel’s position—is usually filled by promotion from within and historically rotates between the two halves, one colonel coming from the suits, the next one coming from uniforms, with the Texas Rangers out of the mix presumably because they are already powerful enough. The status quo at DPS is maintained through a very neat trick. When an officer retires, whether a Ranger or a lowly Highway Patrol trooper, he or she can appear before the Texas Public Safety Commission to be declared a “Special Ranger” or “Special Texas Ranger,” a retirement status that allows the former officer to continue to carry a gun and a badge and to tap into the lucrative private security industry as a second retirement income. The Public Safety Commission members usually do not know the retiring officers, whom they must vote upon, and rely almost exclusively on recommendations by the colonels. Any trooper or investigator or Ranger who has rocked the boat during his or her tenure in the Department is blackballed from Special Ranger status. All police agencies are military in structure, basically—which means there’s little dissent tolerated in the first place—but DPS goes a step farther to insure orthodoxy. And silence.
A former Democratic candidate for governor mentioned once that the single most important appointments for any new Texas governor are the members of the Public Safety Commission that runs DPS. The reason is easy to fathom: making sure that state investigators, especially the Rangers, don’t stick their noses into areas that state leadership prefers unexamined. The Rangers are almost wholly-occupied with violent crime and the occasional political corruption case, usually involving a rural county commissioner’s court, while white collar crime, which might involve big donors, and big corruption cases—which might involve state officeholders—are sometimes forced on the Rangers but are not something DPS goes looking for. Control of DPS and of the Rangers officially has been exercised by means the five-member Commission which chooses the colonel but in recent decades the governor has tapped his guy more or less directly: first in 1979 when new Republican governor Bill Clements ignored the uniform-suit rotation that would have promoted from within and instead chose the FBI’s former number two guy, Jim Adams, to lead. Clements had come to Austin as the lone statewide Republican officeholder and the first Republican governor since Reconstruction and he wanted his own person sitting in the colonel’s chair to watch his back. Rick Perry did something similar thirty years later, although in the case of Gov. Perry—“Mr. Opportunity” as he is known for his ability to exploit any opening—disarray in the agency was justification to put his man in the top slot. That man was Steve McCraw and that’s where things stood two legislative sessions ago when SB 162 was signed into law by Gov. Perry. The so-called "Chris Kyle bill," named after the Texas-born "American Sniper," was a step that will completely change the Department of Public Safety as we know it, yet again, without going through the five-member Public Safety Commission, directly influencing who works at the agency instead.
 SB 162 allows former special operations members of the armed forces (Seals, Recon Marines, Green Berets) to fast track into law enforcement certification, which most affects DPS as the largest law enforcement agency in the state. The bill was passed just prior to the Ferguson protests and prior to the national realization that the police may already be over-militarized in terms of equipment and gear, and adds the militarization of the officers themselves to the mix. Interestingly, SB 162 specifically excludes former military police officers from easier civilian accreditation and speaks only to the most lethal end of the military, the former special ops people whose range of interventions as police officers may turn out to be uncomfortably like their interventions as soldiers. You can’t blame the Republicans entirely, either. The House sponsor was Rep. Dan Flynn who also serves as commander of Texas’s maritime forces, whatever those are, but the Senate sponsor was Democrat Leticia Van de Putte who represented San Antonio and its large military community. That the effect of the paramilitarization of DPS is already being felt is clear from the comments of the Legislative Budget Board analyst responsible for presenting the DPS budget to the House Appropriations Committee earlier this year. “The agency’s self-ranking of programs in several cases,” the LBB accountant told legislators, “did not clearly correlate with the centrality of the agency’s mission. For example the agency ranked counterterrorism and polygraph higher [in importance] than traffic enforcement.”
In a post-Paris and post-San Bernardino age it’s clear that even police forces will have a counterterrorism capability; NYPD has hundreds of officers assigned and is said even to post intelligence officers abroad. But the Department of Public Safety has never been lacking in SWAT or rapid response abilities. If Col. McCraw is de-emphasizing standard traffic enforcement, which still kills far more Texans than terrorism, maybe he needs to tell the public first. How that will be achieved is the most important consideration. There’s no wiretapping available to him, at least not yet. To use a polygraph, an old and often unreliable technology, the suspect has to be in custody first. The only way the Department has to achieve its new self-selected mission is by traffic stops, which are already showing bias. Hispanics being categorized as whites may soon be supplemented by Muslims being categorized as Hispanics. The profiling may get worse, in other words, not better. Whatever the DPS plan, one thing is certain, we need to get McCraw’s signature on the page, describing exactly what the Department is doing, because even in an age of terror there's no substitute for accountability.