Capitol Offense

On April 12, the Observer posted “The Governor’s Database” on the Web. The story detailed how Gov. Rick Perry, through his Office of Homeland Security, is compiling a massive database on Texans. A little more than an hour later, Laredo Democratic Rep. Richard Raymond approached the back microphone of the House chamber for a parliamentary inquiry:

“Is the chair aware of the new information that has just been brought forth that the governor apparently has an extensive database of thousands of Texans with personal information in his office that he is compiling?”

“We are not aware of that Mr. Raymond,” Speaker Tom Craddick replied.

Raymond asked Craddick if he would be recognized the following morning for permission to introduce legislation that would “immediately remove this database from the governor’s office.” The next day Raymond filed House Bill 4108, relating “to the operation of the Texas Data Exchange (TDEx) or any other similar comprehensive intelligence database.” The bill moves TDEx to the Department of Public Safety, giving DPS sole authority to compile intelligence on Texans, and forbids the governor from contracting with private entities to create similar databases.

Raymond’s inquiry began weeks of news stories, committee hearings, and legislation, all trying to come to grips with the governor’s unprecedented power grab. Since publication of our story, more facts about TDEx and the governor’s designs for Homeland Security have dribbled out. Many questions remain. As of this writing, it is unclear whether the governor will emerge from the 80th Legislature with expansive new powers under the rubric of Homeland Security legislation.

The day after the story appeared, the House State Affairs Committee considered the governor’s homeland security legislation, House Bill 13, carried by the committee chair, Dumas Republican David Swinford. Legislators, quoting directly from the Observer, peppered DPS officials and state Homeland Security Director Steve McCraw with questions about TDEx. McCraw’s responses called into question his truthfulness and credibility.

DPS Director Col. Thomas Davis said responsibility for the database belonged to McCraw and the governor’s office, and claimed to have little knowledge of its contents. That set the stage for McCraw. Houston Democratic Rep. Rick Noriega, who is also a lieutenant colonel in the Army National Guard, asked McCraw under what authority he designated the state’s Department of Information Technology as a criminal justice agency so it could receive federal funds, as the Observer reported. McCraw replied: “Frankly, I shouldn’t be a criminal justice agency myself.”

Federal money for intelligence databases comes with requirements that they be overseen by a criminal justice agency. The governor’s office of Homeland Security is not a criminal justice agency in the eyes of DPS or the FBI. More importantly, neither the office of Homeland Security nor its director exists in statute. Perry and McCraw have created TDEx and all their Homeland Security activities out of legislative authorization for a strategic plan.

McCraw downplayed concerns that the TDEx database, which contains information on millions of Texans, is housed in Kentucky, even though the original plan was to keep it in Texas. “If we meet [federal standards], it doesn’t matter where the database is,” McCraw said.

During the hearing, Raymond asked McCraw if there was information on any legislators in the database. McCraw said he didn’t know but could find out-apparently missing the irony that this is exactly what those who disagree with the governor fear his staff will do.

At one point, Noriega turned his attention to a precursor of TDEx, the ill-fated Northrop Grumman database that was launched after Hurricane Katrina to track a massive influx of Louisiana criminals that never materialized. Documents obtained by the Observer indicate that McCraw was the driving force behind the database. While it never functioned, McCraw managed to wheedle sensitive criminal data out of the DPS for the project.

“Northrop Grumman was never in my bailiwick,” McCraw claimed. “It was always in the DPS criminal division.” He did admit, though, “I pushed it and pushed it hard.”

McCraw acknowledged security violations during the course of the project, but he insisted that once it was shut down, the sensitive data were destroyed. McCraw promised to provide Noriega proof to that effect.

Kent Mawyer, chief of DPS’ criminal law enforcement division, followed. McCraw, Mawyer, and current DPS Assistant Director David McEathron have a long history together. All three graduated from the DPS service training school in 1977. While Mawyer and McEathron scaled the hierarchy at DPS, McCraw, an El Paso native, left the agency in 1983 to join the FBI as a special agent. In 20 years he rose to the rank of deputy assistant director of intelligence. According to at least one Senate chief of staff, there is speculation that Perry’s ambition is to replace Col. Davis with McCraw.

Mawyer acknowledged that DPS had given Northrop Grumman Corp. sensitive criminal information and that to his knowledge, it had not been destroyed. The mystery of what happened to the information, which includes open case files and possibly polygraph data in violation of state law, only thickened when McCraw sent Noriega a letter on April 18 confirming the data had not been destroyed, but was sitting on a secure server in the state database. The letter raises a number of questions, including: What types of data were included, has it been copied, who had access to it, and why did McCraw delay its destruction?

It took three revisions, but Swinford finally arrived at a bill he thought could pass. It moves TDEx to the Texas Rangers. That’s an odd choice. The division at DPS most adept at handling databases is Criminal Law Enforcement. Asked why the Rangers, Swinford had a quip prepared: “I believe in God and the Texas Rangers, and God wasn’t available.”

The bill leaves the governor’s office in charge of project management and funding for the database. “This means that the governor’s state Office of Homeland Security continues to have access to and control over the administration of TDEx,” notes Houston Democratic Rep. Jessica Farrar, who voted against the bill in the State Affairs Committee. The bill also creates another layer of bureaucracy, a Border Security Council, to oversee and disburse homeland security funds. The council will consist of the state Office of Homeland Security, the public safety director of DPS, and the executive director of the Texas Border Sheriff’s Coalition. The political offices will thus outnumber the strictly law enforcement representation. Twelve border police chiefs have written a letter complaining that they have no say in this new council, though most of the crime and drug activity on the border occurs in their jurisdictions. There is also the glaring lack of oversight noted by Farrar.

“[The] same entities receiving the funds for border security are responsible for monitoring and auditing themselves. This is an obvious conflict of interest, and it does not compensate for the fact that a political office will have control over where the money goes and how it is used,” Farrar said.

To make HB 13 more palatable to Republican members, Swinford included language that would force municipalities to enforce federal immigration laws. That provision received the most attention from the mainstream media, but the majority of the press corps missed the most important part of the legislation. At the moment, Perry’s Homeland Security director is exercising power he does not have under the law. Swinford’s bill gives the governor’s Office of Homeland Security a legal blessing and allows it to behave like a cop by formally designating it as an operational law enforcement agency.

HB 13 was scheduled for a full House vote on April 30. It remains to be seen how far it will travel through the Legislature in its present form.