Fusion Centers: A Reality Check

(Compiler's note: Must read)

by Phil Leggiere

DHS civil liberties officer dispels negative myths but acknowledges real privacy challenges of fusion centers

Last month DHS secretary Napolitano praised fusion centers, the state and major city facilities that enable federal, state, local, tribal and territorial governments and the owners and operators of critical infrastructure to share information and intelligence, calling them a front line area of law enforcement and a lynchpin of efforts to improve intelligence sharing.

The Fusion Center initiative, which has inspired several dozen state and local centers nationwide over the past few years, has nonetheless been a civil liberties lightning rod and, by implication political hot potato.

Revelations late last year that Maryland State Police had entered the names and personal information of peace activists and anti-war protesters into state and federal databases as potential terrorists have raised the specter of rampant domestic spying.

As covered in depth by HSToday.us, the exposure last month of a February 2009 Missouri Information Analysis Center (MIAC) report on the militia movement which critics said listed support for third-party candidates like Ron Paul and Bob Barr as potential signs of “extremist” tendencies, has also sparked widespread outcry about unwarranted and inappropriate federal government monitoring. Facing a political firestorm Jay Nixon (D-Mo.), governor of Missouri, last week formally retracted the report.

On Wednesday of this week, in testimony before the House Committee on Homeland Security Subcommittee on Intelligence, Information Sharing and Terrorism Risk Assessment, Acting DHS Deputy Officer for Programs and Compliance David D. Gersten, Office for Civil Rights and Civil Liberties, acknowledged and addressed some of the challenges faced by fusion centers, while at the same time dispelling some of the myths he said were being unfairly promulgated.

One current myth, Gerstein explained, was that the armed forces are prominent players in the fusion centers. While some armed forces service members participate in a handful of fusion centers, he said, “the presence is nominal, not pervasive, and their role is to provide support to civilian law enforcement and other non-Federal agencies with homeland security responsibilities, not to lead, direct or participate in it.”

Another myth, according to Gerstein, involves inappropriate sharing of information with the private sector. Some fusion centers, he explained, have leveraged “the expertise of local sector associations or coalitions in identifying critical infrastructure and how to secure it.”

These activities, he maintained, “are squarely within DHS’ mission and the mission of State and local law enforcement.”

“Fusion centers,” Gerstein said, “share information when it relates to protection of critical infrastructure, or upon learning of a threat to a particular company or business. While this potentially poses some concerns, our Office has not seen civil liberties problems arising out of the relationship between fusion centers and the private sector.”

Although fusion centers in general could invoke civil liberties issues, Gerstein said, “the reality has not borne out the theories that have been advanced by some concerning fusion centers’ actual activities.” In almost all cases, he added, “fusion center activity involves exactly what the 9/11 Commission recommended – Federal, State, local and tribal personnel sitting elbow-to-elbow, sharing information and connecting the dots to ensure homeland security and public safety.”

Myths aside, Gerstein acknowledged continued concern that fusion centers face a number of challenges that could impact civil rights and liberties.

The primary, still relevant concern, he said, was lack of consistency in mission.

“Fusion centers are comprised of representatives of multiple Federal, State, local and tribal governments, and therefore lack single, one-size-fits-all structures or identical chains-of-command,” Gerstein said. “Instead they are more like task forces, formed under one State or local agency’s legal authority, but comprised of representatives of many agencies. They are typically led by a State Police or State homeland security equivalent, or possibly under the management of the local Anti-Terrorism Advisory Council established by the United States Attorneys."

Gerstein said "collaborative agreements then are used to integrate partners who work within the fusion center. With few exceptions, Memoranda of Agreement or Understanding do not exist, though many are being negotiated between states and the Department of Homeland Security. These MOUs are needed to govern the roles and responsibilities of deployed DHS analysts in fusion centers, and their absence could lead to a lack of clarity of institutional roles within fusion centers.”

Oversight of the fusion centers also poses a challenge, Gerstein said.

“Because fusion centers are run by the States,” Gerstein explained, “direct oversight by the Federal government presents real federalism issues. While some fusion centers are closely overseen by State government offices, such as the State’s attorney’s office, the precise extent of close supervision by State, local and Tribal governments at each fusion center is not always clear due to varying State government structures.”

Gerstein expressed optimism, however, that at the Federal level DHS could establish certain expectations through Federal grant funding and guidance documents.

In particular he cited the Baseline Capabilities document released in September 2008.

“ In partnership with the fusion centers,” he said, “ DHS and its Federal partners have established expectations and guidelines on fusion center operations through the Fusion Center Guidelines and the Baseline Capabilities for State and Major Urban Area Fusion Centers.”

“The Guidelines are intended to be used to ensure that fusion centers are established and operated consistently, resulting in enhanced coordination efforts, strengthened partnerships, and improved crime-fighting and antiterrorism capabilities,” he added. “By achieving a baseline level of capability, fusion centers will have the necessary structures, processes, and tools in place to support the gathering, processing, analysis, and dissemination of terrorism, homeland security, and law enforcement information. Most fusion centers are in the process of achieving the capabilities, though it may take up to five years to achieve all of the capabilities.”

In regard to privacy impact assessment, cited some progress in providing a uniform training mechanism through the creation of the “Civil Liberties Institute”, a program that provides high quality training on issues at the intersection of homeland security and civil rights and civil liberties.

Through a partnership with the DHS Privacy Office and the DHS I&A State and Local Program Office 34 analysts currently deployed to the fusion centers are undergoing civil liberties training, Gerstein said. In addition DHS in collaboration with the Department of Justice ( DOJ) Office of Justice Programs has launched what Gerstein referred to as a “multifaceted privacy and civil liberties training program to support the more than 70 fusion centers around the country.”

Alluding to the Maryland surveillance incident involving collection of data on anti-war protest groups, Gerstein said that, “ One specific area that has been much in the media involves the difficulty in sharing information and providing threat assessments where protected activities, such as First Amendment free speech and assembly, are involved. Security personnel at all levels of government often struggle with this problem.”

For example, Gerstein said, “ if a demonstration is going to occur at a Federal facility, those charged with securing the facility would be negligent if they failed to ensure the safety of the facility and those within. Yet “right-sizing” security measures would be impossible without knowing the nature of the protest, and whether it is likely to cause security or operational problems. This necessarily requires at least a limited inquiry into the nature of a group planning a protest, and whether it espouses violence, civil disobedience, or other potentially disruptive tactics.”

“ At the same time,” he insisted, “ we must be very careful to ensure that the Government is not infringing or chilling an individuals’ right to speak freely and to protest. Intelligence personnel at the Federal level are not authorized to collect information regarding US Persons solely for the purpose of monitoring activities protected by the US Constitution, such as the First Amendment protected freedoms of religion, speech, press, and peaceful assembly and protest. If information has some connection to constitutionally protected activities, it may be collected only where such collection is incidental to the authorized purpose. Procedures are in place that require intelligence personnel to consult with counsel or I&A’s Intelligence Oversight Officer when any initiative may impact constitutionally protected activities.”

An ongoing problem, Gerstein acknowledged, was how to apply these clear-cut distinctions on a local level.

At the State level, he said, “ policies relating to these topics are often less clear and uniform. The question of how State, local and Tribal governments handle these issues is often decided by State, local or tribal agencies other than the fusion centers. The well-publicized struggles with this problem, particularly at the State level, demonstrate a need for continued policy development and training.”

More broadly, Gerstein observed, especially on the state level, “there is still a significant challenge in determining whether and to what extent it is appropriate for fusion centers to use open source information that involves First Amendment-protected activities. If the collection, retention and use of information - even publicly available - involves protected speech, assembly or other activities, it could be viewed as unlawful monitoring by government. As we have seen in recent months, the collection of open source information about protected activities may result in scandal when government is perceived to be keeping tabs on protest groups for political purposes.”

Gerstein concluded that the major civil liberties challenge for fusion centers going forward was to apply strong unified federal frameworks already in place within a context of diverse state laws. Addressing this challenge, he added, would be critical to the long-term success not only of the fusion center concept, but to the “new federalism” in homeland security policy and operations advocated by President Obama and Secretary Napolitano.