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Senate Homeland Security Committee Misses the Mark with Statement on DHS “Fusion Center” Program

Kara Dansky,
Former Senior Counsel,
ACLU Center for Justice
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October 10, 2012

Last week, the Senate Homeland Security Committee’s Subcommittee on Investigations issued a report criticizing the Department of Homeland Security for its failure to ensure proper oversight over state and local “fusion centers.” Shortly thereafter, the committee issued a statement denouncing the report and lauding fusion centers as playing a “significant role in many recent terrorism cases.”

Fusion Centers are state-run collaborations of law enforcement and other public agencies that collect information, including about private citizens, which they then share with each other, with the federal government, and often with the private sector. According to DHS’s website, fusion centers are owned and operated by state and local entities with support from federal partners in the form of deployed personnel, training, technical assistance, exercise support, security clearances, connectivity to federal systems, technology, and grant funding. Yet DHS is unable to provide a clear picture of exactly how much support it provides to any individual fusion center. They operate largely outside of public view (the National Fusion Center Association’s website contains a list of fusion centers that provides email addresses and phone numbers, but no street addresses or websites) and without any meaningful federal oversight.

The committee’s defense of fusion centers misses the mark and ignores several key findings of the subcommittee’s report, including that DHS personnel authored intelligence products that violated the civil rights and civil liberties of American citizens, withheld information about the fusion center program from Congress, conducted no meaningful oversight over fusion center activities, failed to account for an unknown amount of taxpayer funds it spent on the fusion center program, and could point to no single instance of a fusion center preventing a terrorist attack.

There is nothing wrong with law enforcement agencies using lawful means to collect relevant information in the course of conducting legitimate law enforcement activities. The difference with fusion centers is that they don’t function primarily as law enforcement agencies; rather, their purpose is to gather and analyze intelligence. It is this intelligence function that, without proper oversight, can cause problems.

For example, a fusion center could issue an intelligence report about a groundless threat posed by a particular group, ideology, or religion without having any legitimate reason for doing so or proof to back up the assertion. Such a report would infringe on the First Amendment rights to free speech, association, and religion of innocent Americans by unfairly profiling certain groups and subjecting members of those groups to unfounded suspicion. According to the subcommittee’s report, fusion centers submitted several such reports to DHS for review (many of which were cancelled) and there is currently no way to know how many such reports fusion centers may have distributed locally or regionally. Or, a fusion center could share erroneous information about an individual to a local police department that resulted in that person being illegally searched, which could be a violation of the Fourth Amendment. Without any meaningful oversight, there is no way to know whether this is occurring.

In fact, when a former DHS official was asked in connection with the subcommittee’s investigation to explain the department’s support to fusion centers, he stated that DHS was trying to use fusion centers to reach out to firefighters as potential intelligence sources because, he said, “one of the few people who can enter your home without a warrant is a firefighter.”

DHS does provide some leadership with regard to fusion center activities. As described in the subcommittee report, DHS provides privacy and civil liberties training to DHS personnel deployed to fusion centers and to some fusion center staff (although two hours is hardly enough time to train law enforcement officers in the nuances of how to safeguard civil rights and civil liberties when conducting intelligence activities). Also, as mentioned above, DHS provides technical advice to fusion centers. But training and technical advice do not constitute oversight.

This near total lack of oversight is one of the biggest problems with DHS support to fusion centers, as highlighted in the report. DHS supports fusion centers through the Homeland Security Grant Program, which is administered by the Federal Emergency Management Agency (FEMA). In fiscal year 2012, DHS allocated more than $780 million to states through this grant program, some portion of which went to fusion centers (DHS does not know how much exactly, because it leaves that determination completely up to the states). But FEMA has no expertise in safeguarding civil liberties, and conducts almost no civil liberties oversight.

The subcommittee concluded its report by recommending that DHS improve its training of intelligence reporters, track how much money it gives to each fusion center, link fusion center funding to value and performance, and align its practices and guidelines so that they adhere to the Constitution. By denouncing this report, the Committee misses an opportunity to ensure the fusion center program safeguards the rights and liberties of all Americans.

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