Senate Homeland Security Committee Changes Stance on DHS “Fusion Center” Program

http://www.aclu.org/blog/technology-and-liberty-criminal-law-reform-national-security-free-speech/senate-homeland

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.”