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    What the Federal Government Is Saying About Fusion Centers and Civil Liberties

    We’ve been talking a lot about fusion centers, state and local programs to gather domestic intelligence, and the privacy and civil liberty problems associated with them. One of the biggest problems is the lack of oversight of the centers. There’s little information about who is in charge of what and about what exactly is happening in these fusion centers. 

    There was a hearing yesterday about these privacy and civil liberty issues, and the Department of Homeland Security was there to discuss the future of these programs. Acting Deputy Officer for Programs and Compliance David D. Gersten, Office for Civil Rights and Civil Liberties, testified before the House Committee on Homeland Security Subcommittee on Intelligence, Information Sharing and Terrorism Risk Assessment at the hearing, “The Future of Fusion Centers: Potential Promise and Dangers.” (You can read the written testimony of Gersten and other witnesses at the committee’s page on the hearing.)

    Gersten predictably supported fusion centers stating, “[L]ike some other law enforcement activities, fusion centers in general could invoke civil liberties issues, but the reality has not borne out the theories that have been advanced by some concerning fusion centers’ actual activities.” However, he also agreed with several criticisms that have been made by privacy and civil liberty advocates. 

    Gersten noted the problems with oversight:

    Oversight of the fusion centers also poses a challenge. Because fusion centers are run by the States, 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.

    Note also that Gersten points toward the states when discussing the civil liberties scandals that have arisen from fusion center activities. (Recently, the Missouri Information Analysis Center published a report (1.7 MB pdf), “The Modern Militia Movement” that cautioned police to look for certain signs that individuals are part of the militia movement and to be wary of such people. The fusion center labeled as suspicious people who are supporters of third-party presidential candidates such as Ron Paul and Bob Barr, or anti-tax protesters. The scandal led to a denouncement of the report from the Missouri governor.)

    In his testimony, Gersten discussed “the difficulty in sharing information and providing threat assessments where protected activities, such as First Amendment free speech and assembly, are involved.” He noted the federal government has “procedures [that] 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.” He claimed, “These consultations have proven very helpful to the Department’s intelligence personnel in identifying and addressing potential concerns related to inappropriate or unauthorized collection and reporting.”

    However, Gersten then said, “At the State level, however, 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.”

    Earlier, Gersten had focused on the state and local authority over fusion centers, saying that fusion centers are “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.”

    Gersten’s testimony sounds a lot like DHS is saying, “Don’t look at us; the states are the ones in charge of fusion centers and the ones who are having problems with fusion center activities infringing on the constitutionally protected rights of American citizens.” 

    This testimony by Gersten comes on the heels of a speech by DHS Secretary Napolitano at the National Fusion Center Conference in Kansas City, Mo. She mentioned that DHS has “provided $327 million in direct funding to Fusion Centers,” and said, “I believe that Fusion Centers will be the centerpiece of state, local, federal intelligence-sharing for the future and that the Department of Homeland Security will be working and aiming its programs to underlie Fusion Centers.”

    Before fusion centers grow even more secretive and entrenched in their patterns of domestic surveillance, there must be much more open discussion of what exactly fusion centers do and whether their activities are constitutional. Besides investigating the substantial privacy and civil liberty problems associated with fusion centers we should also look at the hard numbers. Are these fusion centers effective and cost-effective in protecting national security? Or do they divert needed funding and manpower from more proven security programs? Why should we spend $327 million (and counting) on a domestic intelligence gathering system that we know so little about?

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