Privacy SOS

It’s time to pull the plug on fusion centers!

For those of us at the ACLU of Massachusetts who have been paying close attention to fusion centers ever since Governor Mitt Romney unveiled the Commonwealth Fusion Center in May 2005, there are two major surprises in the 100-page US Senate report, Federal Support for and Involvement in State and Local Fusion Centers, that was released yesterday.

We are not surprised by the report’s revelations of mission creep, shoddy work, funding boondoggles, civil liberties violations, lack of any kind of meaningful oversight and accountability, and the failure of fusion centers to uncover and disrupt a single terrorist plot – all of which confirm with what we had long been predicting.

But the level of Department of Homeland Security (DHS) dysfunction portrayed in the report is quite breathtaking. And given the sorry landscape surveyed by Sen. Carl Levin, Sen. Tom Coburn and other members of the bipartisan Permanent Subcommittee on Investigations, so is the extremely limited nature of the report’s recommendations, as we explain below.

What’s wrong with fusion centers? It seems clear from this report that they never should have been established in the first place.

When 22 federal agencies were folded into the Department of Homeland Security a decade ago, the Mother of All Bureaucracies was born. With 240,000 employees, its “founding principle“ is to “Prevent Terrorism and Enhance Security.”

How? Well, they brought us the mind-numbing mantra “If you see something, say something.”  They brought us racial profiling and naked body scanners at airports (with former Secretary of Homeland Security Michael Chertoff reaping a hefty financial reward process). They brought us a deeply flawed immigration dragnet misleadingly called “Secure Communities.”

And they brought us fusion centers, which the DHS calls “one of the centerpieces of our counterterrorism strategy.”

Fusion centers (which may number 68 or possibly 77 – the DHS is not sure) were established to “fuse” and analyze information from a wide variety of sources and databases, and facilitate terrorism-related information sharing between local and state agencies and the federal government.

In its effort to carve a niche in the domestic battle against terrorism, the DHS did not present these centers as spy hubs: we had the Department of Justice’s FBI for that, in addition to 16 intelligence agencies.

Instead, they were all about breaking down the “stovepipes” called for by the 9/11 Commission in order to “connect the dots.” Their role was to enlist local, state and federal law enforcement as well as private entities as information gatherers. Fusion center staff would collect, analyze and widely disseminate that information in an effort prevent the next terrorist attack.

But the problem was there was simply not enough terrorism-related information to go around and actual terrorist plots (that were not being engineered by FBI informants) were very thin on the ground.

So very soon most fusion centers changed the focus of their data collection from fighting terrorism to a broad “all crimes, all hazards” mission. And now most use federal counter-terrorism funds to collect, store and share data that has little or no relation to terrorism and in many cases, no relation to actual crimes.

So what do they do? After investigating the performance of fusion centers over the period April 1, 2009 to April 30, 2010, the Senate Subcommittee, which examined 80,000 pages of documents and interviewed several dozen people, concluded that some centers “produced irrelevant, useless or inappropriate intelligence reporting” for the DHS – generally to do with drugs and trafficking – and “many produced no intelligence reporting whatsoever.”

A report from the Southern Nevada Counterterrorism Center about violent incidents in schools and a report that an Afghan-born former Army translator had been involved as a passenger in a car accident fell into that category. One official claimed that “you had a lot of data clogging the system with no value.”

In the process, not a single terrorist threat was uncovered.

Nearly a third of the “Homeland Intelligence Reports” (HIRs) sent to the DHS were “cancelled” instead of being disseminated for use by the law enforcement community because they contained useless information (“a bunch of crap” in the words of one DHS official) or information which was “potentially illegal” because it violated the Privacy Act and civil liberties guidelines belatedly established by the DHS

According to its own guidelines, the DHS was not supposed to retain reports concerning purely First Amendment activity. But the Subcommittee found such reports had been retained for a year or more for, the DHS claimed, “administrative purposes such as audit and oversight.” However, as the Subcommittee points out, the Department had no policy or practice of auditing such reports.

Examples included a report of a US citizen giving a lecture at a mosque with an unsubstantiated allegation that he might be “recruiting for the sake of foreign terrorist organizations” and a report on a book list compiled by a Muslim Community Group – “Ten Book Recommendations for Every Muslim.” Four of the authors were identified as individuals in the National Counterterrorism Center’s giant Terrorist Identities Datamart Environment (TIDE) database, which contained 550,000 identities by 2009.

It seems that being in the TIDE database is not necessarily a red flag for DHS officials. “While reporting information on an individual who is listed in the TIDE database sounds significant, the Subcommittee found that DHS officials tended to be skeptical about the value of such reporting, because of concerns about the quality of data contained in TIDE.”

When reports were found to have “intelligence value,” it took an average of 104 days to publish and disseminate them. The Subcommittee contrasted the months taken by the DHS to process “background information” related to a TIDE match, with the day it would take the FBI to do the same thing.

So who was compiling these fusion center Human Intelligence Reports that the DHS as late as May 2012 still claimed “play a vital role in improving the Nation’s ability to safeguard the Homeland”?

We don’t know their names because, according to the DHS, this is “a national security secret, because terrorists or criminals could seek retribution for being subjects of their reporting.” But beginning in 2006, it sent its own Intelligence Officers (IOs) to analyze material at fusion centers, and in 2008, it sent Reports Officers (ROs) to all but 11 fusion centers.

They were well-paid ($80,000-$100,000 plus large bonuses) but poorly trained: during a five-day training session, they spent three hours learning how to write a Human Intelligence Report and two hours on civil liberties issues.

Remarkably, given the nature of their role in dealing with supposed “national security secrets,” DHS personnel would write their reports as Microsoft documents and (before October 2011) send them to headquarters via unclassified emails. The quality of their work was irrelevant. The four unnamed Reports Officers who generated 108 of the cancelled reports examined by the Subcommittee were never sanctioned. Indeed, the performance review of one producer of shoddy goods claimed he “achieved excellence” and should receive a promotion. As a result, “substandard reporting” was “systemic.”

Even more remarkably, the funds kept flowing no matter what was produced. And to this day, the Department of Homeland Security has made no attempt to keep track of who is getting how much and what they are using DHS funds for. FEMA – the DHS agency that distributes the funds – has to do a keyword search using terms like “information sharing” and “data collection” when it tries to find out how much of taxpayers’ money has gone from the DHS to fusion centers. Here’s the ball park figure – somewhere between $289 million and $1.4 billion, with four times that amount (whatever it is) contributed by the states.

In 2010, the DHS told auditors from the Government Accountability Office (GAO) that it planned to “assess the costs of the fusion center network.” It has never done so.

It gets worse. The DHS is not sure how many fusion centers there are. In 2010, it claimed there were 72, but three were “not functional at a level to receive a visit” and one was “not operational at all.”

The DHS claims there is a Wyoming Fusion Center, but the state says it doesn’t have one, doesn’t want one, and hasn’t accepted funds for one. For three years, the DHS sent $11 million to the Delaware Valley Intelligence Center in Philadelphia, and it still doesn’t exist. FEMA’s monitoring visits appear as irrelevant as the quality of work being produced by the fusion centers.

Many of the fusion centers that do exist no longer even allude to “terrorism” in their mission statements. They are all about fighting crime, and their “success stories” are more likely to concern automobile theft and drug rings than anything to do with “national security.” As the Northern California Regional Intelligence Center put it, they need funds to fight gunplay on streets: “That’s terror right there in our community. And that kind of terror is one that’s experienced in big cities and small towns across the state.”

If police departments can invoke fusion centers when they apply to the DHS for grants that they actually spend on license plate recognition systems, electronic records management, cell phone tracking devices, data mining software and “handheld citation issuance units and accessories,” then why not do it? The DC Metro Police got equipment worth $725,000 that way.

At a time when the nation’s schools and infrastructure could have urgently used an infusion of taxpayers’ dollars, funds intended for the Arizona Counter Terrorism Information Center were spent by the Arizona Department of Public Safety on two Chevrolet Tahoe sports utility vehicles.

The San Diego fusion center, meanwhile, seemed to be staffed with wannabe spies with a voracious appetite for electronic equipment. It used its DHS funds on “shirt-button” and “pinhole” cameras, and got 116 computers and related gadgets for its 80 full-time employees. The 55 flat screen TV’s it purchased for “training purposes” for $75,000 were used instead for “open-source monitoring” (otherwise known as “watching the news.”)

But surely the fusion center network has some successes it can point to? Secretary of Homeland Security Janet Napolitano claims there are four instances where fusion centers helped disrupt terrorist plots. The Subcommittee looked at each of them and concluded they played no useful role – and in some instances, “may have hindered, not aided, some federal counterterrorism efforts.”

Not a single fusion center, the report states, has “developed all of the basic necessary capabilities to participate in federal counterterrorism intelligence efforts.” They produce “nothing of value,” are needlessly “duplicative” of the efforts of the FBI’s Joint Terrorism Task Forces, and get a failing grade.

What the DHS fusion centers have achieved is not spelled out in the report, but alluded to in a startling passage.

In 2010 an assessment of fusion centers was carried out by the DHS Office of Intelligence and Analysis and the Program Manager of the Information Sharing Environment (ISE).  The DHS did not willingly share these findings with the Senate Subcommittee. Indeed, they originally said they did not exist.

How did the Members of Congress finally obtain the 2010 assessment? They did so after the DHS obtained the “consent” of a “private, non-governmental organization, the National Fusion Center Association (NFCA), which supposedly had the authority to represent the 68 centers subject to review.” This previously unknown, private agency wrote a letter to the Subcommittee saying it had “authorized” the DHS to share the assessment with Congress.

Led by a former DHS grants official who lobbies for increased federal funding for fusion centers, the NFCA receives funds from Microsoft, ESRI, Thomson-Reuters, Mutualink and other firms that want business with fusion centers.

The fusion center network, in short, has become a funding conduit for the national security industrial complex.

Did the Subcommittee call for the plug to be pulled on Congressional funding for the fusion centers, since they had so spectacularly failed at their mission? Did it suggest that the time had come for a cost benefit analysis of the DHS itself?

It did not. Having compiled such a scathing report, the Subcommittee served up some astonishingly mild recommendations.

It asks Congress to “clarify the purpose of providing federal monetary and other support for DHS’ fusion center efforts.” It says the DHS should “improve” its training of intelligence reporters, and “reform” its intelligence reporting efforts.

It calls for the DHS to “track how much money it gives to each fusion center” and to link funding to “value and performance.” It requests that the DHS “timely disclose to Congress significant problems within its operations.”

And finally, it recommends that the “DHS should align its practices and guidelines to protect civil liberties, so they adhere to the Constitution, federal law, and its statutory mission.”

The report has rattled Congress, and the Obama Administration. The DHS has denounced it as “outmoded,” even though some of its references to failed DHS efforts at reform date from 2012. For instance, it states that by July 2012, recommendations made a year and a half earlier on the need for the DHS to improve HIR reporting, training, standard operating procedures and the audit process had still not been carried out.

But given the reluctance of the Senate’s Permanent Subcommittee on Investigations to propose wielding the appropriations weapon, we are likely to be stuck with fusion centers – and the DHS – for many years to come.

© 2021 ACLU of Massachusetts.