The Senate debated the “Improving America’s Security by Implementing Unfinished Recommendations of the 9/11 Commission Act of 2007” last week. A similarly titled measure was the top priority of House Speaker Pelosi, who pushed it through as part of the House’s vaunted “First 100 Hours” agenda. Now would be a good time to consider carefully the proposed plans for the Department of Homeland Security to fund so-called “fusion centers.”
Since the 9/11 attack, state and local governments have established 46 centers to “fuse” information from criminal investigations, media reports, and other sources to search for possible terrorist threats. As a federal report puts it, “States and localities have created and invested in fusion centers and charged those centers with collecting, analyzing, and sharing terrorism information.” Having several state and local centers - rather than a single centralized bureaucracy - collecting, analyzing, and acting upon “threat data” may help to overcome what Friedrich Hayek identified as the “knowledge problem” where specialized, localized knowledge is lost the further up the chain of command decisions are made.
“Fusion centers” have to date largely been the result of a bottom-up effort by state and local governments. But an implementation plan for a federal “Information Sharing Environment” (ISE) issued by the President last November envisions an integrated network of fusion centers working under Homeland Security and the Directorate of National Intelligence.
The value of this is uncertain. “Information-sharing” has been the post-9/11 mantra - but sharing information without concentrating on which data is truly important will not make Americans safer. Focus is more important than “sharing.” And at some point mass information collection and data “fusion” becomes a domestic intelligence operation.
The 9/11 Commission held a hearing in 2004 to consider the question of whether the United States should create a domestic intelligence agency like Britain’s MI-5. Both the CIA and FBI directors denounced the creation of such a new agency. Robert Mueller called it a “grave mistake.” But a federally-funded system of fusion centers would be a large step in that dangerous direction.
Title VII of the House 9/11 bill sets up a “Fusion and Law Enforcement Education and Teaming (FLEET) Grant Program” to fund fusion centers. The proposed FLEET program would centralize these distributed security offices, making the regional centers subservient to federal priorities rather than driven by local concerns. FLEET would throw more federal money at, and detail more federal officers to, these operations - but that help would also come with strings attached.
As established in the House bill, the FLEET grants would be conditional upon a number of requirements set by the Homeland Security Secretary such as eligibility requirements for law enforcement personnel detailed to the centers and hiring of personnel “representative of a broad cross-section of local and tribal law enforcement agencies and departments.” The Homeland Security Secretary would have “general regulatory authority” to script, implement, and interpret the FLEET program and could revoke or suspend funding to a local fusion center at any time upon a determination that the fusion center “is not in substantial compliance.”
The Senate bill would create a more broad-based grant program which would give state governments money to fund fusion centers (as well as other activities). The director of the Federal Emergency Management Agency would have the ability to pull funds for failure to “substantially comply.” As in the House bill, these provisions would make the fusion centers dependent on the priorities of the Department of Homeland Security rather than the priorities of state and local law enforcement.
Placing fusion centers under the de facto direction of the Homeland Security Department would portend the creation of a new domestic intelligence agency along the lines of MI-5. The Senate bill would explicitly blend elements of criminal and terrorism intelligence, raising the prospect of state and local undercover agents working under the direction of DHS fusion-center liaisons. These operations would be outside the scope of traditional Justice Department guidelines on infiltrating domestic groups, leading experts such ACLU’s Tim Sparapani to worry, “we’re setting up essentially a domestic intelligence agency.” Without a guarantee that such written guidelines could be enforced, the slippery slope to spying on political dissidents - as the FBI’s COINTELPRO did before such guidelines - is inevitable.
The fusion center program also would seem to require massive amounts of one-way “data-sharing” from the state and local law-enforcement agencies to Homeland Security and the DNI, and not in the other direction. Sen. Dianne Feinstein (D-CA) reported at a recent Congressional hearing that fusion centers in California were having big trouble getting intelligence from the feds: “DHS has resisted allowing the state and local [sic] to get top security clearances for what the state believes are territorial reasons… Intelligence that the [fusion center] director knows exists doesn’t get sent to him. He’s spent a good deal of time trying to get someone to pass him intel instead of having it pushed away. DHS is generally overly protective and resistant to working cooperatively from what the director believes is a fear of becoming irrelevant.”
But even as we learn that the feds aren’t “sharing” much information with their state and local partners, we get an idea of the kind of information the locals are expected to share with the feds. Governor Mitt Romney set up a fusion center while serving in Massachusetts and his state’s Homeland Security Strategy calls for operations centers for such agencies as MBTA, swelling with federal grants for surveillance cameras, to be linked to the fusion center. (Such a flood of visual data has not proven to be effective - after all, MI5 did not stop the 7/7 transit attacks in the world’s most surveilled city, London.)
According to the ACLU, the Mass. Fusion Center was allocated $477,352 in 2004-05 to convert paper records to electronic form. The Boston Globe reports that the Fusion Center analysts “pore over… field reports filed by street cops, state troopers and federal agents.” As every single fusion centers becomes more integrated into the federal Information Sharing Environment, sometimes sensitive data will pour into federal databases. In light of poor electronic security practices by the federal government, it is important to carefully balance the costs and benefits of transferring all of these local law-enforcement paper records into federal electronic databases. And for all its state’s leadership in information sharing, Boston recently shut down much of the city and exploded oversized LiteBrites placed around the city in a guerilla marketing campaign. This is not a model of terrorism intelligence in use.
The federal government already has a wide array of resources and agencies to analyze terror threats and decide how to act upon them. Further federal incursion into decentralized, state- and locality-based law-enforcement experience and expertise would be a mistake. If we need fusion centers at all - and it’s not clear that we do - they should rise or fall on the merits that state and local leaders find in them.