In”Fusion” of Power Locally

Intelligence Fusion Centers: A De-Centralized National Intelligence Agency
Thomas Cincotta
PublicEye.org
Winter 09/Spring 10 Edition

President George W. Bush signs the Homeland Security Appropriations Act of 2004 in October 2003, launching fusion center financing.

In a 2007 article for the FBI Law Enforcement Bulletin, Colonel Bart Johnson explained how state-level intelligence “fusion centers” collect data from a range of sources and connect “seemingly unrelated” incidents that could be precursors of terrorist activity. At the time, Colonel Johnson led the New York State (NYS) Intelligence Center in Albany, where officers from a range of federal, state and local police agencies as well as civilian analysts function as a “nerve center” for all calls into a statewide terrorism tip line. He explains how in July 2004, his fusion center received an anonymous call warning of a college senior leading the campus Muslim Student Association, who, the caller claimed, had expressed hatred for America and was only in the country to teach Islam.

While researching the case, a state trooper found a link between this student and a report of a traffic stop involving two Middle Eastern men, who claimed to be Israeli musicians looking for a nearby synagogue where they were to perform for a wedding. A license plate check of their vehicle linked the registrant to the same address as the university student. The intelligence analysts then forwarded this information to the FBI Joint Terrorism Task Force to investigate further.

We don’t know what happened next because Colonel Johnson ends his story there. But even with these sparse details, his story raises concerns about racial and ethnic profiling, violations of free speech, and the intrusive power of fusion centers. These concerns loom even larger now that former Colonel Bart Johnson oversees the entire nationwide network of 72 fusion centers as Principal Deputy Under Secretary for Intelligence and Analysis of the U.S. Department of Homeland Security (DHS).

Fusion centers constitute a new piece in a vastly more powerful police apparatus. They give the executive branch an incredible physical reach into state and local communities. [emphasis ours.  See how they use these to “Close the Deal” HERE]

Despite a chorus of official assurances that fusion centers focus solely on illegal acts, this incident shows how police forces can blur the distinctions between activists and terrorists, and between immigrants and violent extremists. Here, the NYS intelligence center not only prompted a State Police investigation into a university student, whose politically oriented speech and religious identity triggered suspicion, but also initiated an investigation by the FBI Joint Terrorism Task Force based on national origin, a traffic stop, and tenuous links to the original “suspect.” Even worse, it is likely that all these details reside somewhere in a government database, easily retrievable using names and other key words.

The New York and 71 other statewide intelligence bureaus scattered across the country vastly extend the breadth and penetration of government surveillance of our society. Now six years old, the structure of this network is becoming clearer despite the woefully inadequate public exposure of its activities. This network constitutes a nascent de facto national intelligence agency, whose decentralized structure diminishes transparency and accountability. Without effective oversight, a narrowly defined mission, and new legal structures, the capacity of fusion centers to undermine fundamental freedoms could grow unchecked.

A Locally Owned and Operated Intelligence Machine

The Department of Homeland Security’s network of fusion centers operate under the auspices of state police or even large local police forces, thus sidestepping the guidelines enacted under the Privacy Act of 1974 that limit information sharing by federal agencies. Yet fusion centers have a national command center feel, with mosaics of television monitors, and desks for all the police agents assigned to work together and enjoy face time — the county sheriff, local police officers, the FBI, National Guard (restricted by law to drug-related missions), state police, Department of Homeland Security, and the civilian intelligence analysts. The FBI field office may rent space to fusion centers, and even helps run the Los Angeles fusion center, but it rarely plays a visibly lead role. Still, all the analysts are tied into federal information-sharing networks.

Since Homeland Security launched the program in 2003, these centers have evolved largely independently of one another. At first glance, smaller, more diffuse centers might seem to pose a smaller threat to civil liberties than a KGB-like national force. In truth, however, this decentralized network may be more dangerous, because it obscures lines of authority, subverts Congressional oversight and privacy guidelines, and turns numerous state and local police into intelligence agents.

Around the world, the War on Terror has served as an “indispensable Trojan Horse [enabling] intensified surveillance for all sorts of purposes.” As early as 1978, the Public Eye reported on an effort to bring the U.S. intelligence bureaucracy under one Director of National Intelligence that unsurprisingly failed amidst fresh memories of COINTELPRO – the FBI’s spying and dirty tricks program targeting activists— and Richard Nixon’s enemies list. By the 2001 attacks, memories of the domestic spying controversies of the 1970s had dimmed and calls for a national intelligence agency reemerged. Congressional sponsors of legislation that created the Department of Homeland Security wanted a fully functional intelligence organization within DHS, but the Bush administration preferred to realign organizations already under the authority of the FBI director, director of Central Intelligence, and the new director of national intelligence. As a result, Congress did not initially give DHS itself the capacity to produce raw intelligence. But today fusion centers give DHS the capacity to produce, not just receive, intelligence.

Nurtured by more than $327 million in direct grant funding from 2004 through 2008, fusion centers won an additional $250 million in President Barack Obama’s stimulus plan to be spent by 2010 on upgrading, modifying, or constructing sites. DHS currently has 41 officers deployed at fusion centers and hopes to have an officer at every fusion center in the country by the end of 2010. By the end of 2008, governors, mayors, and police chiefs had established 72 operational centers within the United States and its territories, covering 49 states, District of Columbia, and Guam. Additionally, fusion centers in Idaho, Puerto Rico, and the U.S. Virgin Islands are in the final stages of development.

What is a fusion center?

Fusion centers gather, mine, and “fuse” data to help police fight crime and FBI agents stop terrorism. Data streams in from multiple sources, including intelligence groups, the federal government, other states, private databases, and open sources. Moreover, analysts scrutinize daily crime and 911 reports for patterns. Tips may come in to fusion center tip lines from citizens or police officers. Fusion centers also respond to requests for analysis from law enforcement agencies in the field, primarily investigators seeking to spot trends in areas like drug crime, gang activity, or theft.

If the fusion center generates or receives information determined to have a “potential nexus” to terrorism, the center sends it upstream to the “information sharing environment” for other agencies to review. Local police and FBI Joint Terrorism Task Forces, not the fusion centers, are responsible for field investigations; although some, such as the Massachusetts Commonwealth Fusion Center, possess an investigative capacity.

Fusion centers also aim to transform the culture of the intelligence community by forcing agents from diverse agencies to work with each other. The civilian analysts come from a variety of backgrounds, consisting primarily of retired law enforcement personnel, former military intelligence specialists, and veteran analysts from previous information sharing networks, such as the multi-jurisdictional High-Intensity Drug Trafficking Task Force.

While the leadership and composition of fusion centers vary state-by-state, all retain specialists in visually mapping data to discern patterns. The degree of private involvement in fusion centers is not known, but companies like Boeing have attended fusion center briefings and even sought high-level clearance. InfraGard, a partnership between the FBI and private sector, has a permanent desk at the Los Angeles Joint Regional Intelligence Center. The Illinois Infrastructure Security Alliance (ISA) seeks to link more than 70 companies to the Statewide Terrorism and Intelligence Center via the Homeland Security Information Network, a national database with information from fusion centers. Fusion centers also have formal information-sharing agreements with other states, nearby cities and towns, and federal agencies.

Most fusion centers are managed by the state police. In Massachusetts, the State Police commands the state fusion center, while the Boston Police Department operates its own center fewer than forty miles away, the Boston Regional Intelligence Center. In Florida, the state Department of Law Enforcement runs the fusion center, while the Miami Dade Police Department maintains an active intelligence unit in southern Florida. In jurisdictions where the state police perform largely traffic functions, a state homeland security bureau may operate the fusion center. In Los Angeles, the Joint Regional Intelligence Center is jointly led by the LA County Sheriff, LAPD, and FBI.

Some states house their centers with the FBI’s Joint Terrorism Task Force; others rent space from the FBI field office itself. The physical integration of these agencies – for example, Maryland State Police is headquartered in the same building as DHS – makes it more likely that information gathered in the course of political spying will be shared with other agencies and private partners.

Information Collection Force

Fusion centers facilitate the collection of massive amounts of information. DHS – itself comprised of 225,000 people in 22 separate agencies – uses fusion centers, information sharing, and agency integration as a “force multiplier” to tap into the potential of 718,000 state and local police in over 15,000 departments, plus local emergency responders, who could collect more data than 12,000 FBI agents. “There is never enough information when it comes to terrorism,” says Major Steven G. O’Donnell, deputy superintendent of the Rhode Island State Police. Unfortunately, the intelligence could be worthless and often is.

Fusion centers ostensibly complement the FBI’s Joint Terrorism Task Forces, which bring together local law enforcement with federal law enforcement components like Immigration and Customs Enforcement, Customs and Border Patrol, the Secret Service, and Transportation Security Administration. These two parallel systems for interagency coordination – one under DHS, the other under the Department of Justice – raise questions about redundancy and waste. At the same time, though, the information from fusion centers gives DHS leverage and access to other federal intelligence.

It is a universe marked by redundancy. Information currently flows from fusion centers into a national “information sharing environment” such as the Homeland Security Information Network (HSIN), Protected Critical Infrastructure Information (PCII) Program, and Homeland Secure Data Network (HSDN – for classified data), which all sit alongside the Department of Justice’s Regional Information Sharing System (RISS), the FBI’s Regional Data Exchange and eGuardian, the Naval Investigative Services’ Law Enforcement Information Exchange (LInX) and the Law Enforcement Intelligence Unit’s (LEIU) LEO network (LEIU is a private organization of public law enforcement officials, including chiefs of police).

Fusion Centers Fall Short

Fusion centers appear to be falling short on their original aim of detecting and preventing terrorist plots by analyzing data for patterns suggesting terrorism. In theory, fusion center analysts take information from local-level criminal activity and analyze it to determine whether any connection exists between seemingly typical low-level crime and terrorist activity.

Caroline Fredrickson, legislative director of the ACLU, notes that fusion centers are a direct institutional outgrowth of intelligence-led policing, targeting potential crime before it happens. This means a shift from investigating crimes that already occurred. John Pistole, Deputy Director of the FBI, invoked two oft-cited events that provide ideological justification for tracking crimes and individuals not usually associated with terrorist activity:

For instance, fusion centers are keeping tabs on criminal activity—everything from tax evasion to cigarette smuggling to robbery. On the surface, these may seem like relatively low-level crimes that only have a local impact.

But several years ago, we uncovered a cigarette-smuggling ring operating out of North Carolina. Members of the cell were transporting the cigarettes across state borders to sell them at a profit—and were using the profits to support Hezbollah in Lebanon.

And in August 2005, police in Torrance, California, arrested two men in a gas station robbery. When they searched the men’s apartment, they found documents listing the addresses of U.S. military recruiting stations and synagogues. They called the Joint Terrorism Task Force, and together we uncovered a terrorist cell, disrupted a terrorist plot, and possibly saved many lives.

We never know when something that seems typical may be connected to something treacherous.

In each of those instances, however, traditional police work, not fusion centers, established the links between unlawful acts and terrorism (see box on Torrance). In practice, fusion centers are using their data systems to find missing persons or solve traditional crime; they are reacting to events more than preventing crime. Their analysts respond to incoming requests, suspicious activity reports, and/or finished information/intelligence products, and rely on existing understanding of problem areas to pull out data and patterns.

Further, the logic of this network approach means that those who commit any infraction, as well as their innocent associates and family members, may be scrutinized for possible links to terrorists. According to a National Research Council study funded by DHS, “automated identification of terrorists through data mining (or any other known methodology) is neither feasible as an objective nor desirable as a goal of technology development efforts” because it inevitably conflicts with efforts to protect individual privacy. Continued funding for fusion centers as an antiterrorism tool should be premised on an empirical assessment of whether data analysis at the local level truly prevents terrorism. If this approach can only identify unsophisticated criminals and terrorists, an outcome that police seem to be accomplishing without fusion center support, fusion center practices and resources are not worth the risks to privacy and civil liberties.

Mission Creep

Although originally justified as an antiterrorism initiative to improve information sharing and collection at the local level, fusion centers rapidly drifted toward an “all-crimes, all-hazards” policy that is “flexible enough for use in all emergencies,” not just those specifically linked to terrorism. Mission creep is significant because 1) it undercuts the political justification for the network as a critical counterterrorism tool, and 2) it opens the door for surveillance and repression of protected free speech activity in order to “counter radicalization” or otherwise prevent “disorder” or nonviolent civil disobedience.

The vast majority of fusion centers now track major or organized crimes such as narcotics, violence and gangs, sexual offenses, or crimes that may be used to support terrorism efforts, or not. Rather than each department or squad having its own databases, fusion centers allow access to multiple databases and sources of intelligence; the drug squad in one community can share information with the anti-gang task force in another, picking up on patterns that may suggest an emerging threat as gangs set up to move into a new market or distribute new contraband. In addition, fusion centers assist with manhunts that cross jurisdictions, as when a baby was stolen in Tennessee and a serial killer went on a shooting spree in North Carolina.

The leaders of some fusion centers have admitted that they switched to an “all-hazards” approach so they could apply for a broader range of grants, and because there was far too little terrorism-related information to analyze. They were agencies in need of a mission. According to documents provided to the Massachusetts ACLU, in 2006 the Massachusetts fusion center analyzed copper theft for four outside partners, studied school violence at five schools, investigated calls for fire department service, conducted three studies for the gang working group, while also compiling reports on port security, transportation security, gang assessments, and prisoner radicalization. Counter-terrorism is not their exclusive, let alone primary, priority.

The lack of a narrowly defined mission poses unnecessary risks to civil liberties.

The lack of a narrowly defined mission poses unnecessary risks to civil liberties. One fusion center study postulated that “there is, more often than not, insufficient purely ‘terrorist’ activity to support a multi-jurisdictional, multi-governmental level fusion center that exclusively processes terrorist activity.” Consequently, there is a risk that analysts’ skills could atrophy as would their interest, from a lack of relevant work.

In the absence of purely terrorist activity, DHS’s emphasis on “ensuring that our communities are not places where violent extremism can take root” may invite fusion centers to identify local threats based on political rhetoric that is critical of government policies. Evidence suggests this is already happening. In February 2009, North Central Texas Fusion System issued a “Prevention Awareness Bulletin” calling on law enforcement to report the activities of Muslim civil rights organizations and antiwar protest groups. In March 2009, the Missouri State Highway Patrol was forced to halt the distribution of a report prepared by the Missouri Information Analysis Center that linked extremists in the modern militia movement to supporters of third-party presidential candidates such as Congressman Ron Paul of Texas and former Congressman Bob Barr of Iowa. The report also said that some militia members subscribe to anti-abortion beliefs or oppose illegal immigration – suggestions that created a public uproar among law-abiding groups concerned that they were being lumped in with violent, dangerous people.

The Virginia Fusion Center identified “subversive thought” as a marker for violent terrorism.

Furthermore, the Virginia Fusion Center’s 2009 Threat Assessment identified “subversive thought” as a marker for violent terrorism and thus targeted “university-based student groups as a radicalization node for almost every type of extremist group.” In words reminiscent of “communist front” theory dating to the Cold War, Virginia Fusion Center analysts warned of the Muslim Brotherhood’s alleged strategy of boring from within by infiltrating different Islamic organizations and obtaining leadership roles. DHS also monitored the D.C. Anti-War Network and shared information with the Maryland State Police – most likely through the fusion center – during a year-long infiltration of Baltimore area peace and social justice organizations in 2007-2008.

Recording Our Legal Activities – LAPD’s Special Order #11

In early 2009, casino security officers contacted the Southern Nevada Counter-Terrorism Center after witnessing three men taking photos of the casino’s ceiling on a quick visit to the building. Analysts reviewed the casino’s surveillance videos and issued a law enforcement bulletin asking other casinos to report any similar activity. Three months later, officials had nothing more to report.

Fusion centers encourage corporate partners and local police alike to report activities such as people taking photographs. These “suspicious activity reports” (SARs) become data, waiting to be activated by an analyst working in the fusion center system. The growing popularity of SARs are tied to a new criminal intelligence theory, supported at the highest levels of the U.S. domestic intelligence enterprise, that collecting outwardly innocuous behaviors enhances security. The Los Angeles Police Department’s “suspicious activities” program is a national model that the Office of the Director of National Intelligence (ODNI) set out to replicate and standardize at fusion centers around the country in 2008. LAPD had ordered its officers to report behaviors that include innocuous, clearly subjective activities clearly protected by the First Amendement’s assurances of free speech, such as:

  • taking measurements
  • using binoculars
  • taking pictures or video footage “with no apparent esthetic value”
  • abandoning a vehicle
  • drawing diagrams
  • taking notes
  • espousing extremist views

Drawing on this strategy, in January 2008, the Director of National Intelligence urged state and local law enforcement to “report non-criminal suspicious activities,” which were defined as “observed incidents or behaviors that may be indicative of intelligence gathering or pre-operational planning related to terrorism, criminal, or other illicit intention.” The standards left the meaning of “other illicit intention” and “terrorism” to people’s imaginations.

In August 2008, the U.S. departments of Justice and Homeland Security, along with the Major City Chiefs Association, issued a report recommending the expansion of the LAPD suspicious activity program to other U.S. cities. Currently, Los Angeles, Boston, and Miami are among the sites experimenting with this standardized reporting process. As one official observes, “In many instances the threshold for reporting is low, which makes it extremely difficult to evaluate some of this information.” The reduced threshold for reporting also leads to too much collection. In the words of Bruce Fein, once a staffer to former Republican Congressman Bob Barr of Iowa,

Since anything might be a clue as to a possible psychological inclination to commit terrorism, everything is fair game for intelligence collection. But when everything is relevant, nothing is relevant. Finding something useful in the mass of undifferentiated intelligence reports and analysis is thus akin to looking for a needle in a haystack. That may explain why there is no credible evidence that fusion centers have frustrated a single terrorist plot–their primary raison d’être.

Data-Mining and Private Databases

Fusion centers reflect the tendency of surveillance systems to grow both in depth–with reams of information on any one person – and in breadth by broadening the variety of sources of personal data that they draw on. With unprecedented access to criminal, intelligence, and private sector databases, fusion centers give local authorities an exceptional capacity to monitor behavior and select individuals or communities for intervention. Accordingly, fusion centers responded with vigor to the FBI and Department of Homeland Security’s 2006 guidelines urging them to “obtain access to an array of databases and systems.” Although the guidelines listed only public information assets, such as motor vehicle databases, state fusion centers now contract with private data brokers to access private information like unpublished cell phone numbers, consumer credit profiles, insurance claims, car rentals, and real estate sales. In 2009, DHS announced a new arrangement with the U.S. Department of Defense that allowed select fusion center personnel to access terrorism-related information from the Department of Defense’s classified network.

The rise of cyberspace, mobile telephones, and a nearly universal reliance on credit and debit cards has, as James Rule put it, “created cornucopias of actionable personal data to tempt the surveillance appetites of institutions.” For instance, in Massachusetts, the Commonwealth Fusion Center website boasts access to Accurint, Lexis-Nexis, LocatePlus, and Autotrack, a product of Atlanta’s Choicepoint, the giant private data aggregator that moved aggressively into the domestic intelligence market after 9/11. Autotrack permits subscribers to browse through more than 17 billion current and historical records on individuals and businesses with as little as a name or social security number as a starting point. In Maryland, authorities similarly rely on a data broker called Entersect, which maintains 12 billion records on about 98 percent of Americans. Systems like fusion centers feed on steady diets of supposedly “actionable” personal information– all accessed without a warrant.

Privacy Pitfalls

State governments established fusion centers with federal dollars in the absence of any legal framework, and their data mining occurs in a legal vacuum outside the scope of the Fourth Amendment, which bars unreasonable searches. Although data mining can have real consequences for individuals tracked, there are no legal guarantees for the accuracy or appropriateness of the data or the searches, no redress for people injured by being falsely identified as posing a threat, and no judicial or legislative oversight. Some fusion centers purge data searches after one or five years, but no one is responsible for doing so. Fusion center records are also beyond the reach of the Privacy Act of 1974, which regulates and gives individuals access to the files of federal agencies.

Most government data mining today occurs in a legal vacuum outside the scope of the Fourth Amendment barring unreasonable searches.

The main federal regulation governing criminal intelligence databases is 28 CFR Part 23. Congress enacted Part 23 in a series of reforms initiated during the 1970s to curb widespread abuses of police investigations for political purposes. It is designed to ensure that police intelligence operations focus on illegal behavior by requiring that criminal intelligence systems “collect and maintain criminal intelligence information concerning an individual only if there is reasonable suspicion that the individual is involved in criminal conduct or activity and the information is relevant to that criminal conduct or activity.”

Fusion centers receiving federal funds are required to abide by Part 23, but the federal government actively promotes the violation of the regulation by encouraging fusion centers to collect noncriminal intelligence and to draw on public and private sector data. Not only is the government failing to enforce or intensely monitor compliance with Part 23, but this regulation may not go far enough to protect privacy and free expression in the current environment.

Part 23 may not apply to data-mining and access functions of the fusion center since it regulates collection rather than the processing of information held by other parties. For example, New Mexico’s All Source Intelligence Center has access to 240 state, regional, and federal agencies in their databases, including agricultural and parks agencies. Establishing what kinds of information fusion centers are processing can be difficult, according to Peter Simonson, executive director of the New Mexico ACLU chapter, because they do not store the records nor even collect them, but simply mine them through digital gateways. Records are accessed, not retained as they would be in specific case or investigative files. Therefore, fusion centers may technically comply with Part 23, but still actively assault the right of individuals to be free from government surveillance and its concomitant social pressures to conform.

In their 2005 book, Protecting Liberty in an Age of Terror, Juliette Kayyem and Philip Heymann argue that we need new protections for individuals against what appears to be the unrestricted authority of the government to collect and mine information. They recommend a system where courts must give authorization before agencies can collect and access data on individuals, Congress sets standards for the various types of authorization, and the legislative branch oversees the whole process. To date, no such protections exist. Perhaps there is “hope” in the fact that Kayyem now serves as Assistant Secretary of Intergovernmental Programs at DHS.

Resist Mass Surveillance

The logic of surveillance systems is to grow. Because there is no “natural limit” to the incorporation of personal information in systems of mass surveillance, our only defense is collective action to impose limits on the post-9/11 intelligence apparatus.

The logic of surveillance systems is to grow.

Russell Porter of the Iowa Fusion Intelligence Center keeps a copy of the Bill of Rights posted near the front door of the center’s office, and he insists that fusion centers are only interested in investigating criminal activity. That should provide little comfort. The good intentions of some government officials will not protect the public from abuse that will inevitably occur given lax oversight, ill-defined missions, and inadequate legal protections. Executive-branch repression of dissent using personal data stretches back as far as the Palmer Raids after World War I. More recently, President Ronald Reagan used tax audits to pressure critics of his Central American policies and George W. Bush enacted his secret warrantless wiretap program. Based on the historical record, American intelligence agencies have not earned the trust of Congress, the courts, or the people when it comes to domestic surveillance.

An engaged Congress which takes its oversight role seriously must enact a new series of legal protections on the scale of those of the 1970s. (See box on Constitution Project proposals.) Just as Americans’ fought for reform in the 1970s, it will take investigations by Congress, state legislatures, attorneys generals, journalists, and citizens to expose the current practices of fusion centers and build the political pressure necessary for change. Lawyers representing protestors and defendants in terrorism cases can also play a key role in discovering how these institutions are monitoring their clients. Lastly, just as DHS engages academia in promoting troublesome theories of intelligence-led policing and violent radicalization, civil libertarians must respond in kind. In a free society, civil liberties must be the cornerstone of antiterrorism policy, not an afterthought, as it has been in the development of fusion centers.

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