They Spy On You, They Violate Your Rights

A two-year bipartisan investigation by the U. S. Senate Permanent Subcommittee on Investigations has found that Department of Homeland Security efforts to engage state and local intelligence “fusion centers” has not yielded significant useful information to support federal counterterrorism intelligence efforts.  Their findings bear repeating. 

“It’s troubling that the very ‘fusion’ centers that were designed to share information in a post-9/11 world have become part of the problem. Instead of strengthening our counterterrorism efforts, they have too often wasted money and stepped on Americans’ civil liberties,” said Senator Tom Coburn, the Subcommittee’s ranking member who initiated the investigation. 

The investigation determined that senior DHS officials were aware of the problems hampering effective counterterrorism work with the fusion centers, but did not always inform Congress of the issues, nor ensure the problems were fixed in a timely manner.

Congress directed the Department of Homeland Security (DHS) to lead this initiative. A bipartisan investigation by the Permanent Subcommittee on Investigations has found, however, that DHS’s work with those state and local fusion centers has not produced useful intelligence to support Federal counterterrorism efforts.

The Subcommittee investigation also found that DHS officials’ public claims about fusion centers were not always accurate. For instance, DHS officials asserted that some fusion centers existed when they did not. At times, DHS officials overstated fusion centers’ “success stories.” At other times, DHS officials failed to disclose or acknowledge non-public evaluations highlighting a host of problems at fusion centers and in DHS’s own operations.

“Unfortunately, DHS has resisted oversight of these centers. The Department opted not to inform Congress or the public of serious problems plaguing its fusion center and broader intelligence efforts. When this Subcommittee requested documents that would help it identify these issues, the Department initially resisted turning them over, arguing that they were protected by privilege, too sensitive to share, were protected by confidentiality agreements, or did not exist at all. The American people deserve better. I hope this report will help generate the reforms that will help keep our country safe,” Dr. Coburn said. 

”Fusion centers may provide valuable services in fields other than terrorism, such as contributions to traditional criminal investigations, public safety, or disaster response and recovery efforts,” said Senator Carl Levin, Subcommittee chairman. “This investigation focused on the federal return from investing in state and local fusion centers, using the counterterrorism objectives established by law and DHS. The report recommends that Congress clarify the purpose of fusion centers and link their funding to their performance.”

The Department of Homeland Security estimates that it has spent somewhere between $289 million and $1.4 billion in public funds to support state and local fusion centers since 2003, broad estimates that differ by over $1 billion. The investigation raises questions about the value this amount of funding and the nation’s more than 70 fusion centers are providing to federal counterterrorism efforts: 

• The investigation found that DHS intelligence officers assigned to state and local fusion centers produced intelligence of “uneven quality – oftentimes shoddy, rarely timely, sometimes endangering citizens’ civil liberties and Privacy Act protections, occasionally taken from already-published public sources, and more often than not unrelated to terrorism.” 

• DHS officials did not provide evidence to the Subcommittee showing unique contributions that state and local fusion centers made to assist federal counter terrorism intelligence efforts that resulted in the disruption or prevention of a terrorism plot. 

• The investigation also found that DHS did not effectively monitor how federal funds provided to state and local fusion centers were used to strengthen federal counterterrorism efforts. A review of the expenditures of five fusion centers found that federal funds were used to purchase dozens of flat screen TVs, two sport utility vehicles, cell phone tracking devices and other surveillance equipment unrelated to the analytical mission of an intelligence center. Their mission is not to do active or covert collection of intelligence. In addition, the fusion centers making these questionable expenditures lacked basic, “must-have” intelligence capabilities, according to DHS assessments.

“With a $16 trillion national debt and $1 trillion annual deficit, Congress has a duty to the American people to ensure that every dollar we are spending – particularly those spent on national priorities like counterterrorism – is spent wisely and effectively,” Dr. Coburn said. “This bipartisan investigation shows that Congress needs to ensure it is getting value for the millions of taxpayer dollars invested in fusion centers.” 
Law enforcement intelligence-processing fusion centers have long come under attack for spying on Americans. The Arkansas director wanted to clarify the truth: centers only spies on some Americans – those who appear to be a threat to the government.

In trying to clear up the ‘misconceptions’ about the conduct of fusion centers, Arkansas State Fusion Center Director Richard Davis simply confirmed Americans’ fears: the center does in fact spy on Americans – but only on those who are suspected to be ‘anti-government’.

“The misconceptions are that we are conducting spying operations on US citizens, which is of course not a fact. That is absolutely not what we do,” he told the NWA Homepage, which supports KNWA-TV and Fox 24.

After claiming that his office ‘absolutely’ does not spy on Americans, he proceeded to explain that this does not apply to those who could be interpreted as a ‘threat’ to national security. Davis said his office places its focus on international plots, “domestic terrorism and certain groups that are anti-government. We want to kind of take a look at that and receive that information.”

But the First Amendment allows for the freedom of speech and opinion, making it lawfully acceptable for Americans to express their grievances against the US government. The number of anti-government groups even hit a record high in 2012, according to the Southern Poverty Law Center. Many of these groups are ‘hate groups’ that express disdain for minorities. But unless they become violent, these groups are legally allowed to exist.

“We are seeing the fourth straight year of really explosive growth on the part of anti-government patriot groups and militias,” Mark Potok, senior fellow at the SPLC, told Mother Jones. “That’s 913 percent in growth. We’ve never seen that kind of growth in any group we cover.”

And with a record-high number of anti-government groups, fusion centers may be spying on more Americans than ever before – or at least, have the self-proclaimed right to do so.

“I do what I do because of what happened on 9/11,” Davis said. “There’s this urge and this feeling inside that you want to do something, and this is a perfect opportunity for me.”

But Davis’ argument is flawed: in order to determine whether or not someone is considered a threat to national security, fusion centers would first have to spy on Americans to weed out the suspected individuals, and then proceed to spy on the ‘anti-government’ individuals further.

Across the US, fusion centers have reported on individuals who conducted ‘crimes’ like putting political stickers in public bathrooms or participating in movements against the death penalty. In October, the bipartisan Senate Permanent Subcommittee on Investigations finished a two-year investigation on fusion centers, only to find that the centers had directly violated constitutionally protected civil liberties.
 

The findings of both the 2010 and 2011 assessments contradict public statements by DHS officials who have described fusion centers as “one of the centerpieces of our counterterrorism strategy,” and “a major force multiplier in the counterterrorism enterprise.”

Despite reviewing 13 months’ worth of reporting originating from fusion centers from April 1, 2009 to April 30, 2010, the Subcommittee investigation could identify no reporting which uncovered a terrorist threat, nor could it identify a contribution such fusion center reporting made to disrupt an active terrorist plot.

The Subcommittee investigation found that the fusion centers often produced irrelevant, useless or inappropriate intelligence reporting to DHS, and many produced no intelligence reporting whatsoever.

• Nearly a third of all reports – 188 out of 610 – were never published for use within DHS and by other members of the intelligence community, often because they lacked any useful information, or potentially violated Department guidelines meant to protect Americans’ civil liberties or Privacy Act protections.

• In 2009, DHS instituted a lengthy privacy and civil liberties review process which kept most of the troubling reports from being released outside of DHS; however, it also slowed reporting down by months, and DHS continued to store troubling intelligence reports from fusion centers on U.S. persons, possibly in violation of the Privacy Act.

• During the period reviewed, DHS intelligence reporting suffered from a significant backlog. At some points, hundreds of draft intelligence reports sat for months before DHS officials made a decision about whether to release them to the intelligence community. DHS published many reports so late – typically months late, but
sometimes nearly a year after they were filed – that many were considered “obsolete” by the time they were released.

• Most reporting was not about terrorists or possible terrorist plots, but about criminal activity, largely arrest reports pertaining to drug, cash or human smuggling.

• Some terrorism-related “intelligence” reporting was based on older news releases or media accounts.

• Some terrorism-related reporting also appeared to be a slower-moving duplicate of information shared with the National Counter Terrorism Center through a much quicker process run by the Federal Bureau of Investigation’s Terrorist Screening Center.

In interviews, current and former DHS officials involved in the fusion center reporting process stated they were aware that “a lot of [the reporting] was predominantly useless information,” as one DHS official put it.4 A former reporting branch chief said that while he was sometimes proud of the intelligence his unit produced, “There were times when it was, ‘what a bunch of crap is coming through.’”

The Subcommittee investigation also examined DHS’s management of the fusion center counterterrorism intelligence reporting process. The investigation discovered:

 • DHS required only a week of training for intelligence officials before sending them to state and local fusion centers to report sensitive domestic intelligence, largely concerning U.S. persons.

• Officials who routinely authored useless or potentially illegal fusion center intelligence reports faced no sanction or reprimand.

The Subcommittee investigation also reviewed how the Federal Emergency Management Agency (FEMA), a component of DHS, distributed hundreds of millions of taxpayer dollars to support state and local fusion centers. DHS revealed that it was unable to provide an accurate tally of how much it had granted to states and cities to support fusion centers efforts, instead producing broad estimates of the total amount of Federal dollars spent on fusion center activities from 2003 to 2011, estimates which ranged from $289 million to $1.4 billion.

The Subcommittee investigation also found that DHS failed to adequately police how states and  municipalities used the money intended for fusion centers. The investigation found that DHS did not know with any accuracy how much grant money it has spent on specific fusion centers, nor could it say how most of those grant funds were spent, nor has it examined the effectiveness of those grant dollars.

The Subcommittee conducted a more detailed case study review of expenditures of DHS grant funds at five fusion centers, all of which lacked basic, “must-have” intelligence capabilities, according to assessments conducted by and for DHS. The Subcommittee investigation found that the state and local agencies used some of the Federal grant money to purchase:
• dozens of flat-screen TVs;
• Sport Utility Vehicles they then gave away to other local agencies; and

• hidden “shirt button” cameras, cell phone tracking devices, and other surveillance equipment unrelated to the analytical mission of a fusion center.

All of those expenditures were allowed under FEMA’s rules and guidance, DHS officials told the Subcommittee. Yet none of them appeared to have addressed the deficiencies in the centers’ basic information analysis and sharing capabilities, so they could better contribute to Federal counterterrorism efforts.

Every day, tens of thousands of DHS employees go to work dedicated to keeping America safe from terrorism; Federal funding of fusion centers was intended to advance that Federal objective. Fusion centers may provide valuable services in fields other than terrorism, such as contributions to traditional criminal investigations, public safety, or disaster response and recovery efforts. In this investigation, the Subcommittee confined its work to examining the Federal return on its extensive support of state and local fusion centers, using the counterterrorism objectives established by law, Executive strategy, and DHS policy statements
and assessments.

The investigation found that top DHS officials consistently made positive public comments about the value and importance of fusion centers’ contributions to Federal counterterrorism efforts, even as internal reviews and non-public assessments highlighted problems at the centers and dysfunction in DHS’s own operations. But DHS and the centers do not shoulder sole responsibility for the fusion centers’ counterterrorism intelligence failures.

Congress has played a role, as well. Since Congress created DHS in 2003, dozens of committees and subcommittees in both Houses have claimed jurisdiction over various aspects of the Department. DHS officials annually participate in hundreds of hearings, briefings, and site visits for Members of Congress and their staffs. At Congress’ request, the Department annually produces thousands of pages of updates, assessments and other reports. Yet amid all the Congressional oversight, some of the worst problems plaguing the Department’s fusion center efforts have gone largely undisclosed and unexamined.

At its conclusion, this Report offers several recommendations to clarify DHS’s role with respect to state and local fusion centers. The Report recommends that Congress and DHS revisit the statutory basis for DHS support of fusion centers, in light of the investigation’s findings. It also recommends that DHS improve its oversight of Federal grant funds supporting fusion centers; conduct promised assessments of fusion center information-sharing; and strengthen its protection of civil liberties in fusion center intelligence reporting.

The full report is HERE.