House Hearing on Fusion Centers; ACLU Calls for DHS Investigation

by Suraj Sazawal, 4/15/2009

 A Congressional hearing on fusion centers (state-based information sharing collaborations between federal, state, local and tribal law enforcement agencies) heard several witnesses who acknowledged that privacy and civil liberties problems in fusion center operations must be addressed. One witness said these problems are so severe that the fusion centers should be closed. On the same day, the American Civil Liberties Union (ACLU) called on DHS to probe five fusion center investigations involving free speech activities of advocacy and religious groups.

The House Homeland Security Committee's Subcommittee on Intelligence, Information Sharing and Terrorism Risk Assessment hearing on April 1, 2009  focused on "The Future of Fusion Centers: Potential Promise and Dangers." Homeland Security Committee Chair Bennie Thompson's (D-MS) statement said "If we don't get the privacy and civil liberties piece at fusion centers right, we'll see more abuses like those revealed last summer in Texas."
In her opening statement Subcommittee Chair Jane Harmon (D-CA) noted the importance of the information sharing and analysis functions of fusion centers and said the hearing was intended to "examine the challenges that fusion centers continue to face and to dispel some of the myths that may exist." Rather than addressing the substance of civil liberties and privacy complaints, she criticized the rhetorical style of Bruce Fein, the witness who called for closing fusion centers, urging "other witnesses to address what by my lights are alarmist and over-the-top claims…" However, the other witnesses and questions from committee members failed to do so.
Fein, a public affairs consultant with the Litchfield Group, testified that, "Fusion centers dampen and cast a cloud over free speech and association. Their intelligence collection efforts insinuate that political dissent is unpatriotic or dangerous and threaten to make dissenters targets for law enforcement or candidates for terrorism watch lists." As examples he cited a report from the North Central Texas Fusion Center that urged investigations of lobbying activities by groups promoting religious tolerance and a 2008 program developed by the Los Angeles Police Department that requires information collection on 65 activities, including non-criminal actions such as using binoculars or taking video footage "with no apparent esthetic value." Noting Constitutional principles and several Supreme Court cases on the First Amendment, Fein says the solution to these problems is to close fusion centers, which have "no serious quality controls because few if any are fit to separate the terrorist wheat from the innocuous chaff."
Although fusion center officials from both Texas and Los Angeles testified, they did not address the civil liberties and privacy issues. However, David Gersten of DHS's Office for Civil Rights and Civil Liberties did. He testified that "fusion centers in general could invoke civil liberties issues" but ignored the examples of problems by saying "the reality has not borne out the theories that have been advanced by some concerning fusion centers' activities." Despite this, his said, "we must be very careful to ensure that the Government is not infringing or chilling an individual's right to speak freely and protest." He provided an example of the need for "right-sizing" government responses to protests with an example of a planned protest at a federal building, saying "security measures would be impossible without knowing the nature of the protest, and whether it is likely to cause security or operational problems." He said DHS has developed a training program on civil liberties for fusion centers that is meant to address this issue.
In its press release announcing its requests for internal DHS investigations, the ACLU said "Fusion centers have experienced mission creep in the last several years, becoming more of a threat than a security device. With no overarching guidelines to restrict or direct them, these centers put Americans' privacy at huge risk." The press release also summarizes the complaints that lead to each request for investigation.