Fusion centers: budgetary salt on a constitutional wound

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Yesterday, a US Senate Committee issued a scathing  report on fusion centers, the 77 centers around the country that connect local and federal intelligence under the auspices of the Department of Homeland Security (DHS). While the fusion centers continue to coordinate surveillance and monitoring, however, one city has taken steps to ensure that its police force abides the law, instead of abusing it.

The Senate report reveals the extreme waste that occurs at these centers, describing the purchase of big-screen televisions and “decked-out SUVs.”

Even more striking, however, is the report’s damnation of both the efficacy and protection for civil liberties of the centers. The report, by the Permanent Subcommittee on Investigations for the U.S. Senate on Homeland Security and Governmental Affairs, notes that the centers deal in:

“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.

Unsurprisingly, the report notes that DHS obstructed the Subcommittee’s investigation.  In particular, when the Subcommittee requested a copy of a 2010 assessment of the centers, DHS:

“first denied it existed, then disputed whether it could be shared with Congress, before ultimately providing a copy”

This secretive behavior is familiar to attorneys and advocates who have attempted to obtain information about fusion centers through Freedom of Information and state public records act requests, but it shocking to see it attempted with elected officials. The media has reported heavily on the report’s criticisms of the centers, especially regarding the quality of the counterterrorism intelligence the centers process.  This is a very real problem.  However, what has gone largely unnoticed on is the report’s analysis that:

“Most reporting was not about terrorists or possible terrorist plots, but about criminal activity.”

This is striking because the federal government has used counter-terrorism as an excuse for an array of privacy invasions and for the erosion of civil liberties.  Civil liberties advocates have been pointing out for a long time that such (publicly palatable) violations inevitably leads to more.  Counter to the  government’s public discourse, the erosion of constitutional guarantees to be free from unreasonable search and seizure, guarantees to free speech, and to freedom of religion have spread like wildfire from counter-terrorism to all facets of law enforcement activity.  As Mike German, former FBI agent and current legislative counsel to the American Civil Liberties Union, puts it:

“Information sharing among federal, state, and local law enforcement is only valuable if the information collected is relevant to real threats.  When these agencies are given the authority to collect information without reasonable suspicion of criminal or terrorist activity, civil rights violations are sure to follow.”

What we are seeing now is that, as surely as we accepted increasing invasions on our rights in the name of counter-terrorism, we are now expected to accept those violations in the blanket name of “fighting crime,” regardless of decades of Supreme Court decisions setting standards for what tools the police have available to them to investigate crimes and gather information.  Now, spurred by the “war on terror,” our government argues that these tools are  no longer sufficient, and has vastly increased its use of warrantless and suspicionless surveillance, along with other tools. Worse, as fusion centers demonstrate, this has been done as a collaboration between local and federal law enforcement.  Addressing this problem seems like an incredible challenge to do at the federal level, and maybe it is. The good news, however, is that at least one community has stood up and challenged fusion centers at the local level.  As we wrote two weeks ago, at the urging of the Coalition for a Safe Berkeley, the Berkeley City Council recently passed new police policies requiring that the Berkeley Police Department (BPD) submit information to the Northern California Regional Intelligence Center (NCRIC), the local fusion center, only after first establishing at least reasonable suspicion of criminal activity.  In other jurisdictions, data can be submitted with no criminal predicate, or even based on constitutionally protected activity. Berkeley has made it clear that federal intelligence gathering will not obliterate its local values.

Furthermore, the data BPD shares will be audited annually and reviewed by the City Manager.  No other jurisdiction in the country has similar provisions for civilian review of intelligence information. The problem with fusion centers is clear to community members.  Monica Lazo, a member of the Coalition, states:

“I’m greatly appalled by the spending, especially because we hear about prisoners requiring medical care and being neglected, while these individuals are driving in blinged out cars and using $6,000 laptops to help them do their work with even more inaccuracies. “

Now is the right time to follow Berkeley’s example and take charge of the situation at the local level.  Check out BORDC’s Local Civil Rights Restoration Act for ideas on how to get started, andcontact us> for help starting a coalition in your community.