State and local “fusion centers,” created to share counterterrorism intelligence across government agencies to prevent the failures that contributed to the 9/11 terror attacks in 2001, exhibit a persistent pattern of violating Americans’ privacy and civil liberties, producing unreliable and ineffective information, and resisting financial and other types of standard public accountability. Those were the findings of six months of investigation and research by Open The Government, drawing on freedom of information requests, court documents, grant records, interviews, and news reports.
The aim was to probe the activities of a network that has expanded to more than 80 fusion centers across the country, created by states or major urban governments, with approval of governors, and supported by billions of dollars of federal taxpayer funding over the years. Open The Government in particular examined whether the fusion center system and its federal agency supporters – primarily the Department of Homeland Security (DHS) and its Federal Emergency Management Agency (FEMA), the Justice Department and the State Department – had made any progress in implementing a U.S. Senate subcommittee’s bipartisan recommendations in 2012. That investigation had uncovered staggering deficiencies, rampant secrecy, and violations of civil liberties.
More than 7 years later, Open The Government has concluded that not much has changed:
“Fusion centers” were created by states and major urban areas as a counterterrorism tool after the 9/11 terror attacks in 2001, to improve the sharing of intelligence information related to terrorism among federal, state and local authorities. The goal was to prevent the kinds of coordination and communication gaps that contributed to the failure to intercept the al-Qaeda plot.
According to the Department of Homeland Security, the centers are “owned and operated by state and local entities, and are designated by the governor of their state.” Per U.S. government policy: “The Federal Government does not dictate where fusion centers should be built and maintained, nor does it designate fusion centers. However, the Federal Government has a shared responsibility with state and local governments to promote the establishment of a national network of fusion centers to facilitate effective information sharing. Since 2001, the Federal Government has provided significant grant funding, training, technical assistance, exercise support, federal personnel, and access to federal information and networks to support fusion centers.”
The federal government has funneled billions of dollars – as much as $1.4 billion just as of 2012, according to the above-mentioned Senate subcommittee report — into fusion centers under the supervision of the Department of Homeland Security (DHS). The complex structure and funding mechanisms of the centers makes it extremely difficult to discern even how much federal money they receive. For FY 2020, DHS’s Federal Emergency Management Agency (FEMA) is due to disburse $1.12 billion through two grant programs (the Homeland Security Grants Program (HSGP) and the Urban Areas Security Initiative (UASI)) for “a range of preparedness activities, including planning, organization, equipment purchase, training, exercises, and management and administration across all core capabilities and mission areas.” That includes, but is not limited to, counterterrorism; other activities include, for example, preparedness for natural disasters, or coordination on non-terrorism-related public safety issues. Fusion centers also receive state and local funding. All amounts vary by location.
The number of such centers has ballooned to more than 80 sites, where state, local and federal analysts collect, review, and disseminate information that might be relevant to defuse national security threats. Fusion centers are expected to be the primary interface among local, state, tribal, and federal authorities, and they share information with counterterrorism teams such as the FBI’s Joint Terrorism Task Force (JTTF) and through systems like DHS’s Homeland Security Information Network. FEMA works with the centers to manage natural disasters, share information with the private sector, and participate in public safety planning.
But congressional investigators and experts who have studied federal, state, and local law enforcement information sharing over the past 20 years have expressed repeated concern that fusion centers are costly and ineffective mechanisms that repeatedly violate Americans’ privacy and civil liberties. Justin Rood, director of the Congressional Oversight Initiative at the Project On Government Oversight (POGO, an OTG partner) and an investigator on the 2012 Senate subcommittee investigation, said he initially proposed that study as part of Congress’s “routine oversight.”
“There had been reports of mistakes and missteps, but it was really a good-government-type oversight project more than anything,” he said. “I hadn’t expected to find a fraction of the misconduct that we uncovered.”
The investigation revealed staggering deficiencies, rampant secrecy, and violations of civil liberties. The subcommittee concluded that, in the decade following 9/11, fusion centers had failed to meet the objectives of their core mission of identifying terrorist plots and preventing acts of terrorism. “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.” The report further found that DHS had lied to the public about fusion centers’ successes and, despite internal reviews that found serious flaws, had neglected to share information about such problems with Congress. Above all, the subcommittee concluded that fusion centers simply weren’t effective counterterrorism tools, recommended an overhaul of the program and called for Congress to “revisit the statutory basis for DHS support of fusion centers.”
The subcommittee’s investigation also was stymied by a lack of transparency from DHS and the inability of agencies to provide complete and timely documentation.
Despite the bipartisan conclusions – the investigation was led by Committee staff to then-Senator Tom Coburn (R- Okla.), and subcommittee Chairman Carl Levin (D-Mich.) endorsed its findings – there was little enthusiasm for serious reform. As a result, Congress and DHS acted on almost none of the 2012 recommendations, the number of fusion centers and their mission have only expanded, and they continue to receive billions of federal taxpayer dollars. Laws passed in the interim have even given fusion centers expanded authorities for the types of information to be shared. In March 2020, President Trump signed H.R. 504, the “DHS Field Engagement Accountability Act,” which requires “a 5-year plan for continued engagement with fusion centers,” including updating its performance metrics. But the measure does not require DHS to reassess how its performance metrics are evaluated or whether those metrics accurately reflect its counterterrorism mission.
“There had been reports of mistakes and missteps, but it was really a good-government-type oversight project more than anything. I hadn’t expected to find a fraction of the misconduct that we uncovered.”Justin Rood, director of the Congressional Oversight Initiative at the Project On Government Oversight and an investigator on the 2012 Senate subcommittee investigation.
Open The Government undertook an extensive review of fusion centers, focusing especially on the counterterrorism mission. OTG drew on court records, federal legislation, policy documents, interviews, news reports, and documents produced by years of requests under the federal Freedom of Information Act and state freedom of information laws, as well as grant records from state agencies where fusion centers are based.
Because the network of fusion centers is so vast and accountability is so dispersed among various agencies at multiple levels of government, OTG focused on several centers as case studies: Boston, Memphis and Illinois.
Independent review of budgets for fusion centers and similar counterterrorism efforts remains challenging, as the system’s complexity and weak reporting requirements combine to prevent effective oversight that would ensure transparency and that funds are being allocated and spent properly. Fusion centers can both receive funding from and distribute funds to local, state or federal partners. And as noted above, funding is not limited to work related to counterterrorism; fusion centers also obtain federal, state and local funding to participate in preparations for natural disasters such as earthquakes or respond to other public safety issues.
Open The Government used Illinois’s Freedom of Information Act to obtain years of grant records from the Illinois Emergency Management Agency (IEMA), a state-level agency similar to FEMA that disburses federal dollars to programs in the state, including fusion centers. But records of such transfers to local entities over five years showed that all basic description fields were blank. In addition, the local agencies receiving the funds also are not required to provide detailed descriptions.
The evolving “responsibilities” of fusion centers beyond counterterrorism present an additional barrier to independent review. Open The Government audited one allocation from IEMA to the then-Cook County Department of Homeland Security and Emergency Management, under which the Chicago fusion center is located, and despite examining records from both sides of the transfer, neither the date of the transfer nor the final amount was clear.
Open the Government found numerous examples of fusion centers monitoring First Amendment-protected activity despite internal and federal regulations that prohibit such monitoring. Agencies connected with the fusion centers and even some that are not shared such “intelligence” with the fusion centers despite years of warnings against these practices. Likewise, we found numerous instances of fusion centers monitoring protests and forwarding those reports across the country. The collection and sharing of this information raises doubts about the ability of fusion centers to self-police without robust congressional oversight.
Local regulations require both the Chicago Police Department and fusion center to obtain approval before opening investigations into First Amendment-protected activities. Documents obtained and reviewed by Open The Government included emails indicating that the Chicago area’s fusion center, dubbed the Crime Prevention and Information Center (CPIC), was monitoring non-violent local protests in 2018 that were part of a nationwide protest movement calling for the abolition of U.S. Immigration and Customs Enforcement (ICE), an agency under DHS, and forwarding the information to DHS’s nationwide daily update inbox. CPIC and Chicago Police Department are required to get approval from the Superintendent of Police or the department’s General Counsel’s Office before opening any investigations on First Amendment-activities. A FOIA request for those approvals turned up records that suggested the fusion center was writing reports on planned protest in Chicago and submitting those reports to the Department of Homeland Security.
These findings echo those of news outlets such as the Chicago Sun-Times, which reported in November 2015 that “an intelligence research specialist with the U.S. State Department” e-mailed the Chicago Police Department for information about “chatter” regarding potential protests of a police shooting. Within the hour, CPIC replied that activists were planning a rally and included a time and location, according to the Sun-Times. It is unclear why the State Department was seeking the information or how CPIC was collecting it. The Sun-Times reported that the records showed the “police intelligence-gathering unit tracked demonstrators and exchanged information about them with federal officials for nearly three months before getting the required approval from the department’s general counsel.”
In fact, the Chicago Police Department’s own directives instruct officers to notify the fusion center about a range of events on a list of 30 situations that include everything from an injury to a city employee or a hazardous materials incident. The first item on the list is almost ridiculously broad: “any significant or newsworthy event within the city (emphasis in original).” CPIC is also to be made aware of any “information concerning strikes, labor-management incidents or union controversies or the possibility thereof,” according to a report by In These Times magazine.
Through a review of court records, news reports, policy documents, and discussions with experts, Open The Government found that the Memphis Police and the Tennessee Fusion Center (TFC) likely violated the civil rights of local residents while monitoring protests.
In 2017, the TFC monitored a series of planned demonstrations in Memphis, while at the same time noting, “…some of this information describes First Amendment-protected activities.” In a statement, the public information officer where the TFC is housed explained that the information was gathered from public sources because it had been “shared on public social media channels or otherwise widely known.”
This type of open-source reporting was explicitly criticized by the U.S. Senate subcommittee in its 2012 report.
The TFC’s monitoring was not limited to a single event. In a July 14, 2016 update it sent to its partner agencies such as Memphis Police Department, Tennessee Office of Homeland Security, and Tennessee Bureau of Investigation, it stated: “The TFC is aware of numerous individuals who have made credible threats against law enforcement in the state; however, none of the threats were specific in nature.” Yet the U.S. Supreme Court ruled in Brandenburg v. Ohio that speech that has no nexus to an immediate threat to commit violence is protected by the First Amendment.
The information sharing between the Memphis Police Department and the TFC appears to have targeted activists and journalists alike. Manuel Duran, a journalist with Memphis Noticias, was swept up in a mass arrest at a protest the fusion center was monitoring alongside the police department. The charges against him eventually were dropped, but he was turned over to ICE and placed in deportation proceedings. A number of press freedom organizations such as the Freedom of the Press Foundation called for his release, yet he ultimately spent 15 months in detention, according to the U.S. Press Freedom Tracker.
Open The Government reviewed previous reporting on the Boston Regional Intelligence Center (BRIC), a Boston-area fusion center, and investigated new allegations that it was monitoring journalists as recently as January of 2020.
However, current and previous investigations reveal the monitoring of First Amendment-protected activities by BRIC to be a constant and persistent issue.
On a Saturday morning in early January 2020, two detectives, including one from the Boston Police Department who is member of the FBI’s Joint Terrorism Task Force (JTTF) and previously had been identified as investigating protestors of the Dakota Access Pipeline in North Dakota, showed up at the door of independent journalist Dan Feidt in a suburb of Boston. Feidt writes for Unicorn Riot, a leftist media collective, and has reported on the “Super Happy Fun Parade,” a so-called “straight pride” parade staged in Boston in August 2019. The parade had received national attention for its right-wing orientation and the counter-protesters opposing it.
“Unaccountable joint police forces like the [FBI’s Joint Terrorism Task Force] have a long history of involving themselves in political activity that has nothing to do with terrorism. This is a substantial risk to the freedom of expression and the press, and is likely to create chilling effect that is far disproportionate to their core mission.”Brian Feidt, independent journalist.
The detectives identified themselves as members of the JTTF and soon began asking questions about another upcoming protest by the same right-wing group. The officers repeatedly stated that they were primarily concerned about “keeping everyone safe,” Feidt said, but at the same time expressed distaste at the event. Feidt said the detectives clearly had been aware of his reporting. Feidt quickly understood that they were gathering intelligence and cut the conversation short, saying he didn’t wish to speak to them. He reported the encounter to the American Civil Liberties Union in Massachusetts, which in 2012 had issued a report on BRIC’s surveillance of protestors called “Policing Dissent,” an account made possible only after litigation forced the release of public records. OTG spoke with both Feidt and the ACLU.
“Unaccountable joint police forces like the JTTF have a long history of involving themselves in political activity that has nothing to do with terrorism,” Feidt told OTG. “This is a substantial risk to the freedom of expression and the press, and is likely to create chilling effect that is far disproportionate to their core mission.”
Despite concerns about the accuracy and effectiveness of fusion centers, they are gaining access to controversial technologies such as facial-recognition algorithms that also raise concerns over accuracy, privacy and racial bias. Documents obtained by Open The Government and provided to the New York Times uncovered a facial recognition technology vendor, Clearview AI, that recently became the focus of a groundbreaking report in the newspaper into its collection of billions of images from social media and its sales of those images to law enforcement agencies. Clearview AI is currently being investigated by two congressional offices for its controversial data collection practices.
The New York Times investigative article led to additional news coverage. BuzzFeed News has reported that at least 10 fusion centers use facial-recognition technology, as do federal agencies including DHS and its ICE and Customs and Border Patrol (CBP) divisions, as well as “hundreds of local police departments.”
The above mentioned Boston-area fusion center, BRIC, was criticized by the ACLU in 2018 specifically for using a social media monitoring tool, Geofeedia, to monitor First Amendment-protected activity, including that of religious groups, and to monitor protest movements. BRIC also has monitored a range of hashtags including #MuslimLivesMatter as well as #BlackLivesMatter. This monitoring occurred even long after the Boston Police Department in 2014 withdrew its own request to obtain social media monitoring technology amid a public backlash over fears of indiscriminate and biased policing. Geofeedia sends automated emails as “alerts” based on a list of preconfigured keywords. Many of the keywords configured and reviewed by the ACLU had no nexus to criminal activity and instead gathered information on entire religious groups indiscriminately. One email was scrutinized by BRIC for its use of the word “ummah,” the Arabic term for the “Muslim community,” under the guise of fighting “Islamist Extremist Terminology.”
Despite the numerous revelations in the 2012 Senate subcommittee report about the poor quality and efficacy of the information shared by fusion centers, the federal agencies supporting them have failed to spur reform of the centers’ collection and dissemination practices. In the last few years, the amount of information shared by agencies has actually increased while failing to address questions about the reliability of the intelligence. For example, the State Department funds a joint fusion center created in 2017 that works with DHS in El Salvador to collect questionable “gang” intelligence from local authorities in that country and shares it with U.S. immigration officials and local law enforcement agencies in the United States, according to a ProPublica investigation published in July 2019. The news outlet cited a number of reasons to question the veracity of the intelligence, including cases tossed out of court and a United Nations investigation that found “U.S.-funded police forces in El Salvador had falsely accused people of gang membership and committed extrajudicial killings.” A 2018 report by the State Department, noted that security forces in El Salvador carry out “arbitrary arrests” and “torture.”
Open The Government obtained a series of reports from the Crime Prevention and Information Center (CPIC), the local Chicago-area fusion center, that were prepared under DHS’s Suspicious Activity Reporting (SAR) process, better known as the “If You See Something, Say Something” campaign. OTG found numerous cases of SARs filled out on suspicious males based in part on their ethnic origin. All of the alerts were determined by the fusion center to be unreliable but nonetheless forwarded to DHS and the FBI. Cancellation of the SARs happened after analysts had already collected information on potential U.S. citizens without any evidence of a crime.
One, for example, was filled out on a male individual who appeared suspicious and was taking pictures. In the SAR, the “unknown male subject” was described as "Arabic." A different SAR was filled out for two individuals who “appeared Middle Eastern” and were overheard saying the word “jihad.” The incidents were forwarded to the FBI’s eGuardian system and closed by the fusion center. All them were marked as unreliable and have the validity of them marked as “Cannot be judged.”
CPIC is mandated to perform yearly audits of the collection of information through its Privacy/Civil Rights and Civil Liberties division. Open The Government obtained and reviewed years of privacy reports and found only small changes in their internal regulations, but a near-blanket rubber stamp of CPIC’s activities.
Congress should launch a full bipartisan investigation into fusion centers and their ability to detect and disrupt terrorism plots. The probe should build on the 2012 report and verify whether any of that report’s recommendations were implemented. Congress should investigate, anew, whether or not the centers are meeting their statutory obligations by sharing timely and accurate information. Further, Congress should follow up on its recommendations and pass legislation to ensure strong reforms to fusion centers, including auditing their use of controversial facial recognition technologies.
Congress should use its appropriations power to ensure DHS conditions federal dollars provided to fusion centers on compliance with DHS guidelines and federal law. At minimum, Congress can condition future allocations on DHS’s compliance with reporting requirements and reviews of its compliance with civil rights and civil liberties.
Currently, funding flows to fusion centers through federal agencies including DHS, State Department, and FEMA without a central mechanism for the public to monitor the funding. At minimum, Congress should ensure all funding to fusion centers and fusion center expenditures are proactively disclosed and available online. Congress could further mandate that all funding to state and local agencies, including sub-grants, be made available online.
Numerous committees in Congress have already investigated the federal government’s use of controversial facial-recognition technology. But the use of facial recognition systems by fusion centers, which are created and owned by states and urban areas, has proliferated quietly and with little oversight and accountability. Congress should also investigate the use of other types of technology by fusion centers, such as license plate readers and social media monitoring software.
Congress should review fusion centers’ capability to identify and interrupt terrorism plots, through a thorough investigation of DHS records rather than relying on DHS’s own public claims. Congress should consider especially whether fusion centers provide timely, accurate and actionable intelligence, and whether their work adds value to intelligence generated by other federal counterterrorism efforts, such as the FBI’s Joint Terrorism Task Force.
The Office of Civil Rights and Civil Liberties (CR/CL) plays an important role in reviewing DHS’s compliance with the Constitution and could launch a privacy review of fusion centers and probe for instances of racial or religious bias in its collection of intelligence. The office also could require law enforcement agencies to establish strict privacy standards before acquiring new or controversial technology. It further could require public notice and comment before fusion centers acquire new capabilities.
DHS’s should complete a full audit of its fusion centers for any monitoring of First Amendment-protected activity. It should direct the Office of Civil Rights and Civil Liberties to clarify, once again, that fusion centers should not be collecting or maintaining information for the purpose of monitoring activities protected by the U.S. Constitution. It should also audit whether fusion centers adhere to their own internal regulations.
OTG’s review of DHS’s Suspicious Activity Reports showed a high rate of individuals being reported as “suspicious,” based on religious or ethnic identity. Despite this record, SARs are nonetheless forwarded to the FBI and DHS for retention and future use. DHS should investigate whether or not these SARs hold significant intelligence value and create a plan to destroy them if needed.
DHS should work with members of Congress and support their responsibility for oversight of the department by providing timely and accurate documentation to Congress. DHS should direct its staff to fully comply with congressional inquiries with clear and honest assessments. DHS should further alert Congress of any suspected instances of serious waste, fraud, and abuse.
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