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A scathing report released days ago by a Senate subcommittee concluded Department of Homeland Security fusion centers at the state and local level had not “produced useful intelligence to support federal counterterrorism efforts.” It also found “DHS-assigned detailees” have “forwarded ‘intelligence’ of uneven quality—oftentimes shoddy, rarely timely, sometimes endangering citizens’ civil liberties and Privacy Act protections.”

The findings have garnered some necessary attention by showing, as Julian Sanchez wrote, that the United States’ “broken panopticon” is “expensive and useless.” The fusion centers were foisted upon Americans as a necessity to keep the country secure. The violations of privacy, however, have not benefited the safety of Americans. The findings only affirm criticisms made by civil liberties groups throughout the past decade and that is why the American Civil Liberties Union (ACLU) has urged Congress to hold hearings on fusion centers to further investigate “ongoing abuses.”

The Subcommittee’s Findings

The subcommittee, led by Senator Carl Levin and Senator Tom Coburn, reviewed thirteen months of reporting from April 1, 2009, to April 30, 2010, and could find no “reporting which uncovered a terrorist plot. It could find no evidence that a single fusion center had disrupted an active terrorist plot.

“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,” the report highlighted. This was “often because they lacked any useful information, or potentially violated department guidelines to protect Americans’ civil liberties or Privacy Act protections.”

The investigation found state and local agencies had used federal grant money to purchase “hidden ‘shirt button’ cameras, cell phone tracking devices, and other surveillance equipment unrelated to the analytical mission of a fusion center.”

A grant was awarded to the Arizona Department of Public Safety in 2009. Money went to the fusion center in Arizona, the Arizona Counter Terrorism Information Center (ACTIC), which purchased “equipment for a surveillance monitoring room.” A new laptop, software, two monitors and two 42” flat screen televisions were bought. This occurred despite guidelines that do not consider surveillance a part of fusion center operations.

The Office of General Counsel reminded Intelligence and Analysis (I&A) employees in April 2008 that DHS personnel “are prohibited from collecting or maintaining information on US persons solely for the purpose of monitoring activities protected by the US Constitution, such as the First Amendment protected freedoms of religion, speech, press, and peaceful assembly and protest.”

It is also noted in the report, “The Privacy Act prohibits agencies from storing information on U.S. persons’ First Amendment-protected activities if they have no valid reason to do so. Additionally, DHS’s own intelligence oversight procedures allow the department to retain information about U.S. persons for only 180 days, in order to determine if it can be properly retained. Once a determination is made that the document should not be retained, the ‘US person identifying information is to be destroyed immediately.’” However, the investigation found DHS retained “cancelled draft” Homeland Intelligence reports for “a year or more after the date of their cancellation and appeared to have no process to purge such inappropriate reporting from their systems.” It further concluded, “It was not clear why, if DHS had determined that the reports were improper to disseminate, the reports were proper to store indefinitely.”

DHS, when asked why it was legal to retain these inappropriate reports, explained it could be “retained” for “administrative purposes such as audit and oversight.” A Congressional Research Service (CRS) counsel noted this justification contradicted the department’s requirement to destroy inappropriate records. The Subcommittee also noted that on the list of documents considered proper for retention as “administrative information” intelligence reports were not listed. There also was no process for “auditing as administrative purpose” in “intelligence oversight guidelines.”

DHS Attempted to Keep Drafted Reports Secret

More significantly, the Subcommittee sought copies of HIRs canceled by DHS. The department tried to withhold them from Congress, claiming oversight could have “chilling effect” on reporting process:

For drafts and cancelled HIRs, it would be helpful if you could articulate why the committee needs this information to further its oversight . . . . We believe it is important to protect the integrity of the process by which those reports are reviewed and subjected to internal editorial, analytic, legal, and operational scrutiny prior to publication decisions, so as not to impede officers in the field from reporting appropriately on topics of interest and importance to homeland and national security. Moreover, this could have a significant chilling effect on the quality of the reporting that ultimately is published and, as a result, the agency decisions it is intended to inform.

The investigators putting together the subcommittee report rightfully called the concerns “puzzling,” since DHS had led the subcommittee to believe cancelled HIRs were only saved for “audit and oversight purposes.” There should not be anything to hide, unless DHS is worried Congress will recommend it cease operations that are illegal and violate Americans’ civil liberties.

Drafted Reports Show Spying on Constitutionally-Protected Conduct by Americans

For the period the subcommittee examined, DHS officials “nixed 40 reports” after “reviewers raised concerns the documents potentially endangered civil liberties or legal privacy protections.” Intelligence reporters drafted reports on First Amendment-protected activities “lacking a nexus to violence or criminality,” improperly characterized “political, religious or ideological speech” that was not violent or criminal and attributed to “an entire group the violent or criminal acts of one or a limited number of the group’s members.”

For example:

—One reporter put together a draft on reading suggestions by a Muslim community group,“Ten Book Recommendations for Every Muslim.” It noted four of the books were by authors, who had records in US intelligence counterterrorism databases.

—One reporter put together a draft on the Mongols Motorcycle Club, a California-based biker gang. Though the group has committed crimes, the draft did not focus on this activity but rather a benign checklist the group was handing out to members on what to do if stopped by police that did not advocate the violation of any law.

—One officer filed a draft on a US citizen, who had given a “day-long motivational talk and lecture on positive parenting” to a Muslim organization.

—One other canceled draft detailed a US citizen’s visit to a mosque to give a lecture

In regards to the last example, a reviewer wrote of the submitted draft, “The number of things that scare me about this report are almost too many to write into this [form].” According to the reviewer, the draft was sourced to a fusion center on the other side of the country, along with “open-source information” (which could have been a news report the officer watched on television). The event was “constitutionally protected activity.”

Also, the subcommittee noted the Missouri Information Analysis Center (MIAC) put out a report in February 2009, which led to “public outrage.” Purporting to provide analysis of the “modern militia movement,” it was “poorly researched and written” and alleged “militia members most commonly associate with third party political groups,” like the Libertarian Party. It stated these violent militias are typically composed of people who support Ron Paul, Chuck Baldwin and/or Bob Barr. It said these people might display signs, cartoons or bumper stickers with “anti-government rhetoric.” They might display the Gadsden flag or “anti-immigration and anti-abortion” messages.

As one former state government official said in reaction, it looked like a “Missouri State University fraternity brother wrote something and put it on state letterhead and sent it out.” The department had to issue apologies to Baldwin, Barr and Paul.

Fully Evolved into a Network That Can Engage in COINTELPRO-Like Operations

The findings are not abnormal. They reflect the fact that these fusion centers have often been used for neo-COINTELPRO operations.

What the subcommittee looked at were drafts not released. The ACLU has previously called attention to public reports released, which are similar to ones the subcommittee discovered were canceled:

  • A Texas fusion center released an intelligence bulletin that described a purported conspiracy between Muslim civil rights organizations, lobbying groups, the anti-war movement, a former U.S. Congresswoman, the U.S. Treasury Department and hip hop bands to spread Sharia law in the U.S.
  • The same month, but on the other side of the political spectrum, a Missouri Fusion Center released a report on “the modern militia movement” that claimed militia members are “usually supporters” of third-party presidential candidates like Ron Paul and Bob Barr.
  • In March 2008 the Virginia Fusion Center issued a terrorism threat assessmentthat described the state’s universities and colleges as “nodes for radicalization” and characterized the “diversity” surrounding a Virginia military base and the state’s “historically black” colleges as possible threats.
  • A DHS analyst at a Wisconsin fusion center prepared a report about protesters on both sides of the abortion debate, despite the fact that no violence was expected.

Like the Electronic Privacy Information Center (EPIC) wrote in a “spotlight on surveillance” report in June 2007, “A national network of state fusion centers, working with the federal government, comes perilously close to a domestic surveillance agency, which has been rejected by the public and law enforcement officials.” There has been documented abuse:

In December 2003, just nine months after the Department of Homeland Security had been created, an officer from the DeKalb County, Georgia, Division of Homeland Security observed and photographed vegans who were peacefully protesting outside a Honey Baked Ham store. When two protesters noticed they were being photographed, they wrote down the license plate of the man’s unmarked government. After they refused to turn over the paper with the license plate number, the Homeland Security officer arrested them. In 2004, two plainclothes Contra Costa County sheriff’s deputies identified themselves as Homeland Security agents while monitoring a protest by striking Safeway workers.

In February 2006, two Montgomery County, Md., Homeland Security agents walked into a suburban Bethesda library, demanded the attention of all the patrons, and told patrons that viewing Internet pornography was illegal. It is not illegal to view pornography in a public library, and Montgomery County simply “asks customers to be considerate of others when viewing Web sites.” The Washington Post said, “After the two men made their announcement, one of them challenged an Internet user’s choice of viewing material and asked him to step outside, according to a witness. A librarian intervened . . . [and later a] police officer arrived. In the end, no one had to step outside except the uniformed men.” The men were later reassigned, but the incident raised questions about why exactly Maryland Homeland Security agents thought it part of their Homeland Security duties to enter a public library, survey the patrons, and then incorrectly tell patrons that their legal viewing habits were illegal acts.

In conclusion, the subcommittee report affirms the worst fears or concerns shared by civil liberties organizations. Indeed, its officials engage in operations similar to operations FBI agents engaged in during the days of COINTELPRO.

This does not mean Homeland Security officials are engaged in this activity and FBI agents are not. FBI agents are infringing upon Americans’ civil liberties as well. There are at least two networks of agents or officials spying on constitutionally protected behavior—the FBI’s network of agents and the DHS network of officials at fusion centers. In the particular case of the fusion centers, this entire network cannot be said to keep Americans safe because they produce mostly useless intelligence reports. And the network should be dismantled.