[House Hearing, 111 Congress]
[From the U.S. Government Printing Office]
THE FUTURE OF FUSION CENTERS:
POTENTIAL PROMISE AND DANGERS
=======================================================================
HEARING
before the
SUBCOMMITTEE ON INTELLIGENCE, INFORMATION
SHARING, AND TERRORISM RISK ASSESSMENT
of the
COMMITTEE ON HOMELAND SECURITY
HOUSE OF REPRESENTATIVES
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
__________
APRIL 1, 2009
__________
Serial No. 111-15
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Printed for the use of the Committee on Homeland Security
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Available via the World Wide Web: http://www.gpoaccess.gov/congress/
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COMMITTEE ON HOMELAND SECURITY
Bennie G. Thompson, Mississippi, Chairman
Loretta Sanchez, California Peter T. King, New York
Jane Harman, California Lamar Smith, Texas
Peter A. DeFazio, Oregon Mark E. Souder, Indiana
Eleanor Holmes Norton, District of Daniel E. Lungren, California
Columbia Mike Rogers, Alabama
Zoe Lofgren, California Michael T. McCaul, Texas
Sheila Jackson Lee, Texas Charles W. Dent, Pennsylvania
Henry Cuellar, Texas Gus M. Bilirakis, Florida
Christopher P. Carney, Pennsylvania Paul C. Broun, Georgia
Yvette D. Clarke, New York Candice S. Miller, Michigan
Laura Richardson, California Pete Olson, Texas
Ann Kirkpatrick, Arizona Anh ``Joseph'' Cao, Louisiana
Ben Ray Lujan, New Mexico Steve Austria, Ohio
Bill Pascrell, Jr., New Jersey
Emanuel Cleaver, Missouri
Al Green, Texas
James A. Himes, Connecticut
Mary Jo Kilroy, Ohio
Eric J.J. Massa, New York
Dina Titus, Nevada
Vacancy
I. Lanier Avant, Staff Director
Rosaline Cohen, Chief Counsel
Michael Twinchek, Chief Clerk
Robert O'Connor, Minority Staff Director
------
SUBCOMMITTEE ON INTELLIGENCE, INFORMATION SHARING, AND TERRORISM RISK
ASSESSMENT
Jane Harman, California, Chair
Christopher P. Carney, Pennsylvania Michael T. McCaul, Texas
Yvette D. Clarke, New York Charles W. Dent, Pennsylvania
Ann Kirkpatrick, Arizona Paul C. Broun, Georgia
Al Green, Texas Mark E. Souder, Indiana
James A. Himes, Connecticut Peter T. King, New York (Ex
Vacancy Officio)
Bennie G. Thompson, Mississippi (Ex
Officio)
Thomas M. Finan, Staff Director
Brandon Declet, Counsel
Natalie Nixon, Deputy Chief Clerk
Deron McElroy, Minority Subcommittee Lead
C O N T E N T S
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Page
Statements
The Honorable Jane Harman, a Representative in Congress From the
State of California, and Chair, Subcommittee on Intelligence,
Information Sharing, and Terrorism Risk Assessment............. 1
The Honorable Michael T. McCaul, a Representative in Congress
From the State of Texas, and Ranking Member, Subcommittee on
Intelligence, Information Sharing, and Terrorism Risk
Assessment..................................................... 3
Witnesses
Sheriff Leroy D. Baca, Los Angeles County Sheriff's Department:
Oral Statement................................................. 5
Prepared Statement............................................. 7
Robert Riegle, Director, State and Local Program Office, Office
of Intelligence and Analysis, Department of Homeland Security:
Oral Statement................................................. 11
Prepared Statement............................................. 13
Russell M. Porter, Director, State of Iowa Intelligence Fusion
Center:
Oral Statement................................................. 19
Prepared Statement............................................. 21
John E. Bateman, Assistant Commander, Bureau of Information
Analysis, Texas Department of Public Safety:
Oral Statement................................................. 27
Prepared Statement............................................. 29
Bruce Fein, Principal, The Litchfield Group:
Oral Statement................................................. 40
Prepared Statement............................................. 42
Ned Norris, Jr., Chairman, Tohono O'odham Nation:
Oral Statement................................................. 47
Prepared Statement............................................. 49
David D. Gersten, Acting Deputy Officer for Programs and
Compliance, Department of Homeland Security:
Oral Statement................................................. 51
Prepared Statement............................................. 53
THE FUTURE OF FUSION CENTERS: POTENTIAL PROMISE AND DANGERS
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Wednesday, April 1, 2009
U.S. House of Representatives,
Committee on Homeland Security,
Subcommittee on Intelligence, Information Sharing, and
Terrorism Risk Assessment,
Washington, DC.
The subcommittee met, pursuant to call, at 10:08 a.m., in
Room 311, Cannon House Office Building, Hon. Jane Harman [Chair
of the subcommittee] presiding.
Present: Representatives Harman, Clarke, Green, Himes,
McCaul, Dent, and Souder.
Ms. Harman [presiding]. The hearing will come to order.
Good morning, everyone. Good morning.
Today's hearing by the Subcommittee on Intelligence is
entitled ``The Future of Fusion Centers: Potential Promise and
Dangers.''
In my view, fusion centers hold great promise. Homeland
Security Secretary Janet Napolitano, obviously, agrees, and has
said recently that fusion centers are ``the centerpiece of
State, local, and Federal intelligence sharing for the
future.''
They integrate information and intelligence from Federal,
State, local, and Tribal governments, as well as the private
sector, to provide a more accurate picture of risks to people,
infrastructure, and communities that law enforcement can
actually use.
They are not a new phenomenon. For decades, State police
agencies have run criminal intelligence and analytic units. But
the fusion centers of today differ from their predecessors in
that they are intended to broaden sources of data for analysis
and integration to include all hazards.
Right now, fusion centers are serving as a critical tool in
fighting the violence along the southwest border. They serve as
clearing houses of sorts for all the intelligence that law
enforcement agencies are gathering on the ground, regarding the
smuggling of guns and drugs. Make no question about it; these
issues are absolutely critical both for U.S. and Mexican
security.
They support law enforcement after investigations like the
one in northern Mexico, in which a group of hit men kidnapped
nine police officers, based on the orders of a cartel, and then
murdered and tortured six of them.
Thankfully, some good came of this tragedy. One of the
Mexican military officers involved reached out to an American
colleague, asking him to inspect the weapons taken from the
cartel's kidnappers. American law enforcement was able to trace
the weapon back to its origin and locate the dealer.
Senator John Kerry wrote a very good op-ed in the Los
Angeles Times on Monday about this incident. He offers
recommendations for how the United States and Mexico can
develop better joint response to violence along the border and
build trust: By creating better situational awareness of the
movement of drugs and guns across the border through the
sharing of intelligence.
I have long felt, as most of you know--based on my years
and years and years and years of experience on the Intelligence
Committee, and focused on these issues--that the sharing of
intelligence, done right, is the tip of the spear in combating
terror attacks, and, obviously, the kind of violence that we
are now seeing between the United States and--between these
Mexican drug cartels and the Mexican government.
Fusion centers near the southwest border, like the Arizona
Counter Terrorism Intelligence Center, ACTIC, are doing just
what I am talking about.
ACTIC, in partnership with the El Paso Intelligence Center,
called EPIC, is providing information to first-preventers in
the field, about the south-bound smuggling patterns of guns.
ACTIC is also developing analytic products to inform law
enforcement about the spike in kidnappings in Phoenix--the
epidemic spike in kidnappings in Phoenix.
But it is more than analysis. Fusion centers also identify
intelligence gaps in order to help law enforcement connect the
dots.
States developed fusion centers after 9/11 because the
Federal Government was slow to improve information sharing--not
only vertically, with State and local law enforcement, but also
horizontally, across our departments and agencies.
This committee has said this many times that it won't be a
bureaucrat in Washington who will thwart the next terror
attack. It will be a cop on the beat, familiar with the rhythms
and nuances of her neighborhood, who will notice something
suspicious and be best positioned to do something about it.
Fusion centers are uniquely local for this reason. One size
cannot fit all, because communities and their populations are
diverse, and so are their geographies. So it is fusion centers,
in my view, who are the tool, hopefully, to empower that cop to
know what to look for and what to do.
But steps need to be taken to get this effort right. Let me
repeat that, because we are going to hear some testimony soon
that is strongly against the existence of fusion centers. Steps
need to be taken to get this effort right.
This subcommittee held two hearings in the last Congress to
address efforts underway to provide fusion centers with the
mission focus, structure, and privacy and civil liberties
resources they need to protect our homeland, while preserving
our Constitution, which, obviously, is necessary to protect all
of us.
Today's hearing is intended to continue the examination of
the challenges that fusion centers face, and to dispel some of
the myths that still exist. For example--this is timely--in
today's Washington Post, one of our witnesses, Bruce Fein, lays
out what, in my view, is an Orwellian view of fusion centers.
He uses phrases like ``French Bourbon monarchy disease,''
and says, ``Any dissidents or political dissident is suspect to
fusion centers.'' He claims that the unfortunate situation in
Texas, which I am sure will be addressed by witnesses--a
situation which DHS has rectified--could have occurred in East
Germany's Stasi.
Well, we will address these claims. I am pleased that Mr.
Fein is here to present his point of view. I welcome him as a
witness. I urge our other witnesses, please, to read this op-
ed, and include in your testimony, and certainly in answer to
questions, your views of what I think are alarmist and over-
the-top statements about what fusion centers do.
Again, welcome to all of you. I now yield to the Ranking
Member, Mr. McCaul, for an opening statement.
Mr. McCaul. I thank the Madam Chair, and thank you for your
very strong leadership in this area. It is probably one of the
most important areas facing the Nation.
You know, when I was a Federal prosecutor, I was working
with a new entity called the Joint Terrorism Task Forces. The
idea of fusion centers was an idea that was conceptual, but we
were putting that together. I am very pleased to see that we
have them, and they are working, and they are protecting
Americans.
As Madam Chair mentioned today, this hearing does focus on
fusion centers, and their evolving role in securing our
homeland. As we all know, fusion centers are a major part of
Homeland Security information-sharing environment. They were
established primarily so that information sharing is extended
to all levels of government, at the Federal, State, and local
level.
As the terrorist attacks of 9/11 illustrated, it is
critical that State, local, and Tribal entities be part of the
post-9/11 information-sharing environment. Fusion centers have
now been created throughout the Nation, with several centers in
my home State of Texas alone.
While much progress has been made, some challenges remain.
Funding, personnel, training still need to be fully addressed,
as these centers move forward. It is also critical that these
centers are established and operate under proper guidelines. As
part of the training and baseline capabilities of these
centers, we need to ensure that privacy and civil liberties
protections are fully integrated.
I believe, as I know Chair Harman does, that privacy and
security, when done right, can coexist and flourish together.
So I look forward to examining these vital issues with our
witnesses. I look forward to the testimony. I want to thank the
witnesses for taking time out of their busy schedules to come
here and educate us here today.
With that, Madam Chair, I yield back.
Ms. Harman. I thank the gentleman.
Other Members of the subcommittee are reminded that under
committee rules, opening statements maybe submitted for the
record.
I now welcome our first panel, beginning with my sheriff,
Lee Baca, who runs 6-minute miles and commands the Los Angeles
County Sheriff's Department, the largest sheriff's department
in the United States, which directly protects over 4 million
people.
Sheriff Baca is a 44-year veteran of the department, and
was first elected sheriff in December 1998. He was reelected to
his third term in June 2006. Today, over 18,000 sworn and
professional staff serve under his leadership.
His department is the law enforcement provider to 40
incorporated cities, 90 unincorporated communities, and nine
community colleges in Los Angeles County. It also protects
hundreds of thousands of daily commuters served by the Los
Angeles Metropolitan Transit Authority, and the Rapid Rail
Transit District.
He is also the director of Homeland Security Mutual Aid for
California Region One, serving 13 million people in both Los
Angeles and Orange Counties.
Welcome, Lee.
Our second witness, Robert Riegle, serves as the director
of State and local government program office, within the Office
of Intelligence and Analysis at the Department of Homeland
Security.
Welcome, Mr. Riegle.
As the senior intelligence officer, Mr. Riegle has
spearheaded the Department's fusion center efforts. He is the
DHS representative to the Department of Justice's Global
Justice Initiative, the co-chair of the National Fusion Center
Coordination Group, and an advisory member of the Criminal
Intelligence Coordinating Council.
Prior to working at DHS, Mr. Riegle worked at Booz Allen in
the Strategic Communications Area, and at the Defense
Intelligence Agency as a National Intelligence Support Team,
NIST, intelligence specialist, serving in Operations Iraqi
Freedom, Enduring Freedom, and Noble Eagle.
Our third witness, who is well-known to this subcommittee,
and to me, Russ Porter, is the director of the State of Iowa's
Intelligence Fusion Center and the Iowa Department of Public
Safety Intelligence Bureau. Among the State, national, and
international law enforcement intelligence organizations, with
which he is affiliated, Mr. Porter is now serving his second
term as general chairman of the Law Enforcement Intelligence
Unit, chairman of the Criminal Intelligence Coordinating
Council, and is chairman of the Global Intelligence Working
Group.
He is also a member of the Interagency Threat Assessment
and Coordination Group, known as ITAC-G, Advisory Council. In
August 2002, Mr. Porter co-wrote a report that called for the
creation of both a national criminal intelligence sharing plan,
and a coordinating council. State and local fusion centers have
their roots in his recommendations.
So, welcome, Papa Porter.
Our fourth witness, John Bateman, is the assistant
commander with the Texas Department of Public Safety's Bureau
of Information and Analysis.
Mr. McCaul, I understand that you would like to introduce
Mr. Bateman.
Mr. McCaul. Thank you, Madam Chair.
I am proud and honored to introduce an individual from my
home State and home town of Austin, Texas, Mr. Bateman. Mr.
John Bateman is the assistant commander of the Bureau of
Information Analysis at the Texas Department of Public Safety.
Assistant Commander Bateman began his 25-year law-
enforcement career in 1984, as a member of the United States
Army Military Police Corps, assigned to the 1st Calvary
Division at Fort Hood, Texas.
After his military service, Mr. Bateman worked for the Bell
County Sheriff's Office, in Belton, Texas, before joining the
Texas Department of Public Safety in 1989.
He is a 1984 graduate of the U.S. Army Military Police
School, a graduate of the 1989 Texas DPS recruit school, and a
graduate of Weatherford College, where he became a member of
the Phi Theta Kappa National Honor Fraternity.
In 2001, he was the honor graduate at the Texas DPS Law
Enforcement Polygraph School, and, in 2006, graduated from the
FBI National Academy. He holds a polygraph examiner's license,
and is certified as a Masterpiece Officer by the Texas
Commission on Law Enforcement Officer Standards and Education.
We look forward to hearing from him today. I thank him for
being here.
Thank you, Madam Chair.
Ms. Harman. Thank you, Mr. McCaul.
Without objection, the witnesses' full statements will be
inserted in the record. I would now ask each of you, starting
with Sheriff Baca, to summarize your statement for 5 minutes.
There is a timer. It will start blinking at you, and something
really bad will happen if you exceed the time.
STATEMENT OF SHERIFF LEROY D. BACA, LOS ANGELES COUNTY
SHERIFF'S DEPARTMENT
Sheriff Baca. Thank you very much. I am glad to be here. I
would like to just quickly get into the testimony.
First of all, JRIC, Joint Regional Intelligence Centers,
are a model. Los Angeles is pleased to have had one of the
first in the United States. Chief Bill Bratton, myself, and
Steve Tidwell, the former assistant director of the FBI, are
the creators of this fusion center.
What is amazing about it to date, is that the productivity
and coordination of vital information is being done, whether it
is on public transportation issues, aviation issues, port
security issues; whether it is domestic terrorism working group
strategies that are necessary; whether it is combing Federal
and local public health designs that are necessary for what we
would do in a first responder environment, regarding all of the
chemicals and HazMats, and the cyber-type offenses that would
occur.
We also have extensive planning in that regard. We have a
maritime security council, which is very, very productive, and
meets quarterly. Then, of course, there is a terrorist
screening center.
When you look at it all, our Joint Regional Intelligence
Center has 364 intelligence products that have been produced
this past year. It is literally a communications center, one
that is very essential in models where threats and operational
responses can be planned.
I think what is great about this is that, No. 2, we have a
private sector outreach. That means that there are many
business community leaders that put together their information
and strategy of resources that are private sector driven,
whether it is cranes, shovels, a various amount of
transportation models, that are necessary in the event of
evacuation.
Third, there are local law enforcement--third, the local
law enforcement community has a robust amount of ideas as to
how to best protect our Nation. So my first important point
regarding our positives is that we need to continually be
involved with the development of the policy of our Federal
partners, so that we are not operating in two separate domains
of thought.
Fourth, there is a need for more information sharing.
Clearly, we are at the emerging stages of a very new
department. But more can be done. I endorse the comments by my
colleague, Sheriff Gillespie, regarding ITACG, and that is the
core mission to improve the sharing of classified information
is still an on-going process that needs to improve. We need to
do more in that regard, and look at this from a standpoint of
true partnering.
So, therefore, in looking at the next point, which--the
fusion centers themselves--when you look at as a process--they
need to have sustainable funding from the Federal Government.
We cannot do this on local dollars alone.
The next point is this: When it comes to the Terrorism
Liaison Officer program, again, the communication to
communicate laterally--the responsibility to communicate
laterally to the thousands of police agencies across America,
which constitute a web of safety for America, is an eminent
unmet need right now. Fusion centers can be coordinating
agencies as well, for all of the police departments in America.
Next, when it comes to civil liability and transparency, we
are operating under the rules of the code of Federal Regulation
28, Part 23. I have been trained, and others have been trained,
in what these rules mean. Therefore, we will continue to do
this training, because it is an on-going obligation of any
fusion center.
Next, the committee should mandate the provisions of the
Law Enforcement Assistance Program. We cannot operate alone,
without all of the seven major recommendations of this program.
We support them. We look upon the committee here, and also urge
Congress to provide appropriations to carry out the critical
law enforcement programs.
Until your report is fully adopted, our intelligence
efforts will have limited success.
Now, the future of fusion centers are simply this: Under a
national standard, fusion centers should serve all cities and
counties as a lateral network of intelligence products, which,
through JTTF and DHS and INA programs, will vertically be
shared with the National Counterterrorism Center.
The network will improve our search for terrorists and
their supporters, and leverage the skills found in JRICs
serving major urban areas, to rural communities.
I believe all available means, whether technological,
social, or political, and, thus operational, must be examined
to ensure that the events of 9/11 are not repeated.
Finally, I will conclude by saying that I want to comment
Rob Riegle and the I.A. They have been a tremendous help with
technical assistance for our JRICs. We have Joel Cohen, who is
there, in the local office that we operate. With their
assistance, we have been able to get as far as we are today.
My full testimony is on the record, with what I provided.
Thank you.
[The statement of Sheriff Baca follows:]
Prepared Statement of Leroy D. Baca
April 1, 2009
The vision for the Los Angeles Joint Regional Intelligence Center
(JRIC) emerged after the events of 9/11. Its purpose was to engage
local law enforcement as a national resource to detect and prevent a
future terrorist attack within the Los Angeles-Southern California
Region. The Los Angeles JRIC governance board recognized that the
JRIC's success required a fused working relationship with the Joint
Terrorism Task Force managed by the Federal Bureau of Investigation.
The Los Angeles JRIC began quickly because Los Angeles County was
already ahead of much of the country where a long-standing Joint
Terrorism Task Force, leveraging the skills and abilities of local,
State, and Federal law enforcement officers to combat terrorism already
existed. Additionally, the Los Angeles Terrorism Early Warning (TEW)
group had been active since 1996, sharing information among members of
law enforcement, the fire service, public health, the military, and
academia from local, State, and Federal agencies. Each participant of
the TEW had an equal voice in the development of tactics, techniques,
procedures, and protocols.
promise and dangers
The JRIC is the Model
More than 5 years ago, leaders from the FBI, Los Angeles Police
Department, and Los Angeles County Sheriff's Department decided to
expand the TEW concept and join together to create a model for
intelligence fusion and sharing centers. The vision became a reality in
July 2006 with the grand opening of the Los Angeles Joint Regional
Intelligence Center (JRIC). Using the unique analytical processes
pioneered by the TEW, that combines the efforts of law enforcement,
fire service and public health personnel, analysts from a variety of
agencies and disciplines provided an expansive view of trends and
potentials which could indicate a pending terrorist attack. I believe
that the JRIC is the model for the fusion center concept. It has been
recognized on many occasions for its pioneering efforts in exploring
prison and jail radicalization where the efforts of correctional
services experts assigned to the JRIC has led to a State-wide,
networked, group who routinely share information on the radicalization
issue. The JRIC was also the first to include personnel from the fire
service, public health, emergency medical, hazardous materials, and
bomb squads as full partners who provide subject matter expertise for
the intelligence products delivered to the JRIC clientele.
The JRIC has also served as an example for the Terrorism Liaison
Officer (TLO) outreach program. The JRIC was the first center to gain
State Peace Officer Standards and Training (POST) approval for its TLO
basic certification course. More than 500 TLO's have been trained by
the JRIC staff and are certified by the State of California.
The JRIC has a bright future and together with our Federal, State,
and local partners, we are aggressively pursuing new ways to integrate
our disparate agencies into a seamless network of information sharing
cooperatives. I believe that the future belongs to a networked fusion
center concept and its promise of local, State, tribal, and Federal
integration.
Private Sector Outreach
Outreach from the JRIC is not limited to public safety personnel.
Shortly after 9/11, I developed the Homeland Security Advisory Council
(HSAC) in an effort to network corporate leaders with the work of the
JRIC. HSAC is comprised of senior corporate leaders from Los Angeles
and Orange Counties. Members of the HSAC provide technical, political,
and financial support to our counter-terrorism mission. Through their
large sphere of influence they also provide thousands of eyes and ears
via corporate security departments who have shared dozens of incidents
of investigative interest to the JRIC.
Local Law Enforcement Must Have Input Into National Fusion Center
Policy
The major impediment to more functional fusion center operations is
the lack of equal representation and participation in the development
and implementation of standard policy for fusion centers and homeland
security matters. In many instances across the country, fusion centers
evolved from TEW groups. TEWs were developed locally with
representation and participation from law enforcement, the fire
service, public health, the military, and academia. The TEW concept was
scalable to the needs of the local participants and sensitive to the
local population. With the growth in the number of fusion centers
nationally, there is an effort to standardize the operations of these
centers. It is in this standardization effort that local leaders must
have significant input to policy development and authority over
implementation. I am not confident that policy makers at the Federal
level have a clear understanding of the information needs of local law,
fire, and health departments. Additionally, each fusion center exists
in a local area and must be sensitive to differences in demographics,
population size, and political climate. One size does not fit all and
any attempt to constrain local input into national policy development
is a mistake. We recommend that Department of Homeland Security
Intelligence & Analysis (DHS I&A) establish an Advisory Panel from the
major cities and counties. This group would provide guidance through
direct input on new products and services to be provided by DHS,
including threat advisories and other intelligence products. The Under
Secretary for Intelligence and Analysis I&A would receive support and
technical assistance across a wide range of issues, including fusion
centers, infrastructure protection, and threat assessments.
Furthermore, we ask for your support to build an integrated national
intelligence capability to counter terrorism and protect our
communities from crime through the Major Cities Chiefs Intelligence
Commanders Group. This group strengthens and coordinates the
intelligence capabilities and operations of law enforcement agencies in
major metropolitan areas. To date, this vital network of intelligence
resources has been ignored and not funded by Federal agencies. We ask
the committee to support this effort so that your objectives may be
realized.
Lack of Information Sharing From Federal Agencies
With all the positive things that have occurred in the past several
years, there are still lingering obstructions to information sharing
between the Federal Government and local police agencies. A major
impediment to the success of the fusion center concept is the
bifurcated information flow from Federal agencies that collect
intelligence. The FBI has an analysis component that provides
intelligence to their agents through the Joint Terrorism Task Force
(JTTF). The JTTF is an investigative body and is not responsible for
the dissemination of intelligence to local authority. The JRIC is
fortunate in that a JTTF Counter-Terrorism squad is physically located
within JRIC workspace. This has mitigated many of the information
sharing problems experienced by other fusion centers. However, a local
Task Force Officer (TFO) may not share information with his or her home
agency without demonstrating the receiving entity's specific ``need and
right to know.'' In this regard, I endorse the recent comments made in
front of this committee by my colleague, Sheriff Gillespie regarding
the Interagency Threat Assessment and Coordination Group (ITACG).
Although its core mission is to improve the information sharing from
classified sources between the intelligence community and front-line
``first preventers,'' the ITACG is limited to editing intelligence and
returning those products to originating agencies where the information
may or may not reach State and local law enforcement personnel.
Policies and procedures must be developed to fully brief an Incident
Commander in the field about information that may be crucial in
planning the response to a significant event.
Additionally, ``Federally coordinated intelligence products''
coming out of the NCTC have not met the needs of local law enforcement
in either subject matter or timely distribution. Fusion centers with
responsibility for large geographic areas (like the JRIC) require
meaningful and expedient national information to ``Fuse'' with locally
generated collection in order to provide clear situational awareness to
those who will be responsible for sending first responders to the
after-effects of a terrorist attack. The safety of the citizens of our
jurisdictions and the wise expenditure of scarce resources depends in a
large part on timely, accurate, and actionable information from the
Federal Government. This is especially true during an event that occurs
overseas. Local leaders should not have to rely on media outlets for
information when agents from our own Government are on-scene and
reporting to their home agencies. This type of information is critical
to local situational awareness and potential response and therefore,
must be shared immediately. To help remedy this situation, we ask that
ITACG expand and empower its outreach components to include access to
training and use of intelligence systems and databases. The ITACG
should be authorized as an approved dissemination point for State and
local fusion centers Nation-wide. IATCG liaison personnel and desk
officers are necessary to maintain a flow of current intelligence and
must have authority to release information to State and local agencies.
Fusion Centers Must Have Sustainable Funding From Federal Government
The JRIC (as well as many other fusion centers) suffers from a lack
of sustainable funding. The FBI and local law enforcement have been
extremely generous in providing much of the funding and personnel
necessary to cover the start-up and maintenance costs of the JRIC. To
sustain these personnel, technological, and logistical requirements in
good times and bad are a significant drain on local budgets. Each year
the JRIC struggles with accumulating enough funding from the local
participants and various UASI and SHSGP grants just to remain
functional. In the past, funds from the Law Enforcement Terrorism
Prevention Program (LETPP) were also available as a separate funding
source for this purpose at a minimum of $500 million. However, with the
existing grant restrictions relative to personnel and operational
needs, and the elimination of LETPP as a separate funding source, the
future sustainment of the JRIC is uncertain. I believe that only
sustainable funding through the Department of Homeland Security will
ensure the critical efforts of the JRIC, and fusion centers across the
Nation are not in danger of curtailment. Therefore, I am recommending
to Congress that the LETPP grant be reestablished under the authority
and administration of the Department of Homeland Security's Assistant
Secretary for State and Local Law Enforcement. This will ensure that
vital funding for our prevention efforts are no longer diluted within
the existing grant structure, and the future of fusion center
operations to perform their role in National Security will be secure.
Terrorism Liaison Officer Program
One endeavor operating out of the JRIC that has national relevance
is the Terrorism Liaison Officer (TLO) program. Originated shortly
after 9/11, this effort seeks to create a network of trusted agents
within each law enforcement, fire, and health agency in Los Angeles
County. These TLOs are committed to passing critical information from
the JRIC to their field assets as well as answering requests for
information. Numerous leads of investigative interest have been
generated by local police officers, firefighters, and health
professionals as a result of this program: This level of intelligence-
based connectivity between field personnel is unprecedented and has
enabled the JRIC to have the highest levels of situational awareness
possible. Information provided by the TLO network contributes to the
development of intelligence that is disseminated weekly to the
executive staff of participating agencies, field operators, and line
personnel. The TLO network also serves as the foundation for the
implementation of the recently developed national Suspicious Activity
Reporting (SAR) program, which the Major Cities Chiefs supports.
Without the consistent messaging and training provided by the TLO
coordinators, critical information, including SARs, from the field may
go unreported. Currently, there are only two full-time personnel
assigned to the TLO program. These two individuals are responsible for
the coordination of information flow from seven counties comprised of
89 independent agencies in an area of 8,000 square miles. Other than
these two individuals, each TLO in the JRIC area of responsibility is
handling these duties collateral to a regular, full-time, assignment.
Another example of the need for sustainable funding is the critical
assistance provided by contract analysts. These analysts arrive at the
JRIC already trained and possessing the requisite security clearances
to begin working immediately. Without the help of these highly trained
professionals, JRIC products would lack the sophistication that results
in more actionable information being disseminated to the field. I
propose that with refunding of LETPP commensurate with lessened
restrictions on expenditures, such as the ability to hire personnel,
these additional TLO and Analyst positions can be authorized to ensure
that critical information from the field does not go unreported or
unanalyzed.
Civil Liability and Transparency
Civil liability and operational transparency is another major
challenge faced by fusion centers. The public will not accept
intelligence collection that does not adhere to privacy requirements
demanded by the Constitution. Information collection and intelligence
dissemination must be conducted under specific guidelines and rules.
Those rules exist primarily in the Code of Federal Regulation 28 Part
23. That code has been recently updated to include investigations of
terrorism and is the recommended course of action for intelligence
units agencies. Additionally, each fusion center has been tasked with
creating a ``privacy policy'' for those that participate in the
Suspicious Activity Reporting (SAR) project. This policy must not be in
conflict with 28 CFR Part 23 while providing the public with the
privacy rights established under law. DHS should allocate sufficient
resources to ensure proper training is provided to each fusion center
employee and those that contribute to its efforts.
The Committee Should Mandate the Provisions of LEAP
The Department of Homeland Security has embraced the fusion center
concept and is leading the charge for standardization of operations.
Local law enforcement has been a loyal partner and is the originator of
the fusion center structure (TEW). The impediments I have discussed in
my testimony are solvable. DHS has the opportunity to make local law
enforcement an equal partner in the development of policy, provide
sustainable funding, and share information more equitably while
protecting the rights of our citizens. We support all seven of the
initiatives articulated in the LEAP report published by the House
Committee on Homeland Security and we urge Congress to provide
appropriations to carry out those critical law enforcement programs.
Until your report is fully adopted, our intelligence efforts will have
limited success.
the future of fusion centers
Fusion Centers Should Be the Gateway for All Local Police and Sheriff's
Departments Nation-wide
Under a national standard, fusion centers should serve all cities
and counties as a lateral network of intelligence products, which
through the JTTF and DHS I&A programs will vertically be shared with
the National Counter Terrorism Center (NCTC). This network will improve
our search for terrorists and their supporters and leverage the skills
found in the JRICs serving major urban areas to rural communities.
I believe that all available means, whether technological, social,
political, or operational must be examined to ensure that the events of
9/11 are not repeated. As the elected leader of the Los Angeles County
Sheriff's Department, I am committed to expanding cooperation with all
Federal, State, and local agencies in our efforts to combat terrorism.
The citizens of Los Angeles County and the Nation deserve a secure
homeland. No one agency can provide that security. Only by working
together in a collaborative, mutually supportive environment can we
provide the security we all felt prior to September 11. I look forward
to answering any questions you may have.
Attachment 1.--Los Angeles JRIC Successes
The JRIC is involved in numerous working groups--unlike most
fusion centers, some of those working groups are listed below
(not all inclusive):
MTA/AMTRAK meetings (monthly);
Aviation Security Group (bi-weekly);
Port Intelligence Group (monthly);
Domestic Terrorism Working Group (monthly);
FBI/Public Health Exercise Design Working Group (monthly);
WMD/HAZMAT Working Group (monthly);
Area Maritime Security Council Meetings (quarterly);
Terrorist Screening Center Outreach (ad hoc).
The JRIC produces more strategic, tactical, and
informational bulletins than most fusion centers and our
outreach has received Nation-wide attention.
Within the past calendar year the JRIC has produced over 364
intelligence-type products which has been disseminated within
our 7-county AoR as well as to NY, Chicago, and Washington, DC.
The JRIC is unique in that it simulates a ``smaller D.C.
beltway'' . . . the JRIC has all the components in the center
like Washington, DC: JRIC Executive Director is an FBI GS-15,
State, Local, Fire, Health, Private Sector, DHS, FBI-JTTF, FBI
Field Intelligence Group, contract/civilian analysts and a TSC
rep . . . we have demonstrated the value of leveraging all
these resources to accomplish the mission.
The fusion center concept works in Los Angeles and we are
the role model for true information sharing and collaboration.
It is quite simple. Everyone places their agency hats at the
door, is dedicated to the mission, and has passion for
protecting our homeland.
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Ms. Harman. Thank you, Sheriff Baca.
Mr. Riegle.
STATEMENT OF ROBERT RIEGLE, DIRECTOR, STATE AND LOCAL PROGRAM
OFFICE, OFFICE OF INTELLIGENCE AND ANALYSIS, DEPARTMENT OF
HOMELAND SECURITY
Mr. Riegle. Thank you.
Chair Harman, Ranking Member McCaul, and Members of the
subcommittee, I want to thank you for the opportunity to appear
today, especially with my distinguished colleagues at the State
and local level. It is an honor to sit at the table with them.
As you mentioned, Secretary Napolitano believes a greater
level of information sharing between Federal, State, local, and
Tribal territorial partners, to be absolutely essential to the
strengthening of the safety of the homeland.
Since the inception of my office in 2006, the fusion center
program has been closely examined by Government and private
entities. We have welcomed thoughtful scrutiny from the privacy
and civil rights and civil liberties advocacy communities. We
have welcomed the interest from the media.
We have also welcomed review by the General Accounting
Office, the Office of Inspector General, and each of these
opportunities--and I stress they are all opportunities--have
allowed us to engage in critical dialogue about our program,
address misconceptions, and educate stakeholders about the role
of fusion centers in connecting Federal, State, local, Tribal,
and territorial partners, in order to share in valuable threat
information and intelligence.
In short, this scrutiny has improved our effectiveness, and
it has strengthened the national network of fusion centers. We
welcome further scrutiny.
The State and local program office has been successful in
meeting every program target that has been established. We have
enhanced our Federal interagency coordination through the
establishment of the National Fusion Center Coordination Group,
of which Mr. Porter is a member.
We have also hired 34 intelligence operations specialists
to support fusion centers across the country. With our
colleagues at the FBI, we have jointly designated 70 fusion
centers, one in every State and major city, as part of this
national network. These centers have agreed to conform to the
baseline capabilities that have been released over the past
year.
Thorough a close partnership with FEMA, National
Preparedness Directorate, and the Department of Justice Bureau
of Justice Assistance, we have deployed more than 145
technical-assistance deliveries to fusion centers, ranging from
civil liberties-civil rights training, to establishing liaison
officer programs. We have delivered privacy training to every
deployed INA intelligence operations specialist.
These accomplishments demonstrate that the State and local
programs office continues to proactively support our State and
local partners, while respecting and protecting the privacy,
civil rights, and civil liberties of Americans.
We are confident that the future of the fusion centers and
the program will continue to operate in a manner that respects
the balance between supporting this important mission, and
respecting and protecting Americans' rights.
The fusion center program marks the first time in United
States history where there has been a codified, multi-level,
multi-agency approach for sharing threat information and
intelligence. Today, by leveraging the fusion center network,
we have the ability to share information between the Federal
Government and in every State capital.
Just as we operate within the National Response framework,
and coordinate with emergency management officials, and EOC,
during response efforts, we now have the same ability to
communicate and transmit threat information almost immediately.
We are grateful for our relationships with the State and
local, Tribal and territorial partners. I cannot emphasize to
you enough the importance of this relationship, and how honored
I feel to work with these individuals. There is no Federal
Government 911. We recognize the heavy lifting is done at the
State and local level.
The national fusion center network is fundamentally a
grassroots effort, led by the State and localities who own and
operate these fusion centers. The Department recognizes that
our State and local partners do the lion's share of the work
necessary to develop, sustain, and enhance this network.
Fusion centers are successful only through the daily work
of law-enforcement officers, firefighters, emergency managers,
public-health workers, and territorial partners.
In conclusion, we ask that Congress work with the
Department, under the leadership of Secretary Napolitano, to
provide robust, vibrant support for all of those partners who
benefit from this relationship, and ensure the long-term
success of this program.
We know that this program has filled efficiencies across
the Department, and we expect to continue to develop those
effectiveness working with our Federal partners in the future.
Thank you.
[The statement of Mr. Riegle follows:]
Prepared Statement of Robert Riegle
April 1, 2009
introduction
Chair Harman, Ranking Member McCaul, and Members of the
subcommittee: Thank you for the opportunity to appear before you today
to discuss the Department's efforts to keep America safe through a
vibrant network of fusion centers. Secretary Napolitano believes a
greater level of information sharing between Federal, State, local,
Tribal and territorial partners to be absolutely essential to
strengthening the safety of the homeland. Thanks in large part to
statute developed by this committee, the Department's Office of
Intelligence and Analysis (I&A) has lead responsibility in implementing
this enormously critical, but challenging task. We are especially
grateful to have the opportunity to highlight I&A's many collaborative
efforts to deepen, strengthen, and expand this partnership between
Federal, State, and local law enforcement and information-sharing
officials.
Secretary Napolitano reaffirmed her support for the fusion center
program in her March 11 speech to close to 1,000 fusion center
stakeholders convened from across the country at the National Fusion
Center Conference in Kansas City. In her remarks, she stated ``I
believe that fusion centers will be the centerpiece of State, local,
and Federal intelligence sharing for the future and that the Department
of Homeland Security will be working and aiming its programs to
underlie fusion centers.''
Fusion centers are the core means by which we promote Federal,
State, local, and Tribal information sharing. Today, the Department of
Homeland Security and the Department of Justice recognize 70 fusion
centers, including ones in every State and every major city of the
United States. Nearly half of these centers have been stood up since
2006 and have grown rapidly in number and effectiveness. Many fusion
centers are in their infancy and many infrastructure challenges remain,
but the successes that the centers have realized thus far give us good
reason for our continued support.
The primary mission of fusion centers is information sharing. Just
as Congress and the 9/11 Commission have recognized, information
sharing is vital to protect the American people and our institutions.
The success of the national network of fusion centers is crucial to the
Department and to the States in achieving greater situational awareness
toward the threats we face.
Fusion centers are force multipliers. They leverage financial
resources and the expertise of numerous public safety partners to
increase information awareness and help our law enforcement agencies
more effectively protect our communities. Thoughtful analysis about
risks to our communities supports elected officials and homeland
security leaders. This enables States and localities to better utilize
limited financial resources to make effective, risk-based decisions
about public safety matters and mitigate threats to the homeland.
Fusion centers focus on empowering State, local, and Tribal
governments, as well as feeding critical information back to Federal
intelligence and law enforcement officials. Each fusion center has
capabilities unique to the needs and requirements of the jurisdiction
where it is located. The Federal Government is pleased to partner with
the States and localities that own and operate fusion centers.
I&A's relationship with the fusion centers is governed by Section
511 of Public Law 110-53, Implementing Recommendations of the 911
Commission Act of 2007 (the 911 Commission Act) which amended the
Homeland Security Act of 2002, the National Strategy for Information
Sharing, as well as the Department's internal Fusion Center
Implementation Plan of 2006.
I&A serves the fusion centers by providing infrastructure and
analytical context to information. This ensures that there is a true
two-way flow of information between States and localities and the
Federal Government, and between law enforcement and the national
intelligence community. I&A goes to great lengths to make sure fusion
centers have the infrastructure tools, access to all necessary
information, right Federal partners, and training.
To ensure we effectively implement this charge, I&A established a
State and Local Program Office (SLPO) to serve as the executive agent
for Departmental engagement with fusion centers. As the executive
agent, I&A provides support to fusion centers through personnel and
system deployments, training and technical assistance, security
clearance support, and intradepartmental coordination and outreach
efforts on behalf of the national fusion center network.
the department's role in fusion centers
The Department is actively involved in enhancing the national
network of fusion centers and is committed to accelerating the
deployment of personnel and technology to fusion centers. To that end,
we have deployed 34 Intelligence Operations Specialists who serve as a
critical link between their fusion centers and the Department. We are
hopeful that by the end of fiscal year 2010 we will have deployed an
officer to each of the 70 designated fusion centers. Just recently, I&A
shifted nearly 20 additional billets from headquarters to assignments
at fusion centers.
The deployment of DHS Intelligence Operations Specialists augments
the analytical capabilities of the fusion centers. We believe this
contributes greatly to the goal of achieving the analytic depth and
geographic breadth necessary to effectively identify, provide context
to and share vital information gleaned by sworn law enforcement
officers and other State and local officials during the course of their
daily duties. As fusion centers continue to mature, we expect to
continue to grow the pool of analysts capable of connecting the dots
and conducting information sharing and analysis in the manner intended
by Congress. In addition to sharing Federal information with State,
local, and Tribal entities, and sharing their information with Federal
agencies, DHS analysts at fusion centers provide real-time situational
awareness to the Secretary and the Department as well as all levels of
government in times of crisis.
Thanks in large part to your guidance and efforts within the
Department, I&A's intelligence enterprise information management team
has installed more than 30 Homeland Secure Data Network (HSDN)
terminals, a SECRET-level collateral network, in fusion centers and
will install HSDN terminals in all 70 fusion centers as soon as all
security requirements are met. We purchase and operate the network for
the fusion centers. Through these efforts, DHS ensures the protection
of Federal information shared within these fusion centers.
In addition to HSDN, I&A launched the Homeland Security State and
Local Community of Interest (HS SLIC) about 1 year ago. HS SLIC is a
``virtual community'' of intelligence analysts from Federal, State, and
local entities. Intelligence analysts collaborate via weekly threat
conference calls, biweekly secure video teleconferences, analytic
conferences, and a secure Web portal for intelligence information
sharing at the controlled unclassified information (CUI) level, via HS
SLIC.
In January 2008, we strengthened our service relationship with
fusion centers by establishing a ``Single Point of Service (SPS)''
program. This program brings together many DHS Intelligence and
Operations elements to give local customers a 24-hour, one-stop
shopping resource to request support, communicate product requirements,
and share critical information with DHS and its components. The
Department has consolidated tracking by standardizing all
communications and queries in a single format--State and Local Support
Request (SLSR)--which includes requests for information, production,
administrative tasks, analysis, and a wide range of support functions.
In the last quarter of 2008, the SPS team serviced 659 SLSRs from 36
States.
We are strengthening core competency training programs for fusion
center operations to make interactions with State, local, and Tribal
entities even more effective. I&A training programs are designed to
meet the intelligence training needs of our partners. We offer Critical
Thinking and Analytical Methods (CTAM), Principals of Intelligence
Writing and Briefing (PIWB), as well as the Analytic and Critical
Thinking Skills Workshop training modules to our State and local
partners. The CTAM and PIWB courses are currently available at DHS I&A,
and are also being converted to a web-based format. All of the courses
are tuition-free; grant funds may be applied to fund travel to all of
these courses.
The Department, via the FEMA National Preparedness Directorate
(NPD) and in conjunction with the U.S. Department of Justice, offers
services under the Fusion Process Technical Assistance Program to
facilitate the development and operation of a national network of
fusion centers. Part of the overall Technical Assistance Program
managed by NPD, the Fusion Process technical assistance provides for 13
specific services available to fusion centers, including services to
support the development and implementation of privacy policies,
suspicious activity reporting, and the implementation of liaison
officer programs. To date, the Fusion Process Technical Assistance
Program has provided more than 145 services and more than 40 fusion
center exchanges. In addition to the Technical Assistance services, the
program has supported a host of national and regional workshops,
fellowships, exchange opportunities, and on-line resources for fusion
center personnel.
DHS, along with the FBI, provides support by granting security
clearances for eligible State and local partners, as well as support in
other areas of security, including policy development and document
storage and handling resources.
Beyond this operational support, the Department is actively
supporting fusion centers to form an association, as suggested by the
House Homeland Security Committee last year, through which they can
organize their efforts at a State-to-State level and serve as an
advocacy body for the fusion center initiative. This association became
a reality at the 2009 National Fusion Center Conference and has already
created a list of concerns that is addressed in the challenges section
below. The national conference in Kansas City and regional conferences
are among the efforts we use to bring fusion center leaders and
stakeholders together. Conferences allow participants to forge
relationships, exchange best practices, learn how to build partnerships
with their local communities and privacy and civil liberties advocates,
and gain knowledge about new trends, tools, and technologies that can
help fusion centers improve their analytic capabilities.
enhancing federal support
Our work toward a national, integrated network of State and major
urban area fusion centers is defined by the National Strategy for
Information Sharing. It states that ``a sustained federal partnership
with . . . fusion centers is critical to the safety of our nation, and
therefore a national priority.'' Our objective is to assist State and
local governments in the establishment and sustained operation of
fusion centers.
The National Fusion Center Coordination Group (NFCCG) was
established to coordinate the Federal Government's support to fusion
centers. The NFCCG provides leadership, coordination, and guidance in
the development and Federal support to the national integrated network
of fusion centers. Co-chaired by the Department of Homeland Security
and the FBI in partnership with the Department of Justice, the Global
Justice Information Sharing Initiative, the Office of the Director of
National Intelligence, and the Program Manager for the Information
Sharing Environment, the NFCCG is the interagency coordination
mechanism used to assist Federal agencies in carrying out their
responsibilities to implement effective policies related to fusion
center support.
protecting the civil rights and civil liberties of americans
We take the commitment to respect and protect the privacy, civil
rights, and civil liberties of American citizens seriously. We partner
with the DHS Privacy Office, the DHS Office for Civil Rights and Civil
Liberties, and the Office of General Counsel to make sure that all of
our efforts are consistent with our obligations to the American people.
We require all I&A staff assigned to fusion centers to receive specific
training and to have subject matter expertise on all relevant privacy,
civil rights, and civil liberties issues. We do this as a matter of
practice and as required by Section 511 of the 9/11 Commission Act.
We are equally committed to ensuring that all those working at
fusion centers are fully cognizant of their privacy and civil liberties
obligations. In December 2008, the Department conducted and published
both a Privacy Impact Assessment (PIA) and a Civil Liberties Impact
Assessment (CLIA) for the Initiative. The PIA made a number of specific
recommendations that fusion centers can implement to enhance privacy.
These include completing their written Information Sharing Environment
privacy protection policies, and creating governance structures and
procedures to protect privacy and to understand and implement the set
of privacy protections called the Fair Information Practice Principles
(FIPPs). These include protections related to data integrity, use
limitation, data minimization, and others. Perhaps the most important
recommendation in the PIA furthered the transparency principle; the DHS
Privacy Office recommends that each fusion center conduct a PIA
evaluating its own operations, make it available to the public, and
then engage with its local communities.
Once these documents and principles are in place, training becomes
the centerpiece of ensuring that fusion centers adhere to their privacy
and civil liberties policies. Accordingly, we provide specific training
support and resources to fusion centers across the Nation, along with
the DHS Privacy Office and Office for Civil Rights and Civil Liberties
and the Department of Justice's Bureau of Justice Assistance. As a
result of this partnership, we launched a Web site with resources for
fusion center personnel on privacy and civil liberties issues. We have
proactively worked with the DHS Privacy Office and the Office for Civil
Rights and Civil Liberties since the beginning of the program and
consider our relationship with them to be among the closest and most
productive in the Department.
incorporating diverse partners
Increasingly, fusion center operators see the benefits in a multi-
disciplinary homeland security approach to information and intelligence
sharing. Many are now seeking to include the fire, public health, and
private sectors in the fusion process. This includes cybersecurity
concerns which cut across Federal, State, local, Tribal and private
sector partners. The Department is assisting fusion centers with this
outreach by serving as a coordinating body for the fire, public health,
and critical infrastructure and key resources (CIKR) efforts by
identifying key players, facilitating discussions, and assisting with
the development of a framework for sharing information/intelligence
within critical infrastructure sectors. DHS aims to increase awareness
of the fusion center program and existing information and intelligence
sharing tools, assist the fire service and public health sectors with
identifying their intelligence requirements, facilitate relationships
among agencies/offices, and provide security clearances to appropriate
members of private sector leadership.
Tribal
The Department regularly encourages Tribes to participate in or
establish relationships with their nearest fusion center. The
Department, through I&A, is working with Tribal law enforcement and
homeland security advisors to engage them in information sharing, with
particular emphasis on our relationship with the Tohono O'odham Nation
(TON), given its international border location. Department officials
also have met individually with senior representatives of the Navajo
Nation, Salt River Pima Maricopa Indian Communication, and the
Chickasaw Nation, among others. In February 2009, DHS, working in
conjunction with the DOJ Office of Tribal Justice, launched the
Homeland Security Information Network--Tribal (HSIN-Tribal). This
secure Web site provides Federal and tribal homeland security
professionals with an on-line site to share information, make
announcements, and obtain news that will help them in their efforts to
provide for safe and secure communities.
I&A, in conjunction with the Department of the Interior (DOI), is
working to create a Tribal/Terrorism Liaison Program for Law
Enforcement Officials. This initiative includes a 3-day training
program for Tribal law enforcement on the development of information-
sharing practices with DHS and State and local fusion centers. To date
the SLPO, with the assistance of the Director, Office of Homeland
Security and Emergency Services Indian Affairs DOI, has nominated 16
Tribal Chiefs of Police and/or Emergency Managers for SECRET
clearances. These efforts are sure to increase as a result of Secretary
Napolitano's decision to institute the Department's first-ever
consultation policy to engage the direct and interactive involvement of
Indian Tribes in developing regulatory policies, recommending grant
procedures for tribes, and advising on key issues.
Critical Infrastructure/Key Resources
DHS, in coordination with the Office of Infrastructure Protection
and the State, Local, Tribal, and Territorial Government Coordinating
Council, developed a capability appendix to the U.S. Department of
Justice's Global Justice Information Sharing Initiative's (Global)
Baseline Capabilities for State and Major Urban Area Fusion Centers
(baseline capabilities document). This baseline capabilities document
defines the capabilities and standards necessary for a fusion center to
be considered capable of performing basic functions (e.g., the
gathering, processing, analyzing, and disseminating of terrorism,
homeland security, and law enforcement information). The CIKR appendix
provides guidance for those fusion centers that have chosen to support
critical infrastructure protection activities; it identifies the
additional capabilities fusion centers should achieve in order to
effectively integrate CIKR activities into their analysis and
information/intelligence sharing processes; and identifies how the
center should support risk-reduction efforts taken by Federal, State,
local, and private sector partners. The appendix encourages CIKR-
related capabilities in fusion centers to be centered on the
development of key analytical products, such as risk and trend
analyses.
In furtherance of this goal, I&A's SLPO is jointly sponsoring a
workshop with the Office of Infrastructure Protection (IP) and FEMA/NPD
Technical Assistance Program to bring together stakeholders from the
CIKR communities. This workshop is intended to provide a forum to
identify and discuss the as-is State/local CIKR protection environment
and current CIKR protection capabilities, as well as strategic
considerations for State and urban area officials responsible for the
development, implementation, and operation of a CIKR protection
program. Participants will discuss information sharing and intelligence
needs and best practices, and report on existing information sharing
capabilities with, and within, the CIKR community. The workshop will
provide support for the integration of CIKR protection efforts with on-
going fusion center and information/intelligence sharing efforts. DHS/
IP is currently developing a NIPP Implementation Guide for State and
local jurisdictions. This will support the practical considerations
associated with the implementation of that guide.
Emergency Management
The SLPO is jointly sponsoring a series of workshops with the FEMA/
NPD Technical Assistance Program to be held in each of the 10 FEMA
regions in order to discuss partnerships, roles, and responsibilities,
and the processes by which operational hand-off and information
exchange can and should occur during steady-state, forward-leaning and
response activities. The focus of these workshops will vary as
requirements and the strength of existing relationships dictate, but
they will provide an opportunity for fusion centers to educate their
Federal emergency management counterparts on existing capabilities, as
well as better understand how to leverage FEMA regional resources.
Fire Service
We have developed a new Fire Service Intelligence Enterprise (FSIE)
initiative to incorporate Fire Service interests (defined as fire and
emergency operations, emergency medical service operations, rescue
operations, hazardous materials operations, fire prevention/protection,
fire investigation, incident management, and responder safety) into
national standards, protocols, and mechanisms for homeland security
information and intelligence sharing. The FSIE represents a
collaborative initiative of several Department of Homeland Security
(DHS) entities--the SLPO and the U.S. Fire Administration (USFA), with
support from FEMA/NPD.
FSIE goals are being pursued by promoting fire service integration
within State and Major Urban Area Fusion Centers, and by facilitating
the identification and/or development of information and intelligence
sharing requirements, mechanisms, technical assistance, and training.
Activities performed to achieve these goals are being closely
coordinated with other offices within DHS, other Federal agencies, and
national, State, local, tribal, and territorial fire service
organizations to ensure the initiative is pursued in an effective and
efficient manner. We believe the FSIE will benefit the collective
homeland security effort by enhancing the preparedness level of Fire
Service organizations across the country, while supporting the
prevention, protection, response, and recovery efforts of all homeland
security partners.
Public Health
The Health Security Intelligence Enterprise (HSIE) is an initiative
to integrate Public Health and Healthcare Community (PH/HC) interests
into the processes of homeland security information and intelligence
exchange. The establishment of an institutionalized health security
information and intelligence sharing framework will enhance the
preparedness level of PH/HC practitioners across the country, while
supporting the all-hazards approach to prevention, protection,
response, and recovery efforts of all homeland security partners.
Federal, State, local, Tribal, and private sector stakeholders are
working collaboratively to develop a framework to enhance sharing of
health security information. This approach allows the HSIE initiative
to best meet the needs of the PH/HC community and others who benefit
from the enhanced information-sharing environment. These efforts will
foster communication and collaboration among PH/HC organizations and
between the PH/HC, the Federal homeland security and intelligence
communities, and State, local, and tribal law enforcement and public
health and safety stakeholders.
The integration efforts with these DHS partners provide
efficiencies and allow the Department to be represented in a user-
friendly manner to State and local stakeholders. In many ways, the
fusion center initiative, through the SLPO, has done more to integrate
the Department than any other program.
enabling fusion center success
The ability of fusion centers to accomplish an all-crimes and all-
hazards mission requires long-term investment. To date, there have been
several fusion center success stories.
One such success occurred in May 2008, when the DHS Intelligence
Operational Specialist for Northern California coordinated with Federal
officials on an Amber Alert for a 3-year-old child who was to be taken
out of the United States by a suspect wanted for rape and murder. By
coordinating with DHS officials, local law enforcement, and INTERPOL,
the DHS Intelligence Operations Specialist was able to track the
suspect and the kidnapped child to a flight bound for the Netherlands.
With only hours to spare, the DHS Intelligence Operations Specialist
coordinated with authorities to ensure law enforcement authorities in
Amsterdam detained the subject. The child was recovered unharmed.
In March 2007, the Denver Fire Department responded to seven cases
of SUVs being firebombed. Investigators requested the Colorado
Information Analysis Center's (CIAC) assistance in developing case
information. The CIAC developed a report that included a description of
the suspect's vehicle. Based on this report, the suspect in the crimes
was arrested shortly thereafter keeping the community safe from
additional fire hazards.
These are just two examples of the difference that fusion centers
are making each day in neighborhoods and communities across America. At
DHS, we see the success of this network as vital to greater situational
awareness of the risks facing our State, local, tribal, and territorial
partners across the country. We have even seen how information
developed by a fusion center can inform the President's Daily Brief and
open investigations related to terrorism overseas.
challenges
Tremendous progress has been made in building the national fusion
center network, but many challenges remain. Fusion center directors
identified a series of challenges at the successful March National
Fusion Center Conference. The following challenges were identified at
this year's national conference by fusion center directors:
Dissemination
Providing timely, actionable information to the ``first preventers
and first responders'' on the ground is critical to protecting the
homeland. Many fusion centers maintain fusion center liaison programs
that support their effort to more broadly disseminate Federal
information to State and local law enforcement and homeland security
partners. Expanding these liaison programs will facilitate even broader
dissemination of critical homeland security information. The
ineffective use of tear lines was a key dissemination issue highlighted
by fusion center directors as an impediment to information sharing. We
are committed to working with State and local partners to improve
dissemination and provide the right products to the right people in a
timely fashion. This would compliment tear line improvements for the
private sector currently being undertaken by DHS and its intelligence
community partners.
Sustainment
DHS recognizes that during this time of national economic
austerity, fusion centers are looking to the Federal Government to
provide increased, targeted support. Specifically, fusion center
directors have requested direct funding for fusion centers.
Outreach
Fusion center directors seek more sustained and consistent outreach
from Federal partners. To this end, DHS has developed and is beginning
to implement a strategic communications and outreach advisory plan. In
addition, the Department has begun to scope a technical assistance
program to provide individual fusion centers with communications and
outreach support. Through these efforts, fusion center stakeholders at
all levels can speak with ``one voice'' about the mission, purpose, and
value of the fusion center program.
Data Interoperability
Use of a common fusion center backbone/platform for information
sharing has been recognized as key to better information sharing and
collaboration. Fusion center directors indicated that leveraging
framework of the Suspicious Activity Reporting (SAR) Initiative could
be beneficial in further standardizing use of technology across the
fusion center network.
the future of fusion centers
As noted many times by you Chair Harman, and by Secretary
Napolitano, fusion centers are a vibrant component of national
security. We believe we are getting better at identifying and servicing
fusion center needs. We take great pride in the results of the 2008
National Governors Association Center for Best Practices indicating
more than 75 percent of respondents expressed satisfaction with their
communication with DHS. This is a significant increase over the 42
percent satisfaction rate reported in 2007.
To continue to improve the fusion center initiative, Federal,
State, local, Tribal, and territorial stakeholders have recognized the
critical need for fusion centers to maintain a consistent level of
baseline capabilities in order to operate as an integrated national
network. In September 2008, the Baseline Capabilities for State and
Major Urban Area Fusion Centers, an addendum to the Fusion Center
Guidelines, was released by the Department of Homeland Security, the
Department of Justice, and the Global Justice Information Sharing
Initiative.
The Baseline Capabilities document defines a set of capabilities
that will support Federal, State, and local agencies to conduct long-
term planning and identify the costs and resources necessary for the
achievement and sustainment of fusion centers. It also supports the
Federal Government's efforts to identify the types of resources needed
by States and localities, and ensures they are provided in a consistent
and appropriate manner. The capabilities also assist in ensuring that
fusion centers have the basic foundational elements for integrating
into the national Information Sharing Environment.
Today, most fusion centers are in the process of achieving the
capabilities. Since resources and priority mission areas vary from
center to center, it is expected to take a period of up to 5 years for
all fusion centers to years to achieve all of the capabilities. Some
centers may not need to ``house'' all of these capabilities, but may
choose instead to leverage another fusion center or other operational
entity's capability.
In closing, we recall Chair Harman's comments at last April's House
Homeland Security Committee hearing that ``it is unlikely that the next
President, DHS, the FBI, or the wider intelligence community will
prevent the next terrorist attack. Instead, a diligent police or
sheriffs' officer somewhere in America--during the course of his or her
daily work--will see something or someone out of place, and guided by
timely, accurate, and actionable information, will connect the dots
that will unravel a plot in-the-making.'' We agree, and that is why we
welcome a deeper partnership with this committee in making sure this is
reality.
Ms. Harman. Thank you, Mr. Riegle.
Mr. Porter.
STATEMENT OF RUSSELL M. PORTER, DIRECTOR, STATE OF IOWA
INTELLIGENCE FUSION CENTER
Mr. Porter. Chair Harman, Ranking Member McCaul, Members of
the subcommittee, thank you very much for convening this
hearing. You have my written statement, and the
acknowledgements that are in it. I would like to just
highlight, quickly, a couple of things from that.
Then, Madam Chair, as you have encouraged, I would like to
respond to the commentary that appeared today in the Washington
Times.
First of all, I addressed in my statement the potential
promise that does currently show, and does exist, with fusion
centers. Key stakeholders, like State homeland security
directors are telling us that fusion centers have become vital
resources for information sharing and coordination for them.
They are not the only stakeholders that are saying that. That
is evidenced by the survey of the National Governor's
Association Center for Best Practices.
We have also seen progress in the development of fusion
center guidelines, and the baseline capabilities for State and
major urban-area fusion centers. These provide a framework for
fusion centers to move forward. In fact, at the National Fusion
Center Conference, that was just held last month in Kansas
City, the theme of the conference was, ``Achieving the Baseline
Capabilities.''
Directors were encouraged--and actually came up with this
on their own--to do a gap analysis of their own centers,
against those baseline capabilities, so they can identify a way
forward, and move toward progress, in a positive way.
Finally, in terms of promise, fusion centers have become an
analytic resource that are keeping communities safe and secure,
helping governments prioritize their resource allocations, and
support the efforts of State and local law enforcement to
prevent and investigate crime in their local communities.
I would say that, although, certainly, terrorism served as
a catalyst for the fusion centers, this type of activity, Madam
Chair, as you have pointed out, has existed for many, many
years, in law enforcement agencies, as criminal intelligence
work. This is simply a strengthening of that capability.
The other area that I highlight in my written statement is
the work that has been done to minimize the risk of the
potential dangers. I emphasize the importance of protecting
privacy, civil liberties, and civil rights. I do highlight
within there the extensive work that was done, and has been
done, and continues to be done, in providing training that Mr.
Riegle has alluded to, as well, in terms of delivering training
to fusion centers across the country.
This was started in 2006, before there were even baseline
capabilities. It was recognized as a central issue for fusion
centers, and for the success of fusion centers, as well as for
protecting the American public.
There have been countless conversations; many, many
meetings with privacy advocates, who have engaged in very
thoughtful, respectful dialogue. We do appreciate very much the
contributions that they are making and continue to make.
There are missteps. There will continue to be that risk. We
are currently working on developing the new training, and
having development of those things that will help us address
the issues that emerge as we move forward in this process.
So that highlights my written testimony. You have that.
Let me speak to Mr. Fein's commentary, if I may.
I read with great interest, his commentary. I certainly
respect, as a law enforcement officer, who takes an oath to
support and uphold the laws and Constitution of the United
States, his right to say and comment as he has. But I would
point out a couple of things from his commentary.
He notes that: ``Any dissidence or political dissident is
suspect to fusion centers.'' I reject that assertion. He says
that ``First Amendment principles will never be honored by law
enforcement officers or public officials in the business of
intelligence collection.'' I also reject that assertion.
He characterizes and portrays fusion centers as un-
American, referencing the Soviet Union's KGB, and, in East
Germany, the Stasi, and says that, ``Fusion centers are no more
American than was the House Un-American Activities Committee.''
The implication is that fusion centers and, by extension,
the law enforcement officers and the public safety officials
who risk their lives every day to protect their communities in
this country, are un-American. He wants to throw the baby out
with the bathwater. I wholeheartedly reject that approach.
In fact, the delivery of privacy and civil liberties and
civil rights training has been made possible precisely because
there is a fusion center network, an audience that we can reach
out to, to deliver this training. The opportunity for much of
this dialogue to occur has come from the development of fusion
centers, and from the National Suspicious Activity Reporting
Initiative, about which this subcommittee has previously heard
during an earlier hearing.
Finally, sustaining a national integrated network of fusion
centers will actually strengthen our collective ability to
provide accountability and transparency, as Mr. Riegle has
mentioned. This is an important point that must not be
understated.
I certainly respect the diverse views. But that is a
response that I would have to Mr. Fein. Thank you.
[The statement of Mr. Porter follows:]
Prepared Statement of Russell M. Porter
April 1, 2009
Chair Harman, Ranking Member McCaul, and Members of the
subcommittee, thank you for convening this hearing today to focus on
the future of fusion centers--critical resources for sharing
information, preventing and solving crime (including terrorism), and
making our communities, our States, and our Nation safer. I want to
acknowledge the hard work of my many colleagues at all levels of
government, but especially those at the local, Tribal, and State level
with whom I work. I'm also especially pleased to appear today with this
distinguished panel of witnesses. I appreciate this opportunity to
discuss the future of fusion centers, highlighting some of their
achievements thus far, the promise they hold, and the potential dangers
that exist and may lie ahead.
introduction
I am presenting this statement as the Director of a State fusion
center, as well as in my role as General Chairman of The Association of
Law Enforcement Intelligence Units (LEIU), the oldest professional
association of its kind in the United States. Many agencies which
operate or host fusion centers are members of LEIU. At the National
Fusion Center Conference which convened last month in Kansas City,
Missouri, fusion center directors asked LEIU to partner with them to
help establish an association to represent fusion centers and the
people who work in and with them. The work to build that association,
as previously encouraged by the Chair of this subcommittee, is underway
now.
I am a veteran law enforcement officer who began my career as a
municipal police officer in 1978. Since 1984 I have been continuously
assigned full-time to the law enforcement intelligence discipline, and
now hold the rank of Director at the Iowa Department of Public Safety
where I report to the Commissioner of Public Safety for the State of
Iowa. While working full-time, I completed all coursework and
comprehensive exams for the Ph.D., and was conducting dissertation
research into law enforcement intelligence units when this country was
attacked on September 11, 2001. At the national and international
level, I have been elected by my peers and am now serving my second 2-
year term as LEIU's General Chairman. I also currently serve as
Chairman of the Criminal Intelligence Coordinating Council (CICC), and
as Chairman of the Global Intelligence Working Group (GIWG) (part of
the Global Justice Information Sharing Initiative, a Federal Advisory
Committee to the Attorney General of the United States). I am a member
of the Interagency Threat Assessment and Coordination Group (ITACG)
Advisory Council; and of the Advisory Board for DHS's Homeland Security
State and Local Intelligence Community of Interest (HS SLIC).
Additionally, I currently serve on the National Fusion Center
Coordination Group; the Police Investigative Operations Committee for
the International Association of Chiefs of Police (IACP); the Executive
Advisory Board for the International Association of Law Enforcement
Intelligence Analysts (IALEIA); and the Advisory Board for Michigan
State University's Criminal Justice Intelligence Program. I previously
participated in the monthly meetings of the U.S. Department of Justice
Intelligence Coordinating Council at FBI Headquarters, and served as a
Fusion Group Subject Matter Expert for the Intelligence and Information
Sharing Working Group of the U.S. Department of Homeland Security's
Homeland Security Advisory Council (HSAC), and for the LLIS
Intelligence Requirements Initiative. At the State level, I lead our
State's fusion center, and serve as a member of the Executive Committee
and the Operating Council for the Safeguard Iowa Partnership, a
voluntary coalition of the State's business and Government leaders, who
share a commitment to combining their efforts to prevent, protect,
respond, and recover from catastrophic events in Iowa. I assisted with
drafting the IACP's Criminal Intelligence Sharing: A National Plan for
Intelligence-led Policing at the Local, State, and Federal Levels in
2002; Global's National Criminal Intelligence Sharing Plan in 2003; the
HSAC's Homeland Security Intelligence and Information Fusion report in
2005; and the jointly-issued Global--DOJ--DHS Fusion Center Guidelines
in 2006. Since the creation of the Global Intelligence Working Group in
2002 until my appointment as CICC and GIWG Chairman in December 2007, I
served as the Chairman of the GIWG's Privacy and Civil Liberties Task
Team. During the past several years I have worked closely with our
Federal partners on the joint delivery of training and technical
assistance, especially regarding privacy and civil liberties
protections in fusion centers. In 2007 I was awarded the IALEIA
President's Distinguished Service Award for demonstrated commitment to
privacy and civil liberties protections, and in 2008 I received the
IACP Civil Rights Award in the category of Individual Achievement for a
``consistent and vocal presence in law enforcement stressing the
importance of protecting civil rights in policy, training, and ethical
practice of the intelligence function.'' Finally, in March I served as
Master of Ceremonies at the third National Fusion Center Conference in
Kansas City--the second time I have served as the ``emcee'' for that
national event.
I only highlight my experience so that Members of the subcommittee
will know that this statement is based on more than 30 years of real-
life experience as a law enforcement officer, with more than 25 of
those dedicated to the field of law enforcement intelligence--with
involvement in the fusion center initiative since its inception.
Because of the responsibilities associated with each of these roles
and initiatives, I work closely and regularly not only with my local
and State counterparts in fusion centers, but also with our Federal
partners. We continue to receive support from the U.S. Department of
Homeland Security (DHS), and especially the Office of Intelligence and
Analysis and the Federal Emergency Management Agency's Grants Program
Directorate and National Preparedness Directorate; the U.S. Department
of Justice (DOJ), with strong support received from the Bureau of
Justice Assistance; the Federal Bureau of Investigation through their
National Security Branch; the Program Manager's Office of the
Information Sharing Environment; and the Office of the Director of
National Intelligence. Finally, much of the progress that has been made
in establishing a national, integrated network of fusion centers is
made possible by a collaboration of local, tribal, State, and Federal
agencies who are part of the Global Justice Information Sharing
Initiative (Global), the Criminal Intelligence Coordinating Council,
and the Global Intelligence Working Group. These colleagues, as a
community, commit countless hours of their time each day to improve
information sharing in the United States.
background
As you know, the Implementing Recommendations of the 9/11
Commission Act of 2007 (Pub. L. 110-53), enacted in August 2007,
endorsed and formalized the development of a national network of State
and major urban area fusion centers. Similarly, the National Strategy
for Information Sharing released by the White House in October 2007
also describes fusion centers as ``a valuable information sharing
resource,'' and as ``vital assets critical to sharing information.''
The Strategy further states, ``A sustained Federal partnership with
State and major urban area fusion centers is critical to the safety of
our Nation, and therefore a national priority.''\1\ As one recent
report noted:
---------------------------------------------------------------------------
\1\ The White House. 2007 (October). National Strategy for
Information Sharing, p. A1-1, accessed September 21, 2008 at http://
www.whitehouse.gov/nsc/infosharing/NSIS_book.pdf.
``The potential value of fusion centers is clear: by integrating the
various streams of information and intelligence from Federal, State,
local, and tribal sources, as well as the private sector, a more
accurate picture of risks to people, economic infrastructures and
communities can be developed and translated into protective
action.''\2\
---------------------------------------------------------------------------
\2\ U.S. House of Representatives, Report 110-752, Report to
Accompany H.R. 6098, Personnel Reimbursement for Intelligence
Cooperation and Enhancement of Homeland Security Act. Accessed
September 21, 2008 at http://frwebgate.access.gpo.gov/cgi-bin/
getdoc.cgi?dbname=110_cong_reports&docid=f:hr752.110.pdf.
As I have noted previously, in my experience fusion centers have
emerged as what may be the most significant change in the structural
landscape of criminal intelligence in at least the past 25 years. Much
has been written in the past several years about fusion centers, and
today I bring to you a practitioner's perspective.
the future of fusion centers: potential promise and dangers
The word ``promise'' has been said to mean, ``indication of future
excellence, achievement, or success.'' On the other hand, the word
``danger'' can be defined as ``something that may cause injury, loss,
or harm.'' I want to highlight how fusion centers are currently
realizing some of their goals, how they offer significant promise for
the future, and how continuing steps are being undertaken to prevent
harm.
Potential Promise
Key stakeholders, such as State homeland security directors and
advisors, have said that fusion centers have become vital resources for
information sharing and coordination. Fusion centers are becoming more
effective and efficient information sharing and collaboration
mechanisms. Fusion centers receive information from a variety of
sources, including Federal, State, and local entities, and ensure
timely and relevant information is provided to the right stakeholders
within their geographic area of responsibility. The National Governors
Association Center for Best Practices recently published the results of
the 2008 Survey of State Homeland Security Directors--the fifth such
survey they have conducted.\3\ The results show that fusion centers
remain as one of the top five priorities for State homeland security
directors. Three-quarters of the State homeland security directors
actively and regularly engage with their State fusion center.\4\
Additionally, more than 60 percent of the directors use their fusion
center as the primary method for sharing intelligence with DHS.\5\
Finally, the Federal Government uses fusion centers as the primary
focal points within the State and local environment for the receipt and
sharing of terrorism-related information. Federal agencies provide
terrorism-related information to State, local, and Tribal authorities
primarily through these fusion centers, which may further customize
such information for dissemination to satisfy intra- or interstate
needs. Thus, fusion centers are particularly important in providing
information to important stakeholders (such as State homeland security
directors, law enforcement, fire, public safety, emergency management,
transportation, public health, and others), and to the Federal-State
communication and coordination effort.
---------------------------------------------------------------------------
\3\ The survey targets members of the Governors Homeland Security
Advisors Council (GHSAC), which is comprised of the top homeland
security directors as designated by each governor in all States,
territories, and the District of Columbia.
\4\ NGA Center for Best Practices Issue Brief: 2008 State Homeland
Security Directors Survey, available at http://www.nga.org/Files/pdf/
0903HSASURVEY.PDF, accessed March 29, 2009.
\5\ Comparatively, according to the NGA survey, 17 percent of the
State homeland security directors only engage their fusion center
intermittently or when there are emergencies; only 17 percent of States
use the DHS National Operations Center to share intelligence; and only
11 percent use local Federal Bureau of Investigations (FBI) or
Immigration and Customs Enforcement (ICE) agents to share information
with the Federal Government.
---------------------------------------------------------------------------
Fusion Center Guidelines and Baseline Capabilities for State and
Major Urban Areas have been published, are actively being used to guide
and mature the national fusion center network, and are being
implemented by fusion centers during the next 5 years. In recent years
Federal, State, local, Tribal and territorial stakeholders recognized
the critical need for fusion centers to adhere to the same general
guidance, and to maintain the same level of baseline capabilities in
order to operate as an integrated national network. This has been
accomplished by publishing the Fusion Center Guidelines and the
Baseline Capabilities for State and Major Urban Area Fusion Centers--
both of which were developed by the Global Justice Information Sharing
Initiative, the U.S. Department of Justice, and the U.S. Department of
Homeland Security. According to State fusion center directors, more
than 80 percent of State fusion centers comply with the Fusion Center
Guidelines developed by the Global Justice Information Sharing
Initiative, the U.S. Department of Justice, and the U.S. Department of
Homeland Security.\6\ Additionally, with support from the partnership
of local, State, Tribal, and Federal partners, fusion centers are
working to achieve the fusion center baseline capabilities that were
published in September 2008 in the Baseline Capabilities for State and
Major Urban Area Fusion Centers. In fact, the theme for the 2009
National Fusion Center Conference held last month was ``Achieving the
Baseline Capabilities.'' Although information on a wide range of
baseline capabilities was presented, the conference focused on those
baseline capabilities dealing with protecting privacy, civil liberties,
and civil rights; outreach and communications; and analysis. Fusion
center leaders attending the national conference were encouraged to
assess their current capabilities, and then each day plenary and
breakout sessions focused on steps they can take to achieve the
baselines. Since resources and priority mission areas vary from center
to center, it is expected to take a period of up to 5 years to achieve
all of the capabilities. This on-going assessment of capabilities, and
progress towards achieving them, will continue in the months ahead.
---------------------------------------------------------------------------
\6\ The survey targets members of the Governors Homeland Security
Advisors Council (GHSAC), which is comprised of the top homeland
security directors as designated by each governor in all States,
territories, and the District of Columbia.
---------------------------------------------------------------------------
Fusion centers have become an analytic resource that keeps
communities safe and secure, helps governments prioritize resource
allocations, and supports the efforts of State and local law
enforcement to prevent and investigate crime in their local
communities. Jurisdictions with effective fusion center programs help
citizens feel more safe and secure.\7\ The rapid flow of information
associated with fusion centers has averted panic and unnecessary
resource expenditures by quickly determining that a threat does not
exist and preventing the needless evacuation of businesses and the
disruption of commerce.\8\ This is critically important when, across
the United States, State, local, and tribal law enforcement and
homeland security officials are being asked to do more with less.
Fusion centers offer a way to leverage financial resources and the
expertise of public safety partners to more effectively protect our
communities. Thoughtful analysis about risks to our communities helps
elected officials and homeland security leaders better utilize limited
financial resources to make effective decisions about public safety
matters and threats to the homeland. Fusion centers have played a key
role in assessing potential terrorism threats before massive holiday
and sporting events, political conventions, and other occasions where
large crowds gather,\9\ so that resources can be properly allocated.
They assist in addressing our most pressing national challenges such as
gangs, border violence, narcotics, homicides, natural disasters, and
terrorism. More specifically, fusion centers have proven successful in
preventing terrorism and in solving other local crimes--such as when a
fusion center ``connects the dots'' from a drive-by shooting death to
solve the murder of a furniture store manager occurring 3 months
earlier,\10\ or identifies a series of attempted child abductions so
that the community can be warned.\11\ These are not examples of
``mission creep,'' as some have described; rather, these are examples
of local and State governments doing what they have always done: using
resources in a coordinated way to protect the public from crime. In
fact, in many cases fusion centers have always been ``all crimes''
centers, and have never been focused solely on terrorism.
---------------------------------------------------------------------------
\7\ Anti-terrorism center offers reassurances against potential
dangers, February 19, 2009, http://www.lvrj.com/news/39837512.html,
accessed March 29, 2009.
\8\ Metro's Fusion Center Works to Solve Local Crimes, Threats,
July 1, 2008, http://www.lasvegasnow.com/global/story.asp?s=8588286,
accessed March 29, 2009.
\9\ Fight over, all together now against terrorism; ``Fusion
center'' puts agencies under one roof, January 22, 2008, http://
www.lasvegassun.com/news/2008/jan/22/fight-over-all-together-now-
against-terrorism/, accessed March 29, 2009.
\10\ Metro's Fusion Center Works to Solve Local Crimes, Threats,
July 1, 2008, http://www.lasvegasnow.com/global/story.asp?s=8588286,
accessed March 29, 2009.
\11\ Series of Attempted Child Abduction Incidents Being
Investigated in Central Iowa, DPS Press Release, June 18, 2008, http://
www.dps.state.ia.us/commis/pib/Releases/2008/06-18-
2008_AbductionRelease.htm, accessed March 29, 2009.
---------------------------------------------------------------------------
These are just a few of the examples highlighting some of the
reasons that fusion centers, when provided with resources, training,
technical assistance, guidelines, and policy documents, and other
support, are vital assets which are critical to sharing information and
keeping our communities, our States, and our Nation safe. Compiling
additional information that demonstrates and measures the value of
fusion centers and the promise they hold for the future is currently
underway.
Potential Dangers
While there are certain risks inherent with information gathering
and sharing, on-going efforts to proactively address these potential
pitfalls actually signify a promise that best practices can become
reality. What follows is a description of some of the work completed to
date.
If we fail to continue to make the protection of privacy, civil
liberties, and civil rights a top priority, the fusion center network
will not be sustainable. This important work will be an on-going
challenge that requires continued refinement of training, technical
assistance, and other support as we go forward. But the good news is
that the State, local, Tribal, and Federal partners that have been
leading this effort, as well as fusion centers themselves, have been
making these issues a top priority. Certainly there is more to do. But
as fusion centers have emerged, a coordinated--and unprecedented--
effort has been initiated to provide training and technical assistance
that is protecting privacy, civil liberties, and civil rights. In fact,
the delivery of this training and technical assistance is made possible
precisely because there is a national network of fusion centers, and
due to the good work of the partners involved. The following provides a
summary of some of the work undertaken with fusion centers thus far, to
establish a solid foundation for protecting privacy, civil liberties,
and civil rights:
2006 Regional Fusion Center Conferences--The Importance of a
Privacy Policy.--From August through October 2006, four
regional fusion center conferences were conducted in the
northeast, southeast, central, and western United States. The
presentations at these conferences provided attendees with an
overview on the need for developing, implementing, and training
on policies that protect privacy, civil liberties, and civil
rights.
2007--Fusion Center Privacy Technical Assistance Program.--
In June 2007 the Privacy Technical Assistance Providers (made
up of privacy representatives from multiple Government
agencies, as well as training and technical assistance
providers) \12\ identified potential needs and began to develop
a model privacy policy process for fusion centers. The Fusion
Center Privacy Technical Assistance Program was thus initiated,
which included development of resources to help centers train
their personnel on privacy policies.
---------------------------------------------------------------------------
\12\ The Privacy Technical Assistance Providers included
representatives from the Bureau of Justice Assistance (BJA), Office of
Justice Programs (OJP); the U.S. Department of Justice (DOJ); the U.S.
Department of Homeland Security (DHS); the Justice Management Institute
(JMI); SEARCH, The National Consortium for Justice Information and
Statistics; the Global Privacy and Information Quality Working Group
(GPIQWG); and the Institute for Intergovernmental Research (IIR). For
fusion center resources, additional input was provided by the Office of
the Program Manager for the Information Sharing Environment (ISE), the
ISE Privacy Guidelines Committee's (PGC) State, Local, and Tribal (SLT)
Working Group, and the ISE PGC Training and Outreach Working Group.
---------------------------------------------------------------------------
2007 Regional Fusion Center Meetings--Privacy Technical
Assistance (TA) Sessions and Privacy TA Review Process.--From
September through December 2007, four regional fusion center
meetings were conducted in the northeast, southeast, central,
and western United States. On the day prior to each of the four
regional fusion center group meetings, a technical assistance
session was held at which presenters and subject-matter experts
(SMEs) educated fusion center personnel on the history of
privacy and civil liberties in law enforcement intelligence,
and on the importance of developing a privacy policy. Attendees
were then provided with hands-on assistance as they were guided
by SMEs through the DOJ-developed training workbook, titled
Fusion Center Privacy Policy Development: Privacy, Civil
Rights, and Civil Liberties Policy Template. At the completion
of each regional privacy technical assistance session described
above, fusion center personnel were offered privacy technical
assistance in the form of a Privacy TA Review Team that would
help them construct their policies, if needed, and review the
completed draft policies to provide feedback on the policies'
adherence to the provisions contained within the Fusion Center
Privacy Policy Development: Privacy, Civil Rights, and Civil
Liberties Policy Template.
2009 Privacy TA Session.--For those centers that were unable
to attend the 2007 Regional Privacy TA Sessions, a separate
Privacy TA Session was held in February 2009 to deliver the
same information: an overview of the history of privacy, the
importance of developing a privacy policy, and hands-on
guidance through the Fusion Center Privacy Policy Development:
Privacy, Civil Rights, and Civil Liberties Policy Template.
2007, 2008, and 2009 National Fusion Center Conferences.--In
March of each of these 3 consecutive years, sessions on
protecting privacy, civil liberties, and civil rights were
conducted to highlight these important issues, and to bolster
the technical assistance sessions offered at the regional
conferences. These included a breakout session, delivered
twice, at the 2007 national conference; a plenary session
delivered to all participants, as well as a breakout session,
at the 2008 conference; and at the 2009 national conference a
breakout session to help fusion centers integrate a privacy and
civil liberties protection framework into fusion center
operations; a breakout session on 28 Code of Federal
Regulations (CFR) Part 23; and a ``Hands-On Learning Lab, where
on-site staff coached participants on how to conduct a privacy
and/or civil liberties impact assessment of their fusion
centers, arrange for on-site training, discuss questions or
issues, advise on their privacy and civil liberties policy
development, and answer questions about 28 CFR Part 23.
At all of these regional meetings, technical assistance sessions,
and fusion center conferences, more than a dozen privacy-related
publications and resources were discussed with and/or distributed to
attendees. Most of these publications and resources are also easily
accessible to fusion centers--and to the public--on the Global Justice
Information Sharing Initiative Web site.\13\
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\13\ The Global Justice Information Sharing Initiative Web site can
be found at http://it.ojp.gov/default.aspx?area=globalJustice.
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A host of other efforts have been underway to ensure that the
fusion center network continues to implement practices that will help
ensure the protection of these constitutional rights. For example, in
addition to the delivery of training and technical assistance, there
have been countless conversations and numerous in-person meetings with
privacy, civil liberties, and civil rights advocates to ensure that
issues are well understood. (The opportunity for much of this dialogue
to occur has come from the development of the National Suspicious
Activity Reporting Initiative, about which this subcommittee has
previously heard during an earlier hearing.) To promote transparency
and awareness, the 2009 National Fusion Center Conference included
presentations to attendees by media representatives and privacy
advocates. Significant portions of the conference were also opened to
advocates and the media. Furthermore, fusion centers have opened their
doors and met with media representatives and privacy, civil liberties,
and civil rights advocates. Going forward, it is important to capture
``lessons learned'' from case studies that can help fusion centers
refine their practices to ensure that potential dangers are avoided.
Discussions about developing this next level of training and technical
assistance are already underway so the resources necessary to deliver
this support can be identified. Finally, sustaining a national,
integrated network of fusion centers will actually strengthen our
collective ability to provide accountability and transparency; this is
an important point that cannot be understated.
In terms of maintaining the momentum for fusion center development
and sustaining their value, funding is paramount. The development and
sustainability of intelligence fusion centers continues to be of
significant concern for State homeland security officials,\14\ as well
as for the fusion centers themselves. In essence, the failure to
sustain fusion centers will prevent key local, tribal, State, and
Federal officials from receiving essential information, making
communities less safe. One of the continuing primary challenges is the
sustainability of fusion center operations without Federal funding.
Only one-quarter of State homeland security directors maintained that
they will be able to subsidize their fusion center operations without
Federal funding. During a Fusion Center Directors' Meeting at the 2009
National Fusion Center Conference last month, the fusion center
directors voiced the same concerns. Specifically, there was a strong
call for predictable--even direct--funding for fusion centers so that
the promise of fusion centers can be attained, and so that the dangers
can be avoided.
---------------------------------------------------------------------------
\14\ The survey targets members of the Governors Homeland Security
Advisors Council (GHSAC), which is comprised of the top homeland
security directors as designated by each governor in all States,
territories, and the District of Columbia.
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conclusion
For the first time in my career, we are on the verge of building a
truly national, integrated information sharing and analysis network
that will make our communities and our Nation safer. Fusion centers can
and should build upon the success, as well as coordinate with, other
effective programs, such as the Regional Information Sharing Systems
(RISS) and the High Intensity Drug Trafficking Area (HIDTA)
Investigative Support Centers. Leveraging the outstanding work of the
Global Justice Information Sharing Initiative--especially through the
Criminal Intelligence Coordinating Council--is also vital.
But much more needs to be done. Input from the people who are
leading fusion centers must be considered in looking to the future. In
a meeting of fusion center directors that occurred last month in
conjunction with the National Fusion Center Conference, the priorities
for the future that were identified by the directors included
emphasizing privacy, civil liberties, and civil rights protections;
performing a gap analysis of Baseline Capabilities at each fusion
center; conducting outreach with the public and all stakeholders;
promoting data interoperability; and identifying ands asking for
sustainability funding for fusion centers.
These priorities provide a solid road map for the future. But to
move forward, our Nation's leaders must continue to support and fund
the agencies and partners mentioned herein that are involved in
building the national, integrated network of fusion centers. Resources
are needed for fusion centers themselves, and for the training and
technical assistance programs that support them. These programs are
critical to ensuring that the promise of fusion centers is realized,
while avoiding the pitfalls and dangers that can arise.
On behalf of the colleagues with whom I work at all levels of
government, we appreciate the support for and interest in the
effectiveness of fusion centers, and in the protection of privacy,
civil liberties, and civil rights, that has been consistently
demonstrated by this subcommittee and by the Committee on Homeland
Security.
Ms. Harman. Thank you, Mr. Porter.
Mr. Bateman.
STATEMENT OF JOHN E. BATEMAN, ASSISTANT COMMANDER, BUREAU OF
INFORMATION ANALYSIS, TEXAS DEPARTMENT OF PUBLIC SAFETY
Mr. Bateman. Chair Harman, Ranking Member McCaul, and
Members of the subcommittee, I am here today to speak to you on
behalf of the Texas Fusion Center, and the six regional and
local urban-area security-initiative fusion centers located in
Texas.
These regional local centers consist of the North Central
Texas Fusion Center in Collin County, the Metro Operations
Support and Analytical Intelligence Center, MOSAIC, in Dallas--
they should get an award for coming up with that acronym, by
the way--I just need to insert that comment--Houston Regional
Intelligence Service Center, the Austin Regional Intelligence
Center, the San Antonio Fusion Center, and the El Paso Fusion
Center.
These seven centers represent the efforts of 24 State,
local, county, and Federal agencies to directly support the
Department of Homeland Security's Fusion Center Initiative.
The promise of fusion centers is clear. In and of itself, a
fusion center will not end the threat that terrorism, gangs,
and organized crime pose to the citizens of the United States.
However, a network of multi-agency intelligence centers,
sharing and analyzing information, and then passing that
information on, both to decision-makers and first-line
personnel in the field, allow these groups to make better, more
informed decisions, as they work to thwart the individuals and
groups who intend to do us harm.
The Department of Homeland Security has been an incredible
asset in assisting State and local jurisdictions with the
development of fusion centers. Their assistance has been much
more than just proposing a concept and providing funding. The
DHS has served as a leader by providing personnel to fusion
centers, offering training opportunities, and developing the
framework of the fusion center baseline capabilities.
These baseline capabilities provide a valuable reference
for State and local jurisdictions as they develop their
centers.
I would like to compliment the work of Deputy Under
Secretary Chet Lunner and Mr. Rob Riegle, and their staffs, for
all the work they do to assist the State and local centers.
They are dedicated to their task, and have been an invaluable
resource as the fusion center initiative moves forward.
I would also like to recognize Mr. Russ Porter, for his
contributions to the National Fusion Centers Conference in
Kansas City. His hard work and dedication made the conference a
great success.
The Texas Fusion Center was formed in 2004 as the Texas
Security Alert and Analysis Center. At its inception, it was a
watch center for routine law enforcement information sharing,
the collection of suspicious activity reports from both the
public and law enforcement, and the dissemination of alerts and
notifications.
In 2005, at the direction of, and with the guidance from
State Homeland Security Director, Steven McCraw, the Texas
Fusion Center was formed, and is currently a 24/7 State-wide
intelligence and strategic analysis center, where information
and intelligence from a variety of sources is exchanged,
consolidated, and analyzed by a multi-agency team of analysts.
More than 1,500 of the 2,500 law-enforcement jurisdictions
across the State are connected to the center through the
Emergency Response Network, or the ERN. It is an Internet-based
system that allows the general public and law enforcement to
submit suspicious-activity reports directly to the fusion
center for evaluation and analysis by fusion-center personnel.
While we have had an impressive list of accomplishments
over the years, we still face a number of challenges: Obtaining
sustainability funding, training, achieving baseline
capabilities, and developing and, then, adhering to a privacy
policy.
Other than the Texas Fusion Center, which operates solely
through State funding, all fusion centers of Texas reported
that their continued viability would require some level of
Federal sustainability funding. It is important to note that
this sustainability funding that is provided should be
designated specifically for fusion centers, so it cannot be
redirected to another Homeland Security initiative in that
State.
The need for comprehensive and uniform analytical training
is a challenge, on which DHS will need to focus in the future.
Development and deployment of a core curriculum for all
analytical personnel will ensure an equal skill level across
all fusion centers. Currently, the fusion centers are working
with DHS to bring three separate analytical training courses to
Texas.
As Mr. Porter said, this year's National Fusion Center
Conference--the theme was ``Achieving Baseline Capabilities.''
As the director of the Texas Fusion Center, we are currently
doing the gap analysis that he mentioned. Those baseline
capabilities are an incredible resource to us as we move
forward.
The fusion centers in Texas are directly supported by 24
State, local, county, and Federal agencies. But that does not
include the countless other agencies who share unprecedented
levels of information with these fusion centers. This is a
paradigm shift to an information-sharing environment, and comes
with a great responsibility to protect the information from
misuse, and to protect the privacy rights and civil liberties
of individuals.
The fusion centers operating in Texas all recognize this
responsibility, and all have privacy policies. These privacy
policies were developed, and privacy advocates were consulted
when they were developed.
With these safeguards in place, it is my belief that fusion
centers in Texas can go forward with their mission, without
violating the privacy and civil liberties of individual
citizens.
In closing, I would like to thank you for the opportunity
to appear today and explain the fusion center initiative in
Texas, and be able to address any concerns as we move forward.
[The statement of Mr. Bateman follows:]
Prepared Statement of John E. Bateman
April 1, 2009
Chair Harman, Ranking Member McCaul, and distinguished Members of
the subcommittee: I am here today to speak to you on behalf of the
Texas Fusion Center and the six regional and local Urban Area Security
Initiative (UASI) Fusion Centers located in Texas. These regional and
local centers consist of:
North Central Texas Fusion Center in Collin County;
Metro Operations Support and Analytical Intelligence Center
(MOSAIC) in Dallas;
Houston Regional Intelligence Service Center (HRISC);
Austin Regional Intelligence Center (ARIC)--in development;
San Antonio Fusion Center--in development;
El Paso Fusion Center--in development.
These seven centers represent the efforts of 24 State, local,
county, and Federal agencies to directly support the Department of
Homeland Security's fusion center initiative.
The promise of fusion centers is clear. In and of itself, a fusion
center will not end the threat that terrorism, gangs, and organized
crime pose to the citizens of the United States. However, a network of
multi-agency intelligence centers, sharing and analyzing information,
and then passing that information on to decisionmakers and first-line
personnel in the field, allows these groups to make better, more
informed decisions as they work to thwart the individuals and groups
who intend to do us harm. While there have been, in the past, multi-
agency taskforce operations on the enforcement side designed to address
problems relating to crime and terrorism, the fusion center is the
first true comprehensive Nation-wide program to combine the analytical
and informational capabilities of Federal, State, county, local, and
Tribal agencies.
The Department of Homeland Security has been an incredible asset in
assisting State and local jurisdictions with the development of fusion
centers. Their assistance has been much more than just proposing the
concept and providing funding. The DHS has served as a leader by
providing personnel to the fusion centers, offering training
opportunities, and developing the framework of the Fusion Center
Baseline Capabilities. The baseline capabilities provide an invaluable
reference for State and local jurisdictions to use as they develop
their centers. I would like to compliment the work of Deputy Under
Secretary Chet Lunner, Mr. Rob Riegle, and their staffs for all the
work they do to assist the State and local centers. They are dedicated
to the task, and have been an invaluable resource as the fusion center
initiative moves forward. I also would like to recognize Mr. Russ
Porter for his contributions to the 2009 National Fusion Center
Conference. His hard work and dedication made the conference a great
success.
The Texas Fusion Center was formed in 2004 as the Texas Security
Alert and Analysis Center (TSAAC). At its inception, TSAAC was a 24/7
watch center for routine information sharing between law enforcement,
the collection of Suspicious Activity Reports (SARs) from both the
public and law enforcement, and the dissemination of alerts and
notifications.
Today, the Texas Fusion Center is a 24/7 State-wide intelligence
and strategic analysis center where information and intelligence from a
variety of sources is exchanged, consolidated, and analyzed by a multi-
agency team of analysts. More than 1,500 of the 2,500 law enforcement
jurisdictions across the State are connected to the center through the
Emergency Response Network (ERN), an Internet-based system that allows
the general public and law enforcement to submit SARs directly to the
Texas Fusion Center for evaluation and analysis by Fusion Center
personnel. The SARs are then forwarded to law enforcement field
personnel for investigative follow-up. To date, almost 20,000 SARs have
been collected and processed.
The Fusion Center has an impressive list of accomplishments over
the years, but we still face a number of challenges: Obtaining
sustainability funding; training; achieving baseline capabilities; and,
developing and adhering to a privacy policy.
Except for the Texas Fusion Center, which operates solely through
State funding, all the fusion centers in Texas reported that their
continued viability would require some level of Federal sustainability
funding. It is important that any sustainability funding that is
provided to the State and local jurisdictions be designated
specifically for fusion centers.
The need for comprehensive and uniform analytical training is a
challenge on which DHS will need to focus in the future. Development
and deployment of a core curriculum for all analytical personnel will
ensure an equal skill level across all fusion centers. Currently, the
Texas Fusion Center is working with DHS to bring three analytical
training courses to Texas regarding privacy policy and civil liberties,
open source reporting, and critical thinking.
At this year's National Fusion Center Conference in Kansas City,
the theme was ``Achieving Baseline Capabilities.'' Meeting these
capabilities is an important focus of our strategic plan. The DHS
personnel deployed to Texas are a valuable resource as the fusion
centers work toward identifying and achieving baseline capabilities.
The most critical capability for fusion centers to achieve is
development and adherence to a privacy policy.
Fusion centers in Texas are directly supported by 24 State, local,
county, and Federal agencies. This does not include the valuable
indirect support the fusion centers receive from countless other
agencies who share unprecedented levels of information with the fusion
centers. With this paradigm shift to an information-sharing environment
comes a great responsibility to protect the information from misuse,
and to protect the privacy rights and civil liberties of individuals.
The fusion centers operating in Texas all recognize this responsibility
and have privacy policies in place. With these safeguards in place, it
is my belief that fusion centers in Texas can go forward with their
mission of dismantling criminal organizations and disrupting terrorist
operations without violating the privacy and civil liberties of
individual citizens.
In closing, I would like to thank you for the opportunity to appear
today and explain the fusion center initiative in Texas and to be able
to address any concerns as we move forward.
Ms. Harman. Thank you, Mr. Bateman.
Thank you to our panel.
We will now go to questions by the subcommittee, 5 minutes
each. I will yield 5 minutes to the Chair for opening
questions.
First of all, let me thank, in advance, Secretary
Napolitano, for coming to Los Angeles in a couple of weeks to
visit the JRIC, among other things. I think she will see, and I
am sure Sheriff Baca agrees with me, a state-of-the-art fusion
center that has learned a lot of the lessons that need to be
learned, over several years, including how to do its job
better, and how to protect privacy and civil liberties better.
As I have often said, security and liberty are not a zero-
sum game. I think we know that in Los Angeles and around the
country. I see every witness nodding. So I want to thank here
through you, Mr. Riegle, for that visit upcoming, and hope that
she will make visits to other parts of the country where there
are also very interesting things to see. I know she is familiar
with Arizona's fusion center, and efforts at the border. But I
am pleased that she wants to get out and about and see what is
going on in America's neighborhoods.
Let me continue to address this op-ed, because I think
those in the audience, and listening in, want to know if the
allegations are true. I appreciated your comments, Mr. Porter.
I would just add by extension that the Members of this
committee also, it seems to me, are being criticized for, I
suppose, being part of activities that are long gone in this
Congress, like the House Un-American Activities Committee, and
et cetera.
I take personal offense, as I was, some years back, chief
counsel and staff director of the Senate Judiciary Subcommittee
on Constitutional Rights. I think I get it. It matters to me
that we protect privacy and civil liberties.
But nonetheless, some of the other allegations in this op-
ed are that fusion centers spy on America.
I want to ask you folks--just go down the line--true or
false: Do fusion centers spy on Americans?
Sheriff Baca. False.
Mr. Riegle. Absolutely false.
Mr. Porter. False.
Mr. Bateman. It is not true.
Ms. Harman. Thank you.
Mr. Bateman is--I appreciate that. Thank you very much.
Another allegation in this op-ed is that those in the
business of intelligence collection--presumably those who work
at fusion centers--again, I wouldn't call them ``intelligence
collectors.'' They don't do spying. They put together
intelligence products for dissemination.
But anyway, it says ``They are rewarded financially and
professionally by the volume of intelligence collected.'' True
or false?
Sheriff Baca.
Sheriff Baca. False.
Ms. Harman. Mr. Riegle.
Mr. Riegle. Madam Chair--untrue, false.
Ms. Harman. Mr. Bateman.
Mr. Bateman. False.
Ms. Harman. It also says, ``There are no serious quality
controls''--and we have heard some testimony on this--true or
false?
Sheriff Baca.
Sheriff Baca. False.
Mr. Riegle. False, again.
Mr. Porter. False, Madam Chair.
Mr. Bateman. False.
Ms. Harman. Finally, it says, ``Few, if any, are capable of
separating the terrorist wheat from the innocuous chaff. There
are no reliable earmarks of a would-be terrorist'': True or
false?
Sheriff Baca. False.
Mr. Riegle. False.
Mr. Porter. I believe that is false.
Mr. Bateman. False.
Ms. Harman. Thank you very much.
Let me, finally, address a question to you, Mr. Riegle.
This op-ed spends a lot of time on the problems with a
bulletin that was issued by the North Central Texas Fusion
System. Mr. Bateman, you also might want to comment.
Could you tell me what DHS' response was to this bulletin,
and what happened?
Mr. Riegle. We took immediate and aggressive response to
the bulletin. You will get more detail on that in the next
panel. But we immediately sent a team of civil liberties and
civil rights experts down to the State of Texas, to work
directly with the center. This included advocates from the
Muslim-American community in the United States of America.
We also, then, immediately altered the director's meeting
at the National Conference to emphasize the importance of this,
and went over this particular oversight error as aggressively
as we possibly could. I will leave it at that, to allow Mr.
Bateman some time to respond, as well.
Ms. Harman. Fine.
Mr. Bateman, you have 33 seconds.
Mr. Bateman. Thank you.
Chief Kelley Stone, of the North Central Texas Fusion
System, took responsibility for this. He met with Rob Riegle
and their staff. They have implemented new review and editing
policies. They have met with people, and are retraining
everyone in the area of privacy and civil liberties.
I would disagree with Mr. Riegle's assertion that it was
aggressive. I would say it was responsible. But I don't think
anybody viewed it as aggressive response.
Ms. Harman. Thank you, Mr. Bateman.
My time has expired. I now yield to Mr. McCaul, for 5
minutes.
Mr. McCaul. I thank you, Madam Chair. You know, after
September 11, we have two pictures behind the witnesses: One of
the World Trade Center, one of the Pentagon. The big allegation
was we weren't connecting the dots, and we weren't sharing
information, and the left hand didn't know what the right hand
was doing, and that there wasn't any coordination with State
and local law enforcement.
You know what? Those were all pretty accurate. In my
experience, just as the criminal side didn't talk to the
intelligence side of the house, there wasn't any real
coordination with State and locals. Mohamed Atta was picked
up--was stopped in a routine traffic violation, but nothing was
done to stop that.
So I actually wanted to, as the Chair--I want to go through
some of these. Then I want to--I got a question about the
border.
But I, personally, find this one assertion--having worked
with law enforcement for a good deal of my career--insulting.
That is that ``The First Amendment principles will never be
honored by law-enforcement officers or public officials in the
intelligence arena.'' I assume that this entire panel disagrees
with that assertion. Is that correct?
``There are no serious quality controls'': Does everyone
disagree with that assertion?
``Few if any are capable of separating the terrorist wheat
from the chaff--no reliable earmarks of a would-be terrorist.''
I would--anybody that would like to jump in and comment on
that specifically? Then I will have a couple minutes to ask
some questions about coordination with law enforcement at the
border.
Sheriff Baca. Simply, the functionality of a fusion center
is to, in fact, protect the civil rights of people, as opposed
to do randomness. In terms of what we do specifically, it is
really the key mark--earmark, or the key highlight of a fusion
center.
Mr. McCaul. Mr. Riegle.
Mr. Riegle. I think the evidence suggests that there were
clear opportunities to mitigate the risk of 9/11, that were
missed; and fusion centers, as the Chair has stated publicly,
on numerous occasions, are the most likely to determine this. I
think they are effective at doing that.
Mr. McCaul. Mr. Porter.
Mr. Porter. Thank you.
I just want to speak to the ``quality controls'' reference
very quickly. If you go back to the National Criminal
Intelligence Sharing Plan, we used a framework that was
advocated by Kenneth Culp Davis, many, many years ago, about
controlling discretion in the criminal justice system:
Eliminate unnecessary discretion, structure the necessary
discretion, and provide checks and balances. That is the
framework we have used to continue to go forward and
continually improve in our ability to deliver effective fusion
center services, while protecting constitutional rights.
Mr. McCaul. Mr. Bateman.
Mr. Bateman. I would like to address the comment about
the--``there are no earmarks to identifying a terrorist.''
The specific terrorists--that may be a true statement.
However, there are certain activities that these plans have
that, in and of themselves, may not be illegal. But they do
indicate that there may be some kind of planning in place.
Those kind of things are the type of information that--that
need to be collected and looked at--disregarded, if it doesn't
apply; but, then, certainly, evaluated and forwarded for
follow-up, if they do apply.
Mr. McCaul. I think that is what the American people
expect. They expect us to protect them. I think the fusion
centers play a vital role in protecting the American people.
But that is just my point of view.
The border initiative that Secretary Napolitano has
unveiled includes additional manpower for intelligence
analysts. We, yesterday, did a hearing on interoperability--had
the two sheriffs--one from Texas--Zapata County Sheriff
Gonzalez, who raised the issue that, in terms of information
sharing, we have a long ways to go.
I don't know--Mr. Bateman, you may be in the best position
to answer this--but as we deal with a threat that is emanating
from Mexico--there is a--after all, a war down there, against
the drug cartels. Can you comment on the role of the fusion
center, with respect to State and local law enforcement down on
the border?
Mr. Bateman. The fusion center in Texas has analysts that
are assigned to different groups on the border. We make
ourselves available to them if they have a request. Also, we
push information to them if we feel that it applies to their
area.
I know the sheriff you refer to, and he is aware of the
fusion center, and that it is available to him. I will meet
with him when I get back to Texas. We will work out any
differences we may have.
Mr. McCaul. Well, I look forward to that. I will yield back
the balance of my time.
Ms. Harman. I thank the gentleman.
The Chair now yields to Mr. Souder, of Indiana, for--I am
aware, Mr. Souder, but you were here before the gavel.
Mr. Souder. Thank you, Madam Chair.
I don't hear a lot of people in my district, wandering
around, going, ``Oh, you know, I don't like these fusion
centers. I would rather have it be kind of random, where they
are uncoordinated, going out, arresting each other every so
often, doing duplicative work.'' I don't understand the debate.
Just for the record, Mr. Porter, if Jesus were wandering around
in Iowa, preaching peace and personal repentance, do you think
he would be in your files?
Mr. Porter. I know that he would not be in our files.
Mr. Souder. Well, I was nervous by that statement by Mr.
Fein.
That--and--and Sheriff Baca, do you go through the eBay
records--do personality profiles on taxpayers who don't like to
pay taxes, like that tea party?
Sheriff Baca. Absolutely not.
Mr. Souder. I mean, the implications of the statements from
Mr. Fein, and the paranoia from some people, that that feeds,
is really harmful, because the reason we have the fusion
centers--and I want to ask Mr. Riegle--do you still see the
primary purpose of the fusion centers to be antiterrorism?
Mr. Riegle. I would answer the question this way: It is the
most important thing that they do in a fusion center--this
antiterrorism work. It isn't the bulk of the work they do,
however, but it is the most important, yes.
Mr. Souder. Do you see narcotics as part of that?
Mr. Riegle. Well, clearly, we want to look at and examine
any nexus between other criminal activity, whether narcotic
trafficking or human trafficking and smuggling, or any sort of
feeder crime that could support material activity in response
to material support for terrorism. Yes, we do examine that, and
we encourage that.
Mr. Souder. But you don't see, given the fact that you are
working mostly with local agencies, and that Department of
Homeland Security, with Border Patrol, and ICE, and the--and so
on--have more anti-drug agents than any other agency--and local
law enforcement--narcotics is a big part of their daily--you
don't see narcotics, which is defined in the Homeland Security
legislation as part of terrorism--you don't see that as a
significant part? It isn't in your testimony anywhere.
Mr. Riegle. Well, it is a significant part. The actual day-
to-day mechanics of the fusion center are done through our
analysis group, as far as the direct work, with what we focus
on departmentally. We do focus heavily on the counter-drug
issue, especially on the southern border, because it does feed
a lot of other violent activity. We understand that.
Mine is more of a process role, quite honestly. I am more
in the facilitation of the deployment of the systems----
Mr. Souder. Well, the reason this becomes relevant is that
El Paso--I know, at one point, they had seven intelligence
centers just in El Paso, overlapping a lot on--on drugs and
border--and that, when local police are picking up people,
often, it is related to narcotics. Criminal organizations are
criminal organizations.
In Los Angeles, for example, you have arson gangs and you
have gangs that specialize in robberies, and so on. But,
basically, the criminal organizations work together, even
contract with each other, and narcotics is a key part of this.
Are you interconnecting--let me ask Sheriff Baca--with the
Los Angeles HIDTA? Do you work with EPIC? How do you see your
fusion center, and the fact that much of the arrest record has
to do with narcotics? How do you interrelate these different
intel centers?
Sheriff Baca. Completely in the Los Angeles Regional
Intelligence Center--we are talking about all crimes. That is
what you are alluding to. There is a reality that terrorism
activity is a crime. So the techniques that we use for
robberies, narcotics, for thefts, for grand theft auto and
rapes and so forth, are the very process by which we cull out
the probable cause, protect the constitutional rights of
Americans, including the criminals, and then we move forward.
Mr. Souder. In New York City, they have attempted, along
with New Jersey and Connecticut--because of what happened
there, they have interconnected the HIDTAs, the fusion centers,
and have a better coordination. In Los Angeles, is it similar?
Are you working together?
Because, probably, you have people in multiple agencies.
The question is: How do you fuse the intelligence from all
these different kind of Government divisions? Some are under
judiciary. Some are under the drug czar. Some are under
Treasury. Part of the idea was the fusion center, but we don't
want a proliferation of fusion centers, either.
Sheriff Baca. You have just described very accurately what
the Los Angeles Fusion Center does. We reach down to five other
counties, and--including the Las Vegas metropolitan area. The
clear idea that you have just described is that the entire
Nation needs to be fused. Why? Because we have 19,000 law
enforcement agencies, and 3,000 of them which are sheriff's
departments.
All of us are better off when we share criminal data that
is verifiably accurate, and it also is gathered under a
constitutional requirement that includes civil rights, that we
have discussed earlier.
Mr. Souder. Thank you.
Ms. Harman. Thank you, Mr. Souder.
The Chair now recognizes Ms. Clarke, who is chair of the
Homeland Security Subcommittee on Emergency Threats and
Cybersecurity--issues that are closely related to what we are
discussing today--for 5 minutes of questions.
Ms. Clarke. I thank Chair Harman and Ranking Member McCaul,
for arranging this important hearing.
As a New Yorker who witnessed the horror of the 1993 World
Trade bombing and the 9/11 attacks first-hand, I am committed
to finding solutions to the information-sharing problems that
hindered our ability to prevent the attacks.
Today, fusion-center officials remain concerned that the
Office of Intelligence and Analysis has not developed an action
plan to ensure it understands and can meet the centers'
evolving and unique information needs and requirements; i.e.,
beyond the view of Muslim-Islamic actors, the emerging and
increasing threat of drug cartels, as well as cyber-attacks and
threats, and human trafficking.
I just heard the response to the question of how we really
make fusion centers fuse throughout this Nation. So my question
to the witnesses is: Some have argued that DHS should operate
like a national fusion center, pulling information from State
and local fusion centers, reviewing it together with overseas
intelligence, and, then, creating intelligence products that
provide national situational awareness of threats.
I want to know what your response to that is and whether
you think it makes sense or not.
Sheriff Baca. I would totally agree with what you have
said.
The problem with intelligence gathering is that you can't
get enough accuracy going to the level where all of us are
sharing what is essentially a core problem, wherever it
emerges. Many of us have had to travel abroad, outside our
Nation, in order to get information. Strategies are just as
important as the information. What are you going to do with it?
So, in the national statement that you have mentioned, we
would like to be a little more involved in policy development,
because it is the actions that emerge from the intelligence
that are as--just as important, if not more important, than the
intelligence itself.
Mr. Riegle. I think the sheriff is exactly right. I do
think it is the role of DHS to fuse information that is
collected or examined at the centers, that looks at what the
threat really is at the local level, and brings that back to
Washington, DC, and does a joint examination with our Federal
partners, along with State participation and local
participation, to see what, exactly, that means.
The secretary deserves to have the situational awareness of
what the risks really are. They are best identified at the
local level, as I stated in my previous testifying.
I would, though, say that we should show some deference to
the secretary's ability to run and manage in a way she finds
most effective, giving that she still has only been here a
little over 60 days. But I think she will take that
recommendation on with the utmost seriousness. I am committed
to help her do that.
Mr. Porter. Ma'am, I concur with Mr. Riegle and his
assessment.
I would just say also that, certainly, this has to be done
in a pluralistic environment. We have a lot of different
agencies with that interest. Certainly, even in my State, we
would like to have situational awareness that is at a national
level.
Our Federal partners have done a tremendous job working
together on training and technical assistance, and finding the
right role or lanes in the road for each of them. I think they
could also do the same thing with this issue.
Mr. Bateman. We have DHS personnel from Washington, DC,
assigned to our centers. They are invaluable to us in getting
information that we have, that we may not recognize the full
value of, to Washington, DC, and getting things from
Washington, DC, brought down to us. They also help us to
navigate the complexities of the DHS structure, which sometimes
overwhelm the smaller centers.
So while they don't have a comprehensive plan in place,
they do have mechanisms in place to allow for that to go on--
that sharing to go on.
Ms. Clarke. I guess my concern is that they will become
sort of a standard. Because, at that point, we can, then,
address the issues of civil liberties and privacy. As long as
there is this sort of imbalance, I think that that remains an
area that is sort of grey. The more that we can bring clarity
to it, the better off we will be.
Let me just close by asking Mr. Porter how important it is,
transparency to the public, privacy, and civil liberties
advocates, and the media, in terms of the future of fusion
centers? In your view, what privacy and civil liberties
criticisms of fusion centers, over the last year, have been
fair, and what has been unfair or misinformed? How have you
responded?
Mr. Porter. Thank you.
I think, in the interest of time--and I would be happy to
come back to this. I don't want to use up too much time on the
answer.
The fact that significant portions of the National Fusion
Center Conference were open to the media and to advocates--as
well as the fact that we are encouraging fusion centers, when
there is an interest in media or advocates, to come through and
learn about the center. We are encouraging that process. That
has gone a long ways to helping provide an understanding in
terms of complaints or issues or concerns, so that that
dialogue is happening in a healthy way, with understanding.
I am not sure I am speaking fully to your question at this
point.
Ms. Clarke. We will probably address that another time. My
time is up, and I yield back.
Mr. Porter. Thank you.
Ms. Harman. I thank the gentlewoman.
The Chair now yields to Mr. Himes, of Connecticut, for 5
minutes.
No questions?
Mr. Green. Mr. Green, you are recognized for 5 minutes.
Mr. Green. Thank you, Madam Chair.
I thank the witnesses for appearing, and apologize for
being a little bit late arriving. We have other hearings that
are taking place. I am trying to be at multiple places at the
same time. So please forgive me. But I do appreciate your
taking the time to come in.
I understand that some questions have already been asked
that I would probably pursue. Hopefully, I won't get us into a
point where we are being superfluous or redundant. But I do
have the article that has been called to the attention of this
panel.
I think that it is appropriate that this panel have an
opportunity to respond, because you have intelligence that can
help us with our intelligence. So I would like to visit with
you for just a moment about a few things akin to, or associated
with, this article.
Let me ask just a basic question, because it would be
unfair for me to ask you to comment on something you haven't
read. Have you had an opportunity to peruse the article that I
am speaking of, styled, ``Surveilling for Clues of Evil
Intent''?
If you have had an opportunity to peruse it, would you
kindly extend a hand into--this way--I will know. All right,
everyone has. Good.
This is a broad question: Is there something about this
article that gives you reason to want to make a comment, such
that I can allow you to speak, without my having to sift
through the sand and find all of the pearls of wisdom that you
may impart?
So let us start with whomever would like to speak first. Is
there something about it you would like to share with us?
Please.
Sheriff Baca. Well, the article is extremely offensive and
inaccurate.
First of all, the idea that First Amendment Principles will
never be honored by law-enforcement officers or public
officials in the business of intelligence collection is
categorically false.
The fact that there is a reference that we ``will be
rewarded financially and professionally by the volume of
intelligence collected'' is completely false; that ``there is
no serious quality controls''--that is completely false. Myself
and the Joint Regional Intelligence Center of Los Angeles,
along with those throughout the Nation, have been trained on
these very subject matters.
``Few are capable of separating the wheat from the
innocuous chaff''--that is false. We know that fusion centers
are designed to do that very thing. Let me comment on this.
When 9/11 occurred, 8,000 tips came into the FBI about
suspicious activity, because people in American were very
upset. We had to go through all of that to make sure that we
were getting to the right pieces of information, and we did.
That is the purpose of a fusion center.
I can assure you, Congressman, when the next attack occurs,
God forbid, we are going to have Americans making phone calls
all over America, to local police departments, asking for us to
investigate suspicious activities.
They are the greatest potential violators of civil rights.
Now, we are in the business of protecting civil rights.
Therefore, I am saying to the American public--we will answer
your requests, but we will do it within the structure of law.
Mr. Green. Thank you.
Yes, sir.
Mr. Riegle. Congressman, I think one of the things that is
underrepresented is the approach in the national network of
fusion centers. We have to share information.
You can take, really, one of two approaches. You can work
with people that live in the community, among the citizens that
they protect, and give them the lead. They have the trust
already, and have for, you know, since the beginning of the
Nation--had the trust of the fire and police that protect them.
We can put the approach in their hands, and believe in their
ability to carry out this mission. Or we can do it from the
Federal Government in Washington, DC.
I would submit to you that most people are comfortable with
having that approach taken locally, not from the beltway. That
is my comment on that.
Mr. Green. Mr. Porter.
Mr. Porter. I will refer to my comments earlier.
But I will say this, and allow Mr. Bateman to respond. The
commentary does talk about the Palmer raids, McCarthyism,
COINTELPRO, which have been talked about, to fusion centers--in
the history of law enforcement intelligence, as we presented to
them.
I will say, ``Hats off,'' to Mr. Fein, for referencing
Operation Shamrock. That is something I don't know about, but
we will be learning about, so that we can share that
information with fusion centers.
Mr. Bateman. Mr. Fein's article is certainly--overstates
some things and makes some--what I would consider vitriolic
claims. But there is a--I hope his underlying point is that he
needs--he is concerned that there is no privacy policy or civil
liberties concerns among the fusion centers.
That is not true. I think the hearing here, today,
demonstrates that. However, he is marginalizing his opinion by
the statements he makes that are so demonstrably false.
Mr. Green. Thank you.
The Chair has indicated that my time is up.
Thank you very much.
I yield back, Madam Chair.
Ms. Harman. Thank you, Mr. Green.
Everyone has had a chance to question this panel. We have a
second panel coming up.
So I would like to thank this panel for your service to a
grateful Nation, and your on-going concern about civil rights
and civil liberties, and excuse you now.
Thank you very much.
It will take a minute to set up the next panel. So the
committee will be in recess for about a minute.
[Recess.]
Ms. Harman. Fast work by able staff.
The subcommittee is in order.
I would like to welcome our second panel of witnesses.
Our first witness, Bruce Fein, served as associate deputy
attorney general for the Justice Department, and general
counsel for the Federal Communications Commission, under
President Ronald Reagan.
Mr. Fein later served as legal advisor to then-Congressman
Dick Cheney on the Joint Committee on Covert Arms Sales to
Iran. He also served on an American Bar Association task force
in 2006 that that addressed the issue of usurpation of
legislative power by the Executive branch, and subsequently
founded an organization called The American Freedom Agenda in
2007.
I have personally consulted Mr. Fein from time to time on
issues important to this subcommittee, such as the National
Applications Office, and the very controversial and difficult
issue of violent extremism.
Our second witness, Ned Norris, Jr., is chairman of the
Tohono O'odham Nation, a federally recognized tribe of 28,000
people, who reside on and off tribal lands in southwestern
Arizona, and across the international border, in Mexico.
The Tohono O'odham Nation is one of the largest tribes in
the southwest, with a land base of 2.8 million acres, and 4,460
square miles; approximately, the size of the State of
Connecticut. The Nation has the second-largest tribal-land base
in the United States.
Mr. Norris started his employment with the Tohono O'odham
Nation in 1978, as a non-attorney tribal judge, and held the
position until 1993. He served as a Sunnyside Unified School
District board member from 1997 to 2000.
Our third witness, David Gersten, is the acting deputy
director for Programs and Compliance, in the Department of
Homeland Security's Office for Civil Rights and Civil
Liberties.
In this capacity, he works to fulfill the office's mission
to provide policy guidance to Departmental leadership on civil
rights and civil liberties. Mr. Gersten manages several units
and individuals, who serve as information and communications
channels with the public, regarding these key issues. They
include units dedicated to engagement with the American Arab
and Muslim communities, civil rights and civil liberties
training for DHS personnel and partners, and review of how the
Department's use of technology and its approach to information
sharing impacts civil liberties.
Without objection, the witnesses' full statements will be
inserted in the record. I would now each of--now ask each of
you, starting with Mr. Fein, to summarize your statement, in 5
minutes or less. Please do observe the time clock, which I
think is visible to you.
STATEMENT OF BRUCE FEIN, PRINCIPAL, THE LITCHFIELD GROUP
Mr. Fein. Thank you, Ms. Chair, and Members of the
subcommittee.
I want to make some opening observations about why I think
it is not paranoid to be suspicious about Government
investigations, intelligence collection, post-9/11, whether it
is in the process of fusion centers or otherwise.
Shortly after 9/11, there began what President Bush styled,
the ``Terrorist Surveillance Program.'' That was an effort to
spy on Americans on American soil. It is in contravention of
the Foreign Intelligence Surveillance Act of 1978.
We still, today, don't know how many thousands of Americans
were spied on; why they were spied on; why it is that, despite
the open confession that this was a violation of the Foreign
Intelligence Surveillance Act, there has been no investigation
to determine liability under the act.
Both the previous administration and this one have invoked
``state secrets'' to prevent full disclosure to the American
people as to who was spied on, what happened to their
information. I know you, Ms. Chairman--know you don't know
either--and that the administration didn't tell you anything.
On the other hand, they also had their Privacy Protection
Committee--internal privacy-protection committees within the
Executive branch. They assured us every 45 days that the only
people being spied on were those who were known al Qaeda
agents.
We have no ability to know whether that is accurate. If
that were true, we are puzzled as to why both the previous, and
this administration, continue to invoke ``state secrecies'' to
conceal from us who was spied on, and why, and what was done
with that information. This is now 7 years--7 years--after that
fact--no disclosure whatsoever, even to this Congress of the
United States.
Now what else happened after 9/11 that makes us somewhat
suspicious? Remember, there began what now has been conceded to
be waterboarding--something that the International Committee of
the Red Cross has styled ``torture.'' That is not an arm of a--
necessarily, a paranoid group. Still, no accountability,
whatsoever. No accountability, whatsoever.
We have been told also that all of these investigations,
spying--they stopped countless terrorist acts in the bud. No
proof, just an assertion by the previous Vice President of the
United States. We don't know that.
Now, all the so-called ``privacy protections'' built in to
these programs are all internal--the same internal privacy-
protection programs that were to protect us from the Foreign
Intelligence Surveillance Act, the torture, those who are
detained at Guantanamo Bay, without accusation or charge.
Remember, we knew, from our intelligence, they were the worst
of the worst. These were the people who were out there plotting
every day to commit another 9/11.
Then, what has happened--when you actually had an outside--
not an internal investigation--outside habeas corpus review--
virtually everyone has been released. There is now no evidence
they are so-called ``the worst of the worst.''
So there is reason why, after 9/11, which was the impetus
for the fusion centers--the effort of enlisting State and local
officials into doing the same things that the FBI and the CIA
were doing at a national level to prevent another 9/11--to
think that, perhaps, the spying is going too far.
Now, so much has been made also of the--I won't go into all
the criticism in my testimony. I am sure you will have many
questions of me after I conclude my opening statement.
But it is said that this citation to the Texas Fusion
Center overreaching was an aberration. Suddenly, the fusion
center was called to account by Federal authorities or
otherwise, and given privacy lectures.
Well, there are a couple things that I would like to
observe. No. 1, we weren't told that a single person involved
in preparing this report--which suggests that if you celebrate
any kind of Islamic creed, you are somehow suspect--was
punished, was reprimanded--anything bad happened to them--same
thing with regard to foreign intelligence--like that--people
involved in torture--John, you--anybody? No sanctions
whatsoever. What message does that send to those who are on the
front line? Is this wrong if you don't get any sanction,
demerit, for what you have done here?
Now, let me also go to what I think suggests that this
problem is more than just isolated. We don't have fusion
centers subject to the Freedom of Information Act. We don't
have outside independent scrutiny, who goes in and examines:
What is the scope of the intelligence being collected? We have
statements of people involved saying, ``Well, we have great
privacy committees,'' but we don't have any outside check.
We know, from your position here, in Congress, checks and
balances mean an institutional separation, not internally,
here. We don't trust the Executive branch to police itself. We
don't trust the Judiciary to police itself, or Congress.
Separation of powers means separation of institutional
incentives. We don't have any assurance that--other than self-
serving statements--that the Texas Fusion Center isn't typical.
Moreover, there was never any statement as to what was
thought wrong about this particular intelligence report
highlighting--very ominous--``Middle Eastern terrorist groups
and their supporting organization have been successful in
gaining support for Islamic goals in the United States, and
providing an environment for terrorist organizations to
flourish.''
Well, what is wrong with that? Where is----
Ms. Harman. Mr. Fein, could you please summarize? You have
gone over the 5 minutes.
Mr. Fein. Yes. Thank you. I apologize. I appreciate that
indulgence.
I would like to know what it was that was said--what was
wrong under the First Amendment in the Constitution about this
particular bulletin. That would give some assurances that the
people knew what was wrong.
The last thing: Without sunshine on all of these fusion
programs, we don't know whether this is an aberration, whether
anybody has ever been sanctioned whatsoever, for undertaking
this kind of spying for political intelligence.
Thank you.
[The statement of Mr. Fein follows:]
Prepared Statement of Bruce Fein
April 1, 2009
Dear Ms. Chair and Members of the subcommittee: The Soviet Union
had its KGB, East Germany had its Stasi, and the United States should
profit by those examples. It should abandon fusion centers that engage
800,000 State and local law enforcement officers in the business of
gathering and sharing allegedly domestic or international terrorism
intelligence. The vast majority conceive this task as synonymous with
monitoring and disparaging political dissent and association protected
by the First Amendment.
To a hammer everything looks like a nail. To an intelligence agent,
informant, or law enforcement officer, everything unconventional or
unorthodox looks like at least a pre-embryonic terrorist danger. The
United States should not fall victim to the French Bourbon Monarchy
disease of forgetting nothing, and learning nothing, as with the A.
Mitchell Palmer Raids, McCarthyism, COINTELPRO, or Operation Shamrock.
Fusion centers are philosophically at war with freedom of speech
and religion, the democratic process, and privacy. They pivot on the
idea that the constitutionally legitimate and most effective way to
forestall a second edition of 9/11 or a variation is to spy on American
citizens in search of clues of an inclination towards future terrorism.
Under United States law, an earmark of terrorism includes acts that,
``appear to be intended . . . to influence the policy of a government
by intimidation or coercion . . . ''. Any political dissident is thus a
candidate for spying, who routinely makes his way into daily
intelligence reports.
Under the standards employed by fusion centers and their
tributaries to collect intelligence, participants in the Boston Tea
Party, the Secret Committees of Correspondence, Paul Revere's Ride, and
the Declaration of Independence would all have been subjects of
suspicious activities reports, placed on a Government watch list, and
blacklisted from Government and private employment. The anti-slavery
movement ignited by William Lloyd Garrison would have been stillborn.
Ditto for the movement for women's suffrage begun in Seneca Falls, New
York in 1948, and featuring Susan B. Anthony's criminal prosecution for
attempting to vote. The civil disobedience protests that ended the
Vietnam War and Jim Crow would have been squelched. The FBI spied on
Reverend Martin Luther King, Jr. by using warrantless electronic
surveillance or otherwise because of the absurd suspicion that
Communist influence had made him hostile to White Supremacist
subjugation of his entire race.
Then National Security Adviser Henry Kissinger epitomized the
presumption of guilt which warps the mind of the typical spy. He guided
the FBI's investigation of a suspected aide who leaked the Nixon
administration's secret bombing of Cambodia in 1969 to the New York
Times. Wiretaps were initially placed on Morton Halperin, and were
extended to others whom Kissinger suspected of undermining his White
House influence. Two months of wiretaps and bugs yielded no useful
clues, but Kissinger directed continuance of the surveillance to permit
the targets an opportunity to establish a ``pattern of innocence.''
We do not need to speculate about fusion center mischief. On
February 19, 2009, the North Central Texas Fusion System issued a
``Prevention Awareness Bulletin'' that might easily have been penned by
recruits from East Germany's Stasi. In bold letters, the bulletin
worries that freedom of speech, petitioning Government for redress of
grievances, and freedom of association are being exploited by Islamic
groups to advance their ``Islamic-based'' goals (which are never
defined) by peaceful and lawful means. In other words, democracy or
free speech are the enemy. The first page highlights: ``Middle Eastern
Terrorist groups and their supporting organizations have been
successful in gaining support for Islamic goals in the United States
and providing an environment for terrorist organizations to flourish.''
It continues: ``A number of organizations in the U.S. have been
lobbying Islamic-based issues for many years. These lobbying efforts
have turned public and political support towards radical goals such as
Shariah law and support of terrorist military action against Western
nations.''
The supreme folly of that disparagement of freedom of speech and
association in search of political change was underscored by United
States Chief Justice Charles Evans Hughes in De Jonge v. Oregon (1937):
``These rights may be abused by using speech or press or assembly in
order to incite to violence and crime. The people through their
legislatures may protect themselves against that abuse. But the
legislative intervention can find constitutional justification only by
dealing with the abuse. The rights themselves must not be curtailed.
The greater the importance of safeguarding the community from
incitements to the overthrow of our institutions by force and violence,
the more imperative is the need to preserve inviolate the
constitutional rights of free speech, free press and free assembly in
order to maintain the opportunity for free political discussion, to the
end that government may be responsive to the will of the people and
that changes, if desired, may be obtained by peaceful means. Therein
lies the security of the Republic, the very foundation of
constitutional government.''
The fusion center viewed with alarm constitutionally protected
speech and activity which are the backbone of democracy and prevent the
ideological landscape from turning into a petrified forest. Even the
U.S Department of Treasury is scorned for hosting a conference entitled
``Islamic Finance 101.'' Counterparts to the fusion center report on
political dissent can be found in every totalitarian or despotic
country in the world, for example, Iran, Russia, or Burma. The fusion
center bulletin continues:
``We give some examples of these lobbying activities.
``The Council on American Islamic Relations (CAIR) presents itself as a
Muslim Civil Liberties group yet it was named an unindicted co-
conspirator in the Justice Department's case in Dallas against the Holy
Land Foundation, a Hamas-linked Islamic charity. CAIR's agenda was best
illustrated by founder Omar Ahmad who told the San Ramon Herald, `Islam
isn't in America to be equal to any other faith, but to become
dominant. The Koran should be the highest authority in America, and
Islam the only accepted religion on Earth.' ''
It speaks volumes about religious prejudice that the fusion center
omitted mention of the many groups who espouse the supremacy of Judeo-
Christian religions and declare that the United States is a Judeo-
Christian nation (in contravention of the religious neutrality
compelled by the Constitution). Presidential candidate John McCain, for
instance, sermonized: ``We are a Judeo-Christian nation.'' In addition,
speech urging the Koran as the highest authority in America is fully
protected by the First Amendment no matter how politically disagreeable
to the majority or to the fusion center zealots. Supreme Court Justice
Oliver Wendell Holmes observed in Gitlow v. New York (1925): ``It is
said that this [Left Wing] manifesto was more than a theory, that it
was an incitement. Every idea is an incitement. It offers itself for
belief and if believed it is acted on unless some other belief
outweighs it or some failure of energy stifles the movement at its
birth. The only difference between the expression of an opinion and an
incitement in the narrower sense is the speaker's enthusiasm for the
result . . . If in the long run the beliefs expressed in proletarian
dictatorship are destined to be accepted by the dominant forces of the
community, the only meaning of free speech is that they should be given
their chance and have their way.''
The fusion center's bulletin continues its attack on the
Constitution's celebration of religious accommodation and diversity
with a cri de coeur against displays of sensitivity towards Islam and
the possibility of altering American law accordingly:
``Taken in that context, pushing an aggressive, pro-Islam agenda that's
been increasingly successful in recent years takes on a new light. The
following list taken in isolation seems rather innocuous: Muslim cab
drivers in Minneapolis refuse to carry passengers who have alcohol in
their possession; the Indianapolis airport in 2007 installed footbaths
to accommodate Muslim prayer; Public schools schedule prayer breaks to
accommodate Muslim students; Pork is banned in the workplace; etc.
``Tolerance is growing in more formal areas. The Department of Treasury
recently hosted a conference entitled `Islamic Finance 101' which
indicates the possibility that the government hopes to secure recycled
petrodollars in exchange for conforming to Shariah economic doctrine.
Christopher Holton of the Center for Security Policy refers to Islamic
finance, or `Shariah-Compliant Finance' as a `modern-day Trojan horse'
infiltrating the U.S. He said it poses a threat to the U.S. because it
seeks to legitimize Shariah--a man-made medieval doctrine that
regulates every aspect of life for Muslims--and could ultimately change
American life and laws. A Houston bank now offers Islamic Financing for
home loans.''
The fusion center would certainly have filed a suspicious
activities report against Jesus for threatening pagan dominance in the
Roman Empire by preaching monotheism. A Roman fusion center would
probably have cheered the crucifixion because Christianity was
endangering traditional Roman life and laws.
Next in the center's intelligence cross-hairs are opponents of the
global military projection of the United States who are viewed with
anxiety because of their dissidence:
``A recent conference, titled `International Forum for Resistance,
Anti-Imperialism, Solidarity between Peoples and Alternatives,' was
held on January 16-18, 2009, and hosted by the Consultative Center for
Studies and Documentation (CCSD), a Hezbollah-affiliated think tank.
The conference was co-sponsored by several international far left
groups, including the International Campaign Against U.S. and Zionist
Occupations, a coalition co-founded by the International Action Center
(IAC). The keynote address was given by Naim Qassam, Hezbollah's deputy
secretary general. He talked about the need to rearm Hamas in Gaza and
stated that `We must intensify the struggle against NATO' and talked
about finding a way to disrupt `the imperialist and Zionist war
machines.' ''
Ever word that was treated with suspicion is protected by the First
Amendment under Brandenburg v. Ohio (1969) and NAACP v. Claiborne
Hardware (1982). Even speech that encourages law violations is
protected unless it is intended to provoke imminent lawless violence
and is likely to have succeeded.
The center also perceived critics of the U.S. war in Iraq as good
candidates for terrorism. Its bulletin degenerates into a version of
Japan's pre-World War II thought police:
``IAC was founded by former U.S. Attorney General Ramsey Clark. The IAC
delegation led by Clark included former Congresswoman Cynthia McKinney.
The IAC views Hezbollah and Palestinian terror groups like Hamas and
groups fighting U.S. forces in Iraq as legitimate popular resistance
forces and a bulwark against U.S. imperialism and `Israeli terrorism.'
''
The center thus urges law enforcement to place the IAC on its watch
list for believing in bad ideas:
``The IAC also has operations in the United States including one of the
main anti-war and anti-Israel protest movements in the U.S. called
ANSWER, Act New to Stop War and End Racism. Law enforcement should be
aware of activities in their area.''
The center looks askance at Islamic groups aping the promotional
and advertising gimmicks of Madison Avenue to promote their ideas by
exploiting freedom. Apparently only Christian organizations should
stoop to self-promotion through blogs, chat forums, and hip-hop music:
``Islamic radicalization have been reported by such groups as Hizb-ut-
Tahir who have a goal of overthrowing governments and replacing them
with a caliph. They take advantage of growing tolerance in the U.S.
Some of their marketing schemes have included hip-hop fashion
boutiques, hip-hop bands, use of on-line social networks, use of video
sharing networks, chat forums and blogs. They have been especially
active in California, New York, Wisconsin, and Chicago. They target
universities for recruitment.''
Advocating the overthrow of the Government as an abstract theory, not
as an imminent and active plan, is protected speech under the First
Amendment. See Yates v. United States (1957).
The center concludes with a peroration that all law enforcement
officers should be as aggressive and vigilant in monitoring the free
speech and freedom of association activities of Islamic organizations
as is North Central Texas. It betters the exhortations of the Japanese
thought police:
``Given the stated objectives of these lobbying groups and the
secretive activities of radical Islamic organizations, it is imperative
for law enforcement officers to report these types of activities to
identify potential underlying trends emerging in the North Central
Texas region.''
The North Central Texas fusion center is not an aberration. All
Government spies or law enforcement officers tend to interpret anything
unorthodox or unconventional as subversive--even hair length. A
February 20, 2009 report of the Missouri Information Analysis Center
(MIAC) asserted that right wing militia members are usually supporters
of presidential candidates Ron Paul, Chuck Baldwin, and Bob Barr. Since
I spoke at Mr. Paul's Campaign for Liberty convention in Minneapolis
and am a professional and personal colleague of Bob Barr, MIAC probably
has me on a watch list for right-wing militia members.
A July 2008 ACLU Fusion Center Update by Mike German and Jay
Stanley reported on the open-ended suspicious activity intelligence
collection efforts of the LAPD and its spread Nation-wide. The
intelligence initiatives are dragnets for protected First Amendment
activity aimed at altering the policies of the United States. The
Update notes:
``In April 2008, the Wall Street Journal and the Los Angeles Times both
reported on a new Los Angeles Police Department order that compels LAPD
officers to begin reporting `suspicious behaviors' in addition to their
other duties--creating a stream of `intelligence' about a host of
everyday activities that, according to documents, will be fed to the
local fusion center.
``LAPD Special Order No. 11, dated March 5, 2008, states that it is the
policy of the LAPD to `gather, record, and analyze information of a
criminal or non-criminal nature, that could indicate activity or
intentions related to either foreign or domestic terrorism,' and
includes a list of 65 behaviors LAPD officers `shall' report.
``The list includes such innocuous, clearly subjective, and First
Amendment protected activities as: taking measurements; using
binoculars; taking pictures or video footage `with no apparent esthetic
value'; abandoning vehicle; drawing diagrams; taking notes; espousing
extremist views.
`` . . . [T]he LAPD's collection of `non-criminal' information runs
afoul of Title 28, Part 23 of the Code of Federal Regulations, which
states that law enforcement agencies: shall collect and maintain
criminal intelligence information concerning an individual only if
there is reasonable suspicion that the individual is involved in
criminal conduct or activity and the information is relevant to that
criminal conduct or activity.
``Rather than criticize the LAPD efforts, the Office of the Director of
National Intelligence said the LAPD program `should be a national
model.' Not surprisingly, in June 2008 the Departments of Justice and
Homeland Security teamed with the Major City Chiefs Association to
issue a report recommending expanding the LAPD SAR program to other
U.S. cities.
``In fact, just a few weeks before the LAPD order was issued, the
Director of National Intelligence published new `functional standards'
for suspicious activity reports that a program like the LAPD's would
generate. The sequential timing of the DNI's functional standards, the
LAPD SAR order and the Major City Chiefs recommendations creates more
than a little suspicion that these efforts are closely coordinated.''
Among other things, the Update recounts a flagrant abuse of
intelligence gathering in the case of Dr. Moniem El Ganayni, who had
assailed the FBI verbally for its treatment of Muslims. His security
clearance was improperly revoked. He underwent 7 hours of questioning
focusing on his religious beliefs and service as an imam in the
Pennsylvania prison system, his political views on the war in Iraq, and
his speeches in local mosques criticizing the FBI. The Maryland State
Police counterterrorism spying debacle displays the same brainless
disregard for the Constitution, for example, viewing as potential
terrorists protestors against the death penalty.
Core First Amendment principles will never be honored by law
enforcement officers or public officials. Their psychological
preoccupations are order and the status quo; they viscerally fear or
are perturbed by the prospect of change or challenges to the existing
power structure. Further, they are rewarded financially and
professionally by the volume of intelligence collected. There are no
serious quality controls because few if any are fit to separate the
terrorist wheat from the innocuous chaff. There are no reliable
earmarks of a would-be terrorist. Some are rich. Some are poor. Some
are devout. Some are religiously indifferent. Some are educated. Some
are without schooling. Timothy McVeigh was not a prime suspect in the
immediate aftermath of the Oklahoma City bombing. Arab Muslims were.
Brendon Mayfield was erroneously linked to the 2004 Madrid train
bombings. Habeas corpus has resulted in discrediting the enemy
combatant status of more than 90% of the Guantanamo detainee
petitioners. Since anything might be a clue as to a possible
psychological inclination to commit terrorism, everything is fair game
for intelligence collection. But when everything is relevant, nothing
is relevant. Finding something useful in the mass of undifferentiated
intelligence reports and analysis is thus akin to looking for a needle
in a haystack. That may explain why there is no credible evidence that
fusion centers have frustrated a single terrorist plot--their primary
raison d'etre.
The fusion centers and their tributaries should cease collection of
intelligence that might arguably bear on intentions relating to
domestic or international terrorism, i.e, intentions to seek to change
Government policies, because they invariably encroach on
constitutionally protected speech.
The Founding Fathers were not frightened by ideas. They believed
that it was better to be free than to seek a risk-free existence. They
would have repudiated the 1% doctrine of former Vice President Dick
Cheney. It decreed that anything carrying a 1% probability of
occurrence must be treated as an absolute certainty like the force of
gravity if terrorism is implicated. The spirit of the 1% doctrine is
also the spirit of fusion centers.
They have never learned cardinal lessons from the United States
Supreme Court. In Abrams v. United States (1919), Justice Holmes
lectured: ``Persecution for the expression of opinions seems to me
perfectly logical. If you have no doubt of your premises or your power,
and want a certain result with all your heart, you naturally express
your wishes in law, and sweep away all opposition. To allow opposition
by speech seems to indicate that you think the speech impotent, as when
a man says that he has squared the circle, or that you do not care
wholeheartedly for the result, or that you doubt either your power or
your premises. But when men have realized that time has upset many
fighting faiths, they may come to believe even more than they believe
the very foundations of their own conduct that the ultimate good
desired is better reached by free trade in ideas--that the best test of
truth is the power of the thought to get itself accepted in the
competition of the market, and that truth is the only ground upon which
their wishes safely can be carried out. That, at any rate, is the
theory of our Constitution. It is an experiment, as all life is an
experiment. Every year, if not every day, we have to wager our
salvation upon some prophecy based upon imperfect knowledge. While that
experiment is part of our system, I think that we should be eternally
vigilant against attempts to check the expression of opinions that we
loathe and believe to be fraught with death, unless they so imminently
threaten immediate interference with the lawful and pressing purposes
of the law that an immediate check is required to save the country.''
In Whitney v. California (1927), Justice Brandeis elaborated:
``[W]e must bear in mind why a state is, ordinarily, denied the power
to prohibit dissemination of social, economic and political doctrine
which a vast majority of its citizens believes to be false and fraught
with evil consequence. Those who won our independence believed that the
final end of the state was to make men free to develop their faculties,
and that in its government the deliberative forces should prevail over
the arbitrary. They valued liberty both as an end and as a means. They
believed liberty to the secret of happiness and courage to be the
secret of liberty. They believed that freedom to think as you will and
to speak as you think are means indispensable to the discovery and
spread of political truth; that without free speech and assembly
discussion would be futile; that with them, discussion affords
ordinarily adequate protection against the dissemination of noxious
doctrine; that the greatest menace to freedom is an inert people; that
public discussion is a political duty; and that this should be a
fundamental principle of the American government. They recognized the
risks to which all human institutions are subject. But they knew that
order cannot be secured merely through fear of punishment for its
infraction; that it is hazardous to discourage thought, hope and
imagination; that fear breeds repression; that repression breeds hate;
that hate menaces stable government; that the path of safety lies in
the opportunity to discuss freely supposed grievances and proposed
remedies; and that the fitting remedy for evil counsels is good ones.
Believing in the power of reason as applied through public discussion,
they eschewed silence coerced by law--the argument of force in its
worst form.''
Supreme Court Justice and Nuremburg Robert Jackson underscored the
dangers of viewing dissident ideas or symbols with suspicion in West
Virginia State Bd. of Education v. Barnette (1943): ``Struggles to
coerce uniformity of sentiment in support of some end thought essential
to their time and country have been waged by many good as well as by
evil men. Nationalism is a relatively recent phenomenon but at other
times and places the ends have been racial or territorial security,
support of a dynasty or regime, and particular plans for saving souls.
As first and moderate methods to attain unity have failed, those bent
on its accomplishment must resort to an ever-increasing severity. As
governmental pressure toward unity becomes greater, so strife becomes
more bitter as to whose unity it shall be. Probably no deeper division
of our people could proceed from any provocation than from finding it
necessary to choose what doctrine and whose program public educational
officials shall compel youth to unite in embracing. Ultimate futility
of such attempts to compel coherence is the lesson of every such effort
from the Roman drive to stamp out Christianity as a disturber of its
pagan unity, the Inquisition, as a means to religious and dynastic
unity, the Siberian exiles as a means to Russian unity, down to the
fast failing efforts of our present totalitarian enemies. Those who
begin coercive elimination of dissent soon find themselves
exterminating dissenters. Compulsory unification of opinion achieves
only the unanimity of the graveyard.''
``It seems trite but necessary to say that the First Amendment to
our Constitution was designed to avoid these ends by avoiding these
beginnings.''
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. The greatest threat to liberty is an inert people, which
is what fusion centers induce by placing a price on the exercise of
fundamental democratic freedoms.
In sum, what Oliver Cromwell said of the British Long Parliament
applies equally to fusion centers that have proliferated after 9/11 in
the vain hope of aborting terrorism before conception: ``You have sat
too long for any good you have been doing lately . . . Depart, I say;
and let us have done with you. In the name of God, go!''
Ms. Harman. Thank you.
Mr. Norris.
STATEMENT OF NED NORRIS, JR., CHAIRMAN, TOHONO O'ODHAM NATION
Mr. Norris. Thank you, Chair Harman, and Ranking Member----
Ms. Harman. Your microphone may not be on.
Mr. Norris. Thank you.
Thank you for this opportunity to be here, and share with
you some thoughts from the Tohono O'odham Nation, one of the
more than 550 federally recognized tribes in the United States.
I am extremely encouraged when I--with the reference to
tribes in the Chair's opening statements, and the comments from
Mr. Riegle. Fusion centers represent law enforcement's public
safety, and our first responders, who come together with a
common purpose: To safeguard our communities, and to prevent
their intervening criminal activity, and, ultimately, to
prevent terrorist activity.
I support fusion centers. But I emphasize that we must
ensure that all of our citizens' privacy, legal rights, civil
liberties, and information privacy are protected.
This is particularly critical in Indian Country. As you may
or may not know, Tribal members have a separate set of civil
rights, as defined in the Indian Civil Rights Act 25 U.S.C.,
1301-03, 1968.
Although similar to the United States Constitution Bill of
Rights, these rights protect Tribal members within Indian
Country. Fusion center architects must be made aware of the
ICRA and its application.
I would like to talk about terrorism starting at the local
level. The first response to any threat or act of terrorism
starts at the local level. Indian Country is no exception. In
fact, Indian Country is more vulnerable because of the current
ineffective communication, or lack of information sharing
between Federal, county, State, and local agencies.
But a glaring deficiency is the lack of formal criminal
information and intelligence sharing between our law
enforcement counterparts at the Federal, State, and local
levels.
The State of Arizona has a fusion center that has been
recognized as an exceptional program. Despite this recognition,
there has been minimal, if any, participation, with Tribal law
enforcement.
Without Tribal police participation and State programs--
cannot be completely effective.
The State of Arizona has made efforts to seek out Tribal
law enforcement participation, and we are pleased with their
outreach efforts. We will work with the States to strengthen
their program.
I would like to talk a little bit about the intelligence-
led policing. Tribal, State, and local law enforcement have
recognized that there is a need for increased collaboration for
information and intelligence sharing, and are strengthening
their capabilities to develop intelligence-led policing as a
philosophy.
This concept links directly into the initiative or reason
for fusion centers. Again, fusion centers are an ideal
information and intelligence-sharing program, linking law
enforcement, public safety, fire, health, and the private
sector, to effectively safeguard our communities.
We need to think about removing barriers that hinder
information sharing at the Federal level. We found that
information sharing at the Federal level is fragmented. As a
result, this hampers our efforts to develop information and
intelligence sharing with our Federal counterparts,
specifically Department of Homeland Security agencies, Custom
and Border Protection, and Immigration and Customs Enforcement.
Customs and Border Protection estimates that there are
between 400 and 450 crossings along the Tohono O'odham Nation's
border, and about 10 percent, or 40 or 50, of the illegal
crossers are criminal aliens with criminal histories, including
rape, drug transporting, assault, and murder.
The Tohono O'odham Nation has about 75 miles of
international border to the south of it. We also have nine
communities that continue to exist in Mexico, with about 1,500
enrolled citizens of our Nation in Mexico.
We need to begin to remove the barriers that impede
information with the Indian Country. The basic method of
information sharing enjoyed by State, Federal, and local, and
some Tribal law enforcement, is access to National Crime
Information Center.
Access to NCIC is controlled by the States, and there are
several Tribal law enforcement agencies that are denied access
to NCIC by their respective State, because the State does not
recognize Tribal law enforcement.
In California, Tribes are not recognized, and are denied
access to NCIC, despite the fact that they receive the same
training as their counterparts within the State.
In the State of New York, Tribal police, in compliance with
the Adam Walsh Act, requested from the State a list of sexual
offenders released from State prisons. They were denied the
information based on State's refusal to recognize their agency
as a law enforcement agency.
Ms. Harman. Mr. Norris, could you summarize your statement?
You have exceeded the 5 minutes.
Mr. Norris. Additionally, they are not allowed to enter
their offender into State sexual offender tracking systems.
Madam Chair, I thank you for this opportunity, and will be
willing to answer any questions that may come up later. Thank
you.
[The statement of Mr. Norris follows:]
Prepared Statement of Ned Norris, Jr.
April 1, 2009
Good morning Chairman Thompson and Members of the subcommittee. I
appreciate the opportunity to appear before this committee to present
the views of the Tohono O'odham Nation and Indian Country. I am Ned
Norris Jr., chairman of the Tohono O'odham Nation.
Since 9/11 the need to share information with Federal, Tribal,
State, and the local governments, is a priority and must not be
diminished. Fusion centers are an integral part of the system of
information sharing. Fusion centers represent law enforcement, public
safety, and our first responders, who come together with a common
purpose to safeguard our communities and to prevent or intervene in
criminal activity, and ultimately to prevent terrorist activity. I
support fusion centers but I emphasize that we must ensure that all of
our citizens' privacy, legal rights, civil liberties, and information
privacy are protected. This is particularly critical in Indian Country.
As you may or may not know Tribal members have a separate set of civil
rights as defined in the Indian Civil Rights Act (1968 25 USC 1301-03);
although similar to the U.S. Constitution Bill of Rights, these rights
protect Tribal members within Indian Country. Fusion center architects
must be made aware of the ICRA and it application.
acts of terrorism start at the local level
The first response to any threat or act of terrorism starts at the
local level. Indian Country is no exception and in fact Indian Country
is more vulnerable because of the current ineffective communication or
lack of information sharing between Federal, County, State, and local
agencies. The Tohono O'odham Nation within our Department of Public
Safety identified the need for preparedness and developed an Office of
Emergency Management to enhance cooperation with our counterparts at
the county, State, and local level. But a glaring deficiency is the
lack of formal criminal information and intelligence sharing between
our law enforcement counterparts at the Federal, State, and local
level. The State of Arizona has a fusion center (ACTIC) that has been
recognized as an exceptional program; despite this recognition there
has been minimal if any participation with Tribal law enforcement.
Without Tribal Police participation the State program cannot not be
completely effective. The State of Arizona has made efforts to seek out
Tribal law enforcement participation, and we are pleased with their
outreach effort; we will work with the State to strengthen their
program. Although there remains a lot of work to do the State of
Arizona recognized that Tribal law enforcement participation will
maximize the availability of resources, and I suggest that the State of
Arizona's example be used as a model of cooperation between Tribal
Police and State, local, and Federal agencies.
intelligence-led policing
Tribal, State, and local law enforcement have recognized that there
is a need for increased collaboration for information and intelligence
sharing, and are strengthening their capabilities to develop
intelligence-led policing as a philosophy. This concept links directly
into the initiative or reason for Fusion Centers. Much like the
community-oriented policing programs, intelligence-led policing is a
reality that must be embraced by all law enforcement agencies.
Potential terrorist targets such as public facilities,
telecommunications, energy, transportation, and other infrastructures
require that law enforcement actively develop partnerships with private
security and the management of these establishments. Again Fusion
Centers are an ideal information and intelligence-sharing program
linking law enforcement, public safety, fire, health, and the private
sector to effectively safeguard our communities.
remove barriers that hinder information sharing at the federal level
We found that information sharing at the Federal level is
fragmented; as a result this hampers our efforts to develop information
and intelligence sharing with our Federal partners, specifically
Department of Homeland Security agencies, Custom and Border Protection,
and Immigration and Customs Enforcement (ICE). This is particularly
critical as we have seen a growth of intrusions and violence connected
to the drug and human smuggling along our 75 miles of border. Customs
and Border Protection estimates that there are between 400-450
crossings along our border and about 10% (40-50) of the illegal
crossers are criminal aliens, with criminal histories including rape,
drug transporting, assaults, and murder. These numbers demand that an
effective information-sharing system be established with Tohono O'odham
law enforcement.
remove barriers that impede information sharing with indian country
The basic method of information sharing enjoyed by State, Federal,
local, and some Tribal law enforcement is access to the National Crime
Information Center (NCIC). Access to NCIC is controlled by the States,
and there are several Tribal law enforcement agencies that are denied
access to NCIC, by their respective State, because the State does not
recognize Tribal law enforcement. This creates officer and public
safety concerns and more important created a significant gap in the
information/intelligence-sharing community. In California Tribal Police
are not recognized and are denied access to NCIC despite the fact that
they receive the same training as their counterparts within the State.
In the State of New York, Tribal police in compliance with the Adam
Walsh Act requested from the State a list of sexual offenders released
from State prisons. They were denied the information based on the
States' refusal to recognize their agency as a law enforcement agency;
additionally they are not allowed to enter their offenders into the
State sexual offender tracking system. Despite Federal efforts to
assist Tribal police in this dilemma there has been little if any
progress on resolving the problem. The International Association of
Chiefs of Police--Indian Country Law Enforcement Section was able to
acquire regional seats on the FBI's Criminal Justice Information
Services--Advisory Policy Board, a Board that recommends revisions and
policy to the FBI Director. Through this route we are hopeful that
changes can be made to remedy the restrictions on Tribal Police access
to NCIC. Despite this effort it is safe to assume that it will be
several years before the problem is adequately addressed, therefore I
request that this Congressional committee address this issue
immediately so this significant gap in our information sharing system
can be closed and we can honestly tell our citizens that we are doing
all we can to ensure there is no gap in our information-sharing system.
an example of indian country involvement--global advisory committee
An example of Indian Country participation at the National level is
Global (GAC), a Federal Advisory Committee that reports directly to the
U.S. Attorney General providing advice on criminal justice information
sharing. Global serves as the focal point for justice information
systems integration activities and includes representatives from local,
Tribal, State, and Federal agencies. Global has in place working groups
addressing Infrastructure standards, Intelligence, Privacy and
Information Quality and Security. Global developed Fusion Center
resources and products that include, but not limited to: (1) Applying
Security Practices to Justice Infrastructure Sharing; (2) Privacy,
Civil Rights, and Civil Liberties Policy Templates for Justice
Information Systems; (3) Fusion Center Guidelines: Law Enforcement,
Public Safety and the Private Sector; (4) Privacy, Civil Liberties and
Information Quality Policy Development for the Justice Decision Maker;
and, a (5) Privacy and Policy Development Guide and Implementation
Templates: Policy Development Checklist.
The current Federal regulations that provides some guidance on
protection of civil liberties and privacy is Chapter of the 28 Code of
Federal Regulations (CFR) Part 23, which provides guidelines for law
enforcement agencies, on the implementation of standards for operating
Federally grant-funded multijurisdictional criminal intelligence
systems. It specifically provides guidance in five primary areas: (1)
submission and entry of criminal intelligence information; (2)
security; (3) inquiry; (4) dissemination; and, the (5) review-and-purge
process. But 28 CFR Part 23 does not provide specific, detailed
information on how agencies will implement the operating guidelines,
but instead, allows each agency to develop its own policies and
procedures. Because of this lack of Standards Global initiated a review
and developed recommendations of 28 CFR part 23 to address standards
and to specifically include Indian Country law enforcement. The
uniqueness of Global is there is a representative from Indian Country
that contributes to the development of the various products. Global is
an example of how an advisory board or committee must be structured to
adequately include the three sovereign governments in the United
States, Federal, Tribal, and the States, to work seamlessly on the
critical area of information sharing while protecting the civil and
privacy rights of all of our citizens.
conclusion
I appreciate the opportunity to share with you the unique
perspective of Indian Country, Indian Country Law Enforcement, and the
essential role Tribal Police must share with Federal, State, and local
law enforcement in protecting our homeland. The border that the Nation
and other Tribal Governments share with Mexico demands that our law
enforcement and other public safety personnel, be directly involved in
the formation and production of policy and guidelines of Fusion
Centers. Its necessary that there be an understanding of the unique
governmental structure, laws, and cultural strength of Indian Country;
to do this we must always have a seat at the table. I urge the
continuation of Fusion Centers and strongly recommend that a national
standard be established in the operation, training and development of
Fusion centers. Thank you again for this opportunity.
Ms. Harman. Thank you very much.
Mr. Gersten.
STATEMENT OF DAVID D. GERSTEN, ACTING DEPUTY OFFICER FOR
PROGRAMS AND COMPLIANCE, DEPARTMENT OF HOMELAND SECURITY
Mr. Gersten. Chair Harman, Ranking Member McCaul, and
distinguished Members of the subcommittee, thank you for
providing me the opportunity to testify today.
Just over 2 years ago, both DHS's officer for civil rights
and civil liberties, and its chief privacy officer, testified
for you on fusion centers. At the time, we were just
understanding the centers, and how the Federal Government can
play a productive role. Since then, CRCL has visited numerous
centers across the country, provided training and other
support, and cemented itself as a partner with the DHS Office
of Intelligence and Analysis, INA.
We have come to understand the facts relating to fusion
centers, the challenges they face, and also the mystery
surrounding them. Fusion centers have been labeled in some
press accounts and other reports as ``mini spy agencies,'' and
``domestic-intelligence apparatuses.''
Military involvement, private-sector partnerships,
sometimes ambiguous lines of authority, and policies for
suspicious-activity reporting and the use of open-source
information have been criticized. Some of these concerns are
simply exaggerations, while others point out where we have work
left to do.
For example, while some armed forces service members
participate in a handful of fusion centers, their presence is
not pervasive. It is focused on sharing information, not
engaging in law enforcement. Some private-sector entities do
share infrastructural-protection information with fusion
centers, and may receive notice of specified threats.
Yet, in almost all cases, fusion center activity involves
exactly what the 9/11 Commission recommended: Federal, State,
local, and Tribal personnel, sitting elbow-to-elbow, sharing
information, and connecting the dots to ensure homeland
security and public safety.
Fusion centers do face a number of challenges that could
impact rights and liberties. They are typically formed under
one State or local agency's legal authority, but comprised of
many agencies. With few exceptions, memoranda of agreements
spelling out the precise relationship between individual
centers and DHS do not exist.
We believe MOAs are needed to govern roles played by DHS
analysts deployed to fusion centers. Because fusion centers are
run by the States, direct Federal oversight poses Federalism
issues. We can establish certain Federal expectations through
guidance, such as the baseline capabilities, released last
September, but this is a partner relationship, not superior-
and-subordinate one.
To provide oversight of Federal activities, our office
issued a civil liberties impact assessment of DHS' role in the
fusion center initiative. In its privacy impact assessment, the
privacy office urged fusion centers to also develop their own
assessments. Both offices are currently working on follow-up
impact assessments.
Moreover, our office recently received its first three
complaints regarding fusion centers. The DHS inspector general
also provides oversight.
The challenges we face are discussed further in my written
testimony, but I would like to highlight one in particular: The
difficulty in sharing information and providing threat
assessment for First Amendment protected activities may be
implicated.
We must be very careful to ensure that the Government is
not infringing or chilling an individual's right to speak
freely and to protest. Intelligence personnel at the Federal
level are not authorized to collect information regarding U.S.
Persons solely for the purpose of monitoring activities
protected by the U.S. Constitution, such as freedoms of
religion, speech, press, and peaceful assembly, and protest.
Recent well-publicized struggles, particularly at the State
level, demonstrate a need for continued policy, development,
and training. Compounding this is a challenge in determining
whether it is appropriate for fusion centers to use open source
information that involves First Amendment-protected activities.
If the use of information, even publicly available,
involves protected activities, it could be viewed as unlawful
monitoring by Government, and may result in scandal, when
Government is perceived to be keeping tabs on protest groups
for political purposes.
Now, let me explain what our office has been doing to
resolve these and other challenges. Under the 9/11 Act, we are
required to provide training on civil liberties for all DHS
intelligence analysts before they deploy to fusion centers, and
to support the training of all fusion center personnel.
To that end, our Civil Liberties Institute partnered with
the Privacy Office to provide training to the 34 I&A analysts
currently deployed in fusion centers.
We partner with DOJ and the Global Justice Information
Sharing Initiative to create a Web portal, launched just
yesterday, to support the 70 fusion centers around the country.
Finally, we are inviting a ``Training the Trainer'' program
for State fusion center reps. We are also providing subject-
matter expertise to I&A, and to specific State fusion centers,
as requested. For example, CRCL personnel traveled to the North
Central Texas Fusion Center recently, to offer advice and help
it address concerns about one of its products.
In closing, let me emphasize that we will continue to honor
our responsibility to ensure a strong respect for civil
liberties. I thank you for inviting me to share my thoughts on
fusion centers today, and I look forward to working with this
subcommittee to address these issues.
[The statement of Mr. Gersten follows:]
Prepared Statement of David D. Gersten
April 1, 2009
Chair Harman, Ranking Member McCaul, and distinguished Members of
the subcommittee: Thank you for providing me the opportunity to testify
today. As fusion centers across the country mature, ensuring a strong
respect for civil liberties will improve public trust and broaden
support for their mission. The U.S. Department of Homeland Security's
(DHS) Office for Civil Rights and Civil Liberties (CRCL) will continue
to work with this subcommittee to examine our Nation's fusion centers
and continue to provide methods for proper guidance and oversight.
mission of the office for civil rights and civil liberties
In accordance with existing statutes, 6 U.S.C. 345, and 42 U.S.C.
2000ee-1, the mission of the Office for Civil Rights and Civil
Liberties is to assist the dedicated men and women of the Department of
Homeland Security to secure our country while preserving our freedoms
and our way of life. We assist our colleagues in four ways:
We help the Department to shape policy in ways that are
mindful of civil rights and civil liberties by providing
proactive advice, evaluation, and review of a wide range of
technical, legal, and policy issues.
We investigate and resolve complaints filed by the public
regarding Departmental policies or actions taken by
Departmental personnel.
We provide leadership to the Department's equal employment
opportunity programs, seeking to make this Department a model
Federal agency.
We are engaged with the public regarding these issues.
In providing advice to our colleagues, we work closely with every
DHS component and have been involved in most of the critical issues
facing the homeland security effort--from disaster preparedness and
recovery, to immigration programs, to screening procedures, to the
training of our workforce. Other DHS elements support our work as
required by law, and because they recognize that respect for rights and
liberties is essential to their mission. Through frequent collaboration
and engagement with the public and with leading civil rights,
immigration, and community organizations, we have helped the Department
maintain openness while tackling complex issues in innovative and
constructive ways.
Just over 2 years ago, this subcommittee received testimony from
both DHS's Officer for Civil Rights and Civil Liberties and its Chief
Privacy Officer on fusion centers and how they might advance
information sharing and safeguard civil liberties. At the time, we were
just coming to understand the centers and how the Federal Government
could play a productive role. Much has changed since then. Now, the
Office for Civil Rights and Civil Liberties has visited numerous fusion
centers across the country, provided training and other support to
fusion centers. We have also cemented ourselves as a partner with the
DHS Office of Intelligence and Analysis' State and Local Program Office
and the DHS Privacy Office, both of whom actively work with us. We have
come to understand the facts relating to fusion centers, the challenges
they face, and also the myths surrounding them. I want to provide
CRCL's perspective on some of the challenges faced by fusion centers,
and dispel some of the myths.
dispelling myths
Fusion centers have been labeled in press accounts and other
reports as ``mini-spy agencies'' and ``domestic intelligence
apparatus[es].'' Some say they have too much military involvement, too
many private sector partnerships, ambiguous lines of authority, and
untenable policies for suspicious activity reporting and the use of
open source information. Some of these charges are simply myths or
exaggerations while some criticisms are helpful, and point out where we
still have work to do.
One myth is that the armed forces are prominent players in the
fusion centers. While some armed forces service members participate in
a handful of fusion centers, the presence is nominal, not pervasive,
and their role is to provide support to civilian law enforcement and
other non-Federal agencies with homeland security responsibilities, not
to lead, direct, or participate in it. They provide a liaison to
Federal military installations, and also provide State and local
personnel access to military sources of information when appropriate.
This is consistent with laws directing the Federal (Title 10) Armed
Forces to share certain categories of relevant information with the
States. It is up to the governor of a State to determine what fusion
center role, if any, National Guard troops in Title 32 status, under
State command, should play.
Another myth involves inappropriate sharing of information with the
private sector. Some fusion centers have incorporated advice from
Sector Coordinating Councils and leverage the expertise of local sector
associations or coalitions in identifying critical infrastructure and
how to secure it. Fusion centers share information when it relates to
protection of critical infrastructure, or upon learning of a threat to
a particular company or business. These activities are squarely within
DHS' mission and the mission of State and local law enforcement. While
this potentially poses some concerns, our Office has not seen civil
liberties problems arising out of the relationship between fusion
centers and the private sector.
Finally, like some other law enforcement activities, fusion centers
in general could invoke civil liberties issues, but the reality has not
borne out the theories that have been advanced by some concerning
fusion centers' actual activities. In almost all cases, fusion center
activity involves exactly what the 9/11 Commission recommended--
Federal, State, local, and Tribal personnel sitting elbow-to-elbow,
sharing information, and connecting the dots to ensure homeland
security and public safety. Lack of public knowledge about their
purpose and operations has magnified the mystery of fusion centers and
helped perpetuate these myths. We believe that engagement with the
public is important for any law enforcement agency, because it lets the
agency know what the public's concerns are, and keeps the agency
mindful of its proper mission: serving the community it protects. The
Office for Civil Rights and Civil Liberties has thus encouraged the
fusion centers to engage in community outreach to demystify their
operations to the extent it can be done without jeopardizing
enforcement and security activities. We have also encouraged fusion
centers to reach out to prominent advocacy groups, such as the American
Civil Liberties Union, and to engage in dialogue both to explain how a
fusion center operates and to listen to any valid criticism to
determine if it suggests ways that things could be improved.
challenges for fusion centers
Myths aside, fusion centers face a number of challenges that could
impact civil rights and liberties.
Fusion centers are comprised of representatives of multiple
Federal, State, local, and Tribal governments, and therefore lack
single, one-size-fits-all structures or identical chains-of-command.
Instead they are more like task forces, formed under one State or local
agency's legal authority, but comprised of representatives of many
agencies. They are typically led by a State Police or State homeland
security equivalent, or possibly under the management of the local
Anti-Terrorism Advisory Council established by the United States
Attorneys. Collaborative agreements then are used to integrate partners
who work within the fusion center. With few exceptions, Memoranda of
Agreement or Understanding do not exist, though many are being
negotiated between States and the Department of Homeland Security.
These MOUs are needed to govern the roles and responsibilities of
deployed DHS analysts in fusion centers, and their absence could lead
to a lack of clarity of institutional roles within fusion centers.
Oversight of the fusion centers also poses a challenge. Because
fusion centers are run by the States, direct oversight by the Federal
Government presents real federalism issues. While some fusion centers
are closely overseen by State government offices, such as the State's
attorney's office, the precise extent of close supervision by State,
local, and Tribal governments at each fusion center is not always clear
due to varying State government structures. At the Federal level,
however, we can establish certain expectations through Federal grant
funding and guidance documents, such as the Baseline Capabilities
document released in September 2008. In partnership with the fusion
centers, DHS and its Federal partners have established expectations and
guidelines on fusion center operations through the Fusion Center
Guidelines and the Baseline Capabilities for State and Major Urban Area
Fusion Centers. The Guidelines are intended to be used to ensure that
fusion centers are established and operated consistently, resulting in
enhanced coordination efforts, strengthened partnerships, and improved
crime-fighting and antiterrorism capabilities. By achieving a baseline
level of capability, fusion centers will have the necessary structures,
processes, and tools in place to support the gathering, processing,
analysis, and dissemination of terrorism, homeland security, and law
enforcement information. Most fusion centers are in the process of
achieving the capabilities, though it may take up to 5 years to achieve
all of the capabilities.
Oversight also may be applied to the extent that a State, local, or
Tribal entity is participating in a Federal program, such as criminal
intelligence information sharing systems governed by 28 CFR Part 23.
General oversight of the State, local, and Tribal assets should be
maintained by State, local, and Tribal government officials. Though the
Department's scrupulous observation of State sovereignty does not allow
for direct oversight, we believe that observing vertical separation of
powers consistent with the U.S. Constitution is a safeguard of liberty.
Where a State, local, or Tribal government objects to a fusion center's
activities, particularly those activities affecting the rights of
citizens of a State, those government entities have a say in altering
those operations, or they can decline to participate in the center's
activities. Paradoxically, the lack of direct Federal supervision and
oversight may thus also function as a safeguard.
By the same token, we must closely monitor our own Federal presence
and actions at the fusion centers, which is squarely within the purview
of the Federal Government. In December 2008, our Office and the DHS
Privacy Office issued its initial impact assessments of DHS's role in
the fusion center initiative, as required by the Implementing
Recommendations of the 9/11 Commission Act of 2007 (``9/11 Act'').
These assessments are publicly available on the DHS Web site. Applying
this check-and-balance approach, these assessments were an important
step in evaluating DHS's role in the fusion centers and its potential
impact on civil rights and civil liberties. In its Privacy Impact
Assessment, the DHS Privacy Office urged fusion centers to develop
their own privacy impact assessments and is prepared help them do so by
providing ``PIA Intensive'' training to interested fusion centers,
leveraging its own PIA process as well as material developed by the
GLOBAL Initiative. Both Offices are currently working on a more
detailed follow-up impact assessment, which will combine what we have
learned through visiting fusion centers throughout the country and our
participation in the Federal-level fusion center support initiative. I
will highlight some of the issues discussed today.
Moreover, our Office has a Review and Compliance Division dedicated
to investigating possible abuses of civil rights, civil liberties, and/
or racial, ethnic, or religious profiling. We have recently received
our first three complaints regarding fusion centers. Another mechanism
for providing oversight and compliance lies within the jurisdiction of
the DHS Inspector General, who just recently issued a report on fusion
centers. And outside of the DHS realm, Congress, U.S. Attorney's
Offices, and the ODNI Program Manager for the Information Sharing
Environment have all played some role in oversight concerning fusion
centers. The Privacy and Civil Liberties Oversight Board will also have
a role too once it is stood up. Despite the challenges posed by this
array of unique partnerships, I believe that by working together we can
have coordinated and effective oversight of fusion centers to the
extent possible.
One specific area that has been much in the media involves the
difficulty in sharing information and providing threat assessments
where protected activities, such as First Amendment free speech and
assembly, are involved. Security personnel at all levels of government
often struggle with this problem. For example, if a demonstration is
going to occur at a Federal facility, those charged with securing the
facility would be negligent if they failed to ensure the safety of the
facility and those within. Yet ``right-sizing'' security measures would
be impossible without knowing the nature of the protest, and whether it
is likely to cause security or operational problems. This necessarily
requires at least a limited inquiry into the nature of a group planning
a protest, and whether it espouses violence, civil disobedience, or
other potentially disruptive tactics. At the same time, we must be very
careful to ensure that the Government is not infringing or chilling an
individuals' right to speak freely and to protest. Intelligence
personnel at the Federal level are not authorized to collect
information regarding U.S. Persons solely for the purpose of monitoring
activities protected by the U.S. Constitution, such as the First
Amendment protected freedoms of religion, speech, press, and peaceful
assembly and protest. If information has some connection to
constitutionally protected activities, it may be collected only where
such collection is incidental to the authorized purpose. Procedures are
in place that require intelligence personnel to consult with counsel or
I&A's Intelligence Oversight Officer when any initiative may impact
constitutionally protected activities. These consultations have proven
very helpful to the Department's intelligence personnel in identifying
and addressing potential concerns related to inappropriate or
unauthorized collection and reporting. At the State level, however,
policies relating to these topics are often less clear and uniform. The
question of how State, local, and Tribal governments handle these
issues is often decided by State, local, or tribal agencies other than
the fusion centers. The well-publicized struggles with this problem,
particularly at the State level, demonstrate a need for continued
policy development and training.
Now I would like to discuss open-source information in the context
of fusion centers. As described in ``Giving a Voice to Open Source
Stakeholders,'' a report published by this committee last September,
open source information is ``publicly-available information that can be
disseminated quickly to an appropriate audience to meet a specific
intelligence requirement . . . derived from aggregated and analyzed
information available from sources such as newspapers, periodicals, the
Internet, scientific journals, and others.''
Fusion centers are receiving open-source products and creating
their own. The challenge for all fusion centers depends greatly on the
laws and policies in place at the State and local level. For Federal
involvement there is a framework in place to protect privacy and civil
liberties. Even though information is publicly available, that does not
mean the information loses all protection. Part two of Executive Order
12333 imposes restraints on the intelligence community and also
provides specific protections for United States Persons. At the Federal
level, these U.S. Person rules cover ``a United States citizen, an
alien known by the intelligence element concerned to be a permanent
resident alien, an unincorporated association substantially composed of
United States citizens or permanent resident aliens, or a corporation
incorporated in the United States, except for a corporation directed
and controlled by a foreign government or governments.'' Collection,
retention, and dissemination of open source information must match a
mission approved for the agency involved. Members of the intelligence
community typically must also disclose their affiliation when
interacting with domestic organizations, the media, and open forums. So
in the context of fusion centers, we have a host of restrictions on
some of the Federal participants.
In relation to the protected activities I alluded to earlier, there
is still a significant challenge in determining whether and to what
extent it is appropriate for fusion centers to use open-source
information that involves First Amendment-protected activities. If the
collection, retention, and use of information--even publicly
available--involves protected speech, assembly, or other activities, it
could be viewed as unlawful monitoring by Government. As we have seen
in recent months, the collection of open-source information about
protected activities may result in scandal when Government is perceived
to be keeping tabs on protest groups for political purposes.
The ``Giving a Voice to Open Source Stakeholders'' report also
stated that there are currently only minimal guidelines to protect the
personally identifiable information of Americans in the open-source
context. It called on DHS to develop processes covering collection and
use of open source, accessing non-intelligence community databases, how
to determine the status of U.S. Persons, and what rules apply to social
media like chat rooms, blogs, and Twitter. Ultimately, all of these
processes should also be examined and addressed by non-IC partners in
fusion centers who are not subject to E.O. 12333. The Office for Civil
Rights and Civil Liberties agrees with the recommendations contained in
the report and intends to work with its partners in the Department to
ensure these activities are in compliance with the laws respecting
individual rights.
On a related note, there has been much concern voiced over fusion
centers' role in Nation-wide Suspicious Activity Reporting (SAR)
initiative. To a large degree, the SAR initiative is a coordinated
approach that builds upon activities that law enforcement and other
agencies do within the lawful boundaries of their daily duties, which
is gathering information concerning behaviors, incidents, and
activities associated with crime. However, different fusion centers may
operate under different standards and capture different information in
their intake of SARs. For example, while sharing within a Federally-
funded criminal intelligence database will attach 28 CFR Part 23
protections, there are many tips, leads, and other data accessible to
fusion center partners that may fall short of the reasonable suspicion
standard, which is a predicate for retention in a 28 CFR Part 23
system. To date, there have been no specific incidents alleging
violation of civil rights and civil liberties, but this is an area we
will continue to monitor, and in which we will work with DHS I&A to
ensure appropriate safeguards are put in place.
civil liberties and privacy training and other support
Now let me further explain what our Office has been doing to
resolve these and other challenges. One of the ways in which we have
leveraged our capabilities, both within and outside the Department, has
been the creation of the ``Civil Liberties Institute.'' This entity is
a program that provides high quality training on issues at the
intersection of homeland security and civil rights and civil liberties.
By law, we are required to provide training on civil liberties for all
DHS officers or intelligence analysts before they deploy to State,
local, and Tribal fusion centers and to support the training of all
fusion center personnel. To deliver this training and to fulfill our
obligations under the 9/11 Act, we have created a three-pronged program
targeted to the DHS State, local, and regional Fusion Center
Initiative.
First, we have partnered with the DHS Privacy Office and the DHS
I&A State and Local Program Office to provide privacy and civil
liberties training to the 34 I&A analysts currently deployed to the
fusion centers. As each new analyst is hired, we provide individualized
training and periodic refresher training for the entire cadre of
analysts. In fact, the most recent refresher training was held last
month at the National Fusion Center Conference.
Second, we have involved the DOJ Office of Justice Programs in the
creation of a multifaceted privacy and civil liberties training program
to support the more than 70 fusion centers around the country. To
maximize the impact of our limited resources in this area, we are
taking a ``toolkit'' approach, where we leverage existing materials
with new materials to create customized training that covers the core
issues, but also responds to the needs of individual centers. As part
of the training, we use scenarios adapted from recent events to
illustrate the need for transparency and, among other things, how to
handle the issues that have arisen around protected activities, such as
public protests or religious affiliation. We will offer modules on
cultural competence for law enforcement and analysts, as well as engage
the community and work to dispel myths that have arisen about fusion
centers. As the result of our outreach to fusion center personnel, we
identified a clear need for a single on-line ``roadmap'' to all the
Federal materials on civil rights and civil liberties issues and
resources in the information-sharing environment. To address this need,
we partnered with the DOJ Bureau of Justice Assistance and the GLOBAL
Justice Information Sharing Initiative to create a web portal, phase
one of which was launched just yesterday. Many of the privacy and civil
liberties training materials will ultimately be posted on this Web
site.
The third prong of the training program is the Training of Trainers
(ToT) program, created to assist local fusion center staff in providing
on-going training in these important areas. We will pilot this newly
expanded training program in approximately 10 States this year. We will
also present ToT sessions at the upcoming regional fusion center
conferences. Fusion center privacy officers will be invited as the key
potential trainers on these topics back at their home fusion centers.
The training is in various stages of completion but in total covers
a broad range of issues, and also reflects the expertise of our
partners in the DHS Privacy Office and the Department of Justice (DOJ).
We cover how to handle reports of protected activities, such as:
Protests; exercise of religious freedom or freedom of association; the
capture and retention of video feeds that have identifiable persons on
the tape; and the use of materially inaccurate or misleading
information (addressing the associated potential ``search and seizure''
and ``due process'' issues). Our training encourages sufficient redress
mechanisms and discourages the targeting of communities based on the
use of overly broad demographic information and the collection of
information on individuals that perpetuates racial or ethnic
stereotypes. Above all, we emphasize the need for a clear understanding
of operating statutes and authorities and connecting every action to
these authorities. We also highlight problems that fusion center staff
need to address, such as problems with requests to vet private sector
personnel associated with critical infrastructure, or tensions between
Federal and State laws and issues of data tracking and criminal record
expungement. We recommend implementing a privacy and civil liberties
policy on which staff are thoroughly trained, and discuss the
usefulness of community engagement to provide a level of governmental
transparency. Finally, in coordination with our partners, we also offer
training on 28 CFR Part 23--guidance on multi-jurisdictional criminal
intelligence systems; the proper use and protection of personally
identifiable information; and Fair Information Practice Principles as
well as other privacy practices.
Over the past 2 years, prior to the development of the formal
initiative, the Office for Civil Rights and Civil Liberties actively
trained on civil liberties issues in the information-sharing
environment, which can apply to fusion centers. We visited a variety of
fusion centers and conducted classroom training on cultural competence
and civil liberties in Connecticut, North Carolina, Maryland,
Massachusetts, Indiana, and Los Angeles. We have also provided training
through regional fusion center conferences. At the national fusion
center conferences, we have disseminated training materials and
presented at panel discussions. At the most recent national conference,
we, along with the DHS Privacy Office, conducted ``learning labs'' on
civil liberties and privacy issues, where State and local officials
could ask questions and discuss issues with subject matter experts.
In addition to our training efforts, we have worked closely with
our colleagues at the I&A State and Local Program Office to provide
subject matter expertise in the areas of civil rights and civil
liberties. For example, when polices, guidance, and requests for
information templates have been developed for field personnel, both our
Office and DHS Privacy have been invited to the table to contribute to
these documents and ensure proper safeguards are in place.
The Office for Civil Rights and Civil Liberties has also provided
on-site support in recent months to address civil rights and civil
liberties concerns. For example, last year, CRCL provided support to
the fusion centers in Denver and Minnesota during the Democratic
National Convention and Republican National Convention to review I&A
products and homeland security information reports to ensure civil
rights and civil liberties were protected. We consistently review
reports to ensure civil liberties issues are addressed and increase
analysts' awareness of potential issues. Most recently, through an
effort coordinated by the I&A State and Local Program Office, our
Office deployed a staff member--a former Assistant U.S. Attorney--to
the Northern Central Texas Fusion Center to address civil liberties
concerns that arose after the State issued a product. At the time,
there was no DHS presence at the center (an analyst has been hired to
deploy to the center in the near future); however, DHS wanted to
address the issue proactively. The fusion center was very receptive to
concerns raised and has invited us back to conduct further in-depth
training on cultural competency as well as other civil rights and civil
liberties topics.
conclusion
In closing let me emphasize that we have enjoyed a strong working
relationship with our fusion center partners and our DHS colleagues who
support them. DHS has emphasized protection of civil rights and civil
liberties ever since it began to support fusion centers. We will
continue to honor our responsibility to ensure a strong respect for
civil liberties. I thank you for inviting me to share our thoughts on
fusion centers today, and I look forward to working with this
subcommittee to address these issues.
Ms. Harman. Thank you, Mr. Gersten.
I appreciate the testimony of all the witnesses.
Members of the subcommittee will now, each, ask questions
for 5 minutes. I will start with the Chair.
Mr. Gersten, I appreciated your effort to clarify the
record on actions of DHS in terms of assuring privacy and civil
liberties--respect for privacy and civil liberties by fusion
centers. As you made clear, the Federal Government does not own
or control fusion centers, but we do have a role.
I would just like to add to what you said; that this
subcommittee views itself as another watchdog over the
activities of fusion centers. We believe, and we have said this
over some years, that they are a centrally important tool in
our ability to connect the dots and prevent the next 9/11. I
explained that in my opening remarks, and every single Member
has amplified that today, and in past hearings.
We also paid careful attention to a report of the GAO,
which is the tool of Congress--the General Accounting Office--
on how fusion centers operate. So we care. We want to make
certain that what happens at the State, local, and Tribal level
complies fully with our Constitution and our laws.
I think our first panel made clear that everyone there, who
was in the business of fusion centers, cares as well. So let me
just make that point.
Let me finally add that a lot of civil liberties
organizations regularly participate in our activities. We had a
hearing just a couple of weeks ago. The ACLU was a witness. I
think there is a representative of the ACLU in the audience
today. The ACLU participated in a recent national fusion center
conference on how to get fusion centers right.
So there is a major effort on-going, I think, at the
Federal, State, local, and Tribal level, and outside, in the
civil liberties community, to make certain that this valuable
tool is handled right.
To you, Mr. Fein--you started with some conversation about
how the Terrorist Surveillance Program violated FISA, issues
about waterboarding in Guantanamo. As you know, I basically
share those views. But those issues are not in the jurisdiction
of this subcommittee. This subcommittee is focused on fusion
centers. I would say it is a big reach to move all of that
over, and assert that State, local, and Tribal entities, which
are responsible for fusion centers, are doing things which,
perhaps, the Federal Government got wrong in some respects,
after 9/11.
I just want to ask you a question. In your bio, which I
read, you worked for then-Congressman Dick Cheney, on the Joint
Committee on Covert Arms Sales to Iran.
Mr. Fein. Yes.
Ms. Harman. Most people believe--certainly, I believe--that
Mr. Cheney, as Vice President, had a major role in designing
and implementing these programs, like the Terrorist
Surveillance Program.
Could you explain what your activities were with Mr.
Cheney? Are you an on-going--do you have an on-going
relationship with Mr. Cheney?
Mr. Fein. No. My service was on the committee. It was then
a joint congressional committee, investigating covert arms
sales to Iran.
I view Mr. Cheney's views as Vice President as a complete
somersault from his much more cautious and, I think, prudent
views at the time. I helped write the minority report, which he
praised. I think, if you read it, it is much more balanced than
some of the distortions. I have certainly not felt inhibited,
being a citizen of the United States, and devoted to the
Constitution, to criticize someone who had hired me earlier,
and displayed different views.
With regard to the earlier comment about the differences
between the Terrorist Surveillance Program or torture,
waterboarding, and this--the point I am making is that all of
those programs also had internal privacy protections. For
example, every 45 days, there was a review of the Terrorist
Surveillance Programs, making sure they were only targeting
actually al Qaeda supporters. It was approved every single
time, for 5 years, for one short delay.
The State and local fusion centers have that same defect.
It is internal--is the check and balance. I was called by the
Justice Department to come consult with them on the Terrorist
Surveillance Program, with some other privacy--including ACLU
and some other groups--to suggest, ``These are your problems
without any oversight.''
Yes, they sit and listen. But how do you know whether
anything is really accepted? They are smart, and know what the
optics are. They go out and will say, ``Well, we consulted
these groups, so we must be sensitive to privacy.'' It is like
``The Hunting of the Snark'': ``I said it three times. It must
be true.''
Just because you say it, doesn't mean it is----
Ms. Harman. Thank you. Thank you.
I have 12 seconds left. I would just note that Congress is
an independent branch of Government, and we are paying close
attention here.
Mr. Norris, let me just finally conclude by saying that
your point that the Tribal entities may not have access to
appropriate databases, is well taken by this committee. We plan
to look into it.
Mr. Norris. Thank you.
Ms. Harman. I now yield for 5 minutes of questions, to the
Ranking Member, Mr. McCaul.
Mr. McCaul. I thank the Chair.
I would like to echo that sentiment to Mr. Norris as well;
that the access to NCIC, I think--is important for Tribal areas
to have that access.
My first question is to Mr. Gersten. I think Mr. Fein
actually correctly points out the bulletin issued by the Texas
Fusion Center as a--not a shining example of how they should
operate, I should say.
What has DHS done, now, to prevent that from ever happening
again?
Mr. Gersten. We took the proactive step of flying down to
your great State, and providing some----
Mr. McCaul. Thanks for saying that.
Mr. Gersten [continuing]. Some guidance to the members of
that fusion center--the director there.
We actually took the step a little bit further, and brought
with us a DHS intelligence-and-analysis intelligence officer,
who will soon be deployed to Texas to work with that fusion
center, so that he could benefit from our guidance.
I would also add that we have received some inquiries about
this, and used the lesson of this unfortunate product to
demonstrate to other fusion centers. As Mr. Riegle mentioned on
the previous panel, we brought the subject up at the National
Fusion Center Conference and trained all DHS I&A analysts using
that product as a demonstration of what not to do.
We have taken that even further, to provide some assurances
to other States that we will continue to monitor products, as
they come out. Obviously, it is our State products. They were
not issued by the Department. However, we can all learn from
the lesson.
Mr. McCaul. Well, I thank you for that. I hope--again, I
hope that never happens again.
I want to just read--this came out in the Associate Press--
that the top Taliban commander in Pakistan is claiming
responsibility for a deadly attack. He also says that--promises
an assault on Washington soon--and that--``one that will amaze
the world.''
Obviously, these kind of threats get our attention up here.
I think our priority is to the Constitution--also, to
protecting the American people. I think those are not
incompatible. Those are one in the same.
What I want to say to Mr. Fein is, you know, again, as I
said earlier, after 9/11, you know, the big issue--and you know
this working--having done your prior work in Federal service--
the connecting the dots, the sharing of information with the
Federal, State, and local--absolutely critical to protecting
the well-being and safety of Americans.
Comments like, ``Law enforcement have never honored the
First Amendment''--I, personally, think are inflammatory, and
really don't advance a healthy debate and discussion about how
we can move forward with protecting the American people, and,
yet, still validate the constitutional ideals we hold so
closely.
So, with that--and you have got about a minute and a half
to tell me: How would you protect the American people by the
sharing of this information, which is very important
information, which can lead to stopping a terrorist attack--how
would you do that, and what would be your recommendation?
Mr. Fein. I would like to make an observation. It was
Justice Louis Brandeis who wrote that, ``The most cherished
liberty amongst a free people is the right to be left alone
from government''--the most cherished. That is part of the
Constitution that is the sole lodestar for everyone who serves
in Government, no matter what branch--the right to be left
alone. That means the burden is on Government to demonstrate
some substantial interest if you are going to encroach upon
that right.
I think that, if we focus on criminal activity, suspected
crime, as the basis for collecting intelligence, we are on
sound footing. In 1925, before we had any intelligence
collection like we do today, then-Attorney General Stone--he
later became chief justice of the United States Supreme Court--
worried when they were pushing him to get into the business of
intelligence collection in order to stop, at that time,
violations of the prohibition laws.
He said, ``We should never do that, because, then, we will
start turning into the fascist states of Italy''--what he could
see emerging at that time.
We saw, then, afterwards, then, intelligence began during
the 1930s on the Boondall--the Communists and whatever. This
was a Roosevelt initiative.
When we start deviating from collecting intelligence
because it relates to a specific crime, to--in collecting
intelligence because it bears on an earmark of what a terrorist
might be--that is where I think we are in danger.
Just to point out, this is not the fusion center in North
Texas. This is in----
Mr. McCaul. Can I just have 2 seconds?
So you are not the idea of collecting intelligence to
protect Americans?
Mr. Fein. As long as its on criminal activity--evidence
that suggests a crime.
Mr. McCaul. Okay. I just wanted that clarification.
Mr. Fein. If I could, I would just like to point this out,
because it relates to me: This is a fusion center report that
was issued in order to suggest what were the earmarks, I guess,
of a terrorist. This is the Missouri intelligence collection.
They said that, ``An earmark of a terrorist seems to be
somebody who supports presidential candidates Ron Paul, Bob
Barr, Chuck Baldwin.'' That is me. I----
Mr. McCaul. No, I think we would all agree with you on that
assessment. That is absolutely----
Ms. Harman. Thank you, Mr. Fein.
Mr. McCaul's time is expired. That is right, for the
record. The committee is not in favor of activity like that.
Mr. Souder is recognized for 5 minutes.
Mr. Souder. I was just going to comment on that Mr.
Gersten--can you name one specific that Mr. Fein has said? You
are giving generalities about what was wrong with the North
Texas report. What is one specific?
Mr. Gersten. One specific, related to that report, would be
that it did characterize religion and practices of religion, in
a way that could lead people astray--those reading the report--
into thinking that all people from the religion mentioned
should be viewed with suspicion.
Mr. Souder. Could you give the example of that statement--
of the one he mentioned earlier, which did not say that, but
could lead to an inference--is what you are saying?
Mr. Gersten. Yes. It could lead to an inference. Again, the
Missouri product that Mr. Fein has brought to the table here--
again, also made inferences that could be mischaracterized and
misinterpreted by those who receive the product.
Mr. Souder. That was the one about Ron Paul?
Mr. Gersten. Yes. It was not actually about Ron Paul. It
was a product about militia groups.
Mr. Souder. Because he doesn't seem like a big threat. I
mean, some of us don't necessarily agree with him, but that--
Mr. Fein, you have been a longtime spokesman for libertarian
views. While I wouldn't be mistaken for a libertarian--but any
Republican has some of those views.
For example, whenever you do domestic and terrorism things,
we think of 9/11. But this gets into the gun issue, and what
kind of privacy you have. Owning a gun came up, and everything
from the Weaver question, to how we were going to follow up and
prevent Oklahoma City bombers that came up in the abortion
clinics, when former Attorney General Reno--initially, her
office had proposed tracking people who went to church twice a
week, because they might be more religious, and likely to bomb
a clinic.
Clearly, there are struggles with this. In your article--
and your written statement was--would you agree it was a tad
over-the-top, to get attention?
Mr. Fein. The problem, in my judgment, is the general
theory that we want, and can encourage a risk-free country by
gathering intelligence on anything, and sharing it, that has
any conceivable relationship to a possible wrongdoing, and that
all other values should be subordinated to that. There is no
sense of balance in these----
Mr. Souder. Okay. I return my time. I asked a question, and
you didn't answer. Your statement says that fusion centers--
there would have been no anti-slavery movement in America,
because William Lloyd Garrison would have been stillborn, which
is ridiculous. There would have been an anti-slavery movement,
even if he had been stillborn, and he wouldn't have been
stillborn.
It is ridiculous to say there wouldn't have been women's
right to vote--which you make assertion--that the Roman
government did not object to Christ, it was a religious
objection. You can't even have your history right. Then, you
have these cute wordings, suggesting comparability to KGB and
the Stasi that--it is so over-the-top that you can't make your
own point that----
Mr. Fein. But I didn't even----
Mr. Souder. But you can't even make your own----
Mr. Fein. You didn't read my statement.
Mr. Souder. I asked the question----
Mr. Fein. Yes, I wrote the statement, so I know what I
said.
I had said that we should learn from the Stasi and the KGB,
not that we were there. I did not make that assertion. With
regard to the----
Mr. Souder. ``Cute wording.''
Mr. Fein. What?
Mr. Souder. That is what I said. I didn't say you said
that. I said you had cute wording to tie fusion centers to it--
suggests that the type of approach is that way. Then, you
impugn the character of every single law enforcement officer in
the United States.
You will not accomplish conservative goals of trying to
make a responsible Government when you go over the top, with
wide assertions, broad-brush painting, and that--would you
agree that it is a--that one of the most troubling things here,
fundamentally--Mr. McCaul asked you a question, and you said,
``If they have a criminal record.''
The challenge we have is how to prevent an attack, and to
do civil liberties; in other words, possibly before crimes are
committed. Do you believe it is appropriate for the Government
to try to look at prevention of crimes, rather than just
researching after the crime is committed?
Mr. Fein. It is not appropriate to try to search--to
prevent crimes that you have no evidence of actual element of
criminal activity afoot. It is better to be free than to have
risk-free----
Mr. Souder. Better to be dead----
Mr. Fein. Better to be free----
Mr. Souder. Dead.
Mr. Fein [continuing]. Than to try to have a risk-free
country, where the purpose of the country is destroyed because
you are spying on everybody.
If you want to go and try to prevent any conceivable crime,
of course, we might stick a policeman in everybody's home. Why
not have a monitor----
Mr. Souder. Absolutely true.
Mr. Fein [continuing]. On their video, 24 hours a day,
because you are trying to prevent----
Mr. Souder. Taking back my time--taking back my time.
I agree with overreaching. You, however, said ``no
prevention.''
Ms. Harman. The gentleman's time is expired.
Ms. Clarke is recognized for 5 minutes.
Ms. Clarke. Thank you very much, Madam Chair--very
stimulating discourse this morning.
My question to Mr. Fein--I am just curious--have you ever
visited a fusion center?
Mr. Fein. I have been invited by the Los Angeles sheriff. I
would say I--delighted to go out there, and be able to examine
all the----
Ms. Clarke. Have you been there yet?
Mr. Fein. No, I have not been there yet.
Ms. Clarke. Okay.
Do you think that a visit like that would have helped to
shape your views on their activities?
Mr. Fein. If I could examine all of the files, and saw
exactly what was being collected, yes.
[Laughter.]
I would like all these fusion centers to be subject to
something akin to the Freedom of Information Act, so we can
have some outside scrutiny of them.
Ms. Clarke. Okay.
That is very interesting.
Your commentary about their activities suggest that you had
some sort of internal knowledge of exactly how they operate.
Mr. Fein. We do have the ones that have been leaked.
Ms. Clarke. I would like to suggest that your commentary is
very subjective, based on information that you received
secondhand. Perhaps, one way of addressing your concerns would
be to visit a fusion center.
Now, the extent to which you will be able to peruse all of
the documents there--I think we would have to examine that. But
your credibility, with regards to the extreme nature in which
you have addressed this issue, is a bit diminished, simply by
the fact that you have not visited one.
I think that, you know, to rectify that, we should,
perhaps, arrange for you to do so.
Mr. Fein. Well, I would be grateful. If I could examine
those files--I would say that the same things were said about
all the people who had worries that Guantanamo Bay--not
everybody was an enemy combatant there--and said, ``Oh, you
haven't been down there and seen what the military saw, so you
can't have a useful thing to say about it''--and we see, when
there is finally review, who had the greater credibility?
Ms. Clarke. Right.
As I have stated, I think that you would add to your
commentary some level of validity and some level of
credibility, had you visited the fusion centers.
Mr. Fein. Well, when I would go visit the Los Angeles
sheriff, and he invited me out there--and I will be out there
in May--I would be grateful if you could write a letter for me,
asking that he permit me to examine all of their files under a
confidential arrangement, so I can see everything. That would
really help.
Ms. Clarke. Well, I will defer that to our Chair.
[Laughter.]
We will take it from there.
Madam Chair, I have no further question or comment. I yield
back the balance of my time.
Ms. Harman. Thank you very much.
The Chair now yields 5 minutes to Mr. Green.
Mr. Green. Thank you very much, Madam Chair.
I thank all of the witnesses.
Mr. Fein, I have a basic premise that guides a lot of my
thinking. It is this: That there is safety in the counsel of
the multitudes. I believe that it is good to hear all opinions,
as many as you can. I think that there is some time--that there
are times when you learn things from unexpected sources. So I
want to thank you for coming in and giving us your testimony
today.
The challenge that I have is that I must now ascertain
whether or not you are the canary in the coal mine, or are you
a woodpecker, who has pecked too many times? I am trying to get
a handle on where you are.
You made a comment that I think merits my consideration.
That is with reference to the Freedom of Information Act. Say
more about your concerns about freedom of information, because,
when you are finished, I am going to pass this over to Mister--
is it Gersten? I would like for him to respond.
So, if you would, please, quickly--as tersely as you can.
Mr. Fein. The general idea is to expose public access to
what these groups are doing, in the same way that we have an
FOIA applicable to Federal agencies, so that you can have
greater outside scrutiny and monitoring as to exactly what is
on-going.
They are not, however, arms of the Federal Government, so I
don't know whether this committee would have jurisdiction, but
insofar as to getting Federal aid, you could insist that they
have State and local Freedom of Information Act obligations,
administered like the new administration has administered the
current FOIA, so that there can be greater eyes and ears on
what is on-going.
Mr. Green. Mr. Gersten.
Mr. Gersten. I would actually just like to say that it is
actually helpful to have people like Mr. Fein aggressively
looking at the issue of fusion centers, even if some of the----
Mr. Green. Pardon me for interceding, but talk about his
Freedom of Information concern, if you would.
Mr. Gersten. Absolutely.
Mr. Green. Focus on that.
Mr. Gersten. Yes, absolutely.
In particular, I think that access to information about
what is going on in fusion centers is essential to make sure
that we have responsible commentary and responsible oversight
from outside of Government.
There are many advocacy organizations that are out there
that have issued responsible reports on fusion centers. They
have issued responsible reports on fusion centers. They have
done so absent a lot of information about what is truly going
on.
So I think----
Mr. Green. Wait. Let me help us to refine my question.
Maybe I would get a better response if I refine my question.
Mr. Gersten. Sure.
Mr. Green. My concern is this: He makes the commentary that
it is good to have access and transparency.
Give us a rationale for not according Freedom of
Information privileges.
Mr. Gersten. Well, in one instance, you would certainly not
want a lot of personally identifiable information that is
occasionally accessed in fusion centers to be open for anyone
to view. I mean, that in and of itself, would be a violation of
civil liberties.
But I think, on the whole--I think we are in favor of
having more openness about the activities, and even some of the
information flow that is shared through fusion centers.
Mr. Green. My suspicion is--and I don't want to speak for
you, Mr. Fein--but my suspicion is he is talking about an
individual who wants to know whether or not he or she has been
the subject of some sort of investigation. Is that a fair
statement, Mr. Fein?
Mr. Fein. That would be a counterpart to our privacy act--
--
Mr. Green. Okay. Mr. Fein, if you will just say ``Yes,'' it
will help me to move it along.
Mr. Fein. Yes.
Mr. Green. Okay.
Mr. Gersten. I think we should offer redress. The
organizations involved in fusion centers should be accountable
to provide information, if they have accessed information or
somehow been privy to information about a specific person. That
person should be able to go to that fusion center and ask all
of the agencies involved whether or not they are being somehow
involved in----
Mr. Green. Okay. Thank you. Let me go to Mr. Fein, quickly.
Mr. Fein, under this scenario, if the person who seeks
information is under some sort of scrutiny for, maybe, some
sort of terrorist activity, and if according that information
at that moment would somehow compromise an investigation, would
you have any exception for a person who is asking for the
information, if it compromises national security?
Mr. Fein. I think the model of the Privacy Act that applies
at the Federal level is the model that would accommodate that
concern. You could simply take all privacy acts that enabled--
--
Mr. Green. But is your answer--I need for the record----
Mr. Fein. The answer, at the Federal level--yes, there is
an exception----
Mr. Green. Okay. You would agree that----
Just a moment, Mr. Fein. If you would, quickly--would you,
for my record--would you agree that there should be an
exception? Yes or no?
Mr. Fein. Yes.
Mr. Green. Okay, all right.
Thank you, Madam Chair. I do have other questions, if we
have another round.
Ms. Harman. Thank you, Mr. Green. I don't think we are able
to have another round, given the schedule of the day.
If Members have additional questions, I would hope that the
witnesses would agree to respond in writing--is there any
objection?--so that we can have a fuller record.
Well, let me just comment that we have had a lively
morning. Let me put out there just a couple of things that I
think all of us would agree upon--all of the Members of the
subcommittee.
First of all, we all vigorously support the First
Amendment, and the right of free expression. We also support
the Fourth Amendment, and the other provisions of our
Constitution.
Second of all, our hearings are intended to spur a public
dialogue. We do think the public should understand what the
policies and practices of the Federal Government and State and
local and Tribal governments are, with respect to the issue of
intelligence.
In fact, our last hearing was specifically to spur this
dialogue about, ``Why do we need homeland security
intelligence?'' and to have those who critique the way we
conduct that intelligence.
So we support an active public dialogue. We also think--and
we have passed a bill twice, based on this premise--that we
over-classify things at the Federal level, and we should have
much more information available to the public and, certainly,
available to State and local law enforcement, which many of
whom do not have security clearances.
The threats are grave, as Mr. McCaul stated. There is no
such thing as zero risk. No one here thinks there is zero risk.
The policies of the Federal Government--at least those I know
anything about--are not designed to achieve zero risk. But they
are designed, we hope, as carefully as we can do it, to protect
the public of the United States. That includes protecting civil
liberties and privacy.
So let me finally say that these hearings will continue. We
welcome the dialogue. We are trying to get these policies
right.
I do want to thank the very hardworking people at the
Department of Homeland Security, and in State, local, and
Tribal law enforcement, who are also trying to get this right.
You do us a great service, and you are protecting our country.
Thanks, on behalf of a grateful Nation.
The hearing stands adjourned.
[Whereupon, at 11:58 a.m., the subcommittee was adjourned.]
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