By Shane Harris
February 13, 2007To bolster homeland security, Democratic lawmakers want state and local governments to expand their intelligence-gathering, a goal supported by the Bush administration but one that some civil libertarians and privacy advocates say borders on domestic spying.
As part of the Democrats' first-100-hours legislative push, the House passed a bill that would give grants to local and tribal law enforcement agencies so they could send personnel to so-called intelligence fusion centers, which are usually run by state authorities and have proliferated since the 9/11 attacks.
Operating in at least 46 states and the District of Columbia, the centers collect information on terrorist threats from a wide range of sources -- including criminal investigations, the media, and tips from the public -- and then "fuse" it to create a fuller picture of potential threats in their area.
The 9/11 commission that investigated the 2001 terrorist attacks promoted the fusion-center concept, and U.S. homeland-security and intelligence officials call the centers an indispensable part of their efforts to prevent terrorism because federal agents cannot monitor every potential target and can't match locals' knowledge of their home turf. In December 2005, President Bush directed federal agencies to "develop a common framework" for sharing security information with other levels of government and the private sector.
The new grant program for fusion centers, contained in Democrats' legislation to enact many of the 9/11 commission's security recommendations, would take that effort a step further. It would provide funding to smaller local and tribal organizations that can't afford to hire new personnel for the fusion centers or to give their current workers time off to work there. Smaller communities may be underrepresented at the centers, which are usually located in larger cities or state capitals.
Lawmakers believe that adding more local law enforcement officials and analysts to the fusion centers' rosters will heighten the centers' awareness of potential threats. The bill, which was sponsored by Rep. Bennie Thompson, D-Miss., the chairman of the Homeland Security Committee, states: "Grant funding will not only promote the development of more effective, resourceful, and situationally aware fusion centers, but will also advance the cause of homeland security." The bill has been referred to the Senate's Homeland Security and Governmental Affairs Committee.
But the proposal has met with opposition from groups that often side with Democrats on efforts to limit broad-brush domestic security initiatives. "We're setting up essentially a domestic intelligence agency, and we're doing it without having a full debate about the risks to privacy and civil liberties," said Tim Sparapani, the legislative counsel on privacy issues for the American Civil Liberties Union.
Democratic staffers have met with civil-liberties groups and tried to reassure them that the grant program is not meant to foster domestic intelligence activities. "We don't want to be creating a mistake from COINTELPRO days," said one staffer, referring to the FBI's covert, and illegal, program to spy on political dissidents and anti-war groups in the 1960s and '70s.
As a condition of receiving grants, the bill states, participants would have to undergo "appropriate privacy and civil-liberties training" developed by the federal government. Currently, there is no uniform privacy law or set of rules that governs how state and local authorities collect and share terrorism-related intelligence.
Others have questioned the wisdom of using another grant program to heighten security. There are programs already in place that can funnel money to fusion centers, said James Carafano, a homeland-security expert and research fellow at the conservative Heritage Foundation. Adding yet another funding line, he said, would create an incentive for states to work on their own homeland-security priorities instead of on a national effort. "Grants were designed to allocate money to states to really work on state priorities," Carafano said. "[They] are a terrible national security instrument."
That fusion centers might pursue their own interests would seem appropriate, given how the centers came into being. After the 9/11 attacks, the Justice Department and the FBI set up Joint Terrorism Task Forces in the bureau's field offices across the country. Those task forces were supposed to serve as clearinghouses for terrorism intelligence and become places where federal, state, and local officials could communicate and develop new sources.
But many state and local officials complained that they didn't receive the quality and quantity of intelligence they needed. In the months after the attacks, for example, Boston police officials said publicly that the local FBI office was sending officers on wild goose chases, or was giving them long lists of targets to protect without explaining why.
Frustrated by the one-sided nature of this information-sharing, state and local governments established fusion centers to do what the federal government often couldn't -- provide their communities with concrete intelligence, drawn from known sources, about potential terrorists.
In the ensuing years, the centers have grown in number and importance. Seventy percent of state homeland-security directors called building a fusion center a "top priority," according to a survey last year by the National Governors Association.
To ensure that information shared among federal agencies and other parties isn't mishandled, the Office of the Director of National Intelligence issued a set of guidelines meant to protect personal privacy and civil liberties. The DNI's office is building something called the "Information Sharing Environment," or ISE, a mechanism by which multiple levels of government and the private sector are supposed to communicate about terrorist threats. The guidelines state that any organizations participating in the ISE, including fusion centers, must "comply with the Constitution and all applicable laws and executive orders relating to protected information."
But in reality, uniformity is hardly evident when it comes to the interpretation or application of privacy laws. The states have different rules and procedures for writing terrorism or other criminal reports, for how they disseminate them, and for how they share them with colleagues outside their jurisdictions.
"You've got 50 different sets of privacy laws," said Thomas McNamara, the program manager for the ISE. "Can the police chief of San Diego share [reports] with the police chief of Atlanta? It depends upon the law in San Diego and the law in Georgia," McNamara said, adding that police officials have told him that they're reluctant to send reports on possible terrorist activity beyond their borders because they can't be sure how the information will be handled.
The Bush administration's privacy guidelines are meant to give some assurance, but they are not binding. Nor can they be universally enforced. The guidelines are "suggestions and recommendations rather than directives, because the federal government cannot direct states," McNamara said. But he hopes that over time, federal, state, and local governments will "tend to follow the standard pattern," and that "out of that will come a network, or a fabric of privacy," that will facilitate a freer flow of information. "But it's a very long-term process."
Federal intelligence officials say they are also sensitive to the concerns about domestic intelligence-gathering, and they insist that the fusion centers are intended to support state and local law enforcement and homeland-security activities. The centers are "not going to be a platform by the intelligence community to carry out domestic intelligence activities," McNamara said.
Democrats say they recognize that no single mechanism controls the fusion centers' operations, nor is the bill establishing the grant program meant to create one. Lawmakers hope, though, that the bill will bring some continuity to the process by, for instance, requiring the same privacy and civil-liberties training for grant recipients. "What we want to do ... is to bring some order to what could be potential chaos," the Democratic staff member said.
The Homeland Security Department will likely play a leading role as the fusion centers expand their work. It already administers other security grants to states and localities. And the department details personnel from its intelligence office to the centers. Currently, 15 employees are at local centers, and the department plans to send personnel to all of them by year's end, a DHS official said.
The bill states that these individuals will hopefully become "a point of contact" for the department about what information is being shared among state and local officials, and it envisions the centers becoming a key source of information as Homeland Security assesses threats nationwide.
The department's role has alarmed the ACLU, which is particularly concerned about vesting Homeland Security's intelligence division with that coordination role. "We are granting extraordinary powers to one agency, without adequate transparency or safeguards, that hasn't shown Congress that it's ready for the job," Sparapani said.
The Democratic staffer said that the new bill isn't intended to make the intelligence division or its chief, former CIA Assistant Director Charles Allen, the overseer of fusion centers. "We would hope that he will be the face of DHS to these centers," the staffer said.
But Sparapani countered that the ACLU remains unmoved by those reassurances. "We're concerned that Charlie Allen, and his successors, could become the next J. Edgar Hoover."
By Shane Harris
February 13, 2007