by Gene Howington, Guest Blogger

The 4th Amendment to the U.S. Constitution reads, “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Seems pretty straight forward, doesn’t it?

It is well established that citizens enjoy a certain amount of privacy under the 1st, 3rd, 4th, and 5th Amendments.  The 9th Amendment’s statement that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people” certainly implies a general right of privacy. Although there is no specific protection of a general privacy right in the Constitution or the Bill of Rights, case law has been consistent in providing a fairly broad right to privacy under the “liberty” guarantee of the 14th Amendment.

“They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.” – Benjamin Franklin, Memoirs of the life and writings of Benjamin Franklin, (1818).

Seems like good advice, doesn’t it?

In America today, we as citizens have been usurped in our rights to privacy and to be free from unwarranted search and seizures.  One of the primary methods used to usurp your rights are called Fusion Centers.  They seem to have a rational purpose as they are designed to promote information sharing at the federal level between agencies such as the Central Intelligence Agency (CIA), Federal Bureau of Investigation (FBI), U.S. Department of Justice (DOJ), U.S. Military, and state- and local-level government.  I don’t think that is prime facie a bad thing that the left hand of government knows what the right hand is knows or is doing and that all of law enforcement is essentially equally informed.  Uniform intelligence seems like a good idea, does it not?  After all, there are countless novels, films and television shows based on the thrilling and idiotic situations created by intra-departmental in-fighting because unequal playing fields and ego battles make for good drama and/or comedy by their nature.

But what if that information is bad or otherwise unusable? Where do they get their information? Why are the military involved in domestic operations? What is being done with the data vis a vis security, privacy and retention? Are your rights being violated by either the collection or collation of personal information? Is there adequate oversight and are there adequate safeguards for citizen’s privacy and right to be free from unwarranted searches? Is the support seeking uniform information providing useful information and working on a practical level?

Let us first consider what a Fusion Center is and is not, if they are effective at their stated purpose and how their proper and improper function impairs your rights.

The Fusion Centers are an overarching program and method of managing the flow of information and intelligence across levels and sectors of government to integrate information for analysis. They are not operational support on either a daily or an emergency basis although some of the 72 known Fusion Centers operate in conjunction with and share facilities with some operational centers. They are a support centers driven by analysis; information management and logistics. An apt analogy would be they are a large part of the brain behind the brawn, not wearing jackboots themselves but certainly responsible for informing their marching orders. No one from a Fusion Center is ever going to kick in your door.  That is what they are and are not. Again, their stated purpose is not necessarily a bad one: collating uniform information services for various law enforcement organizations and the military. But where are they getting their information from?  How are they using it? It it providing benefits for the costs?

The American Civil Liberties Union has identified five systemic problems with fusion centers.

1. Ambiguous Lines of Authority. In a multi-jurisdictional environment it is unclear what rules apply, and which agency is ultimately responsible for the activities of the fusion center participants.
2. Private Sector Participation. Some fusion centers incorporate private-sector corporations into the intelligence process, potentially undermining privacy laws designed to protect the privacy of innocent Americans, and increasing the risk of a data breach.
3. Military Participation.Some fusion centers include military personnel in law enforcement activities in troubling ways.
4. Data Mining. Federal fusion center guidelines encourage wholesale data collection and data manipulation processes that threaten privacy.
5. Excessive Secrecy. Fusion centers are characterized by excessive secrecy, which limits public oversight, impairs their ability to acquire essential information and impedes their ability to fulfill their stated mission, bringing their ultimate value into doubt.

In a bipartisan report led by Sens. Carl Levin (D-Mich.) and Tom Coburn (R-Okla.) was released last week.  The conclusion of the Federal Support For And Involvement In State And Local Fusion Centers – Majority And Minority Staff Report – Permanent Subcommittee On Investigations – United States Senate (Fusion Center Report or FCR hereafter) was that “DHS-assigned detailees to the centers forwarded ‘intelligence’ of uneven quality -– oftentimes shoddy, rarely timely, sometimes endangering citizens’ civil liberties and Privacy Act protections, occasionally taken from already-published public sources, and more often than not unrelated to terrorism.” FCR, p. 27. Insult to injury, “DHS officials who filed useless, problematic or even potentially illegal reports generally faced no sanction for their actions, according to documents and interviews. Supervisors spoke with them about their errors, but those problems were not noted on the reporting officials’ annual performance reviews, and did not influence managers’ decisions about their salary raises, bonuses or career advancement, DHS officials told the Subcommittee. In fact, the Subcommittee investigation was able to identify only one case in which an official with a history of serious reporting issues faced any consequences for his mistakes – he was required to attend an extra week of reporting training. [paragraph] The Subcommittee investigation also learned that DHS did not adequately train personnel it sent out to perform the extremely sensitive task of reporting information about U.S. persons – a job fraught with the possibility of running afoul of Privacy Act protections of individuals’ rights to associate, worship, speak, and protest without being spied on by their own government.” FCR, p. 27-28.

Bad reporting from Fusion Centers has resulted in huge embarrassments such as the Terrorist Identities Datamart Environment or TIDE, a database that allegedly contains “all information the U.S. government possesses related to the identities of individuals known or appropriately suspected to be or have been involved in activities constituting, in preparation for, in aid of, or related to terrorism, with the exception of purely domestic terrorism information.”  These individuals are labelled as KST’s, Known or Suspected Terrorists. As such, TIDE is meant to be the backbone of the “No Fly” List and the State Department’s Visa Checking System.  Some of the terrorist suspects identified by the TIDE system?  A two year old and the Ford Motor Company.When asked how a toddler could end up as a KST, Ole Broughton, who ran intelligence oversight at Homeland Security’s Intelligence and Analysis division from 2007 until last January, said that “intelligence officials had routinely put information on ‘associates’ of known or suspected terrorists into TIDE, without determining that that person would qualify as a known or suspected terrorist.” “Not everything in TIDE is KST,”  Ken Hunt, a DHS privacy official, admitted to the Senate subcommittee.

This ineptitude is made even more troubling when you consider that public sources are not the only input for personal information regarding citizens. Much of the data is provided by the private sector which disturbingly doesn’t have the constraints on their actions to protect your privacy and rights that the government does. Compounding the problem is the issue of military involvement given that the 2012 Defense Authorization Act into law. Section 1031, clause “b”, article 2 defines a ‘covered person’ (someone possibly subject to martial law) as : “A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.” If the wrong person gets the wrong idea about based upon wrong information? You too could be spirited off to Gitmo. If you want to be truly appalled by the incompetence of the Fusion Centers, I urge you to read the report for yourself.

There is an old adage in computing and data processing: Garbage in, garbage out. How much is the incompetence driven violation of your rights costing us?  No one seems to be sure.  The estimates range from $289 million to $1.4 billion, but according to this report, the actual costs may be even higher. Perhaps the biggest insult is that Homeland Security Secretary Janet Napolitano repeatedly misled Congress about the effectiveness of the Fusion Centers. “The Subcommittee
examined four such cases in which DHS claimed fusion centers made important or ‘key’ contributions to investigations of significant terrorist plots on U.S. soil. The Subcommittee investigation found that the claims made by DHS did not always fit the facts, and in no case did a fusion center make a clear and unique intelligence contribution that helped apprehend a terrorist or disrupt a plot. Worse, three other incidents examined by the Subcommittee investigation raised significant concerns about the utility of the fusion centers, and raised the possibility that some centers have actually hindered or sidetracked federal counterterrorism efforts. [paragraph] Federal officials have been well aware of these episodes, and the underlying weaknesses in fusion centers’ capabilities that likely contributed to them. But they have chosen not to highlight the considerable shortcomings of fusion centers in public appearances or in briefings to Congress. Instead they have chosen to portray fusion centers as ‘linchpins’ of the federal government’s fight to prevent terrorism, making ‘vital’ contributions to the federal government’s efforts to keep the country safe from another terrorist attack. This portrayal is simply at odds with the actual counterterrorism records of the fusion centers.”  FCR, p. 84-85.

“Unfortunately, despite a significant investment of resources and time, fusion centers today appear to be largely ineffective participants in the federal counterterrorism mission. Much of the blame lies with DHS, which has failed to adequately implement a fusion center program that would produce the results it promised. But significant responsibility for these failures also lies with Congress, which has repeatedly chosen to support and praise fusion center efforts, without providing the oversight and direction necessary to make sure those efforts were cost effective and useful.” FCR, p. 105.

Spying on citizens for practicing behavior that is Constitutionally protected is allegedly illegal. Lying about people is allegedly a crime and a civil wrong given the particular circumstances.  Yet here we are (again, if  you consider COINTELPRO) in a situation where the government is trampling citizen’s rights for a little bit of security at exorbitant costs no one is really sure of and run by a people who seem to be content to lying to Congress and the public about what they do and how effective it is.  All in the name of fighting “terrorism”; something that is about as likely to kill you as your own furniture.

So we again come to the heart of Franklin’s statement.  “They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.” We as a nation have given up essential liberty in the name of an irrational fear and temporary safety. What is even sadder is that alleged security is not only a violation of your rights by governmental and private actors used purposefully to circumvent your rights in ways that stifle legal challenge, but that the security is in actuality an illusion of security that can harm the innocent through no fault of their own and leaves them with little or no recourse.  Is it any wonder the Electronic Privacy Information Center currently has filed suit against the DHS and other governmental bodies like the Virginia State Police over topics ranging from Fusion Center funding to compliance with the Federal Privacy Act by Fusion Centers to the deployment of airport scanning equipment which has been proven ineffective and possibly a health risk.

Should Fusion Centers be allowed to continue their failed mission?  Or should they be shuttered, the DHS dismantled and/or the Patriot Act repealed?  If were going to have an ineffective organization that hiders counterterrorism and interagency cooperation, why not just go back to the way things were before the Patriot Act? Should Homeland Security Secretary Janet Napolitano be fired for her lies? Should she be fired for her incompetence? Clearly steps need to be taken to protect our civil rights and hold those in government responsible both for their protection and for wisely spending our tax dollars instead of perpetually pissing them away down an arguably unconstitutional hole.

What do you think?

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Source(s): Federal Support For And Involvement In State And Local Fusion Centers – Majority And Minority Staff Report – Permanent Subcommittee On Investigations – United States Senate (Oct. 3, 2012) (.pdf),  Washington Times, the American Civil Liberties Union (ACLU) (1, 2, 3), the Electronic Privacy Information Center (EPIC), Huffington Post (1, 2), The Atlantic, Wikipedia.

Kudos to Elaine M. for steering one of the Huffington Post articles my way.

This column is dedicated to my friend Brian Jones, a stalwart defender of the weak, a good friend, a good brother, a good son, a good father and a good man. Fighting the good fight in any arena is something I will always associate with you. I’ll never forget you standing up for the disabled kids in gym class in high school. Fight on, brother!  We love you in my house. Peace.

~Submitted by Gene Howington, Guest Blogger