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.
- 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.
- 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.
- Military Participation.Some fusion centers include military personnel in law enforcement activities in troubling ways.
- Data Mining. Federal fusion center guidelines encourage wholesale data collection and data manipulation processes that threaten privacy.
- 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
gbk 1, October 10, 2012 at 3:40 pm
Don’t know about it being funny, but I do find it utterly predictable.
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It depends on what the meaning of is is. Lawyers are political. So is everybody else.
Don’t know about it being funny, but I do find it utterly predictable.
I’m sorry, I find this funny. It’s not very nice of me. See, I lost all MY constitutional rights in 1982 and as my fellow Americans lose theirs, although I understand how bad it is and wrong it is and blah blah blah, my bitterness and anger that all my attempts to get assistance recovering my own were rejected (I wasn’t sexy enough) makes me kind of relish the looks on my co-citizens’ faces when they taste the stew I have been fed. I mean, while there’s plenty of UH OH in me still, there’s also a lot of HA HA HA.
Suck it up, y’all. 🙁
“Supreme Court on Tuesday rejects challenge to 2008 law allowing warrantless domestic surveillance.”
“The Supreme Court refused to hear a case on Tuesday that holds telecom companies accountable for letting the National Security Agency spy on unknowing Americans without a warrant.
Dating back to 2006 when the American Civil Liberties Union and the Electronic Frontier Foundation first filed the class-action lawsuit, the case accuses AT&T of providing the NSA with customers’ personal information — phone calls, emails and web browsing history — without seeking a court order.
Verizon and Sprint are also mentioned. The plaintiff, former AT&T technician Mark Klein, even provided internal documentation that showed evidence of the NSA surveilling Americans’ Internet traffic from a secret room in San Francisco.
That case, Hepting v. AT&T, has now been thrown out, and the Supreme Court didn’t even comment on why.”
http://www.theatlanticwire.com/politics/2012/10/supreme-court-isnt-bothered-nsas-warrantless-wiretapping/57791/
http://www.commondreams.org/headline/2012/10/10-0
Now I feel special. Really, I do.
Thanks, Bob.
The term has always made my stomach turn. Homeland, Fatherland, Motherland . . . they are all terms reeking of authoritarianism even more than of paternalism.
Gene,
Great awareness piece.
“Should Fusion Centers be allowed to continue their failed mission? Or should they be shuttered, the DHS dismantled and/or the Patriot Act repealed?”
Homeland Security; sounds so close to Fatherland Security; don’t it?
Why don’t we just assign all our constitutional rights directly to Huawei now and be done with it?
Kraaken, the problem with needing a method is that even if we come up with one, the method that the fusion centers already have is called “by any means necessary,” and thus, our method will not work.
The reason I know this is that once I filed a federal habeas corpus petition. There was no method available to oppose it. It was “shoe in” without any opportunity for failure; I won’t bother to explain why. An analogous example would be that a guy was arrested and charged with a crime that did not appear on the books, held without bail, and convicted without a jury, whereupon he was not allowed to appeal because appeal from such an order was not provided for by law since there was no law of which he was convicted — your Joseph K in Franz Kafka’s “THE TRIAL,” if you will.
The method by which they got rid of the habeas corpus was by leaving it on the desk for 17 months and then calling it “moot” for three years. No law existed for the proposition that it was “moot” so none was cited.
This convinced me that if people who have big guns decide to do something shameful, they will. The fact that you have methods of finding remedies for it all notwithstanding, of course. Those methods you have of finding remedies just keep you busy and drain your money and energy.
If they’ve got the bomb, you ain’t got the word.
Great article as usual, Gene. Leaves one to wonder if there is anything that can be done about it. Obviously, the ballot box doesn’t work (SSDD). Bettykath has the right idea. What we need is a method.
TIA began with Poindexter, Rumsfeld “got on board”, and let’s not forget about the PSP and Michael Hayden:
“Did Bush Continue to Secretly Operate Total Information Awareness?”
Friday 18 September 2009
http://archive.truthout.org/091909A
From the article:
“Suspicionless Surveillance” was developed by the Pentagon’s controversial Total Information Awareness department, led by Adm. John Poindexter, the former national security adviser, who secretly sold weapons to Middle Eastern terrorists in the 1980s during the Iran-Contra affair and was convicted of a felony for lying to Congress and destroying evidence. The convictions were later overturned on appeal.
Marc Rotenberg, executive director of the Electronic Privacy Information Center, had referred to Poindexter as “the architect of a program to extend surveillance of private databases.”
At least one lawmaker had raised concerns at the time that implementing such a program could be illegal.
Sen. Carl Levin (D-Michigan) told Rumsfeld during a public hearing in 2003 that the Total Information Awareness program “not only raises serious privacy concerns [but] might also be illegal and possibly unconstitutional.”
Report Critical of NSA Program
The unclassified report prepared by inspectors general of five federal agencies said George W. Bush justified his warrantless wiretapping by relying on Justice Department attorney John Yoo’s theories of unlimited presidential wartime powers, and started the spying operation even before Yoo issued a formal opinion, a government investigation discovered.
Essentially, President Bush took it upon himself to ignore the clear requirement of the 1978 Foreign Intelligence Surveillance Act that all domestic intelligence-related electronic spying must have a warrant from a secret federal court, not just presidential approval. Illegal wiretapping is a felony under federal law.
The July 10 report didn’t identify any specific terrorist attack that was thwarted by what was known as the President’s Surveillance Program (PSP), although Bush has claimed publicly that his warrantless wiretapping “helped detect and prevent terrorist attacks on our own country.”
The inspectors’ general report also makes clear that the full PSP was more expansive than the Terrorist Surveillance Program, the warrantless wiretapping that was revealed by The New York Times in December 2005. The TSP involved intercepting calls between the United States and overseas if one party was suspected of links to al-Qaeda or to an al-Qaeda-affiliated group.
Though the undisclosed elements of the PSP remain highly classified, the report gave some hints to its scope by noting that the program originated from a post-9/11 White House request to NSA Director Michael Hayden to consider “what he might do with more authority.”
Hayden then “put together information on what was operationally useful and technologically feasible,” the report said. “The information formed the basis for the PSP.”
In other words, the PSP stretched the limits of what the NSA could accomplish with its extraordinary capabilities to collect and analyze electronic communications around the world. Various journalistic accounts have suggested that Bush’s spying program crossed the line from zeroing in on specific surveillance targets to “data-mining” a broad spectrum of electronic communications.
Suggesting that the government gathered information on many innocent people, the inspectors general stated that “the collection activities pursued under the PSP … involved unprecedented collection activities. We believe the retention and use by IC [intelligence community] organizations of information collected under the PSP … should be carefully monitored.”
Recruitment for Fusion Centers from State of New Jersey employees is a concern. Are these the best individuals to recruit to take up surveillance of their community? And when a mistake is made by one of these individuals, a serious mistake perhaps in spreading false information which seriously impacts a citizen’s job, character, work history, or participation as a witness secured by a government employee, information shared with these unqualified and untrained individuals, is the State of New Jersey to compensate citizens for the loss of reputation, the economic and emotional humiliation of the actions of their employees? When is information to be validated? How is the source of the false information to be documented and corrected? Who is responsible for the ordeal, the loss of privacy? The loss of a home? The loss of reputation?
And then there’s the new data collection center being built by the NSA in Utah for domestic spying as first reported by Wired:
http://www.wired.com/threatlevel/2012/03/ff_nsadatacenter/
Rumsfeld’s Total Information Awareness program announced in 2002 never went away, it was just renamed to “Stellar Wind,” and moved from the Pentagon’s authority to the NSA’s.
http://www.democracynow.org/2012/4/20/exclusive_national_security_agency_whistleblower_william
nick spinelli 1, October 8, 2012 at 9:13 am
Very good piece. I’m just grateful Nixon never got his hands on this.
…
Maybe Nixon is working from his grave?
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Even Nixon would blush at what is out in the open in plain sight:
(Will The Military Become The Police). The Billy Joel song “It’s A Matter of Trust” comes to mind, but trust and government are not compatible concepts in our tradition.
Christopher Tucker 1, October 8, 2012 at 8:50 am
Something tells me we’ll never learn the truth about the “shame” of the fusion centers:
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The obvious is enough to bust them.
Nice diary.
Maybe Nixon is working from his grave?
Very good piece. I’m just grateful Nixon never got his hands on this.
Something tells me we’ll never learn the truth about the “shame” of the fusion centers: http://www.dailykos.com/story/2012/10/07/1140438/-Losing-Biggest-Constitutional-Showdown-in-History-via-NDAA-s-Backdoor-Hidden-in-Plain-View
Great article gene…..
One thing that should be added that people over look is the computer chip embedded in bank card, whether it be checking or charge…… It’s a wifi signal that allows government to keep track of you regardless of your location….. Not only is it based on the same technology that toll roads use to get your money….. But the banking industry was against it because of liability issues….. If it’s a charge card… It between the merchant and the credit card issuer….. If a debt card…..it’s between the bank and you……I have heard of someone having 27k taken out of the banking account just because they went to the airport to pick someone up…..
Again, great article….
I suppose we can thank bush for this…..
Gene,
Thank you for a post that I consider truly thought provoking. Your thoughtful explanation of information was accomplished in a way that inSpires us to understand more without revealing yourself as a cynic who just criticizes everything related to government operations and security.
“What do you think?”
I think your post aptly brings up subjects that are very ripe for discussion.
“An apt analogy [for Fusion Centers] would be they are a large part of the brain behind the brawn …”
That “brawn” is a dangerous giant:
(The Homeland: Big Brother Plutonomy). Clearly there is more at work here than protecting Americans, because the “fusion brain” is the brain of an incompetent, dangerous giant.
Yet the Republican reaction is to want to kill Big Bird, meanwhile the Democrats in congress are somewhat worried about Big Bird, but they are not appropriately worried about this incompetent, dangerous giant.
In his post Gene H went on to aptly point out:
Again, one would surmise, as Gene H did, that “the government is trampling citizen’s rights for a little bit of security” … but is that really all of what is going on? … especially since the military has come right out of the closet to say:
(ibid @ The Homeland: Big Brother Plutonomy, emphasis added). Like Gene H did in his post, one is reasonably likely to wonder aloud:
And those are some points to ponder, in the sense one can reasonably ask “have we given it up or has it instead been usurped?”
A recent military general who commanded NATO, as well as a recent Secretary of Labor, both indicated that a policy coup d’ etat has in fact taken place in our very own nation:
(A Tale of Coup Cities, emphasis in original). Like I said, Gene H has brought to the fore a timely subject.