Fusion Centers in Texas: "What we have here is a failure to communicate"

One product of the 80th Texas Legislature was giving after-the-fact approval in HB 13 (amended at the end of session into SB 11) to Governor Perry's 2005 decision to consolidate intelligence gathering in "fusion centers," which are new intelligence gathering bureaucracies controlled by his political appointees instead of law enforcement personnel.

A new report from the Congressional Research Service explores state "Fusion Centers" in more detail than anywhere else I've seen, so I thought I'd pull a few highlights that jumped out at me from the lengthy study. (For those with a detailed interest, CRS also referenced a 104-page manual called "Fusion Center Guidelines" published by the US Department of Justice in August 2006 about a year after Texas' created its first center.)

Fusion centers' stated purpose is to prevent terrorism and crime through intelligence gathering. But the CRS report says in practice they don't prevent crime, but typically only react to events:

research indicates that while fusion centers want to become more proactive, many continue to follow a reactive model. Most fusion centers respond to incoming requests, suspicious activity reports, and/or finished information/intelligence products. This approach largely relies on data points or analysis that are already identified as potentially problematic. As mentioned above, it could be argued that this approach will only identify unsophisticated criminals and terrorists.

Indeed, right now, says CRS, it's "unclear if a single fusion center has successfully adopted a truly proactive prevention approach to information analysis and sharing." This will require a law enforcement culture change, says CRS, that has not occurred yet, "Moving from a 'need to know' rule to a 'responsibility to share'" mentality.

I'm still not sure what constitutes a Fusion Center in Texas. The map in Appendix B of the report lists two Texas sites - one in Austin (the Texas Security Analysis and Alert Center) and one in Collin County (North Central Texas Fusion Center). In addition, though, this spring it was revealed Texas also has 11 "joint operational intelligence centers" that I know very little about, nor do I understand the relation between those and the two Fusion Centers listed in the report. (Anybody with more knowledge about the relationship there, fill me in, please, in the comments or by email.) All told, different states have created about 40 nationwide, according to CRS, each with separate structures, rules and focus.

In any event, from the outset, CRS acknowledges in the report summary there's a good chance Fusion Centers are a reactive and unwise approach:

There are several risks to the fusion center concept — including potential privacy and civil liberties violations, and the possible inability of fusion centers to demonstrate utility in the absence of future terrorist attacks, particularly during periods of relative state fiscal austerity.

I'd add several more risks to that list, starting with potentially disrupting existing information flows and relationships, agreements and protocols established among public safety personnel over years of working together, particularly regarding natural disasters but also in criminal investigations. In Texas, for example, the Governor's "joint operational intelligence centers" don't communicate with state law enforcement regarding narcotics interdiction at the Texas-Mexico Border. That makes you wonder how "joint" these centers really are in Texas, and how "intelligent"?

In the MSM this spring, nearly all discussion of Texas' Fusion Centers spoke in now-familiar terms of sharing intelligence to prevent terrorist attacks, crime, etc.. But the devil is in the details, and the CRS forthrightly articulated some of the

hazards associated with creating fusion centers without the requisite philosophical and organizational changes necessary within the intelligence and law enforcement communities to sustain the work of the centers.

That's CLEARLY what's happened in Texas. Governor Perry and the 78th (2003) Legislature created a new entity now headed by Homeland Security Director Steve McCraw, who spearheaded creating Texas' fusion centers. He's butted heads frequently with the Department of Public Safety, and used grant funds distributed by the Governor to undermine DPS and muscle them out of their traditional intelligence role. In other words, by creating a fusion center the Governor launched a classic, still ongoing government turf battle. If you care about actual, on the ground homeland security, though, it's potentially one with real-world consequences.

I thought CRS raised another interesting and valid concern. Creating a fusion center is an action politicians can take to say the did something on the topic. But "if fusion center development occurs devoid of a more fundamental transformation, is any real progress made? Is the country any safer or more prepared with fusion centers or have we created a false sense of security?"

Good question! Speaking only of Texas, from what I've seen creating these competing agencies then snubbing DPS probably harmed security more than enhanced it, wasting time and resources on bureaucratic infighting instead of pursuing law enforcement goals, and missing potential opportunities. As the prison warden said to Cool Hand Luke, "What we have here is a failure to communicate."

The CRS report also questioned whether problems with data accuracy at fusion centers might lead to misdirected law enforcement resources or even civil rights violations. A footnote declared:

Some might argue that the entire concept for fusion centers, particularly those aspects involving the incorporation of private sector data that may not be accurate or based on any criminal predicate is fundamentally flawed. If there is little legal recourse for citizens to challenge information related to them that resides in commercially available databases, and such information is included in fusion center operations, privacy rights and civil liberties could be undermined.

Another criticism of fusion centers has been the secrecy and lack of public scrutiny surrounding their creation and management. CRS quoted national ACLU declaring, “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.” It's hard to argue with that.

Even some fusion center supporters recognized the potential civil liberties risks: "An official from a fusion center that advocated a proactive approach to civil liberties-related outreach warned colleagues of the dangers of civil liberties abuses, saying, 'even the perception of abuse associated with a single center, will be devastating for us all.'”

Most of the report offers a range of options for how to proceed regarding Fusion Centers, and I won't wade through all that speculative prose here. But anyone interested in a federal perspective and an exhaustive literature analysis on these "fusion centers" should definitely see the rest of the CRS report.

UPDATE: See a much more detailed and thorough account of the CRS report from the Electronic Privacy Information Center, and a good, shorter summary overview from the blog Homeland Stupidity.