Fusion centers' lameness thus far trumps potential civil liberties threats

The Constitution Project last week issued a document titled "Recommendations for Fusion Centers" (pdf) that merits readers attention. For those unfamiliar with them, "fusion centers" are a post 9/11 intelligence sharing concept operated at the state and sometimes local level. Beginning in 2003, federal funding and state-level enthusiasm for homeland security and intelligence sharing spawned "the creation of a network of state and regionally-based fusion centers that share information among law enforcement and some intelligence agencies. Today at least 77 fusion centers are active in the United States." The Constitution Project worried that "fusion centers can also pose serious risks to civil liberties, including rights of free speech, free assembly, freedom of religion, racial and religious equality, privacy, and the right to be free from unnecessary government intrusion," and offered 25 recommendations to improve their functioning. (Go here to listen to an audio recording of a forum held in D.C. accompanying the report's release.)

The report echoes many of the concerns raised by a 2007 report from the ACLU titled, "What's wrong with fusion centers?" (pdf), which was issued at a time when only 40 fusion centers had been established. While the ACLU focused on criticisms of the fusion center concept from a civil liberties perspective, though, the report by the Constitution Project focused more on specific and detailed operational recommendations aimed at cabining information gathered to legitimate law enforcement needs and ensuring it's properly used.

It's a worthy project and I agree with many of their recommendations - particularly the creation of an immutable audit trial for those who access fusion center records, requiring regular audits and purging information that doesn't relate to criminal conduct (particularly often-nebulous "suspicious activity reports" that are received by fusion centers in large volumes), restricting data use to criminal investigations based on, at least, reasonable suspicion, providing redress for identifying and correcting false information maintained by fusion centers, and their cautions against using the data gathered for counterproductive racial and religious profiling or unwarranted political harassment of First-Amendment protected activities.

Some of these issues have arisen in Texas. One example cited was a "February 2009 'Prevention Awareness Bulletin,' circulated by a Texas fusion center, [which] described Muslim lobbying groups as 'providing an environment for terrorist organizations to flourish' and warn[ing] that 'the threats to Texas are significant.' The bulletin called on law enforcement officers to report activities such as Muslim 'hip hop fashion boutiques, hip hop bands, use of online social networks, video sharing networks, chat forums, and blogs.'"

As evidenced by that example (and others in other jurisdictions), the Constitution Project worried that "the definitions of suspicious behavior used by the federal government and police forces are wide-raging and include behavior that may be completely innocuous." They observed that federal statute, "28 CFR Part 23 prohibits state law enforcement agencies that receive federal funding from collecting or maintaining personal information about indivividuals in a criminal intelligence database unless 'there is reasonable suspicion that the individual is involved in criminal conduct and the information is relevant to that criminal conduct or activity'."

That said, I must say I found the analysis a bit tepid, focused more on the micro-issues surrounding fusion centers and in the process offering suggestions that apply not just to fusion centers but to law enforcement intelligence gathering generally. But the report failed to confront what to me is the much larger question confronting policymakers who champion fusion centers: Are they effective? Are they worth the vast amounts being spent on them?

Fusion centers are little more than a law-enforcement fad, and there's little evidence they're providing much bang for the buck.

The report mentioned that between 2004 and 2007 (when far fewer fusion centers were in operation than today),  the Department of Homeland Security "provided $254 million to sate and local governments to support fusion centers. Federal funding accounts for 20 to 30 percent of state fusion center budgets," according to the report. Extrapolating, that means the total amount spent on fusion centers (in local, state and federal dollars) ran somewhere between $846 million and $1.27 billion over that period, and much more since then, since the number of fusion centers has grown from 40 to 77 between 2007 and 2012.

Searching online for evidence that fusion centers actually help solve crimes, one finds very few examples. The Department of Homeland Security has compiled what appears to be a nearly comprehensive list on its website of instances where fusion centers have effectively assisted law enforcement, even in the smallest capacity, in actual criminal cases (a fairly aggressive though not comprehensive Google search by your correspondent discovered only repeats of those cited by DHS). See their list of "Fusion Center Success Stories."

However, with 77 fusion centers active, DHS could only identify 22 "success stories," and reading through the details, in most of those instances the assistance was not particularly critical and law enforcement would have discovered the same leads and information through traditional investigative techniques. The GAO noted in a 2010 report (pdf) that "DHS has not set standard performance measures for the centers." And it shows.

The Constitution Project report (and speakers at their recent forum) assumed that fusion centers have a legitimate and necessary role to play, but I'm increasingly skeptical that's true. Spending on fusion centers has now run well into 10 figures, and those 22 "success stories" represent a pitifully poor return on investment for that level of taxpayer expenditure. So while I'm glad to see the Constitution Project offer detailed operational recommendations to protect privacy and prevent abuse, to me the bigger question is whether the strategy has demonstrated sufficient effectiveness to justify fusion centers' existence in the first place. Certainly if federal funding ran out, I suspect state and local governments would not be able to justify continuing them based on any rational cost-benefit analysis.

Grits understands why ACLU and the Constitution Project would fear civil liberties violations related to fusion centers, and on paper, at least, those concerns are justified. But often on such questions flat-out government incompetence can trump the potential for abuse, and IMO that's what's happened so far with fusion centers. If they were more effective, they could indeed pose a serious civil liberties threat. But from my observation their lameness has thus far outweighed any such dangers, and the bigger question becomes whether their continued existence can be justified at all given the minimal outcomes resulting from such vast expenditures. Based on the evidence available so far, IMO the answer is probably "no."

RELATED: "Fusion centers might be scary if they actually worked." And from the Collin County Observer, "What's wrong with the North Texas Fusion Center?"