DHS-supported fusion centers raise civil liberties concerns

Virginia Gov. Timothy Kaine on Tuesday ordered an investigation into the process used by the Virginia Fusion Center to create its 2009 terrorism threat assessment after critics complained the report unfairly targeted academic institutions and minority groups.

The report, required by law, was leaked to the public earlier this week. Fusion centers were created after the Sept. 11, 2001, terrorist attacks to help officials at all levels of government share threat information more effectively. The centers comprise law enforcement personnel from federal, state, local and tribal entities and receive funding from the Homeland Security Department.

The report noted that Virginia's proximity to Washington, the amount of extremist activity documented in the state and the concentration of critical infrastructure -- including military bases, the Pentagon and two nuclear power plants -- all make it a potential target of terrorist activity.

Critics are most upset by the report's depiction of academic institutions, including several historically black colleges and a Christian university, as potential recruiting grounds or havens for terrorist operatives.

"Based on our review of the facts thus far, we see no evidence to suggest that the universities referred to in the assessment pose any particular risk to public safety," Kaine said in a written statement. "It is improper to single out these institutions for special mention, even with the caveats contained in the report," he said.

Kent Willis, executive director of the American Civil Liberties Union of Virginia, said in a written analysis of the report that "fusion centers are becoming a breeding ground for overzealous police intelligence activities. . . . Any law enforcement official following the blueprint laid out in the report can only conclude that every racial minority, every student, every demonstrator, and every tourist taking a photograph is a potential terrorist."

There are 58 fusion centers, and they have long generated concern among civil rights advocates. The ACLU, in a report last summer, likened them to "a new domestic intelligence agency made up of over 800,000 operatives dispersed throughout every American city and town, filing reports on even the most common everyday behaviors."

In March, the organization sent a letter to David Gersten, Homeland Security's acting deputy officer for programs and compliance in the Office for Civil Rights and Civil Liberties, requesting the office investigate what it said was inappropriate intelligence gathering at a Texas fusion center.

Earlier this month in testimony before the House Homeland Security Subcommittee on Intelligence, Information Sharing and Terrorism Risk Assessment, Gersten said fusion centers, like some other law enforcement activities, could invoke civil liberties issues, "but the reality has not borne out the theories that have been advanced by some concerning fusion centers' actual activities."

"Fusion centers have been labeled in press accounts and other reports as 'mini-spy agencies' and 'domestic intelligence apparatuses.' Some say they have too much military involvement, too many private sector partnerships, ambiguous lines of authority, and untenable policies for suspicious activity reporting and the use of open source information," he said.

While acknowledging some problems with oversight, Gersten said most criticisms were myths or exaggerations.

"Because fusion centers are run by the states, direct oversight by the federal government presents real federalism issues," he said.

"One specific area that has been much in the media involves the difficulty in sharing information and providing threat assessments where protected activities, such as First Amendment free speech and assembly, are involved. Security personnel at all levels of government often struggle with this problem," Gersten said.

"For example, if a demonstration is going to occur at a federal facility, those charged with securing the facility would be negligent if they failed to ensure the safety of the facility and those within. Yet right-sizing security measures would be impossible without knowing the nature of the protest, and whether it is likely to cause security or operational problems. This necessarily requires at least a limited inquiry into the nature of a group planning a protest, and whether it espouses violence, civil disobedience, or other potentially disruptive tactics. At the same time, we must be very careful to ensure that the government is not infringing or chilling an individual's right to speak freely and to protest," he said.