Carrie Cordero on Fusion Centers

As Matt Waxman noted last month, the Senate Permanent Subcommittee on Investigations recently published a report entitled, "Federal Support for and Involvement in State and Local Fusion Centers." Having been previously involved in the development of various guidelines regarding the collection of intelligence information within the United States and related issues, and currently co-teaching a course on Intelligence Reform, the creation and development of fusion centers is of interest.

I am not generally a skeptic, but I always take these types of reports with a grain of salt, because invariably the subjects of them are unhappy with the reports, and oftentimes, with reason. Reports like this are sometimes based on outdated information. Other times they do not take into account more recent developments or improvements. Having observed a number of these types of reports from both Congress as well as within the Executive Branch, they are often far from perfect. But in this case, I hope this report will not be ignored. The Committee report should be a call to action on fusion centers and their role in counterterrorism: if the centers are going to continue to receive federal funds, there needs to be more accountability and measurable results.

In short, I suspect that this report confirms what members of the community have known or suspected for some time. Fusion centers were an understandable reaction after 9/11. They were created under the umbrella of the newly created DHS by state and local authorities, with the goal of countering both perceived and real information sharing challenges with respect to international terrorism. But there were always questions as to whether they would be effective in preventing future acts of terrorism given that the centers had neither investigative authorities nor responsibilities. Those clearly fell to the FBI's Joint Terrorism Task Forces within the United States, which were and are comprised of FBI personnel as well as representatives from other federal, state and/or local law enforcement entities.

The early years provided indicators that fusion centers would not be particularly effective in protecting against terrorist activity. I'll highlight two. One clue was the lack of consistent mission. Each fusion center was created as either a state or local initiative. They were not, as some had the impression, directed and controlled by DHS. They were not fully funded by DHS. They were not, even, required to have counterterrorism as their primary mission. And so each fusion center grew organically based on the mission, funding, and desires of a particular city, state or region. The centers have grown far beyond their post-9/11 purpose of facilitating terrorism related information sharing. They now serve as state, local or regional hubs for information sharing on a wide range of public issues in addition to terrorism, such as domestic preparedness and incident response, special events security, law enforcement and public health, as examples.

A second clue was the lack of required and uniform operational and U.S. persons guidelines. In 2006, the Department of Justice and DHS produced guidelines for the operation of fusion centers. But these were recommended guidelines, not required guidelines. Voluntary guidelines do not lead to meaningful implementation, oversight or accountability. The Constitution Project's recent report highlights some of the more problematic activity that results from inadequate training and oversight.

Counterterrorism was never a particularly good fit for fusion centers to begin with because: (1) effective counterterrorism requires sophisticated intelligence collection and investigative activities that should and do occur under appropriate guidelines that are protective of civil liberties and privacy; (2) the lack of federal direction and control provided an environment where the centers developed inconsistent missions, resources and training; and (3) efficient handling of a terrorism threat requires, at the end of the day, a nerve center that centralizes the body of intelligence information, directs and controls the investigative and collection activities, and makes decisions that lead to disruption.

So where does that leave fusion centers? I see three possible options. One path is to shutter the centers all together. Given the belt-tightening under the current budget environment, there might be a decent argument that the home agencies need the personnel back who are detailed to fusion centers, and unless a center has demonstrable results that they are either adding to the national security mission or enhancing law enforcement efforts, perhaps they should be abandoned. Before taking that drastic step, however, significant study would need to be done as to whether fusion centers are making a meaningful contribution to non-terrorism issues such as law enforcement, and public health and safety within their area of responsibility. A second path would be to eliminate or significantly reduce the federal role in fusion centers and make them state and local driven, funded and implemented projects. For those regions that see value, they will continue; those that don't won't.

A third path would be harder, but perhaps effective in the long run.  Fusion Centers could be re-purposed in a way that meets a different national priority objective, other than counterterrorism. One idea, for example and discussion, is that fusion centers be re-purposed to incorporate a significant counternarcotic/countercartel/countergang mission. According to reports, the Mexican drug cartels, for example, currently have a presence in over 200 U.S. and Canadian cities. A recent Washington Post article highlighted the prevalence of drug trafficking related gang activity in the U.S. This mission might make a better fit than the counterterrorism mission because there is a greater local law enforcement component on daily basis. In addition, much of the information involved in this area would be unclassified, when compared to international terrorism intelligence.  And, these issues still involve significant information sharing requirements that might make good use of the fusion center infrastructure that has been laid. Finally, fusion center involvment on this mission could help fill the gap left when other federal resources were diverted to counterterrorism after 9/11. If fusion centers are re-purposed and remain under DHS influence and funding, however, they need to operate with a common mission in support of a national priority, and they need to be required to operate under a shared set of guidelines, training and accountability.