Published by The Lawfare Institute
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Darren E. Tromblay has served the U.S. Intelligence Community, as an Intelligence Analyst, for more than a decade. He is the author of Political Influence Operations (Rowman & Littlefield, 2018) and the forthcoming Spying: Assessing US Domestic Intelligence Since 9/11 (Lynne Rienner) as well as the co-author of Securing U.S. Innovation (Rowman & Littlefield, 2016). Tromblay has been published by Lawfare, Just Security, the Hill, Small Wars Journal, Newsweek, Intelligence and National Security, International Journal of Intelligence and Counterintelligence, and the International Journal of Intelligence Ethics. He holds an MA from the George Washington University’s Elliott School of International Affairs, an MS from the National Intelligence University, and a BA from the University of California. Tromblay can be reached at [email protected]. The views expressed in this essay are entirely his own and do not reflect those of any U.S. government or other entity.
In the decade following 9/11, the U.S. federal, state, local and tribal governments acknowledged the need to share information and attempted to develop an infrastructure to facilitate this process. This effort consisted largely of cobbling together existing components (e.g. sub-federal fusion centers) under the aegis of the Federal Bureau of Investigation (FBI) and, subsequently, the Department of Homeland Security (DHS). After nearly two decades of reform—or at least change—it is apparent that the two primary federal intelligence agencies operating in the domestic space, the FBI and DHS, are not optimally structured to facilitate information sharing. Specifically, the Bureau’s Criminal Justice Information Services Division (CJIS)—an essential hub for bringing together federal and sub-federal data—should reside within DHS, given the latter’s role as the primary interlocutor between federal and sub-federal agencies via the National Network of Fusion Centers (NNFC).
Throughout the 20th century, the FBI was the only game in town when it came to sharing information with and among various federal and sub-federal agencies, all of which gathered intelligence as part of their respective investigations. In 1924, the FBI established its Identification Division as the national repository and clearinghouse for fingerprint records. The Bureau’s role in law enforcement information sharing expanded in 1967 with the introduction of the National Crime Information Center (NCIC). When it began operating, NCIC was a network of 15 state and municipal computers, which were linked to the FBI’s central computer in Washington, D.C. From this humble beginning, NCIC has grown into a system that provides a means to electronically exchange data with approximately six million federal and sub-federal entities for use in the investigation of local, state, tribal, federal and international crimes. It contains information for law enforcement entities on stolen property, wanted persons, missing persons, violent gangs, terrorists and other persons of interest. The FBI further enhanced its role as a point of information exchange in 1992, when it established CJIS, which consolidated a number of functions, including NCIC.
After 9/11 federal and sub-federal authorities made a concerted effort to prevent breakdowns in exchange of information, which terrorists could exploit to operate undetected. Although “information sharing” and “fusion” became buzzwords in the following decade, the reality is that fusion centers at the sub-federal level had been developing since at least the 1970s, when multiple law enforcement departments established information sharing networks in furtherance of combating criminal actors who crossed jurisdictional boundaries. In 2005, then-FBI Director Robert S. Mueller III launched the FBI’s fusion center initiative and directed the heads of field divisions to ensure coordination between the Bureau and all statewide fusion centers as well as significant regional centers. Then, in 2007, the FBI’s Directorate of Intelligence established an Interagency Integration Unit, which provided FBI headquarters oversight of field offices’ relationships with fusion centers. DHS’s evolution, however, changed the relationship between the federal government and fusion centers. With the Implementing Recommendations of the 9/11 Commission Act of 2007, the Secretary of Homeland Security became responsible for establishing a state, local and regional fusion center initiative within DHS. Through this initiative, DHS began providing fusion centers with operational and intelligence advice and assistance.
Since DHS assumed the lead for liaising with the National Network of Fusion Centers, the FBI’s involvement with these entities has declined. In 2009, DHS announced that, in conjunction with the FBI, it had designated 70 fusion centers. Several years later, however, it was difficult not to get the impression that the Bureau was packing up its marbles and going home: As of 2014, it had only 94 personnel—down from approximately 200 in 2007—assigned to fusion centers. New FBI requirements for participation, developed in 2011, included the demand that FBI management participate in the fusion centers’ governance structures. This decision, along with the diminishing resources the FBI deployed to fusion centers, suggested that the Bureau was reevaluating the allocation and use of its personnel for fusion center functions. By 2016, consistent with the trend of retrenchment, the Bureau reportedly had little permanent presence at fusion centers.
This realignment of both the formal and de facto responsibilities suggests that the FBI and DHS warrant new scrutiny to ensure that elements they contain are germane to their respective responsibilities and optimize each agency’s comparative advantage. With the Bureau largely out of the fusion center business and a separate agency assuming the FBI’s historical role as a point of law enforcement and intelligence coordination, its retention of the Criminal Justice Information Services Division makes little sense. Relocating CJIS from the FBI to DHS would help to reduce a potential point of failure in the sharing of information. The events leading up to the Parkland school shooting in February 2017 are just one illustration of the need for consolidation of information sharing functions under DHS. The FBI’s Public Access Line, the part of CJIS that fields public tips, received both an email and telephone warning about the potential for violence on the part of Nikolas Cruz, the individual charged with 17 counts of premeditated murder and 17 counts of attempted murder in connection with the shooting. Had CJIS been more closely tied to national network of fusion centers, this information may have been more readily available to the state and local participants who constituted the relevant regional center.
There is already a precedent for shifting elements of the FBI to DHS. As part of its creation, DHS absorbed certain FBI functions, including the National Infrastructure Protection Center (NIPC). The NIPC came into existence, under the auspices of the Bureau in 1998, as a result of Presidential Decision Directive 63, which defined the NIPC as the focal point for, among other things, federal threat assessment and response coordination on cyber issues. In March 2003, as a result of the Homeland Security Act of 2002, the NIPC was transferred to DHS. This move illustrated that the institutional makeup of the FBI was not sacrosanct and that its components could be redistributed in order to enhance national security.
The domestically-oriented intelligence enterprise is a continually evolving assemblage of actors—whether or not policymakers and agencies are comfortable with that fact. Domestic intelligence activities do not fit neatly under the auspices of the formal U.S. intelligence community. Instead, such activities incorporate federal, sub-federal and private sector entities. These entities will continue to interface in new ways as federal and sub-federal agencies’ jurisdictions for collection (e.g. the need to address exigencies introduced by the evolving cyber environment) change; as industry assumes an increasingly significant role as the gatekeeper to information of intelligence value; and as threats mutate (e.g. the homegrown violent extremist problem amounts to isolated incidents of crime by troubled individuals which makes it, realistically, the domain of sub-federal authorities). The federal agencies that provide a framework for this enterprise need to adapt accordingly.
The Criminal Justice Information Services Division is an essential hub for information sharing, but its existence within the FBI is a historical accident that is inconsistent with the context of the domestically-oriented intelligence enterprise of 2018. Fusion centers, which facilitate the sharing of federal and sub-federal information, are within the bailiwick of the Department of Homeland Security. Bringing CJIS under the auspices of DHS would therefore strengthen information sharing by consolidating the complementary network of fusion centers and CJIS functions within a single agency.
Correction: A previous version of this article misidentified the FBI's Criminal Justice Information Services Division as the Criminal Justice Information Sharing Divsion. (Oct. 18, 2018 2:25pm)