Homeland Security Watch

News and analysis of critical issues in homeland security

April 1, 2009

Fusion Centers: Liberty v. Security

Filed under: Intelligence and Info-Sharing — by Philip J. Palin on April 1, 2009

In Jane Harman’s opening comments for this morning’s hearing on fusion centers, she highlighted and criticized Bruce Fein’s op-ed in this morning’s Washington Times.  Fein’s subtitle asks, “An American Stasi operating in ‘fusion centers’?”

Russell “Papa” Porter, Director of the Iowa Intelligence Fusion Center, addressed the Fein commentary in his summary statement saying, “Mr. Fein claims that the police do not respect the First Amendment… I reject that assertion.”  Mr. Porter proceeded to note that the development of Fusion Centers have better ensured state and local training related to privacy and civil liberties and provide a more accountable framework to ensure appropriate attention to the protection of privacy and civil liberties.

Following  the first witness panel’s summary statements, Chairwoman  Harman returned to the Fein op-ed, saying , “I take personal offense” with the implications of many of the points made in the op-ed.  The Congresswoman then asked the witness panel to respond to a series of accusations drawn from Mr. Fein’s op-ed.

“True or false, do Fusion Centers spy on Americans?” the Chair asked.  Each witness, one-by-one, responded  that the assertion is false.

The controversy is fueled by a Prevention Awareness Bulletin issued by the North Central Texas Fusion Center and later made available to the ACLU.  The action by the Texas Fusion Center has been treated as a serious breach of guidelines by DHS and others.  Similar concerns were recently expressed in regard to the report of a Missouri Fusion Center.

(Please consider the preceding paragraphs the worst of real-time blogging, pounded out while the webcast was running.  I now need to attend a 11:00 meeting and will miss the rest of the hearing.  Please use the comment function to make your own report.)


Mr. Fein is not typical of the “usual suspects” who use explosive rhetroic in defense of civil liberties.  He was an Associate Deputy Attorney General under President Reagan and has long been associated with  more conservative organizations, including the American Enterprise Institute and the Heritage Foundation.

Mr. Fein is certainly a passionate civil libertarian.  The Bush administration’s apparent disregard for the Foreign Intelligence Surveillance Act prompted Mr. Fein to call for formal censure of the President.

In answering questions at this morning’s hearing, Mr. Fein returned again and again to the need for oversight of the fusion centers that does not depend on the executive branch alone.   He also agreed that intelligence gathering can be useful – and need not endanger civil liberties – if it is done in a manner that is tightly focused on criminal acts. 

While I am told no one quoted 28 CFR, Part 23 to Mr. Fein, it sounded as if he might support intelligence gathered in accordance with this existing federal regulation. 

There is a story circulating among law enforcement and intelligence officials on the West Coast that shortly after 9/11, some political appointees in the US Department of Justice pushed for “bending” 28 CFR, Part 23.  Whether the story is true or not, our civil liberties are probably advanced by the considerable pride that State and local officials have in remembering that they pushed back and chose to abide by the regulation’s requirement for reasonable suspicion or criminal predicate.

Perhaps the elements of 28 CFR, Part 23 should be enshrined in federal statute.

The formal testimony of Acting Deputy Officer for Programs and Compliance David D. Gersten, Office for Civil Rights and Civil Liberties is available from the DHS website.

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