[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]



                     THE FUTURE OF FUSION CENTERS: 
                     POTENTIAL PROMISE AND DANGERS

=======================================================================

                                HEARING

                               before the

               SUBCOMMITTEE ON INTELLIGENCE, INFORMATION
                 SHARING, AND TERRORISM RISK ASSESSMENT

                                 of the

                     COMMITTEE ON HOMELAND SECURITY
                        HOUSE OF REPRESENTATIVES

                     ONE HUNDRED ELEVENTH CONGRESS

                             FIRST SESSION

                               __________

                             APRIL 1, 2009

                               __________

                           Serial No. 111-15

                               __________

       Printed for the use of the Committee on Homeland Security
                                     

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  Available via the World Wide Web: http://www.gpoaccess.gov/congress/
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                     COMMITTEE ON HOMELAND SECURITY

               Bennie G. Thompson, Mississippi, Chairman
Loretta Sanchez, California          Peter T. King, New York
Jane Harman, California              Lamar Smith, Texas
Peter A. DeFazio, Oregon             Mark E. Souder, Indiana
Eleanor Holmes Norton, District of   Daniel E. Lungren, California
    Columbia                         Mike Rogers, Alabama
Zoe Lofgren, California              Michael T. McCaul, Texas
Sheila Jackson Lee, Texas            Charles W. Dent, Pennsylvania
Henry Cuellar, Texas                 Gus M. Bilirakis, Florida
Christopher P. Carney, Pennsylvania  Paul C. Broun, Georgia
Yvette D. Clarke, New York           Candice S. Miller, Michigan
Laura Richardson, California         Pete Olson, Texas
Ann Kirkpatrick, Arizona             Anh ``Joseph'' Cao, Louisiana
Ben Ray Lujan, New Mexico            Steve Austria, Ohio
Bill Pascrell, Jr., New Jersey
Emanuel Cleaver, Missouri
Al Green, Texas
James A. Himes, Connecticut
Mary Jo Kilroy, Ohio
Eric J.J. Massa, New York
Dina Titus, Nevada
Vacancy
                    I. Lanier Avant, Staff Director
                     Rosaline Cohen, Chief Counsel
                     Michael Twinchek, Chief Clerk
                Robert O'Connor, Minority Staff Director

                                 ------                                

 SUBCOMMITTEE ON INTELLIGENCE, INFORMATION SHARING, AND TERRORISM RISK 
                               ASSESSMENT

                     Jane Harman, California, Chair
Christopher P. Carney, Pennsylvania  Michael T. McCaul, Texas
Yvette D. Clarke, New York           Charles W. Dent, Pennsylvania
Ann Kirkpatrick, Arizona             Paul C. Broun, Georgia
Al Green, Texas                      Mark E. Souder, Indiana
James A. Himes, Connecticut          Peter T. King, New York (Ex 
Vacancy                                  Officio)
Bennie G. Thompson, Mississippi (Ex 
    Officio)

                    Thomas M. Finan, Staff Director
                        Brandon Declet, Counsel
                   Natalie Nixon, Deputy Chief Clerk
               Deron McElroy, Minority Subcommittee Lead








                            C O N T E N T S

                              ----------                              
                                                                   Page

                               Statements

The Honorable Jane Harman, a Representative in Congress From the 
  State of California, and Chair, Subcommittee on Intelligence, 
  Information Sharing, and Terrorism Risk Assessment.............     1
The Honorable Michael T. McCaul, a Representative in Congress 
  From the State of Texas, and Ranking Member, Subcommittee on 
  Intelligence, Information Sharing, and Terrorism Risk 
  Assessment.....................................................     3

                               Witnesses

Sheriff Leroy D. Baca, Los Angeles County Sheriff's Department:
  Oral Statement.................................................     5
  Prepared Statement.............................................     7
Robert Riegle, Director, State and Local Program Office, Office 
  of Intelligence and Analysis, Department of Homeland Security:
  Oral Statement.................................................    11
  Prepared Statement.............................................    13
Russell M. Porter, Director, State of Iowa Intelligence Fusion 
  Center:
  Oral Statement.................................................    19
  Prepared Statement.............................................    21
John E. Bateman, Assistant Commander, Bureau of Information 
  Analysis, Texas Department of Public Safety:
  Oral Statement.................................................    27
  Prepared Statement.............................................    29
Bruce Fein, Principal, The Litchfield Group:
  Oral Statement.................................................    40
  Prepared Statement.............................................    42
Ned Norris, Jr., Chairman, Tohono O'odham Nation:
  Oral Statement.................................................    47
  Prepared Statement.............................................    49
David D. Gersten, Acting Deputy Officer for Programs and 
  Compliance, Department of Homeland Security:
  Oral Statement.................................................    51
  Prepared Statement.............................................    53

 
      THE FUTURE OF FUSION CENTERS: POTENTIAL PROMISE AND DANGERS

                              ----------                              


                        Wednesday, April 1, 2009

             U.S. House of Representatives,
                    Committee on Homeland Security,
    Subcommittee on Intelligence, Information Sharing, and 
                                 Terrorism Risk Assessment,
                                                    Washington, DC.
    The subcommittee met, pursuant to call, at 10:08 a.m., in 
Room 311, Cannon House Office Building, Hon. Jane Harman [Chair 
of the subcommittee] presiding.
    Present: Representatives Harman, Clarke, Green, Himes, 
McCaul, Dent, and Souder.
    Ms. Harman [presiding]. The hearing will come to order.
    Good morning, everyone. Good morning.
    Today's hearing by the Subcommittee on Intelligence is 
entitled ``The Future of Fusion Centers: Potential Promise and 
Dangers.''
    In my view, fusion centers hold great promise. Homeland 
Security Secretary Janet Napolitano, obviously, agrees, and has 
said recently that fusion centers are ``the centerpiece of 
State, local, and Federal intelligence sharing for the 
future.''
    They integrate information and intelligence from Federal, 
State, local, and Tribal governments, as well as the private 
sector, to provide a more accurate picture of risks to people, 
infrastructure, and communities that law enforcement can 
actually use.
    They are not a new phenomenon. For decades, State police 
agencies have run criminal intelligence and analytic units. But 
the fusion centers of today differ from their predecessors in 
that they are intended to broaden sources of data for analysis 
and integration to include all hazards.
    Right now, fusion centers are serving as a critical tool in 
fighting the violence along the southwest border. They serve as 
clearing houses of sorts for all the intelligence that law 
enforcement agencies are gathering on the ground, regarding the 
smuggling of guns and drugs. Make no question about it; these 
issues are absolutely critical both for U.S. and Mexican 
security.
    They support law enforcement after investigations like the 
one in northern Mexico, in which a group of hit men kidnapped 
nine police officers, based on the orders of a cartel, and then 
murdered and tortured six of them.
    Thankfully, some good came of this tragedy. One of the 
Mexican military officers involved reached out to an American 
colleague, asking him to inspect the weapons taken from the 
cartel's kidnappers. American law enforcement was able to trace 
the weapon back to its origin and locate the dealer.
    Senator John Kerry wrote a very good op-ed in the Los 
Angeles Times on Monday about this incident. He offers 
recommendations for how the United States and Mexico can 
develop better joint response to violence along the border and 
build trust: By creating better situational awareness of the 
movement of drugs and guns across the border through the 
sharing of intelligence.
    I have long felt, as most of you know--based on my years 
and years and years and years of experience on the Intelligence 
Committee, and focused on these issues--that the sharing of 
intelligence, done right, is the tip of the spear in combating 
terror attacks, and, obviously, the kind of violence that we 
are now seeing between the United States and--between these 
Mexican drug cartels and the Mexican government.
    Fusion centers near the southwest border, like the Arizona 
Counter Terrorism Intelligence Center, ACTIC, are doing just 
what I am talking about.
    ACTIC, in partnership with the El Paso Intelligence Center, 
called EPIC, is providing information to first-preventers in 
the field, about the south-bound smuggling patterns of guns. 
ACTIC is also developing analytic products to inform law 
enforcement about the spike in kidnappings in Phoenix--the 
epidemic spike in kidnappings in Phoenix.
    But it is more than analysis. Fusion centers also identify 
intelligence gaps in order to help law enforcement connect the 
dots.
    States developed fusion centers after 9/11 because the 
Federal Government was slow to improve information sharing--not 
only vertically, with State and local law enforcement, but also 
horizontally, across our departments and agencies.
    This committee has said this many times that it won't be a 
bureaucrat in Washington who will thwart the next terror 
attack. It will be a cop on the beat, familiar with the rhythms 
and nuances of her neighborhood, who will notice something 
suspicious and be best positioned to do something about it.
    Fusion centers are uniquely local for this reason. One size 
cannot fit all, because communities and their populations are 
diverse, and so are their geographies. So it is fusion centers, 
in my view, who are the tool, hopefully, to empower that cop to 
know what to look for and what to do.
    But steps need to be taken to get this effort right. Let me 
repeat that, because we are going to hear some testimony soon 
that is strongly against the existence of fusion centers. Steps 
need to be taken to get this effort right.
    This subcommittee held two hearings in the last Congress to 
address efforts underway to provide fusion centers with the 
mission focus, structure, and privacy and civil liberties 
resources they need to protect our homeland, while preserving 
our Constitution, which, obviously, is necessary to protect all 
of us.
    Today's hearing is intended to continue the examination of 
the challenges that fusion centers face, and to dispel some of 
the myths that still exist. For example--this is timely--in 
today's Washington Post, one of our witnesses, Bruce Fein, lays 
out what, in my view, is an Orwellian view of fusion centers.
    He uses phrases like ``French Bourbon monarchy disease,'' 
and says, ``Any dissidents or political dissident is suspect to 
fusion centers.'' He claims that the unfortunate situation in 
Texas, which I am sure will be addressed by witnesses--a 
situation which DHS has rectified--could have occurred in East 
Germany's Stasi.
    Well, we will address these claims. I am pleased that Mr. 
Fein is here to present his point of view. I welcome him as a 
witness. I urge our other witnesses, please, to read this op-
ed, and include in your testimony, and certainly in answer to 
questions, your views of what I think are alarmist and over-
the-top statements about what fusion centers do.
    Again, welcome to all of you. I now yield to the Ranking 
Member, Mr. McCaul, for an opening statement.
    Mr. McCaul. I thank the Madam Chair, and thank you for your 
very strong leadership in this area. It is probably one of the 
most important areas facing the Nation.
    You know, when I was a Federal prosecutor, I was working 
with a new entity called the Joint Terrorism Task Forces. The 
idea of fusion centers was an idea that was conceptual, but we 
were putting that together. I am very pleased to see that we 
have them, and they are working, and they are protecting 
Americans.
    As Madam Chair mentioned today, this hearing does focus on 
fusion centers, and their evolving role in securing our 
homeland. As we all know, fusion centers are a major part of 
Homeland Security information-sharing environment. They were 
established primarily so that information sharing is extended 
to all levels of government, at the Federal, State, and local 
level.
    As the terrorist attacks of 9/11 illustrated, it is 
critical that State, local, and Tribal entities be part of the 
post-9/11 information-sharing environment. Fusion centers have 
now been created throughout the Nation, with several centers in 
my home State of Texas alone.
    While much progress has been made, some challenges remain. 
Funding, personnel, training still need to be fully addressed, 
as these centers move forward. It is also critical that these 
centers are established and operate under proper guidelines. As 
part of the training and baseline capabilities of these 
centers, we need to ensure that privacy and civil liberties 
protections are fully integrated.
    I believe, as I know Chair Harman does, that privacy and 
security, when done right, can coexist and flourish together.
    So I look forward to examining these vital issues with our 
witnesses. I look forward to the testimony. I want to thank the 
witnesses for taking time out of their busy schedules to come 
here and educate us here today.
    With that, Madam Chair, I yield back.
    Ms. Harman. I thank the gentleman.
    Other Members of the subcommittee are reminded that under 
committee rules, opening statements maybe submitted for the 
record.
    I now welcome our first panel, beginning with my sheriff, 
Lee Baca, who runs 6-minute miles and commands the Los Angeles 
County Sheriff's Department, the largest sheriff's department 
in the United States, which directly protects over 4 million 
people.
    Sheriff Baca is a 44-year veteran of the department, and 
was first elected sheriff in December 1998. He was reelected to 
his third term in June 2006. Today, over 18,000 sworn and 
professional staff serve under his leadership.
    His department is the law enforcement provider to 40 
incorporated cities, 90 unincorporated communities, and nine 
community colleges in Los Angeles County. It also protects 
hundreds of thousands of daily commuters served by the Los 
Angeles Metropolitan Transit Authority, and the Rapid Rail 
Transit District.
    He is also the director of Homeland Security Mutual Aid for 
California Region One, serving 13 million people in both Los 
Angeles and Orange Counties.
    Welcome, Lee.
    Our second witness, Robert Riegle, serves as the director 
of State and local government program office, within the Office 
of Intelligence and Analysis at the Department of Homeland 
Security.
    Welcome, Mr. Riegle.
    As the senior intelligence officer, Mr. Riegle has 
spearheaded the Department's fusion center efforts. He is the 
DHS representative to the Department of Justice's Global 
Justice Initiative, the co-chair of the National Fusion Center 
Coordination Group, and an advisory member of the Criminal 
Intelligence Coordinating Council.
    Prior to working at DHS, Mr. Riegle worked at Booz Allen in 
the Strategic Communications Area, and at the Defense 
Intelligence Agency as a National Intelligence Support Team, 
NIST, intelligence specialist, serving in Operations Iraqi 
Freedom, Enduring Freedom, and Noble Eagle.
    Our third witness, who is well-known to this subcommittee, 
and to me, Russ Porter, is the director of the State of Iowa's 
Intelligence Fusion Center and the Iowa Department of Public 
Safety Intelligence Bureau. Among the State, national, and 
international law enforcement intelligence organizations, with 
which he is affiliated, Mr. Porter is now serving his second 
term as general chairman of the Law Enforcement Intelligence 
Unit, chairman of the Criminal Intelligence Coordinating 
Council, and is chairman of the Global Intelligence Working 
Group.
    He is also a member of the Interagency Threat Assessment 
and Coordination Group, known as ITAC-G, Advisory Council. In 
August 2002, Mr. Porter co-wrote a report that called for the 
creation of both a national criminal intelligence sharing plan, 
and a coordinating council. State and local fusion centers have 
their roots in his recommendations.
    So, welcome, Papa Porter.
    Our fourth witness, John Bateman, is the assistant 
commander with the Texas Department of Public Safety's Bureau 
of Information and Analysis.
    Mr. McCaul, I understand that you would like to introduce 
Mr. Bateman.
    Mr. McCaul. Thank you, Madam Chair.
    I am proud and honored to introduce an individual from my 
home State and home town of Austin, Texas, Mr. Bateman. Mr. 
John Bateman is the assistant commander of the Bureau of 
Information Analysis at the Texas Department of Public Safety.
    Assistant Commander Bateman began his 25-year law-
enforcement career in 1984, as a member of the United States 
Army Military Police Corps, assigned to the 1st Calvary 
Division at Fort Hood, Texas.
    After his military service, Mr. Bateman worked for the Bell 
County Sheriff's Office, in Belton, Texas, before joining the 
Texas Department of Public Safety in 1989.
    He is a 1984 graduate of the U.S. Army Military Police 
School, a graduate of the 1989 Texas DPS recruit school, and a 
graduate of Weatherford College, where he became a member of 
the Phi Theta Kappa National Honor Fraternity.
    In 2001, he was the honor graduate at the Texas DPS Law 
Enforcement Polygraph School, and, in 2006, graduated from the 
FBI National Academy. He holds a polygraph examiner's license, 
and is certified as a Masterpiece Officer by the Texas 
Commission on Law Enforcement Officer Standards and Education.
    We look forward to hearing from him today. I thank him for 
being here.
    Thank you, Madam Chair.
    Ms. Harman. Thank you, Mr. McCaul.
    Without objection, the witnesses' full statements will be 
inserted in the record. I would now ask each of you, starting 
with Sheriff Baca, to summarize your statement for 5 minutes. 
There is a timer. It will start blinking at you, and something 
really bad will happen if you exceed the time.

    STATEMENT OF SHERIFF LEROY D. BACA, LOS ANGELES COUNTY 
                      SHERIFF'S DEPARTMENT

    Sheriff Baca. Thank you very much. I am glad to be here. I 
would like to just quickly get into the testimony.
    First of all, JRIC, Joint Regional Intelligence Centers, 
are a model. Los Angeles is pleased to have had one of the 
first in the United States. Chief Bill Bratton, myself, and 
Steve Tidwell, the former assistant director of the FBI, are 
the creators of this fusion center.
    What is amazing about it to date, is that the productivity 
and coordination of vital information is being done, whether it 
is on public transportation issues, aviation issues, port 
security issues; whether it is domestic terrorism working group 
strategies that are necessary; whether it is combing Federal 
and local public health designs that are necessary for what we 
would do in a first responder environment, regarding all of the 
chemicals and HazMats, and the cyber-type offenses that would 
occur.
    We also have extensive planning in that regard. We have a 
maritime security council, which is very, very productive, and 
meets quarterly. Then, of course, there is a terrorist 
screening center.
    When you look at it all, our Joint Regional Intelligence 
Center has 364 intelligence products that have been produced 
this past year. It is literally a communications center, one 
that is very essential in models where threats and operational 
responses can be planned.
    I think what is great about this is that, No. 2, we have a 
private sector outreach. That means that there are many 
business community leaders that put together their information 
and strategy of resources that are private sector driven, 
whether it is cranes, shovels, a various amount of 
transportation models, that are necessary in the event of 
evacuation.
    Third, there are local law enforcement--third, the local 
law enforcement community has a robust amount of ideas as to 
how to best protect our Nation. So my first important point 
regarding our positives is that we need to continually be 
involved with the development of the policy of our Federal 
partners, so that we are not operating in two separate domains 
of thought.
    Fourth, there is a need for more information sharing. 
Clearly, we are at the emerging stages of a very new 
department. But more can be done. I endorse the comments by my 
colleague, Sheriff Gillespie, regarding ITACG, and that is the 
core mission to improve the sharing of classified information 
is still an on-going process that needs to improve. We need to 
do more in that regard, and look at this from a standpoint of 
true partnering.
    So, therefore, in looking at the next point, which--the 
fusion centers themselves--when you look at as a process--they 
need to have sustainable funding from the Federal Government. 
We cannot do this on local dollars alone.
    The next point is this: When it comes to the Terrorism 
Liaison Officer program, again, the communication to 
communicate laterally--the responsibility to communicate 
laterally to the thousands of police agencies across America, 
which constitute a web of safety for America, is an eminent 
unmet need right now. Fusion centers can be coordinating 
agencies as well, for all of the police departments in America.
    Next, when it comes to civil liability and transparency, we 
are operating under the rules of the code of Federal Regulation 
28, Part 23. I have been trained, and others have been trained, 
in what these rules mean. Therefore, we will continue to do 
this training, because it is an on-going obligation of any 
fusion center.
    Next, the committee should mandate the provisions of the 
Law Enforcement Assistance Program. We cannot operate alone, 
without all of the seven major recommendations of this program. 
We support them. We look upon the committee here, and also urge 
Congress to provide appropriations to carry out the critical 
law enforcement programs.
    Until your report is fully adopted, our intelligence 
efforts will have limited success.
    Now, the future of fusion centers are simply this: Under a 
national standard, fusion centers should serve all cities and 
counties as a lateral network of intelligence products, which, 
through JTTF and DHS and INA programs, will vertically be 
shared with the National Counterterrorism Center.
    The network will improve our search for terrorists and 
their supporters, and leverage the skills found in JRICs 
serving major urban areas, to rural communities.
    I believe all available means, whether technological, 
social, or political, and, thus operational, must be examined 
to ensure that the events of 9/11 are not repeated.
    Finally, I will conclude by saying that I want to comment 
Rob Riegle and the I.A. They have been a tremendous help with 
technical assistance for our JRICs. We have Joel Cohen, who is 
there, in the local office that we operate. With their 
assistance, we have been able to get as far as we are today.
    My full testimony is on the record, with what I provided. 
Thank you.
    [The statement of Sheriff Baca follows:]
                  Prepared Statement of Leroy D. Baca
                             April 1, 2009
    The vision for the Los Angeles Joint Regional Intelligence Center 
(JRIC) emerged after the events of 9/11. Its purpose was to engage 
local law enforcement as a national resource to detect and prevent a 
future terrorist attack within the Los Angeles-Southern California 
Region. The Los Angeles JRIC governance board recognized that the 
JRIC's success required a fused working relationship with the Joint 
Terrorism Task Force managed by the Federal Bureau of Investigation.
    The Los Angeles JRIC began quickly because Los Angeles County was 
already ahead of much of the country where a long-standing Joint 
Terrorism Task Force, leveraging the skills and abilities of local, 
State, and Federal law enforcement officers to combat terrorism already 
existed. Additionally, the Los Angeles Terrorism Early Warning (TEW) 
group had been active since 1996, sharing information among members of 
law enforcement, the fire service, public health, the military, and 
academia from local, State, and Federal agencies. Each participant of 
the TEW had an equal voice in the development of tactics, techniques, 
procedures, and protocols.
                          promise and dangers
The JRIC is the Model
    More than 5 years ago, leaders from the FBI, Los Angeles Police 
Department, and Los Angeles County Sheriff's Department decided to 
expand the TEW concept and join together to create a model for 
intelligence fusion and sharing centers. The vision became a reality in 
July 2006 with the grand opening of the Los Angeles Joint Regional 
Intelligence Center (JRIC). Using the unique analytical processes 
pioneered by the TEW, that combines the efforts of law enforcement, 
fire service and public health personnel, analysts from a variety of 
agencies and disciplines provided an expansive view of trends and 
potentials which could indicate a pending terrorist attack. I believe 
that the JRIC is the model for the fusion center concept. It has been 
recognized on many occasions for its pioneering efforts in exploring 
prison and jail radicalization where the efforts of correctional 
services experts assigned to the JRIC has led to a State-wide, 
networked, group who routinely share information on the radicalization 
issue. The JRIC was also the first to include personnel from the fire 
service, public health, emergency medical, hazardous materials, and 
bomb squads as full partners who provide subject matter expertise for 
the intelligence products delivered to the JRIC clientele.
    The JRIC has also served as an example for the Terrorism Liaison 
Officer (TLO) outreach program. The JRIC was the first center to gain 
State Peace Officer Standards and Training (POST) approval for its TLO 
basic certification course. More than 500 TLO's have been trained by 
the JRIC staff and are certified by the State of California.
    The JRIC has a bright future and together with our Federal, State, 
and local partners, we are aggressively pursuing new ways to integrate 
our disparate agencies into a seamless network of information sharing 
cooperatives. I believe that the future belongs to a networked fusion 
center concept and its promise of local, State, tribal, and Federal 
integration.
Private Sector Outreach
    Outreach from the JRIC is not limited to public safety personnel. 
Shortly after 9/11, I developed the Homeland Security Advisory Council 
(HSAC) in an effort to network corporate leaders with the work of the 
JRIC. HSAC is comprised of senior corporate leaders from Los Angeles 
and Orange Counties. Members of the HSAC provide technical, political, 
and financial support to our counter-terrorism mission. Through their 
large sphere of influence they also provide thousands of eyes and ears 
via corporate security departments who have shared dozens of incidents 
of investigative interest to the JRIC.
Local Law Enforcement Must Have Input Into National Fusion Center 
        Policy
    The major impediment to more functional fusion center operations is 
the lack of equal representation and participation in the development 
and implementation of standard policy for fusion centers and homeland 
security matters. In many instances across the country, fusion centers 
evolved from TEW groups. TEWs were developed locally with 
representation and participation from law enforcement, the fire 
service, public health, the military, and academia. The TEW concept was 
scalable to the needs of the local participants and sensitive to the 
local population. With the growth in the number of fusion centers 
nationally, there is an effort to standardize the operations of these 
centers. It is in this standardization effort that local leaders must 
have significant input to policy development and authority over 
implementation. I am not confident that policy makers at the Federal 
level have a clear understanding of the information needs of local law, 
fire, and health departments. Additionally, each fusion center exists 
in a local area and must be sensitive to differences in demographics, 
population size, and political climate. One size does not fit all and 
any attempt to constrain local input into national policy development 
is a mistake. We recommend that Department of Homeland Security 
Intelligence & Analysis (DHS I&A) establish an Advisory Panel from the 
major cities and counties. This group would provide guidance through 
direct input on new products and services to be provided by DHS, 
including threat advisories and other intelligence products. The Under 
Secretary for Intelligence and Analysis I&A would receive support and 
technical assistance across a wide range of issues, including fusion 
centers, infrastructure protection, and threat assessments. 
Furthermore, we ask for your support to build an integrated national 
intelligence capability to counter terrorism and protect our 
communities from crime through the Major Cities Chiefs Intelligence 
Commanders Group. This group strengthens and coordinates the 
intelligence capabilities and operations of law enforcement agencies in 
major metropolitan areas. To date, this vital network of intelligence 
resources has been ignored and not funded by Federal agencies. We ask 
the committee to support this effort so that your objectives may be 
realized.
Lack of Information Sharing From Federal Agencies
    With all the positive things that have occurred in the past several 
years, there are still lingering obstructions to information sharing 
between the Federal Government and local police agencies. A major 
impediment to the success of the fusion center concept is the 
bifurcated information flow from Federal agencies that collect 
intelligence. The FBI has an analysis component that provides 
intelligence to their agents through the Joint Terrorism Task Force 
(JTTF). The JTTF is an investigative body and is not responsible for 
the dissemination of intelligence to local authority. The JRIC is 
fortunate in that a JTTF Counter-Terrorism squad is physically located 
within JRIC workspace. This has mitigated many of the information 
sharing problems experienced by other fusion centers. However, a local 
Task Force Officer (TFO) may not share information with his or her home 
agency without demonstrating the receiving entity's specific ``need and 
right to know.'' In this regard, I endorse the recent comments made in 
front of this committee by my colleague, Sheriff Gillespie regarding 
the Interagency Threat Assessment and Coordination Group (ITACG). 
Although its core mission is to improve the information sharing from 
classified sources between the intelligence community and front-line 
``first preventers,'' the ITACG is limited to editing intelligence and 
returning those products to originating agencies where the information 
may or may not reach State and local law enforcement personnel. 
Policies and procedures must be developed to fully brief an Incident 
Commander in the field about information that may be crucial in 
planning the response to a significant event.
    Additionally, ``Federally coordinated intelligence products'' 
coming out of the NCTC have not met the needs of local law enforcement 
in either subject matter or timely distribution. Fusion centers with 
responsibility for large geographic areas (like the JRIC) require 
meaningful and expedient national information to ``Fuse'' with locally 
generated collection in order to provide clear situational awareness to 
those who will be responsible for sending first responders to the 
after-effects of a terrorist attack. The safety of the citizens of our 
jurisdictions and the wise expenditure of scarce resources depends in a 
large part on timely, accurate, and actionable information from the 
Federal Government. This is especially true during an event that occurs 
overseas. Local leaders should not have to rely on media outlets for 
information when agents from our own Government are on-scene and 
reporting to their home agencies. This type of information is critical 
to local situational awareness and potential response and therefore, 
must be shared immediately. To help remedy this situation, we ask that 
ITACG expand and empower its outreach components to include access to 
training and use of intelligence systems and databases. The ITACG 
should be authorized as an approved dissemination point for State and 
local fusion centers Nation-wide. IATCG liaison personnel and desk 
officers are necessary to maintain a flow of current intelligence and 
must have authority to release information to State and local agencies.
Fusion Centers Must Have Sustainable Funding From Federal Government
    The JRIC (as well as many other fusion centers) suffers from a lack 
of sustainable funding. The FBI and local law enforcement have been 
extremely generous in providing much of the funding and personnel 
necessary to cover the start-up and maintenance costs of the JRIC. To 
sustain these personnel, technological, and logistical requirements in 
good times and bad are a significant drain on local budgets. Each year 
the JRIC struggles with accumulating enough funding from the local 
participants and various UASI and SHSGP grants just to remain 
functional. In the past, funds from the Law Enforcement Terrorism 
Prevention Program (LETPP) were also available as a separate funding 
source for this purpose at a minimum of $500 million. However, with the 
existing grant restrictions relative to personnel and operational 
needs, and the elimination of LETPP as a separate funding source, the 
future sustainment of the JRIC is uncertain. I believe that only 
sustainable funding through the Department of Homeland Security will 
ensure the critical efforts of the JRIC, and fusion centers across the 
Nation are not in danger of curtailment. Therefore, I am recommending 
to Congress that the LETPP grant be reestablished under the authority 
and administration of the Department of Homeland Security's Assistant 
Secretary for State and Local Law Enforcement. This will ensure that 
vital funding for our prevention efforts are no longer diluted within 
the existing grant structure, and the future of fusion center 
operations to perform their role in National Security will be secure.
Terrorism Liaison Officer Program
    One endeavor operating out of the JRIC that has national relevance 
is the Terrorism Liaison Officer (TLO) program. Originated shortly 
after 9/11, this effort seeks to create a network of trusted agents 
within each law enforcement, fire, and health agency in Los Angeles 
County. These TLOs are committed to passing critical information from 
the JRIC to their field assets as well as answering requests for 
information. Numerous leads of investigative interest have been 
generated by local police officers, firefighters, and health 
professionals as a result of this program: This level of intelligence-
based connectivity between field personnel is unprecedented and has 
enabled the JRIC to have the highest levels of situational awareness 
possible. Information provided by the TLO network contributes to the 
development of intelligence that is disseminated weekly to the 
executive staff of participating agencies, field operators, and line 
personnel. The TLO network also serves as the foundation for the 
implementation of the recently developed national Suspicious Activity 
Reporting (SAR) program, which the Major Cities Chiefs supports. 
Without the consistent messaging and training provided by the TLO 
coordinators, critical information, including SARs, from the field may 
go unreported. Currently, there are only two full-time personnel 
assigned to the TLO program. These two individuals are responsible for 
the coordination of information flow from seven counties comprised of 
89 independent agencies in an area of 8,000 square miles. Other than 
these two individuals, each TLO in the JRIC area of responsibility is 
handling these duties collateral to a regular, full-time, assignment.
    Another example of the need for sustainable funding is the critical 
assistance provided by contract analysts. These analysts arrive at the 
JRIC already trained and possessing the requisite security clearances 
to begin working immediately. Without the help of these highly trained 
professionals, JRIC products would lack the sophistication that results 
in more actionable information being disseminated to the field. I 
propose that with refunding of LETPP commensurate with lessened 
restrictions on expenditures, such as the ability to hire personnel, 
these additional TLO and Analyst positions can be authorized to ensure 
that critical information from the field does not go unreported or 
unanalyzed.
Civil Liability and Transparency
    Civil liability and operational transparency is another major 
challenge faced by fusion centers. The public will not accept 
intelligence collection that does not adhere to privacy requirements 
demanded by the Constitution. Information collection and intelligence 
dissemination must be conducted under specific guidelines and rules. 
Those rules exist primarily in the Code of Federal Regulation 28 Part 
23. That code has been recently updated to include investigations of 
terrorism and is the recommended course of action for intelligence 
units agencies. Additionally, each fusion center has been tasked with 
creating a ``privacy policy'' for those that participate in the 
Suspicious Activity Reporting (SAR) project. This policy must not be in 
conflict with 28 CFR Part 23 while providing the public with the 
privacy rights established under law. DHS should allocate sufficient 
resources to ensure proper training is provided to each fusion center 
employee and those that contribute to its efforts.
The Committee Should Mandate the Provisions of LEAP
    The Department of Homeland Security has embraced the fusion center 
concept and is leading the charge for standardization of operations. 
Local law enforcement has been a loyal partner and is the originator of 
the fusion center structure (TEW). The impediments I have discussed in 
my testimony are solvable. DHS has the opportunity to make local law 
enforcement an equal partner in the development of policy, provide 
sustainable funding, and share information more equitably while 
protecting the rights of our citizens. We support all seven of the 
initiatives articulated in the LEAP report published by the House 
Committee on Homeland Security and we urge Congress to provide 
appropriations to carry out those critical law enforcement programs. 
Until your report is fully adopted, our intelligence efforts will have 
limited success.
                      the future of fusion centers
Fusion Centers Should Be the Gateway for All Local Police and Sheriff's 
        Departments Nation-wide
    Under a national standard, fusion centers should serve all cities 
and counties as a lateral network of intelligence products, which 
through the JTTF and DHS I&A programs will vertically be shared with 
the National Counter Terrorism Center (NCTC). This network will improve 
our search for terrorists and their supporters and leverage the skills 
found in the JRICs serving major urban areas to rural communities.
    I believe that all available means, whether technological, social, 
political, or operational must be examined to ensure that the events of 
9/11 are not repeated. As the elected leader of the Los Angeles County 
Sheriff's Department, I am committed to expanding cooperation with all 
Federal, State, and local agencies in our efforts to combat terrorism. 
The citizens of Los Angeles County and the Nation deserve a secure 
homeland. No one agency can provide that security. Only by working 
together in a collaborative, mutually supportive environment can we 
provide the security we all felt prior to September 11. I look forward 
to answering any questions you may have.
               Attachment 1.--Los Angeles JRIC Successes
   The JRIC is involved in numerous working groups--unlike most 
        fusion centers, some of those working groups are listed below 
        (not all inclusive):
     MTA/AMTRAK meetings (monthly);
     Aviation Security Group (bi-weekly);
     Port Intelligence Group (monthly);
     Domestic Terrorism Working Group (monthly);
     FBI/Public Health Exercise Design Working Group (monthly);
     WMD/HAZMAT Working Group (monthly);
     Area Maritime Security Council Meetings (quarterly);
     Terrorist Screening Center Outreach (ad hoc).
   The JRIC produces more strategic, tactical, and 
        informational bulletins than most fusion centers and our 
        outreach has received Nation-wide attention.
   Within the past calendar year the JRIC has produced over 364 
        intelligence-type products which has been disseminated within 
        our 7-county AoR as well as to NY, Chicago, and Washington, DC.
   The JRIC is unique in that it simulates a ``smaller D.C. 
        beltway'' . . . the JRIC has all the components in the center 
        like Washington, DC: JRIC Executive Director is an FBI GS-15, 
        State, Local, Fire, Health, Private Sector, DHS, FBI-JTTF, FBI 
        Field Intelligence Group, contract/civilian analysts and a TSC 
        rep . . . we have demonstrated the value of leveraging all 
        these resources to accomplish the mission.
   The fusion center concept works in Los Angeles and we are 
        the role model for true information sharing and collaboration. 
        It is quite simple. Everyone places their agency hats at the 
        door, is dedicated to the mission, and has passion for 
        protecting our homeland.
        
        

    Ms. Harman. Thank you, Sheriff Baca.
    Mr. Riegle.

 STATEMENT OF ROBERT RIEGLE, DIRECTOR, STATE AND LOCAL PROGRAM 
  OFFICE, OFFICE OF INTELLIGENCE AND ANALYSIS, DEPARTMENT OF 
                       HOMELAND SECURITY

    Mr. Riegle. Thank you.
    Chair Harman, Ranking Member McCaul, and Members of the 
subcommittee, I want to thank you for the opportunity to appear 
today, especially with my distinguished colleagues at the State 
and local level. It is an honor to sit at the table with them.
    As you mentioned, Secretary Napolitano believes a greater 
level of information sharing between Federal, State, local, and 
Tribal territorial partners, to be absolutely essential to the 
strengthening of the safety of the homeland.
    Since the inception of my office in 2006, the fusion center 
program has been closely examined by Government and private 
entities. We have welcomed thoughtful scrutiny from the privacy 
and civil rights and civil liberties advocacy communities. We 
have welcomed the interest from the media.
    We have also welcomed review by the General Accounting 
Office, the Office of Inspector General, and each of these 
opportunities--and I stress they are all opportunities--have 
allowed us to engage in critical dialogue about our program, 
address misconceptions, and educate stakeholders about the role 
of fusion centers in connecting Federal, State, local, Tribal, 
and territorial partners, in order to share in valuable threat 
information and intelligence.
    In short, this scrutiny has improved our effectiveness, and 
it has strengthened the national network of fusion centers. We 
welcome further scrutiny.
    The State and local program office has been successful in 
meeting every program target that has been established. We have 
enhanced our Federal interagency coordination through the 
establishment of the National Fusion Center Coordination Group, 
of which Mr. Porter is a member.
    We have also hired 34 intelligence operations specialists 
to support fusion centers across the country. With our 
colleagues at the FBI, we have jointly designated 70 fusion 
centers, one in every State and major city, as part of this 
national network. These centers have agreed to conform to the 
baseline capabilities that have been released over the past 
year.
    Thorough a close partnership with FEMA, National 
Preparedness Directorate, and the Department of Justice Bureau 
of Justice Assistance, we have deployed more than 145 
technical-assistance deliveries to fusion centers, ranging from 
civil liberties-civil rights training, to establishing liaison 
officer programs. We have delivered privacy training to every 
deployed INA intelligence operations specialist.
    These accomplishments demonstrate that the State and local 
programs office continues to proactively support our State and 
local partners, while respecting and protecting the privacy, 
civil rights, and civil liberties of Americans.
    We are confident that the future of the fusion centers and 
the program will continue to operate in a manner that respects 
the balance between supporting this important mission, and 
respecting and protecting Americans' rights.
    The fusion center program marks the first time in United 
States history where there has been a codified, multi-level, 
multi-agency approach for sharing threat information and 
intelligence. Today, by leveraging the fusion center network, 
we have the ability to share information between the Federal 
Government and in every State capital.
    Just as we operate within the National Response framework, 
and coordinate with emergency management officials, and EOC, 
during response efforts, we now have the same ability to 
communicate and transmit threat information almost immediately.
    We are grateful for our relationships with the State and 
local, Tribal and territorial partners. I cannot emphasize to 
you enough the importance of this relationship, and how honored 
I feel to work with these individuals. There is no Federal 
Government 911. We recognize the heavy lifting is done at the 
State and local level.
    The national fusion center network is fundamentally a 
grassroots effort, led by the State and localities who own and 
operate these fusion centers. The Department recognizes that 
our State and local partners do the lion's share of the work 
necessary to develop, sustain, and enhance this network.
    Fusion centers are successful only through the daily work 
of law-enforcement officers, firefighters, emergency managers, 
public-health workers, and territorial partners.
    In conclusion, we ask that Congress work with the 
Department, under the leadership of Secretary Napolitano, to 
provide robust, vibrant support for all of those partners who 
benefit from this relationship, and ensure the long-term 
success of this program.
    We know that this program has filled efficiencies across 
the Department, and we expect to continue to develop those 
effectiveness working with our Federal partners in the future. 
Thank you.
    [The statement of Mr. Riegle follows:]
                  Prepared Statement of Robert Riegle
                             April 1, 2009
                              introduction
    Chair Harman, Ranking Member McCaul, and Members of the 
subcommittee: Thank you for the opportunity to appear before you today 
to discuss the Department's efforts to keep America safe through a 
vibrant network of fusion centers. Secretary Napolitano believes a 
greater level of information sharing between Federal, State, local, 
Tribal and territorial partners to be absolutely essential to 
strengthening the safety of the homeland. Thanks in large part to 
statute developed by this committee, the Department's Office of 
Intelligence and Analysis (I&A) has lead responsibility in implementing 
this enormously critical, but challenging task. We are especially 
grateful to have the opportunity to highlight I&A's many collaborative 
efforts to deepen, strengthen, and expand this partnership between 
Federal, State, and local law enforcement and information-sharing 
officials.
    Secretary Napolitano reaffirmed her support for the fusion center 
program in her March 11 speech to close to 1,000 fusion center 
stakeholders convened from across the country at the National Fusion 
Center Conference in Kansas City. In her remarks, she stated ``I 
believe that fusion centers will be the centerpiece of State, local, 
and Federal intelligence sharing for the future and that the Department 
of Homeland Security will be working and aiming its programs to 
underlie fusion centers.''
    Fusion centers are the core means by which we promote Federal, 
State, local, and Tribal information sharing. Today, the Department of 
Homeland Security and the Department of Justice recognize 70 fusion 
centers, including ones in every State and every major city of the 
United States. Nearly half of these centers have been stood up since 
2006 and have grown rapidly in number and effectiveness. Many fusion 
centers are in their infancy and many infrastructure challenges remain, 
but the successes that the centers have realized thus far give us good 
reason for our continued support.
    The primary mission of fusion centers is information sharing. Just 
as Congress and the 9/11 Commission have recognized, information 
sharing is vital to protect the American people and our institutions. 
The success of the national network of fusion centers is crucial to the 
Department and to the States in achieving greater situational awareness 
toward the threats we face.
    Fusion centers are force multipliers. They leverage financial 
resources and the expertise of numerous public safety partners to 
increase information awareness and help our law enforcement agencies 
more effectively protect our communities. Thoughtful analysis about 
risks to our communities supports elected officials and homeland 
security leaders. This enables States and localities to better utilize 
limited financial resources to make effective, risk-based decisions 
about public safety matters and mitigate threats to the homeland.
    Fusion centers focus on empowering State, local, and Tribal 
governments, as well as feeding critical information back to Federal 
intelligence and law enforcement officials. Each fusion center has 
capabilities unique to the needs and requirements of the jurisdiction 
where it is located. The Federal Government is pleased to partner with 
the States and localities that own and operate fusion centers.
    I&A's relationship with the fusion centers is governed by Section 
511 of Public Law 110-53, Implementing Recommendations of the 911 
Commission Act of 2007 (the 911 Commission Act) which amended the 
Homeland Security Act of 2002, the National Strategy for Information 
Sharing, as well as the Department's internal Fusion Center 
Implementation Plan of 2006.
    I&A serves the fusion centers by providing infrastructure and 
analytical context to information. This ensures that there is a true 
two-way flow of information between States and localities and the 
Federal Government, and between law enforcement and the national 
intelligence community. I&A goes to great lengths to make sure fusion 
centers have the infrastructure tools, access to all necessary 
information, right Federal partners, and training.
    To ensure we effectively implement this charge, I&A established a 
State and Local Program Office (SLPO) to serve as the executive agent 
for Departmental engagement with fusion centers. As the executive 
agent, I&A provides support to fusion centers through personnel and 
system deployments, training and technical assistance, security 
clearance support, and intradepartmental coordination and outreach 
efforts on behalf of the national fusion center network.
                the department's role in fusion centers
    The Department is actively involved in enhancing the national 
network of fusion centers and is committed to accelerating the 
deployment of personnel and technology to fusion centers. To that end, 
we have deployed 34 Intelligence Operations Specialists who serve as a 
critical link between their fusion centers and the Department. We are 
hopeful that by the end of fiscal year 2010 we will have deployed an 
officer to each of the 70 designated fusion centers. Just recently, I&A 
shifted nearly 20 additional billets from headquarters to assignments 
at fusion centers.
    The deployment of DHS Intelligence Operations Specialists augments 
the analytical capabilities of the fusion centers. We believe this 
contributes greatly to the goal of achieving the analytic depth and 
geographic breadth necessary to effectively identify, provide context 
to and share vital information gleaned by sworn law enforcement 
officers and other State and local officials during the course of their 
daily duties. As fusion centers continue to mature, we expect to 
continue to grow the pool of analysts capable of connecting the dots 
and conducting information sharing and analysis in the manner intended 
by Congress. In addition to sharing Federal information with State, 
local, and Tribal entities, and sharing their information with Federal 
agencies, DHS analysts at fusion centers provide real-time situational 
awareness to the Secretary and the Department as well as all levels of 
government in times of crisis.
    Thanks in large part to your guidance and efforts within the 
Department, I&A's intelligence enterprise information management team 
has installed more than 30 Homeland Secure Data Network (HSDN) 
terminals, a SECRET-level collateral network, in fusion centers and 
will install HSDN terminals in all 70 fusion centers as soon as all 
security requirements are met. We purchase and operate the network for 
the fusion centers. Through these efforts, DHS ensures the protection 
of Federal information shared within these fusion centers.
    In addition to HSDN, I&A launched the Homeland Security State and 
Local Community of Interest (HS SLIC) about 1 year ago. HS SLIC is a 
``virtual community'' of intelligence analysts from Federal, State, and 
local entities. Intelligence analysts collaborate via weekly threat 
conference calls, biweekly secure video teleconferences, analytic 
conferences, and a secure Web portal for intelligence information 
sharing at the controlled unclassified information (CUI) level, via HS 
SLIC.
    In January 2008, we strengthened our service relationship with 
fusion centers by establishing a ``Single Point of Service (SPS)'' 
program. This program brings together many DHS Intelligence and 
Operations elements to give local customers a 24-hour, one-stop 
shopping resource to request support, communicate product requirements, 
and share critical information with DHS and its components. The 
Department has consolidated tracking by standardizing all 
communications and queries in a single format--State and Local Support 
Request (SLSR)--which includes requests for information, production, 
administrative tasks, analysis, and a wide range of support functions. 
In the last quarter of 2008, the SPS team serviced 659 SLSRs from 36 
States.
    We are strengthening core competency training programs for fusion 
center operations to make interactions with State, local, and Tribal 
entities even more effective. I&A training programs are designed to 
meet the intelligence training needs of our partners. We offer Critical 
Thinking and Analytical Methods (CTAM), Principals of Intelligence 
Writing and Briefing (PIWB), as well as the Analytic and Critical 
Thinking Skills Workshop training modules to our State and local 
partners. The CTAM and PIWB courses are currently available at DHS I&A, 
and are also being converted to a web-based format. All of the courses 
are tuition-free; grant funds may be applied to fund travel to all of 
these courses.
    The Department, via the FEMA National Preparedness Directorate 
(NPD) and in conjunction with the U.S. Department of Justice, offers 
services under the Fusion Process Technical Assistance Program to 
facilitate the development and operation of a national network of 
fusion centers. Part of the overall Technical Assistance Program 
managed by NPD, the Fusion Process technical assistance provides for 13 
specific services available to fusion centers, including services to 
support the development and implementation of privacy policies, 
suspicious activity reporting, and the implementation of liaison 
officer programs. To date, the Fusion Process Technical Assistance 
Program has provided more than 145 services and more than 40 fusion 
center exchanges. In addition to the Technical Assistance services, the 
program has supported a host of national and regional workshops, 
fellowships, exchange opportunities, and on-line resources for fusion 
center personnel.
    DHS, along with the FBI, provides support by granting security 
clearances for eligible State and local partners, as well as support in 
other areas of security, including policy development and document 
storage and handling resources.
    Beyond this operational support, the Department is actively 
supporting fusion centers to form an association, as suggested by the 
House Homeland Security Committee last year, through which they can 
organize their efforts at a State-to-State level and serve as an 
advocacy body for the fusion center initiative. This association became 
a reality at the 2009 National Fusion Center Conference and has already 
created a list of concerns that is addressed in the challenges section 
below. The national conference in Kansas City and regional conferences 
are among the efforts we use to bring fusion center leaders and 
stakeholders together. Conferences allow participants to forge 
relationships, exchange best practices, learn how to build partnerships 
with their local communities and privacy and civil liberties advocates, 
and gain knowledge about new trends, tools, and technologies that can 
help fusion centers improve their analytic capabilities.
                       enhancing federal support
    Our work toward a national, integrated network of State and major 
urban area fusion centers is defined by the National Strategy for 
Information Sharing. It states that ``a sustained federal partnership 
with . . . fusion centers is critical to the safety of our nation, and 
therefore a national priority.'' Our objective is to assist State and 
local governments in the establishment and sustained operation of 
fusion centers.
    The National Fusion Center Coordination Group (NFCCG) was 
established to coordinate the Federal Government's support to fusion 
centers. The NFCCG provides leadership, coordination, and guidance in 
the development and Federal support to the national integrated network 
of fusion centers. Co-chaired by the Department of Homeland Security 
and the FBI in partnership with the Department of Justice, the Global 
Justice Information Sharing Initiative, the Office of the Director of 
National Intelligence, and the Program Manager for the Information 
Sharing Environment, the NFCCG is the interagency coordination 
mechanism used to assist Federal agencies in carrying out their 
responsibilities to implement effective policies related to fusion 
center support.
      protecting the civil rights and civil liberties of americans
    We take the commitment to respect and protect the privacy, civil 
rights, and civil liberties of American citizens seriously. We partner 
with the DHS Privacy Office, the DHS Office for Civil Rights and Civil 
Liberties, and the Office of General Counsel to make sure that all of 
our efforts are consistent with our obligations to the American people. 
We require all I&A staff assigned to fusion centers to receive specific 
training and to have subject matter expertise on all relevant privacy, 
civil rights, and civil liberties issues. We do this as a matter of 
practice and as required by Section 511 of the 9/11 Commission Act.
    We are equally committed to ensuring that all those working at 
fusion centers are fully cognizant of their privacy and civil liberties 
obligations. In December 2008, the Department conducted and published 
both a Privacy Impact Assessment (PIA) and a Civil Liberties Impact 
Assessment (CLIA) for the Initiative. The PIA made a number of specific 
recommendations that fusion centers can implement to enhance privacy. 
These include completing their written Information Sharing Environment 
privacy protection policies, and creating governance structures and 
procedures to protect privacy and to understand and implement the set 
of privacy protections called the Fair Information Practice Principles 
(FIPPs). These include protections related to data integrity, use 
limitation, data minimization, and others. Perhaps the most important 
recommendation in the PIA furthered the transparency principle; the DHS 
Privacy Office recommends that each fusion center conduct a PIA 
evaluating its own operations, make it available to the public, and 
then engage with its local communities.
    Once these documents and principles are in place, training becomes 
the centerpiece of ensuring that fusion centers adhere to their privacy 
and civil liberties policies. Accordingly, we provide specific training 
support and resources to fusion centers across the Nation, along with 
the DHS Privacy Office and Office for Civil Rights and Civil Liberties 
and the Department of Justice's Bureau of Justice Assistance. As a 
result of this partnership, we launched a Web site with resources for 
fusion center personnel on privacy and civil liberties issues. We have 
proactively worked with the DHS Privacy Office and the Office for Civil 
Rights and Civil Liberties since the beginning of the program and 
consider our relationship with them to be among the closest and most 
productive in the Department.
                     incorporating diverse partners
    Increasingly, fusion center operators see the benefits in a multi-
disciplinary homeland security approach to information and intelligence 
sharing. Many are now seeking to include the fire, public health, and 
private sectors in the fusion process. This includes cybersecurity 
concerns which cut across Federal, State, local, Tribal and private 
sector partners. The Department is assisting fusion centers with this 
outreach by serving as a coordinating body for the fire, public health, 
and critical infrastructure and key resources (CIKR) efforts by 
identifying key players, facilitating discussions, and assisting with 
the development of a framework for sharing information/intelligence 
within critical infrastructure sectors. DHS aims to increase awareness 
of the fusion center program and existing information and intelligence 
sharing tools, assist the fire service and public health sectors with 
identifying their intelligence requirements, facilitate relationships 
among agencies/offices, and provide security clearances to appropriate 
members of private sector leadership.
Tribal
    The Department regularly encourages Tribes to participate in or 
establish relationships with their nearest fusion center. The 
Department, through I&A, is working with Tribal law enforcement and 
homeland security advisors to engage them in information sharing, with 
particular emphasis on our relationship with the Tohono O'odham Nation 
(TON), given its international border location. Department officials 
also have met individually with senior representatives of the Navajo 
Nation, Salt River Pima Maricopa Indian Communication, and the 
Chickasaw Nation, among others. In February 2009, DHS, working in 
conjunction with the DOJ Office of Tribal Justice, launched the 
Homeland Security Information Network--Tribal (HSIN-Tribal). This 
secure Web site provides Federal and tribal homeland security 
professionals with an on-line site to share information, make 
announcements, and obtain news that will help them in their efforts to 
provide for safe and secure communities.
    I&A, in conjunction with the Department of the Interior (DOI), is 
working to create a Tribal/Terrorism Liaison Program for Law 
Enforcement Officials. This initiative includes a 3-day training 
program for Tribal law enforcement on the development of information-
sharing practices with DHS and State and local fusion centers. To date 
the SLPO, with the assistance of the Director, Office of Homeland 
Security and Emergency Services Indian Affairs DOI, has nominated 16 
Tribal Chiefs of Police and/or Emergency Managers for SECRET 
clearances. These efforts are sure to increase as a result of Secretary 
Napolitano's decision to institute the Department's first-ever 
consultation policy to engage the direct and interactive involvement of 
Indian Tribes in developing regulatory policies, recommending grant 
procedures for tribes, and advising on key issues.
Critical Infrastructure/Key Resources
    DHS, in coordination with the Office of Infrastructure Protection 
and the State, Local, Tribal, and Territorial Government Coordinating 
Council, developed a capability appendix to the U.S. Department of 
Justice's Global Justice Information Sharing Initiative's (Global) 
Baseline Capabilities for State and Major Urban Area Fusion Centers 
(baseline capabilities document). This baseline capabilities document 
defines the capabilities and standards necessary for a fusion center to 
be considered capable of performing basic functions (e.g., the 
gathering, processing, analyzing, and disseminating of terrorism, 
homeland security, and law enforcement information). The CIKR appendix 
provides guidance for those fusion centers that have chosen to support 
critical infrastructure protection activities; it identifies the 
additional capabilities fusion centers should achieve in order to 
effectively integrate CIKR activities into their analysis and 
information/intelligence sharing processes; and identifies how the 
center should support risk-reduction efforts taken by Federal, State, 
local, and private sector partners. The appendix encourages CIKR-
related capabilities in fusion centers to be centered on the 
development of key analytical products, such as risk and trend 
analyses.
    In furtherance of this goal, I&A's SLPO is jointly sponsoring a 
workshop with the Office of Infrastructure Protection (IP) and FEMA/NPD 
Technical Assistance Program to bring together stakeholders from the 
CIKR communities. This workshop is intended to provide a forum to 
identify and discuss the as-is State/local CIKR protection environment 
and current CIKR protection capabilities, as well as strategic 
considerations for State and urban area officials responsible for the 
development, implementation, and operation of a CIKR protection 
program. Participants will discuss information sharing and intelligence 
needs and best practices, and report on existing information sharing 
capabilities with, and within, the CIKR community. The workshop will 
provide support for the integration of CIKR protection efforts with on-
going fusion center and information/intelligence sharing efforts. DHS/
IP is currently developing a NIPP Implementation Guide for State and 
local jurisdictions. This will support the practical considerations 
associated with the implementation of that guide.
Emergency Management
    The SLPO is jointly sponsoring a series of workshops with the FEMA/
NPD Technical Assistance Program to be held in each of the 10 FEMA 
regions in order to discuss partnerships, roles, and responsibilities, 
and the processes by which operational hand-off and information 
exchange can and should occur during steady-state, forward-leaning and 
response activities. The focus of these workshops will vary as 
requirements and the strength of existing relationships dictate, but 
they will provide an opportunity for fusion centers to educate their 
Federal emergency management counterparts on existing capabilities, as 
well as better understand how to leverage FEMA regional resources.
Fire Service
    We have developed a new Fire Service Intelligence Enterprise (FSIE) 
initiative to incorporate Fire Service interests (defined as fire and 
emergency operations, emergency medical service operations, rescue 
operations, hazardous materials operations, fire prevention/protection, 
fire investigation, incident management, and responder safety) into 
national standards, protocols, and mechanisms for homeland security 
information and intelligence sharing. The FSIE represents a 
collaborative initiative of several Department of Homeland Security 
(DHS) entities--the SLPO and the U.S. Fire Administration (USFA), with 
support from FEMA/NPD.
    FSIE goals are being pursued by promoting fire service integration 
within State and Major Urban Area Fusion Centers, and by facilitating 
the identification and/or development of information and intelligence 
sharing requirements, mechanisms, technical assistance, and training. 
Activities performed to achieve these goals are being closely 
coordinated with other offices within DHS, other Federal agencies, and 
national, State, local, tribal, and territorial fire service 
organizations to ensure the initiative is pursued in an effective and 
efficient manner. We believe the FSIE will benefit the collective 
homeland security effort by enhancing the preparedness level of Fire 
Service organizations across the country, while supporting the 
prevention, protection, response, and recovery efforts of all homeland 
security partners.
Public Health
    The Health Security Intelligence Enterprise (HSIE) is an initiative 
to integrate Public Health and Healthcare Community (PH/HC) interests 
into the processes of homeland security information and intelligence 
exchange. The establishment of an institutionalized health security 
information and intelligence sharing framework will enhance the 
preparedness level of PH/HC practitioners across the country, while 
supporting the all-hazards approach to prevention, protection, 
response, and recovery efforts of all homeland security partners.
    Federal, State, local, Tribal, and private sector stakeholders are 
working collaboratively to develop a framework to enhance sharing of 
health security information. This approach allows the HSIE initiative 
to best meet the needs of the PH/HC community and others who benefit 
from the enhanced information-sharing environment. These efforts will 
foster communication and collaboration among PH/HC organizations and 
between the PH/HC, the Federal homeland security and intelligence 
communities, and State, local, and tribal law enforcement and public 
health and safety stakeholders.
    The integration efforts with these DHS partners provide 
efficiencies and allow the Department to be represented in a user-
friendly manner to State and local stakeholders. In many ways, the 
fusion center initiative, through the SLPO, has done more to integrate 
the Department than any other program.
                     enabling fusion center success
    The ability of fusion centers to accomplish an all-crimes and all-
hazards mission requires long-term investment. To date, there have been 
several fusion center success stories.
    One such success occurred in May 2008, when the DHS Intelligence 
Operational Specialist for Northern California coordinated with Federal 
officials on an Amber Alert for a 3-year-old child who was to be taken 
out of the United States by a suspect wanted for rape and murder. By 
coordinating with DHS officials, local law enforcement, and INTERPOL, 
the DHS Intelligence Operations Specialist was able to track the 
suspect and the kidnapped child to a flight bound for the Netherlands. 
With only hours to spare, the DHS Intelligence Operations Specialist 
coordinated with authorities to ensure law enforcement authorities in 
Amsterdam detained the subject. The child was recovered unharmed.
    In March 2007, the Denver Fire Department responded to seven cases 
of SUVs being firebombed. Investigators requested the Colorado 
Information Analysis Center's (CIAC) assistance in developing case 
information. The CIAC developed a report that included a description of 
the suspect's vehicle. Based on this report, the suspect in the crimes 
was arrested shortly thereafter keeping the community safe from 
additional fire hazards.
    These are just two examples of the difference that fusion centers 
are making each day in neighborhoods and communities across America. At 
DHS, we see the success of this network as vital to greater situational 
awareness of the risks facing our State, local, tribal, and territorial 
partners across the country. We have even seen how information 
developed by a fusion center can inform the President's Daily Brief and 
open investigations related to terrorism overseas.
                               challenges
    Tremendous progress has been made in building the national fusion 
center network, but many challenges remain. Fusion center directors 
identified a series of challenges at the successful March National 
Fusion Center Conference. The following challenges were identified at 
this year's national conference by fusion center directors:
Dissemination
    Providing timely, actionable information to the ``first preventers 
and first responders'' on the ground is critical to protecting the 
homeland. Many fusion centers maintain fusion center liaison programs 
that support their effort to more broadly disseminate Federal 
information to State and local law enforcement and homeland security 
partners. Expanding these liaison programs will facilitate even broader 
dissemination of critical homeland security information. The 
ineffective use of tear lines was a key dissemination issue highlighted 
by fusion center directors as an impediment to information sharing. We 
are committed to working with State and local partners to improve 
dissemination and provide the right products to the right people in a 
timely fashion. This would compliment tear line improvements for the 
private sector currently being undertaken by DHS and its intelligence 
community partners.
Sustainment
    DHS recognizes that during this time of national economic 
austerity, fusion centers are looking to the Federal Government to 
provide increased, targeted support. Specifically, fusion center 
directors have requested direct funding for fusion centers.
Outreach
    Fusion center directors seek more sustained and consistent outreach 
from Federal partners. To this end, DHS has developed and is beginning 
to implement a strategic communications and outreach advisory plan. In 
addition, the Department has begun to scope a technical assistance 
program to provide individual fusion centers with communications and 
outreach support. Through these efforts, fusion center stakeholders at 
all levels can speak with ``one voice'' about the mission, purpose, and 
value of the fusion center program.
Data Interoperability
    Use of a common fusion center backbone/platform for information 
sharing has been recognized as key to better information sharing and 
collaboration. Fusion center directors indicated that leveraging 
framework of the Suspicious Activity Reporting (SAR) Initiative could 
be beneficial in further standardizing use of technology across the 
fusion center network.
                      the future of fusion centers
    As noted many times by you Chair Harman, and by Secretary 
Napolitano, fusion centers are a vibrant component of national 
security. We believe we are getting better at identifying and servicing 
fusion center needs. We take great pride in the results of the 2008 
National Governors Association Center for Best Practices indicating 
more than 75 percent of respondents expressed satisfaction with their 
communication with DHS. This is a significant increase over the 42 
percent satisfaction rate reported in 2007.
    To continue to improve the fusion center initiative, Federal, 
State, local, Tribal, and territorial stakeholders have recognized the 
critical need for fusion centers to maintain a consistent level of 
baseline capabilities in order to operate as an integrated national 
network. In September 2008, the Baseline Capabilities for State and 
Major Urban Area Fusion Centers, an addendum to the Fusion Center 
Guidelines, was released by the Department of Homeland Security, the 
Department of Justice, and the Global Justice Information Sharing 
Initiative.
    The Baseline Capabilities document defines a set of capabilities 
that will support Federal, State, and local agencies to conduct long-
term planning and identify the costs and resources necessary for the 
achievement and sustainment of fusion centers. It also supports the 
Federal Government's efforts to identify the types of resources needed 
by States and localities, and ensures they are provided in a consistent 
and appropriate manner. The capabilities also assist in ensuring that 
fusion centers have the basic foundational elements for integrating 
into the national Information Sharing Environment.
    Today, most fusion centers are in the process of achieving the 
capabilities. Since resources and priority mission areas vary from 
center to center, it is expected to take a period of up to 5 years for 
all fusion centers to years to achieve all of the capabilities. Some 
centers may not need to ``house'' all of these capabilities, but may 
choose instead to leverage another fusion center or other operational 
entity's capability.
    In closing, we recall Chair Harman's comments at last April's House 
Homeland Security Committee hearing that ``it is unlikely that the next 
President, DHS, the FBI, or the wider intelligence community will 
prevent the next terrorist attack. Instead, a diligent police or 
sheriffs' officer somewhere in America--during the course of his or her 
daily work--will see something or someone out of place, and guided by 
timely, accurate, and actionable information, will connect the dots 
that will unravel a plot in-the-making.'' We agree, and that is why we 
welcome a deeper partnership with this committee in making sure this is 
reality.

    Ms. Harman. Thank you, Mr. Riegle.
    Mr. Porter.

    STATEMENT OF RUSSELL M. PORTER, DIRECTOR, STATE OF IOWA 
                   INTELLIGENCE FUSION CENTER

    Mr. Porter. Chair Harman, Ranking Member McCaul, Members of 
the subcommittee, thank you very much for convening this 
hearing. You have my written statement, and the 
acknowledgements that are in it. I would like to just 
highlight, quickly, a couple of things from that.
    Then, Madam Chair, as you have encouraged, I would like to 
respond to the commentary that appeared today in the Washington 
Times.
    First of all, I addressed in my statement the potential 
promise that does currently show, and does exist, with fusion 
centers. Key stakeholders, like State homeland security 
directors are telling us that fusion centers have become vital 
resources for information sharing and coordination for them. 
They are not the only stakeholders that are saying that. That 
is evidenced by the survey of the National Governor's 
Association Center for Best Practices.
    We have also seen progress in the development of fusion 
center guidelines, and the baseline capabilities for State and 
major urban-area fusion centers. These provide a framework for 
fusion centers to move forward. In fact, at the National Fusion 
Center Conference, that was just held last month in Kansas 
City, the theme of the conference was, ``Achieving the Baseline 
Capabilities.''
    Directors were encouraged--and actually came up with this 
on their own--to do a gap analysis of their own centers, 
against those baseline capabilities, so they can identify a way 
forward, and move toward progress, in a positive way.
    Finally, in terms of promise, fusion centers have become an 
analytic resource that are keeping communities safe and secure, 
helping governments prioritize their resource allocations, and 
support the efforts of State and local law enforcement to 
prevent and investigate crime in their local communities.
    I would say that, although, certainly, terrorism served as 
a catalyst for the fusion centers, this type of activity, Madam 
Chair, as you have pointed out, has existed for many, many 
years, in law enforcement agencies, as criminal intelligence 
work. This is simply a strengthening of that capability.
    The other area that I highlight in my written statement is 
the work that has been done to minimize the risk of the 
potential dangers. I emphasize the importance of protecting 
privacy, civil liberties, and civil rights. I do highlight 
within there the extensive work that was done, and has been 
done, and continues to be done, in providing training that Mr. 
Riegle has alluded to, as well, in terms of delivering training 
to fusion centers across the country.
    This was started in 2006, before there were even baseline 
capabilities. It was recognized as a central issue for fusion 
centers, and for the success of fusion centers, as well as for 
protecting the American public.
    There have been countless conversations; many, many 
meetings with privacy advocates, who have engaged in very 
thoughtful, respectful dialogue. We do appreciate very much the 
contributions that they are making and continue to make.
    There are missteps. There will continue to be that risk. We 
are currently working on developing the new training, and 
having development of those things that will help us address 
the issues that emerge as we move forward in this process.
    So that highlights my written testimony. You have that.
    Let me speak to Mr. Fein's commentary, if I may.
    I read with great interest, his commentary. I certainly 
respect, as a law enforcement officer, who takes an oath to 
support and uphold the laws and Constitution of the United 
States, his right to say and comment as he has. But I would 
point out a couple of things from his commentary.
    He notes that: ``Any dissidence or political dissident is 
suspect to fusion centers.'' I reject that assertion. He says 
that ``First Amendment principles will never be honored by law 
enforcement officers or public officials in the business of 
intelligence collection.'' I also reject that assertion.
    He characterizes and portrays fusion centers as un-
American, referencing the Soviet Union's KGB, and, in East 
Germany, the Stasi, and says that, ``Fusion centers are no more 
American than was the House Un-American Activities Committee.''
    The implication is that fusion centers and, by extension, 
the law enforcement officers and the public safety officials 
who risk their lives every day to protect their communities in 
this country, are un-American. He wants to throw the baby out 
with the bathwater. I wholeheartedly reject that approach.
    In fact, the delivery of privacy and civil liberties and 
civil rights training has been made possible precisely because 
there is a fusion center network, an audience that we can reach 
out to, to deliver this training. The opportunity for much of 
this dialogue to occur has come from the development of fusion 
centers, and from the National Suspicious Activity Reporting 
Initiative, about which this subcommittee has previously heard 
during an earlier hearing.
    Finally, sustaining a national integrated network of fusion 
centers will actually strengthen our collective ability to 
provide accountability and transparency, as Mr. Riegle has 
mentioned. This is an important point that must not be 
understated.
    I certainly respect the diverse views. But that is a 
response that I would have to Mr. Fein. Thank you.
    [The statement of Mr. Porter follows:]
                Prepared Statement of Russell M. Porter
                             April 1, 2009
    Chair Harman, Ranking Member McCaul, and Members of the 
subcommittee, thank you for convening this hearing today to focus on 
the future of fusion centers--critical resources for sharing 
information, preventing and solving crime (including terrorism), and 
making our communities, our States, and our Nation safer. I want to 
acknowledge the hard work of my many colleagues at all levels of 
government, but especially those at the local, Tribal, and State level 
with whom I work. I'm also especially pleased to appear today with this 
distinguished panel of witnesses. I appreciate this opportunity to 
discuss the future of fusion centers, highlighting some of their 
achievements thus far, the promise they hold, and the potential dangers 
that exist and may lie ahead.
                              introduction
    I am presenting this statement as the Director of a State fusion 
center, as well as in my role as General Chairman of The Association of 
Law Enforcement Intelligence Units (LEIU), the oldest professional 
association of its kind in the United States. Many agencies which 
operate or host fusion centers are members of LEIU. At the National 
Fusion Center Conference which convened last month in Kansas City, 
Missouri, fusion center directors asked LEIU to partner with them to 
help establish an association to represent fusion centers and the 
people who work in and with them. The work to build that association, 
as previously encouraged by the Chair of this subcommittee, is underway 
now.
    I am a veteran law enforcement officer who began my career as a 
municipal police officer in 1978. Since 1984 I have been continuously 
assigned full-time to the law enforcement intelligence discipline, and 
now hold the rank of Director at the Iowa Department of Public Safety 
where I report to the Commissioner of Public Safety for the State of 
Iowa. While working full-time, I completed all coursework and 
comprehensive exams for the Ph.D., and was conducting dissertation 
research into law enforcement intelligence units when this country was 
attacked on September 11, 2001. At the national and international 
level, I have been elected by my peers and am now serving my second 2-
year term as LEIU's General Chairman. I also currently serve as 
Chairman of the Criminal Intelligence Coordinating Council (CICC), and 
as Chairman of the Global Intelligence Working Group (GIWG) (part of 
the Global Justice Information Sharing Initiative, a Federal Advisory 
Committee to the Attorney General of the United States). I am a member 
of the Interagency Threat Assessment and Coordination Group (ITACG) 
Advisory Council; and of the Advisory Board for DHS's Homeland Security 
State and Local Intelligence Community of Interest (HS SLIC). 
Additionally, I currently serve on the National Fusion Center 
Coordination Group; the Police Investigative Operations Committee for 
the International Association of Chiefs of Police (IACP); the Executive 
Advisory Board for the International Association of Law Enforcement 
Intelligence Analysts (IALEIA); and the Advisory Board for Michigan 
State University's Criminal Justice Intelligence Program. I previously 
participated in the monthly meetings of the U.S. Department of Justice 
Intelligence Coordinating Council at FBI Headquarters, and served as a 
Fusion Group Subject Matter Expert for the Intelligence and Information 
Sharing Working Group of the U.S. Department of Homeland Security's 
Homeland Security Advisory Council (HSAC), and for the LLIS 
Intelligence Requirements Initiative. At the State level, I lead our 
State's fusion center, and serve as a member of the Executive Committee 
and the Operating Council for the Safeguard Iowa Partnership, a 
voluntary coalition of the State's business and Government leaders, who 
share a commitment to combining their efforts to prevent, protect, 
respond, and recover from catastrophic events in Iowa. I assisted with 
drafting the IACP's Criminal Intelligence Sharing: A National Plan for 
Intelligence-led Policing at the Local, State, and Federal Levels in 
2002; Global's National Criminal Intelligence Sharing Plan in 2003; the 
HSAC's Homeland Security Intelligence and Information Fusion report in 
2005; and the jointly-issued Global--DOJ--DHS Fusion Center Guidelines 
in 2006. Since the creation of the Global Intelligence Working Group in 
2002 until my appointment as CICC and GIWG Chairman in December 2007, I 
served as the Chairman of the GIWG's Privacy and Civil Liberties Task 
Team. During the past several years I have worked closely with our 
Federal partners on the joint delivery of training and technical 
assistance, especially regarding privacy and civil liberties 
protections in fusion centers. In 2007 I was awarded the IALEIA 
President's Distinguished Service Award for demonstrated commitment to 
privacy and civil liberties protections, and in 2008 I received the 
IACP Civil Rights Award in the category of Individual Achievement for a 
``consistent and vocal presence in law enforcement stressing the 
importance of protecting civil rights in policy, training, and ethical 
practice of the intelligence function.'' Finally, in March I served as 
Master of Ceremonies at the third National Fusion Center Conference in 
Kansas City--the second time I have served as the ``emcee'' for that 
national event.
    I only highlight my experience so that Members of the subcommittee 
will know that this statement is based on more than 30 years of real-
life experience as a law enforcement officer, with more than 25 of 
those dedicated to the field of law enforcement intelligence--with 
involvement in the fusion center initiative since its inception.
    Because of the responsibilities associated with each of these roles 
and initiatives, I work closely and regularly not only with my local 
and State counterparts in fusion centers, but also with our Federal 
partners. We continue to receive support from the U.S. Department of 
Homeland Security (DHS), and especially the Office of Intelligence and 
Analysis and the Federal Emergency Management Agency's Grants Program 
Directorate and National Preparedness Directorate; the U.S. Department 
of Justice (DOJ), with strong support received from the Bureau of 
Justice Assistance; the Federal Bureau of Investigation through their 
National Security Branch; the Program Manager's Office of the 
Information Sharing Environment; and the Office of the Director of 
National Intelligence. Finally, much of the progress that has been made 
in establishing a national, integrated network of fusion centers is 
made possible by a collaboration of local, tribal, State, and Federal 
agencies who are part of the Global Justice Information Sharing 
Initiative (Global), the Criminal Intelligence Coordinating Council, 
and the Global Intelligence Working Group. These colleagues, as a 
community, commit countless hours of their time each day to improve 
information sharing in the United States.
                               background
    As you know, the Implementing Recommendations of the 9/11 
Commission Act of 2007 (Pub. L. 110-53), enacted in August 2007, 
endorsed and formalized the development of a national network of State 
and major urban area fusion centers. Similarly, the National Strategy 
for Information Sharing released by the White House in October 2007 
also describes fusion centers as ``a valuable information sharing 
resource,'' and as ``vital assets critical to sharing information.'' 
The Strategy further states, ``A sustained Federal partnership with 
State and major urban area fusion centers is critical to the safety of 
our Nation, and therefore a national priority.''\1\ As one recent 
report noted:
---------------------------------------------------------------------------
    \1\ The White House. 2007 (October). National Strategy for 
Information Sharing, p. A1-1, accessed September 21, 2008 at http://
www.whitehouse.gov/nsc/infosharing/NSIS_book.pdf.

``The potential value of fusion centers is clear: by integrating the 
various streams of information and intelligence from Federal, State, 
local, and tribal sources, as well as the private sector, a more 
accurate picture of risks to people, economic infrastructures and 
communities can be developed and translated into protective 
action.''\2\
---------------------------------------------------------------------------
    \2\ U.S. House of Representatives, Report 110-752, Report to 
Accompany H.R. 6098, Personnel Reimbursement for Intelligence 
Cooperation and Enhancement of Homeland Security Act. Accessed 
September 21, 2008 at http://frwebgate.access.gpo.gov/cgi-bin/
getdoc.cgi?dbname=110_cong_reports&docid=f:hr752.110.pdf.

    As I have noted previously, in my experience fusion centers have 
emerged as what may be the most significant change in the structural 
landscape of criminal intelligence in at least the past 25 years. Much 
has been written in the past several years about fusion centers, and 
today I bring to you a practitioner's perspective.
      the future of fusion centers: potential promise and dangers
    The word ``promise'' has been said to mean, ``indication of future 
excellence, achievement, or success.'' On the other hand, the word 
``danger'' can be defined as ``something that may cause injury, loss, 
or harm.'' I want to highlight how fusion centers are currently 
realizing some of their goals, how they offer significant promise for 
the future, and how continuing steps are being undertaken to prevent 
harm.
Potential Promise
    Key stakeholders, such as State homeland security directors and 
advisors, have said that fusion centers have become vital resources for 
information sharing and coordination. Fusion centers are becoming more 
effective and efficient information sharing and collaboration 
mechanisms. Fusion centers receive information from a variety of 
sources, including Federal, State, and local entities, and ensure 
timely and relevant information is provided to the right stakeholders 
within their geographic area of responsibility. The National Governors 
Association Center for Best Practices recently published the results of 
the 2008 Survey of State Homeland Security Directors--the fifth such 
survey they have conducted.\3\ The results show that fusion centers 
remain as one of the top five priorities for State homeland security 
directors. Three-quarters of the State homeland security directors 
actively and regularly engage with their State fusion center.\4\ 
Additionally, more than 60 percent of the directors use their fusion 
center as the primary method for sharing intelligence with DHS.\5\ 
Finally, the Federal Government uses fusion centers as the primary 
focal points within the State and local environment for the receipt and 
sharing of terrorism-related information. Federal agencies provide 
terrorism-related information to State, local, and Tribal authorities 
primarily through these fusion centers, which may further customize 
such information for dissemination to satisfy intra- or interstate 
needs. Thus, fusion centers are particularly important in providing 
information to important stakeholders (such as State homeland security 
directors, law enforcement, fire, public safety, emergency management, 
transportation, public health, and others), and to the Federal-State 
communication and coordination effort.
---------------------------------------------------------------------------
    \3\ The survey targets members of the Governors Homeland Security 
Advisors Council (GHSAC), which is comprised of the top homeland 
security directors as designated by each governor in all States, 
territories, and the District of Columbia.
    \4\ NGA Center for Best Practices Issue Brief: 2008 State Homeland 
Security Directors Survey, available at http://www.nga.org/Files/pdf/
0903HSASURVEY.PDF, accessed March 29, 2009.
    \5\ Comparatively, according to the NGA survey, 17 percent of the 
State homeland security directors only engage their fusion center 
intermittently or when there are emergencies; only 17 percent of States 
use the DHS National Operations Center to share intelligence; and only 
11 percent use local Federal Bureau of Investigations (FBI) or 
Immigration and Customs Enforcement (ICE) agents to share information 
with the Federal Government.
---------------------------------------------------------------------------
    Fusion Center Guidelines and Baseline Capabilities for State and 
Major Urban Areas have been published, are actively being used to guide 
and mature the national fusion center network, and are being 
implemented by fusion centers during the next 5 years. In recent years 
Federal, State, local, Tribal and territorial stakeholders recognized 
the critical need for fusion centers to adhere to the same general 
guidance, and to maintain the same level of baseline capabilities in 
order to operate as an integrated national network. This has been 
accomplished by publishing the Fusion Center Guidelines and the 
Baseline Capabilities for State and Major Urban Area Fusion Centers--
both of which were developed by the Global Justice Information Sharing 
Initiative, the U.S. Department of Justice, and the U.S. Department of 
Homeland Security. According to State fusion center directors, more 
than 80 percent of State fusion centers comply with the Fusion Center 
Guidelines developed by the Global Justice Information Sharing 
Initiative, the U.S. Department of Justice, and the U.S. Department of 
Homeland Security.\6\ Additionally, with support from the partnership 
of local, State, Tribal, and Federal partners, fusion centers are 
working to achieve the fusion center baseline capabilities that were 
published in September 2008 in the Baseline Capabilities for State and 
Major Urban Area Fusion Centers. In fact, the theme for the 2009 
National Fusion Center Conference held last month was ``Achieving the 
Baseline Capabilities.'' Although information on a wide range of 
baseline capabilities was presented, the conference focused on those 
baseline capabilities dealing with protecting privacy, civil liberties, 
and civil rights; outreach and communications; and analysis. Fusion 
center leaders attending the national conference were encouraged to 
assess their current capabilities, and then each day plenary and 
breakout sessions focused on steps they can take to achieve the 
baselines. Since resources and priority mission areas vary from center 
to center, it is expected to take a period of up to 5 years to achieve 
all of the capabilities. This on-going assessment of capabilities, and 
progress towards achieving them, will continue in the months ahead.
---------------------------------------------------------------------------
    \6\ The survey targets members of the Governors Homeland Security 
Advisors Council (GHSAC), which is comprised of the top homeland 
security directors as designated by each governor in all States, 
territories, and the District of Columbia.
---------------------------------------------------------------------------
    Fusion centers have become an analytic resource that keeps 
communities safe and secure, helps governments prioritize resource 
allocations, and supports the efforts of State and local law 
enforcement to prevent and investigate crime in their local 
communities. Jurisdictions with effective fusion center programs help 
citizens feel more safe and secure.\7\ The rapid flow of information 
associated with fusion centers has averted panic and unnecessary 
resource expenditures by quickly determining that a threat does not 
exist and preventing the needless evacuation of businesses and the 
disruption of commerce.\8\ This is critically important when, across 
the United States, State, local, and tribal law enforcement and 
homeland security officials are being asked to do more with less. 
Fusion centers offer a way to leverage financial resources and the 
expertise of public safety partners to more effectively protect our 
communities. Thoughtful analysis about risks to our communities helps 
elected officials and homeland security leaders better utilize limited 
financial resources to make effective decisions about public safety 
matters and threats to the homeland. Fusion centers have played a key 
role in assessing potential terrorism threats before massive holiday 
and sporting events, political conventions, and other occasions where 
large crowds gather,\9\ so that resources can be properly allocated. 
They assist in addressing our most pressing national challenges such as 
gangs, border violence, narcotics, homicides, natural disasters, and 
terrorism. More specifically, fusion centers have proven successful in 
preventing terrorism and in solving other local crimes--such as when a 
fusion center ``connects the dots'' from a drive-by shooting death to 
solve the murder of a furniture store manager occurring 3 months 
earlier,\10\ or identifies a series of attempted child abductions so 
that the community can be warned.\11\ These are not examples of 
``mission creep,'' as some have described; rather, these are examples 
of local and State governments doing what they have always done: using 
resources in a coordinated way to protect the public from crime. In 
fact, in many cases fusion centers have always been ``all crimes'' 
centers, and have never been focused solely on terrorism.
---------------------------------------------------------------------------
    \7\ Anti-terrorism center offers reassurances against potential 
dangers, February 19, 2009, http://www.lvrj.com/news/39837512.html, 
accessed March 29, 2009.
    \8\ Metro's Fusion Center Works to Solve Local Crimes, Threats, 
July 1, 2008, http://www.lasvegasnow.com/global/story.asp?s=8588286, 
accessed March 29, 2009.
    \9\ Fight over, all together now against terrorism; ``Fusion 
center'' puts agencies under one roof, January 22, 2008, http://
www.lasvegassun.com/news/2008/jan/22/fight-over-all-together-now-
against-terrorism/, accessed March 29, 2009.
    \10\ Metro's Fusion Center Works to Solve Local Crimes, Threats, 
July 1, 2008, http://www.lasvegasnow.com/global/story.asp?s=8588286, 
accessed March 29, 2009.
    \11\ Series of Attempted Child Abduction Incidents Being 
Investigated in Central Iowa, DPS Press Release, June 18, 2008, http://
www.dps.state.ia.us/commis/pib/Releases/2008/06-18-
2008_AbductionRelease.htm, accessed March 29, 2009.
---------------------------------------------------------------------------
    These are just a few of the examples highlighting some of the 
reasons that fusion centers, when provided with resources, training, 
technical assistance, guidelines, and policy documents, and other 
support, are vital assets which are critical to sharing information and 
keeping our communities, our States, and our Nation safe. Compiling 
additional information that demonstrates and measures the value of 
fusion centers and the promise they hold for the future is currently 
underway.
Potential Dangers
    While there are certain risks inherent with information gathering 
and sharing, on-going efforts to proactively address these potential 
pitfalls actually signify a promise that best practices can become 
reality. What follows is a description of some of the work completed to 
date.
    If we fail to continue to make the protection of privacy, civil 
liberties, and civil rights a top priority, the fusion center network 
will not be sustainable. This important work will be an on-going 
challenge that requires continued refinement of training, technical 
assistance, and other support as we go forward. But the good news is 
that the State, local, Tribal, and Federal partners that have been 
leading this effort, as well as fusion centers themselves, have been 
making these issues a top priority. Certainly there is more to do. But 
as fusion centers have emerged, a coordinated--and unprecedented--
effort has been initiated to provide training and technical assistance 
that is protecting privacy, civil liberties, and civil rights. In fact, 
the delivery of this training and technical assistance is made possible 
precisely because there is a national network of fusion centers, and 
due to the good work of the partners involved. The following provides a 
summary of some of the work undertaken with fusion centers thus far, to 
establish a solid foundation for protecting privacy, civil liberties, 
and civil rights:
   2006 Regional Fusion Center Conferences--The Importance of a 
        Privacy Policy.--From August through October 2006, four 
        regional fusion center conferences were conducted in the 
        northeast, southeast, central, and western United States. The 
        presentations at these conferences provided attendees with an 
        overview on the need for developing, implementing, and training 
        on policies that protect privacy, civil liberties, and civil 
        rights.
   2007--Fusion Center Privacy Technical Assistance Program.--
        In June 2007 the Privacy Technical Assistance Providers (made 
        up of privacy representatives from multiple Government 
        agencies, as well as training and technical assistance 
        providers) \12\ identified potential needs and began to develop 
        a model privacy policy process for fusion centers. The Fusion 
        Center Privacy Technical Assistance Program was thus initiated, 
        which included development of resources to help centers train 
        their personnel on privacy policies.
---------------------------------------------------------------------------
    \12\ The Privacy Technical Assistance Providers included 
representatives from the Bureau of Justice Assistance (BJA), Office of 
Justice Programs (OJP); the U.S. Department of Justice (DOJ); the U.S. 
Department of Homeland Security (DHS); the Justice Management Institute 
(JMI); SEARCH, The National Consortium for Justice Information and 
Statistics; the Global Privacy and Information Quality Working Group 
(GPIQWG); and the Institute for Intergovernmental Research (IIR). For 
fusion center resources, additional input was provided by the Office of 
the Program Manager for the Information Sharing Environment (ISE), the 
ISE Privacy Guidelines Committee's (PGC) State, Local, and Tribal (SLT) 
Working Group, and the ISE PGC Training and Outreach Working Group.
---------------------------------------------------------------------------
   2007 Regional Fusion Center Meetings--Privacy Technical 
        Assistance (TA) Sessions and Privacy TA Review Process.--From 
        September through December 2007, four regional fusion center 
        meetings were conducted in the northeast, southeast, central, 
        and western United States. On the day prior to each of the four 
        regional fusion center group meetings, a technical assistance 
        session was held at which presenters and subject-matter experts 
        (SMEs) educated fusion center personnel on the history of 
        privacy and civil liberties in law enforcement intelligence, 
        and on the importance of developing a privacy policy. Attendees 
        were then provided with hands-on assistance as they were guided 
        by SMEs through the DOJ-developed training workbook, titled 
        Fusion Center Privacy Policy Development: Privacy, Civil 
        Rights, and Civil Liberties Policy Template. At the completion 
        of each regional privacy technical assistance session described 
        above, fusion center personnel were offered privacy technical 
        assistance in the form of a Privacy TA Review Team that would 
        help them construct their policies, if needed, and review the 
        completed draft policies to provide feedback on the policies' 
        adherence to the provisions contained within the Fusion Center 
        Privacy Policy Development: Privacy, Civil Rights, and Civil 
        Liberties Policy Template.
   2009 Privacy TA Session.--For those centers that were unable 
        to attend the 2007 Regional Privacy TA Sessions, a separate 
        Privacy TA Session was held in February 2009 to deliver the 
        same information: an overview of the history of privacy, the 
        importance of developing a privacy policy, and hands-on 
        guidance through the Fusion Center Privacy Policy Development: 
        Privacy, Civil Rights, and Civil Liberties Policy Template.
   2007, 2008, and 2009 National Fusion Center Conferences.--In 
        March of each of these 3 consecutive years, sessions on 
        protecting privacy, civil liberties, and civil rights were 
        conducted to highlight these important issues, and to bolster 
        the technical assistance sessions offered at the regional 
        conferences. These included a breakout session, delivered 
        twice, at the 2007 national conference; a plenary session 
        delivered to all participants, as well as a breakout session, 
        at the 2008 conference; and at the 2009 national conference a 
        breakout session to help fusion centers integrate a privacy and 
        civil liberties protection framework into fusion center 
        operations; a breakout session on 28 Code of Federal 
        Regulations (CFR) Part 23; and a ``Hands-On Learning Lab, where 
        on-site staff coached participants on how to conduct a privacy 
        and/or civil liberties impact assessment of their fusion 
        centers, arrange for on-site training, discuss questions or 
        issues, advise on their privacy and civil liberties policy 
        development, and answer questions about 28 CFR Part 23.
    At all of these regional meetings, technical assistance sessions, 
and fusion center conferences, more than a dozen privacy-related 
publications and resources were discussed with and/or distributed to 
attendees. Most of these publications and resources are also easily 
accessible to fusion centers--and to the public--on the Global Justice 
Information Sharing Initiative Web site.\13\
---------------------------------------------------------------------------
    \13\ The Global Justice Information Sharing Initiative Web site can 
be found at http://it.ojp.gov/default.aspx?area=globalJustice.
---------------------------------------------------------------------------
    A host of other efforts have been underway to ensure that the 
fusion center network continues to implement practices that will help 
ensure the protection of these constitutional rights. For example, in 
addition to the delivery of training and technical assistance, there 
have been countless conversations and numerous in-person meetings with 
privacy, civil liberties, and civil rights advocates to ensure that 
issues are well understood. (The opportunity for much of this dialogue 
to occur has come from the development of the National Suspicious 
Activity Reporting Initiative, about which this subcommittee has 
previously heard during an earlier hearing.) To promote transparency 
and awareness, the 2009 National Fusion Center Conference included 
presentations to attendees by media representatives and privacy 
advocates. Significant portions of the conference were also opened to 
advocates and the media. Furthermore, fusion centers have opened their 
doors and met with media representatives and privacy, civil liberties, 
and civil rights advocates. Going forward, it is important to capture 
``lessons learned'' from case studies that can help fusion centers 
refine their practices to ensure that potential dangers are avoided. 
Discussions about developing this next level of training and technical 
assistance are already underway so the resources necessary to deliver 
this support can be identified. Finally, sustaining a national, 
integrated network of fusion centers will actually strengthen our 
collective ability to provide accountability and transparency; this is 
an important point that cannot be understated.
    In terms of maintaining the momentum for fusion center development 
and sustaining their value, funding is paramount. The development and 
sustainability of intelligence fusion centers continues to be of 
significant concern for State homeland security officials,\14\ as well 
as for the fusion centers themselves. In essence, the failure to 
sustain fusion centers will prevent key local, tribal, State, and 
Federal officials from receiving essential information, making 
communities less safe. One of the continuing primary challenges is the 
sustainability of fusion center operations without Federal funding. 
Only one-quarter of State homeland security directors maintained that 
they will be able to subsidize their fusion center operations without 
Federal funding. During a Fusion Center Directors' Meeting at the 2009 
National Fusion Center Conference last month, the fusion center 
directors voiced the same concerns. Specifically, there was a strong 
call for predictable--even direct--funding for fusion centers so that 
the promise of fusion centers can be attained, and so that the dangers 
can be avoided.
---------------------------------------------------------------------------
    \14\ The survey targets members of the Governors Homeland Security 
Advisors Council (GHSAC), which is comprised of the top homeland 
security directors as designated by each governor in all States, 
territories, and the District of Columbia.
---------------------------------------------------------------------------
                               conclusion
    For the first time in my career, we are on the verge of building a 
truly national, integrated information sharing and analysis network 
that will make our communities and our Nation safer. Fusion centers can 
and should build upon the success, as well as coordinate with, other 
effective programs, such as the Regional Information Sharing Systems 
(RISS) and the High Intensity Drug Trafficking Area (HIDTA) 
Investigative Support Centers. Leveraging the outstanding work of the 
Global Justice Information Sharing Initiative--especially through the 
Criminal Intelligence Coordinating Council--is also vital.
    But much more needs to be done. Input from the people who are 
leading fusion centers must be considered in looking to the future. In 
a meeting of fusion center directors that occurred last month in 
conjunction with the National Fusion Center Conference, the priorities 
for the future that were identified by the directors included 
emphasizing privacy, civil liberties, and civil rights protections; 
performing a gap analysis of Baseline Capabilities at each fusion 
center; conducting outreach with the public and all stakeholders; 
promoting data interoperability; and identifying ands asking for 
sustainability funding for fusion centers.
    These priorities provide a solid road map for the future. But to 
move forward, our Nation's leaders must continue to support and fund 
the agencies and partners mentioned herein that are involved in 
building the national, integrated network of fusion centers. Resources 
are needed for fusion centers themselves, and for the training and 
technical assistance programs that support them. These programs are 
critical to ensuring that the promise of fusion centers is realized, 
while avoiding the pitfalls and dangers that can arise.
    On behalf of the colleagues with whom I work at all levels of 
government, we appreciate the support for and interest in the 
effectiveness of fusion centers, and in the protection of privacy, 
civil liberties, and civil rights, that has been consistently 
demonstrated by this subcommittee and by the Committee on Homeland 
Security.

    Ms. Harman. Thank you, Mr. Porter.
    Mr. Bateman.

 STATEMENT OF JOHN E. BATEMAN, ASSISTANT COMMANDER, BUREAU OF 
    INFORMATION ANALYSIS, TEXAS DEPARTMENT OF PUBLIC SAFETY

    Mr. Bateman. Chair Harman, Ranking Member McCaul, and 
Members of the subcommittee, I am here today to speak to you on 
behalf of the Texas Fusion Center, and the six regional and 
local urban-area security-initiative fusion centers located in 
Texas.
    These regional local centers consist of the North Central 
Texas Fusion Center in Collin County, the Metro Operations 
Support and Analytical Intelligence Center, MOSAIC, in Dallas--
they should get an award for coming up with that acronym, by 
the way--I just need to insert that comment--Houston Regional 
Intelligence Service Center, the Austin Regional Intelligence 
Center, the San Antonio Fusion Center, and the El Paso Fusion 
Center.
    These seven centers represent the efforts of 24 State, 
local, county, and Federal agencies to directly support the 
Department of Homeland Security's Fusion Center Initiative.
    The promise of fusion centers is clear. In and of itself, a 
fusion center will not end the threat that terrorism, gangs, 
and organized crime pose to the citizens of the United States. 
However, a network of multi-agency intelligence centers, 
sharing and analyzing information, and then passing that 
information on, both to decision-makers and first-line 
personnel in the field, allow these groups to make better, more 
informed decisions, as they work to thwart the individuals and 
groups who intend to do us harm.
    The Department of Homeland Security has been an incredible 
asset in assisting State and local jurisdictions with the 
development of fusion centers. Their assistance has been much 
more than just proposing a concept and providing funding. The 
DHS has served as a leader by providing personnel to fusion 
centers, offering training opportunities, and developing the 
framework of the fusion center baseline capabilities.
    These baseline capabilities provide a valuable reference 
for State and local jurisdictions as they develop their 
centers.
    I would like to compliment the work of Deputy Under 
Secretary Chet Lunner and Mr. Rob Riegle, and their staffs, for 
all the work they do to assist the State and local centers. 
They are dedicated to their task, and have been an invaluable 
resource as the fusion center initiative moves forward.
    I would also like to recognize Mr. Russ Porter, for his 
contributions to the National Fusion Centers Conference in 
Kansas City. His hard work and dedication made the conference a 
great success.
    The Texas Fusion Center was formed in 2004 as the Texas 
Security Alert and Analysis Center. At its inception, it was a 
watch center for routine law enforcement information sharing, 
the collection of suspicious activity reports from both the 
public and law enforcement, and the dissemination of alerts and 
notifications.
    In 2005, at the direction of, and with the guidance from 
State Homeland Security Director, Steven McCraw, the Texas 
Fusion Center was formed, and is currently a 24/7 State-wide 
intelligence and strategic analysis center, where information 
and intelligence from a variety of sources is exchanged, 
consolidated, and analyzed by a multi-agency team of analysts.
    More than 1,500 of the 2,500 law-enforcement jurisdictions 
across the State are connected to the center through the 
Emergency Response Network, or the ERN. It is an Internet-based 
system that allows the general public and law enforcement to 
submit suspicious-activity reports directly to the fusion 
center for evaluation and analysis by fusion-center personnel.
    While we have had an impressive list of accomplishments 
over the years, we still face a number of challenges: Obtaining 
sustainability funding, training, achieving baseline 
capabilities, and developing and, then, adhering to a privacy 
policy.
    Other than the Texas Fusion Center, which operates solely 
through State funding, all fusion centers of Texas reported 
that their continued viability would require some level of 
Federal sustainability funding. It is important to note that 
this sustainability funding that is provided should be 
designated specifically for fusion centers, so it cannot be 
redirected to another Homeland Security initiative in that 
State.
    The need for comprehensive and uniform analytical training 
is a challenge, on which DHS will need to focus in the future. 
Development and deployment of a core curriculum for all 
analytical personnel will ensure an equal skill level across 
all fusion centers. Currently, the fusion centers are working 
with DHS to bring three separate analytical training courses to 
Texas.
    As Mr. Porter said, this year's National Fusion Center 
Conference--the theme was ``Achieving Baseline Capabilities.'' 
As the director of the Texas Fusion Center, we are currently 
doing the gap analysis that he mentioned. Those baseline 
capabilities are an incredible resource to us as we move 
forward.
    The fusion centers in Texas are directly supported by 24 
State, local, county, and Federal agencies. But that does not 
include the countless other agencies who share unprecedented 
levels of information with these fusion centers. This is a 
paradigm shift to an information-sharing environment, and comes 
with a great responsibility to protect the information from 
misuse, and to protect the privacy rights and civil liberties 
of individuals.
    The fusion centers operating in Texas all recognize this 
responsibility, and all have privacy policies. These privacy 
policies were developed, and privacy advocates were consulted 
when they were developed.
    With these safeguards in place, it is my belief that fusion 
centers in Texas can go forward with their mission, without 
violating the privacy and civil liberties of individual 
citizens.
    In closing, I would like to thank you for the opportunity 
to appear today and explain the fusion center initiative in 
Texas, and be able to address any concerns as we move forward.
    [The statement of Mr. Bateman follows:]
                 Prepared Statement of John E. Bateman
                             April 1, 2009
    Chair Harman, Ranking Member McCaul, and distinguished Members of 
the subcommittee: I am here today to speak to you on behalf of the 
Texas Fusion Center and the six regional and local Urban Area Security 
Initiative (UASI) Fusion Centers located in Texas. These regional and 
local centers consist of:
   North Central Texas Fusion Center in Collin County;
   Metro Operations Support and Analytical Intelligence Center 
        (MOSAIC) in Dallas;
   Houston Regional Intelligence Service Center (HRISC);
   Austin Regional Intelligence Center (ARIC)--in development;
   San Antonio Fusion Center--in development;
   El Paso Fusion Center--in development.
    These seven centers represent the efforts of 24 State, local, 
county, and Federal agencies to directly support the Department of 
Homeland Security's fusion center initiative.
    The promise of fusion centers is clear. In and of itself, a fusion 
center will not end the threat that terrorism, gangs, and organized 
crime pose to the citizens of the United States. However, a network of 
multi-agency intelligence centers, sharing and analyzing information, 
and then passing that information on to decisionmakers and first-line 
personnel in the field, allows these groups to make better, more 
informed decisions as they work to thwart the individuals and groups 
who intend to do us harm. While there have been, in the past, multi-
agency taskforce operations on the enforcement side designed to address 
problems relating to crime and terrorism, the fusion center is the 
first true comprehensive Nation-wide program to combine the analytical 
and informational capabilities of Federal, State, county, local, and 
Tribal agencies.
    The Department of Homeland Security has been an incredible asset in 
assisting State and local jurisdictions with the development of fusion 
centers. Their assistance has been much more than just proposing the 
concept and providing funding. The DHS has served as a leader by 
providing personnel to the fusion centers, offering training 
opportunities, and developing the framework of the Fusion Center 
Baseline Capabilities. The baseline capabilities provide an invaluable 
reference for State and local jurisdictions to use as they develop 
their centers. I would like to compliment the work of Deputy Under 
Secretary Chet Lunner, Mr. Rob Riegle, and their staffs for all the 
work they do to assist the State and local centers. They are dedicated 
to the task, and have been an invaluable resource as the fusion center 
initiative moves forward. I also would like to recognize Mr. Russ 
Porter for his contributions to the 2009 National Fusion Center 
Conference. His hard work and dedication made the conference a great 
success.
    The Texas Fusion Center was formed in 2004 as the Texas Security 
Alert and Analysis Center (TSAAC). At its inception, TSAAC was a 24/7 
watch center for routine information sharing between law enforcement, 
the collection of Suspicious Activity Reports (SARs) from both the 
public and law enforcement, and the dissemination of alerts and 
notifications.
    Today, the Texas Fusion Center is a 24/7 State-wide intelligence 
and strategic analysis center where information and intelligence from a 
variety of sources is exchanged, consolidated, and analyzed by a multi-
agency team of analysts. More than 1,500 of the 2,500 law enforcement 
jurisdictions across the State are connected to the center through the 
Emergency Response Network (ERN), an Internet-based system that allows 
the general public and law enforcement to submit SARs directly to the 
Texas Fusion Center for evaluation and analysis by Fusion Center 
personnel. The SARs are then forwarded to law enforcement field 
personnel for investigative follow-up. To date, almost 20,000 SARs have 
been collected and processed.
    The Fusion Center has an impressive list of accomplishments over 
the years, but we still face a number of challenges: Obtaining 
sustainability funding; training; achieving baseline capabilities; and, 
developing and adhering to a privacy policy.
    Except for the Texas Fusion Center, which operates solely through 
State funding, all the fusion centers in Texas reported that their 
continued viability would require some level of Federal sustainability 
funding. It is important that any sustainability funding that is 
provided to the State and local jurisdictions be designated 
specifically for fusion centers.
    The need for comprehensive and uniform analytical training is a 
challenge on which DHS will need to focus in the future. Development 
and deployment of a core curriculum for all analytical personnel will 
ensure an equal skill level across all fusion centers. Currently, the 
Texas Fusion Center is working with DHS to bring three analytical 
training courses to Texas regarding privacy policy and civil liberties, 
open source reporting, and critical thinking.
    At this year's National Fusion Center Conference in Kansas City, 
the theme was ``Achieving Baseline Capabilities.'' Meeting these 
capabilities is an important focus of our strategic plan. The DHS 
personnel deployed to Texas are a valuable resource as the fusion 
centers work toward identifying and achieving baseline capabilities. 
The most critical capability for fusion centers to achieve is 
development and adherence to a privacy policy.
    Fusion centers in Texas are directly supported by 24 State, local, 
county, and Federal agencies. This does not include the valuable 
indirect support the fusion centers receive from countless other 
agencies who share unprecedented levels of information with the fusion 
centers. With this paradigm shift to an information-sharing environment 
comes a great responsibility to protect the information from misuse, 
and to protect the privacy rights and civil liberties of individuals. 
The fusion centers operating in Texas all recognize this responsibility 
and have privacy policies in place. With these safeguards in place, it 
is my belief that fusion centers in Texas can go forward with their 
mission of dismantling criminal organizations and disrupting terrorist 
operations without violating the privacy and civil liberties of 
individual citizens.
    In closing, I would like to thank you for the opportunity to appear 
today and explain the fusion center initiative in Texas and to be able 
to address any concerns as we move forward.

    Ms. Harman. Thank you, Mr. Bateman.
    Thank you to our panel.
    We will now go to questions by the subcommittee, 5 minutes 
each. I will yield 5 minutes to the Chair for opening 
questions.
    First of all, let me thank, in advance, Secretary 
Napolitano, for coming to Los Angeles in a couple of weeks to 
visit the JRIC, among other things. I think she will see, and I 
am sure Sheriff Baca agrees with me, a state-of-the-art fusion 
center that has learned a lot of the lessons that need to be 
learned, over several years, including how to do its job 
better, and how to protect privacy and civil liberties better.
    As I have often said, security and liberty are not a zero-
sum game. I think we know that in Los Angeles and around the 
country. I see every witness nodding. So I want to thank here 
through you, Mr. Riegle, for that visit upcoming, and hope that 
she will make visits to other parts of the country where there 
are also very interesting things to see. I know she is familiar 
with Arizona's fusion center, and efforts at the border. But I 
am pleased that she wants to get out and about and see what is 
going on in America's neighborhoods.
    Let me continue to address this op-ed, because I think 
those in the audience, and listening in, want to know if the 
allegations are true. I appreciated your comments, Mr. Porter. 
I would just add by extension that the Members of this 
committee also, it seems to me, are being criticized for, I 
suppose, being part of activities that are long gone in this 
Congress, like the House Un-American Activities Committee, and 
et cetera.
    I take personal offense, as I was, some years back, chief 
counsel and staff director of the Senate Judiciary Subcommittee 
on Constitutional Rights. I think I get it. It matters to me 
that we protect privacy and civil liberties.
    But nonetheless, some of the other allegations in this op-
ed are that fusion centers spy on America.
    I want to ask you folks--just go down the line--true or 
false: Do fusion centers spy on Americans?
    Sheriff Baca. False.
    Mr. Riegle. Absolutely false.
    Mr. Porter. False.
    Mr. Bateman. It is not true.
    Ms. Harman. Thank you.
    Mr. Bateman is--I appreciate that. Thank you very much.
    Another allegation in this op-ed is that those in the 
business of intelligence collection--presumably those who work 
at fusion centers--again, I wouldn't call them ``intelligence 
collectors.'' They don't do spying. They put together 
intelligence products for dissemination.
    But anyway, it says ``They are rewarded financially and 
professionally by the volume of intelligence collected.'' True 
or false?
    Sheriff Baca.
    Sheriff Baca. False.
    Ms. Harman. Mr. Riegle.
    Mr. Riegle. Madam Chair--untrue, false.
    Ms. Harman. Mr. Bateman.
    Mr. Bateman. False.
    Ms. Harman. It also says, ``There are no serious quality 
controls''--and we have heard some testimony on this--true or 
false?
    Sheriff Baca.
    Sheriff Baca. False.
    Mr. Riegle. False, again.
    Mr. Porter. False, Madam Chair.
    Mr. Bateman. False.
    Ms. Harman. Finally, it says, ``Few, if any, are capable of 
separating the terrorist wheat from the innocuous chaff. There 
are no reliable earmarks of a would-be terrorist'': True or 
false?
    Sheriff Baca. False.
    Mr. Riegle. False.
    Mr. Porter. I believe that is false.
    Mr. Bateman. False.
    Ms. Harman. Thank you very much.
    Let me, finally, address a question to you, Mr. Riegle.
    This op-ed spends a lot of time on the problems with a 
bulletin that was issued by the North Central Texas Fusion 
System. Mr. Bateman, you also might want to comment.
    Could you tell me what DHS' response was to this bulletin, 
and what happened?
    Mr. Riegle. We took immediate and aggressive response to 
the bulletin. You will get more detail on that in the next 
panel. But we immediately sent a team of civil liberties and 
civil rights experts down to the State of Texas, to work 
directly with the center. This included advocates from the 
Muslim-American community in the United States of America.
    We also, then, immediately altered the director's meeting 
at the National Conference to emphasize the importance of this, 
and went over this particular oversight error as aggressively 
as we possibly could. I will leave it at that, to allow Mr. 
Bateman some time to respond, as well.
    Ms. Harman. Fine.
    Mr. Bateman, you have 33 seconds.
    Mr. Bateman. Thank you.
    Chief Kelley Stone, of the North Central Texas Fusion 
System, took responsibility for this. He met with Rob Riegle 
and their staff. They have implemented new review and editing 
policies. They have met with people, and are retraining 
everyone in the area of privacy and civil liberties.
    I would disagree with Mr. Riegle's assertion that it was 
aggressive. I would say it was responsible. But I don't think 
anybody viewed it as aggressive response.
    Ms. Harman. Thank you, Mr. Bateman.
    My time has expired. I now yield to Mr. McCaul, for 5 
minutes.
    Mr. McCaul. I thank you, Madam Chair. You know, after 
September 11, we have two pictures behind the witnesses: One of 
the World Trade Center, one of the Pentagon. The big allegation 
was we weren't connecting the dots, and we weren't sharing 
information, and the left hand didn't know what the right hand 
was doing, and that there wasn't any coordination with State 
and local law enforcement.
    You know what? Those were all pretty accurate. In my 
experience, just as the criminal side didn't talk to the 
intelligence side of the house, there wasn't any real 
coordination with State and locals. Mohamed Atta was picked 
up--was stopped in a routine traffic violation, but nothing was 
done to stop that.
    So I actually wanted to, as the Chair--I want to go through 
some of these. Then I want to--I got a question about the 
border.
    But I, personally, find this one assertion--having worked 
with law enforcement for a good deal of my career--insulting. 
That is that ``The First Amendment principles will never be 
honored by law-enforcement officers or public officials in the 
intelligence arena.'' I assume that this entire panel disagrees 
with that assertion. Is that correct?
    ``There are no serious quality controls'': Does everyone 
disagree with that assertion?
    ``Few if any are capable of separating the terrorist wheat 
from the chaff--no reliable earmarks of a would-be terrorist.''
    I would--anybody that would like to jump in and comment on 
that specifically? Then I will have a couple minutes to ask 
some questions about coordination with law enforcement at the 
border.
    Sheriff Baca. Simply, the functionality of a fusion center 
is to, in fact, protect the civil rights of people, as opposed 
to do randomness. In terms of what we do specifically, it is 
really the key mark--earmark, or the key highlight of a fusion 
center.
    Mr. McCaul. Mr. Riegle.
    Mr. Riegle. I think the evidence suggests that there were 
clear opportunities to mitigate the risk of 9/11, that were 
missed; and fusion centers, as the Chair has stated publicly, 
on numerous occasions, are the most likely to determine this. I 
think they are effective at doing that.
    Mr. McCaul. Mr. Porter.
    Mr. Porter. Thank you.
    I just want to speak to the ``quality controls'' reference 
very quickly. If you go back to the National Criminal 
Intelligence Sharing Plan, we used a framework that was 
advocated by Kenneth Culp Davis, many, many years ago, about 
controlling discretion in the criminal justice system: 
Eliminate unnecessary discretion, structure the necessary 
discretion, and provide checks and balances. That is the 
framework we have used to continue to go forward and 
continually improve in our ability to deliver effective fusion 
center services, while protecting constitutional rights.
    Mr. McCaul. Mr. Bateman.
    Mr. Bateman. I would like to address the comment about 
the--``there are no earmarks to identifying a terrorist.''
    The specific terrorists--that may be a true statement. 
However, there are certain activities that these plans have 
that, in and of themselves, may not be illegal. But they do 
indicate that there may be some kind of planning in place. 
Those kind of things are the type of information that--that 
need to be collected and looked at--disregarded, if it doesn't 
apply; but, then, certainly, evaluated and forwarded for 
follow-up, if they do apply.
    Mr. McCaul. I think that is what the American people 
expect. They expect us to protect them. I think the fusion 
centers play a vital role in protecting the American people. 
But that is just my point of view.
    The border initiative that Secretary Napolitano has 
unveiled includes additional manpower for intelligence 
analysts. We, yesterday, did a hearing on interoperability--had 
the two sheriffs--one from Texas--Zapata County Sheriff 
Gonzalez, who raised the issue that, in terms of information 
sharing, we have a long ways to go.
    I don't know--Mr. Bateman, you may be in the best position 
to answer this--but as we deal with a threat that is emanating 
from Mexico--there is a--after all, a war down there, against 
the drug cartels. Can you comment on the role of the fusion 
center, with respect to State and local law enforcement down on 
the border?
    Mr. Bateman. The fusion center in Texas has analysts that 
are assigned to different groups on the border. We make 
ourselves available to them if they have a request. Also, we 
push information to them if we feel that it applies to their 
area.
    I know the sheriff you refer to, and he is aware of the 
fusion center, and that it is available to him. I will meet 
with him when I get back to Texas. We will work out any 
differences we may have.
    Mr. McCaul. Well, I look forward to that. I will yield back 
the balance of my time.
    Ms. Harman. I thank the gentleman.
    The Chair now yields to Mr. Souder, of Indiana, for--I am 
aware, Mr. Souder, but you were here before the gavel.
    Mr. Souder. Thank you, Madam Chair.
    I don't hear a lot of people in my district, wandering 
around, going, ``Oh, you know, I don't like these fusion 
centers. I would rather have it be kind of random, where they 
are uncoordinated, going out, arresting each other every so 
often, doing duplicative work.'' I don't understand the debate. 
Just for the record, Mr. Porter, if Jesus were wandering around 
in Iowa, preaching peace and personal repentance, do you think 
he would be in your files?
    Mr. Porter. I know that he would not be in our files.
    Mr. Souder. Well, I was nervous by that statement by Mr. 
Fein.
    That--and--and Sheriff Baca, do you go through the eBay 
records--do personality profiles on taxpayers who don't like to 
pay taxes, like that tea party?
    Sheriff Baca. Absolutely not.
    Mr. Souder. I mean, the implications of the statements from 
Mr. Fein, and the paranoia from some people, that that feeds, 
is really harmful, because the reason we have the fusion 
centers--and I want to ask Mr. Riegle--do you still see the 
primary purpose of the fusion centers to be antiterrorism?
    Mr. Riegle. I would answer the question this way: It is the 
most important thing that they do in a fusion center--this 
antiterrorism work. It isn't the bulk of the work they do, 
however, but it is the most important, yes.
    Mr. Souder. Do you see narcotics as part of that?
    Mr. Riegle. Well, clearly, we want to look at and examine 
any nexus between other criminal activity, whether narcotic 
trafficking or human trafficking and smuggling, or any sort of 
feeder crime that could support material activity in response 
to material support for terrorism. Yes, we do examine that, and 
we encourage that.
    Mr. Souder. But you don't see, given the fact that you are 
working mostly with local agencies, and that Department of 
Homeland Security, with Border Patrol, and ICE, and the--and so 
on--have more anti-drug agents than any other agency--and local 
law enforcement--narcotics is a big part of their daily--you 
don't see narcotics, which is defined in the Homeland Security 
legislation as part of terrorism--you don't see that as a 
significant part? It isn't in your testimony anywhere.
    Mr. Riegle. Well, it is a significant part. The actual day-
to-day mechanics of the fusion center are done through our 
analysis group, as far as the direct work, with what we focus 
on departmentally. We do focus heavily on the counter-drug 
issue, especially on the southern border, because it does feed 
a lot of other violent activity. We understand that.
    Mine is more of a process role, quite honestly. I am more 
in the facilitation of the deployment of the systems----
    Mr. Souder. Well, the reason this becomes relevant is that 
El Paso--I know, at one point, they had seven intelligence 
centers just in El Paso, overlapping a lot on--on drugs and 
border--and that, when local police are picking up people, 
often, it is related to narcotics. Criminal organizations are 
criminal organizations.
    In Los Angeles, for example, you have arson gangs and you 
have gangs that specialize in robberies, and so on. But, 
basically, the criminal organizations work together, even 
contract with each other, and narcotics is a key part of this.
    Are you interconnecting--let me ask Sheriff Baca--with the 
Los Angeles HIDTA? Do you work with EPIC? How do you see your 
fusion center, and the fact that much of the arrest record has 
to do with narcotics? How do you interrelate these different 
intel centers?
    Sheriff Baca. Completely in the Los Angeles Regional 
Intelligence Center--we are talking about all crimes. That is 
what you are alluding to. There is a reality that terrorism 
activity is a crime. So the techniques that we use for 
robberies, narcotics, for thefts, for grand theft auto and 
rapes and so forth, are the very process by which we cull out 
the probable cause, protect the constitutional rights of 
Americans, including the criminals, and then we move forward.
    Mr. Souder. In New York City, they have attempted, along 
with New Jersey and Connecticut--because of what happened 
there, they have interconnected the HIDTAs, the fusion centers, 
and have a better coordination. In Los Angeles, is it similar? 
Are you working together?
    Because, probably, you have people in multiple agencies. 
The question is: How do you fuse the intelligence from all 
these different kind of Government divisions? Some are under 
judiciary. Some are under the drug czar. Some are under 
Treasury. Part of the idea was the fusion center, but we don't 
want a proliferation of fusion centers, either.
    Sheriff Baca. You have just described very accurately what 
the Los Angeles Fusion Center does. We reach down to five other 
counties, and--including the Las Vegas metropolitan area. The 
clear idea that you have just described is that the entire 
Nation needs to be fused. Why? Because we have 19,000 law 
enforcement agencies, and 3,000 of them which are sheriff's 
departments.
    All of us are better off when we share criminal data that 
is verifiably accurate, and it also is gathered under a 
constitutional requirement that includes civil rights, that we 
have discussed earlier.
    Mr. Souder. Thank you.
    Ms. Harman. Thank you, Mr. Souder.
    The Chair now recognizes Ms. Clarke, who is chair of the 
Homeland Security Subcommittee on Emergency Threats and 
Cybersecurity--issues that are closely related to what we are 
discussing today--for 5 minutes of questions.
    Ms. Clarke. I thank Chair Harman and Ranking Member McCaul, 
for arranging this important hearing.
    As a New Yorker who witnessed the horror of the 1993 World 
Trade bombing and the 9/11 attacks first-hand, I am committed 
to finding solutions to the information-sharing problems that 
hindered our ability to prevent the attacks.
    Today, fusion-center officials remain concerned that the 
Office of Intelligence and Analysis has not developed an action 
plan to ensure it understands and can meet the centers' 
evolving and unique information needs and requirements; i.e., 
beyond the view of Muslim-Islamic actors, the emerging and 
increasing threat of drug cartels, as well as cyber-attacks and 
threats, and human trafficking.
    I just heard the response to the question of how we really 
make fusion centers fuse throughout this Nation. So my question 
to the witnesses is: Some have argued that DHS should operate 
like a national fusion center, pulling information from State 
and local fusion centers, reviewing it together with overseas 
intelligence, and, then, creating intelligence products that 
provide national situational awareness of threats.
    I want to know what your response to that is and whether 
you think it makes sense or not.
    Sheriff Baca. I would totally agree with what you have 
said.
    The problem with intelligence gathering is that you can't 
get enough accuracy going to the level where all of us are 
sharing what is essentially a core problem, wherever it 
emerges. Many of us have had to travel abroad, outside our 
Nation, in order to get information. Strategies are just as 
important as the information. What are you going to do with it?
    So, in the national statement that you have mentioned, we 
would like to be a little more involved in policy development, 
because it is the actions that emerge from the intelligence 
that are as--just as important, if not more important, than the 
intelligence itself.
    Mr. Riegle. I think the sheriff is exactly right. I do 
think it is the role of DHS to fuse information that is 
collected or examined at the centers, that looks at what the 
threat really is at the local level, and brings that back to 
Washington, DC, and does a joint examination with our Federal 
partners, along with State participation and local 
participation, to see what, exactly, that means.
    The secretary deserves to have the situational awareness of 
what the risks really are. They are best identified at the 
local level, as I stated in my previous testifying.
    I would, though, say that we should show some deference to 
the secretary's ability to run and manage in a way she finds 
most effective, giving that she still has only been here a 
little over 60 days. But I think she will take that 
recommendation on with the utmost seriousness. I am committed 
to help her do that.
    Mr. Porter. Ma'am, I concur with Mr. Riegle and his 
assessment.
    I would just say also that, certainly, this has to be done 
in a pluralistic environment. We have a lot of different 
agencies with that interest. Certainly, even in my State, we 
would like to have situational awareness that is at a national 
level.
    Our Federal partners have done a tremendous job working 
together on training and technical assistance, and finding the 
right role or lanes in the road for each of them. I think they 
could also do the same thing with this issue.
    Mr. Bateman. We have DHS personnel from Washington, DC, 
assigned to our centers. They are invaluable to us in getting 
information that we have, that we may not recognize the full 
value of, to Washington, DC, and getting things from 
Washington, DC, brought down to us. They also help us to 
navigate the complexities of the DHS structure, which sometimes 
overwhelm the smaller centers.
    So while they don't have a comprehensive plan in place, 
they do have mechanisms in place to allow for that to go on--
that sharing to go on.
    Ms. Clarke. I guess my concern is that they will become 
sort of a standard. Because, at that point, we can, then, 
address the issues of civil liberties and privacy. As long as 
there is this sort of imbalance, I think that that remains an 
area that is sort of grey. The more that we can bring clarity 
to it, the better off we will be.
    Let me just close by asking Mr. Porter how important it is, 
transparency to the public, privacy, and civil liberties 
advocates, and the media, in terms of the future of fusion 
centers? In your view, what privacy and civil liberties 
criticisms of fusion centers, over the last year, have been 
fair, and what has been unfair or misinformed? How have you 
responded?
    Mr. Porter. Thank you.
    I think, in the interest of time--and I would be happy to 
come back to this. I don't want to use up too much time on the 
answer.
    The fact that significant portions of the National Fusion 
Center Conference were open to the media and to advocates--as 
well as the fact that we are encouraging fusion centers, when 
there is an interest in media or advocates, to come through and 
learn about the center. We are encouraging that process. That 
has gone a long ways to helping provide an understanding in 
terms of complaints or issues or concerns, so that that 
dialogue is happening in a healthy way, with understanding.
    I am not sure I am speaking fully to your question at this 
point.
    Ms. Clarke. We will probably address that another time. My 
time is up, and I yield back.
    Mr. Porter. Thank you.
    Ms. Harman. I thank the gentlewoman.
    The Chair now yields to Mr. Himes, of Connecticut, for 5 
minutes.
    No questions?
    Mr. Green. Mr. Green, you are recognized for 5 minutes.
    Mr. Green. Thank you, Madam Chair.
    I thank the witnesses for appearing, and apologize for 
being a little bit late arriving. We have other hearings that 
are taking place. I am trying to be at multiple places at the 
same time. So please forgive me. But I do appreciate your 
taking the time to come in.
    I understand that some questions have already been asked 
that I would probably pursue. Hopefully, I won't get us into a 
point where we are being superfluous or redundant. But I do 
have the article that has been called to the attention of this 
panel.
    I think that it is appropriate that this panel have an 
opportunity to respond, because you have intelligence that can 
help us with our intelligence. So I would like to visit with 
you for just a moment about a few things akin to, or associated 
with, this article.
    Let me ask just a basic question, because it would be 
unfair for me to ask you to comment on something you haven't 
read. Have you had an opportunity to peruse the article that I 
am speaking of, styled, ``Surveilling for Clues of Evil 
Intent''?
    If you have had an opportunity to peruse it, would you 
kindly extend a hand into--this way--I will know. All right, 
everyone has. Good.
    This is a broad question: Is there something about this 
article that gives you reason to want to make a comment, such 
that I can allow you to speak, without my having to sift 
through the sand and find all of the pearls of wisdom that you 
may impart?
    So let us start with whomever would like to speak first. Is 
there something about it you would like to share with us? 
Please.
    Sheriff Baca. Well, the article is extremely offensive and 
inaccurate.
    First of all, the idea that First Amendment Principles will 
never be honored by law-enforcement officers or public 
officials in the business of intelligence collection is 
categorically false.
    The fact that there is a reference that we ``will be 
rewarded financially and professionally by the volume of 
intelligence collected'' is completely false; that ``there is 
no serious quality controls''--that is completely false. Myself 
and the Joint Regional Intelligence Center of Los Angeles, 
along with those throughout the Nation, have been trained on 
these very subject matters.
    ``Few are capable of separating the wheat from the 
innocuous chaff''--that is false. We know that fusion centers 
are designed to do that very thing. Let me comment on this. 
When 9/11 occurred, 8,000 tips came into the FBI about 
suspicious activity, because people in American were very 
upset. We had to go through all of that to make sure that we 
were getting to the right pieces of information, and we did. 
That is the purpose of a fusion center.
    I can assure you, Congressman, when the next attack occurs, 
God forbid, we are going to have Americans making phone calls 
all over America, to local police departments, asking for us to 
investigate suspicious activities.
    They are the greatest potential violators of civil rights. 
Now, we are in the business of protecting civil rights. 
Therefore, I am saying to the American public--we will answer 
your requests, but we will do it within the structure of law.
    Mr. Green. Thank you.
    Yes, sir.
    Mr. Riegle. Congressman, I think one of the things that is 
underrepresented is the approach in the national network of 
fusion centers. We have to share information.
    You can take, really, one of two approaches. You can work 
with people that live in the community, among the citizens that 
they protect, and give them the lead. They have the trust 
already, and have for, you know, since the beginning of the 
Nation--had the trust of the fire and police that protect them. 
We can put the approach in their hands, and believe in their 
ability to carry out this mission. Or we can do it from the 
Federal Government in Washington, DC.
    I would submit to you that most people are comfortable with 
having that approach taken locally, not from the beltway. That 
is my comment on that.
    Mr. Green. Mr. Porter.
    Mr. Porter. I will refer to my comments earlier.
    But I will say this, and allow Mr. Bateman to respond. The 
commentary does talk about the Palmer raids, McCarthyism, 
COINTELPRO, which have been talked about, to fusion centers--in 
the history of law enforcement intelligence, as we presented to 
them.
    I will say, ``Hats off,'' to Mr. Fein, for referencing 
Operation Shamrock. That is something I don't know about, but 
we will be learning about, so that we can share that 
information with fusion centers.
    Mr. Bateman. Mr. Fein's article is certainly--overstates 
some things and makes some--what I would consider vitriolic 
claims. But there is a--I hope his underlying point is that he 
needs--he is concerned that there is no privacy policy or civil 
liberties concerns among the fusion centers.
    That is not true. I think the hearing here, today, 
demonstrates that. However, he is marginalizing his opinion by 
the statements he makes that are so demonstrably false.
    Mr. Green. Thank you.
    The Chair has indicated that my time is up.
    Thank you very much.
    I yield back, Madam Chair.
    Ms. Harman. Thank you, Mr. Green.
    Everyone has had a chance to question this panel. We have a 
second panel coming up.
    So I would like to thank this panel for your service to a 
grateful Nation, and your on-going concern about civil rights 
and civil liberties, and excuse you now.
    Thank you very much.
    It will take a minute to set up the next panel. So the 
committee will be in recess for about a minute.
    [Recess.]
    Ms. Harman. Fast work by able staff.
    The subcommittee is in order.
    I would like to welcome our second panel of witnesses.
    Our first witness, Bruce Fein, served as associate deputy 
attorney general for the Justice Department, and general 
counsel for the Federal Communications Commission, under 
President Ronald Reagan.
    Mr. Fein later served as legal advisor to then-Congressman 
Dick Cheney on the Joint Committee on Covert Arms Sales to 
Iran. He also served on an American Bar Association task force 
in 2006 that that addressed the issue of usurpation of 
legislative power by the Executive branch, and subsequently 
founded an organization called The American Freedom Agenda in 
2007.
    I have personally consulted Mr. Fein from time to time on 
issues important to this subcommittee, such as the National 
Applications Office, and the very controversial and difficult 
issue of violent extremism.
    Our second witness, Ned Norris, Jr., is chairman of the 
Tohono O'odham Nation, a federally recognized tribe of 28,000 
people, who reside on and off tribal lands in southwestern 
Arizona, and across the international border, in Mexico.
    The Tohono O'odham Nation is one of the largest tribes in 
the southwest, with a land base of 2.8 million acres, and 4,460 
square miles; approximately, the size of the State of 
Connecticut. The Nation has the second-largest tribal-land base 
in the United States.
    Mr. Norris started his employment with the Tohono O'odham 
Nation in 1978, as a non-attorney tribal judge, and held the 
position until 1993. He served as a Sunnyside Unified School 
District board member from 1997 to 2000.
    Our third witness, David Gersten, is the acting deputy 
director for Programs and Compliance, in the Department of 
Homeland Security's Office for Civil Rights and Civil 
Liberties.
    In this capacity, he works to fulfill the office's mission 
to provide policy guidance to Departmental leadership on civil 
rights and civil liberties. Mr. Gersten manages several units 
and individuals, who serve as information and communications 
channels with the public, regarding these key issues. They 
include units dedicated to engagement with the American Arab 
and Muslim communities, civil rights and civil liberties 
training for DHS personnel and partners, and review of how the 
Department's use of technology and its approach to information 
sharing impacts civil liberties.
    Without objection, the witnesses' full statements will be 
inserted in the record. I would now each of--now ask each of 
you, starting with Mr. Fein, to summarize your statement, in 5 
minutes or less. Please do observe the time clock, which I 
think is visible to you.

    STATEMENT OF BRUCE FEIN, PRINCIPAL, THE LITCHFIELD GROUP

    Mr. Fein. Thank you, Ms. Chair, and Members of the 
subcommittee.
    I want to make some opening observations about why I think 
it is not paranoid to be suspicious about Government 
investigations, intelligence collection, post-9/11, whether it 
is in the process of fusion centers or otherwise.
    Shortly after 9/11, there began what President Bush styled, 
the ``Terrorist Surveillance Program.'' That was an effort to 
spy on Americans on American soil. It is in contravention of 
the Foreign Intelligence Surveillance Act of 1978.
    We still, today, don't know how many thousands of Americans 
were spied on; why they were spied on; why it is that, despite 
the open confession that this was a violation of the Foreign 
Intelligence Surveillance Act, there has been no investigation 
to determine liability under the act.
    Both the previous administration and this one have invoked 
``state secrets'' to prevent full disclosure to the American 
people as to who was spied on, what happened to their 
information. I know you, Ms. Chairman--know you don't know 
either--and that the administration didn't tell you anything.
    On the other hand, they also had their Privacy Protection 
Committee--internal privacy-protection committees within the 
Executive branch. They assured us every 45 days that the only 
people being spied on were those who were known al Qaeda 
agents.
    We have no ability to know whether that is accurate. If 
that were true, we are puzzled as to why both the previous, and 
this administration, continue to invoke ``state secrecies'' to 
conceal from us who was spied on, and why, and what was done 
with that information. This is now 7 years--7 years--after that 
fact--no disclosure whatsoever, even to this Congress of the 
United States.
    Now what else happened after 9/11 that makes us somewhat 
suspicious? Remember, there began what now has been conceded to 
be waterboarding--something that the International Committee of 
the Red Cross has styled ``torture.'' That is not an arm of a--
necessarily, a paranoid group. Still, no accountability, 
whatsoever. No accountability, whatsoever.
    We have been told also that all of these investigations, 
spying--they stopped countless terrorist acts in the bud. No 
proof, just an assertion by the previous Vice President of the 
United States. We don't know that.
    Now, all the so-called ``privacy protections'' built in to 
these programs are all internal--the same internal privacy-
protection programs that were to protect us from the Foreign 
Intelligence Surveillance Act, the torture, those who are 
detained at Guantanamo Bay, without accusation or charge. 
Remember, we knew, from our intelligence, they were the worst 
of the worst. These were the people who were out there plotting 
every day to commit another 9/11.
    Then, what has happened--when you actually had an outside--
not an internal investigation--outside habeas corpus review--
virtually everyone has been released. There is now no evidence 
they are so-called ``the worst of the worst.''
    So there is reason why, after 9/11, which was the impetus 
for the fusion centers--the effort of enlisting State and local 
officials into doing the same things that the FBI and the CIA 
were doing at a national level to prevent another 9/11--to 
think that, perhaps, the spying is going too far.
    Now, so much has been made also of the--I won't go into all 
the criticism in my testimony. I am sure you will have many 
questions of me after I conclude my opening statement.
    But it is said that this citation to the Texas Fusion 
Center overreaching was an aberration. Suddenly, the fusion 
center was called to account by Federal authorities or 
otherwise, and given privacy lectures.
    Well, there are a couple things that I would like to 
observe. No. 1, we weren't told that a single person involved 
in preparing this report--which suggests that if you celebrate 
any kind of Islamic creed, you are somehow suspect--was 
punished, was reprimanded--anything bad happened to them--same 
thing with regard to foreign intelligence--like that--people 
involved in torture--John, you--anybody? No sanctions 
whatsoever. What message does that send to those who are on the 
front line? Is this wrong if you don't get any sanction, 
demerit, for what you have done here?
    Now, let me also go to what I think suggests that this 
problem is more than just isolated. We don't have fusion 
centers subject to the Freedom of Information Act. We don't 
have outside independent scrutiny, who goes in and examines: 
What is the scope of the intelligence being collected? We have 
statements of people involved saying, ``Well, we have great 
privacy committees,'' but we don't have any outside check.
    We know, from your position here, in Congress, checks and 
balances mean an institutional separation, not internally, 
here. We don't trust the Executive branch to police itself. We 
don't trust the Judiciary to police itself, or Congress. 
Separation of powers means separation of institutional 
incentives. We don't have any assurance that--other than self-
serving statements--that the Texas Fusion Center isn't typical.
    Moreover, there was never any statement as to what was 
thought wrong about this particular intelligence report 
highlighting--very ominous--``Middle Eastern terrorist groups 
and their supporting organization have been successful in 
gaining support for Islamic goals in the United States, and 
providing an environment for terrorist organizations to 
flourish.''
    Well, what is wrong with that? Where is----
    Ms. Harman. Mr. Fein, could you please summarize? You have 
gone over the 5 minutes.
    Mr. Fein. Yes. Thank you. I apologize. I appreciate that 
indulgence.
    I would like to know what it was that was said--what was 
wrong under the First Amendment in the Constitution about this 
particular bulletin. That would give some assurances that the 
people knew what was wrong.
    The last thing: Without sunshine on all of these fusion 
programs, we don't know whether this is an aberration, whether 
anybody has ever been sanctioned whatsoever, for undertaking 
this kind of spying for political intelligence.
    Thank you.
    [The statement of Mr. Fein follows:]
                    Prepared Statement of Bruce Fein
                             April 1, 2009
    Dear Ms. Chair and Members of the subcommittee: The Soviet Union 
had its KGB, East Germany had its Stasi, and the United States should 
profit by those examples. It should abandon fusion centers that engage 
800,000 State and local law enforcement officers in the business of 
gathering and sharing allegedly domestic or international terrorism 
intelligence. The vast majority conceive this task as synonymous with 
monitoring and disparaging political dissent and association protected 
by the First Amendment.
    To a hammer everything looks like a nail. To an intelligence agent, 
informant, or law enforcement officer, everything unconventional or 
unorthodox looks like at least a pre-embryonic terrorist danger. The 
United States should not fall victim to the French Bourbon Monarchy 
disease of forgetting nothing, and learning nothing, as with the A. 
Mitchell Palmer Raids, McCarthyism, COINTELPRO, or Operation Shamrock.
    Fusion centers are philosophically at war with freedom of speech 
and religion, the democratic process, and privacy. They pivot on the 
idea that the constitutionally legitimate and most effective way to 
forestall a second edition of 9/11 or a variation is to spy on American 
citizens in search of clues of an inclination towards future terrorism. 
Under United States law, an earmark of terrorism includes acts that, 
``appear to be intended . . . to influence the policy of a government 
by intimidation or coercion . . . ''. Any political dissident is thus a 
candidate for spying, who routinely makes his way into daily 
intelligence reports.
    Under the standards employed by fusion centers and their 
tributaries to collect intelligence, participants in the Boston Tea 
Party, the Secret Committees of Correspondence, Paul Revere's Ride, and 
the Declaration of Independence would all have been subjects of 
suspicious activities reports, placed on a Government watch list, and 
blacklisted from Government and private employment. The anti-slavery 
movement ignited by William Lloyd Garrison would have been stillborn. 
Ditto for the movement for women's suffrage begun in Seneca Falls, New 
York in 1948, and featuring Susan B. Anthony's criminal prosecution for 
attempting to vote. The civil disobedience protests that ended the 
Vietnam War and Jim Crow would have been squelched. The FBI spied on 
Reverend Martin Luther King, Jr. by using warrantless electronic 
surveillance or otherwise because of the absurd suspicion that 
Communist influence had made him hostile to White Supremacist 
subjugation of his entire race.
    Then National Security Adviser Henry Kissinger epitomized the 
presumption of guilt which warps the mind of the typical spy. He guided 
the FBI's investigation of a suspected aide who leaked the Nixon 
administration's secret bombing of Cambodia in 1969 to the New York 
Times. Wiretaps were initially placed on Morton Halperin, and were 
extended to others whom Kissinger suspected of undermining his White 
House influence. Two months of wiretaps and bugs yielded no useful 
clues, but Kissinger directed continuance of the surveillance to permit 
the targets an opportunity to establish a ``pattern of innocence.''
    We do not need to speculate about fusion center mischief. On 
February 19, 2009, the North Central Texas Fusion System issued a 
``Prevention Awareness Bulletin'' that might easily have been penned by 
recruits from East Germany's Stasi. In bold letters, the bulletin 
worries that freedom of speech, petitioning Government for redress of 
grievances, and freedom of association are being exploited by Islamic 
groups to advance their ``Islamic-based'' goals (which are never 
defined) by peaceful and lawful means. In other words, democracy or 
free speech are the enemy. The first page highlights: ``Middle Eastern 
Terrorist groups and their supporting organizations have been 
successful in gaining support for Islamic goals in the United States 
and providing an environment for terrorist organizations to flourish.'' 
It continues: ``A number of organizations in the U.S. have been 
lobbying Islamic-based issues for many years. These lobbying efforts 
have turned public and political support towards radical goals such as 
Shariah law and support of terrorist military action against Western 
nations.''
    The supreme folly of that disparagement of freedom of speech and 
association in search of political change was underscored by United 
States Chief Justice Charles Evans Hughes in De Jonge v. Oregon (1937): 
``These rights may be abused by using speech or press or assembly in 
order to incite to violence and crime. The people through their 
legislatures may protect themselves against that abuse. But the 
legislative intervention can find constitutional justification only by 
dealing with the abuse. The rights themselves must not be curtailed. 
The greater the importance of safeguarding the community from 
incitements to the overthrow of our institutions by force and violence, 
the more imperative is the need to preserve inviolate the 
constitutional rights of free speech, free press and free assembly in 
order to maintain the opportunity for free political discussion, to the 
end that government may be responsive to the will of the people and 
that changes, if desired, may be obtained by peaceful means. Therein 
lies the security of the Republic, the very foundation of 
constitutional government.''
    The fusion center viewed with alarm constitutionally protected 
speech and activity which are the backbone of democracy and prevent the 
ideological landscape from turning into a petrified forest. Even the 
U.S Department of Treasury is scorned for hosting a conference entitled 
``Islamic Finance 101.'' Counterparts to the fusion center report on 
political dissent can be found in every totalitarian or despotic 
country in the world, for example, Iran, Russia, or Burma. The fusion 
center bulletin continues:

``We give some examples of these lobbying activities.

``The Council on American Islamic Relations (CAIR) presents itself as a 
Muslim Civil Liberties group yet it was named an unindicted co-
conspirator in the Justice Department's case in Dallas against the Holy 
Land Foundation, a Hamas-linked Islamic charity. CAIR's agenda was best 
illustrated by founder Omar Ahmad who told the San Ramon Herald, `Islam 
isn't in America to be equal to any other faith, but to become 
dominant. The Koran should be the highest authority in America, and 
Islam the only accepted religion on Earth.' ''

    It speaks volumes about religious prejudice that the fusion center 
omitted mention of the many groups who espouse the supremacy of Judeo-
Christian religions and declare that the United States is a Judeo-
Christian nation (in contravention of the religious neutrality 
compelled by the Constitution). Presidential candidate John McCain, for 
instance, sermonized: ``We are a Judeo-Christian nation.'' In addition, 
speech urging the Koran as the highest authority in America is fully 
protected by the First Amendment no matter how politically disagreeable 
to the majority or to the fusion center zealots. Supreme Court Justice 
Oliver Wendell Holmes observed in Gitlow v. New York (1925): ``It is 
said that this [Left Wing] manifesto was more than a theory, that it 
was an incitement. Every idea is an incitement. It offers itself for 
belief and if believed it is acted on unless some other belief 
outweighs it or some failure of energy stifles the movement at its 
birth. The only difference between the expression of an opinion and an 
incitement in the narrower sense is the speaker's enthusiasm for the 
result . . . If in the long run the beliefs expressed in proletarian 
dictatorship are destined to be accepted by the dominant forces of the 
community, the only meaning of free speech is that they should be given 
their chance and have their way.''
    The fusion center's bulletin continues its attack on the 
Constitution's celebration of religious accommodation and diversity 
with a cri de coeur against displays of sensitivity towards Islam and 
the possibility of altering American law accordingly:

``Taken in that context, pushing an aggressive, pro-Islam agenda that's 
been increasingly successful in recent years takes on a new light. The 
following list taken in isolation seems rather innocuous: Muslim cab 
drivers in Minneapolis refuse to carry passengers who have alcohol in 
their possession; the Indianapolis airport in 2007 installed footbaths 
to accommodate Muslim prayer; Public schools schedule prayer breaks to 
accommodate Muslim students; Pork is banned in the workplace; etc.

``Tolerance is growing in more formal areas. The Department of Treasury 
recently hosted a conference entitled `Islamic Finance 101' which 
indicates the possibility that the government hopes to secure recycled 
petrodollars in exchange for conforming to Shariah economic doctrine. 
Christopher Holton of the Center for Security Policy refers to Islamic 
finance, or `Shariah-Compliant Finance' as a `modern-day Trojan horse' 
infiltrating the U.S. He said it poses a threat to the U.S. because it 
seeks to legitimize Shariah--a man-made medieval doctrine that 
regulates every aspect of life for Muslims--and could ultimately change 
American life and laws. A Houston bank now offers Islamic Financing for 
home loans.''

    The fusion center would certainly have filed a suspicious 
activities report against Jesus for threatening pagan dominance in the 
Roman Empire by preaching monotheism. A Roman fusion center would 
probably have cheered the crucifixion because Christianity was 
endangering traditional Roman life and laws.
    Next in the center's intelligence cross-hairs are opponents of the 
global military projection of the United States who are viewed with 
anxiety because of their dissidence:

``A recent conference, titled `International Forum for Resistance, 
Anti-Imperialism, Solidarity between Peoples and Alternatives,' was 
held on January 16-18, 2009, and hosted by the Consultative Center for 
Studies and Documentation (CCSD), a Hezbollah-affiliated think tank. 
The conference was co-sponsored by several international far left 
groups, including the International Campaign Against U.S. and Zionist 
Occupations, a coalition co-founded by the International Action Center 
(IAC). The keynote address was given by Naim Qassam, Hezbollah's deputy 
secretary general. He talked about the need to rearm Hamas in Gaza and 
stated that `We must intensify the struggle against NATO' and talked 
about finding a way to disrupt `the imperialist and Zionist war 
machines.' ''

    Ever word that was treated with suspicion is protected by the First 
Amendment under Brandenburg v. Ohio (1969) and NAACP v. Claiborne 
Hardware (1982). Even speech that encourages law violations is 
protected unless it is intended to provoke imminent lawless violence 
and is likely to have succeeded.
    The center also perceived critics of the U.S. war in Iraq as good 
candidates for terrorism. Its bulletin degenerates into a version of 
Japan's pre-World War II thought police:

``IAC was founded by former U.S. Attorney General Ramsey Clark. The IAC 
delegation led by Clark included former Congresswoman Cynthia McKinney. 
The IAC views Hezbollah and Palestinian terror groups like Hamas and 
groups fighting U.S. forces in Iraq as legitimate popular resistance 
forces and a bulwark against U.S. imperialism and `Israeli terrorism.' 
''

    The center thus urges law enforcement to place the IAC on its watch 
list for believing in bad ideas:

``The IAC also has operations in the United States including one of the 
main anti-war and anti-Israel protest movements in the U.S. called 
ANSWER, Act New to Stop War and End Racism. Law enforcement should be 
aware of activities in their area.''

    The center looks askance at Islamic groups aping the promotional 
and advertising gimmicks of Madison Avenue to promote their ideas by 
exploiting freedom. Apparently only Christian organizations should 
stoop to self-promotion through blogs, chat forums, and hip-hop music:

``Islamic radicalization have been reported by such groups as Hizb-ut-
Tahir who have a goal of overthrowing governments and replacing them 
with a caliph. They take advantage of growing tolerance in the U.S. 
Some of their marketing schemes have included hip-hop fashion 
boutiques, hip-hop bands, use of on-line social networks, use of video 
sharing networks, chat forums and blogs. They have been especially 
active in California, New York, Wisconsin, and Chicago. They target 
universities for recruitment.''

Advocating the overthrow of the Government as an abstract theory, not 
as an imminent and active plan, is protected speech under the First 
Amendment. See Yates v. United States (1957).
    The center concludes with a peroration that all law enforcement 
officers should be as aggressive and vigilant in monitoring the free 
speech and freedom of association activities of Islamic organizations 
as is North Central Texas. It betters the exhortations of the Japanese 
thought police:

``Given the stated objectives of these lobbying groups and the 
secretive activities of radical Islamic organizations, it is imperative 
for law enforcement officers to report these types of activities to 
identify potential underlying trends emerging in the North Central 
Texas region.''

    The North Central Texas fusion center is not an aberration. All 
Government spies or law enforcement officers tend to interpret anything 
unorthodox or unconventional as subversive--even hair length. A 
February 20, 2009 report of the Missouri Information Analysis Center 
(MIAC) asserted that right wing militia members are usually supporters 
of presidential candidates Ron Paul, Chuck Baldwin, and Bob Barr. Since 
I spoke at Mr. Paul's Campaign for Liberty convention in Minneapolis 
and am a professional and personal colleague of Bob Barr, MIAC probably 
has me on a watch list for right-wing militia members.
    A July 2008 ACLU Fusion Center Update by Mike German and Jay 
Stanley reported on the open-ended suspicious activity intelligence 
collection efforts of the LAPD and its spread Nation-wide. The 
intelligence initiatives are dragnets for protected First Amendment 
activity aimed at altering the policies of the United States. The 
Update notes:

``In April 2008, the Wall Street Journal and the Los Angeles Times both 
reported on a new Los Angeles Police Department order that compels LAPD 
officers to begin reporting `suspicious behaviors' in addition to their 
other duties--creating a stream of `intelligence' about a host of 
everyday activities that, according to documents, will be fed to the 
local fusion center.

``LAPD Special Order No. 11, dated March 5, 2008, states that it is the 
policy of the LAPD to `gather, record, and analyze information of a 
criminal or non-criminal nature, that could indicate activity or 
intentions related to either foreign or domestic terrorism,' and 
includes a list of 65 behaviors LAPD officers `shall' report.

``The list includes such innocuous, clearly subjective, and First 
Amendment protected activities as: taking measurements; using 
binoculars; taking pictures or video footage `with no apparent esthetic 
value'; abandoning vehicle; drawing diagrams; taking notes; espousing 
extremist views.

`` . . . [T]he LAPD's collection of `non-criminal' information runs 
afoul of Title 28, Part 23 of the Code of Federal Regulations, which 
states that law enforcement agencies: shall collect and maintain 
criminal intelligence information concerning an individual only if 
there is reasonable suspicion that the individual is involved in 
criminal conduct or activity and the information is relevant to that 
criminal conduct or activity.

``Rather than criticize the LAPD efforts, the Office of the Director of 
National Intelligence said the LAPD program `should be a national 
model.' Not surprisingly, in June 2008 the Departments of Justice and 
Homeland Security teamed with the Major City Chiefs Association to 
issue a report recommending expanding the LAPD SAR program to other 
U.S. cities.

``In fact, just a few weeks before the LAPD order was issued, the 
Director of National Intelligence published new `functional standards' 
for suspicious activity reports that a program like the LAPD's would 
generate. The sequential timing of the DNI's functional standards, the 
LAPD SAR order and the Major City Chiefs recommendations creates more 
than a little suspicion that these efforts are closely coordinated.''

    Among other things, the Update recounts a flagrant abuse of 
intelligence gathering in the case of Dr. Moniem El Ganayni, who had 
assailed the FBI verbally for its treatment of Muslims. His security 
clearance was improperly revoked. He underwent 7 hours of questioning 
focusing on his religious beliefs and service as an imam in the 
Pennsylvania prison system, his political views on the war in Iraq, and 
his speeches in local mosques criticizing the FBI. The Maryland State 
Police counterterrorism spying debacle displays the same brainless 
disregard for the Constitution, for example, viewing as potential 
terrorists protestors against the death penalty.
    Core First Amendment principles will never be honored by law 
enforcement officers or public officials. Their psychological 
preoccupations are order and the status quo; they viscerally fear or 
are perturbed by the prospect of change or challenges to the existing 
power structure. Further, they are rewarded financially and 
professionally by the volume of intelligence collected. There are no 
serious quality controls because few if any are fit to separate the 
terrorist wheat from the innocuous chaff. There are no reliable 
earmarks of a would-be terrorist. Some are rich. Some are poor. Some 
are devout. Some are religiously indifferent. Some are educated. Some 
are without schooling. Timothy McVeigh was not a prime suspect in the 
immediate aftermath of the Oklahoma City bombing. Arab Muslims were. 
Brendon Mayfield was erroneously linked to the 2004 Madrid train 
bombings. Habeas corpus has resulted in discrediting the enemy 
combatant status of more than 90% of the Guantanamo detainee 
petitioners. Since anything might be a clue as to a possible 
psychological inclination to commit terrorism, everything is fair game 
for intelligence collection. But when everything is relevant, nothing 
is relevant. Finding something useful in the mass of undifferentiated 
intelligence reports and analysis is thus akin to looking for a needle 
in a haystack. That may explain why there is no credible evidence that 
fusion centers have frustrated a single terrorist plot--their primary 
raison d'etre.
    The fusion centers and their tributaries should cease collection of 
intelligence that might arguably bear on intentions relating to 
domestic or international terrorism, i.e, intentions to seek to change 
Government policies, because they invariably encroach on 
constitutionally protected speech.
    The Founding Fathers were not frightened by ideas. They believed 
that it was better to be free than to seek a risk-free existence. They 
would have repudiated the 1% doctrine of former Vice President Dick 
Cheney. It decreed that anything carrying a 1% probability of 
occurrence must be treated as an absolute certainty like the force of 
gravity if terrorism is implicated. The spirit of the 1% doctrine is 
also the spirit of fusion centers.
    They have never learned cardinal lessons from the United States 
Supreme Court. In Abrams v. United States (1919), Justice Holmes 
lectured: ``Persecution for the expression of opinions seems to me 
perfectly logical. If you have no doubt of your premises or your power, 
and want a certain result with all your heart, you naturally express 
your wishes in law, and sweep away all opposition. To allow opposition 
by speech seems to indicate that you think the speech impotent, as when 
a man says that he has squared the circle, or that you do not care 
wholeheartedly for the result, or that you doubt either your power or 
your premises. But when men have realized that time has upset many 
fighting faiths, they may come to believe even more than they believe 
the very foundations of their own conduct that the ultimate good 
desired is better reached by free trade in ideas--that the best test of 
truth is the power of the thought to get itself accepted in the 
competition of the market, and that truth is the only ground upon which 
their wishes safely can be carried out. That, at any rate, is the 
theory of our Constitution. It is an experiment, as all life is an 
experiment. Every year, if not every day, we have to wager our 
salvation upon some prophecy based upon imperfect knowledge. While that 
experiment is part of our system, I think that we should be eternally 
vigilant against attempts to check the expression of opinions that we 
loathe and believe to be fraught with death, unless they so imminently 
threaten immediate interference with the lawful and pressing purposes 
of the law that an immediate check is required to save the country.''
    In Whitney v. California (1927), Justice Brandeis elaborated: 
``[W]e must bear in mind why a state is, ordinarily, denied the power 
to prohibit dissemination of social, economic and political doctrine 
which a vast majority of its citizens believes to be false and fraught 
with evil consequence. Those who won our independence believed that the 
final end of the state was to make men free to develop their faculties, 
and that in its government the deliberative forces should prevail over 
the arbitrary. They valued liberty both as an end and as a means. They 
believed liberty to the secret of happiness and courage to be the 
secret of liberty. They believed that freedom to think as you will and 
to speak as you think are means indispensable to the discovery and 
spread of political truth; that without free speech and assembly 
discussion would be futile; that with them, discussion affords 
ordinarily adequate protection against the dissemination of noxious 
doctrine; that the greatest menace to freedom is an inert people; that 
public discussion is a political duty; and that this should be a 
fundamental principle of the American government. They recognized the 
risks to which all human institutions are subject. But they knew that 
order cannot be secured merely through fear of punishment for its 
infraction; that it is hazardous to discourage thought, hope and 
imagination; that fear breeds repression; that repression breeds hate; 
that hate menaces stable government; that the path of safety lies in 
the opportunity to discuss freely supposed grievances and proposed 
remedies; and that the fitting remedy for evil counsels is good ones. 
Believing in the power of reason as applied through public discussion, 
they eschewed silence coerced by law--the argument of force in its 
worst form.''
    Supreme Court Justice and Nuremburg Robert Jackson underscored the 
dangers of viewing dissident ideas or symbols with suspicion in West 
Virginia State Bd. of Education v. Barnette (1943): ``Struggles to 
coerce uniformity of sentiment in support of some end thought essential 
to their time and country have been waged by many good as well as by 
evil men. Nationalism is a relatively recent phenomenon but at other 
times and places the ends have been racial or territorial security, 
support of a dynasty or regime, and particular plans for saving souls. 
As first and moderate methods to attain unity have failed, those bent 
on its accomplishment must resort to an ever-increasing severity. As 
governmental pressure toward unity becomes greater, so strife becomes 
more bitter as to whose unity it shall be. Probably no deeper division 
of our people could proceed from any provocation than from finding it 
necessary to choose what doctrine and whose program public educational 
officials shall compel youth to unite in embracing. Ultimate futility 
of such attempts to compel coherence is the lesson of every such effort 
from the Roman drive to stamp out Christianity as a disturber of its 
pagan unity, the Inquisition, as a means to religious and dynastic 
unity, the Siberian exiles as a means to Russian unity, down to the 
fast failing efforts of our present totalitarian enemies. Those who 
begin coercive elimination of dissent soon find themselves 
exterminating dissenters. Compulsory unification of opinion achieves 
only the unanimity of the graveyard.''
    ``It seems trite but necessary to say that the First Amendment to 
our Constitution was designed to avoid these ends by avoiding these 
beginnings.''
    Fusion centers dampen and cast a cloud over free speech and 
association. Their intelligence collection efforts insinuate that 
political dissent is unpatriotic or dangerous and threaten to make 
dissenters targets for law enforcement or candidates for terrorism 
watch lists. The greatest threat to liberty is an inert people, which 
is what fusion centers induce by placing a price on the exercise of 
fundamental democratic freedoms.
    In sum, what Oliver Cromwell said of the British Long Parliament 
applies equally to fusion centers that have proliferated after 9/11 in 
the vain hope of aborting terrorism before conception: ``You have sat 
too long for any good you have been doing lately . . . Depart, I say; 
and let us have done with you. In the name of God, go!''

    Ms. Harman. Thank you.
    Mr. Norris.

 STATEMENT OF NED NORRIS, JR., CHAIRMAN, TOHONO O'ODHAM NATION

    Mr. Norris. Thank you, Chair Harman, and Ranking Member----
    Ms. Harman. Your microphone may not be on.
    Mr. Norris. Thank you.
    Thank you for this opportunity to be here, and share with 
you some thoughts from the Tohono O'odham Nation, one of the 
more than 550 federally recognized tribes in the United States.
    I am extremely encouraged when I--with the reference to 
tribes in the Chair's opening statements, and the comments from 
Mr. Riegle. Fusion centers represent law enforcement's public 
safety, and our first responders, who come together with a 
common purpose: To safeguard our communities, and to prevent 
their intervening criminal activity, and, ultimately, to 
prevent terrorist activity.
    I support fusion centers. But I emphasize that we must 
ensure that all of our citizens' privacy, legal rights, civil 
liberties, and information privacy are protected.
    This is particularly critical in Indian Country. As you may 
or may not know, Tribal members have a separate set of civil 
rights, as defined in the Indian Civil Rights Act 25 U.S.C., 
1301-03, 1968.
    Although similar to the United States Constitution Bill of 
Rights, these rights protect Tribal members within Indian 
Country. Fusion center architects must be made aware of the 
ICRA and its application.
    I would like to talk about terrorism starting at the local 
level. The first response to any threat or act of terrorism 
starts at the local level. Indian Country is no exception. In 
fact, Indian Country is more vulnerable because of the current 
ineffective communication, or lack of information sharing 
between Federal, county, State, and local agencies.
    But a glaring deficiency is the lack of formal criminal 
information and intelligence sharing between our law 
enforcement counterparts at the Federal, State, and local 
levels.
    The State of Arizona has a fusion center that has been 
recognized as an exceptional program. Despite this recognition, 
there has been minimal, if any, participation, with Tribal law 
enforcement.
    Without Tribal police participation and State programs--
cannot be completely effective.
    The State of Arizona has made efforts to seek out Tribal 
law enforcement participation, and we are pleased with their 
outreach efforts. We will work with the States to strengthen 
their program.
    I would like to talk a little bit about the intelligence-
led policing. Tribal, State, and local law enforcement have 
recognized that there is a need for increased collaboration for 
information and intelligence sharing, and are strengthening 
their capabilities to develop intelligence-led policing as a 
philosophy.
    This concept links directly into the initiative or reason 
for fusion centers. Again, fusion centers are an ideal 
information and intelligence-sharing program, linking law 
enforcement, public safety, fire, health, and the private 
sector, to effectively safeguard our communities.
    We need to think about removing barriers that hinder 
information sharing at the Federal level. We found that 
information sharing at the Federal level is fragmented. As a 
result, this hampers our efforts to develop information and 
intelligence sharing with our Federal counterparts, 
specifically Department of Homeland Security agencies, Custom 
and Border Protection, and Immigration and Customs Enforcement.
    Customs and Border Protection estimates that there are 
between 400 and 450 crossings along the Tohono O'odham Nation's 
border, and about 10 percent, or 40 or 50, of the illegal 
crossers are criminal aliens with criminal histories, including 
rape, drug transporting, assault, and murder.
    The Tohono O'odham Nation has about 75 miles of 
international border to the south of it. We also have nine 
communities that continue to exist in Mexico, with about 1,500 
enrolled citizens of our Nation in Mexico.
    We need to begin to remove the barriers that impede 
information with the Indian Country. The basic method of 
information sharing enjoyed by State, Federal, and local, and 
some Tribal law enforcement, is access to National Crime 
Information Center.
    Access to NCIC is controlled by the States, and there are 
several Tribal law enforcement agencies that are denied access 
to NCIC by their respective State, because the State does not 
recognize Tribal law enforcement.
    In California, Tribes are not recognized, and are denied 
access to NCIC, despite the fact that they receive the same 
training as their counterparts within the State.
    In the State of New York, Tribal police, in compliance with 
the Adam Walsh Act, requested from the State a list of sexual 
offenders released from State prisons. They were denied the 
information based on State's refusal to recognize their agency 
as a law enforcement agency.
    Ms. Harman. Mr. Norris, could you summarize your statement? 
You have exceeded the 5 minutes.
    Mr. Norris. Additionally, they are not allowed to enter 
their offender into State sexual offender tracking systems.
    Madam Chair, I thank you for this opportunity, and will be 
willing to answer any questions that may come up later. Thank 
you.
    [The statement of Mr. Norris follows:]
                 Prepared Statement of Ned Norris, Jr.
                             April 1, 2009
    Good morning Chairman Thompson and Members of the subcommittee. I 
appreciate the opportunity to appear before this committee to present 
the views of the Tohono O'odham Nation and Indian Country. I am Ned 
Norris Jr., chairman of the Tohono O'odham Nation.
    Since 9/11 the need to share information with Federal, Tribal, 
State, and the local governments, is a priority and must not be 
diminished. Fusion centers are an integral part of the system of 
information sharing. Fusion centers represent law enforcement, public 
safety, and our first responders, who come together with a common 
purpose to safeguard our communities and to prevent or intervene in 
criminal activity, and ultimately to prevent terrorist activity. I 
support fusion centers but I emphasize that we must ensure that all of 
our citizens' privacy, legal rights, civil liberties, and information 
privacy are protected. This is particularly critical in Indian Country. 
As you may or may not know Tribal members have a separate set of civil 
rights as defined in the Indian Civil Rights Act (1968 25 USC 1301-03); 
although similar to the U.S. Constitution Bill of Rights, these rights 
protect Tribal members within Indian Country. Fusion center architects 
must be made aware of the ICRA and it application.
               acts of terrorism start at the local level
    The first response to any threat or act of terrorism starts at the 
local level. Indian Country is no exception and in fact Indian Country 
is more vulnerable because of the current ineffective communication or 
lack of information sharing between Federal, County, State, and local 
agencies. The Tohono O'odham Nation within our Department of Public 
Safety identified the need for preparedness and developed an Office of 
Emergency Management to enhance cooperation with our counterparts at 
the county, State, and local level. But a glaring deficiency is the 
lack of formal criminal information and intelligence sharing between 
our law enforcement counterparts at the Federal, State, and local 
level. The State of Arizona has a fusion center (ACTIC) that has been 
recognized as an exceptional program; despite this recognition there 
has been minimal if any participation with Tribal law enforcement. 
Without Tribal Police participation the State program cannot not be 
completely effective. The State of Arizona has made efforts to seek out 
Tribal law enforcement participation, and we are pleased with their 
outreach effort; we will work with the State to strengthen their 
program. Although there remains a lot of work to do the State of 
Arizona recognized that Tribal law enforcement participation will 
maximize the availability of resources, and I suggest that the State of 
Arizona's example be used as a model of cooperation between Tribal 
Police and State, local, and Federal agencies.
                       intelligence-led policing
    Tribal, State, and local law enforcement have recognized that there 
is a need for increased collaboration for information and intelligence 
sharing, and are strengthening their capabilities to develop 
intelligence-led policing as a philosophy. This concept links directly 
into the initiative or reason for Fusion Centers. Much like the 
community-oriented policing programs, intelligence-led policing is a 
reality that must be embraced by all law enforcement agencies. 
Potential terrorist targets such as public facilities, 
telecommunications, energy, transportation, and other infrastructures 
require that law enforcement actively develop partnerships with private 
security and the management of these establishments. Again Fusion 
Centers are an ideal information and intelligence-sharing program 
linking law enforcement, public safety, fire, health, and the private 
sector to effectively safeguard our communities.
  remove barriers that hinder information sharing at the federal level
    We found that information sharing at the Federal level is 
fragmented; as a result this hampers our efforts to develop information 
and intelligence sharing with our Federal partners, specifically 
Department of Homeland Security agencies, Custom and Border Protection, 
and Immigration and Customs Enforcement (ICE). This is particularly 
critical as we have seen a growth of intrusions and violence connected 
to the drug and human smuggling along our 75 miles of border. Customs 
and Border Protection estimates that there are between 400-450 
crossings along our border and about 10% (40-50) of the illegal 
crossers are criminal aliens, with criminal histories including rape, 
drug transporting, assaults, and murder. These numbers demand that an 
effective information-sharing system be established with Tohono O'odham 
law enforcement.
  remove barriers that impede information sharing with indian country
    The basic method of information sharing enjoyed by State, Federal, 
local, and some Tribal law enforcement is access to the National Crime 
Information Center (NCIC). Access to NCIC is controlled by the States, 
and there are several Tribal law enforcement agencies that are denied 
access to NCIC, by their respective State, because the State does not 
recognize Tribal law enforcement. This creates officer and public 
safety concerns and more important created a significant gap in the 
information/intelligence-sharing community. In California Tribal Police 
are not recognized and are denied access to NCIC despite the fact that 
they receive the same training as their counterparts within the State. 
In the State of New York, Tribal police in compliance with the Adam 
Walsh Act requested from the State a list of sexual offenders released 
from State prisons. They were denied the information based on the 
States' refusal to recognize their agency as a law enforcement agency; 
additionally they are not allowed to enter their offenders into the 
State sexual offender tracking system. Despite Federal efforts to 
assist Tribal police in this dilemma there has been little if any 
progress on resolving the problem. The International Association of 
Chiefs of Police--Indian Country Law Enforcement Section was able to 
acquire regional seats on the FBI's Criminal Justice Information 
Services--Advisory Policy Board, a Board that recommends revisions and 
policy to the FBI Director. Through this route we are hopeful that 
changes can be made to remedy the restrictions on Tribal Police access 
to NCIC. Despite this effort it is safe to assume that it will be 
several years before the problem is adequately addressed, therefore I 
request that this Congressional committee address this issue 
immediately so this significant gap in our information sharing system 
can be closed and we can honestly tell our citizens that we are doing 
all we can to ensure there is no gap in our information-sharing system.
  an example of indian country involvement--global advisory committee
    An example of Indian Country participation at the National level is 
Global (GAC), a Federal Advisory Committee that reports directly to the 
U.S. Attorney General providing advice on criminal justice information 
sharing. Global serves as the focal point for justice information 
systems integration activities and includes representatives from local, 
Tribal, State, and Federal agencies. Global has in place working groups 
addressing Infrastructure standards, Intelligence, Privacy and 
Information Quality and Security. Global developed Fusion Center 
resources and products that include, but not limited to: (1) Applying 
Security Practices to Justice Infrastructure Sharing; (2) Privacy, 
Civil Rights, and Civil Liberties Policy Templates for Justice 
Information Systems; (3) Fusion Center Guidelines: Law Enforcement, 
Public Safety and the Private Sector; (4) Privacy, Civil Liberties and 
Information Quality Policy Development for the Justice Decision Maker; 
and, a (5) Privacy and Policy Development Guide and Implementation 
Templates: Policy Development Checklist.
    The current Federal regulations that provides some guidance on 
protection of civil liberties and privacy is Chapter of the 28 Code of 
Federal Regulations (CFR) Part 23, which provides guidelines for law 
enforcement agencies, on the implementation of standards for operating 
Federally grant-funded multijurisdictional criminal intelligence 
systems. It specifically provides guidance in five primary areas: (1) 
submission and entry of criminal intelligence information; (2) 
security; (3) inquiry; (4) dissemination; and, the (5) review-and-purge 
process. But 28 CFR Part 23 does not provide specific, detailed 
information on how agencies will implement the operating guidelines, 
but instead, allows each agency to develop its own policies and 
procedures. Because of this lack of Standards Global initiated a review 
and developed recommendations of 28 CFR part 23 to address standards 
and to specifically include Indian Country law enforcement. The 
uniqueness of Global is there is a representative from Indian Country 
that contributes to the development of the various products. Global is 
an example of how an advisory board or committee must be structured to 
adequately include the three sovereign governments in the United 
States, Federal, Tribal, and the States, to work seamlessly on the 
critical area of information sharing while protecting the civil and 
privacy rights of all of our citizens.
                               conclusion
    I appreciate the opportunity to share with you the unique 
perspective of Indian Country, Indian Country Law Enforcement, and the 
essential role Tribal Police must share with Federal, State, and local 
law enforcement in protecting our homeland. The border that the Nation 
and other Tribal Governments share with Mexico demands that our law 
enforcement and other public safety personnel, be directly involved in 
the formation and production of policy and guidelines of Fusion 
Centers. Its necessary that there be an understanding of the unique 
governmental structure, laws, and cultural strength of Indian Country; 
to do this we must always have a seat at the table. I urge the 
continuation of Fusion Centers and strongly recommend that a national 
standard be established in the operation, training and development of 
Fusion centers. Thank you again for this opportunity.

    Ms. Harman. Thank you very much.
    Mr. Gersten.

   STATEMENT OF DAVID D. GERSTEN, ACTING DEPUTY OFFICER FOR 
    PROGRAMS AND COMPLIANCE, DEPARTMENT OF HOMELAND SECURITY

    Mr. Gersten. Chair Harman, Ranking Member McCaul, and 
distinguished Members of the subcommittee, thank you for 
providing me the opportunity to testify today.
    Just over 2 years ago, both DHS's officer for civil rights 
and civil liberties, and its chief privacy officer, testified 
for you on fusion centers. At the time, we were just 
understanding the centers, and how the Federal Government can 
play a productive role. Since then, CRCL has visited numerous 
centers across the country, provided training and other 
support, and cemented itself as a partner with the DHS Office 
of Intelligence and Analysis, INA.
    We have come to understand the facts relating to fusion 
centers, the challenges they face, and also the mystery 
surrounding them. Fusion centers have been labeled in some 
press accounts and other reports as ``mini spy agencies,'' and 
``domestic-intelligence apparatuses.''
    Military involvement, private-sector partnerships, 
sometimes ambiguous lines of authority, and policies for 
suspicious-activity reporting and the use of open-source 
information have been criticized. Some of these concerns are 
simply exaggerations, while others point out where we have work 
left to do.
    For example, while some armed forces service members 
participate in a handful of fusion centers, their presence is 
not pervasive. It is focused on sharing information, not 
engaging in law enforcement. Some private-sector entities do 
share infrastructural-protection information with fusion 
centers, and may receive notice of specified threats.
    Yet, in almost all cases, fusion center activity involves 
exactly what the 9/11 Commission recommended: Federal, State, 
local, and Tribal personnel, sitting elbow-to-elbow, sharing 
information, and connecting the dots to ensure homeland 
security and public safety.
    Fusion centers do face a number of challenges that could 
impact rights and liberties. They are typically formed under 
one State or local agency's legal authority, but comprised of 
many agencies. With few exceptions, memoranda of agreements 
spelling out the precise relationship between individual 
centers and DHS do not exist.
    We believe MOAs are needed to govern roles played by DHS 
analysts deployed to fusion centers. Because fusion centers are 
run by the States, direct Federal oversight poses Federalism 
issues. We can establish certain Federal expectations through 
guidance, such as the baseline capabilities, released last 
September, but this is a partner relationship, not superior-
and-subordinate one.
    To provide oversight of Federal activities, our office 
issued a civil liberties impact assessment of DHS' role in the 
fusion center initiative. In its privacy impact assessment, the 
privacy office urged fusion centers to also develop their own 
assessments. Both offices are currently working on follow-up 
impact assessments.
    Moreover, our office recently received its first three 
complaints regarding fusion centers. The DHS inspector general 
also provides oversight.
    The challenges we face are discussed further in my written 
testimony, but I would like to highlight one in particular: The 
difficulty in sharing information and providing threat 
assessment for First Amendment protected activities may be 
implicated.
    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. Intelligence personnel at the Federal 
level are not authorized to collect information regarding U.S. 
Persons solely for the purpose of monitoring activities 
protected by the U.S. Constitution, such as freedoms of 
religion, speech, press, and peaceful assembly, and protest.
    Recent well-publicized struggles, particularly at the State 
level, demonstrate a need for continued policy, development, 
and training. Compounding this is a challenge in determining 
whether it is appropriate for fusion centers to use open source 
information that involves First Amendment-protected activities.
    If the use of information, even publicly available, 
involves protected activities, it could be viewed as unlawful 
monitoring by Government, and may result in scandal, when 
Government is perceived to be keeping tabs on protest groups 
for political purposes.
    Now, let me explain what our office has been doing to 
resolve these and other challenges. Under the 9/11 Act, we are 
required to provide training on civil liberties for all DHS 
intelligence analysts before they deploy to fusion centers, and 
to support the training of all fusion center personnel.
    To that end, our Civil Liberties Institute partnered with 
the Privacy Office to provide training to the 34 I&A analysts 
currently deployed in fusion centers.
    We partner with DOJ and the Global Justice Information 
Sharing Initiative to create a Web portal, launched just 
yesterday, to support the 70 fusion centers around the country.
    Finally, we are inviting a ``Training the Trainer'' program 
for State fusion center reps. We are also providing subject-
matter expertise to I&A, and to specific State fusion centers, 
as requested. For example, CRCL personnel traveled to the North 
Central Texas Fusion Center recently, to offer advice and help 
it address concerns about one of its products.
    In closing, let me emphasize that we will continue to honor 
our responsibility to ensure a strong respect for civil 
liberties. I thank you for inviting me to share my thoughts on 
fusion centers today, and I look forward to working with this 
subcommittee to address these issues.
    [The statement of Mr. Gersten follows:]
                 Prepared Statement of David D. Gersten
                             April 1, 2009
    Chair Harman, Ranking Member McCaul, and distinguished Members of 
the subcommittee: Thank you for providing me the opportunity to testify 
today. As fusion centers across the country mature, ensuring a strong 
respect for civil liberties will improve public trust and broaden 
support for their mission. The U.S. Department of Homeland Security's 
(DHS) Office for Civil Rights and Civil Liberties (CRCL) will continue 
to work with this subcommittee to examine our Nation's fusion centers 
and continue to provide methods for proper guidance and oversight.
       mission of the office for civil rights and civil liberties
    In accordance with existing statutes, 6 U.S.C.  345, and 42 U.S.C. 
 2000ee-1, the mission of the Office for Civil Rights and Civil 
Liberties is to assist the dedicated men and women of the Department of 
Homeland Security to secure our country while preserving our freedoms 
and our way of life. We assist our colleagues in four ways:
   We help the Department to shape policy in ways that are 
        mindful of civil rights and civil liberties by providing 
        proactive advice, evaluation, and review of a wide range of 
        technical, legal, and policy issues.
   We investigate and resolve complaints filed by the public 
        regarding Departmental policies or actions taken by 
        Departmental personnel.
   We provide leadership to the Department's equal employment 
        opportunity programs, seeking to make this Department a model 
        Federal agency.
   We are engaged with the public regarding these issues.
    In providing advice to our colleagues, we work closely with every 
DHS component and have been involved in most of the critical issues 
facing the homeland security effort--from disaster preparedness and 
recovery, to immigration programs, to screening procedures, to the 
training of our workforce. Other DHS elements support our work as 
required by law, and because they recognize that respect for rights and 
liberties is essential to their mission. Through frequent collaboration 
and engagement with the public and with leading civil rights, 
immigration, and community organizations, we have helped the Department 
maintain openness while tackling complex issues in innovative and 
constructive ways.
    Just over 2 years ago, this subcommittee received testimony from 
both DHS's Officer for Civil Rights and Civil Liberties and its Chief 
Privacy Officer on fusion centers and how they might advance 
information sharing and safeguard civil liberties. At the time, we were 
just coming to understand the centers and how the Federal Government 
could play a productive role. Much has changed since then. Now, the 
Office for Civil Rights and Civil Liberties has visited numerous fusion 
centers across the country, provided training and other support to 
fusion centers. We have also cemented ourselves as a partner with the 
DHS Office of Intelligence and Analysis' State and Local Program Office 
and the DHS Privacy Office, both of whom actively work with us. We have 
come to understand the facts relating to fusion centers, the challenges 
they face, and also the myths surrounding them. I want to provide 
CRCL's perspective on some of the challenges faced by fusion centers, 
and dispel some of the myths.
                            dispelling myths
    Fusion centers have been labeled in press accounts and other 
reports as ``mini-spy agencies'' and ``domestic intelligence 
apparatus[es].'' 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. Some of these charges are simply myths or 
exaggerations while some criticisms are helpful, and point out where we 
still have work to do.
    One myth is that the armed forces are prominent players in the 
fusion centers. While some armed forces service members participate in 
a handful of fusion centers, the presence is nominal, not pervasive, 
and their role is to provide support to civilian law enforcement and 
other non-Federal agencies with homeland security responsibilities, not 
to lead, direct, or participate in it. They provide a liaison to 
Federal military installations, and also provide State and local 
personnel access to military sources of information when appropriate. 
This is consistent with laws directing the Federal (Title 10) Armed 
Forces to share certain categories of relevant information with the 
States. It is up to the governor of a State to determine what fusion 
center role, if any, National Guard troops in Title 32 status, under 
State command, should play.
    Another myth involves inappropriate sharing of information with the 
private sector. Some fusion centers have incorporated advice from 
Sector Coordinating Councils and leverage the expertise of local sector 
associations or coalitions in identifying critical infrastructure and 
how to secure it. Fusion centers share information when it relates to 
protection of critical infrastructure, or upon learning of a threat to 
a particular company or business. These activities are squarely within 
DHS' mission and the mission of State and local law enforcement. While 
this potentially poses some concerns, our Office has not seen civil 
liberties problems arising out of the relationship between fusion 
centers and the private sector.
    Finally, like some other law enforcement activities, fusion centers 
in general 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. In almost all cases, fusion center 
activity involves exactly what the 9/11 Commission recommended--
Federal, State, local, and Tribal personnel sitting elbow-to-elbow, 
sharing information, and connecting the dots to ensure homeland 
security and public safety. Lack of public knowledge about their 
purpose and operations has magnified the mystery of fusion centers and 
helped perpetuate these myths. We believe that engagement with the 
public is important for any law enforcement agency, because it lets the 
agency know what the public's concerns are, and keeps the agency 
mindful of its proper mission: serving the community it protects. The 
Office for Civil Rights and Civil Liberties has thus encouraged the 
fusion centers to engage in community outreach to demystify their 
operations to the extent it can be done without jeopardizing 
enforcement and security activities. We have also encouraged fusion 
centers to reach out to prominent advocacy groups, such as the American 
Civil Liberties Union, and to engage in dialogue both to explain how a 
fusion center operates and to listen to any valid criticism to 
determine if it suggests ways that things could be improved.
                     challenges for fusion centers
    Myths aside, fusion centers face a number of challenges that could 
impact civil rights and liberties.
    Fusion centers are comprised of representatives of multiple 
Federal, State, local, and Tribal governments, and therefore lack 
single, one-size-fits-all structures or identical chains-of-command. 
Instead they are more like task forces, formed under one State or local 
agency's legal authority, but comprised of representatives of many 
agencies. They are typically led by a State Police or State homeland 
security equivalent, or possibly under the management of the local 
Anti-Terrorism Advisory Council established by the United States 
Attorneys. Collaborative agreements then are used to integrate partners 
who work within the fusion center. With few exceptions, Memoranda of 
Agreement or Understanding do not exist, though many are being 
negotiated between States and the Department of Homeland Security. 
These MOUs are needed to govern the roles and responsibilities of 
deployed DHS analysts in fusion centers, and their absence could lead 
to a lack of clarity of institutional roles within fusion centers.
    Oversight of the fusion centers also poses a challenge. Because 
fusion centers are run by the States, direct oversight by the Federal 
Government presents real federalism issues. While some fusion centers 
are closely overseen by State government offices, such as the State's 
attorney's office, the precise extent of close supervision by State, 
local, and Tribal governments at each fusion center is not always clear 
due to varying State government structures. At the Federal level, 
however, we can establish certain expectations through Federal grant 
funding and guidance documents, such as the Baseline Capabilities 
document released in September 2008. In partnership with the fusion 
centers, DHS and its Federal partners have established expectations and 
guidelines on fusion center operations through the Fusion Center 
Guidelines and the Baseline Capabilities for State and Major Urban Area 
Fusion Centers. The Guidelines are intended to be used to ensure that 
fusion centers are established and operated consistently, resulting in 
enhanced coordination efforts, strengthened partnerships, and improved 
crime-fighting and antiterrorism capabilities. By achieving a baseline 
level of capability, fusion centers will have the necessary structures, 
processes, and tools in place to support the gathering, processing, 
analysis, and dissemination of terrorism, homeland security, and law 
enforcement information. Most fusion centers are in the process of 
achieving the capabilities, though it may take up to 5 years to achieve 
all of the capabilities.
    Oversight also may be applied to the extent that a State, local, or 
Tribal entity is participating in a Federal program, such as criminal 
intelligence information sharing systems governed by 28 CFR Part 23. 
General oversight of the State, local, and Tribal assets should be 
maintained by State, local, and Tribal government officials. Though the 
Department's scrupulous observation of State sovereignty does not allow 
for direct oversight, we believe that observing vertical separation of 
powers consistent with the U.S. Constitution is a safeguard of liberty. 
Where a State, local, or Tribal government objects to a fusion center's 
activities, particularly those activities affecting the rights of 
citizens of a State, those government entities have a say in altering 
those operations, or they can decline to participate in the center's 
activities. Paradoxically, the lack of direct Federal supervision and 
oversight may thus also function as a safeguard.
    By the same token, we must closely monitor our own Federal presence 
and actions at the fusion centers, which is squarely within the purview 
of the Federal Government. In December 2008, our Office and the DHS 
Privacy Office issued its initial impact assessments of DHS's role in 
the fusion center initiative, as required by the Implementing 
Recommendations of the 9/11 Commission Act of 2007 (``9/11 Act''). 
These assessments are publicly available on the DHS Web site. Applying 
this check-and-balance approach, these assessments were an important 
step in evaluating DHS's role in the fusion centers and its potential 
impact on civil rights and civil liberties. In its Privacy Impact 
Assessment, the DHS Privacy Office urged fusion centers to develop 
their own privacy impact assessments and is prepared help them do so by 
providing ``PIA Intensive'' training to interested fusion centers, 
leveraging its own PIA process as well as material developed by the 
GLOBAL Initiative. Both Offices are currently working on a more 
detailed follow-up impact assessment, which will combine what we have 
learned through visiting fusion centers throughout the country and our 
participation in the Federal-level fusion center support initiative. I 
will highlight some of the issues discussed today.
    Moreover, our Office has a Review and Compliance Division dedicated 
to investigating possible abuses of civil rights, civil liberties, and/
or racial, ethnic, or religious profiling. We have recently received 
our first three complaints regarding fusion centers. Another mechanism 
for providing oversight and compliance lies within the jurisdiction of 
the DHS Inspector General, who just recently issued a report on fusion 
centers. And outside of the DHS realm, Congress, U.S. Attorney's 
Offices, and the ODNI Program Manager for the Information Sharing 
Environment have all played some role in oversight concerning fusion 
centers. The Privacy and Civil Liberties Oversight Board will also have 
a role too once it is stood up. Despite the challenges posed by this 
array of unique partnerships, I believe that by working together we can 
have coordinated and effective oversight of fusion centers to the 
extent possible.
    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. 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 
individuals' right to speak freely and to protest. Intelligence 
personnel at the Federal level are not authorized to collect 
information regarding U.S. Persons solely for the purpose of monitoring 
activities protected by the U.S. Constitution, such as the First 
Amendment protected freedoms of religion, speech, press, and peaceful 
assembly and protest. If information has some connection to 
constitutionally protected activities, it may be collected only where 
such collection is incidental to the authorized purpose. Procedures are 
in place that require intelligence personnel to consult with counsel or 
I&A's Intelligence Oversight Officer when any initiative may impact 
constitutionally protected activities. These consultations have proven 
very helpful to the Department's intelligence personnel in identifying 
and addressing potential concerns related to inappropriate or 
unauthorized collection and reporting. At the State level, however, 
policies relating to these topics are often less clear and uniform. The 
question of how State, local, and Tribal governments handle these 
issues is often decided by State, local, or tribal agencies other than 
the fusion centers. The well-publicized struggles with this problem, 
particularly at the State level, demonstrate a need for continued 
policy development and training.
    Now I would like to discuss open-source information in the context 
of fusion centers. As described in ``Giving a Voice to Open Source 
Stakeholders,'' a report published by this committee last September, 
open source information is ``publicly-available information that can be 
disseminated quickly to an appropriate audience to meet a specific 
intelligence requirement . . . derived from aggregated and analyzed 
information available from sources such as newspapers, periodicals, the 
Internet, scientific journals, and others.''
    Fusion centers are receiving open-source products and creating 
their own. The challenge for all fusion centers depends greatly on the 
laws and policies in place at the State and local level. For Federal 
involvement there is a framework in place to protect privacy and civil 
liberties. Even though information is publicly available, that does not 
mean the information loses all protection. Part two of Executive Order 
12333 imposes restraints on the intelligence community and also 
provides specific protections for United States Persons. At the Federal 
level, these U.S. Person rules cover ``a United States citizen, an 
alien known by the intelligence element concerned to be a permanent 
resident alien, an unincorporated association substantially composed of 
United States citizens or permanent resident aliens, or a corporation 
incorporated in the United States, except for a corporation directed 
and controlled by a foreign government or governments.'' Collection, 
retention, and dissemination of open source information must match a 
mission approved for the agency involved. Members of the intelligence 
community typically must also disclose their affiliation when 
interacting with domestic organizations, the media, and open forums. So 
in the context of fusion centers, we have a host of restrictions on 
some of the Federal participants.
    In relation to the protected activities I alluded to earlier, there 
is still a significant challenge in determining whether and to what 
extent it is appropriate for fusion centers to use open-source 
information that involves First Amendment-protected activities. If the 
collection, retention, and use of information--even publicly 
available--involves protected speech, assembly, or other activities, it 
could be viewed as unlawful monitoring by Government. As we have seen 
in recent months, the collection of open-source information about 
protected activities may result in scandal when Government is perceived 
to be keeping tabs on protest groups for political purposes.
    The ``Giving a Voice to Open Source Stakeholders'' report also 
stated that there are currently only minimal guidelines to protect the 
personally identifiable information of Americans in the open-source 
context. It called on DHS to develop processes covering collection and 
use of open source, accessing non-intelligence community databases, how 
to determine the status of U.S. Persons, and what rules apply to social 
media like chat rooms, blogs, and Twitter. Ultimately, all of these 
processes should also be examined and addressed by non-IC partners in 
fusion centers who are not subject to E.O. 12333. The Office for Civil 
Rights and Civil Liberties agrees with the recommendations contained in 
the report and intends to work with its partners in the Department to 
ensure these activities are in compliance with the laws respecting 
individual rights.
    On a related note, there has been much concern voiced over fusion 
centers' role in Nation-wide Suspicious Activity Reporting (SAR) 
initiative. To a large degree, the SAR initiative is a coordinated 
approach that builds upon activities that law enforcement and other 
agencies do within the lawful boundaries of their daily duties, which 
is gathering information concerning behaviors, incidents, and 
activities associated with crime. However, different fusion centers may 
operate under different standards and capture different information in 
their intake of SARs. For example, while sharing within a Federally-
funded criminal intelligence database will attach 28 CFR Part 23 
protections, there are many tips, leads, and other data accessible to 
fusion center partners that may fall short of the reasonable suspicion 
standard, which is a predicate for retention in a 28 CFR Part 23 
system. To date, there have been no specific incidents alleging 
violation of civil rights and civil liberties, but this is an area we 
will continue to monitor, and in which we will work with DHS I&A to 
ensure appropriate safeguards are put in place.
         civil liberties and privacy training and other support
    Now let me further explain what our Office has been doing to 
resolve these and other challenges. One of the ways in which we have 
leveraged our capabilities, both within and outside the Department, has 
been the creation of the ``Civil Liberties Institute.'' This entity is 
a program that provides high quality training on issues at the 
intersection of homeland security and civil rights and civil liberties. 
By law, we are required to provide training on civil liberties for all 
DHS officers or intelligence analysts before they deploy to State, 
local, and Tribal fusion centers and to support the training of all 
fusion center personnel. To deliver this training and to fulfill our 
obligations under the 9/11 Act, we have created a three-pronged program 
targeted to the DHS State, local, and regional Fusion Center 
Initiative.
    First, we have partnered with the DHS Privacy Office and the DHS 
I&A State and Local Program Office to provide privacy and civil 
liberties training to the 34 I&A analysts currently deployed to the 
fusion centers. As each new analyst is hired, we provide individualized 
training and periodic refresher training for the entire cadre of 
analysts. In fact, the most recent refresher training was held last 
month at the National Fusion Center Conference.
    Second, we have involved the DOJ Office of Justice Programs in the 
creation of a multifaceted privacy and civil liberties training program 
to support the more than 70 fusion centers around the country. To 
maximize the impact of our limited resources in this area, we are 
taking a ``toolkit'' approach, where we leverage existing materials 
with new materials to create customized training that covers the core 
issues, but also responds to the needs of individual centers. As part 
of the training, we use scenarios adapted from recent events to 
illustrate the need for transparency and, among other things, how to 
handle the issues that have arisen around protected activities, such as 
public protests or religious affiliation. We will offer modules on 
cultural competence for law enforcement and analysts, as well as engage 
the community and work to dispel myths that have arisen about fusion 
centers. As the result of our outreach to fusion center personnel, we 
identified a clear need for a single on-line ``roadmap'' to all the 
Federal materials on civil rights and civil liberties issues and 
resources in the information-sharing environment. To address this need, 
we partnered with the DOJ Bureau of Justice Assistance and the GLOBAL 
Justice Information Sharing Initiative to create a web portal, phase 
one of which was launched just yesterday. Many of the privacy and civil 
liberties training materials will ultimately be posted on this Web 
site.
    The third prong of the training program is the Training of Trainers 
(ToT) program, created to assist local fusion center staff in providing 
on-going training in these important areas. We will pilot this newly 
expanded training program in approximately 10 States this year. We will 
also present ToT sessions at the upcoming regional fusion center 
conferences. Fusion center privacy officers will be invited as the key 
potential trainers on these topics back at their home fusion centers.
    The training is in various stages of completion but in total covers 
a broad range of issues, and also reflects the expertise of our 
partners in the DHS Privacy Office and the Department of Justice (DOJ). 
We cover how to handle reports of protected activities, such as: 
Protests; exercise of religious freedom or freedom of association; the 
capture and retention of video feeds that have identifiable persons on 
the tape; and the use of materially inaccurate or misleading 
information (addressing the associated potential ``search and seizure'' 
and ``due process'' issues). Our training encourages sufficient redress 
mechanisms and discourages the targeting of communities based on the 
use of overly broad demographic information and the collection of 
information on individuals that perpetuates racial or ethnic 
stereotypes. Above all, we emphasize the need for a clear understanding 
of operating statutes and authorities and connecting every action to 
these authorities. We also highlight problems that fusion center staff 
need to address, such as problems with requests to vet private sector 
personnel associated with critical infrastructure, or tensions between 
Federal and State laws and issues of data tracking and criminal record 
expungement. We recommend implementing a privacy and civil liberties 
policy on which staff are thoroughly trained, and discuss the 
usefulness of community engagement to provide a level of governmental 
transparency. Finally, in coordination with our partners, we also offer 
training on 28 CFR Part 23--guidance on multi-jurisdictional criminal 
intelligence systems; the proper use and protection of personally 
identifiable information; and Fair Information Practice Principles as 
well as other privacy practices.
    Over the past 2 years, prior to the development of the formal 
initiative, the Office for Civil Rights and Civil Liberties actively 
trained on civil liberties issues in the information-sharing 
environment, which can apply to fusion centers. We visited a variety of 
fusion centers and conducted classroom training on cultural competence 
and civil liberties in Connecticut, North Carolina, Maryland, 
Massachusetts, Indiana, and Los Angeles. We have also provided training 
through regional fusion center conferences. At the national fusion 
center conferences, we have disseminated training materials and 
presented at panel discussions. At the most recent national conference, 
we, along with the DHS Privacy Office, conducted ``learning labs'' on 
civil liberties and privacy issues, where State and local officials 
could ask questions and discuss issues with subject matter experts.
    In addition to our training efforts, we have worked closely with 
our colleagues at the I&A State and Local Program Office to provide 
subject matter expertise in the areas of civil rights and civil 
liberties. For example, when polices, guidance, and requests for 
information templates have been developed for field personnel, both our 
Office and DHS Privacy have been invited to the table to contribute to 
these documents and ensure proper safeguards are in place.
    The Office for Civil Rights and Civil Liberties has also provided 
on-site support in recent months to address civil rights and civil 
liberties concerns. For example, last year, CRCL provided support to 
the fusion centers in Denver and Minnesota during the Democratic 
National Convention and Republican National Convention to review I&A 
products and homeland security information reports to ensure civil 
rights and civil liberties were protected. We consistently review 
reports to ensure civil liberties issues are addressed and increase 
analysts' awareness of potential issues. Most recently, through an 
effort coordinated by the I&A State and Local Program Office, our 
Office deployed a staff member--a former Assistant U.S. Attorney--to 
the Northern Central Texas Fusion Center to address civil liberties 
concerns that arose after the State issued a product. At the time, 
there was no DHS presence at the center (an analyst has been hired to 
deploy to the center in the near future); however, DHS wanted to 
address the issue proactively. The fusion center was very receptive to 
concerns raised and has invited us back to conduct further in-depth 
training on cultural competency as well as other civil rights and civil 
liberties topics.
                               conclusion
    In closing let me emphasize that we have enjoyed a strong working 
relationship with our fusion center partners and our DHS colleagues who 
support them. DHS has emphasized protection of civil rights and civil 
liberties ever since it began to support fusion centers. We will 
continue to honor our responsibility to ensure a strong respect for 
civil liberties. I thank you for inviting me to share our thoughts on 
fusion centers today, and I look forward to working with this 
subcommittee to address these issues.

    Ms. Harman. Thank you, Mr. Gersten.
    I appreciate the testimony of all the witnesses.
    Members of the subcommittee will now, each, ask questions 
for 5 minutes. I will start with the Chair.
    Mr. Gersten, I appreciated your effort to clarify the 
record on actions of DHS in terms of assuring privacy and civil 
liberties--respect for privacy and civil liberties by fusion 
centers. As you made clear, the Federal Government does not own 
or control fusion centers, but we do have a role.
    I would just like to add to what you said; that this 
subcommittee views itself as another watchdog over the 
activities of fusion centers. We believe, and we have said this 
over some years, that they are a centrally important tool in 
our ability to connect the dots and prevent the next 9/11. I 
explained that in my opening remarks, and every single Member 
has amplified that today, and in past hearings.
    We also paid careful attention to a report of the GAO, 
which is the tool of Congress--the General Accounting Office--
on how fusion centers operate. So we care. We want to make 
certain that what happens at the State, local, and Tribal level 
complies fully with our Constitution and our laws.
    I think our first panel made clear that everyone there, who 
was in the business of fusion centers, cares as well. So let me 
just make that point.
    Let me finally add that a lot of civil liberties 
organizations regularly participate in our activities. We had a 
hearing just a couple of weeks ago. The ACLU was a witness. I 
think there is a representative of the ACLU in the audience 
today. The ACLU participated in a recent national fusion center 
conference on how to get fusion centers right.
    So there is a major effort on-going, I think, at the 
Federal, State, local, and Tribal level, and outside, in the 
civil liberties community, to make certain that this valuable 
tool is handled right.
    To you, Mr. Fein--you started with some conversation about 
how the Terrorist Surveillance Program violated FISA, issues 
about waterboarding in Guantanamo. As you know, I basically 
share those views. But those issues are not in the jurisdiction 
of this subcommittee. This subcommittee is focused on fusion 
centers. I would say it is a big reach to move all of that 
over, and assert that State, local, and Tribal entities, which 
are responsible for fusion centers, are doing things which, 
perhaps, the Federal Government got wrong in some respects, 
after 9/11.
    I just want to ask you a question. In your bio, which I 
read, you worked for then-Congressman Dick Cheney, on the Joint 
Committee on Covert Arms Sales to Iran.
    Mr. Fein. Yes.
    Ms. Harman. Most people believe--certainly, I believe--that 
Mr. Cheney, as Vice President, had a major role in designing 
and implementing these programs, like the Terrorist 
Surveillance Program.
    Could you explain what your activities were with Mr. 
Cheney? Are you an on-going--do you have an on-going 
relationship with Mr. Cheney?
    Mr. Fein. No. My service was on the committee. It was then 
a joint congressional committee, investigating covert arms 
sales to Iran.
    I view Mr. Cheney's views as Vice President as a complete 
somersault from his much more cautious and, I think, prudent 
views at the time. I helped write the minority report, which he 
praised. I think, if you read it, it is much more balanced than 
some of the distortions. I have certainly not felt inhibited, 
being a citizen of the United States, and devoted to the 
Constitution, to criticize someone who had hired me earlier, 
and displayed different views.
    With regard to the earlier comment about the differences 
between the Terrorist Surveillance Program or torture, 
waterboarding, and this--the point I am making is that all of 
those programs also had internal privacy protections. For 
example, every 45 days, there was a review of the Terrorist 
Surveillance Programs, making sure they were only targeting 
actually al Qaeda supporters. It was approved every single 
time, for 5 years, for one short delay.
    The State and local fusion centers have that same defect. 
It is internal--is the check and balance. I was called by the 
Justice Department to come consult with them on the Terrorist 
Surveillance Program, with some other privacy--including ACLU 
and some other groups--to suggest, ``These are your problems 
without any oversight.''
    Yes, they sit and listen. But how do you know whether 
anything is really accepted? They are smart, and know what the 
optics are. They go out and will say, ``Well, we consulted 
these groups, so we must be sensitive to privacy.'' It is like 
``The Hunting of the Snark'': ``I said it three times. It must 
be true.''
    Just because you say it, doesn't mean it is----
    Ms. Harman. Thank you. Thank you.
    I have 12 seconds left. I would just note that Congress is 
an independent branch of Government, and we are paying close 
attention here.
    Mr. Norris, let me just finally conclude by saying that 
your point that the Tribal entities may not have access to 
appropriate databases, is well taken by this committee. We plan 
to look into it.
    Mr. Norris. Thank you.
    Ms. Harman. I now yield for 5 minutes of questions, to the 
Ranking Member, Mr. McCaul.
    Mr. McCaul. I thank the Chair.
    I would like to echo that sentiment to Mr. Norris as well; 
that the access to NCIC, I think--is important for Tribal areas 
to have that access.
    My first question is to Mr. Gersten. I think Mr. Fein 
actually correctly points out the bulletin issued by the Texas 
Fusion Center as a--not a shining example of how they should 
operate, I should say.
    What has DHS done, now, to prevent that from ever happening 
again?
    Mr. Gersten. We took the proactive step of flying down to 
your great State, and providing some----
    Mr. McCaul. Thanks for saying that.
    Mr. Gersten [continuing]. Some guidance to the members of 
that fusion center--the director there.
    We actually took the step a little bit further, and brought 
with us a DHS intelligence-and-analysis intelligence officer, 
who will soon be deployed to Texas to work with that fusion 
center, so that he could benefit from our guidance.
    I would also add that we have received some inquiries about 
this, and used the lesson of this unfortunate product to 
demonstrate to other fusion centers. As Mr. Riegle mentioned on 
the previous panel, we brought the subject up at the National 
Fusion Center Conference and trained all DHS I&A analysts using 
that product as a demonstration of what not to do.
    We have taken that even further, to provide some assurances 
to other States that we will continue to monitor products, as 
they come out. Obviously, it is our State products. They were 
not issued by the Department. However, we can all learn from 
the lesson.
    Mr. McCaul. Well, I thank you for that. I hope--again, I 
hope that never happens again.
    I want to just read--this came out in the Associate Press--
that the top Taliban commander in Pakistan is claiming 
responsibility for a deadly attack. He also says that--promises 
an assault on Washington soon--and that--``one that will amaze 
the world.''
    Obviously, these kind of threats get our attention up here. 
I think our priority is to the Constitution--also, to 
protecting the American people. I think those are not 
incompatible. Those are one in the same.
    What I want to say to Mr. Fein is, you know, again, as I 
said earlier, after 9/11, you know, the big issue--and you know 
this working--having done your prior work in Federal service--
the connecting the dots, the sharing of information with the 
Federal, State, and local--absolutely critical to protecting 
the well-being and safety of Americans.
    Comments like, ``Law enforcement have never honored the 
First Amendment''--I, personally, think are inflammatory, and 
really don't advance a healthy debate and discussion about how 
we can move forward with protecting the American people, and, 
yet, still validate the constitutional ideals we hold so 
closely.
    So, with that--and you have got about a minute and a half 
to tell me: How would you protect the American people by the 
sharing of this information, which is very important 
information, which can lead to stopping a terrorist attack--how 
would you do that, and what would be your recommendation?
    Mr. Fein. I would like to make an observation. It was 
Justice Louis Brandeis who wrote that, ``The most cherished 
liberty amongst a free people is the right to be left alone 
from government''--the most cherished. That is part of the 
Constitution that is the sole lodestar for everyone who serves 
in Government, no matter what branch--the right to be left 
alone. That means the burden is on Government to demonstrate 
some substantial interest if you are going to encroach upon 
that right.
    I think that, if we focus on criminal activity, suspected 
crime, as the basis for collecting intelligence, we are on 
sound footing. In 1925, before we had any intelligence 
collection like we do today, then-Attorney General Stone--he 
later became chief justice of the United States Supreme Court--
worried when they were pushing him to get into the business of 
intelligence collection in order to stop, at that time, 
violations of the prohibition laws.
    He said, ``We should never do that, because, then, we will 
start turning into the fascist states of Italy''--what he could 
see emerging at that time.
    We saw, then, afterwards, then, intelligence began during 
the 1930s on the Boondall--the Communists and whatever. This 
was a Roosevelt initiative.
    When we start deviating from collecting intelligence 
because it relates to a specific crime, to--in collecting 
intelligence because it bears on an earmark of what a terrorist 
might be--that is where I think we are in danger.
    Just to point out, this is not the fusion center in North 
Texas. This is in----
    Mr. McCaul. Can I just have 2 seconds?
    So you are not the idea of collecting intelligence to 
protect Americans?
    Mr. Fein. As long as its on criminal activity--evidence 
that suggests a crime.
    Mr. McCaul. Okay. I just wanted that clarification.
    Mr. Fein. If I could, I would just like to point this out, 
because it relates to me: This is a fusion center report that 
was issued in order to suggest what were the earmarks, I guess, 
of a terrorist. This is the Missouri intelligence collection.
    They said that, ``An earmark of a terrorist seems to be 
somebody who supports presidential candidates Ron Paul, Bob 
Barr, Chuck Baldwin.'' That is me. I----
    Mr. McCaul. No, I think we would all agree with you on that 
assessment. That is absolutely----
    Ms. Harman. Thank you, Mr. Fein.
    Mr. McCaul's time is expired. That is right, for the 
record. The committee is not in favor of activity like that.
    Mr. Souder is recognized for 5 minutes.
    Mr. Souder. I was just going to comment on that Mr. 
Gersten--can you name one specific that Mr. Fein has said? You 
are giving generalities about what was wrong with the North 
Texas report. What is one specific?
    Mr. Gersten. One specific, related to that report, would be 
that it did characterize religion and practices of religion, in 
a way that could lead people astray--those reading the report--
into thinking that all people from the religion mentioned 
should be viewed with suspicion.
    Mr. Souder. Could you give the example of that statement--
of the one he mentioned earlier, which did not say that, but 
could lead to an inference--is what you are saying?
    Mr. Gersten. Yes. It could lead to an inference. Again, the 
Missouri product that Mr. Fein has brought to the table here--
again, also made inferences that could be mischaracterized and 
misinterpreted by those who receive the product.
    Mr. Souder. That was the one about Ron Paul?
    Mr. Gersten. Yes. It was not actually about Ron Paul. It 
was a product about militia groups.
    Mr. Souder. Because he doesn't seem like a big threat. I 
mean, some of us don't necessarily agree with him, but that--
Mr. Fein, you have been a longtime spokesman for libertarian 
views. While I wouldn't be mistaken for a libertarian--but any 
Republican has some of those views.
    For example, whenever you do domestic and terrorism things, 
we think of 9/11. But this gets into the gun issue, and what 
kind of privacy you have. Owning a gun came up, and everything 
from the Weaver question, to how we were going to follow up and 
prevent Oklahoma City bombers that came up in the abortion 
clinics, when former Attorney General Reno--initially, her 
office had proposed tracking people who went to church twice a 
week, because they might be more religious, and likely to bomb 
a clinic.
    Clearly, there are struggles with this. In your article--
and your written statement was--would you agree it was a tad 
over-the-top, to get attention?
    Mr. Fein. The problem, in my judgment, is the general 
theory that we want, and can encourage a risk-free country by 
gathering intelligence on anything, and sharing it, that has 
any conceivable relationship to a possible wrongdoing, and that 
all other values should be subordinated to that. There is no 
sense of balance in these----
    Mr. Souder. Okay. I return my time. I asked a question, and 
you didn't answer. Your statement says that fusion centers--
there would have been no anti-slavery movement in America, 
because William Lloyd Garrison would have been stillborn, which 
is ridiculous. There would have been an anti-slavery movement, 
even if he had been stillborn, and he wouldn't have been 
stillborn.
    It is ridiculous to say there wouldn't have been women's 
right to vote--which you make assertion--that the Roman 
government did not object to Christ, it was a religious 
objection. You can't even have your history right. Then, you 
have these cute wordings, suggesting comparability to KGB and 
the Stasi that--it is so over-the-top that you can't make your 
own point that----
    Mr. Fein. But I didn't even----
    Mr. Souder. But you can't even make your own----
    Mr. Fein. You didn't read my statement.
    Mr. Souder. I asked the question----
    Mr. Fein. Yes, I wrote the statement, so I know what I 
said.
    I had said that we should learn from the Stasi and the KGB, 
not that we were there. I did not make that assertion. With 
regard to the----
    Mr. Souder. ``Cute wording.''
    Mr. Fein. What?
    Mr. Souder. That is what I said. I didn't say you said 
that. I said you had cute wording to tie fusion centers to it--
suggests that the type of approach is that way. Then, you 
impugn the character of every single law enforcement officer in 
the United States.
    You will not accomplish conservative goals of trying to 
make a responsible Government when you go over the top, with 
wide assertions, broad-brush painting, and that--would you 
agree that it is a--that one of the most troubling things here, 
fundamentally--Mr. McCaul asked you a question, and you said, 
``If they have a criminal record.''
    The challenge we have is how to prevent an attack, and to 
do civil liberties; in other words, possibly before crimes are 
committed. Do you believe it is appropriate for the Government 
to try to look at prevention of crimes, rather than just 
researching after the crime is committed?
    Mr. Fein. It is not appropriate to try to search--to 
prevent crimes that you have no evidence of actual element of 
criminal activity afoot. It is better to be free than to have 
risk-free----
    Mr. Souder. Better to be dead----
    Mr. Fein. Better to be free----
    Mr. Souder. Dead.
    Mr. Fein [continuing]. Than to try to have a risk-free 
country, where the purpose of the country is destroyed because 
you are spying on everybody.
    If you want to go and try to prevent any conceivable crime, 
of course, we might stick a policeman in everybody's home. Why 
not have a monitor----
    Mr. Souder. Absolutely true.
    Mr. Fein [continuing]. On their video, 24 hours a day, 
because you are trying to prevent----
    Mr. Souder. Taking back my time--taking back my time.
    I agree with overreaching. You, however, said ``no 
prevention.''
    Ms. Harman. The gentleman's time is expired.
    Ms. Clarke is recognized for 5 minutes.
    Ms. Clarke. Thank you very much, Madam Chair--very 
stimulating discourse this morning.
    My question to Mr. Fein--I am just curious--have you ever 
visited a fusion center?
    Mr. Fein. I have been invited by the Los Angeles sheriff. I 
would say I--delighted to go out there, and be able to examine 
all the----
    Ms. Clarke. Have you been there yet?
    Mr. Fein. No, I have not been there yet.
    Ms. Clarke. Okay.
    Do you think that a visit like that would have helped to 
shape your views on their activities?
    Mr. Fein. If I could examine all of the files, and saw 
exactly what was being collected, yes.
    [Laughter.]
    I would like all these fusion centers to be subject to 
something akin to the Freedom of Information Act, so we can 
have some outside scrutiny of them.
    Ms. Clarke. Okay.
    That is very interesting.
    Your commentary about their activities suggest that you had 
some sort of internal knowledge of exactly how they operate.
    Mr. Fein. We do have the ones that have been leaked.
    Ms. Clarke. I would like to suggest that your commentary is 
very subjective, based on information that you received 
secondhand. Perhaps, one way of addressing your concerns would 
be to visit a fusion center.
    Now, the extent to which you will be able to peruse all of 
the documents there--I think we would have to examine that. But 
your credibility, with regards to the extreme nature in which 
you have addressed this issue, is a bit diminished, simply by 
the fact that you have not visited one.
    I think that, you know, to rectify that, we should, 
perhaps, arrange for you to do so.
    Mr. Fein. Well, I would be grateful. If I could examine 
those files--I would say that the same things were said about 
all the people who had worries that Guantanamo Bay--not 
everybody was an enemy combatant there--and said, ``Oh, you 
haven't been down there and seen what the military saw, so you 
can't have a useful thing to say about it''--and we see, when 
there is finally review, who had the greater credibility?
    Ms. Clarke. Right.
    As I have stated, I think that you would add to your 
commentary some level of validity and some level of 
credibility, had you visited the fusion centers.
    Mr. Fein. Well, when I would go visit the Los Angeles 
sheriff, and he invited me out there--and I will be out there 
in May--I would be grateful if you could write a letter for me, 
asking that he permit me to examine all of their files under a 
confidential arrangement, so I can see everything. That would 
really help.
    Ms. Clarke. Well, I will defer that to our Chair.
    [Laughter.]
    We will take it from there.
    Madam Chair, I have no further question or comment. I yield 
back the balance of my time.
    Ms. Harman. Thank you very much.
    The Chair now yields 5 minutes to Mr. Green.
    Mr. Green. Thank you very much, Madam Chair.
    I thank all of the witnesses.
    Mr. Fein, I have a basic premise that guides a lot of my 
thinking. It is this: That there is safety in the counsel of 
the multitudes. I believe that it is good to hear all opinions, 
as many as you can. I think that there is some time--that there 
are times when you learn things from unexpected sources. So I 
want to thank you for coming in and giving us your testimony 
today.
    The challenge that I have is that I must now ascertain 
whether or not you are the canary in the coal mine, or are you 
a woodpecker, who has pecked too many times? I am trying to get 
a handle on where you are.
    You made a comment that I think merits my consideration. 
That is with reference to the Freedom of Information Act. Say 
more about your concerns about freedom of information, because, 
when you are finished, I am going to pass this over to Mister--
is it Gersten? I would like for him to respond.
    So, if you would, please, quickly--as tersely as you can.
    Mr. Fein. The general idea is to expose public access to 
what these groups are doing, in the same way that we have an 
FOIA applicable to Federal agencies, so that you can have 
greater outside scrutiny and monitoring as to exactly what is 
on-going.
    They are not, however, arms of the Federal Government, so I 
don't know whether this committee would have jurisdiction, but 
insofar as to getting Federal aid, you could insist that they 
have State and local Freedom of Information Act obligations, 
administered like the new administration has administered the 
current FOIA, so that there can be greater eyes and ears on 
what is on-going.
    Mr. Green. Mr. Gersten.
    Mr. Gersten. I would actually just like to say that it is 
actually helpful to have people like Mr. Fein aggressively 
looking at the issue of fusion centers, even if some of the----
    Mr. Green. Pardon me for interceding, but talk about his 
Freedom of Information concern, if you would.
    Mr. Gersten. Absolutely.
    Mr. Green. Focus on that.
    Mr. Gersten. Yes, absolutely.
    In particular, I think that access to information about 
what is going on in fusion centers is essential to make sure 
that we have responsible commentary and responsible oversight 
from outside of Government.
    There are many advocacy organizations that are out there 
that have issued responsible reports on fusion centers. They 
have issued responsible reports on fusion centers. They have 
done so absent a lot of information about what is truly going 
on.
    So I think----
    Mr. Green. Wait. Let me help us to refine my question. 
Maybe I would get a better response if I refine my question.
    Mr. Gersten. Sure.
    Mr. Green. My concern is this: He makes the commentary that 
it is good to have access and transparency.
    Give us a rationale for not according Freedom of 
Information privileges.
    Mr. Gersten. Well, in one instance, you would certainly not 
want a lot of personally identifiable information that is 
occasionally accessed in fusion centers to be open for anyone 
to view. I mean, that in and of itself, would be a violation of 
civil liberties.
    But I think, on the whole--I think we are in favor of 
having more openness about the activities, and even some of the 
information flow that is shared through fusion centers.
    Mr. Green. My suspicion is--and I don't want to speak for 
you, Mr. Fein--but my suspicion is he is talking about an 
individual who wants to know whether or not he or she has been 
the subject of some sort of investigation. Is that a fair 
statement, Mr. Fein?
    Mr. Fein. That would be a counterpart to our privacy act--
--
    Mr. Green. Okay. Mr. Fein, if you will just say ``Yes,'' it 
will help me to move it along.
    Mr. Fein. Yes.
    Mr. Green. Okay.
    Mr. Gersten. I think we should offer redress. The 
organizations involved in fusion centers should be accountable 
to provide information, if they have accessed information or 
somehow been privy to information about a specific person. That 
person should be able to go to that fusion center and ask all 
of the agencies involved whether or not they are being somehow 
involved in----
    Mr. Green. Okay. Thank you. Let me go to Mr. Fein, quickly.
    Mr. Fein, under this scenario, if the person who seeks 
information is under some sort of scrutiny for, maybe, some 
sort of terrorist activity, and if according that information 
at that moment would somehow compromise an investigation, would 
you have any exception for a person who is asking for the 
information, if it compromises national security?
    Mr. Fein. I think the model of the Privacy Act that applies 
at the Federal level is the model that would accommodate that 
concern. You could simply take all privacy acts that enabled--
--
    Mr. Green. But is your answer--I need for the record----
    Mr. Fein. The answer, at the Federal level--yes, there is 
an exception----
    Mr. Green. Okay. You would agree that----
    Just a moment, Mr. Fein. If you would, quickly--would you, 
for my record--would you agree that there should be an 
exception? Yes or no?
    Mr. Fein. Yes.
    Mr. Green. Okay, all right.
    Thank you, Madam Chair. I do have other questions, if we 
have another round.
    Ms. Harman. Thank you, Mr. Green. I don't think we are able 
to have another round, given the schedule of the day.
    If Members have additional questions, I would hope that the 
witnesses would agree to respond in writing--is there any 
objection?--so that we can have a fuller record.
    Well, let me just comment that we have had a lively 
morning. Let me put out there just a couple of things that I 
think all of us would agree upon--all of the Members of the 
subcommittee.
    First of all, we all vigorously support the First 
Amendment, and the right of free expression. We also support 
the Fourth Amendment, and the other provisions of our 
Constitution.
    Second of all, our hearings are intended to spur a public 
dialogue. We do think the public should understand what the 
policies and practices of the Federal Government and State and 
local and Tribal governments are, with respect to the issue of 
intelligence.
    In fact, our last hearing was specifically to spur this 
dialogue about, ``Why do we need homeland security 
intelligence?'' and to have those who critique the way we 
conduct that intelligence.
    So we support an active public dialogue. We also think--and 
we have passed a bill twice, based on this premise--that we 
over-classify things at the Federal level, and we should have 
much more information available to the public and, certainly, 
available to State and local law enforcement, which many of 
whom do not have security clearances.
    The threats are grave, as Mr. McCaul stated. There is no 
such thing as zero risk. No one here thinks there is zero risk. 
The policies of the Federal Government--at least those I know 
anything about--are not designed to achieve zero risk. But they 
are designed, we hope, as carefully as we can do it, to protect 
the public of the United States. That includes protecting civil 
liberties and privacy.
    So let me finally say that these hearings will continue. We 
welcome the dialogue. We are trying to get these policies 
right.
    I do want to thank the very hardworking people at the 
Department of Homeland Security, and in State, local, and 
Tribal law enforcement, who are also trying to get this right. 
You do us a great service, and you are protecting our country.
    Thanks, on behalf of a grateful Nation.
    The hearing stands adjourned.
    [Whereupon, at 11:58 a.m., the subcommittee was adjourned.]

                                 
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