The Eyes of Texas: A New Report on Fusion Centers

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Just as the events of September 11th, 2001, prompted significant changes in how we view our security on the national level, it also led to fundamental alterations to local policing strategies. New methods and a new intensity in the drive to keep the country safe have not emerged without controversy, however. Since 9/11, stakeholders have raised concerns about civil liberties and the efficacy of new law enforcement strategies implemented to protect the country. The faith community can and should play a part in the national security discussion by building upon its historic role of advocating for fair criminal justice policies and working to ensure that policing policies are constructed with the goal of keeping people safe while maintaining cohesive and open communities.

A New Era in Law Enforcement

Faith, Law Enforcement, and Building Community

One common tenet of faith communities is a desire to develop safe and healthy local communities. These groups often prioritize cohesiveness and exhibit strong ties to freedom and justice. Along with this comes a focus on promoting fair criminal justice policies.
Often congregations and religious entities are instrumental in the development and success of community-oriented policing methods. As new policing methods become established, it remains to be seen what partnerships can be forged with intelligence-gathering entities within local police departments. It is possible that new technologies could make community policing easier and more effective, but those opportunities have yet to be analyzed.
In the 1960s and 1970s, when racial profiling and the use of “signature crimes” as a policing method were particularly prevalent, the faith community was a prominent player in the fight for reforms.
Today, many public interest and civil liberties groups fear that the United States could be on the cusp of another sensitive era that threatens to roll back historical victories in this arena.
Much of the concern lies with a return to the use of preemptive crime policies, as a combination of profiling and new tactics associated with intelligence-led policing could end up negating the significant progress made over the past few decades.
The faith community can build upon its historic role of advocating for fair criminal justice practices and take this opportunity to work toward a meaningful partnership with law enforcement and policy-making entities n this new era of policing.

Americans now live in an era where new technologies can provide local police departments with the opportunity to transcend informational and geographical restrictions that would have limited them in the past. New threats supply increasing motivation for these departments to take advantage of new capabilities. The result is a growing infrastructure of interlinked public safety entities cropping up around the nation, combining the old concept of local policing with a newer one known as homeland security.

Today, the scope of homeland security is wide. Some stated goals of the Department of Homeland Security include: “defeating terrorism, strengthening biological and nuclear security, improving intelligence capacity and information sharing, securing digital infrastructure, protecting physical and social infrastructure, securing borders, and managing incidents effectively.”[i] This formula includes a new emphasis on developing methods of information sharing among law enforcement entities. The emphasis on information gathering, analysis, and sharing is born of a larger shift away from age-old methods of investigation—a shift that has grown prominent in law enforcement circles in recent decades.

A Philosophical Shift in Policing

Traditional methods of evidence-based police work (EBP)
have been practiced for approximately 200 years,
but since the terrorist attacks on September 11, 2001,
the US has begun to embrace "intelligence-led" policing
(ILP) methodologies.

Origins
EBP: United Kingdom, Scotland Yard
ILP: United Kingdom in the 1990s

Characteristics
EBP: Proven methods of evidence collection
ILP: Data-driven and analytical information sharing

Concerns expressed by stakeholders & adversaries
EBP: Not proactive enough for 21st century threats
ILP: Unproven results, dangerous for civil liberties

Much of western policing theory and norms can be traced back to the United Kingdom’s 19th century methodologies. In response to crime waves resulting from the economic and population growth in cities, the British Government passed the Metropolitan Police Act, establishing a Metropolitan Police force in 1829. The early police headquarters, which came to be known as Scotland Yard, set a standard for Sherlock Holmesian deductive logic and the evidence-based method of police and detective work that would become prevalent in Western society. With this methodology, officers procured testimony and items in order to build a case and eventually prove a suspect guilty or innocent. The idea of presumed innocence, or “innocent until proven guilty,” was a legal right upheld by law enforcement agencies where deduction and logic coupled with evidence were vital criminal justice tools.

In the 1990s, police systems in the United Kingdom began experimenting with a new law enforcement methodology known as intelligence-led policing. Intelligence-led policing is a “strategic, future-oriented and targeted” way of investigating “built around analysis and management of problems and risks, rather than reactive responses.”[ii] This strategy has its base in anticipation and inferences, rather than on evidence. Similar ideas were embraced on a large scale by American officials after 9/11. Data collection and analysis methods are the main components of a shift away from the traditional methods of investigation and evidence that have been dominant since the first lawmen emerged from Scotland Yard in the early 19th century. Now, adaptation and innovation are being seen in an arena where methodical tradition was the norm for decades. Decision-makers at the highest echelons of policy and security are implementing new ideas about how to combat terrorism, organized crime, and other serious criminal activity. The impetus for this shift, at least in the United States, was the terrorist attacks on 9/11.

For federal officials in the US, the threat of terrorism in the 21st century precipitated a clear need for new methods of policing, since the country was now dealing with novel threats on an unprecedented scale. At the outset of these changes, however, there was little expertise available and almost no consensus on what measures to pursue. As a result, lawmakers passed legislation like the far-reaching USA PATRIOT Act, a nearly 400-page bill that was approved just 45 days after 9/11. The White House also pushed for the creation of the Department of Homeland Security (DHS), a reduction in the barriers between law enforcement and national security agencies, and a number of other new initiatives.

Some of the changes made in the months and years after 9/11 involved an increase in the use of unproven policing techniques and an overall expansion of power for those involved in national security operations. Those charged with the duty of keeping America safe were given increased leeway to try new methods, including collecting personal data from individuals and specifically classifying those with possible ties to terrorist activities. According to a 2008 report by the official non-partisan think tank of Congress, the Congressional Research Service (CRS), some might argue that the flexibility given to security agencies may have been ill advised and “premature,” as the majority of these national security measures grew while policymakers lacked a “common understanding of the underlying discipline.”[iii] New tools and methods such as data sharing—and some old ones involving racial and ethnic profiling—were implemented without adequate discussion or oversight.

The Present and Future of Homeland Security: Fusion Centers and Intelligence-Gathering Operations in Texas

The Evolution of Fusion Centers

The project of creating comprehensive homeland security architecture went through multiple iterations after 9/11 and included significant alterations to previous practice on the national and local levels. The focus of this report, however, is the rise of collaborative entities known as fusion centers that grew out of those early efforts and emerged as the nucleus of national security innovation in America. Many local law enforcement agencies had been experimenting with systems of gathering and analyzing intelligence prior to 9/11, and fusion centers represent an attempt to consolidate and scale up those efforts. They are, according to DHS, the “core means by which we promote Federal, State, local, and Tribal information sharing.”[iv]

The Department of Justice defines a fusion center as “a collaborative effort of two or more agencies that provide resources, expertise, and information to the center with the goal of maximizing their ability to detect, prevent, investigate, and respond to criminal and terrorist activity.”[v] Fusion centers promote information sharing by linking law enforcement officials—from local police officers to federal officials—through databases containing vast amounts of information on individuals, crime patterns, and suspicious activity. In theory, a police unit in El Paso could input data regarding cross-border gang activity, and that information could be accessed by local, state, and federal law enforcement personnel working in neighboring jurisdictions. As of 2009, there were 72 fusion centers officially recognized by DHS in all 50 states. Most of these entities have been established since 2006.

Fusion Centers in Texas

Texas’ size and geographical, cultural, and demographic diversity pose challenges to law enforcement agencies trying to set security mechanisms in place. Since 9/11, some law enforcement entities in Texas have made a shift toward intelligence-led policing. The push for vigorous investigative and intelligence capabilities resulted in the establishment of intelligence councils, management centers, and fusion centers in the state.

In 2004, Texas created the Governor’s Office of Homeland Security (OHS) as a result of House Bill 9, passed during the 78th Regular Legislative Session.[vi] This office appoints and maintains three interagency homeland security and intelligence councils that advise the governor on emergency preparedness and security issues. OHS also drafts the Texas Homeland Security Strategic State Plan to prioritize resource allocation. The agency considers a robust criminal intelligence capability to be the main vehicle for gathering, housing and utilizing law enforcement intelligence in the state, thus justifying the need to move from slower and reactive approaches to more proactive ones to prevent acts of terror.[vii]

According to the Texas Homeland Security Strategic Plan, “Fusion centers are the most structured form of multi-agency intelligence collaboration and form essential nodes in [the Texas] intelligence network.[viii] Strategic collaboration enables agencies to have more, cross-jurisdictional information on criminal activities in the state. The statewide Texas Fusion Center (TxFC) was formed in 2004, and is funded solely by the State of Texas.[ix] TxFC is housed in the Texas Department of Public Safety (DPS) headquarters in Austin, and is a hub of data collation and analysis connecting more than 1,500 of the 2,500 law enforcement jurisdictions in Texas. Along with TxFC, there are several regional and local fusion centers located in Texas. These centers are funded by Federal DHS Urban Area Security Initiative (UASI) grants. Currently, the centers include: North Central Texas Fusion System (NCTFS) in Collin County, Metro Operations Support and Analytical Intelligence Center (MOSAIC) in Dallas, and Houston Regional Intelligence Service Center (HRISC), with centers launching in Austin, San Antonio, and El Paso.

A 2008 study by Deloitte Consulting concluded that information sharing problems at DPS at the time hampered effective collaborations between units, divisions, and offices. A lack of a central division rendered the intelligence gathering structure in Texas fragmented. [x] Because the Texas intelligence architecture is structured around a disjointed network of local and regional fusion centers, security and duplication issues will inevitably arise. According to the report, the scattered jurisdiction of the current system makes it more likely that operations and outcomes less effective than they would be with a single division responsible for coordinating “criminal, terrorist, and homeland security related information.” [xi]

Texas Data Exchange

Fusion centers are not the State’s first venture into information sharing, as a statewide database called the Texas Data Exchange (TDEx) currently gives law enforcement entities across the state access to information ranging from incident records and citations to arrests and booking reports. According to the governor’s office, TDEx connects more than 2,200 Texas and federal law enforcement entities, allowing them to share “jail, prison and law enforcement data.”[xii] Originally housed in the Office of the Governor, the database is now managed by DPS and is linked with law enforcement National Data Exchange (NDEx), the FBI’s national database.[xiii]




The Border

Texas’ 1,240-mile border with Mexico presents a unique challenge for law enforcement in the state, and the question of what role fusion centers can and should play with regard to the issue is an important one. The State has already committed significant resources to projects intended to make patrolling and defending the border more effective, and it has come away with mixed results. Currently, DPS oversees a Border Security Operations Center (BSOC), which monitors the Texas-Mexico border, plans state and law enforcement border security operations, and coordinates those programs with Federal security activities. In 2006, Governor Perry launched Operation Rio Grande, which gave the state a leading role in coordinating border-related intelligence.[xiv] In September 2007, the governor’s office launched Operation Border Star, another intelligence initiative that was granted an initial $110 million to coordinate the efforts of entities like DPS State Troopers, Texas Rangers, Texas Civil Air Patrol, U.S. Border Patrol and local police and Sheriffs’ departments.

A 2009 report by the ACLU of Texas found numerous problems with Operation Border Star and argued that resources were wasted because of information mismanagement. For example, the program requires local law enforcement to measure their success based on small-scale policing activities, thus taking the focus away from the program's intended goal of fighting cartel violence and organized crime.[xv] The disorganization of the system and failure to prove effectiveness parallel the problems that have been characteristic of fusion centers, Joint Operational Intelligence Centers, and virtual border surveillance programs, all of which often confuse valuable criminal intelligence with unimportant statistics and innocent activities, including routine traffic stops. Extra funding poured into these systems does not appear to be creating more effective mechanisms, but instead seems to be causing a flawed system to continue to operate based on a foundation of methodologies and ideas that were not tested and proven at the outset.

Concerns about Fusion Centers

While innovations and synergy in law enforcement are necessary and welcome developments, the large amounts of public funds and operational leeway afforded to fusion centers raise the possibility for abuse and the need for scrutiny. Indeed, the CRS report referenced earlier went so far as to call into question the “underlying philosophy” of fusion centers as a whole. It further expressed concerns about the absence of sufficient understanding of the nation’s security goals and needs, the long-term viability of fusion centers, their substantial financial costs, and the detrimental effect they could potentially have on the civil liberties of all Americans.[xvi] Those concerns take on an increased urgency when the scope of these initiatives is considered. According to DHS officials, fusion centers collect “classified and unclassified information” and may share their unclassified findings not only with local police, but also “multiple levels and sectors of government and private industry.”[xvii] Furthermore, fusion center analysts have been encouraged to look into financial, medical, internet, email and video surveillance information to find clues of possible criminal activity.[xviii] That information-sharing capability is, of course, central to the “all-hazards” strategy embraced by many fusion centers, but a dearth of oversight and transparency makes it an area in need of increased scrutiny.

Mission Creep

Fusion centers were devised in response to a new level of terrorism threats, but the scope of their mission beyond counterterrorism was generally undefined. At the outset, it was clear that fusion center tools could be used in other areas of policing, yet the questions of how to carry this out were not answered conclusively. The result of this in some instances has been “mission creep”; that is, the tendency to experiment and move beyond initially purposed goals and jurisdictions. Mission creep can cause centers to become unfocused and ineffective, and it is a primary cause of civil rights and civil liberties violations.

As the concept of fusion centers has evolved, new centers increasingly have adopted an “all-crimes” or even a broader “all-hazards” approach from the outset. Counterterrorism is no longer the only goal of most fusion centers, and it may not even be the primary goal. Many officials contend that information sharing can be used to infiltrate gangs, help prevent the spread of illnesses, or even help areas prepare for a hurricane.

Because fusion centers have limited oversight, there is a lack of uniformity among them nationwide, meaning that each fusion center’s mission, operations, and commitment to transparency is different. Community engagement and public education become more important in such an environment, as do the privacy and oversight policies of each individual fusion center.

Critics of fusion centers have gone beyond questioning their impact on individual liberties and public finances and begun to raise questions about their basic efficacy. A near decade of new strategies, innovation, and injections of public money has failed to produce quantifiable success, with the work of fusion centers and other regional intelligence-sharing networks having produced a number of public controversies and a dearth of tangible benefits. The 2008 CRS report stresses “it is unclear if a single fusion center has successfully adopted a truly proactive prevention approach to information analysis and sharing.”[xix] The report also states that a potential risk to the fusion center trend is the possible inability of fusion centers “to demonstrate utility in the absence of future terrorist attacks, particularly during periods of relative state fiscal austerity.”[xx] Fusion centers are costly to states, according to the report, with some costing millions of dollars to run each year; the median contribution coming from the federal government only covers 21 percent of those costs.[xxi]

While making note of past issues surrounding fusion centers, it is important to note better practices in these entities as well. Minnesota, a state that values personal privacy, created a commission of civic community leadership, civil liberties advocates, and law enforcement personnel that participated in the creation of the Minnesota Joint Analysis Center. This body currently provides regular recommendations as to the fusion center’s operating policies. The state of Michigan maintains transparency by operating a website that discloses its fusion operating policy and practices to the public.[xxii]

Members of the community within a fusion center’s scope are often uninformed about the center’s processes. Ineffective fusion centers with opaque operating processes exist around the nation, and such arrangements foster fear and concerns about fusion centers and their goals. Further concerns arise when one considers that even if a fusion center is established with strict policies governing privacy and the types of data that will be collected, that center will be interlinked with other fusion centers around the nation, meaning its database is likely to be tainted with information that is inaccurate or was collected by means that would violate the center’s own privacy policy. In effect, the lack of overarching standards means that each fusion center is only as strong as its weakest link.

Examples of Fusion Center Inefficiency and Abuse

North Central Texas Fusion System (NCTFS)
2009: The Collin County-based Center published a “Prevention Awareness Bulletin” that called on law enforcement officers to report the activities of local Muslim civil rights organizations and anti-war protest groups to counter possible “attempts to weaken our country’s support for the War on Terror domestically.”

Virginia Fusion Center
2009: A fusion center in Virginia characterized the state’s colleges and universities as “nodes for radicalization” in addition to stating that “diversity” surrounding a Virginia military base and the state’s historically black colleges were possible threats.

Missouri Information Analysis Center (MIAC)
2009: Missouri Information Analysis Center published “The Modern Militia Movement,” a report that identified the warning signs of potential domestic terrorists as including non-violent political dissidents, peace groups, Libertarian third-party voters, and “right-wing” conservative evangelical religious individuals.

Deloitte Study
2008: A study by Deloitte concluded that inefficiencies and fragmented jurisdiction leave Texas fusion centers ineffective. The local and regional centers are under the jurisdiction of various agencies; for example the North Central Texas Fusion Center is under the auspices of the Collin County Commissioners’ Court, and in Dallas, MOSAIC is headquartered under the Dallas Police Department, while the Texas Fusion Center is run by DPS. The key aspect of that point is that no overarching standards exist to ensure that policing strategies use resources efficiently and achieve the desired results.

Building communities of trust
Started in early 2009, the Building Communities of Trust initiative aims to bring together federal officials with law enforcement personnel at all levels. The project has fostered dialogue on the issue of balancing public safety with transparency and public engagement in selected communities, connecting community groups, law enforcement, intelligence officials, and federal agencies.
Building trust increases the quality of relationships between law enforcement agencies and the communities they serve, particularly immigrant and minority communities, creating a framework that improves information sharing and protects local communities.


Recommendations

1) Texas Impact supports the creation of a state-level Criminal Intelligence policy oversight and coordination council in Texas.

• This entity should coordinate the state and local law enforcement and public safety communities, including fusion centers, to achieve constitutionally compliant and effective intelligence architecture in Texas.
• The council should set policy standards and audit the performance of law enforcement agencies across the state.
• The council should maintain permanent advisory positions filled by civil liberties advocates, community members, and subject-matter experts.
• The council should maintain transparent processes and allow public access to information about its meetings, conclusions and decisions.

2) Texas Impact supports the inclusion of community groups in the Texas intelligence policy-making architecture.

• Community support is a vital component of achieving a sound national security environment; therefore, we call for a stronger policy advisory role for faith-based and community-based groups at the local and state levels. Fusion centers oversight committees and the Public Safety Commission overseeing DPS should be expanded to include elements of community participation.
• Community involvement with local fusion centers could follow the Minnesota model, where a commission of civic community leadership, civil liberties advocates, and law enforcement personnel participated in the creation of the Minnesota Joint Analysis Center and provide regular recommendations as to its operating policies to the Fusion Center’s Director.

3) Texas Impact supports legislation officially codifying TDex as a program in DPS.

• This legislation would allow DPS to include program funding and performance measures for TDex in the Department’s biennial budget.
• Clear assignment of TDex in statute would end any ambiguity about the location and position of the entity.

4) Texas Impact supports enacting state legislation that reinforces adherence to 28 CFR part 23.

• State legislation in the upcoming session should reinforce the commitment of all state and local fusion centers to adhere to the Code of Federal Regulations 28 part 23 (28 CFR part 23) covering criminal intelligence investigations and record management.
• All fusion centers and criminal intelligence entities within Texas should be clearly required in statute to follow the state’s privacy and open records laws.