Homeland Security’s fusion centers show the dangers of mission creep
The terrorist attacks of Sept. 11, 2001, prompted an unprecedented escalation in the domestic surveillance apparatus. More than 20 years later, the tools of surveillance developed post-9/11 not only continue to expand but also drift further from their ostensible mandate of preventing future terrorist attacks. These tools, moreover, operate without meaningful transparency or checks, increasing the threat to individual freedoms without any corresponding security gains.
A new report by the Center for Security, Race and Rights (CSRR) at Rutgers School of Law sheds light on one of the most significant but lesser-known tools of the surveillance apparatus: the proliferation of fusion centers across the United States.
Fusion centers developed in response to the 9/11 Commission Report’s conclusion that the lack of intelligence sharing between state and federal agencies contributed to law enforcement’s failure to stop the attacks on the World Trade Center and Pentagon. Operated by individual states and localities, fusion centers seek to coordinate law enforcement at all levels of government, through a system of intelligence gathering that retains, analyzes and synthesizes data.
Fusion centers were intended to serve as hubs capable of sharing information to help detect and prevent future terrorist attacks. But the centers quickly morphed into vast systems of data collection to address any perceived crimes or hazards.
In their earliest conception, fusion centers focused almost entirely on Muslim and Arab communities, targeting their places of worship and community activity. Over time, the centers broadened their focus to include other minority groups, particularly Black Americans.
New Jersey, home of one of the country’s largest fusion centers, provides a unique vista into the insidiousness of fusion center operations. In Camden, N.J., where the population is 39 percent Black, more than 150 documented surveillance devices have scrutinized minority communities. New Jersey’s fusion center, also known as the Regional Operations & Intelligence Center (ROIC), has effectively resurrected the discredited theory of “broken windows” policing from the 1980s, when overaggressive enforcement of misdemeanors led to mass incarceration of racial minorities. Now, emboldened by the ROIC, law enforcement can tap into a far greater spying apparatus. The ROIC thus appears to have degenerated into what one scholar called “a mini-CIA on call for [New Jersey] cops.”
There is no evidence that this style of surveillance has deterred terrorist attacks. Instead, evidence points to sharp increases in arrests for frivolous offenses such as riding a bicycle without a bell or for petty drug possession. In Camden, for example, the CSRR report found that cases have risen rapidly — by nearly 100,000 in one year — since New Jersey’s fusion center was established, overwhelming the municipal court docket.
Fusion centers also pose significant risks for First Amendment-protected activities. New Jersey, for example, has created intelligence dossiers on “known troublemakers” — a term that is often conflated with engaging in legitimate protest and dissent — according to the CSRR report.
But fusion center overreach should concern more than just civil rights and civil liberties groups. The federal government pumps billions of dollars annually into state-based intelligence gathering and fusion centers, diverting money that could be used to protect against future terrorist threats or to help revitalize low-income communities.
The absence of transparency and meaningful oversight helps explain the proliferation of fusion centers. The CSRR report describes how its efforts to obtain information during its year-long investigation were stonewalled and stymied repeatedly. Law enforcement, for example, refused to release records about actions of police pertaining to any investigations into actual or even “potential violations of criminal law.”
The little information that is publicly available, however, fails to show fusion centers are effective at halting terrorism. To take one of the few publicly available examples: A report entitled “Altered Bus in Fairfield, N.J. Presents Concerns” explains how a bus was pulled over for alterations that enabled it to “evade fuel taxes.” According to the analysis, these alterations demonstrated “the potential for a bus to be turned into a large vehicle-borne improvised explosive.” But in fact, as the analysis itself concluded, no such threat actually existed.
Intelligence sharing across agencies and governments theoretically can be a valuable counterterrorism tool. But to wield this tool effectively — and to prevent abuse and waste — oversight must be strengthened. In New Jersey, for example, the state should create an ombudsman tasked with ensuring that the civil liberties of all residents are protected against unconstitutional intelligence gathering. Public hearings should be conducted into programs that can be problematic, like “New Jersey Shield,” which seeks to expand information sharing and collaboration between the public and private sectors, so that the legislature can understand how surveillance can fuel law enforcement abuses and take steps to correct it.
As the U.S. Supreme Court has explained, an informed citizenry is “vital to the functioning of a democratic society.” If citizens want to ensure that vast new surveillance tools like fusion centers remain accountable, they must know more about how they are operating.
Jonathan Hafetz is professor of law at Seton Hall Law School and a faculty affiliate at the Center for Security, Race and Rights at Rutgers School of Law. Follow him on Twitter @JonathanHafetz.
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