Senate Report Silent on Fusion Center Reliance on Contractors

The Senate released an investigative report on Wednesday sharply criticizing anti-terrorism facilities set up throughout the country after the September 11, 2001, terrorist attacks to coordinate federal, state, and local intelligence. As the Project On Government Oversight detailed yesterday, the report found that these “fusion centers,” which have cost the federal government anywhere from $289 million to $1.4 billion total (incredibly, the government does not have a more exact figure), are producing very little useful terrorism-related intelligence and are committing widespread violations of citizens’ civil liberties.

But there’s another potential problem with fusion centers that the report did not address.

The centers rely on private contractors, and it isn’t clear that contractors should be playing such a big role in this sensitive work.

Federal contracting law lists “the direction and control of intelligence and counter-intelligence operations” as an inherently governmental function—in other words, a function that must be performed by a government employee.

The Senate report says that fusion centers rely on contractors, that some contractor employees are “under-trained or poor performers,” and that contractor employees sometimes outnumber government employees.

If contractor employees outnumber government employees at a fusion center, there is a good chance the contractor employees are “directing and controlling” aspects of that center’s operations and are therefore illegally performing inherently governmental functions.

Unfortunately, the Senate report does not say whether any contractors are doing jobs that, as a matter of law, should be performed by government employees.

These are not new concerns. For many years, the American Civil Liberties Union (ACLU) has expressed concern about the participation of private data mining companies in fusion centers.

In a 2009 blog post, POGO said: “Allowing private contractors to gather and disseminate sensitive intelligence and law enforcement information poses significant privacy risks, to say nothing of the possibility that such contractors may be performing inherently government functions.”

The Senate report found many flaws in the fusion center program. One of the major findings is that officials at the federal agency in charge of the program, the Department of Homeland Security (DHS), were publicly praising fusion centers while, at the same time, privately doubting the value of the intelligence the centers were producing.

One official told Senate investigators that DHS was aware that “a lot of [the reporting] was predominantly useless information,” the report said. Another official was quoted bluntly characterizing some fusion center intelligence as “a bunch of crap.” At the same time, however, agency officials were publicly lauding fusion centers as “one of the centerpieces of our counterterrorism strategy,” and “a major force multiplier in the counterterrorism enterprise,” according to the report.

The Senate also criticized itself in the report, lamenting that, despite numerous hearings, briefings, and site visits and thousands of pages of DHS assessments, both houses of Congress missed some of the worst problems.

Image from United States Senate, Permanent Subcommittee on Investigations, Committee on Homeland Security and Governmental Affairs, Majority and Minority Staff Report, Federal Support for and Involvement in State and Local Fusion Centers, October 3, 2012, Appendix A, p. 11.