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Hearing of the Intelligence, Information Sharing and Terrorism Risk Assessment Subcommittee of the House Homeland Security Committee - The Future of Fusion Centers: Potential Promise and Dangers

Location: Washington, DC

Hearing of the Intelligence, Information Sharing and Terrorism Risk Assessment Subcommittee of the House Homeland Security Committee - The Future of Fusion Centers: Potential Promise and Dangers



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REP. HARMAN: (Sounds gavel.) The hearing will come to order. Good morning, everyone. Good morning.

(Audio break) -- 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, quote, "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 risk 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 clearinghouses of sorts for all the intelligence that law enforcement agencies are gathering on the ground regarding the smuggling of guns and drugs. And make no question about it: These issues are absolutely critical, both for U.S. and Mexican security. And 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 U.S. and Mexico can develop a 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 -- (laughs) -- and years of experience on the Intelligence Committee and focused on this issues, that the sharing on 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 U.S. -- between these Mexican drug cartels and the Mexican government.

Fusion centers near the southwest border, like the Arizona Counter Terrorism Information Center, AcTIC, are doing just what I'm talking about. AcTIC, in partnership with the El Paso Intelligence Center, called EPIC, is providing information to first-preventers in the field about the southbound 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. We all know, and 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. And 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 do this effort right. Let me repeat that because we're 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 under way 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 (sic/Times), 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'm sure will be addressed by witnesses, a situation which DHS has rectified, could have occurred in East Germany's Stasi.

Well, we'll address these claims, and I'm pleased that Mr. Fein is here to present his point of view. I welcome him as a witness, and 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, and I now yield to the ranking member, Mr. McCaul, for an opening statement.

REP. MICHAEL T. MCCAUL (R-TX): I thank the madam chair, and thank you for your very strong leadership in this area. And it's 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, and we didn't -- the idea of fusion centers was an idea that was conceptual, but we were putting that together. I'm very pleased to see that we have them, and they are working and they are protecting Americans.

As madam chair mentioned, today's 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, and 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, and I believe, as I know Chairwoman 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.

And with that, Madame Chair, I yield back.

REP. HARMAN: I thank the gentleman. Other members of the subcommittee are reminded that under committee rules, opening statements may be submitted for the record.

I now welcome our first panel, beginning with my sheriff, Lee Baca, who runs six-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's a 44-year veteran of the department and was first elected sheriff in December 1998. He was re-elected to his third term in June 2006, and 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 1, 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 ITACG, 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 Analysis.

Mr. McCaul, I understand that you'd like to introduce Mr. Bateman.

REP. MCCAUL: Thank you, Madame Chair. I'm proud and honored to introduce an individual from my home state and hometown 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 at 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 A-89 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 master peace officer by the Texas Commission on Law Enforcement Officer Standards and Education.

We look forward to hearing from him today, and I thank him for being here.

And thank you, Madame Chair.

REP. HARMAN: Thank you, Mr. McCaul.

Without objection, the witnesses' full statements will be inserted in the record. And I would now ask each of you -- starting with Sheriff Baca -- to summarize your statement for five minutes. There is a timer. It will start blinking at you and something really bad will happen if you exceed the time. (Laughter.)

SHERIFF BACA: Thank you very much. I'm delighted to be here and I'd 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, were the creators of this fusion center. What's amazing about it to date is that the productivity and coordination of vital information is being done.

Whether it's on public transportation issues, aviation issues, port security issues, whether it's domestic terrorism working group strategies that are necessary, whether it's combining 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. And we have a Maritime Security Council which is very, very productive and meets quarterly. And 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's great about this is that, number two, 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's cranes, shovels, or a various amount of transportation models that are necessary in the event of evacuation.

Third, there are local law enforcement -- the 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're not operating in two separate domains of thought.

Fourth, there is a need for more information sharing. Clearly, we're at the emerging stages of a very new department, but more can be done. And 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 ongoing process that needs to improve and 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 is the fusion centers themselves, when you look at it 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. And fusion centers could be coordination 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 on what these rules mean. And therefore, we will continue to do this training because it is an ongoing obligation of any fusion center.

Next, the committee should mandate provisions of the Law Enforcement Assistance Program. We cannot operate alone, without all of the seven major recommendations of this program -- and 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 I&A 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.

And finally, I'll conclude by saying that I want to commend Rob Riegle and the IA. They've been a tremendous help with technical assistance for our JRICs. And we have Joel Cohen (sp) who is there in the local office that we operate. And with their assistance, we've been able to get as far as we are today.

My full testimony is on the record with what I provided. Thank you.

REP. HARMAN: Thank you, Sheriff Baca.

Mr. Riegle.

MR. RIEGLE: Thank you. Chairwoman 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's 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 and 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 interests from the media. We have also welcomed review by the Government Accountability Office, the office of inspector general.

And each of these opportunities -- and I stress they are opportunities -- have allowed us to engage in critical dialogue about our programs, address misconceptions, and educate stakeholders about the role of fusion centers in connecting federal, state, local, tribal and territorial partners in order to share invaluable 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, and these centers have agreed to conform to the baseline capabilities that have been released over the past year.

Through 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 I&A intelligence operations specialist.

These accomplishments demonstrate that the state and local program 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 multilevel, multiagency approach for sharing threat information and intelligence. Today, by leveraging the fusion center network, we have been -- we have the ability to share information between the federal government and every state capitol.

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 recognized 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 built efficiencies across the department and we expect to continue to develop those efficiencies working with our federal partners in the future.

Thank you.

REP. HARMAN: Thank you, Mr. Riegle.

Mr. Porter?

MR. PORTER: Chairwoman 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 and I would like to just highlight quickly a couple of things from that, and then, Madame 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. And they're not the only stakeholders that are saying that, and that's evidenced by the survey of the National Governors Association Center for Best Practices.

We've 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, and 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.

And so 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, Madame Chair, as you have pointed out, has existed for many, many years in law enforcement agencies as criminal intelligence work and this is simply a strengthening of that capability.

The other area that I highlight in my written statement is the work that's been done to minimize the risk of the potential dangers. And 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 has 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 and 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 a -- 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 and you have that. So let me speak to Mr. Fein's commentary, if I may.

I read with great interest his commentary and 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 and 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 views, the diverse views. That's a response that I would have to Mr. Fein.

Thank you.

REP. HARMAN: Thank you, Mr. Porter.

Mr. Bateman?

MR. BATEMAN: Chairwoman Harman, Ranking Member McCaul and members of the subcommittee, I'm 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 and 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 multiagency intelligence centers, sharing and analyzing information and then passing that information on, both to the 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 an valuable reference for state and local jurisdictions as they develop their centers. I would like to compliment the work of Deputy Undersecretary 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 also would like to recognize Mr. Russ Porter for his contributions to the National Fusion Center 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 statewide intelligence and strategic analysis center where information and intelligence from a variety of sources is exchanged, consolidated and analyzed by a multiagency team of analysts.

And 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's 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 in Texas reported that their continued viability would require some level of federal sustainability funding and 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 within 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 center is working with DHS to bring three separate analytical training courses to Texas.

As Mr. Porter said, at this year's National Fusion Center Conference, the theme was achieving baseline capabilities, and 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.

And 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.

REP. HARMAN: Thank you, Mr. Bateman.

Thank you to our panel.

We will now go to questions by the subcommittee, five minutes each.

And I will yield five 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'm 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 and I think we know that in Los Angeles and around the country. I see every witness nodding, so I want to thank you 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's familiar with Arizona's fusion center and efforts at the border, but I'm pleased that she wants to get out and about and see what's 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, and 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?


MR. RIEGLE: Absolutely false.

MR. PORTER: False.

MR. BATEMAN: It's not true.

REP. 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, quote, "They are rewarded financially and professionally by the volume of intelligence collected," unquote. True or false?

Sheriff Baca?


MR. PORTER: False.

REP. HARMAN: Mr. Riegle?

MR. RIEGLE: Madame Chair, untrue. False.

REP. HARMAN: Mr. Bateman?


REP. HARMAN: It also says, "There are no serious quality controls." We've heard some testimony on this. True or false?

Sheriff Baca?


MR. RIEGLE: False again.

MR. PORTER: False, Madame Chair.


REP. HARMAN: And finally, it says: "Few, if any, are capable of separating the terrorist wheat from the innocuous chafe. There are no reliable earmarks of a would-be terrorist." True or false?


MR. RIEGLE: False.

MR. PORTER: I believe that's false.


REP. 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's response was to this bulletin and what happened?

MR. RIEGLE: We took immediate and aggressive response to the bulletin. You'll get more data 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 n the United States of America. We also then immediately altered the directors' meeting at the national conference to emphasize the importance of this and went over this particular oversight error as aggressively as we possibly could. And I'll leave it at that to allow Mr. Bateman some time to respond.

REP. 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're implemented new review and editing policies, and they've met with people and are retraining everyone in the area of privacy and civil liberties. And 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 an aggressive response.

REP. HARMAN: Thank you, Mr. Bateman.

My time is expired. I now yield to Mr. McCaul, for five minutes.

REP. MCCAUL: Thank you, Madame Chair.

You know, after September the 11th, 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, 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. And you know what? Those are all pretty accurate. In my experience, the justice, 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 at a routine traffic violation, but nothing was done to stop that.

So I too want to, as the chairwoman -- I want to go through some of these, and then I have 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, and that is that the First Amendment principles will never be honored by law enforcement officers or public officials in the intelligence arena. And 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 -- anybody that would like to jump in and comment on that specifically, and then I will have a couple of minutes to ask some questions about coordination with law enforcement at the border.

SHERIFF BACA: Simply, the functionally 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's really the key earmark or the key highlight of fusion centers.

REP. 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 the fusion centers, as the chairwoman has stated publicly on numerous occasions, are the most likely to determine this, and I think they are effective at doing that.

REP. 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. And that's the framework we've used to continue to go forward and continually improve in our ability to deliver effective fusion center services while protecting constitutional rights.

REP. MCCAUL: And finally, Mr. Bateman.

MR. BATEMAN: I'd like to address the comment about there's no earmarks to identifying a terrorist, and -- the specific terrorist, 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, and those kind of things are the type of information 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.

REP. MCCAUL: I think that's 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's just my point of view.

The border initiative that Secretary Napolitano has unveiled includes additional manpower for intelligence analysts.

We yesterday at 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. And 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, after all, a war down there against some 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, and we make ourselves available to them if they have a request, and also we push information to them if we feel it applies to their area. I know the sheriff you refer to, and he's aware of the fusion center and that it's available to him. And I will meet with him when I get back to Texas and we'll work out any differences we may have.

REP. MCCAUL: I look forward to that, and I'll yield back the balance of my time.

REP. HARMAN: I thank the gentleman.

The chair now yields to Mr. Souder of Indiana for -- I'm aware, Mr. Souder, but you were here before the gavel.

REP. MARK E. SOUDER (R-IN): Thank you, Madame Chairwoman.

I don't hear a lot of people in my district wandering around going, "You know, I don't like these fusion centers; I'd rather have it be kind of random, where they're uncoordinated, going out arresting each other every so often, doing duplicative work." I don't understand the debate.

And just for the record, Mr. Porter, if Jesus were wandering around in Iowa preaching peace and personal repentance, do you think he'd be in your files?

MR. PORTER: I know that he would not be in our files.

REP. SOUDER: I was made nervous by that statement by Mr. Fein.

And, Sheriff Baca, do you go through the eBay records, do personality profiles on taxpayers who don't like to pay taxes -- like a tea party?

SHERIFF BACA: No, absolutely not.

REP. SOUDER: I mean, the implications of the statements from Mr. Fein and the paranoia of 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 anti-terrorism?

MR. RIEGLE: I would answer the question this way: It is the most important thing that they do, at a fusion center, is anti- terrorism work. It isn't the bulk of the work they do, however, but it is the most important, yes.

REP. SOUDER: And 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 -- be in response to material support for terrorism. Yes, we do examine that and we encourage that.

REP. SOUDER: But you don't see, given the fact that you're working mostly with local agencies and that Department of Homeland Security with Border Patrol and ICE and the (air ?) 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. And we do focus heavily on the counterdrug issue, especially on the Southern border because it does feed a lot of other violent activity, and we understand that. Mine is more of a process role, quite honestly. I'm more in the facilitation of the deployment of the systems --

REP. 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 drugs and border, and that when local police are picking up people, often it's related to narcotics. And criminal organizations are criminal organizations, and 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 yet -- and narcotics is a key part of this. Are you interconnecting -- let me ask Sheriff Baca -- with the Los Angeles HIDA? Do you work with EPIC? How do you see your fusion center? And the fact that much of your 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're talking about all crimes; that's what you were alluding to. And there's a reality that terrorism activity is a crime. And 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.

REP. SOUDER: In New York City, they've attempted, along with New Jersey and Connecticut -- because of what happened there, they've interconnected the HIDAs, the fusion centers, and have a better coordination. In Los Angeles, is it similar? Are you working together? How? Because probably you have people in multiple agencies, and 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've just described very accurately what the Los Angeles Fusion Center does. And we reach down to five other counties, including Las Vegas metropolitan area. The clear idea that you 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 our criminal data that's verifiably accurate and it also is gathered under a constitutional requirement that includes civil rights, that we discussed earlier.

REP. SOUDER: Thank you.

REP. HARMAN: Thank you, Mr. Souder.

The chair now recognizes Ms. Clarke, who is chair of the Homeland Security subcommittee on emerging threats and cybersecurity issues, closely related to what we're discussing today, for five minutes of questions.

REP. YVETTE D. CLARKE (D-NY): I thank Chairwoman 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 firsthand, I'm 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 in 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 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, and strategies are just as important as the information, what are you going to do with it. So in the national statement that you mentioned, we would like to be a little more involved in policy development because it's the actions that emerge from the intelligence that are just as important, if not more important, than the intelligence itself.

MR. RIEGLE: I think the sheriff is exactly right. I do think it's the role of the 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, D.C., 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, and they're best identified at the local level, as I stated in my previous testimony.

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, given 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, and 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. And our federal partners have done a tremendous job working together on training and technical assistance in finding the right role or lanes in the road for each of them, and I think they could also do the same thing with issue.

MR. BATEMAN: We have DHS personnel from Washington, D.C., assigned to our centers and they are invaluable to us in getting information that we have that we may not recognize the full value of to Washington, D.C., and getting things from Washington, D.C. brought down to us. And they also help us to navigate the complexities of the DHS structure which sometimes overwhelm the smaller centers. So, while they don't have comprehensive plans in place, they do have mechanisms in place to allow for that to go on, that sharing go on.

REP. CLARKE: I guess my concern is that they become sort of a standard, because at that point we can then address the issues of civil liberties and privacy as long as there's this sort of imbalance. I think that that remains an area that's sort of gray, and the more that we can bring clarity to it, the better off we'll be.

Let me just close by asking Mr. Porter how important it is -- is transparency to the public, privacy and civil liberties advocates in 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 has been fair and what has been unfair or misinformed? And how have you responded?

MR. PORTER: Thank you. I think in the interests of time -- and I'd 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're encouraging fusion centers when there's an interest in media or advocates to come through and learn about the center, we're encouraging that process. That's gone a long ways to helping provide an understanding in terms of complaints or issues or concerns so that dialogue is happening in a healthy way with understanding. I'm not sure I'm speaking fully to your question at this point.

REP. CLARKE: We'll probably address that another time.

My time is up and I yield back.

MR. PORTER: Thank you.

REP. HARMAN: I thank the gentlewoman.

The chair now yields to Mr. Himes of Connecticut for five minutes. No questions?

Mr. Green? Mr. Green of Texas for five minutes.

REP. AL GREEN (D-TX): Thank you, Madame Chair.

I thank the witnesses for appearing and apologize for being a little bit late arriving. We have other hearings that are taking place and I'm trying to be in 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 and hopefully I won't get us into a point where we're being superfluous or redundant. But I do have the article that has been called to the attention of this panel and 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'd 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'm speaking of, titled, "Surveilling for Clues of Evil Intent"?

If you've had an opportunity to peruse it, would you kindly extend a hand and this way I'll know? All right, everyone has, good.

Is there -- 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's start with whomever would like to speak first. Is there something about it you'd 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's a reference that we will be rewarded financially and professionally by the volume of intelligence collected is completely false. That there's no serious quality controls -- that's completely false.

Myself and the Joint Regional Intelligence Center in 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. And let me comment on this: When 9/11 occurred, 8,000 tips came into the FBI about suspicious activity because people in America 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's the purpose of a fusion center.

And 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, and therefore I'm saying to the American public, we will answer your requests but we'll do it within the structure of law.

REP. 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 and 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 and 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, D.C. 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.

REP. GREEN: Mr. Porter?

MR. PORTER: I'll 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 present it to them. I will say hat's off to Mr. Fein for referencing Operation Shamrock; that is something I don't know about but 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's concerned that there is no privacy policy or civil liberties concerns among the fusion centers. That's not true and I think the hearing here today demonstrates that. However, he is marginalizing his opinion by the statements he makes that are so demonstrably false.

REP. GREEN: Thank you. The chair has indicated that my time is up.

Thank you very much. I yield back, Madame Chair.

REP. 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 ongoing 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 and so the committee will be in recess for about a minute.


REP. HARMAN: (Sounds gavel.) The subcommittee is in order, and 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 adviser 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 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 U.S.

Mr. Norris started his employment with the Tohono Ono (sic) 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 (sic) 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, and 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 five minutes or less and please do observe the time clock, which I think is visible to you.

MR. FEIN: Thank you, Ms. Chairman and members of the subcommittee.

I want to make some opening observations about why I think it's not paranoid to be suspicious about government investigations, intelligence collection post-9/11, whether it's in the process of fusion centers or otherwise.

Shortly after 9/11 there began what President Bush styled a terrorist surveillance program. That was an effort to spy on Americans on American soil; it's 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's 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's happened to their information, and 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 -- and they assured us every 45 days that the only people being spied on were those who are known al Qaeda agents. We have no ability to know whether that's accurate. If that were true, we're 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 seven years -- seven 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's not an arm of a -- necessarily a paranoid group. And still no accountability whatsoever. No accountability whatsoever.

We've been told also that all of these investigations -- spying -- they stopped countless terrorist acts in the butt. 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 into 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 were 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's 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's reason why after 9/11 -- which was the impetus for the fusion centers and 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 -- 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'm sure you'll have many questions of me after I conclude my opening statement. But it's said that this citation to the Texas Fusion Center overreaching was an aberration and 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'd like to observe. Number one, 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're somehow suspect, was punished, was reprimanded. Anything bad happened to them. The same thing with regard to Foreign Intelligence Surveillance Act, 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 sanctioned demerit for what you've done here?

And 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 that don't have any outside check.

We know from your position here in Congress, checks and balances means 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 incentive. We don't have any -- 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 do you --

REP. HARMAN: Mr. Fein, could you please summarize?

MR. FEIN: Yeah.

REP. HARMAN: You have gone over the five minutes.

MR. FEIN: Thank you. I apologize and 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 assurance 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.

REP. HARMAN: Thank you.

Mr. Norris.

MR. NORRIS: (Off mike.)

REP. 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'm extremely encouraged when I -- with the reference to tribes in the chairwoman's opening statements and the comments from Mr. Riegle. Fusion centers represent law enforcements, 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, 25 USC 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, 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. 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 in state programs we 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 state to strengthen their program.

I'd like to talk a little bit about 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, and as a result, this hampers our efforts to develop information and intelligence sharing with our federal counterparts, specifically Department of Homeland Security agencies, Customs 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, assaults 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, 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 that 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 state's refusal to recognize their agency as a law enforcement agency.

REP. HARMAN: Mr. Norris, could you summarize your statement? You have exceeded the five minutes.

MR. NORRIS: Typically they are not allowed to enter their offender into state sexual offender tracking systems.

Madame Chair, I thank you for this opportunity and will be willing to answer any questions that may come up later. Thank you.

REP. HARMAN: Thank you very much.

Mr. Gersten.

MR. GERSTEN: Chairwoman Harman, Ranking Member McCaul and distinguished members of the subcommittee, thank you for providing me the opportunity to testify today.

Just over two 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 -- I&A.

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, the presence is not pervasive, and it is focused on sharing information, not engaging in law enforcement. Some private sector entities do share infrastructure 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're 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 a superior and subordinate one.

To provide oversight of federal activities, our office issued a civil liberties impact assessment of DHS's 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, and 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 assessments where 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 the 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 initiating 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.

REP. HARMAN: Thank you, Mr. Gersten.

I appreciate the testimony of all the witnesses. Members of the subcommittee will now each ask questions for five minutes. And 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've said this over some years -- that they are a centrally important tool in the -- 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 (sic) Office -- on how fusion centers operate. So we care and we want to make certain that what happens at the state, local and tribal level complies fully with our Constitution and our laws. And I think our first panel made clear that everyone there who is in the business of fusion centers cares as well. So let me just make that point.

And let me finally add that a lot of civil liberties organizations regularly participate in our activities. We had a hearing just a couple 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. And so there is a major effort ongoing 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.

And 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 Arm Sales to Iran.

MR. FEIN: Yes.

REP. 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 on what your activities were with Mr. Cheney? And are you an ongoing -- do you have an ongoing 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. And I think if you read it it's much more balanced than some of the distortions. And 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'm 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 program making sure they're only targeting actual al Qaeda supporters. And it was approved every single time for five years, (but for ?) one short delay.

Structurally, what -- the state and local fusion centers have that same defect. It's 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. Yeah, they stayed and listened, 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's like "The Hunting of the Snark" -- I said it three times, it must be true. Just because you say it, doesn't mean it's --

REP. HARMAN: Thank you. I have 12 seconds left. I would just note that Congress is an independent branch of government, and we're 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.

I now yield for five minutes of questions to the ranking member, Mr. McCaul.

REP. MCCAUL: I thank the chair. And I would like to echo that sentiment to Mr. Norris as well, that the access to NCIC -- I think it's important for tribal areas to have that access.

My first question is for 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 --

REP. MCCAUL: Thanks for saying that. (Laughs.)

MR. GERSTEN: -- some guidance to the members of that fusion center. The director there -- we actually took this 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, these are state products; they were not issued by the department. However, we can all learn from the lesson.

REP. MCCAUL: Well, and I thank you for that. Again, I hope that never happens again.

I want to just -- this came out in the Associated 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 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. And I think those are not incompatible; those are one in the same. And 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 -- that 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 validating the constitutional ideals we hold so closely.

So with that, you've 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'd 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. And that's 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're going to encroach upon that right. And I think that if we focus on criminal activity, suspected crime, as the basis for collecting intelligence, we're 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, and we saw then afterwards. Then, intelligence began, during the 1930s, on the -- (inaudible) -- the communists and whatever -- this is a Roosevelt initiative. And when we start deviating from collecting intelligence because it relates to a specific crime to collecting intelligence because it bears on an earmark of what a terrorist might be, that is where I think we're in danger. And just to point out, this is not the fusion center in North Texas, this is in Miami --

REP. MCCAUL: Could I just -- because I've got two seconds. So you are not against the idea of collecting intelligence to protect Americans?

MR. FEIN: As long as it's on criminal activity, evidence that suggests a crime.

Let me give an example --

REP. MCCAUL: Okay, I just wanted that clarification --

MR. FEIN: 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 terrorists. And this is the Miami -- I mean Missouri intelligence collection. And they said that the earmark of a terrorist seems to be somebody who supports presidential candidates Ron Paul, Bob Barr, Chuck Baldwin. And that's me --

REP. MCCAUL: I think we would all agree with you on that assessment. That is absolutely --

REP. HARMAN: Thank you, Mr. Fein. Mr. McCaul's time has expired. And that is right, for the record. The committee is not in favor of activity like that.

Mr. Souder is recognized for five minutes.

REP. SOUDER: I'll resist comment on that.

Mr. Gersten, can you name one specific that Mr. Fein has said -- giving generalities about what was wrong with the North Texas report -- what's 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 miss, could lead people astray -- those reading the report -- into thinking that all people from the religion mentioned should be viewed with suspicion.

REP. SOUDER: Could you give the example of that statement? Was it the one he mentioned earlier, which did not say that but could lead to an inference, is what you're saying?

MR. GERSTEN: Yes, 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 received the product.

REP. 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.

REP. SOUDER: Because he doesn't seem like a big threat, I mean, some of us don't necessarily agree with him, but -- Mr. Fein, you've been a long-time spokesman for libertarian views that -- and though I wouldn't be mistaken for a libertarian, that 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 in owning a gun came up in everything from the Weaver question to how we were going to follow up and prevent the Oklahoma City bombers; it 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. I mean, your article and your witness 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's no sense of balance in these --

REP. SOUDER: Okay. Let me reclaim my time. I asked a question and you didn't answer. So you -- your statement says that fusion centers, had they been -- there would have been anti-slavery 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's ridiculous to say there wouldn't have been a woman's right to vote, which -- you make assertion that the Roman government did not object to Christ, it was a religious objection, and you can't even have your history right. Then you have these cute wording suggesting comparability to KGB and the Stasi that -- it is so over the top that you can't make your own point --

MR. FEIN: But I didn't -- (off mike). You didn't read my statement.

REP. SOUDER: I didn't ask -- I asked the question for --

MR. FEIN: Yeah. I wrote the statement, so I know what I said. I said that we should learn from the Stasi and the KGB, not that we were there. I did not make that assertion. And with regard to the --

REP. SOUDER: Cute wording. That's what I said.

MR. FEIN: What?

REP. SOUDER: 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 one of the most troubling things here, fundamentally -- Mr. McCaul asked you a question, and you said, if they had 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's appropriate for the government to try to look at prevention of crimes, rather than just researching after the crime's 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 --

REP. SOUDER: Better to be dead --

MR. FEIN: Better to be free --


MR. FEIN: -- than to try to have a risk-free country where the purpose of the country is destroyed because you're spying on everybody. If you want to go and try to prevent any conceivable crime, of course, then why not stick a policeman in everybody's home? And why not have their monitor on their (video ?) 24 hours a day because you're trying to prevent --

REP. SOUDER: Absolutely agree with -- but taking back my time-- taking back my time -- I agree with overreaching. You, however, said no prevention.

REP. HARMAN: The gentleman's time is expired.

Ms. Clarke is recognized for five minutes.

REP. CLARKE: Thank you very much, Madame Chair -- very stimulating discourse this morning.

My question to Mr. Fein: Just curious, have you ever visited a fusion center?

MR. FEIN: I've been invited by the Los Angeles sheriff. I said I'd be delighted to go out there and be able to examine all the files --

REP. CLARKE: Have you been there yet?

MR. FEIN: No, I've not been there yet.

REP. CLARKE: Okay. Do you think that a visit like that would help 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. And I would like all these fusion centers to be subject -- something akin to the Freedom of Information Act, so we can have some outside scrutiny of them.

REP. CLARKE: Okay. That's very interesting.

Your commentary about their activities suggests that you had some sort of internal knowledge of exactly how they operate.

And --

MR. FEIN: Well, we do have the ones that have been leaked.

REP. CLARKE: I'd like to suggest that your commentary's very subjective, based on information that you received secondhand. And 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'd have to examine that. But your credibility with regards to the extreme nature in which you've addressed this issue is a bit diminished simply by the fact that you've not visited one. And I think that, you know, to rectify that, we should perhaps arrange for you to do so.

MR. FEIN: Well, I'd be grateful, and if I could examine those files -- I would say that the same things were said about all the people who had worries that at Guantanamo Bay not everybody was an enemy combatant there -- and said, "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's finally review, who's had the greater credibility.

REP. CLARKE: Well, as I've 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 go visit the Los Angeles sheriff -- and he invited me out there and I'll 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.

REP. CLARKE: Well, I will defer that to our chairwoman -- (laughter) -- and we'll take it from there.

Madame Chair, I have no further question or comment. I yield back the balance of my time.

REP. HARMAN: Thank you very much.

(Laughs.) The chair now yields five minutes to Mr. Green.

REP. GREEN: Thank you very much, Madame Chair.

And I thank all of the witnesses.

And Mr. Fein, I have a basic premise that guides a lot of my thinking and it is this: that there is safely 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 sometime -- 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 coalmine or are you a woodpecker who has pecked too many times? And I'm trying to get a handle on where you are.

You made a comment that I think merits my consideration and that is with reference to the Freedom of Information Act. Say more about your concerns about Freedom of Information, because when you're finished, I'm going to pass this over to Mr. -- is it Gersten? And I'd 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, the same way that we have an FOIA applicable to federal agencies so that you can have greater outside scrutiny and monitoring as exactly what's ongoing.

And they are not, however, arms of the federal government, so I don't know whether this committee would have jurisdiction, but insofar as they're 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 there can be greater eyes and ears on what's ongoing.

REP. 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 --

REP. GREEN: Pardon me for interceding, but talk about his Freedom of Information concern, if you would?

MR. GERSTEN: Absolutely.

REP. GREEN: Focus on that.

MR. GERSTEN: Yes, absolutely. And in particular I think that access to information about what's 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 done so absent a lot of information about what's truly going on, so I think --

REP. GREEN: Let me -- help us to refine my question. Maybe I'll get a better response if I refine my question.


REP. 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 I -- we are in favor of having more openness about the activities and even some of the information flow that is shared through fusion centers.

REP. GREEN: My suspicion is, and I don't want to speak for you, Mr. Fein, but my suspicion is he's 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 part -- that would be a counterpart to our Privacy Act at the federal level --

REP. GREEN: Okay, but Mr. Fein, if you'll just say yes, it'll help me to move it along.

MR. FEIN: Yes.


MR. GERSTEN: I think we should offer redress. The organizations involved in fusion centers should be accountable to provide information if they have access to 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 --

REP. 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 the information at that moment would somehow compromise an investigation, would you have any exception for a person who's 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.

And you could simply take our Privacy Act that enables --

REP. GREEN: But is your answer -- I need, for the record --

MR. FEIN: The answer, at the federal level, yes. There's an exception that permits --

REP. GREEN: Okay. Would you --

MR. FEIN: -- (giving ?) ongoing information.

REP. GREEN: So you would agree -- 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.

REP. GREEN: Okay. All right.

Thank you, Madame Chair. I do have other questions if we have another round.

REP. HARMAN: Thank you, Mr. Green.

I don't think we're able to have another round, given the schedule of the day. If members have additional questions, I would hope that the witnesses would be able to -- 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've had a lively morning and 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've passed a bill twice based on this premise, that we overclassify 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 in 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, and that includes protecting civil liberties and privacy.

So let me finally say that these hearings will continue. We welcome the dialogue. We're trying to get these policies right, and 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. (Sounds gavel.)

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