Fusion Centers and the Maryland Spying Scandal

In July, a series on the organization and financing of the federal government's post-9/11 secret programs ran in the Washington Post. Investigative journalists Dana Priest and William Arkin called attention to the fact that nearly 2,000 private corporations administer and provide essential services to this "alternative geography." Like the wars in Afghanistan and Iraq, homeland security is a byproduct of business-government collaboration.

While two years in the making and accompanied by an elaborate website, the series overlooks the threats posed to constitutional rights by the new wave of secrecy. The authors do not mention the Maryland spying scandal that was briefly in the news in 2008-09, thanks, in part, to stories in the Washington Post. Besides sharing close geographical proximity to the subject matter, the Maryland events involved some of the institutions examined in the "Top Secret America" series. This neglect is remarkable since the Maryland spying scandal has been a window on the sea change in surveillance methods since 9/11, revealing how a broad range of people can fall under official suspicion.

A Brief History of Homeland Security

In February 2009, the Los Angeles Times reported allegations made by American Muslims that the FBI spied on mosques in California. Muslim organizations also claim that an infiltrator advocated the use of violence in conversations with worshippers. The surveillance tactics allegedly used in Orange County are a disturbing reminder of the Bureau's COINTELPRO agents and provocateurs hounding of political dissidents in the 1960s.

The past decade has seen COINTELPRO-like operations of a less covert nature. Operating in over 100 U.S. cities, Joint Terrorism Task Forces (JTTFs) are comprised of agents from the FBI and other federal domestic intelligence agencies who work with state and local police ostensibly to prevent acts of terrorism. (Colorado is a case in point.) Regional JTTFs have conducted surveillance operations against environmental activists and political protesters, the most recent incident of note being at the Democratic Party's National Convention in 2008.

Evocative of post-World War II "civil disturbance" planning, the Department of Defense similarly collects domestic intelligence in violation of the 1878 Posse Comitatus Act. Last summer, it came to light that a member of the Pentagon Force Protection Agency has spied on groups that protested the export of military equipment to Iraq and Afghanistan through ports in Washington State since at least 2007. In March, General Victor Renuart, who heads both Northern Command and NORAD, acknowledged that the Pentagon shares such information with local police.

In June, the Defense Intelligence Agency indicated that it plans to create Foreign Intelligence and Counterintelligence Operation Records, a computer database that may contain information about U.S. citizens. This replaces TALON (Threat and Local Observation Notice), a program that amassed thousands of reports on U.S. citizens between 2002 and 2007. (The FBI supposedly took custody of this information when the Pentagon announced TALON's closure in August 2007).

The FBI, the Pentagon, and at least 12 other federal agencies that collect intelligence inside the United States are technically answerable to the Office of the Director of National Intelligence (ODNI). The fact that civilian and military agencies on the national, state, and local levels now share responsibilities is not the only discernible change concerning domestic security. A much-ignored development is the greater interdependence between national and regional police in tandem with private industry. This has reached the point, as Priest and Arkin write, that private companies "have become so thoroughly entwined with the government's most sensitive activities that without them important military and intelligence missions would have to cease or would be jeopardized."

A key feature of close public-private cooperation in homeland security is the "fusion center," a decentralized intelligence-gathering activity that is mainly run by state and local police departments with federal and corporate aid. The Bush and Obama administrations are on record as supportive of these developments.

The World of Pre-Crime

In the aftermath of 9/11, a growing number of U.S. police departments advocated that police officers should be able to gather intelligence about perceived threats before establishing reasonable suspicion. Known as "intelligence-led policing" (sociologists Jude McCulloch and Sharon Pickering call it "pre-crime"), this practice is the bedrock of the "Information Sharing Environment" (ISE) in which law enforcement and domestic intelligence agencies collaborate closely, with the full backing of the homeland security hierarchy.

Fusion centers are key institutional expressions of the ISE. In fusion centers, members of local, state, and federal police and intelligence units stockpile intelligence in computer databases, sharing the data with other fusion centers. The official explanation is that fusion centers help to prevent acts of crime and terrorism and facilitate emergency responses to natural disasters. (The Electronic Privacy Information Center [EPIC] maintains an inventory of government documents related to homeland security policy and fusion centers at epic.org/privacy/fusion.)

In 2004, the 9/11 Commission recommended establishing the National Counterterrorism Center (NCTC) as a clearing house for terrorism intelligence. In the Intelligence Reform and Terrorism Prevention Act, Congress put the NCTC under the jurisdiction of the ODNI. (The NCTC replaced the Terrorist Threat Integration Center established by an executive order issued by President Bush in 2003.) The Department of Homeland Security (DHS) disbursed over $254 million to state and municipal governments to develop fusion centers in Fiscal Years 2004-07. In 2009, stimulus funding for the fusion centers amounted to $250 million and the DHS reports that there were 72 fusion centers across the country as of July 2009.

Inside the Chicago Police fusion center in 2007

Michael German, policy counsel on national security, immigration and privacy for the American Civil Liberties Union (ACLU), claims that fusion centers will have the effect of "basically deputizing every state and local law enforcement officer to be an intelligence collector for the intelligence community." Thomas Cincotta, civil liberties project director at Political Research Associates, argues that by being repositories for "suspicious activity reports" generated by local police, fusion centers erode the barrier between traditional policing and spying. (A form of "preemptive policing" that exploits vigilantism and paranoia, the Suspicious Activity Reporting System is a pillar of homeland security along with JTTFs and fusion centers.)

While government and security industry experts discuss fusion centers with some candor, critical analyses remain at the margins of public consciousness and the mass media. A number of problems about fusion centers are nonetheless evident. The practice of drawing inferences from raw pieces of information known as "data mining" becomes more subjective as investigators gather more information. Even though data is arranged according to established patterns of human behavior, it is still just educated guess work.

Most regional fusion centers also lack clear lines of authority. Many are located on federal property and depend on federal funding and personnel from the military and the intelligence community. State and local jurisdiction is further compromised by direct corporate influence in known cases, which breaks down the wall between public service and private interest. To Michael German fusion centers open the way for secrecy and "mission creep."

Consequently, fusion centers operate in a gray area of the law. They are not liable to the 1974 Privacy Act, which regulates information-sharing by federal agencies, but is, arguably, covered by 28 Code of Federal Regulations Part 23, issued in 1981. This is because 28 CFR Part 23 regulates information-sharing about criminal suspects at any level of jurisdiction, including multi-jurisdictional systems. Moreover, any law enforcement agency that gets financial aid from the Justice Department must abide by 28 CFR Part 23. Nevertheless, many local, state, and multi-jurisdictional authorities do not strictly apply the code to the work that goes on inside fusion centers. They classify data mining as "criminal intelligence" without first establishing reasonable suspicion. This practice is actively encouraged by the ODNI. Thus, enforcement of 28 CFR Part 23 is, in the words of Cincotta, "virtually meaningless."

Public ignorance of fusion centers may be declining, though. In February and March 2009, three state fusion centers gained some attention when their reports came to light. The North Central Texas Fusion System (NCTFS) warned that the domestic influence of "Middle Eastern Terrorist groups" is rising thanks to front organizations posing as civil liberties groups and support from "far Left groups." The Missouri Information Analysis Center (MIAC) warned that members of "the Militia Movement" supported "3rd party political groups" in the 2008 presidential election. The Virginia Fusion Center treated a broad range of groups in the state as either "terrorist" or "extremist" without drawing a clear distinction between violent criminals and nonviolent activists. The "threat assessment" report also states that Virginia universities are potential breeding grounds for subversives.

The Maryland State Police

At the same time, a controversy about fusion centers was coming to a head in Maryland. What little prominence the Maryland State Police (MSP) has traces to the racial profiling of African-American motorists a decade ago and the traffic stop of a suspected 9/11 hijacker two days before the attacks on the Twin Towers. Less well known is the scandal about MSP spying on activists. While some dispute claims made by mainstream newspapers and the government of Maryland that these activities took place only between March 2005 and May 2006, under former Governor Robert Erlich (R), this is the period that has gained the most attention.

An "independent review" written in 2008 by former Maryland Attorney General Stephen Sachs at the request of Maryland's current Governor Martin O'Malley (D) is not comprehensive. While criticizing the MSP for lacking judgment in violating the First Amendment and the Maryland Declaration of Rights, the report asserts that large public gatherings of people with "passionately-held political and moral beliefs…pose a risk to public safety." Sachs also considers "deception" to be an "often essential, law enforcement tool." He observes that "MSP's interest in other protest groups was not the focus of our review." However, the Sachs report does lend some insights on fusion centers.

Covert operations supposedly began in February 2005, when an MSP field commander requested that the State Police Homeland Security and Intelligence Division (HSID) make a "threat assessment" of expected protests before the executions of two death-row prisoners in Baltimore. After searching the Internet and Justice Department databases, HSID advised, without giving specifics, that there was a potential for disruption by protesters.

ACLU staff attorney David Rocah and Max Obuszewski (right) at a 2008 press conference exposing Maryland State Police infiltration of and spying on peace groups

As revealed in the redacted documents that the O'Malley administration surrendered to the ACLU when it won a Maryland Public Information Act lawsuit in July 2008, HSID agents had infiltrated many organizations. They included several anti-death penalty groups, several peace groups, a gay-transgender advocacy group, an immigrant rights group, the American Friends Service Committee, the Chesapeake Climate Action Network, the DC Statehood Green Party, and People for Ethical Treatment of Animals. Protests against biological warfare experiments, Lockheed Martin, and utility rate hikes were also caught up in the secret dragnet. Most of this was reported in the Baltimore Sun and the Washington Post. (The ACLU of Maryland has the documents on its website: www.aclu-md.org.)

These surveillance reports contain details about meeting locations, posting fliers, activists' political beliefs, and the like, but nothing on threats to public safety. The HSID shared this data with several municipal police departments in Maryland, the National Security Agency, and "a military intelligence officer."

Governor O'Malley and Colonel Terrence Sheridan, the MSP superintendent, made public apologies after Attorney General Gansler released the redacted reports. However, no state official, past or present, denied that the spying occurred. Other details about the scope and duration of the case may emerge since the O'Malley administration has yet to release unexpurgated documents.

This is a compelling story, but what does it have to do with fusion centers? In the past police investigators placed hard copies of their reports in filing cabinets. But police intelligence units now use computer databases. HSID officials told Sachs's investigators that they were looking for an affordable computer database system in 2004. The High Intensity Drug Trafficking Areas Program (HIDTA), administered by the Office of National Drug Control Policy (ONDCP) in collaboration with other federal and state agencies, offered free access to its Case Explorer program. In return, the MSP agreed to share its data with an HIDTA fusion center in the Washington, DC-Baltimore area.

Case Explorer Program

The stated goal of the HIDTA Program, established in 1990, is to coordinate federal, state, and local intelligence collection about the illegal narcotics trade. Begun in 1994, the Washington/Baltimore HIDTA has jurisdiction over the District of Columbia, central Maryland, and parts of eastern Virginia. According to Sachs, a "Watch Center" maintains a database of "criminal intelligence information." An announcement by the Watch Center claims that its staff is "drawn from the region's law enforcement agencies and National Guard units."

In the fall of 2008, the MSP informed 53 protestors by mail that they had accidentally been under suspicion of being terrorists. (One is not a Maryland resident, but belongs to the New York state branch of Code Pink, a national women's antiwar group.) HSID officials told Sachs that Case Explorer lacked categories for the information collected about the protestors as it was not criminal in nature. So technicians created a new drop-down menu category entitled "Terrorism," with sub-categories including "Anarchists," "Animal Rights," Anti-Govern[ment]," "Anti-War Protestors," "Environmental Extremists," "Pro-Life," and "White Supremacy/Hate Groups."

Case Explorer entries are also inconsistent. An entry created in April 2005 for the Washington-based DC Anti-War Network (DAWN), which had conducted protests at military recruiting stations in Maryland, designates the group's primary crime as "Terrorism/Anti-War Protestors." But the entry offers no explanation of DAWN's secondary terrorist designation, "White Supremacy/Hate Groups" and "Anti-Govern." A January 2006 entry lists DAWN's primary crime as "Terrorism-Environmental Extremists" but its secondary threat, also unexplained, appears to involve several terrorist offenses: "Sovereign Citizens/Tax Protestors," "Pro-Life," "Anti-War Protestors," and "Animal Rights."

A Case Explorer entry on Amnesty International, one of the sponsors of pickets outside Caterpillar, Inc. dealerships in April 2005, assigns "Civil Rights" as its secondary designation—and "Intelligence Bulletin" as its primary crime. A 2006 entry on the Maryland Green Party lists its primary crime as "Terrorism-White Supremacy/Hate Groups." A later entry identifies the organization as a "Civil Rights group." Not counting redactions, the publicly-released Case Explorer files are difficult to fathom.

One of the 53 people that the MSP is known to have made Case Explorer reports about is Max Obuszewski, a member of the Baltimore chapter of the Pledge of Resistance—with no criminal record. One Case Explorer entry indicates, without explanation, that Obuszewski's "Primary Crime" is "Terrorism–Anti-Govern," his "Secondary Crime" is "Terrorism–Antiwar Protestors," and the Baltimore Pledge of Resistance is his "security threat group."

The MSP is not the only law enforcement agency that spied on Obuszewski. On every Independence Day since 1996, he and other peace activists have picketed outside NSA headquarters at Fort Meade, which is in Maryland, but outside of Baltimore. During a trespassing trial of some of these activists in 2004, it was revealed that agents from the Baltimore City Intelligence Unit and the Maryland JTTF had been monitoring the protests. In fact, as recounted by James Bamford in Body of Secrets, NSA officials had prior knowledge of the 1996 protest.

The Maryland Coordination and Analysis Center (MCAC) was established in 2003 by the Maryland Anti-Terrorism Advisory Council, which is part of a coalition of over 250 federal, state, and local agencies, plus "representatives from the private sector." MCAC personnel come from 24 federal, state, and local law enforcement, emergency response, and military agencies. This includes the MSP, state-wide police departments, the Maryland National Guard, the University of Maryland, the FBI, the DHS, the Army, and the Coast Guard. The MCAC shares "terrorism" intelligence with the regional JTTF, the ODNI, the ONDCP, Interpol, and "Various Private Sector Workgroups." A PowerPoint presentation produced in October 2007 states that MCAC's "data is continuously expanding and is available to all law enforcement personnel."

Referred to as "MCAC contractors" in the same PowerPoint presentation, the fusion center has strong links with the private sector. When Assistant U.S. Attorney Harvey Eisenberg spoke with a group of Baltimore-area civil liberties activists, he mentioned that the MCAC "has assisted" the Northrup Grumman Corporation. Inferred from a 2008 Washington Post story, another contractor could be a California-based data broker known as Entersect. Eisenberg is head of MCAC and was the main founder of the Washington-Baltimore HIDTA. Like others around the country, fusion-intelligence systems in Maryland are convoluted and far-reaching.

The Role of the DHS

The DHS has authority over 22 federal agencies and is actively involved with fusion centers. DHS employees assist in fusion centers in 24 states plus the District of Columbia, while 27 fusion centers supposedly have access to the DHS-run Homeland Security Data Network that is linked to the NCTC database. According to Priest and Arkin, the DHS workforce has an equal number of private contractors and federal employees while more than half of the personnel in the Department's Office of Intelligence and Analysis (OIA) are private contractors.

Unclassified bulletins issued by the OIA fuel an atmosphere of paranoia that is far removed from the clinical language used to describe the work of the DHS. An OIA report on "left-wing extremists," made public in January 2009, has a "Law Enforcement Sensitive" advisory on it that indicates that while "U.S. person information" is not provided, readers can obtain "details upon request." The OIA released a similar report on "right-wing extremism" three months later. Little in these materials bears on the subjects' involvement in criminal or terrorist activities.

In December 2009, the Obama administration released documents in response to a Freedom of Information Act lawsuits filed by the ACLU. The documents confirmed that the OIA sent an email in 2007 to 482 offices, including federal intelligence agencies, congressional staffers, and "at least one state government entity," about a conference attended by representatives of the Nation of Islam. According to the DHS, the "intelligence note" was swiftly recalled by the OIA as it was produced after a statutory time limit had passed without evidence of terrorist activity being reported (eff.org/files/NationOfIslam.pdf).

Also disturbing are indications that the DHS was party to MSP spying. The evidence exists in unclassified DHS documents and in HSID Case Explorer entries. A DHS budget report, drafted in October 2008, reviews what the MSP did with "preparedness grants" that it got in Fiscal Years 2003-05. Of $161 million received, the Maryland Emergency Management Agency issued $5 million to the MSP as a "subrecipient" in accord with "limitations and requirements." There is no reference to illicit spying activities, except for this claim: "The Maryland State Police did not use DHS State Homeland Security Grant funds to conduct surveillance between FYs 2005 and 2006."

Nevertheless, the DHS communicated with the HSID at least once about Maryland dissidents. According to the Washington Post, HSID received two emails in 2005 from the DHS office in Atlanta, Georgia containing DAWN's plans to picket a military recruiting center. The newspaper based this on a Case Explorer report dated June 21, 2005 that the state Attorney General's office partially released to the ACLU: "The US Department of Homeland Security, Atlanta, recently forwarded two emails from [redaction] an affiliate of the DC DAWN Network and the [redaction]…. Activists from DAWN, [redaction] and other groups working under the banner of [redaction] are going to stage several small (12-15) weekly demonstrations at the Silver Spring Armed Forces Recruitment Center (AFRC). If there is enough support these will become weekly vigils."

In response to inquiries made in late 2008 and early 2009 by Maryland Senators Ben Cardin (D), Barbara Mikulski (D), and Senate Judiciary Committee Chair Russ Feingold (D-WI), DHS spokespersons explained that a member of the Federal Protective Service (a DHS affiliate) probably found the emails posted on the Internet and sent them to the MSP. But Pat Elder, a Bethesda school teacher who helped to organize the protests, claims that no one in DAWN posted messages on the Internet beforehand.

Dissatisfied with earlier responses from the DHS, Senators Mikulski and Feingold sent letters to Secretary Napolitano, U.S. Attorney General Eric Holder, and FBI Director Robert Mueller in February 2009. A Washington Post article later in the month quoted a DHS spokesperson as saying that the DHS and law enforcement agencies share "normal information…every day." Senators Mikulski and Feingold did not respond to the author's queries if they had received answers to their letters. On May 20, 2010, the Chief Counsel of the Senate Judiciary Committee told me that he could not find a record of the response to Senator Cardin. He commented that responses to senators are sometimes "confidential."

Conclusion

The state of Maryland is dragging its feet in releasing all of the spy files. During a hearing of the Senate Judiciary Committee in April 2009, participants did not dwell on DHS collusion with the MSP beyond generalities. Media and public interest in the affair is evaporating even though political surveillance is becoming more deeply rooted in the domestic power structure in the guise of homeland security. Evidence of this is offered by a recent ACLU listing of ongoing surveillance in the United States (www.aclu.org). Also indicative are actions of the Obama administration in keeping with its concerns about "individuals radicalized at home," as expressed in the National Security Strategy released in May. In September 2009, for instance, the DHS made public a joint effort with the Pentagon to make classified military intelligence available to selected state and local fusion centers. Citizens should be sensitive to this danger. Consider Max Obuszewski's reaction to Governor O'Malley's pledge in the summer of 2008 that the MSP will not engage in unwarranted spying again: "It's presumably what we want to hear…. The proof, though, will be in the pudding."

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Anthony B. Newkirk is a professor of history at Philander Smith College in Little Rock, Arkansas.