by Joseph Jerome
Whenever an American citizen interacts with her government, the government’s first concern is increasingly ascertaining whether that individual is a terrorist. The Wall Street Journal’s Julia Angwin reports that top intelligence and law enforcement officials met in March to establish new rules permitting the National Counterterrorism Center (NCTC) “to create a government dragnet, sweeping up millions of records about U.S. citizens -- even people suspected of no crime.” Flight records, the names of Americans hosting foreign-exchange students, and even casino-employee lists can be stored for up to five years, analyzed for suspicious behavior, and shared with foreign governments all in the name of fighting terrorism.
According to Angwin, the impetus of the program came in the wake of Umar Farouk Abdulmutallab’s failed Christmas Day 2009 bombing. After President Obama directed government agencies to send NCTC any and all leads on terrorist threats, the Department of Homeland Security provided NCTC with a vast database of information on the condition that any data of innocent U.S. persons be purged within 30 days. The tiny, unknown NCTC was unable to process the number of leads it received, so its solution was to seek unlimited access to any government information with no time limits imposed on the data’s analysis and study.
“All of this happened in secret,” the ACLU’s Chris Calabrese bemoans. “No public debate or comment and suddenly, every citizen can be put under the terrorism microscope.”
Matthew Waxman, on Lawfare, suggests that “[f]ar from a story about the intelligence community running amok, this is a story about the agencies involved working to solve technical impediments to their mandates with a serious awareness of the civil liberties implications.” Indeed, Angwin notes that privacy officials at both the Departments of Justice and Homeland Security had voices at the table during the White House meeting that produced the NCTC’s new powers, though predictably most of their concerns “had been largely overruled” because their colleagues “were more concerned about missing the next terrorist threat.”
Stewart Baker, former Assistant Secretary at Homeland Security, writes on The Volokh Conspiracy that this entire episode is a “turf fight” that suggests intelligence agencies are ignoring the importance of information-sharing:
DHS has passenger lists for flights in and out of the U.S. It uses those lists to watch for terrorists. The National Counter Terrorism Center also watches for terrorists. So it asked for DHS’s lists. The first rule of bureaucracy is never to share information with a rival. So it’s no surprise that DHS didn’t want to hand over its data to Matt Olsen’s NCTC …. Do you know anyone who resonates to this slogan: “I’m glad Janet Napolitano has my travel records, but I will fight to the death to keep them out of Matt Olsen’s hands”?
Of course, no one can answer Baker’s question because the debate occurred entirely behind closed doors. In an ACS Issue Brief last year, the ACLU’s Jay Stanley cautioned that data mining such as this violates the principle that our government should not watch over everyone in an attempt merely to spot some illegal activity. “In short, today’s technology revolution is creating a crisis in Fourth Amendment law,” he concluded.
Nearly thirty years ago, the Supreme Court in United States v. Knotts cautioned that any “dragnet type law enforcement practices” might necessitate careful scrutiny under the Fourth Amendment. Fortunately for the NCTC, the collection of all manner of personal information to protect against terrorism is construed not as law enforcement activity but as intelligence gathering. Thus, no one can effectively argue that data mining is against the law. Instead, as Angwin writes, opponents of these new rules inside the Obama administration “were left to question whether the rules were good policy.”
“Welcome to the new national security state,” Kevin Drum remarks.