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US Government Spying on Innocent Citizens, Just In Case

Remember when the Bush administration was spying on calls Americans made overseas without a warrant? Those were the good old days.

WSJ (“U.S. Terrorism Agency to Tap a Vast Database of Citizens”):

Top U.S. intelligence officials gathered in the White House Situation Room in March to debate a controversial proposal. Counterterrorism officials wanted to create a government dragnet, sweeping up millions of records about U.S. citizens—even people suspected of no crime.

Not everyone was on board. “This is a sea change in the way that the government interacts with the general public,” Mary Ellen Callahan, chief privacy officer of the Department of Homeland Security, argued in the meeting, according to people familiar with the discussions.

A week later, the attorney general signed the changes into effect.

Through Freedom of Information Act requests and interviews with officials at numerous agencies, The Wall Street Journal has reconstructed the clash over the counterterrorism program within the administration of President Barack Obama. The debate was a confrontation between some who viewed it as a matter of efficiency—how long to keep data, for instance, or where it should be stored—and others who saw it as granting authority for unprecedented government surveillance of U.S. citizens.

The rules now allow the little-known National Counterterrorism Center to examine the government files of U.S. citizens for possible criminal behavior, even if there is no reason to suspect them. That is a departure from past practice, which barred the agency from storing information about ordinary Americans unless a person was a terror suspect or related to an investigation.

Now, NCTC can copy entire government databases—flight records, casino-employee lists, the names of Americans hosting foreign-exchange students and many others. The agency has new authority to keep data about innocent U.S. citizens for up to five years, and to analyze it for suspicious patterns of behavior. Previously, both were prohibited. Data about Americans “reasonably believed to constitute terrorism information” may be permanently retained.

This is all information that the government had access to; what’s new here is that it’s being aggregated and stored. Oh, and it violates decades-old privacy laws in spirit but, apparently, not in letter:

Congress specifically sought to prevent government agents from rifling through government files indiscriminately when it passed the Federal Privacy Act in 1974. The act prohibits government agencies from sharing data with each other for purposes that aren’t “compatible” with the reason the data were originally collected.

But the Federal Privacy Act allows agencies to exempt themselves from many requirements by placing notices in the Federal Register, the government’s daily publication of proposed rules. In practice, these privacy-act notices are rarely contested by government watchdogs or members of the public. “All you have to do is publish a notice in the Federal Register and you can do whatever you want,” says Robert Gellman, a privacy consultant who advises agencies on how to comply with the Privacy Act.

As a result, the National Counterterrorism Center program’s opponents within the administration—led by Ms. Callahan of Homeland Security—couldn’t argue that the program would violate the law. Instead, they were left to question whether the rules were good policy.

About that:

Previous government proposals to scrutinize massive amounts of data about innocent people have caused an uproar. In 2002, the Pentagon’s research arm proposed a program called Total Information Awareness that sought to analyze both public and private databases for terror clues. It would have been far broader than the NCTC’s current program, examining many nongovernmental pools of data as well.

“If terrorist organizations are going to plan and execute attacks against the United States, their people must engage in transactions and they will leave signatures,” the program’s promoter, Admiral John Poindexter, said at the time. “We must be able to pick this signal out of the noise.”

Adm. Poindexter’s plans drew fire from across the political spectrum over the privacy implications of sorting through every single document available about U.S. citizens. Conservative columnist William Safire called the plan a “supersnoop’s dream.” Liberal columnist Molly Ivins suggested it could be akin to fascism. Congress eventually defunded the program.

The National Counterterrorism Center’s ideas faced no similar public resistance. For one thing, the debate happened behind closed doors. In addition, unlike the Pentagon, the NCTC was created in 2004 specifically to use data to connect the dots in the fight against terrorism.

Even after eight years in existence, the agency isn’t well known. “We’re still a bit of a startup and still having to prove ourselves,” said director Matthew Olsen in a rare public appearance this summer at the Aspen Institute, a leadership think tank.

Frankly, while  the Obama administration has been even more cavalier about the rule of law in conducting the war on terror than its predecessor, it’s been much shrewder in going about its business. Despite pledges to be the most transparent administration in history, it has gone about its business with incredible stealth. Telling Congress or the American people about programs that might be controversial is just asking for trouble; so, they wisely keep these sort of things to themselves. Ditto, for that matter, things like going to war with new countries; if you don’t ask Congress, they can’t tell you no.

Oh, and as a bonus:

The changes also allow databases of U.S. civilian information to be given to foreign governments for analysis of their own. In effect, U.S. and foreign governments would be using the information to look for clues that people might commit future crimes.

I mean, what could go wrong? And, at any rate, your government is interested in your input:

Homeland Security is currently working out the details to give the NCTC three data sets—the airline-passenger database known as APIS; another airline-passenger database containing information about non-U.S. citizen visitors to the U.S.; and a database about people seeking refugee asylum. It previously agreed to share databases containing information about foreign-exchange students and visa applications.

Once the terms are set, Homeland Security is likely to post a notice in the Federal Register. The public can submit comments to the Federal Register about proposed changes, although Homeland Security isn’t required to make changes based on the comments.

Sort of like a blog, I guess.

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About James Joyner
James Joyner is the publisher of Outside the Beltway, an associate professor of security studies at the Marine Corps Command and Staff College, and a nonresident senior fellow at the Atlantic Council. He's a former Army officer and Desert Storm vet. He has a PhD in political science from The University of Alabama. Views expressed here are his own. Follow James on Twitter.

Comments

  1. Tsar Nicholas says:

    Obama and Holder are not the first liberals to be mugged by reality. And they won’t be the last ones.

    This passage I found to be quite relevant:

    Frankly, while the Obama administration has been even more cavalier about the rule of law in conducting the war on terror than its predecessor, it’s been much shrewder in going about its business. Despite pledges to be the most transparent administration in history, it has gone about its business with incredible stealth. Telling Congress or the American people about programs that might be controversial is just asking for trouble; so, they wisely keep these sort of things to themselves.

    Definitely. That all goes without saying, however. Democrats always have been far better than Republicans at the game of politics. Plus obviously the liberal Democrat national media is not going to push too hard against their own team. There won’t be blaring headlines 24/7 about any of this. No “60 Minutes” exposes. No features on ‘This Week” or “Meet the Press.” No steady drumbeat of editorials. No candlelight vigils. No protests.

    Meet the new boss, 100x worse than the old boss.

    Like or Dislike: Thumb up 4 Thumb down 15

  2. Brummagem Joe says:

    Bush and the whole 9/11 hysteria opened the door to this. It’s completely deplorable but once the door was opened there was no way it was ever going to be shut again because members of the legislature either likes this kind of stuff on principle or are frightened to speak out. Things that were once completely outlawed like torture or the extra territorial murders of people we don’t like have become official govt policy. What do you expect. This was the slippery slope many predicted and we’re laughed at. A couple of days ago JJ you were defending the drone program as legitimate. Well at the moment there’s a big row going on Britain about the complicity of the security services in the murder of lawyer (he was gunned down in front of his wife and three kids) who wasn’t a terrorist but used to represent IRA defendants in Northern Ireland. Think it couldn’t happen here?

    Like or Dislike: Thumb up 6 Thumb down 1

  3. Brummagem Joe says:

    @Tsar Nicholas:

    Obama and Holder are not the first liberals to be mugged by reality.

    No one has been mugged by reality. They’re just pushing the envelope on laws that Bush put on the books. It’s what govt’s, police forces, etc always do. These days the RICO statutes are used much more frequently against ordinary criminals than ever they are against the mafia.

    Like or Dislike: Thumb up 4 Thumb down 0

  4. Rob in CT says:

    It’s pretty clear that the public doesn’t actually care.

    Heck, can I really say that I care? I complain on blogs. I try to vote for people less likely to push this stuff (which in itself is a bit of a crapshoot), but that’s about it. Oh, I give money to the ACLU occasionally. Does that constitute “caring?” I dunno.

    I frankly find the entirety of our national response to 9/11 to be incredibly depressing.

    Like or Dislike: Thumb up 10 Thumb down 1

  5. stonetools says:

    Good on the WSJ to cover this troubling story, although I suspect they were less concerned with privacy rights during the Bush Administration. Still, I’m glad they finally “got religion”.

    Now if there were only some body, accountable to the public, who had the duty and power to oversee the executive on this issue. Apparently, though, they have no time to do this because they are busy with BENGHAZI!

    Like or Dislike: Thumb up 10 Thumb down 0

  6. Jenos Idanian Who Has No Pony Tail says:

    Pathetic. Bush’s policies were so wrong and hateful, yet Obama’s not to blame for not only continuing them, but expanding on them. Why the hell did Obama run — and why the hell did so many vote for him — as the “antidote” to Bush again?

    Like or Dislike: Thumb up 4 Thumb down 10

  7. rudderpedals says:

    Any fixes on this – and heaven knows it needs fixing – are going to have to come from the GOP because their members are spring loaded to cry surrender and fear much as they did about the horrors of trying the Gitmo scumbags in an American courtroom. Only Nixon can go to China.

    Like or Dislike: Thumb up 2 Thumb down 1

  8. Brummagem Joe says:

    @rudderpedals:

    There are no fixes for it. The Patriot Act let this genie out of the bottle and it can’t be put back in.

    Like or Dislike: Thumb up 4 Thumb down 0

  9. michael reynolds says:

    I don’t give Obama a pass on this. Yeah, they’re Bush laws. But Mr. Bush is not the guy okaying these policies.

    Like or Dislike: Thumb up 14 Thumb down 1

  10. anjin-san says:

    Probably the most disappointing aspect of the Obama administration. Well, this and the continued embrace of the war on drugs…

    Like or Dislike: Thumb up 11 Thumb down 0

  11. george says:

    What michael reynolds said.

    How in the world did we get to the point where the government is supposed to protect us from all physical danger. Some terrorist might be a threat? Horrible, lets give up all our rights, because we’re too afraid to face any physical danger at all.

    As a second point, how come the people complain about a nanny state aren’t complaining about this … a government (or nanny) who takes away your freedom to protect you physically is probably the worst kind, far more intrusive than an economic nanny. Protecting your kids financially is something you do up into the teenage years. Protecting you from all physical harm is something you do with toddlers.

    Like or Dislike: Thumb up 7 Thumb down 0

  12. Brummagem Joe says:

    @anjin-san:

    The problem guys is that Obama is charged with protecting the American people (you can almost do it in a fake twangy Texas accent) and if something goes wrong the Republicans are going to be all over him like flies on a cow pat. So he’s not going to take any risks. In moral terms it’s completely reprehensible but this is what we’re dealing with. We don’t have a loyal opposition. We have an opposition that is essentially terroristic in outlook. And the same btw will be true should some Republcan elected president. He’s going to take no chances either. Looking back over 50 years or so of American politics it’s hard to describe the degeneration in standards of truth, morality, etc etc that have taken place. I certainly can’t applaud this, I think the entire drone program is incredibly dangerous to long term American interests, but we’re on a train we can’t get off. All one can say is that the odds are that an Obama administration are likely to use these programs with more intelligence and sensitivity than a Bush or Christie administration.

    Like or Dislike: Thumb up 4 Thumb down 1

  13. stonetools says:

    The problem guys is that Obama is charged with protecting the American people (you can almost do it in a fake twangy Texas accent) and if something goes wrong the Republicans are going to be all over him like flies on a cow pat. So he’s not going to take any risks

    This. Liberals are naive about this, but one big reason that we are still talking President Obama is that he has totally taken away the national security/FP issue from the Republicans. James Joyner even (wistfully) admitted this in one of his articles.
    I think liberals should give Obama some latitude on this, especially since the public doesn’t give a d@mn about it. To the extent they know about this at all, they’re probably OK with the current approach .
    If you care about it, then comment in the Register and call your Congressperson. It can’t hurt, and it might help..

    Like or Dislike: Thumb up 4 Thumb down 0

  14. Whitfield says:

    Look at this: black boxes are being installed on new cars. These boxes will collect all kinds of information (“data”) and send it to who knows where to be used for who knows what, some of which could be used for some kind of prosecution. But wait: the car owners will not have any access to it. If you try to get in it or disconnect it, your car stops running. There are some state attorney generals who are fighting this, but the car manufacturers, Toyota for one, say no; car owners do not have a right to it. Even though the people shell out $20,000 or more for a new car, they do not really own or control it. One other little fact: Obama approves of this !
    Occupy Wall Street ? I say occupy the White House and Congress !

    Like or Dislike: Thumb up 5 Thumb down 0

  15. Just Me says:

    Neither the public or the media care much about this.

    I think it is a power grab and the administration mostly gets a pass, because nobody really cares.

    I also think the Bush years and terrorism have generally made it easy for the president and congress to justify just about any intrusion with the “but we need to do this because of terrorism.”

    There is a fine line and this administration has crossed it IMO, but congress and the American people mostly just yawn.

    Like or Dislike: Thumb up 2 Thumb down 0

  16. Brummagem Joe says:

    @stonetools:

    Liberals are naive about this, but one big reason that we are still talking President Obama is that he has totally taken away the national security/FP issue from the Republicans.

    Many are but in fact the entire modern national security state was constructed by FDR and much more so Truman. His admin were the guys who developed the entire containment strategy that was pursued by every single president thereafter until the Soviet Union collapsed. As St Just said during the French revolution…..it is not possible to govern innocently. On the whole Democrats have tended to be more restrained about the execution of security policies but they’re not lily white by any means (Kennedy/Johnson?). The fact is as of right now I have more confidence in the integrity of Obama and Holder than Bush/Gonzales. Yes it’s a subjective value judgement but entirely reasonable nevertheless given what we know.

    Like or Dislike: Thumb up 2 Thumb down 0

  17. Brummagem Joe says:

    @Just Me:

    I think it is a power grab and the administration mostly gets a pass, because nobody really cares.

    They’ll care if we get another major terrorist attack in the US.

    Like or Dislike: Thumb up 1 Thumb down 1

  18. george says:

    @Brummagem Joe:

    They’ll care if we get another major terrorist attack in the US

    And that’s the problem. People care more about being secure against another terrorist attack than they do about freedom. And this is just as true of the conservatives, who claim to be on the side of taking risk in the name of freedom as opposed to having the government make everything secure for you.

    What was Franklin’s quote? “They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.” I’m afraid he’s talking about us today.

    Like or Dislike: Thumb up 2 Thumb down 1