New Counterterrorism Guidelines Allow U.S. to Hold Americans’ Data Longer


March 23, 2012

Soon after Umar Farouk Abdulmutallab, the so-called underwear bomber, failed in his attempt to blow up a Detroit-bound flight on Christmas Day 2009, U.S. intelligence agencies realized they could have detected his threat in advance — if they had been able to correlate existing intelligence intercepts and communications from a U.S. Consulate in Nigeria.

The review that began as a result of that discovery is what intelligence officials say led the Obama administration to approve new counterterrorism guidelines [PDF] that will allow the government to hold data on U.S. citizens who are not suspected of terrorist activity for 10 times longer than before. Information that previously could only be retained for 180 days can now be held, searched and retrieved for five years.

The National Counterterrorism Center’s new guidelines also mean intelligence agencies will be able to “data mine” more copies of databases in order to analyze and detect threat patterns over time.

Intelligence officials gave The New York Times a hypothetical example of how the new rules could help:

A person from Yemen applies for a visa and lists an American as a point of contact. There is no sign that either person is a terrorist. Two years later, another person from Yemen applies for a visa and lists the same American, and this second person is a suspected terrorist.

Under the existing system, they said, to discover that the first visa applicant now had a known tie to a suspected terrorist, an analyst would have to ask the State Department to check its database to see if the American’s name had come up on anyone else’s visa application — a step that could be overlooked or cause a delay. Under the new rules, a computer could instantly alert analysts of the connection.

But civil liberties advocates are concerned the new rules, which were not made available for public comment before they were signed, could allow for abuses.

“We’re all in the dark, and for all we know it could be a rerun of Total Information Awareness, which would have allowed the government to make a computerized database of everything on everybody,” Kate Martin, the director of the Center for National Security Studies, told The New York Times, referencing a controversial electronic archives program proposed by the George W. Bush administration.

National security officials defended the new measures to the Times, citing “safeguards to protect against abuse, including audits of searches.” The paper also notes that the agencies that collect the data “can negotiate about how it will be used” and “may place a shorter life span on it.”

In our report Are We Safer?  — embedded above — reporter Dana Priest investigated how, in the post-9/11 era, the government has turned to expanded and shared intelligence databases to connect the dots and detect terrorist threats before they emerge. The problem, Priest found, is that many states have yet to use their vast and growing anti-terror apparatus to capture any terrorists; instead the government has built a massive database that collects, stores and analyzes information on thousands of U.S. citizens and residents, many of whom have not been accused of any wrongdoing.

For example, Are We Safer profiled a Maryland case in which 53 activists primarily affiliated with anti-death penalty, environmental, racial justice and anti-war groups — including several Catholic nuns — were the subjects of an elaborate 14-month covert surveillance program by the Maryland State Police. Because of the new shared databases, their files were available to state and federal officials. The incident became an example of what Maryland Governor Martin O’Malley (D) described as “the cowboy excesses” of surveillance programs.

Today, the Associated Press published a report revealing surveillance by the New York Police Department’s intelligence unit that it says echoes the Maryland case. According to the AP, NYPD officers kept intelligence files on activists in liberal political organizations opposed to U.S. immigration policy, labor laws and racial profiling.

The report cites an undercover officer’s April 2008 memo [PDF] to his supervisors about the People’s Summit — a gathering of liberal groups that opposed trade agreements between the U.S., Canada and Mexico — as an example of how “in the name of fighting terrorism,” the names and activities of innocent people can make their way into intelligence reports based on their political views, instead of violence or criminal activity.

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