Balkinization  

Monday, July 24, 2006

Total Information Awareness-- it's back (and never actually left)

JB

USA Today reported last week that elements of the Total Information Awareness program that Congress purportedly dismantled in 2003 were actually maintained. (National Journal also covered a different part of this story last February). It seems that John Poindexter's Total Information Awareness-- which attempted to compile massive databases on American citizens' daily lives, and then use the information to predict future crimes and terrorist incidents-- wasn't totally disbanded, despite all the media coverage stating that it was. It was just divided up into little pieces and called by a different name. And here's the best part: Congress has made it quite difficult to tell whether what the Administration has done is illegal, although, as I shall point out at the end of this post, we do have some interesting clues.
U.S. intelligence agencies have invested millions of dollars since 9/11 on computer programs that search through financial, communications, travel and other personal records of people in the USA and around the world for connections to terrorism, according to public records and security experts.

The software is designed to find links between terrorism suspects and previously unknown people; track the international flow of money, operatives and materials; and search for clues in the worldwide communications over phone lines, wireless connections and Internet links.

Industry officials, government reports and contracting records do not say specifically how much the CIA and Pentagon have spent to develop, purchase and upgrade such data-mining programs, because that information is classified.

At least five of the data-mining programs were developed under a Pentagon program, called Total Information Awareness (TIA), that Congress disbanded nearly three years ago because of concerns that it threatened personal privacy, according to government records and participants in the projects.

President Bush and administration officials say the searches for terrorists' trails follow the law and don't invade Americans' privacy.

Bush said May 11 that the government was "not mining or trolling through the personal lives of millions of innocent Americans." White House spokeswoman Dana Perino declined to elaborate.


Has the White House once again violated federal law? Well, it's difficult to say. That's because when Congress defunded TIA, it created an escape hatch. The key provision of the Department of Defense Appropriations Act of 2004 which defunded TIA states that:
Sec. 8131. (a) Notwithstanding any other provision of law, none of the funds appropriated or otherwise made available in this or any other Act may be obligated for the Terrorism Information Awareness Program: Provided, That this limitation shall not apply to the program hereby authorized for Processing, analysis, and collaboration tools for counterterrorism foreign intelligence, as described in the Classified Annex accompanying the Department of Defense Appropriations Act, 2004, for which funds are expressly provided in the National Foreign Intelligence Program for counterterrorism foreign intelligence purposes.

(b) None of the funds provided for Processing, analysis, and collaboration tools for counterterrorism foreign intelligence shall be available for deployment or implementation except for:

(1) lawful military operations of the United States conducted outside the United States; or

(2) lawful foreign intelligence activities conducted wholly overseas, or wholly against non-United States citizens. (c) In this section, the term "Terrorism Information Awareness Program" means the program known either as Terrorism Information Awareness or Total Information Awareness, or any successor program, funded by the Defense Advanced Research Projects Agency, or any other Department or element of the Federal Government, including the individual components of such Program developed by the Defense Advanced Research Projects Agency.

The statute allows the President to continue elements of TIA (and create new ones) in secret, funded by a classified portion of the Defense Department Appropriations Act. Thus, we don't know how many parts of TIA continued after 2003 or are still in operation to this day, funded with Congress's blessing. But according to the 2004 Defense Department Appropriations Act (which was actually passed in 2003), these secret programs must be for intelligence or surveillance wholly outside the United States or, if within the United States, they must be wholly directed at persons who are not United States citizens. That means in particular that something like the current NSA domestic surveillance program would not be permitted, because it examines phone calls that occur at some point in the United States and may involve U.S. citizens. Thus it is not "wholly" overseas or "wholly" directed at non-U.S. citizens. Nor, for that matter, would the NSA program that seeks to create a database of all U.S. phone calls, because these phone calls involve domestic communications and are overwhelmingly between U.S. citizens.

In fact, if the statutory language is to be believed, we can conclude that most if not all of the original TIA program was meant to be defunded, because, as originally conceived, it was directed at commercial transactions and personal communications within the United States and overwhelmingly involving American citizens.

That means, that even though we do not know the precise details of the elements of the TIA program that are still in operation, there is a very good chance that they are illegal, even under the secret escape hatch created by Congress in 2003.

What to do? The problem, as you may have expected, is oversight. The Administration has stated that these programs are legal because they fall under the escape hatch. But there is no way of knowing whether that is true, and the USA Today story suggests that it is not true: many of these programs involve domestic surveillance and include U.S. citizens. Members of Congress who are permitted to see classified information could provide the public with oversight, but Congress has thus far been particularly feckless in this regard. The NSA program is a perfect example: Congress paid little attention to the program until the New York Times revealed its existence, and then, as the recent Specter bill suggests, instead of trying to hold the Administration to account, it has mostly tried to facilitate what the Administration had already been doing illegally.


Comments:

And do we have something here in the black bills equivalent to the signing statements from Bush? Double whammy, eh?
 

The signing statement for the 2004 Act treats the reference to the classified annex as advisory. It says:

"Sections 8082, 8091, 8117, and 8131 of the Act make clear that the classified annex accompanies but is not incorporated as a part of the Act, and therefore the classified annex does not meet the bicameralism and presentment requirements specified by the Constitution for the making of a law. Accordingly, the executive branch shall construe the classified annex references in sections 8082, 8091, 8117, and 8131 as advisory in effect. My Administration continues to discourage any efforts to enact secret law as part of defense funding legislation and encourages instead appropriate use of classified annexes to committee reports and joint statements of managers that accompany the final legislation."

Source: http://www.presidency.ucsb.edu/ws/index.php?pid=63612

Two quick, alternative readings of this statement are:

1) The statute prohibits X. The exceptions are not part of the law, so there are no exceptions. TIA is dead.

2) The statute prohibits X. Exceptions are mentioned in the statute itself, but the specific list of these exceptions is only advisory. The President must therefore exercise his own discretion in coming up with the specific exceptions. (Otherwise, Congress' expressed desire to have some exceptions won't be served.) TIA lives.

The first alternative can't be the President's preferred one, so I assume it would be something closer to the second alternative.
 

The Deficit Reduction Act of 2005 doesn't meet the bicameralism requirement, either. But the White House had no problem with that one.

But this is a long-running battle the White House has had with such oversight. In 2003, Congress purported to do away with TIA. In 2004 and 2005, Congress purported to have prohibited the use of federal funds "for integration of foreign intelligence information unless the information has been lawfully collected and processed during the conduct of authorized foreign intelligence activities: Provided, That information pertaining to United States persons shall only be handled in accordance with protections provided in the Fourth Amendment of the United States Constitution as implemented through Executive Order No. 12333."

All three nullified by signing statements. All before (or in the third case, just days after) the Times broke the NSA story.

Yet here we are, three warnings, three nullifications, and three years later, looking to solve the problem by quibbling over the details of two bills (Specter's) that had to be specially crafted just to get the president to agree to possibly consider having his actions reviewed by a court.

We're way, way, way past impeachment time. And Specter's bills are designed to run out the clock.
 

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