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NCTC’s New Guidelines: Keeping Information on US Citizens Longer Will Encourage Fishing Expeditions

(photo: US Government)

Guidelines for how long officials at the National Counterterrorism Center (NCTC), a “clearinghouse” for terrorism established after the September 11th attacks, are being expanded to allow for the retention of information on US citizens with no ties to terrorism.

The expanded guidelines allow for the NCTC to hold information for up to five years instead of 180 days, which was the requirement for information on US citizens not suspected of terrorism.

A “number of different agencies,” according to general counsel in the Office of the Director of National Intelligence, Robert S. Litt, attempted to strike up the “correct balance” between “information-sharing” and “protections for people’s privacy and civil liberties.” These “agencies” looked at the need to retain data and decided that visa and travel records and other data from the FBI needed to be held longer in order to fight terrorism.

This expansion of executive power that involves monitoring US citizens is just as Machiavellian as the Obama administration’s legal justification for executing alleged terror suspects abroad without charge or trial. And Marcy Wheeler of has done an excellent job so far of hashing out the critical details.

As Wheeler highlights in her analysis, the NCTC doesn’t really have a mandate to collect information on domestic terrorists. These new guidelines twist the mandate to justify such data collection. The NCTC is also claiming the authority to access any information “maintained by other executive departments and agencies,” which means “tax, social security, health and human services, immigration, military, and other federal databases” could be mined for data. And the Director for National Intelligence James Clapper is to have access to all of this information for “national security” efforts.

There is no guarantee that the information would be safe. Wheeler shows in another post that NCTC will have access to all this information and will likely lack basic network security that would protect the data. She notes that the Defense Department admits “our networks” are “totally compromised” so “when someone leaks all this data for public release (or when China and Iran use it to advance their own spying agendas) the government will act surprised, again, as they do every time their gaping security holes get compromised.”

Why else should Americans be wary of these expanded guidelines? The additional data that will be held longer now on US citizens is likely to fuel fishing expeditions into groups and communities that are not engaged in any unlawful activity.

From the FBI’s own government website:

Created by Congress in 2004 and led by the Director of National Intelligence, NCTC tracks threats 24 hours a day from inside its Northern Virginia facility. FBI personnel—many from the Bureau’s Counterterrorism Division—are among those who work at NCTC, with all-source intelligence analysts representing the largest group. “Working in this environment gives you insight into the culture of the other agencies, how they do business, how they think,” says one FBI employee working at NCTC.

The FBI will have access to this information. And it is common knowledge that the FBI has gone after activist groups.

In recent years, the FBI has targeted at least 23 antiwar, labor and international solidarity activists in Chicago, the Twin Cities in Minnesota and other areas. They’ve raided their homes and issued grand jury subpoenas that allege they provided “material support for terrorism.” They even used an informant named Karen Sullivan to infiltrate an antiwar group planning protests for the 2008 Republican National Convention in St. Paul.

The FBI spied on and possibly infiltrated a Pittsburgh peace group, the Thomas Merton Center. They were monitored for opposing the Iraq War. And, though the FBI lacked probable cause, the agency paid particular attention to individuals who “appeared to be of Middle Easter descent” because they might launch an attack.

The data may also be used to expand the use of entrapment schemes or “sting operations” in Muslim communities like in the case of the Newburgh Four. The FBI has, since 9/11, paid informants to go into communities and instigate terrorism. The FBI constructs plots and provides weapons (usually fake or unarmed). Vulnerable individuals who are young or in poverty are pushed to commit terrorism, and when they do go to mount the planned attack (using the plan provided to them by an informant), they are arrested.

It is highly likely that the increased amount of information will produce more secret police/spy game activities that Americans are expected to believe keep the homeland safe.

Mike German, ACLU senior policy counsel and a former FBI agent, has come out against the expansion:

The decades-old rules limiting the collection and retention of U.S. citizen and resident information by the intelligence community and the military existed for a very good reason: to ensure that the powerful tools designed to protect us from foreign enemies are not turned against Americans. Authorizing the ‘temporary’ retention of non-terrorism related citizen and resident information for five years essentially removes the restraint against wholesale collection of our personal information by the government, and puts all Americans at risk of unjustified scrutiny

German concludes, “Having innocent people’s information in intelligence databases for five years without any suspicion of wrongdoing creates an unacceptable risk to Americans’ privacy through error and abuse.”

The retention of data for five years practically encourages intelligence agencies to engage in the kind of mapping of communities that the NYPD has come under criticism for because they are the product of racial or religious profiling.

Further troubling, the NCTC has access to National Security Agency (NSA) data and in the past week the NSA has come under scrutiny for a program called Stellar Wind. AT&T and Verizon participated in the warrantless wiretapping program that, according to former senior NSA crypto-mathematician William Binney, included not only domestic eavesdropping on “domestic phone calls but the inspection of domestic email” too.

Details on Stellar Wind were revealed in a Wired magazine article for the first time just over a week ago. Binney told the magazine “highly sophisticated software” is used to conduct “’deep packet inspection,’ examining Internet traffic as it passes through the 10-gigabit-per-second cables at the speed of light.”

The software, created by a company called Narus that’s now part of Boeing, is controlled remotely from NSA headquarters at Fort Meade in Maryland and searches US sources for target addresses, locations, countries, and phone numbers, as well as watch-listed names, keywords, and phrases in email. Any communication that arouses suspicion, especially those to or from the million or so people on agency watch lists, are automatically copied or recorded and then transmitted to the NSA.

The NSA also “gained warrantless access to AT&T’s vast trove of domestic and international billing records, detailed information about who called whom in the US and around the world.” [Wired notes that had not been confirmed until now. ]

All this information collected through Stellar Wind or any other secret programs being employed by the US government are likely to be accessed by the NCTC. The NSA is one agency where the NCTC is likely to get data that will be stored for up to five years now.

Stellar Wind is a program that President George W. Bush ordered Chief of Staff Andrew Card and then-White House counsel Alberto Gonzales to go get approval for reauthorization of this program from Attorney General John Ashcroft. He sent the men to get a signature for reauthorization when Ashcroft was in the hospital for surgery because he had gallstone pancreatitis.

While Ashcroft was incapacitated, as Tim Weiner details in his book Enemies: A History of the FBI, acting attorney general James Comey was the one who had to sign the reauthorization. Both Ashcroft and Comey were not about to give their signature.

FBI director Robert Mueller also had opposed the reauthorization, but as Weiner notes in the book he has never spoken about his opposition publicly.

In the aftermath, Comey described what had been coming out of the White House to “a select audience” at the National Security Agency:

If we don’t do this, people will die.” You can all supply your own this: “If we don’t collect this type of information,” or “If we don’t use this technique,” or “If we don’t extend this authority.” It is extraordinarily difficult to be the attorney standing in front of the freight train that is the need for this… It takes far more than a sharp legal mind to say “no” when it matters most. It takes moral character. It takes an ability to see the future. It takes an appreciation of the damage that will flow from an unjustified “yes.” It takes an understanding that in the long run, intelligence under law is the only sustainable intelligence in this country.

There apparently was no Ashcroft, no Comey to say the warrantless retention of data on Americans should not be expanded. Apparently, Mueller did not step up to stop the intelligence community. No person showed moral character in this instance. Attorney General Eric Holder signed off on the guidelines

Holder gave a greenlight to the fusing together of records in a manner that was proposed as a part of the “Total Information Awareness” program under Bush. That program, Charlie Savage of the New York Times notes, was “partially shut down by Congress an after an outcry.”

As Democrats opposed the “Total Information Awareness” program when Bush was president, there should be a massive outcry against President Barack Obama for allowing this expansion of guidelines to happen while he is President. Such outcry is likely to not happen. It is an election year. Making this an issue would not be good for a president, who needs to be seen as strong on national security.

The silence from Democrats, including but not limited to those in the party’s base, will again further solidify the bipartisan national security consensus. It will, as with other expansions of Bush counterterror policies, invite condemnation from former Bush administration officials, who wonder why it is permissible for this president to grow the imperial presidency when it was not acceptable under Bush. And, there will no doubt be columns in the Wall Street Journal from the worst purveyors of warrantless spying on Americans under the Bush Administration.

The op-eds will explain how pleasant it is that Obama has come around to supporting increased monitoring of innocent Americans. The op-eds won’t stop there though. They will go on to take issue with the fact that Obama did not go far enough (as torture memo author John Yoo did in his critique of Holder’s targeted killing speech).

From refusing to oppose the reauthorization of the FISA Amendments Act, which permits warrantless wiretapping, to this new expansion of NCTC guidelines, President Obama is Top Secret America’s man. In fact, if re-elected to a second term, one should presume there will be more grand expansions of executive power approved so the never-ending war on terrorism can run more smoothly because there does not seem to be much of anything the president won’t do for the security-industrial complex of America.

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Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof Press. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."