Remember when government needed something called a warrant or even probable cause to look at your records? Good times, good times. I’m nostalgic for the halcyon days of, er, February of this year, before the Attorney General of the United States signed off on an order allowing the government to access pretty much everything it wanted in the name of counterterrorism. The Wall Street Journal found out about the order and got a FOIA request to force its exposure:
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.
Well, hey, we can trust the American government to handle this properly, soberly, and with caution, right? At least the data will stay with accountable US officials. Whew. That’s a load off of my mind — er, what’s that? Um …
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.
“It’s breathtaking” in its scope, said a former senior administration official familiar with the White House debate.
The good news: Saudi Arabia might now have all of our firearm registration data. What could go wrong?
Say, remember when Congress used to be involved in writing laws and making policy in the US? Good times, good times. Perhaps Congress might want to investigate what the Department of Justice and the National Counterterrorism Center has been doing with the 4th Amendment. Eric Holder should be subpoenaed and forced to testify under oath about his order, and find out whether Congress got consulted or bypassed entirely on this decision.
It’s interesting how all this came out after the election, huh? Maybe the name “Julia” for one of Barack Obama’s campaign themes was well chosen.
Update: A couple of commenters blame the Patriot Act for this move. However, the Patriot Act was passed by Congress, and has been extended and somewhat limited by Congress in multiple extensions. Congress can repeal it at any time, just as they can any statute. Regardless of the debatable wisdom of the Patriot Act — which I supported at those times — it didn’t give the executive branch carte blanche to access records without some sort of probable cause, nor share those records with foreign governments, and it didn’t get imposed unilaterally by the executive branch. This is a completely new abuse of power, and Congress should be furious over it, as should the rest of us.