Obama Guidelines Permit Data on U.S. Citizens
to be Held Longer
By Sari Horwitz and Ellen Nakashim
March 23, 2012 "Washington
Post" - -The Obama administration has
approved guidelines that allow counterterrorism officials to
lengthen the period of time they retain information about U.S.
residents, even if they have no known connection to terrorism.
The changes allow the National Counterterrorism Center (NCTC), the
intelligence community’s clearinghouse for terrorism data, to keep
information for up to five years. Previously, the center was
required to promptly destroy — generally within 180 days — any
information about U.S. citizens or residents unless a connection to
terrorism was evident.
new guidelines, which were approved Thursday by Attorney
General Eric H. Holder Jr., have been in the works for more than
a year, officials said.
have prompted concern from civil liberties advocates.
Those advocates have repeatedly clashed with
the administration over a host of national security issues,
including its military detention without trial of individuals in
Afghanistan and at Guantanamo Bay, its
authorization of the killing of U.S.-born cleric Anwar al-Awlaki
in a drone strike in Yemen, and its prosecution of an
unprecedented number of suspects in the leaking of classified
Officials said the guidelines are aimed at
making sure relevant terrorism information is readily accessible
to analysts, while guarding against privacy intrusions. Among
other provisions, agencies that share data with the NCTC may
negotiate to have the data held for shorter periods. That
information can pertain to noncitizens as well as to “U.S.
persons” — American citizens and legal permanent residents.
The director of national intelligence, James
R. Clapper Jr., has signed off on the changes.
“A number of different agencies looked at
these to try to make sure that everyone was comfortable that we
had the correct balance here between the information-sharing
that was needed to protect the country and protections for
people’s privacy and civil liberties,” said Robert S. Litt, the
general counsel in the Office of the Director of National
Intelligence, which oversees the NCTC.
Although the guidelines cover a variety of
issues, the retention of data was the primary focus of
negotiations with federal agencies. Those agencies provide the
center with information such as visa and travel records and data
from the FBI.
The old guidelines were“very limiting,” Litt
said. “On Day One, you may look at something and think that it
has nothing to do with terrorism. Then six months later, all of
a sudden, it becomes relevant.”
Since the Sept. 11, 2001, terrorist attacks,
the government has taken steps to break down barriers in
information-sharing between law enforcement and the intelligence
community, but policy hurdles remain.
The NCTC, created by the 2004 Intelligence
Reform and Terrorism Prevention Act, collects information from
numerous agencies and maintains access to about 30 data sets
across the government. But privacy safeguards differ from agency
to agency, in some cases hindering timely and effective
analysis, senior intelligence officials said.
“We have been pushing for this because NCTC’s
success depends on having full access to all of the data that the
U.S. has lawfully collected,” said Rep. Mike Rogers (R-Mich.),
chairman of the House intelligence committee. “I don’t want to leave
any possibility of another catastrophic attack that was not
prevented because an important piece of information was hidden in
some filing cabinet.”
The shootings at Fort Hood, Tex., and the
attempted downing of a Detroit-bound airliner on Christmas Day 2009
gave new impetus to efforts to aggregate and analyze
terrorism-related data more effectively.
In the case of Fort Hood, Maj. Nidal M. Hasan had
had contact with Awlaki but that information had not been shared
across the government. The name of Umar Farouk Abdulmutallab, the
suspect in the 2009 airliner plot, had been placed in a master list
housed at the NCTC but not on a terrorist watch list that would have
prevented him from boarding the plane.
Officials said the privacy safeguards in the new
guidelines include limits on the NCTC’s ability to redistribute
information to other agencies.
“Within the intelligence community, there’s one
set of controls for terrorism purposes, a stricter set of controls
for non-terrorism purposes, and an even stricter set of controls for
dissemination outside the intelligence community,” an official said,
speaking on the condition of anonymity. An entire database cannot be
shared; only specific information within that data set can be
shared, and it must be with the approval of the agency that provided
the data, the official said.
Privacy advocates said they were concerned by the
new guidelines, despite the safeguards.
The purpose of the safeguards is to ensure that
the “robust tools that we give the military and intelligence
community to protect Americans from foreign threats aren’t directed
back against Americans,” said the American Civil Liberties Union’s
national security policy counsel, Michael German. “Watering down
those rules raises significant concerns that U.S. persons are being
targeted or swept up in these collection programs and can be harmed
by continuing investigations for as long as these agencies hold the
Other homeland security experts said the
guidelines give officials more flexibility without compromising
“Five years is a reasonable time frame,” said Paul
Rosenzweig, a former senior Department of Homeland Security policy
official. “I certainly think 180 days was way too short. That’s just
not a realistic understanding” of how long it takes analysts to
search large data sets for relevant information, he said.
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