Sunday, September 25, 2005

What will Arlen Specter, Pennsylvania Republican and chairman of the Senate Judiciary Committee, discover as he looks into covert military intelligence program Able Danger, said to have discovered Mohamed Atta, by name, and his al Qaeda cell working in the U.S. before the attacks of September 11, 2001?

Here are some of the senator’s likely findings, including the “who knew what… and when” part:

• Able Danger was a military intelligence activity apparently looking at open-source, and other, yet unspecified, information, including some that was “domestic” rather than foreign.

• Able Danger was very similar to — if not the same as — the “Total Information Awareness” or “TIA” program, the ill-fated Defense Advanced Research Projects Agency (DARPA) study killed off by Congress because of an avalanche of adverse publicity, much of it uninformed.

• The September 11 Commission either knew, or should have known — or didn’t and could not have known — about Able Danger’s specific activities. From public accounts so far, this seems to hinge on the response and objectivity of the commission senior staff, who were briefed on Able Danger.

Mr. Specter is also a past chairman of the Senate Intelligence Committee, and as such is uniquely qualified to take his inquiry as far as needed to address these and other key issues. How might he proceed?

He would want to know, in detail, about the “reporting of crimes” procedures in effect between the Defense Department and the FBI — and if both followed them, in letter and spirit. These longstanding procedures would have been the vehicle for reporting — to the FBI — any criminal activity allegedly discovered by Able Danger. As a collateral matter, the procedures themselves should be reviewed for currency.

He would want to know if the FBI otherwise knew about Able Danger, as they perhaps should have — if other Defense and FBI agreements on intelligence operations and activities were followed and if these agreements remain adequate.

He would want to know if Able Danger complied with internal Defense Department regulations, insofar as it used “domestic information.” Important in this determination would be whether Able Danger was technically an “intelligence activity” in the first place and if it should, or perhaps should not, have been.

He would want to know how effective Able Danger — and TIA, for that matter — were or could have been to discover domestic terrorist plots and other dangerous activity in the U.S. and who or what agencies should research technologies and carry out discovery and prevention.

He would want to know if existing oversight regimes — including the internal executive department and congressional review protocols — for intelligence or law enforcement are adequate to ensure Americans’ privacy and civil liberties. And, what additional oversight regimes would be needed for new information technologies, such as were used in Able Danger.

Able Danger has served as the basis for the latest flap surrounding the September 11 attacks. But there is a real possibility Mr. Specter’s interest in it will have some larger and longer-lasting effects on our nation’s security. For example, our ability to responsibly and effectively use all the information our government has about the threat from terrorism, whether “intelligence” or not, is essential.

This remains vitally important today — four years after September 11.

Despite last year’s legislative and regulatory reforms, we cannot seem to break down the barriers to sharing intelligence, law enforcement and the other categories of information relevant to terrorism threats. Even more fundamental, the roles and missions of various departments and agencies have not yet changed to reflect the new threat of domestic terrorism.

For example, and as ironic as it might now be, DARPA could be exactly the right place for continued government research on advanced, terrorism-related information technologies, including those needed to protect the personal privacy of the innocent while allowing access to data for legitimate security reasons. This is precisely because DARPA is a pure research and development agency and has no law enforcement, intelligence, regulatory or policy responsibilities — nor should it have.

Mr. Specter’s interest in reviewing Able Danger is very timely. It should cause a thoughtful re-examination of defining, collecting and responsibly using the right and best information no matter its category to protect us from another terrorist attack.

Daniel Gallington, a national security and privacy consultant, formerly was bipartisan general counsel for the Senate Intelligence Committee, deputy counsel for intelligence policy at the Justice Department and deputy assistant defense secretary for territorial security.

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