[Infowarrior] - Administration Seeks to Keep Terror Watch-List Data Secret

[Richard Forno]

Administration Seeks to Keep Terror Watch-List Data Secret
By Ellen Nakashima
Washington Post Staff Writer
Sunday, September 6, 2009

http://www.washingtonpost.com/wp-dyn/content/article/2009/09/05/AR2009090502240_pf.html
The Obama administration wants to maintain the secrecy of terrorist  
watch-list information it routinely shares with federal, state and  
local agencies, a move that rights groups say would make it difficult  
for people who have been improperly included on such lists to  
challenge the government.

Intelligence officials in the administration are pressing for  
legislation that would exempt "terrorist identity information" from  
disclosure under the Freedom of Information Act. Such information --  
which includes names, aliases, fingerprints and other biometric  
identifiers -- is widely shared with law enforcement agencies and  
intelligence "fusion centers," which combine state and federal  
counterterrorism resources.

Still, some officials say public disclosure of watch-list data risks  
alerting terrorism suspects that they are being tracked and may help  
them evade surveillance.

Advocates for civil liberties and open government argue that the  
administration has not proved the secrecy is necessary and that the  
proposed changes could make the government less accountable for errors  
on watch lists. The proposed FOIA exemption has been included in  
pending House and Senate intelligence authorization bills at the  
administration's request.

"Instead of enhancing accountability, this would remove accountability  
one or two steps further away," said Steven Aftergood, director of the  
Federation of American Scientists' Project on Government Secrecy.

When the FBI's Terrorist Screening Center disseminates data from watch  
lists to state and federal agencies, the information is unclassified,  
though marked "for official use only." Officials said that the  
information could be obtained under a FOIA request and that such data  
has been released under FOIA.

Michael G. Birmingham, a spokesman for the Office of the Director of  
National Intelligence, said that the intelligence community is seeking  
"adequate protection from disclosing terrorist identity information"  
to the public because "no [such] exemption currently exists under  
FOIA." He said the goal of the proposed exemption was to keep  
sensitive unclassified information from unintended recipients,  
including terrorism suspects.

One intelligence official said the information's disclosure creates a  
host of difficulties.

"Here's the problem," the official said, discussing the matter on the  
condition of anonymity because he was not authorized to speak on the  
record. "If you've got somebody, including a suspected terrorist, who  
can FOIA that information, you're making intelligence-gathering  
methods vulnerable. You're possibly making intelligence agents and law  
enforcement personnel vulnerable. Suspects could alter their behavior  
and circumvent the surveillance."

David Sobel, senior counsel for the Electronic Frontier Foundation, a  
privacy advocacy group, said the government has successfully used  
existing FOIA exemptions to deny requests for watch-list records. He  
cited a court case last fall brought by the EFF in which the  
government, in keeping with it policy, refused to confirm or deny  
whether a European Parliament member's name was on the terrorist watch  
list. The government claimed in part an exemption that bars disclosure  
of law enforcement information on "techniques and procedures" for  
investigations. The EFF, concluding that the government would win,  
withdrew the case.

Rather than expanding the list of FOIA exemptions, Congress should pay  
more attention to improving the procedures for helping people who have  
been improperly included on the watch list, Sobel said. "There's a  
serious redress problem," he said. "That's the issue that needs to be  
addressed."

On Tuesday, a coalition of privacy and transparency advocates led by  
OpenTheGovernment.org sent a letter to the leading members of the  
House and Senate intelligence committees urging that the measure be  
dropped. "We consider this provision unnecessary, overbroad and  
unwise," the letter said.

A consolidated government watch list was created in 2004 and is housed  
at the Terrorist Screening Center. As of last September, it included  
about 1.1 million names and aliases corresponding to 400,000  
individuals. The TSC feeds names and other data to the Transportation  
Security Administration's air passenger "no-fly" list, the State  
Department's Consular Lookout and Support System list, and the FBI's  
Violent Gang and Terrorist Organizations File, as well as to state and  
local agencies.

A person is included in the list if he or she is "known or  
appropriately suspected to be or have been engaged in conduct  
constituting, in preparation for, in aid of, or related to terrorism,"  
according to the TSC Web site.

A May report by the Justice Department Office of the Inspector General  
found the watch-list process to be flawed, with the FBI failing to  
"update or remove watch list records as required." In one instance, an  
individual remained on the list nearly five years after the after the  
underlying terrorism case had been closed, the report found.

The FBI later said it had implemented measures "to resolve all of the  
issues disclosed in the report."

In 2007, the FBI signed a memo with federal agencies to standardize  
the redress process and to ensure "fair, timely and independent  
review" of complaints, according to a statement by the bureau.

"We're constantly working to improve our redress procedures," TSC  
spokesman Chad Kolton said. "We're very proud of the work we've done  
so far."

Kolton noted that fewer than 5 percent of the 400,000 people whose  
names are on the watch list are U.S. citizens or permanent residents.  
"The vast majority of people on the watch list are not currently in  
the U.S.,'' he said.