January 27, 2009 4:52PM

Give Government a Power and It Will Find Something to Do With It

In Section 8131 of the Department of Defense Appropriations Act for fiscal 2004, Congress cancelled funding for the Total Information Awareness program, and it seemed to mean it:

“Terrorism Information Awareness Program” means the program known either as Terrorism Information Awareness or Total Information Awareness, or any successor program, funded by the Defense Advanced Research Projects Agency, or any other Department or element of the Federal Government, including the individual components of such Program developed by the Defense Advanced Research Projects Agency.

But in a classified annex, Congress allowed parts of the program to continue: “[T]his limitation shall not apply to [a] program hereby authorized for Processing, analysis, and collaboration tools for counterterrorism foreign intelligence .…”

Providing further:

“None of the funds provided for Processing, analysis, and collaboration tools for counterterrorism foreign intelligence shall be available for deployment or implementation except for:

(1) lawful military operations of the United States conducted outside the United States; or

(2) lawful foreign intelligence activities conducted wholly overseas, or wholly against non‐​United States citizens.

Parts of TIA could survive, but they could only actually be used in U.S. military operations conducted outside the United States or for lawful foreign intelligence activities conducted overseas or against overseas persons.

Shane Harris of National Journal documented TIA’s life after death in February 2006.

Now whistleblower Russel Tice has come forward in a series of interviews (reviewed by Wired’s Threat Level blog here and here) to describe what he knows of a program that is the very similar to Total Information Awareness, including the use of “red teams” to generate supposed patterns of terrorist activity. The program was potentially used to investigate U.S. journalists and may have combined communications information with credit card data.

In the spring of 2006, Tice told a reporter, “[T]he biggest sweat that happened at NSA happened when John Kerry almost got elected president [in 2004], because they were concerned they were all going to be thrown in jail.” He feels strongly that people at the NSA have been violating the law.

It’s hard to determine the truth of things from one whistleblower who may bring bias and mistake in recollection and interpretation. But there was no reason for Congress to continue Total Information Awareness in secret. As Jeff Jonas and I documented in our paper on the subject, data mining for terrorism will not work. There just aren’t enough instances of terrorism from which to generate patterns that reliably indicate terrorism.

It’s quite plausible that folks at the National Security Agency, finding no counterterrorism use for the Total Information Awareness components transferred there, put them to work on other things — like investigating journalists’ sources.

This cries out to be cleared up. Should it see fit to investigate, Congress should not give immunity to credit card companies.