By Ellen Nakashima
Washington Post Staff Writer
Sunday, September 6, 2009
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.