TIA alive and well

Jack Balkin has been musing about the US Total Information Awareness programme, widely reported to have been disbanded in 2003, but secretly ticking along since then.

"USA Today reported last week that elements of the Total Information Awareness program that Congress purportedly dismantled in 2003 were actually maintained. (National Journal also covered a different part of this story last February). It seems that John Poindexter's Total Information Awareness-- which attempted to compile massive databases on American citizens' daily lives, and then use the information to predict future crimes and terrorist incidents-- wasn't totally disbanded, despite all the media coverage stating that it was. It was just divided up into little pieces and called by a different name. And here's the best part: Congress has made it quite difficult to tell whether what the Administration has done is illegal, although, as I shall point out at the end of this post, we do have some interesting clues...

Has the White House once again violated federal law? Well, it's difficult to say. That's because when Congress defunded TIA, it created an escape hatch...

The statute allows the President to continue elements of TIA (and create new ones) in secret, ...Thus, we don't know how many parts of TIA continued after 2003 or are still in operation to this day, funded with Congress's blessing. But ...these secret programs must be for intelligence or surveillance wholly outside the United States or, if within the United States, they must be wholly directed at persons who are not United States citizens. That means in particular that something like the current NSA domestic surveillance program would not be permitted...

In fact, if the statutory language is to be believed, we can conclude that most if not all of the original TIA program was meant to be defunded, because, as originally conceived, it was directed at commercial transactions and personal communications within the United States and overwhelmingly involving American citizens.

That means, that even though we do not know the precise details of the elements of the TIA program that are still in operation, there is a very good chance that they are illegal, even under the secret escape hatch created by Congress in 2003.

What to do? The problem, as you may have expected, is oversight. The Administration has stated that these programs are legal because they fall under the escape hatch. But there is no way of knowing whether that is true, and the USA Today story suggests that it is not true: many of these programs involve domestic surveillance and include U.S. citizens. Members of Congress who are permitted to see classified information could provide the public with oversight, but Congress has thus far been particularly feckless in this regard. The NSA program is a perfect example: Congress paid little attention to the program until the New York Times revealed its existence, and then, as the recent Specter bill suggests, instead of trying to hold the Administration to account, it has mostly tried to facilitate what the Administration had already been doing illegally."

Update: Meanwhile the Boston Globe reports that the US government's no fly watch list has more members of Congress on it than terrorists.