September 25, 2005 | National Review Online

The Suicide Ethos

Regulations were not the reason Able Danger intelligence was purged.

After the worst domestic attack in the history of the United States, the constant refrain was that “9/11 changed everything.” All “walls” were taken down. Intelligence agents and criminal investigators–until then hindered from cooperating–were now to work hand-in-hand. National security was in. Obsession over imaginary civil-rights violations was out. The message was clear: Gather all the information, get it into the right hands, and connect all the dots.

Well it looks like the memo never made its way over to the Pentagon.

In mid-2000, the Department of Defense (DoD) intentionally purged a gargantuan amount of intelligence about al Qaeda — the enemy that had just blown up our embassies in east Africa and was even then scheming to bomb a navy destroyer in Yemen. The materials were generated by the “Able Danger” program, which attempted to map al Qaeda by sophisticated data mining. Although that program was itself highly classified, it drew mostly on open-source (i.e., non-classified) information. According to participants, the effort yielded leads that might have uncovered the 9/11 plot if diligently followed.

Regardless of the ultimate resolution of the controversy over whether Mohamed Atta and three other hijackers were identified by Able Danger long before the attacks, there is no defending the destruction of valuable data. Nonetheless, that's just what DoD is trying to do. And central to this dismaying effort, four years out from 9/11, is the revival — as if it ever really went away — of the spirit (or, better, dispirit) that pervaded the Justice Department in the bad old days of “the wall.”

Specifically, to justify what happened in 2000, DoD is today reading regulations that readily permit effective intelligence analysis as if acquiring information and, God forbid, sharing it, are the gravest of sins. I use “reading” with hesitation. For it's hard to understand how anyone literate in the English language could read the governing regulations to say what the Pentagon is reading them to say.

The Able Danger team members who claim to have identified terrorists and to have been thwarted in their efforts to share their information with the FBI are generally well-respected. Yet, top Defense officials publicly cast doubt on their credibility for weeks, insisting that no corroborating documentation had been found despite what was described as an “aggressive” internal investigation.

Finally on September 1, after the number of Able Danger participants supporting the Atta allegation had grown to five, the Pentagon called a news conference, at which a handful of mid-level officials were given the uncomfy task of confessing that much of the documentation generated by the program had actually been destroyed. Intentionally. Over five years ago.

Understand what this entailed. Erik Kleinsmith, a retired army major who was directed to carry out the purge in mid-2000, told the Senate Judiciary Committee at a hearing last Wednesday that he and a colleague “were forced to destroy all the data, charts, and other analytical products that we had not already passed on to [the Special Operations Command] related to Able Danger.” Congressman Curt Weldon, who has been the prime mover behind the startling Able Danger revelations, elaborated that the breadth of deleted data was 2.5 terabytes — a staggering amount that would fill several rooms.

Why? Purportedly because of regulations. Here's how the matter was put by Pat Downs, a senior policy analyst who was among those dispatched to take the media heat at the press conference (emphasis is mine):

There are regulations. At the time how they were interpreted, very strictly pre-9/11, for destruction of information which is embedded, I guess is the way I would say it, that would contain any information on U.S. persons. In a major data mining effort like this you're reaching out to a lot of open source and within that there could be a lot of information on U.S. persons. We're not allowed to collect that type of information. So there are strict regulations about collection, dissemination, destruction procedures for this type of information. And we know that that did happen in the case of Able Danger documentation.

This is abject nonsense. The Pentagon is allowed to collect information on U.S. persons. Indeed, the very regulations Ms. Downs was referring to — Army Regulation 381-10, which is a regurgitation of DoD Regulation 5240.1-R — say so explicitly.

Moreover, contrary to this gibberish, when language is “interpreted very strictly,” that means you limit yourself to doing exactly what it says — no rhythm, no wiggle room, no going the extra mile. A “strict interpretation” does not mean something which says “you may do this” is somehow read as if it said “you may not do this.” Unless of course, we are back to the antinomian heyday of Clintonism (when the purge at issue, not coincidentally, took place) — talking points in hand as we ask what the definition of “is” is.

DoD refused to permit any of the Able Danger witnesses to testify before the Judiciary Committee (although it has now asked for a second chance, and Chairman Arlen Specter has agreed to hold a second hearing on October 5). The Pentagon did, however, send to last Wednesday's hearing William Dugan, Secretary Donald Rumsfeld's Acting Assistant for Intelligence Oversight.

Though not in a position to weigh in on Able Danger, Dugan is well-versed in the intelligence oversight regulations and the spirit in which they have been enforced lo these many years. His testimony proved to be an alarming eye-opener.

First, Dugan made clear that, under the law, the term “U.S. person” essentially means an American citizen or a lawful permanent resident alien (i.e., a greencard holder) — or an organization dominated by either. It most certainly does not include al Qaeda (a global terror network) or people like Mohamed Atta, who may have been in the country legally but most surely were not lawful permanent residents.

Let that sink in for a second. The rules that the Pentagon keeps talking about are aimed at regulating what information DoD may collect on U.S. persons. But if we are not dealing with U.S. persons, these regulations do not apply. There is no problem with the Pentagon collecting or keeping such intelligence. In other words, the regulations were not even germane, much less determinative of an obligation to throw out boatloads of data about our enemies.

But let's play along for a moment. Let's pretend that al Qaeda and Atta were somehow U.S. persons, or that it was necessary, in the course of investigating them, to capture information about actual U.S. persons. Even under those circumstances, there was absolutely no problem under the regulations for the military to have gathered, maintained or disseminated this information.

As Dugan acknowledged, there is no component of military intelligence that has a mission to spy on U.S. persons. He observed, nevertheless, that DoD has several intelligence missions that are critical to national security, “such as foreign intelligence, counterintelligence, counterterrorism, signals intelligence, and the like.”

In the Information Era, the world is increasingly small. Thus, in the course of carrying out those missions, it frequently happens that DoD intelligence services will incidentally capture information about U.S. persons. Does that mean these services need to shed that information, even if it could be vital to our safety?

Of course not. The whole point of the governing regulations is to allow the military to keep intelligence that might save American lives. Thus, Dugan conceded that the rules set forth 13 broad reasons for retaining information about U.S. persons. They are worth setting out, as Dugan did in his submitted testimony:

1. Information obtained with consent.

2. Publicly available information.

3. Foreign intelligence.

4. Counterintelligence.

5. Potential sources of assistance to intelligence activities.

6. Protection of intelligence sources and methods.

7. Physical security. [with a foreign nexus/connection]

8. Personnel security.

9. Communications security.

10. Narcotics. [international narcotics activity]

11. Threats to safety. [with a foreign nexus/connection — such as international terrorist organizations]

12. Overhead reconnaissance.

13. Administrative purposes. [training records — a narrowly drawn category].

There are few of these categories that would not provide, by themselves, a justification to maintain intelligence gathered on U.S. persons in the course of tracking an international terrorist organization and its members who were in the process of plotting to mass murder American civilians and military personnel. And that's leaving aside that the information we are talking about was, for the most part, actually gathered from publicly available information (a justifying category unto itself — see, No.2, above)

So, al Qaeda and Atta did not even trigger U.S. person concerns, and even if they had there would have been abundant rationales for retaining the Able Danger harvest (not to mention getting it into the FBI's hands). Why, then, was vital intelligence purged?

The answer has nothing to do with the regulations. It's all about mindset. The suicide ethos. Here's Dugan again:

Investigations … revealed the misuse of intelligence assets, both DoD and non-DoD, to collect information on civil rights protestors, anti-Vietnam war demonstrators, as well as community and religious leaders and labor leaders during the 1960's and early 1970's. What began as a force protection mission for DoD organizations, evolved, through mission creep, lack of clear rules, and the lack of meaningful oversight, into an abuse of the Constitutional rights of United States persons by Defense intelligence and counterintelligence personnel. These matters were thoroughly investigated by the Congress, including this [Senate Judiciary] committee, in the 1970s — I am referring to the investigations conducted by Senator Ervin, as well as Senator Church — the Church Committee — and Representative Pike — the Pike Committee. Since 1976, the [Office of the Assistant to the Secretary of Defense for Intelligence Oversight, where Dugan is assigned] has been charged with preventing a recurrence of these types of transgressions and we do this through our Intelligence Oversight program.

Dugan went on to note that “[w]e place special emphasis on the protection of information on United States persons. Our second area of emphasis is on ensuring improper activity by intelligence personnel is identified, reported, investigated, and then action taken to keep it from happening again.”

The culture, the message to our forces, could not be more patent: protecting American lives is secondary to not being vexed by the ACLU and its fellow travelers. Even if proving our hearts are pure means gratuitously and utterly unnecessarily expunging goo-gobs of critical intelligence about our enemies in the middle of a war in which we know they are trying to kill us (and, mind you, al Qaeda regarded this as a war long before 9/11, even if our government didn't).

This all led to a worthy grilling of Dugan by Senator Specter:

SEN. SPECTER: Mr. Dugan, Mohammed Atta was not a U.S. person, was he?

MR. DUGAN: Based on what I read in the press, I don't think so. Based on what I read in the press since September 11, 2001, I don't believe he was. He wasn't a permanent resident alien. He wasn't a U.S. citizen. He wasn't any of the other categories. He wasn't in the country lawfully. For instance, a student visa or a tourist visa, that is not the same thing as a permanent resident alien.

SEN. SPECTER: Mr. Dugan, you are the acting assistant secretary of defense for intelligence oversight. Can't you give us some more definitive answer to a very direct and fundamental and simple question like, “was Mohammed Atta a U.S. person?”

MR. DUGAN: No, he was not.

SEN. SPECTER: … Mr. Dugan, I know you were sent here by your superiors to do the best you could. I think the Department of Defense owes the American people an explanation as to what went on here.

It sure does.

Andrew C. McCarthy, a former federal prosecutor, is a senior fellow at the Foundation for the Defense of Democracies.