{"id":776,"date":"2010-01-27T08:27:35","date_gmt":"2010-01-27T15:27:35","guid":{"rendered":"http:\/\/www.harvardnsj.com\/?p=776"},"modified":"2014-11-14T14:31:18","modified_gmt":"2014-11-14T19:31:18","slug":"a-response-to-connecting-the-dots-and-the-christmas-plot-2","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/nsj\/2010\/01\/a-response-to-connecting-the-dots-and-the-christmas-plot-2\/","title":{"rendered":"A Response To ‘Connecting the Dots and the Christmas Plot’"},"content":{"rendered":"

By Jeffrey Kahn –<\/strong><\/p>\n

When your favorite tool is a hammer, everything looks like a nail.\u00a0 After the near-catastrophe on Northwest Airlines Flight 253 on Christmas Day, it is not surprising that many hammer away with the tools they know best: data-mining and watchlists.\u00a0 The conventional wisdom is that if we know enough soon enough, we can stop the next attack.\u00a0 The problem over Christmas, therefore, is identified solely as a function of that tool: we didn\u2019t know enough, or, if we did, not everyone did, or if we all did, we forgot crucial bits in the welter of all that data\u2014\u201centerprise amnesia.\u201d<\/p>\n

We should resist the urge to pick up a heavier hammer and expand our watchlisting efforts.\u00a0 That reflex blinds us to the other tools in our toolbox, and the need for more ingenuity in using them.<\/p>\n

Of course, sometimes only a hammer will do.\u00a0 Intelligence gathering and analysis now requires massive databases and sophisticated computers.\u00a0 Who could object to a \u201cGoogle-like\u201d tool to search and sort that information?\u00a0 But resist the claim that you can add that feature and all will be well.\u00a0 There are two problems with that approach.<\/p>\n

First, it neglects the nature of the institutions tasked to use these tools.\u00a0 The Google gap is hardly a recent revelation.\u00a0 In fact, FAA officials gave the same excuse<\/a> to the 9\/11 Commission to explain why their proto-\u201cNo Fly List\u201d contained only twenty names on September 11, 2001, while the State Department\u2019s TIPOFF database listed over 61,000 names.\u00a0 It was hard to make these databases interact because they were designed for different purposes, with different functions (none of which were Google-able).\u00a0 The 9\/11 Commission, like many blue-ribbon commissions before it, discovered that agencies do not share information well.\u00a0 To quote Claude Rains in Casablanca<\/em>, \u201cI am shocked, shocked.\u201d<\/p>\n

Shocking, but hardly surprising.\u00a0 Political institutions (and intelligence agencies are as political as any other) will always protect their turf against encroachment from competitor agencies.\u00a0 That\u2019s simply the nature of constant competition for the President\u2019s ear and Congress\u2019 purse.\u00a0 And that\u2019s why creating more, new institutions is not always as helpful as creating mechanisms that push existing institutions to share more.<\/p>\n

Here is where ingenuity and creativity can play a role.\u00a0 An example is the Terrorist Screening Center (TSC), one of the most important counterterrorism entities that most people have never heard of. \u00a0Notwithstanding the fact that the TSC is responsible for maintaining the No-Fly List, it received virtually no public notice in the aftermath of the Christmas Day attack.\u00a0 The TSC is a multi-agency component of the FBI that operates 24\/7 in an undisclosed location in Northern Virginia.\u00a0 According to its director<\/a>, the TSC \u201cconnects the law enforcement communities with the intelligence community by consolidating information about known and suspected terrorists into a single Terrorist Screening Database.\u201d\u00a0 That\u2019s right, this list is supposed to access everything.\u00a0 In fact, Dennis Blair\u2019s National Counter Terrorism Center (NCTC) is supposed to dump its entire Terrorist Identities Datamart Environment into the TSC\u2019s basket every day<\/a> (and twice on Fridays).\u00a0 From that mega-list, the TSC is tasked to support screening agencies with precision-crafted, smaller lists, like TSA\u2019s No-Fly List.<\/p>\n

That degree of funneling intelligence into a single entity is extraordinary in our fractured intelligence community.\u00a0 But as we learned on Christmas Day, it was still not enough.<\/p>\n

Although TSC is responsible for the final adjudication of nominations to its various watchlists, it is reliant on other agencies to make those initial nominations themselves\u2014in other words, the same sharing problem that stymied cooperation before 9\/11.<\/p>\n

So Google away, but as Napoleon said, \u201cthe tools belong to the man who can use them.\u201d\u00a0 The first problem, then, is that institutions (and the problems that bedevil them) still matter.\u00a0 New and bigger hammers aren\u2019t enough without embedding pressure for competing agencies to cooperate in their use.\u00a0 This is the inevitable paradox between the efficiencies of consolidation and the occasional value of built-in redundancy.<\/p>\n

The second problem is Mr. Rosenzweig\u2019s hammer itself.\u00a0 He suggests that we should automate human intuition with data-mining tools like Admiral Poindexter\u2019s \u201cTotal Information Awareness\u201d system (TIA), although he regrets its \u201cunfortunate\u201d name.\u00a0 But Total Information Awareness accurately described the idea, in much the same way that the all-seeing disembodied eye on its proponent\u2019s symbol<\/a> did.\u00a0 According to official supporters at the time of the controversy, TIA<\/a> meant a database \u201cof an unprecedented scale\u201d that would seek data on everything from cell phones to driver\u2019s licenses to credit cards.<\/p>\n

Tony Tether, then director of the Defense Advanced Research Products Agency (and therefore TIA\u2019s chief defender), assured Congress<\/a> that the program was designed only to give agencies the power to use \u201cwhatever data to which they currently have legal<\/em> access.\u201d\u00a0 But it doesn\u2019t take a DARPA scientist to see that \u201ccurrent legal access\u201d is hardly a long-term constraint.\u00a0 Once deployed, creeping pressure toward expansion is inevitable, by the same logic that argues for TIA\u2019s adoption.<\/p>\n

That was what was so chilling about TIA: there was no stopping point to it.\u00a0 We see that pressure today with the watchlists we already have.\u00a0 Why use a name-based list when biometrics are much more reliable?\u00a0 Why watchlist planes but not trains?\u00a0 Why permit a watchlisted person, too dangerous to fly, access to guns or chemicals?\u00a0 And that\u2019s why the focus cannot assume just \u201ca failure of policy, not of law.\u201d\u00a0 It was the inability of TIA\u2019s creators to identify a stopping point consistent with our society\u2019s values that killed the program, not troubled civil libertarians (who didn\u2019t have much traction in Congress at that time).<\/p>\n

We owe it to ourselves to employ the best tools consistent with the values of our society.\u00a0 But we also need total information awareness about how these tools change the baselines that govern our way of life.\u00a0 Not everything we can do is something we should do.\u00a0 The road back from whence we came runs uphill.<\/p>\n

–Jeffrey Kahn is an Assistant Professor of Law at Southern Methodist University.\u00a0 He previously served as a trial attorney in the U.S. Department of Justice, Civil Division, in Washington D.C.<\/em><\/p>\n

Click here to read as a PDF<\/a><\/em><\/p>\n

Homepage picture courtesy Times Online UK
\n<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

By Jeffrey Kahn – When your favorite tool is a hammer, everything looks like a nail.\u00a0 After the near-catastrophe on Northwest Airlines Flight 253 on Christmas Day, it is not surprising that many hammer away with the tools they know best: data-mining and watchlists.\u00a0 The conventional wisdom is that if we know enough soon enough, we can stop the next attack.\u00a0 The problem over Christmas, therefore, is identified solely as a function of that tool: we didn\u2019t know enough, or, if we did, not everyone did, or if we all did, we forgot crucial bits in the welter of all 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