Did Chertoff EVER Use the DHS privacy review process?

by emptywheel

Before we crown Michael Chertoff Attorney General, I recommend we pull him before some oversight committee and ask him if he ever used Department of Homeland Security's Privacy Office to review planned domestic surveillance activities before they're used to collect data on American citizens. CSM reports that DHS is suspending a massive data-mining program because it has already started using live data without ever putting the program through a privacy review.

From late 2004 until mid-2006, a little-known data-mining computer system developed by the US Department of Homeland Security to hunt terrorists, weapons of mass destruction, and biological weapons sifted through Americans' personal data with little regard for federal privacy laws.

Now the $42 million cutting-edge system, designed to process trillions of pieces of data, has been halted and could be canceled pending data-privacy reviews, according to a newly released report to Congress by the DHS's own internal watchdog.

[snip]

It failed to incorporate federal privacy laws into its system design. From its earliest days, the system's pilot programs used "live data, including personally identifiable information, from multiple sources in attempts to identify potential terrorist activity," but without taking steps required by federal law and DHS's own internal guidelines to keep that data from being misused, the DHS Office of Inspector General (OIG) said in a June report to Congress, which was made public Aug. 13.

[snip]

DHS's delay in addressing data privacy appears to be due to confusion and miscommunication about privacy requirements by ADVISE program managers and DHS's privacy office, amid the rush to get a system running, the OIG says.

For example, ADVISE program managers told OIG investigators they didn't realize privacy assessments were required for a system still in development. At that stage, the system was just a processing tool without data, they argued – a view agreed to by the DHS privacy office.

Indeed, the privacy office mentions the ADVISE system only once, in a footnote, in its mandatory report last summer to Congress on data-mining activities. Until the "ADVISE tool" had data attached to it, it was not a data-mining program needing privacy review, the office reported.

Unknown to the privacy office, the ADVISE pilot programs had been operational and using personal data for about 18 months before the privacy office made that report to Congress, the OIG found.

And in a letter to Michael Chertoff complaining that he hadn't been informed of DHS' plans to use military spy satellites to monitor the US, Congressman Bennie Thompson noted that Chertoff had never subjected the satellite plan to a privacy review.

Through media reports I learned of the Department’s intent to create a National Applications Office (NAO) that will purportedly be tasked with facilitating the use of “spy” satellites for domestic homeland security and law enforcement purposes. Unfortunately, I have had to rely on media reports to gain information about this endeavor because neither I nor my staff was briefed on the decision to create this new office prior to the public disclosure of this effort.

[snip]

Turning to the matter at hand, I understand that the target date for NOA operation is October 1, 2007. With less than six weeks remaining until the anticipated “roll out” of this effort, I am concerned that several fundamental issues have not been adequately addressed. For instance, the Department’s failure to include its own Chief Privacy Officer and the Officer for Civil Rights and Civil Liberties in the initial planning stages for the NAO raises serious concerns about the extent to which valid privacy and civil liberties concerns raised by the domestic use of this technology may have been considered and addressed prior to this projected roll out date.

As you know, the statute that created the Officer for Civil Rights and Civil Liberties, 6 U.S.C. § 345, specifically states that the Officer shall “assist the Secretary, directorates, and offices of the Department to develop, implement, and periodically review Department policies and procedures to ensure that the protection of civil rights and civil liberties is appropriately incorporated into Department programs and activities.” Despite this strong mandate, the Office of Civil Rights and Civil Liberties was not involved in the development of the Concept of
Operations for the NAO from the outset and in fact was not brought into the process until this
spring.

[snip]

While I understand that both offices were consulted about the NAO efforts this spring – a year and a half after NAO preparations first got underway – the Department has essentially presented them with a “fait accompli.” Bringing in relevant and important offices at the 11th hour of the process with the apparent expectation that they will rubberstamp a predominantly completed product does not engender true participatory action. On the contrary, such a practice merely creates the illusion of inclusion. In the creation of these offices, Congress expected actual inclusion, real participation and a meaningful voice in the process, not a mere illusion.

I am also concerned about the Department’s failure to vet this program with the Privacy and Civil Liberties Oversight Board, which was specifically created to ensure that concerns with respect to privacy and civil liberties are appropriately considered in the implementation of executive branch policies related to protecting the Nation against terrorism. The failure to consult the Board on a matter as controversial as using spy satellites for domestic homeland security and law enforcement purposes is particularly worrisome.

You get the feeling that Chertoff doesn't want us--and our elected Representatives--to know what kind of surveillance they're conducting on us?

In any case, while DHS' IG seems to buy the notion that the privacy office was left out of the loop as an oversight, these two stories sure make it look like the privacy office was excluded intentionally.  Let's hope Thompson chases down this issue, because I'm guessing Senate Homeland Security Chair Joe Lieberman doesn't much care.

Update: Ask and you shall receive. Thompson is planning a hearing on the satellites on September 6. He has invited the Civil Liberties and Civil Rights Officer.

Comments

[bmaz]

Just in case anyone was wondering what the illegitimate children of Chertoff and Harriet Miers would look like; here you go:

http://proctoringcongress.blogspot.com/2007/08/because-prchrlady-asked-for-it.html

[profmarcus]

looks like chertoff isn't on the short list... i'm interested to hear what you have to say about terwilliger and olson...

http://takeitpersonally.blogspot.com/

[oldtree]

If the ruling majority approve chertoff, we will know there is no more country to defend. It is rather plain at this juncture, is it not? There is no one that bushwa can appoint that would be acceptable to the American people. He will either appoint someone that is subservient to him and will shield, or he will appoint someone that appears to be outside that isn't. He can't appoint anyone with independence, as he will be arrested, along with most of the justice department, congress, the war toy makers, etc..
why is there even talk of allowing him to continue in the office? to allow him to appoint yet another criminal for the chief law enforcement job? Can we step back for a moment and evaluate the contradictions here?

[Mimikatz]

I think the Chertoff trial baloon has landed, and not too softly. Besides, that would give them TWO cabinet positions to get through the process.

[Mary]

I'm sure that, just as he and all the Loyal Bushies who were tamed and trained at DOJ have before, he'll be able to claim memory loss.

http://www.salon.com/news/feature/2007/08/28/chertoff/

[phred]

I agree that the Chertoff trial balloon crash landed, but EW has now clarified why BushCo wanted him to replace Gonzo. Yet another gung-ho spy-on-Americans-first-Constitution-be-damned kind of guy. Chertoff's enthusiasm for domestic spying probably brings a tear to Cheney's eye. All the better that he can also make huge sums of money vanish into thin (contracted out) air.

[bmaz]

Sorry about the above comment link. That is indeed a nasty way to start the morning.

"Unknown to the privacy office, the ADVISE pilot programs had been operational and using personal data for about 18 months before the privacy office made that report to Congress, the OIG found."

Apparently it does not here; but wouldn't you think this would be a requires sworn certification? It never ceases to amaze me how, with this administration, there are either no meaningful guidelines at all or, if there are, they are permissive/optional which results in, of course, no meaningful regulation. As to the domestic use of spy satellites, that is a huge shift that appears to have been made with little to no discussion or notice to anybody. Why are Democrats not going bonkers over this? The level of disdain and nonchalance with which the American public treats the fundamental rights and privacies this country was founded on is really hard to fathom. And if the citizens don't get it; where the hell is the leadership from the leaders?

[casual observer]

another question--was Chertoff head of DHS when that agency was used by DeLay to locate the 'runaway' democratic state legislators (they were in Oklahoma)? This occurred back when DeLay was carving out those 4 or 5 extra GOP house seats, and I think a clear abuse of office, if not Hatch Act violation.

[Jodi]

Look!

There wasn't time to go through all that rigmarole.

Programs are developed with good general capabilities, and the end user is in charge of how they are used.

There are Terrorists out there people!

[katie Jensen]

Yes, jodi, democracy is rigamorole. It's just a bunch of silly hoops that get in the way of keeping people safe from the bad guys.

I say we should throw out the constitution and elect Bush King. He's done such a great job of protecting americans. I mean, there are hardly any people dead since he was elected. Just a few really. I love him so good that I think he should be King.

Damn democracy just gets in the way over and over again.

I say let's get rid of it once and for all.

[Jim Clausen]

Bmaz,
I think we have no leadership. As I posited earlier at firedoglake vis a vis Brian Baird foot in mouth statements after the Dog and Pony show. Where the hell was the phonecall from Pelosi telling hin to STFU? If we pull another Iran contra here we have a replublic " if we can keep it"

[P J Evans]

troll @ 12:41

Bwahahahaha!

(Remember that these are the same people who are supposed to be rebuilding the Gulf Coast since Katrina, and they're failing miserably at that, too.)

[katie Jensen]

And while we are at it. Let's get rid of stop sign. Most the time people are not using them. I mean many of them just sit there and sit there. They are a total inconvenience, especially when some terrorist is chasing you. Holy Cow, you should not have to stop then, for god sakes!! Nope, I say let's also get rid of stop signs. Most the time they are protecting no one. They only come in handy once and while. I think we can all make a good decision about when we should stop and when we should not stop. I don't think we need them.

[katie Jensen]

I was baking Irish soda bread this morning and I think, well, it's the Irish again. Damn.

[P J Evans]

casual observer

The incident with the legislators was in the spring of 2003, according to the story I found online. When did Skeletor Chertoff become DHS secretary?

[bmaz]

KJ - Keep your dander up lassie; its a good thing that.

Troll - It is the "rigamarole", i.e. our Constitutional republic/democracy that we are protecting from the "terrorists out there" not your and my pathetic little lives. It is about more than that, and you and the rest of the quivering. terrified, quaking in your jackboot right wing friends need to get a grip on that.

[greenhouse]

There are DUMBASS out there people!

[emptywheel]

I'm sure the Chertoff trial balloon has crashed and burned--I rather think the attempt to move Chertoff to DOJ was an attempt to move him out of DHS without too much waves. He may yet get moved out of DHS, though.

As to Terwilliger and Olson, the Terwilliger mention makes me wonder whether Poppy hasn't had a larger hand in the gutting of the TX mafia than folks are talking about. It wouldn't be a Junior fuckup if Poppy didn't rush in with a plan to bail Junior out, after all. Perhaps, finally, Poppy has gotten ascendancy over Shrub. IIRC, Bush was in Maine the weekend Rove was ousted. And Poppy has fired Rove before, so there is precedent.

As to Olson, I don't know if Dems would pass him. Jim Comey did give him some credibility (Comey made him accompany him to the meeting with Card on March 11), but Olson does not appear on the list of people who were prepared to quit if BushCo went along with the program with no changes:

I believe the following individuals were prepared to resign: Jack Goldsmith, Patrick Philbin, Chuck Rosenberg, Daniel Levin, James Baker, David Ayres, David Israelite, Robert Mueller.

Add in the fact that it was Olson's group at Gibson Dunn that hired Debra Wong Yang, and it's not like he's entirely unassociated with the USA purge.

If Olson were nominated, look for it to happen on 9/11--with generous mention of his wife Barbara, who died in the plane that hit the Pentagon.

[JohnJ]

oooooh! I just saw the word "Terrorist"! I need to go give a Repug all my money and hope the Big Dick will save me!

But wait, what if the "terrorist" votes Repug? Does that mean he will be pardoned (or even investigated)?

One man's "terrorist" is another man's head of DHS or VP or AG.

I am so confused. (/endsnark)

[dalloway]

Yup, right, "There are terrorists out there, people!" There were Nazis out there, too, who decimated most of Europe and thousands of Soviet nuclear missiles pointed at us and somehow we managed to "go through all that rigamarole" and still saved our democracy. Only these morons have put forth the insane proposition that you have to destroy democracy (the Constitution) in order to save it!

[marksb]

If the Chertoff-for-AG trial balloon really crashed and burned, so what? Let's get him up there in the People's House for some serious oversight and ask these vital questions. With maybe a warning at the beginning of the hearing that more than, say, six "I don't recall" answers will net a contempt charge. Maybe even one charge for every six "I don't recall" answers. Or that each "I don't recall" answer will be noted and he _will_ appear in exactly one week to give a specific answer to that question, or a contempt charge will be issued for each unanswered question.
I'm tired of this shit.

[casual observer]

PJ, Wiki says not until 2005, so apparently this event was during Ridge's reign.

[casual observer]

EW,

Won't be 9/11, that would suck all the air from Petraeus' circus.

[marksb]

Didn't you-all know the "Constitution" is a vast left-wing conspiracy to hand America to our ungodly enemies?

You really need to hang out with christian home-schoolers more. As a non-religious reality-based home-schooling family we sometimes can't avoid meeting these people, and they are completely frigging whacko. Around-the-bend nut cases. I had a guy in my business yesterday telling me their main textbook for their educational curriculum is the bible. With a straight face. I started asking him questions about science, cultural sensitivity and awareness, civil rights, history, and so on, but gave it up as wasted breath, an exercise in communication that was sure to end in frustration for both parties. Weird.

[Alyx]

....geezus all I keep thinking about is the Orwell's book 1984...thought police, being monitored every sec...and the min you have a thought or a voice against the republic...here come the bad men in the leather and chains to gather you up and dispose of you nicely. It will be used for other than finding the real bad guys...it will be used to gather up those that speak out against the regime.....quivers run down my spine.

You know those red light camera's that's just a testing field...and a jump start and a darn good money maker. wink wink

[dead last]

Interesting that Assistant Attorney General Wan J. Kim, the head of the DOJ's Civil Rights Division, just retired in a hurry. Two steps ahead of Abu G. This whole thing stinks so bad.

[Neil]

Talk about a rigmarole. That damn Supreme Court is a waste of time. Why have nine justices "deliberate" legal principles sminshiples whe we could give the job to the AG or better yet, the Decider? Better yet, let's outsource SJC decisions to Booz Allen.

[Hugh]

While Chertoff might have deliberately bypassed privacy reviews, I think it is important to remember that he is one of the few people in Washington who would make Abu look like a good manager by comparison.

[lespool]

Marksb, (according to the literal interpretation of Genesis) did your businessman happen to explain why god forbade knowledge, demanding A&E's nudity in the Garden of Eden to fornicate incestuously with their children (what other way could there be) like animals that have no shame? Or why god would punish A&E for gaining MODESTY (aka naked shame)? Did god perceive modesty as evil knowledge? Or was modesty deemed an evil sin because A&E ingested knowledge (--- only to learn that god preferred them nude)? With an arsenal of biblical pornography, is there any wonder why prurient Christians are wallowing in prurient thoughts. Titillating stuff --- but with gods like these entertaining their children why on earth do creationists need devils?

[Jodi]

It is strange.

When something is a Presidential Edict, THN complains that it is illegal.
When a law is passed to do the something, THN complains that it is unconstitutional.
When the Supreme Court says something is ok, then THN complains that the Justices are wrong and worse.

The truth is that all that matters is the THN (progressive liberal) opinion on the something. That is your Law, your Consitution, your Creed.

Generally, we can assume that if Bush wants it or says it, then THN is against it.

Pretty simple kneejerk thinking.