[Excerpts]
SHAFFER:
When the information from LIWA arrived at Tampa, Scott Philpott and his team
started looking at it critically, trying to figure out what this really meant;
based on other classified databases and lawyer review. The lawyers started
looking at the data as well for any legal issues regarding the fact that
this information came from “open sources”.
GSN:
Even before anyone at Able Danger made the decision to try to share its findings
with other agencies or departments?
SHAFFER:
Absolutely.
GSN:
Even while the data is still being gathered and analyzed?
SHAFFER:
Absolutely, because there were so many critical issues regarding this, simply
because it dealt with open sources. When an intelligence officer, like me,
looks at the data, does that somehow magically turn it into
“intelligence”? That was the critical issue. Somehow, there is
this interpretation that even open source information could be construed
as intelligence information because of its use. If Tony Shaffer, intelligence
officer, takes data off the Internet and I use it for a project does that
make it “intelligence” and subject it to all of the rules that
govern the oversight of intelligence information?
GSN:
Which legal organization within SOCOM is raising these questions?
SHAFFER:
We’re talking about the lawyers. All lawyers in DoD report back to the
DoD General Counsel. There’s no exception to that. Therefore, it
doesn’t matter if the lawyer sits in SOCOM or Defense Intelligence,
they all report back to the General Counsel.
GSN:
How big is the group of lawyers sitting in SOCOM?
SHAFFER:
I don’t know the exact size of the shop. I suspect it is probably between
eight to a dozen folks, for the headquarters itself.
GSN:
Do you remember how the battle over this issue began?
SHAFFER:
Oh, I do, because from Day One, they were worried about, “Where are
you getting this data from? What’s the source of the data? This is open
source. How can it be this detailed?”
There were a lot of interrogatives the lawyers were asking regarding the
sourcing of the information. I had no problem ever with oversight and answering
the hard questions. The concern was, again, this was open source, but are
we somehow violating some U.S. person’s rights by the fact we’re
bringing in [the information] and using it for intelligence purposes?
GSN:
Was it one of the staff lawyers or was it the head of SOCOM’s legal
department that was the principal mover and shaker of this?
SHAFFER:
I don’t know that answer, but the lawyer assigned to Able Danger was
the person who explained this to us.
GSN:
Was the resistance that you were getting to the methodology -- we haven’t
even gotten to the conclusions yet -- driven largely by this individual lawyer
or by his organization?
SHAFFER:
By the organization. I’m confident because I started getting problems
with this issue back in my headquarters in D.C., through the DIA lawyers.
I know they were talking to each other and it became a big issue that all
the lawyers in DoD were talking about. One of the investigators currently
looking into this, when I talked to him this last week, confirmed to having
the same problems even now. What open source collection really means, and
what level of oversight is appropriate to protect U.S. persons’ rights,
even when intelligence officers look at stuff off the open Internet. The
debate remains now.
GSN:
Did this issue get to the DoD general counsel?
SHAFFER:
Yes it did. I know for a fact that it did because I talked to the general
counsel lawyer who was the oversight for this issue. I know for a fact that
is was being looked at by the DoD general counsel.
GSN:
Did the General Counsel’s organization know about this matter?
SHAFFER:
Based on direct knowledge, I know they were looking at -- and dealing with
-- all these issues because a subsequent operation, the nickname of the operation
was Dorhawk Galley, which happened in the spring of 2001, before 9/11, I
had to talk to the general counsel about the same set of issues, because
this had to do with the Internet and U.S. persons and open source information.
I personally briefed George Tenet on this and I briefed the National Security
Council twice.
GSN:
On the issue of open sourcing?
SHAFFER:
On the legal set of issues regarding Dorhawk Galley, which were compatible
to the issues we were facing for Able Danger.
GSN:
Can you summarize the legal argument barring the use of open source information
against U.S. citizens or quasi-citizens?
SHAFFER:
There are two concerns. First, the government has to be careful about what
information it puts on the open Internet because, obviously, if they put
something out there, U.S. people can see it. Therefore, it has to be above
board.
Second issue, comparing that information to anything else out there regarding
open source information. If you put information out [on the Internet], you
have the reasonable belief, that it’s not going to be protected.
That’s my judgment. If you put something on the Internet, such as a
blog statement, it isn’t protected, it’s open. Does the government
have the right to look at that and the use it against you if they so choose?
That is one of the fundamental issues. Because although it’s not protected,
and it’s out there, does the government have the right to do something
with it?
What can you look at and not look at regarding U.S. citizens? That was one
of the issues we were dealing with regarding these open Internet searches,
which the lawyers were concerned about.
GSN:
What kind of records would be referred to as on the open Internet?
SHAFFER:
For example, corporate records. Say a company talks about its business activities
overseas and lists them. If I take that information, as an intelligence officer,
and say “Gee, I may want to look at this for some intelligence operation
down the road.” I take it, print it off and put it in a file. Any file
I keep as an intelligence officer is subject to oversight.
GSN:
Say, for example, hoovers.com, which presents all kinds of corporate financial
information, lists every overseas office of every U.S. publicly-traded company.
Now, you look at this and say “Hey, there are 37 companies that have
an office in Lagos, Nigeria.”
SHAFFER:
Right. You’re spot on.
GSN:
You’re saying that someone on the legal side of the intelligence community
might have said, “We don’t even have the right to do that. You
can’t gather that information off the Internet, which is publicly out
there, and use it in an intelligence manner.”
SHAFFER:
You hit the nub of it, absolutely. That’s what they were concerned about.
GSN:
What was the Able Danger program’s response to that legal argument?
SHAFFER:
Well, we aren’t doing intelligence collection operations, we’re
doing operational planning. Therefore, whatever we’re doing should not
fall under intelligence guidelines.
GSN:
That was sort of a stretch, wasn’t it? Here you have this ultra-secret
and important intelligence mission which you claim is happening under operational
planning, but wasn’t that somewhat bogus?
SHAFFER:
No, it wasn’t bogus. It was the operational focus. The idea was that
we were trying to use this information for purposes not of intelligence
collection. Obviously, we wanted to do it to confirm or vet information,
but I wasn’t using this to plan to go after some U.S. citizen. That
was not the purpose.
The purpose was to look at linkages. That’s what we were doing. So,
any given byte of information probably wouldn’t even have been looked
at [individually] because it didn’t fit the criteria of our search.
There was [vast amounts] of information. Out of all that, we’re only
going to look for things that are relevant to the target, Al Qaeda.
If I take information off the Internet and put it into a file, I’m doing
that electronically, with the database. That was the issue. You’re doing
it electronically. The argument was, “When you take all this information
off the Internet, how do you then protect U.S. citizen rights?” The
lawyers were looking at all the information that was coming in. They had
to vet everything. They were personally looking at it and had a validation
process.
GSN:
What would they have pointed to and said, “This is a violation. We
can’t allow you to do this”?
SHAFFER:
That’s where the whole issue comes in of lawyers saying, “You
can’t look at these guys, who are suspected as being terrorists.”
All this information is coming in. They had this vetting process. And then,
all this information comes to us regarding these [suspected terrorists] who
were here legally, as part of these data runs. But, the lawyers are now saying,
“You can’t look at that. We’re going to put that in the ‘U.S
person’ category that you can’t look at.”
There is a vetting process. They’re trying to protect U.S citizens’
rights. I briefed the general counsel on this. I briefed George Tenet on
this. The problem was, where do you draw that line regarding protection of
U.S. persons -- between U.S. citizens, such as yourself, and these other
folks who are here legally, but not technically deserving of the same
protections? That’s the kernel of the issue.
