The legal principle placing the burden of proof on accusers rather than the accused can be traced back to Second and Third Century Roman jurist, Julius Paulus Prudentissimus. Yet, this ancient concept, which forms the legal and moral cornerstone of the American judicial system, is quickly being undermined in the name of “national security.”
In August 2004, President George W. Bush created the National Counterterrorism Center (NCTC) via Executive Order 13354. The organization was then codified in December of that year in the Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA). The primary purpose of this secretive government agency is to serve as a clearinghouse for information related to terrorism, at home and abroad. Essentially, the NCTC takes data points and “connects the dots” to potential terrorist activities; all packaged in a massive database.
However, in a classic example of mission creep, over the last eight years the scope and power of the NCTC have slowly expanded. And, because this agency largely works in the shadows of the federal leviathan, neither the public nor its elected representatives in the Congress protested meaningfully.
In 2012, the operating guidelines for the NCTC were updated to include previously prohibited activities; prohibitions intelligence officials claimed had inhibited their ability to find and disseminate terror threats. For example, while the NCTC was previously required to immediately purge all records of “innocent” individuals upon discovery in the data sets being examined, the NCTC now retains this information for up to five years.
This expanded power now permits the officials at the NCTC to run dragnets of databases provided from federal, state or local sources in order to search for potential “patterns” of terrorist behavior. According to the Wall Street Journal, whose Freedom of Information (FOIA) requests unearthed much of the internal debate behind the changes to the guidelines, the chief privacy officer of the Department of Homeland Security called these new powers “a sea change in the way that the government interacts with the general public.” In a word, it is simply unconstitutional.
The change in the standards by which the NCTC now is able to troll data means every action a person takes that is logged into a government database, is subject to scrutiny for criminal behavior. Probable cause or reasonable suspicion – constitutional standards for invading a person’s privacy by government snooping -- are irrelevant in such a scenario. We are all presumed guilty of engaging in potential terrorist acts.
The implications are astounding. Innocent Americans now may come under investigation for perfectly legal shopping trips that suddenly appear suspicious according to the NCTC’s secret, predictive pattern-matching. A chemistry teacher’s purchase of new lab supplies, along with a box of pseudoephedrine for his cold, could have the Drug Enforcement Administration knocking on his door. Why? Simply because his name showed up on some database supplied to or accessed by the NCTC. “Probable cause?” Not needed; Uncle Sam is fighting “terrorism.”
Additionally, the NCTC’s status as a clearinghouse for information, and its broad powers of copying data sets from any government database, make it a nucleus of information across the United States, at the beck and call of bureaucrats at all levels of government.
For example, if it is not already doing so, the NCTC could begin collecting databases of gun purchases in all 50 states on the theory such data will be cross-referenced with known or suspected terror targets who have traveled to the United States. On the surface, this may appear to be a sound investigative tool; but in so doing, the NCTC would have a record of all U.S. gun owners who legally purchased a firearm. Such data would be invaluable if the government were ever to mandate a “gun buy-back” program, as was implemented in Australia in 1996.
Emails obtained by the Journal’s FOIA requests revealed heated, behind-closed-doors debate among officials in the Department of Homeland Security, the Department of Justice, and the White House. However, concerns raised by Homeland Security privacy watchdogs in a memo titled, "How Best to Express the Department's Privacy and Civil Liberties Concerns over Draft Guidelines Proposed by the Office of the Director of National Intelligence and the National Counterterrorism Center," were redacted. In spite of those serious privacy concerns, the Attorney General quickly signed the updated guidelines, according to the Journal.
Who knows what data on innocent Americans engaged in lawful activities will be scooped up, processed, scrutinized, data-based and disseminated by the NCTC. And, who knows if a simple shopping trip will earn the prying ears of a warrantless wiretap. The one thing we do know is that the protections against unwarranted government snooping into our private lives – heretofore guaranteed in the Constitution – become irrelevant and inapplicable. And this is a terrible and dangerous precedent to allow.