Republicans Prevented Congressional Oversight of Data-Mining Tactics

WASHINGTON, July 23, 2005 - Bush administration officials are opposing an effort in Congress under the antiterrorism law known as the USA Patriot Act to force the government to disclose its use of data-mining techniques in tracking suspects in terrorism cases.

As part of the vote in the House this week to extend major parts of the antiterrorism law permanently, lawmakers agreed to include a little-noticed provision that would require the Justice Department to report to Congress annually on government-wide efforts to develop and use data-mining technology to track intelligence patterns.

But a set of talking points distributed among Republican lawmakers as the measure was being debated warned that the Justice Department was opposed to the amendment because it would add to the list of "countless reports" already required by Congress and would take time away from more critical law enforcement activities.

The government’s use of vast public and private databases to mine for leads has produced several damaging episodes for the Bush administration, most notably in connection with the Total Information Awareness system developed by the Pentagon for tracking terror suspects and the Capps program of the Department of Homeland Security for screening airline passengers. Both programs were ultimately scrapped after public outcries over possible threats to privacy and civil liberties, and some Republicans and Democrats in Congress say they want to keep closer tabs on such computer operations to guard against abuse.

"We have wasted millions and millions of dollars on implementing database-mining activities which, when they became public, produced such an outrage they were canceled," Representative Howard L. Berman, a California Democrat who sponsored the amendment requiring a report to Congress, said this week during the House debate.

"We do not want to tie the hands of our security agencies in gathering this information," Mr. Berman said. "We simply want to provide a logical mechanism to gather the information so that the American people can feel more comfortable that what is being done is protected."

Justice Department officials said they were very pleased that the House decided Thursday to reauthorize the Patriot Act and to leave intact virtually all of its main counterterrorism powers. But the department fought fiercely to persuade lawmakers not to include in the bill the reporting requirement on data-mining operations, Congressional officials said.

The unsigned talking points, circulated by Republican House members, said the department opposed the amendment because it would be "burdensome, costly, and of little value, and could interfere with the daily law enforcement activities."

Attorney General Alberto R. Gonzales has earned plaudits from lawmakers in both parties for publicly pledging his cooperation with Congressional oversight functions and for providing more information to Congress after frequent complaints that his predecessor, John Ashcroft, had been uncooperative. But the talking points suggested that the Congressional requests have become an annoyance for at least some Justice Department officials.

The Justice Department has already had to produce "countless reports" to Congress on law enforcement and intelligence matters, said the document, which was provided to The New York Times by a Congressional official who supported the data-mining amendment.

"These reporting requirements require the department to direct resources away from important law enforcement duties and functions," the document said. "We oppose overbroad, costly, unrealistic reporting requirements." It also said the reporting requirement would create an "impossible job" for the attorney general in requiring that he tell Congress what all federal agencies are doing in the way of data mining.

Republican leaders who opposed the amendment also said it could tip off terrorists to the sources and methods that federal officials are using to track intelligence. Representative Peter Hoekstra, Republican of Michigan and chairman of the Intelligence Committee, said in an interview that "there’s no reason that we want to let Al Qaeda and the terrorists know what information we’re using and how we’re using it."

Mr. Berman and other supporters noted, however, that they had built into the amendment a means of protecting classified information by requiring the Justice Department to disclose it as part of a separate, confidential report.

Mr. Hoekstra said he had concerns that classified information would be shared with the judiciary committees instead of the intelligence committees under Mr. Berman’s amendment, but he said he hoped a compromise could still be worked out to allow the government to disclose the classified information to Congress.

Supporters of the reporting requirement have received support from an unlikely corner: Representative F. James Sensenbrenner Jr., Republican of Wisconsin, the chairman of the Judiciary Committee and one of the administration’s principal supporters in pushing for reauthorization of the antiterrorism law.

Mr. Sensenbrenner said that past data-mining programs by the F.B.I. and other agencies, even before the Sept. 11 attacks, had wasted tax dollars and "compromised the privacy of literally millions of Americans," and he said members of Congress had a right to know when the government was planning to use such technology in the future.

Despite the opposition of other Republican leaders, the House approved the amendment by a vote of 261 to 165. Tasia Scolinos, the spokeswoman for the Justice Department, said, "We are still reviewing the language of the bill to make sure we fully understand what the implications are from a budget perspective."

A similar measure on data-mining reporting passed the full Senate several weeks ago as part of an appropriations bill for the Department of Homeland Security, although it does not require the Justice Department to be the gatekeeper for all such government information. A much narrower requirement was put in place last year, requiring domestic security officials to report to Congress on their use of data mining, and that report is being prepared, officials said.