Two individuals formerly involved in a Defense Department data-mining project known as Able Danger were barred from testifying. They are Lt. Col. Anthony Shaffer, a former intelligence operations officer, and government contractor John Smith.
Shaffer received a letter from the Defense Intelligence Agency on Monday instructing him not to testify. His lawyer, Mark Zaid, spoke for him before the committee. His security clearance also was revoked at that time, said Rep. Curt Weldon, R-Pa., who also testified. Weldon was a catalyst for the hearing and is a champion of data-mining projects.
According to Shaffer's statements in press reports, Able Danger launched in 1999 to gather and analyzed publicly available information, as well as information bought from commercial data brokerages. Project members identified several of the Sept. 11, 2001, hijackers as potential terrorists before the attacks. But Defense Department lawyers prevented the intelligence unit from sharing the information with the FBI because they were concerned that the data-mining activity violated federal rules governing military intelligence activities on "U.S. persons."
The collective testimony of Wednesday's witnesses implied that federal privacy and civil-liberties regulations governing military intelligence operations may have been the reason that contractors were asked to destroy the information.
Erik Kleinsmith, the army's former chief of intelligence for its Land Information Warfare Activity unit, said Army Intelligence and Security Command General Counsel Tony Gentry told him to destroy the information. Kleinsmith said Gentry told him that under federal rules, any information collected by military intelligence operations that was doubtful must be destroyed within 90 days.
"Remember to delete the data -- or you'll go to jail," Kleinsmith recalled Gentry advising in a joking manner.
William Dugan, Defense's acting assistant to the secretary for intelligence oversight, said in written testimony, "If the intelligence component is unsure if the information they have obtained is proper for them to keep, the intelligence oversight rules allow them to temporarily retain the information for 90 days solely to determine whether it may be permanently retained."
When pressed by Judiciary Committee Chairman Arlen Specter, R-Pa., on why the information was destroyed, Dugan said, "I assume because of the 90-day rule and because the information didn't fit into the 13 categories" of allowable information for permanent retention.
Zaid said the current line of inquiry should not focus on assigning blame, but should instead encourage law enforcers to monitor the individuals who Able Danger identified in order to prevent further terrorism attacks and to allow future projects to go ahead.
"This isn't a partisan issue," he said. "There's enough blame to go around."