Two operatives suing Defense Department

Two operatives suing Defense Department
The men, part of a clandestine program investigating Al Qaida long before 9/11, say they were denied access to their lawyers during congressional hearings on the program.

James Rosen, Star Tribune
WASHINGTON - Two operatives at the center of the Able Danger controversy have sued the Defense Department for denying them contact with their lawyers during closed congressional hearings and other probes of the covert intelligence program.

Army Lt. Col. Anthony Shaffer and J.D. Smith, among a dozen intelligence officers and contractors who worked on the clandestine program set up long before the Sept. 11, 2001, terrorist attacks to track Al-Qaida, accused the Pentagon and two of its largest components -- the Army and the Defense Intelligence Agency (DIA)-- of violating their First Amendment rights by blocking their access to legal counsel during the closed sessions.

The lawsuit, filed last week with the U.S. District Court for the District of Columbia, marks the first time that the incendiary claims at the center of the Able Danger saga have been made in court.

"Able Danger identified the Sept. 11, 2001, attack leader Mohammed Atta, and three of the 9/11 plot's 19 hijackers, as possible members of an Al-Qaida cell linked to the 1993 World Trade Center attack or its participants," the suit said.

Under an October 1999 secret directive from Gen. Hugh Shelton, then chairman of the Joint Chiefs of Staff, the program code-named Able Danger drew together the best computer operators from across the military and intelligence spectrum.

Their mission was to use high-powered software programs to bore into "open source" Internet data and connect otherwise disparate bits of information about Al-Qaida, then correlate that information with classified data to identify and locate the terrorist group's most active members.

Disputing a central finding

Shaffer, a Bronze Star recipient who fought undercover in Afghanistan, caused a stir in August when he stepped forward to say that he and other Able Danger operatives had identified Atta as long as 21 months before the Sept. 11 attacks.

That claim -- later supported by the Able Danger team's leader, Navy Capt. Scott Phillpott -- contradicted a central finding of the commission Congress had set up to probe the Sept. 11 attacks, which concluded that none of the hijackers had been known to U.S. authorities before the assault.

Congress has held two hearings on Able Danger -- by the Senate Judiciary Committee in September and by two subcommittees of the House Armed Services Committee last month.

Mark Zaid, a Washington lawyer representing Shaffer and Smith, said he was prevented from accompanying them when the Feb. 15 hearing went into closed session after several hours of open session. Smith, a former Indiana state trooper, was working for Orion Scientific Systems, a defense contractor in McLean, Va., when he joined the Able Danger team.

"The Department of Defense has accused him of lying and misconduct," Zaid said of Shaffer in an interview Friday. "I have to be there to defend him if any questions get out of line."

Cmdr. Gregory Hicks, a Pentagon spokesman, said he could not comment on a pending legal matter.

The denial of access violated the First Amendment right to counsel of Shaffer and Smith and also violated the Pentagon's internal regulations, the lawsuit alleges.

Massive database destroyed

Shelton created Able Danger "to develop an Information Operations Campaign Plan against transnational terrorism, specifically Al-Qaida," the lawsuit says. That description is more expansive than those provided by Shelton and other current and former Pentagon officials, who have described the program as experimental and limited to information gathering.

The massive database that Able Danger assembled was destroyed by the spring of 2001, after the program "had been officially and formally shut down for unknown reasons," according to the lawsuit. Three years later, it says, "the DIA improperly destroyed Able Danger and other files that Shaffer had maintained in his DIA workspace."

The lawsuit also chronicles attempts by Shaffer and Phillpott to tell the Sept. 11 commission about their earlier findings, including an alleged meeting between Shaffer and the panel's executive director, Philip Zelikow, in Bagram, Afghanistan, in October 2003. The commission's final report in July 2004 didn't mention Able Danger.

In the suit, Shaffer repeats his earlier assertions that the Defense Intelligence Agency retaliated against him for speaking publicly about Able Danger by revoking his security clearance over alleged personal and financial improprieties.

"The revocation of Shaffer's security clearance, particularly the speed at which it occurred, was, in part or in whole, in retaliation for Shaffer's public and/or private comments concerning Able Danger," the lawsuit says.

James Rosen is a correspondent in the Star Tribune Washington Bureau.