On August 14, 2011, Vance Gilbert, a middle-aged
African-American musician, was sitting on a plane at Logan Airport reading
about aviation in the 1940’s. He had spoken briefly with a flight attendant,
who asked him to stow his small fanny pack. He decided to put it under the seat
in front of him instead of in the overhead bin. Soon the plane left its place
in the take-off queue and returned to the gate, where state troopers and
Transportation Security Administration (TSA) agents boarded it and ordered him off.
Gilbert described his experience “Flying While Black
& Reading Antique Aviation Books,” in a letter to the ACLU. ”How damaged am I from this
experience? I’m not feeling particularly American. I’m angry, dumfounded,
frightened ... Is it now against the law to be dark and read a book about
historic aircraft?” [1]
What does it mean to “feel American” these days?
After a decade of the relentless drumbeat warning us to be alert to the
terrorist threat, the refrain that this is “the land of the free, home of the
brave” is ringing increasingly hollow. Royce Lamberth, a Reagan-appointed
district court judge who served as chief judge of the secret Foreign
Intelligence Surveillance Act (FISA) court between 1995 and 2002, told the American Library Association convention in June
2007: “We have to understand you can fight the war [on terrorism] and lose
everything if you have no civil liberties left when you get through fighting
the war.”
Is this the future that awaits us? Have we entirely
lost sight of the notion that “national security” should include securing those
attributes that we have long claimed define us as a people, including the
fundamental rights and protections of our constitutional system?
That is, of course, what the federal government says
it is doing. In its June 2011 National Strategy for Counterterrorism, the Obama
administration declared it is bringing “every tool of American power” to bear
on al-Qaeda, its “affiliates and adherents” while ensuring that it adheres to
the nation’s “core values” and “upholds the rule of law.” It should be noted
that although the Constitution requires the president to swear to “preserve,
protect and defend the Constitution of the United States” as his primary
responsibility, that duty takes second place in the National Strategy for
Counterterrorism. President Obama wrote in his introduction, “As President, I
have often said that I have no greater responsibility than protecting the
American people.”
In the name of protecting the “homeland,” President
Obama has determined that we must look forward and not back, and refused to hold anyone
accountable for the illegal actions of the Bush administration, from
warrantless National Security Agency (NSA) wiretapping to the authorization for
the use of torture. [2] There would be
no Church Committee on his watch. In May 2011, Democrats,
who, along with Senator Obama, had once demanded that the Patriot Act be
reformed, warned that if Congress didn’t immediately reauthorize three Patriot
Act provisions they would - in Senate Majority Leader Harry Reid’s words - “be giving terrorists the
opportunity to plot attacks against our country, undetected.”
In the name of protecting Americans, the president
has (among other things) put at least one American who has not been criminally
charged on an extrajudicial assassination list; signed an executive order
formalizing Guantanamo’s system of indefinite detention; announced the resumption of military commissions; turned Bagram prison into a new Guantanamo; endorsed new rules
which allow law enforcement officials to hold and question domestic terrorism suspects without
reading them their rights; embraced the FBI’s demand for encrypted
communications systems (such as that used by BlackBerry smartphones) to build
in backdoors for surveillance; called for an expansion of the
FBI’s ability to use National Security Letters to access electronic communications; and pushed for all
reports on all 750 million annual wire transfers of money (not just
transactions that appear “suspicious” or are over $10,000) to be put in a
federal database that can be accessed by law enforcement and used (according to
one Treasury Department official), “to establish baseline
numbers so we can then spot what’s abnormal and suspicious.” [3]
The transfer of the White House from Bush to Obama
has had no perceptible impact on the steady roll-out of the domestic
surveillance complex. Vast sums - an estimated $75 billion a year, according to
The Los Angeles Times - have gone largely to the
defense industry to provide the home front with war paraphernalia and to
develop technologies of control in what Glenn Greenwald terms “the decade’s biggest scam.” The
funds have continued to flow despite plentiful evidence of industry boondoggles
- for instance, as much as $200 million of the “Railhead” contract to fix the terrorist watch list
database was used to renovate a Boeing building. A Government Accountability
Office (GAO)
report on federal investment in information technology programs revealed
that “413 government IT projects totaling more than $25 billion in FY2008 alone
were “poorly planned, poorly performing, or both,” an assessment which was only
slightly improved in subsequent GAO reports. The funds have continued to flow
despite statistics that show how little basis there is to regard terrorism as
the nation’s major threat. Greenwald quotes the March 2011 Harper’s Index: “Number
of American civilians who died worldwide in terrorist attacks last year: 8 -
Minimum number who died after being struck by lightning: 29.”
The government would no doubt respond that these
statistics indicate that it is successfully protecting Americans and that
methods it has put in place to ensure the safety of the “homeland” have been
paying off. However, the evidence suggests that the FBI has been greatly
exaggerating its success in disrupting terrorist plots and getting convictions
for terrorism-related offenses. According to information provided by Syracuse
University’s Transactional Records Access Clearinghouse (TRAC), a large
percentage of “terrorist” prosecutions recommended by the FBI have nothing to
do with terrorism and lack sufficient evidence to bring them to court. [4]
As the domestic spying apparatus grows ever larger
and ever more intrusive, the number of prosecutions ending up in court declined
during the first decade of the 21st century - in fact, the total number of
prosecutions in 2008 was below what it had been before 9/11. The
substantial role played by informers in supplying ideas, funds and even weapons
to plotters has been revealed in case after case that has come to court. Of the
“terrorist cases” that do go to trial, a significant number do not involve
evidence of direct involvement in terrorism, but rather, charges like lying to
a federal official, immigration violations, document fraud, marriage fraud or
the elastic and much-abused charge of conspiracy.
But assume for a moment that the threat posed by
terrorists is indeed an existential danger tantamount to the one posed by
Soviet missiles pointed at the United States during the cold war. If that were
indeed the case, is the government on the right track in its pursuit of “total
information awareness”-style surveillance? The notion that the nation can be
made safe by trawling through databases in search of “suspicious patterns” was
vigorously debunked by an exhaustive multi-year study carried out by the
National Research Council, published in October 2008. The report says that
finding terrorists through data mining “is neither feasible as an objective nor
desirable” and that it will result in “ordinary law abiding citizens and
businesses” being wrongly treated as suspects.
The 2009 Christmas Day plot to bomb an airplane bound
for Detroit provides ample proof that amassing giant amounts of data is more
likely to lead to information overload and missed clues than to timely
intelligence analysis. Well before the 23-year-old Nigerian national Umar
Farouk Abdulmutallab boarded a plane with an explosive device in his underwear,
the National Counterterrorism Center’s Terrorist Identities Datamart
Environment (TIDE) system was seen to be suffering from fundamental design
flaws that made data in the system difficult or impossible to search, gave it a
tendency to crash and - in the words of Rep. Brad Miller (D-North Carolina) -
provided “no foolproof way to ensure that only good data gets into the TIDE
database and unqualified data stays out.” That is where Abdulmutallab’s name
and biographical data were deposited after his father, in November 2009, told
the US Embassy in Abuja, as well as CIA officials, about his son’s possible
ties to extremists in Yemen. There that information remained, along with
a rising tide of information about some 550,000 other identities. Despite the
fact that Abdulmutallab had been listed on a UK watch list in May 2009, and
despite intelligence about a plot involving a “Nigerian” trained in Yemen, his
name was never moved from the TIDE system to the master watch list in the
Terrorist Screening Center, maintained by the FBI.
On December 25, 2009, it was the action of passengers
on Northwest Airlines Flight 253 - and a faulty explosive - that disrupted
Abdulmutallab’s effort to blow up the plane, just as it was the action of
passengers - and a faulty fuse - that kept the “shoe bomber” Richard Reid from
bringing down American Airlines Flight 63 on December 22, 2001. In the only
other known terrorist plot (as opposed to FBI sting) that was foiled in the
process of being carried out, street vendors - and not the multitude of
surveillance cameras - alerted police to the smoking van in New York’s Times
Square on May 1, 2010.
There is plentiful evidence that many of the
intelligence problems that paved the way to 9/11 - such as turf issues
(including the FBI and New York Police Department/CIA rivalry, although this
may be “overblown”), too few translators, failure of analysis and
information overload - plague intelligence agencies today. Now, there are new
problems, among them, the time-consuming process of chasing down Suspicious
Activity Reports and tips from the public and training hundreds of thousands of
law enforcement agents to become intelligence gatherers and to access the
Information Sharing Environment; the “risks of ‘pipe-clogging’ as huge
amounts of information are ... gathered without apparent focus”; and expensive
information technology (IT) systems and programs that are not always
compatible, do not always work and need constant updating.
As the names of “suspects” rapidly multiply, so do
the counterterrorism wiretaps that the FBI has failed to review and share with
its partner agencies. In response to a Justice Department Inspector General report
that 47,000 hours of tapes had not been processed, then-FBI deputy director
John Pistole (now head of the TSA) responded that the backlog was not in fact
overwhelming, since the FBI had the assistance of “advanced technology” to
identify specific tapes to review. As for the backlog of 7.2 million electronic
files waiting for review in 2009, the FBI has
maintained that this was not a big problem, since “its analysts
increasingly used sophisticated computer searches of databases to find high
priority files rather than opening each individual file by hand.” Rather than
conducting discrete investigations based on reasonable suspicion of wrongdoing,
the FBI, NSA and other government agencies are putting a faith in data mining
that, in the words of NSA expert James
Bamford, “is highly overrated and has yet to produce anything even close to
the identity of real terrorists.”
Although DHS funding for surveillance technologies
may suffer significant cuts in the years ahead, there is little likelihood of
the federal government voluntarily putting the brakes on the surveillance
system, however flawed it proves to be. In the name of fighting terrorism, it
has created powerful machinery of social control and will no doubt demand even
greater powers to watch us if there is another major terrorist attack.
What, then, is to be done?
“Those who expect to reap the blessings of freedom
must ... undergo the fatigue of supporting it,” Thomas Paine wrote during the
American Revolutionary War, which his pamphlet, “Common Sense,” had helped
ignite. Over the past decade, that sentiment has fueled numerous campaigns,
mostly at the state and local level, where officials have been more responsive
to democratic engagement beyond the ballot box. The grassroots
organizing spearheaded by the Bill of Rights Defense Committee and the ACLU
led more than 400 towns and cities (including New York City) and some eight
state legislatures across the country to pass resolutions critical of the
Patriot Act. It alerted the public to the threats to civil liberties, built
coalitions across the political spectrum and helped generate a tumultuous
debate in Congress over the 16 provisions of the Act that were due to sunset at
the end of 2005. After the sunsets were extended, a reauthorized Patriot Act,
with only a few minor changes to old provisions and the addition of some
troubling new ones, was signed into law in March 2006, taking the wind out of
the sails of the resolution movement.
A similar coalition and grassroots effort succeeded
in getting state legislatures to resist the drivers license provisions of the
2005 REAL ID
Act, which was presented as a terrorism-fighting tool. As a result, the
merging of state databases that would lead to the creation of a National ID
card has been put on hold.
More recently, some local and state campaigns have
taken on specific technologies of the surveillance system that could be models
for organizing around the country. In Massachusetts, communities have taken a
stand against DHS-funded surveillance camera networks with some success. As more people are becoming aware of the
tracking potential of the Automatic License Plate Readers (ALPR) being supplied
to their police departments, they are gearing up, with the help of the ACLU, to
demand limits on
how location information can be retained and shared. The legislatures in Maine
and New Hampshire have successfully imposed limits on the use of ALPR data.
Other efforts challenge racial profiling, confront Islamophobia, and
seek to limit state and local involvement in federal law enforcement, including
the enforcement of immigration law. Across the country, a vigorous movement has
opposed the Immigration and Custom Enforcement’s (ICE) Secure Communities deportation
program, and has succeeded in getting some states and cities to declare their
opposition to it.
In Portland, Oregon, the City Council in 2005 removed
its police officers from the Joint Terrorism Task Force (JTTF) after the FBI
wrongly arrested Brandon Mayfield, a local lawyer and convert to Islam, in
connection with the Madrid train bombings. An alleged plot by a Somali-American
teenager to bomb a Christmas tree lighting ceremony last November led the City
Council to reconsider joining the JTTF. It did so in April 2011
after reportedly reaching a deal with the FBI that the involvement of its
police would be limited by Oregon laws and the state constitution and that
officers would be accountable to the Portland chief of police and civilian
elected officers except in cases where a “full
investigation” (as opposed to an assessment or preliminary investigation)
was underway. Although the agreement did not entirely please advocates for
civil liberties and there appears to be lingering uncertainty over the scope of
the collaboration, it marks a substantial improvement over other JTTF
arrangements. San Francisco is now considering pushing for a similar
agreement. JTTFs are also a target of nationwide opposition to FBI raids on peace and
justice activists.
There are also attempts underway to curb the powers
of data-collecting fusion centers. After an an effort led by the Texas
Motorcycle Rights Association, in June 2011 Texas became the first state to pass a fusion center privacy act. The Act
requires all fusion centers in the state to create a strong privacy policy that
would prevent the collection of noncriminal information based solely on
political, religious or social views. The Massachusetts legislature is
considering similar legislation.
What will it take for such piecemeal resistance to
make significant gains? Much depends on the willingness and courage of people
to get involved and bear the “fatigue” and risks that taking on the
surveillance state can entail. And much also depends on the persistence of
civil rights groups and the press in doing the painstaking FOIA requests and
litigation that can eventually shed light on the secretive practices of the
surveillance system, extract stories of how ordinary people are being impacted,
and fuel the demand for transparency, meaningful oversight and accountability.
The cost of inaction was spelled out by Judge Damon
Keith in August 2002, when he wrote in a decision opposing the government’s secret
deportation hearings of terrorist suspects: “Democracies die behind closed
doors.” Who among us wants that to stand as an epitaph for the catastrophic
9/11 attacks?
1.
The announcement on August 30, 2011, that
officials from the FBI, TSA, Boston Police, Air Marshal Service and other state
and federal agencies are going to be “housed together under one top-secret roof” at Logan Airport
as the nation’s first airport-based JTTF is likely to mean that a greater
number of passengers could be regarded as “suspicious” in the months ahead.
2.
After a two-year review of the CIA’s treatment
of detainees conducted by specially appointed prosecutor John Durham, Attorney
General Eric Holder announced that the Justice Department would only be pursuing two cases involving men who were tortured to death
in CIA custody, and that any intelligence officer who acted “in good faith”
within the scope of legal guidance at the time would not be prosecuted.
3.
The role of a flagged financial transaction in
the political downfall of former New York governor Eliot
Spitzer suggests that such a database could be a powerful weapon against any
politician (or anyone else) who challenges the status quo.
4.
According to TRAC, Justice Department records
indicate that from 2004 to 2008, the FBI and federal investigators recommended
the prosecution of 8,896 individuals that were said to be connected to
terrorism. But assistant US attorneys refused to bring any charges in nearly
6,000 of these cases.
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