It is no secret that the CIA, FBI and the National Security Agency (NSA) bungled a multitude of opportunities to foil the 9/11 plot. There were no fewer than 12 intelligence reports in the three years preceding 9/11 that Osama bin Laden planned to use aircraft as weapons and crash them into buildings in Washington and New York City, information that was included in the president's daily intelligence brief.
In addition to the 2004 report by the 9/11 Commission, the often astonishing list of intelligence failings that contributed to the success of the attacks has been exhaustively documented in a 832-page Joint Intelligence Committee report dated December 11, 2002, with a declassified version released in July 2003; a 400-page report by the Justice Department's Inspector General that was made public in June 2005 after being kept secret for a year; and a secret report by the CIA's Inspector General, with a redacted 19-page executive summary finally released in August 2007. According to these documents, the failure to protect the country was caused by poor judgment, communication lapses, bureaucratic turf wars, insufficient training in legal procedures such as how to use the Foreign Intelligence Surveillance Act (FISA) to monitor suspected spies and terrorists and how and when to share information, simple incompetence, too few skilled analysts and language specialists, more information than could be processed in a timely fashion, and the fact that the responsibility for sharing information among the CIA, FBI, NSA and other federal agencies had not been clearly spelled out.
In his minority report to the Joint Intelligence Committee, Alabama Republican Sen. Richard Shelby urged agency leaders to be held accountable for the litany of failures. This was never done. Instead, well before the public was alerted to the extent of the multiple intelligence failures, the government embarked on a “fix” that bore little relation to the actual shortcomings outlined in the reports, greatly expanding surveillance powers at the expense of civil liberties, filling the information vacuum through mass arrests and interviews, and applying advanced technology to databases of information in hopes of detecting suspicious patterns and people.
Few Members of Congress asked whether such a response to 9/11 was necessary, or even advisable. With the exception of one senator and 66 House members, they lined up behind the far-ranging USA Patriot Act without debating or even reading the draft that had been transmitted to Congress a week after the attacks. Signed into law by President Bush on October 26, 2001, the Act (among many other things) expanded the FBI's authority to wiretap phones, monitor computers and have homes and offices secretly searched without a demonstration of probable cause of criminal wrongdoing. It enlarged FBI powers to issue National Security Letters (NSLs) – which were not reviewed by any court and came complete with a gag provision – to compel Internet service providers, banks, credit card companies, libraries and other businesses to turn over sensitive client information. With an order rubber-stamped by the Foreign Intelligence Surveillance Court, the FBI could also demand “any tangible thing” from an individual or organization, even if it had nothing to do with a terrorist suspect. The recipient of such an order was also gagged and faced jail time if he or she revealed its existence.
In the following years, Congress greatly enlarged the range of financial and other institutions that could be served with NSLs (nearly 200,000 of which were issued in the period 2003-2006 alone), further expanded the government's wiretap authority and watered down the 1978 FISA to permit the surveillance of individuals not affiliated with known international terrorist groups. Not content with the expanded powers given to the FBI by Congress, the Justice Department changed FBI guidelines in 2002, and again in 2008, to make it easier to spy on and infiltrate lawful domestic religious, civic and political activity without any suspicion of wrongdoing.
The NSA was meanwhile doing its own end run around the FISA proviso that a warrant be obtained before Americans could be wiretapped. Soon after 9/11, President Bush issued a secret executive order authorizing the NSA to conduct warrantless surveillance of Americans' international calls and emails with the cooperation of the telecommunications companies. When the illegal spying came to light late in 2005, the Bush administration insisted that it was a limited program targeting terrorists. But subsequent revelations indicated that the NSA had access to most data communications within, entering or leaving the United States, and that it had been conducting data mining on a massive scale without Congressional approval or oversight.
In the chaotic aftermath of 9/11, the need to overcome the information deficit motivated the FBI to react to more than 96,000 tips from the public by carrying out well over a thousand (it stopped keeping count at 1,200) “special interest” arrests, mainly of Muslims. The detainees were held in conditions of total secrecy, regarded as guilty until proven innocent and seen as possible pieces in a broad pattern of terrorist activity, in keeping with the government's “mosaic” theory. Not a single detainee was ever connected to 9/11.
Information was also extracted through the mass interviews in Arab and Muslim communities carried out by newly formed Joint Terrorism Task Forces, and the Special Registration program announced by Attorney General Ashcroft in June 2002. It required male visitors aged 16 and older from 25 Muslim and Middle Eastern countries and North Korea to come to Immigration and Naturalization Service (INS) offices on certain dates to be fingerprinted, photographed, interviewed, and have copies made of their bank statements, and re-register at various times thereafter, including when they left the country.
What use was all the information that was being amassed through the use of broad new surveillance powers, arrests and interviews? Navy Adm. John Poindexter, who came to national attention when he was convicted for his role in the Iran-Contra affair, believed it could be fashioned into a silver bullet with which to fight terrorism.
Within a few weeks of 9/11, Poindexter was stationed at the Defense Advanced Research Projects Agency (DARPA), the Pentagon's research arm, and given the funds to develop a program he had been thinking about ever since he went to the Reagan White House 20 years earlier to modernize its technology. Total Information Awareness (TIA), whose logo featured a pyramid with an all-seeing eye, would use powerful computers to search all electronic data compiled about everyone, everywhere to hunt for hidden patterns that could indicate terrorist activity.
TIA faced intense opposition when it was publicized late in 2002. After a public outcry forced Congress to stop funding the DARPA program, it secretly earmarked funds to shift TIA research to the NSA. By 2004, the Government Accountability Office (GAO) reported that there were at least 199 TIA-style data mining projects funded by the government that trawled through gigantic amounts of information in hopes of finding links or patterns to locate suspicious activity.
As we shall see in the next installment, the Total Information Awareness approach to fighting terrorism – and soon, to fighting crime itself – would transform both intelligence-gathering and policing, as a new architecture of surveillance was erected to protect homeland security and facilitate the hunt for “pre-crime.”