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?”
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. 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.”
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.
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.
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.