Entries Tagged "PATRIOT Act"

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Top Ten Privacy Stories

The Electronic Privacy Information Information Center (EPIC) lists its Top Ten Privacy Stories of 2005:

  • PATRIOT Act Reauthorization Falls Short
  • Security Breaches on the Rise
  • Defense Department Ignores Privacy Laws
  • In Federal Court, a Good E-mail Privacy Decision
  • Privacy for Voters
  • State Department Drops Hi-Tech Passport Plan, But Problems Remain
  • NSA Domestic Spying Disclosed
  • Problems Remain with Travel Screening Plans
  • Credit Freeze Laws on the Rise
  • Surveillance of Activists Revealed

And its Top Ten Issues to Watch in 2006:

  • Nomination of Samuel Alito
  • Future of REAL ID
  • “Welcome to the US. Fingerprints, please.”
  • Workplace Privacy
  • Student Privacy
  • Location Tracking
  • New Revelations About Government Datamining
  • Wiretapping the Internet
  • DNA Databases and Genetic Privacy Legislation
  • Data Broker Regulation

More information on each item behind the link. I don’t think the lists are in any order.

Posted on January 2, 2006 at 7:26 AMView Comments

The Security Threat of Unchecked Presidential Power

This past Thursday, the New York Times exposed the most significant violation of federal surveillance law in the post-Watergate era. President Bush secretly authorized the National Security Agency to engage in domestic spying, wiretapping thousands of Americans and bypassing the legal procedures regulating this activity.

This isn’t about the spying, although that’s a major issue in itself. This is about the Fourth Amendment protections against illegal search. This is about circumventing a teeny tiny check by the judicial branch, placed there by the legislative branch, placed there 27 years ago — on the last occasion that the executive branch abused its power so broadly.

In defending this secret spying on Americans, Bush said that he relied on his constitutional powers (Article 2) and the joint resolution passed by Congress after 9/11 that led to the war in Iraq. This rationale was spelled out in a memo written by John Yoo, a White House attorney, less than two weeks after the attacks of 9/11. It’s a dense read and a terrifying piece of legal contortionism, but it basically says that the president has unlimited powers to fight terrorism. He can spy on anyone, arrest anyone, and kidnap anyone and ship him to another country … merely on the suspicion that he might be a terrorist. And according to the memo, this power lasts until there is no more terrorism in the world.

Yoo starts by arguing that the Constitution gives the president total power during wartime. He also notes that Congress has recently been quiescent when the president takes some military action on his own, citing President Clinton’s 1998 strike against Sudan and Afghanistan.

Yoo then says: “The terrorist incidents of September 11, 2001, were surely far graver a threat to the national security of the United States than the 1998 attacks. … The President’s power to respond militarily to the later attacks must be correspondingly broader.”

This is novel reasoning. It’s as if the police would have greater powers when investigating a murder than a burglary.

More to the point, the congressional resolution of Sept. 14, 2001, specifically refused the White House’s initial attempt to seek authority to preempt any future acts of terrorism, and narrowly gave Bush permission to go after those responsible for the attacks on the Pentagon and World Trade Center.

Yoo’s memo ignored this. Written 11 days after Congress refused to grant the president wide-ranging powers, it admitted that “the Joint Resolution is somewhat narrower than the President’s constitutional authority,” but argued “the President’s broad constitutional power to use military force … would allow the President to … [take] whatever actions he deems appropriate … to pre-empt or respond to terrorist threats from new quarters.”

Even if Congress specifically says no.

The result is that the president’s wartime powers, with its armies, battles, victories, and congressional declarations, now extend to the rhetorical “War on Terror”: a war with no fronts, no boundaries, no opposing army, and — most ominously — no knowable “victory.” Investigations, arrests, and trials are not tools of war. But according to the Yoo memo, the president can define war however he chooses, and remain “at war” for as long as he chooses.

This is indefinite dictatorial power. And I don’t use that term lightly; the very definition of a dictatorship is a system that puts a ruler above the law. In the weeks after 9/11, while America and the world were grieving, Bush built a legal rationale for a dictatorship. Then he immediately started using it to avoid the law.

This is, fundamentally, why this issue crossed political lines in Congress. If the president can ignore laws regulating surveillance and wiretapping, why is Congress bothering to debate reauthorizing certain provisions of the Patriot Act? Any debate over laws is predicated on the belief that the executive branch will follow the law.

This is not a partisan issue between Democrats and Republicans; it’s a president unilaterally overriding the Fourth Amendment, Congress and the Supreme Court. Unchecked presidential power has nothing to do with how much you either love or hate George W. Bush. You have to imagine this power in the hands of the person you most don’t want to see as president, whether it be Dick Cheney or Hillary Rodham Clinton, Michael Moore or Ann Coulter.

Laws are what give us security against the actions of the majority and the powerful. If we discard our constitutional protections against tyranny in an attempt to protect us from terrorism, we’re all less safe as a result.

This essay was published today as an op-ed in the Minneapolis Star Tribune.

Here’s the opening paragraph of the Yoo memo. Remember, think of this power in the hands of your least favorite politician when you read it:

You have asked for our opinion as to the scope of the President’s authority to take military action in response to the terrorist attacks on the United States on September 11, 2001. We conclude that the President has broad constitutional power to use military force. Congress has acknowledged this inherent executive power in both the War Powers Resolution, Pub. L. No. 93-148, 87 Stat. 555 (1973), codified at 50 U.S.C. § 1541-1548 (the “WPR”), and in the Joint Resolution passed by Congress on September 14, 2001, Pub. L. No. 107-40, 115 Stat. 224 (2001). Further, the President has the constitutional power not only to retaliate against any person, organization, or State suspected of involvement in terrorist attacks on the United States, but also against foreign States suspected of harboring or supporting such organizations. Finally, the President may deploy military force preemptively against terrorist organizations or the States that harbor or support them, whether or not they can be linked to the specific terrorist incidents of September 11.

There’s a similar reasoning in the Braybee memo, which was written in 2002 about torture:

In a series of opinions examining various legal questions arising after September 11, we have examined the scope of the President’s Commander-in-Chief power. . . . Foremost among the objectives committed by the Constitution to [the President’s] trust. As Hamilton explained in arguing for the Constitution’s adoption, “because the circumstances which may affect the public safety are not reducible within certain limits, it must be admitted, as a necessary consequence, that there can be no limitation of that authority, which is to provide for the defense and safety of the community, in any manner essential to its efficacy.”

. . . [The Constitution’s] sweeping grant vests in the President an unenumerated Executive power . . . The Commander in Chief power and the President’s obligation to protect the Nation imply the ancillary powers necessary to their successful exercise.

NSA watcher James Bamford points out how this action was definitely considered illegal in 1978, which is why FISA was passed in the first place:

When the Foreign Intelligence Surveillance Act was created in 1978, one of the things that the Attorney General at the time, Griffin Bell, said — he testified before the intelligence committee, and he said that the current bill recognizes no inherent power of the President to conduct electronic surveillance. He said, “This bill specifically states that the procedures in the bill are the exclusive means by which electronic surveillance may be conducted.” In other words, what the President is saying is that he has these inherent powers to conduct electronic surveillance, but the whole reason for creating this act, according to the Attorney General at the time, was to prevent the President from using any inherent powers and to use exclusively this act.

Also this from Salon, discussing a 1952 precedent:

Attorney General Alberto Gonzales argues that the president’s authority rests on two foundations: Congress’s authorization to use military force against al-Qaida, and the Constitution’s vesting of power in the president as commander-in-chief, which necessarily includes gathering “signals intelligence” on the enemy. But that argument cannot be squared with Supreme Court precedent. In 1952, the Supreme Court considered a remarkably similar argument during the Korean War. Youngstown Sheet & Tube Co. v. Sawyer, widely considered the most important separation-of-powers case ever decided by the court, flatly rejected the president’s assertion of unilateral domestic authority during wartime. President Truman had invoked the commander-in-chief clause to justify seizing most of the nation’s steel mills. A nationwide strike threatened to undermine the war, Truman contended, because the mills were critical to manufacturing munitions.

The Supreme Court’s rationale for rejecting Truman’s claims applies with full force to Bush’s policy. In what proved to be the most influential opinion in the case, Justice Robert Jackson identified three possible scenarios in which a president’s actions may be challenged. Where the president acts with explicit or implicit authorization from Congress, his authority “is at its maximum,” and will generally be upheld. Where Congress has been silent, the president acts in a “zone of twilight” in which legality “is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.” But where the president acts in defiance of “the expressed or implied will of Congress,” Justice Jackson maintained, his power is “at its lowest ebb,” and his actions can be sustained only if Congress has no authority to regulate the subject at all.

In the steel seizure case, Congress had considered and rejected giving the president the authority to seize businesses in the face of threatened strikes, thereby placing President Truman’s action in the third of Justice Jackson’s categories. As to the war power, Justice Jackson noted, “The Constitution did not contemplate that the Commander in Chief of the Army and Navy will constitute him also Commander in Chief of the country, its industries, and its inhabitants.”

Like Truman, President Bush acted in the face of contrary congressional authority. In FISA, Congress expressly addressed the subject of warrantless wiretaps during wartime, and limited them to the first 15 days after war is declared. Congress then went further and made it a crime, punishable by up to five years in jail, to conduct a wiretap without statutory authorization.

The Attorney General said that the Administration didn’t try to do this legally, because they didn’t think they could get the law passed. But don’t worry, an NSA shift supervisor is acting in the role of a FISC judge:

GENERAL HAYDEN: FISA involves the process — FISA involves marshaling arguments; FISA involves looping paperwork around, even in the case of emergency authorizations from the Attorney General. And beyond that, it’s a little — it’s difficult for me to get into further discussions as to why this is more optimized under this process without, frankly, revealing too much about what it is we do and why and how we do it.

Q If FISA didn’t work, why didn’t you seek a new statute that allowed something like this legally?

ATTORNEY GENERAL GONZALES: That question was asked earlier. We’ve had discussions with members of Congress, certain members of Congress, about whether or not we could get an amendment to FISA, and we were advised that that was not likely to be — that was not something we could likely get, certainly not without jeopardizing the existence of the program, and therefore, killing the program. And that — and so a decision was made that because we felt that the authorities were there, that we should continue moving forward with this program.

Q And who determined that these targets were al Qaeda? Did you wiretap them?

GENERAL HAYDEN: The judgment is made by the operational work force at the National Security Agency using the information available to them at the time, and the standard that they apply — and it’s a two-person standard that must be signed off by a shift supervisor, and carefully recorded as to what created the operational imperative to cover any target, but particularly with regard to those inside the United States.

Q So a shift supervisor is now making decisions that a FISA judge would normally make? I just want to make sure I understand. Is that what you’re saying?

Senators from both parties are demanding hearings:

Democratic and Republican calls mounted on Tuesday for U.S. congressional hearings into President George W. Bush’s assertion that he can order warrantless spying on Americans with suspected terrorist ties.

Vice President Dick Cheney predicted a backlash against critics of the administration’s anti-terrorism policies. He also dismissed charges that Bush overstepped his constitutional bounds when he implemented the recently disclosed eavesdropping shortly after the September 11 attacks.

Republican Sens. Chuck Hagel of Nebraska and Olympia Snowe of Maine joined Democratic Sens. Carl Levin of Michigan, Dianne Feinstein of California and Ron Wyden of Oregon in calling for a joint investigation by the Senate Intelligence and Judiciary Committees into whether the government eavesdropped “without appropriate legal authority.”

Senate Minority Leader Harry Reid, a Nevada Democrat, said he would prefer separate hearings by the Judiciary Committee, which has already promised one, and Intelligence Committee.

This New York Times paragraph is further evidence that we’re talking about an Echelon-like surveillance program here:

Administration officials, speaking anonymously because of the sensitivity of the information, suggested that the speed with which the operation identified “hot numbers” – the telephone numbers of suspects – and then hooked into their conversations lay behind the need to operate outside the old law.

And some more snippets.

There are about a zillion more URLs I could list here. I posted these already, but both Oren Kerr and
Daniel Solove have good discussions of the legal issues. And here are three legal posts by Marty Lederman. A summary of the Republican arguments. Four good blog posts. Spooks comment on the issue.

And this George W. Bush quote (video and transcript), from December 18, 2000, is just too surreal not to reprint: “If this were a dictatorship, it’d be a heck of a lot easier, just so long as I’m the dictator.”

I guess 9/11 made it a heck of a lot easier.

Look, I don’t think 100% of the blame belongs to President Bush. (This kind of thing was also debated under Clinton.) The Congress, Democrats included, have allowed the Executive to gather power at the expense of the other two branches. This is the fundamental security issue here, and it’ll be an issue regardless of who wins the White House in 2008.

EDITED TO ADD (12/21): FISC Judge James Robertson resigned yesterday:

Two associates familiar with his decision said yesterday that Robertson privately expressed deep concern that the warrantless surveillance program authorized by the president in 2001 was legally questionable and may have tainted the FISA court’s work.

….Robertson indicated privately to colleagues in recent conversations that he was concerned that information gained from warrantless NSA surveillance could have then been used to obtain FISA warrants. FISA court Presiding Judge Colleen Kollar-Kotelly, who had been briefed on the spying program by the administration, raised the same concern in 2004 and insisted that the Justice Department certify in writing that it was not occurring.

“They just don’t know if the product of wiretaps were used for FISA warrants — to kind of cleanse the information,” said one source, who spoke on the condition of anonymity because of the classified nature of the FISA warrants. “What I’ve heard some of the judges say is they feel they’ve participated in a Potemkin court.”

More generally, here’s some of the relevant statutes and decisions:

Foreign Intelligence Surveillance Act (FISA)” (1978).

Authorization for Use of Military Force (2001),” the law authorizing Bush to use military force against the 9/11 terrorists.

United States v. United States District Court,” 407 U.S. 297 (1972), a national security surveillance case that turned on the Fourth Amendment.

Hamdi v. Rumsfeld,” 124 S. Ct. 981 (2004), the recent Supreme Court case examining the president’s powers during wartime.

[The Government’s position] cannot be mandated by any reasonable view of the separation of powers, as this view only serves to condense power into a single branch of government. We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens. Youngstown Steel and Tube, 343 U.S. at 587. Whatever power the United States Constitution envisions for the Executive in times of conflict with other Nations or enemy organizations, it most assuredly envisions a role for all three branches when individual liberties are at stake.

And here are a bunch of blog posts:

Daniel Solove: “Hypothetical: What If President Bush Were Correct About His Surveillance Powers?.”

Seth Weinberger: “Declaring War and Executive Power.”

Juliette Kayyem: “Wiretaps, AUMF and Bush’s Comments Today.”

Mark Schmitt: “Alito and the Wiretaps.”

Eric Muller: “Lawless Like I Said.”

Cass Sunstein: “Presidential Wiretap.”

Spencer Overton: “Judge Damon J. Keith: No Warrantless Wiretaps of Citizens.”

Will Baude: “Presidential Authority, A Lament.”

And news articles:

Washington Post: “Clash Is Latest Chapter in Bush Effort to Widen Executive Power.”

The clash over the secret domestic spying program is one slice of a broader struggle over the power of the presidency that has animated the Bush administration. George W. Bush and Dick Cheney came to office convinced that the authority of the presidency had eroded and have spent the past five years trying to reclaim it.

From shielding energy policy deliberations to setting up military tribunals without court involvement, Bush, with Cheney’s encouragement, has taken what scholars call a more expansive view of his role than any commander in chief in decades. With few exceptions, Congress and the courts have largely stayed out of the way, deferential to the argument that a president needs free rein, especially in wartime.

New York Times: Spying Program Snared U.S. Calls.”

A surveillance program approved by President Bush to conduct eavesdropping without warrants has captured what are purely domestic communications in some cases, despite a requirement by the White House that one end of the intercepted conversations take place on foreign soil, officials say.

Posted on December 21, 2005 at 6:50 AM

Limitations on Police Power Shouldn't Be a Partisan Issue

In response to my op ed last week, the Minneapolis Star Tribune published this letter:

THE PATRIOT ACT

Where are the abuses?

The Nov. 22 commentary “The erosion of freedom” is yet another example of how liberal hysteria is conspicuously light on details.

While the Patriot Act may allow for potential abuses of power, flaws undoubtedly to be fine-tuned over time, the “erosion of freedom” it may foster absolutely pales in comparison to the freedom it is designed to protect in the new age of global terrorism.

I have yet to read of one incident of infringement of any private citizen’s rights as a direct result of the Patriot Act — nor does this commentary point out any, either.

While I’m a firm believer in the Fourth Amendment, I also want our law enforcement to have the legal tools necessary, unfettered by restrictions to counter liberals’ paranoid fixation on “fascism,” in order to combat the threat that terrorism has on all our freedoms.

I have enough trust in our free democratic society and the coequal branches of government that we won’t evolve into a sinister “police state,” as ominously predicted by this commentary.

CHRIS GARDNER, MINNEAPOLIS

Two things strike me in this letter. The first is his “I have yet to read of one incident of infringement of any private citizen’s rights as a direct result of the Patriot Act….” line. It’s just odd. A simple Googling of “patriot act abuses” comes up with almost 3 million hits, many of them pretty extensive descriptions of Patriot Act abuses. Now, he could decide that none of them are abuses. He could choose not to believe any of them are true. He could choose to believe, as he seems to, that it’s all in some liberal fantasy. But to simply not even bother reading about them…isn’t he just admitting that he’s not qualified to have an opinion on the matter? (There’s also that “direct result” weaseling, which I’m not sure what to make of either. Are infringements that are an indirect result of the Patriot Act somehow better?)

I suppose that’s just being petty, though.

The more important thing that strikes me is how partisan he is. He writes about “liberal hysteria” and “liberals’ paranoid fixation on ‘fascism.'” In his last paragraph, he writes about his trust in government.

Most laws don’t matter when we all trust each other. Contracts are rarely if ever looked at if the parties trust each other. The whole point of laws and contracts is to protect us when the parties don’t trust each other. It’s not enough that this guy, and everyone else with this opinion, trusts the Bush government to judiciously balance his rights with the need to fight global terrorism. This guy has to believe that when the Democrats are in power that his rights are just as protected: that he is just as secure against police and government abuse.

Because that’s how you should think about laws, contracts, and government power. When reading through a contract, don’t think about how much you like the other person who’s signing it; imagine how the contract will protect you if you become enemies. When thinking about a law, imagine how it will protect you when your worst nightmare — Hillary Clinton as President, Janet Reno as Attorney General, Howard Dean as something-or-other, and a Democratic Senate and House — is in power.

Laws and contracts are not written for one political party, or for one side. They’re written for everybody. History teaches us this lesson again and again. In the United States, the Bill of Rights was opposed on the grounds that it wasn’t necessary; the Alien and Sedition Act of 1798 proved that it was, only nine years later.

It makes no sense to me that this is a partisan issue.

Posted on December 2, 2005 at 6:11 AMView Comments

Surveillance and Oversight

Christmas 2003, Las Vegas. Intelligence hinted at a terrorist attack on New Year’s Eve. In the absence of any real evidence, the FBI tried to compile a real-time database of everyone who was visiting the city. It collected customer data from airlines, hotels, casinos, rental car companies, even storage locker rental companies. All this information went into a massive database — probably close to a million people overall — that the FBI’s computers analyzed, looking for links to known terrorists. Of course, no terrorist attack occurred and no plot was discovered: The intelligence was wrong.

A typical American citizen spending the holidays in Vegas might be surprised to learn that the FBI collected his personal data, but this kind of thing is increasingly common. Since 9/11, the FBI has been collecting all sorts of personal information on ordinary Americans, and it shows no signs of letting up.

The FBI has two basic tools for gathering information on large groups of Americans. Both were created in the 1970s to gather information solely on foreign terrorists and spies. Both were greatly expanded by the USA Patriot Act and other laws, and are now routinely used against ordinary, law-abiding Americans who have no connection to terrorism. Together, they represent an enormous increase in police power in the United States.

The first are FISA warrants (sometimes called Section 215 warrants, after the section of the Patriot Act that expanded their scope). These are issued in secret, by a secret court. The second are national security letters, less well known but much more powerful, and which FBI field supervisors can issue all by themselves. The exact numbers are secret, but a recent Washington Post article estimated that 30,000 letters each year demand telephone records, banking data, customer data, library records, and so on.

In both cases, the recipients of these orders are prohibited by law from disclosing the fact that they received them. And two years ago, Attorney General John Ashcroft rescinded a 1995 guideline that this information be destroyed if it is not relevant to whatever investigation it was collected for. Now, it can be saved indefinitely, and disseminated freely.

September 2005, Rotterdam. The police had already identified some of the 250 suspects in a soccer riot from the previous April, but most were unidentified but captured on video. In an effort to help, they sent text messages to 17,000 phones known to be in the vicinity of the riots, asking that anyone with information contact the police. The result was more evidence, and more arrests.

The differences between the Rotterdam and Las Vegas incidents are instructive. The Rotterdam police needed specific data for a specific purpose. Its members worked with federal justice officials to ensure that they complied with the country’s strict privacy laws. They obtained the phone numbers without any names attached, and deleted them immediately after sending the single text message. And their actions were public, widely reported in the press.

On the other hand, the FBI has no judicial oversight. With only a vague hinting that a Las Vegas attack might occur, the bureau vacuumed up an enormous amount of information. First its members tried asking for the data; then they turned to national security letters and, in some cases, subpoenas. There was no requirement to delete the data, and there is every reason to believe that the FBI still has it all. And the bureau worked in secret; the only reason we know this happened is that the operation leaked.

These differences illustrate four principles that should guide our use of personal information by the police. The first is oversight: In order to obtain personal information, the police should be required to show probable cause, and convince a judge to issue a warrant for the specific information needed. Second, minimization: The police should only get the specific information they need, and not any more. Nor should they be allowed to collect large blocks of information in order to go on “fishing expeditions,” looking for suspicious behavior. The third is transparency: The public should know, if not immediately then eventually, what information the police are getting and how it is being used. And fourth, destruction. Any data the police obtains should be destroyed immediately after its court-authorized purpose is achieved. The police should not be able to hold on to it, just in case it might become useful at some future date.

This isn’t about our ability to combat terrorism; it’s about police power. Traditional law already gives police enormous power to peer into the personal lives of people, to use new crime-fighting technologies, and to correlate that information. But unfettered police power quickly resembles a police state, and checks on that power make us all safer.

As more of our lives become digital, we leave an ever-widening audit trail in our wake. This information has enormous social value — not just for national security and law enforcement, but for purposes as mundane as using cell-phone data to track road congestion, and as important as using medical data to track the spread of diseases. Our challenge is to make this information available when and where it needs to be, but also to protect the principles of privacy and liberty our country is built on.

This essay originally appeared in the Minneapolis Star-Tribune.

Posted on November 22, 2005 at 6:06 AMView Comments

The FBI is Spying on Us

From TalkLeft:

The Washington Post reports that the FBI has been obtaining and reviewing records of ordinary Americans in the name of the war on terror through the use of national security letters that gag the recipients.

Merritt’s entire post is worth reading.

The closing:

The ACLU has been actively litigating the legality of the National Security Letters. Their latest press release is here.

Also, the ACLU is less critical than I am of activity taking place in Congress now where conferees of the Senate and House are working out a compromise version of Patriot Act extension legislation that will resolve differences in versions passed by each in the last Congress. The ACLU reports that the Senate version contains some modest improvements respecting your privacy rights while the House version contains further intrusions. There is still time to contact the conferees. The ACLU provides more information and a sample letter here.

History shows that once new power is granted to the government, it rarely gives it back. Even if you wouldn’t recognize a terrorist if he were standing in front of you, let alone consort with one, now is the time to raise your voice.

EDITED TO ADD: Here’s a good personal story of someone’s FBI file.

EDITED TO ADD: Several people have written to tell me that the CapitolHillBlue website, above, is not reliable. I don’t know one way or the other, but consider yourself warned.

Posted on November 7, 2005 at 3:13 PMView Comments

FBI Abuses of the USA Patriot Act

Since the Patriot Act was passed, administration officials have repeatedly assured the public and Congress that there have not been improper uses of that law. As recently as April 27, 2005, Attorney General Alberto Gonzales testified that “there has not been one verified case of civil liberties abuse.”

However:

Documents obtained by EPIC from the FBI describe thirteen cases of possible misconduct in intelligence investigations. The case numbering suggests that there were at least 153 investigations of misconduct at the FBI in 2003 alone.

These documents reveal that the Intelligence Oversight Board has investigated many instances of alleged abuse, and perhaps most critically, may not have disclosed these facts to the Congressional oversight committees charged with evaluating the Patriot Act.

According to The Washington Post

In one case, FBI agents kept an unidentified target under surveillance for at least five years — including more than 15 months without notifying Justice Department lawyers after the subject had moved from New York to Detroit. An FBI investigation concluded that the delay was a violation of Justice guidelines and prevented the department “from exercising its responsibility for oversight and approval of an ongoing foreign counterintelligence investigation of a U.S. person.”

In other cases, agents obtained e-mails after a warrant expired, seized bank records without proper authority and conducted an improper “unconsented physical search,” according to the documents.

Although heavily censored, the documents provide a rare glimpse into the world of domestic spying, which is governed by a secret court and overseen by a presidential board that does not publicize its deliberations. The records are also emerging as the House and Senate battle over whether to put new restrictions on the controversial USA Patriot Act, which made it easier for the government to conduct secret searches and surveillance but has come under attack from civil liberties groups.

EPIC received these documents under FOIA, and has written to the Senate Judiciary Committee to urge hearings on the matter, and has recommended that the Attorney General be required to report to Congress when the Intelligence Oversight Board receives allegations of unlawful intelligence investigations.

This week marks the four-year anniversary of the enactment of the Patriot Act. Does anyone feel safer because of it?

EDITED TO ADD: There’s a New York Times article on the topic.

Posted on October 25, 2005 at 7:09 AMView Comments

Dell Protects the Homeland

Stupidity is rampant:

I purchased a Dell server today for work, through our account representative at Dell. At the end of the order process, just before confirmation, the Dell representative said: “Federal law requires that we ask what will this server be used for?”

I asked, incredulously, “Why the hell does the federal government care?” to which the Dell representative replied “PATRIOT Act.”

I certainly feel a lot safer knowing that terrorist are on their honor to tell the truth when buying servers from Dell.

I think anyone who says “homework” is obviously lying, and should be turned in to the authorities.

Posted on June 23, 2005 at 12:00 PMView Comments

Canada and the USA PATRIOT Act

The Information & Privacy Commissioner for the Province of British Columbia, Canada, has just published an extensive report titled “Privacy and the USA Patriot Act – Implications for British Columbia Public Sector Outsourcing.”

It’s an interesting trend. It’s one thing for countries to complain about U.S. counterterrorism policies, but it’s quite another for countries to reduce their commerce with the U.S. The latter will get noticed in Washington far quicker than the former.

Posted on December 10, 2004 at 8:48 AMView Comments

Do Terror Alerts Work?

As I read the litany of terror threat warnings that the government has issued in the past three years, the thing that jumps out at me is how vague they are. The careful wording implies everything without actually saying anything. We hear “terrorists might try to bomb buses and rail lines in major U.S. cities this summer,” and there’s “increasing concern about the possibility of a major terrorist attack.” “At least one of these attacks could be executed by the end of the summer 2003.” Warnings are based on “uncorroborated intelligence,” and issued even though “there is no credible, specific information about targets or method of attack.” And, of course, “weapons of mass destruction, including those containing chemical, biological, or radiological agents or materials, cannot be discounted.”

Terrorists might carry out their attacks using cropdusters, helicopters, scuba divers, even prescription drugs from Canada. They might be carrying almanacs. They might strike during the Christmas season, disrupt the “democratic process,” or target financial buildings in New York and Washington.

It’s been more than two years since the government instituted a color-coded terror alert system, and the Department of Homeland Security has issued about a dozen terror alerts in that time. How effective have they been in preventing terrorism? Have they made us any safer, or are they causing harm? Are they, as critics claim, just a political ploy?

When Attorney General John Ashcroft came to Minnesota recently, he said the fact that there had been no terrorist attacks in America in the three years since September 11th was proof that the Bush administration’s anti-terrorist policies were working. I thought: There were no terrorist attacks in America in the three years before September 11th, and we didn’t have any terror alerts. What does that prove?

In theory, the warnings are supposed to cultivate an atmosphere of preparedness. If Americans are vigilant against the terrorist threat, then maybe the terrorists will be caught and their plots foiled. And repeated warnings brace Americans for the aftermath of another attack.

The problem is that the warnings don’t do any of this. Because they are so vague and so frequent, and because they don’t recommend any useful actions that people can take, terror threat warnings don’t prevent terrorist attacks. They might force a terrorist to delay his plan temporarily, or change his target. But in general, professional security experts like me are not particularly impressed by systems that merely force the bad guys to make minor modifications in their tactics.

And the alerts don’t result in a more vigilant America. It’s one thing to issue a hurricane warning, and advise people to board up their windows and remain in the basement. Hurricanes are short-term events, and it’s obvious when the danger is imminent and when it’s over. People can do useful things in response to a hurricane warning; then there is a discrete period when their lives are markedly different, and they feel there was utility in the higher alert mode, even if nothing came of it.

It’s quite another thing to tell people to be on alert, but not to alter their plans–as Americans were instructed last Christmas. A terrorist alert that instills a vague feeling of dread or panic, without giving people anything to do in response, is ineffective. Indeed, it inspires terror itself. Compare people’s reactions to hurricane threats with their reactions to earthquake threats. According to scientists, California is expecting a huge earthquake sometime in the next two hundred years. Even though the magnitude of the disaster will be enormous, people just can’t stay alert for two centuries. The news seems to have generated the same levels of short-term fear and long-term apathy in Californians that the terrorist warnings do. It’s human nature; people simply can’t be vigilant indefinitely.

It’s true too that people want to make their own decisions. Regardless of what the government suggests, people are going to independently assess the situation. They’re going to decide for themselves whether or not changing their behavior seems like a good idea. If there’s no rational information to base their independent assessment on, they’re going to come to conclusions based on fear, prejudice, or ignorance.

We’re already seeing this in the U.S. We see it when Muslim men are assaulted on the street. We see it when a woman on an airplane panics because a Syrian pop group is flying with her. We see it again and again, as people react to rumors about terrorist threats from Al Qaeda and its allies endlessly repeated by the news media.

This all implies that if the government is going to issue a threat warning at all, it should provide as many details as possible. But this is a catch-22: Unfortunately, there’s an absolute limit to how much information the government can reveal. The classified nature of the intelligence that goes into these threat alerts precludes the government from giving the public all the information it would need to be meaningfully prepared. And maddeningly, the current administration occasionally compromises the intelligence assets it does have, in the interest of politics. It recently released the name of a Pakistani agent working undercover in Al Qaeda, blowing ongoing counterterrorist operations both in Pakistan and the U.K.

Still, ironically, most of the time the administration projects a “just trust me” attitude. And there are those in the U.S. who trust it, and there are those who do not. Unfortunately, there are good reasons not to trust it. There are two reasons government likes terror alerts. Both are self-serving, and neither has anything to do with security.

The first is such a common impulse of bureaucratic self-protection that it has achieved a popular acronym in government circles: CYA. If the worst happens and another attack occurs, the American public isn’t going to be as sympathetic to the current administration as it was last time. After the September 11th attacks, the public reaction was primarily shock and disbelief. In response, the government vowed to fight the terrorists. They passed the draconian USA PATRIOT Act, invaded two countries, and spent hundreds of billions of dollars. Next time, the public reaction will quickly turn into anger, and those in charge will need to explain why they failed. The public is going to demand to know what the government knew and why it didn’t warn people, and they’re not going to look kindly on someone who says: “We didn’t think the threat was serious enough to warn people.” Issuing threat warnings is a way to cover themselves. “What did you expect?” they’ll say. “We told you it was Code Orange.”

The second purpose is even more self-serving: Terror threat warnings are a publicity tool. They’re a method of keeping terrorism in people’s minds. Terrorist attacks on American soil are rare, and unless the topic stays in the news, people will move on to other concerns. There is, of course, a hierarchy to these things. Threats against U.S. soil are most important, threats against Americans abroad are next, and terrorist threats–even actual terrorist attacks–against foreigners in foreign countries are largely ignored.

Since the September 11th attacks, Republicans have made “tough on terror” the centerpiece of their reelection strategies. Study after study has shown that Americans who are worried about terrorism are more likely to vote Republican. In 2002, Karl Rove specifically told Republican legislators to run on that platform, and strength in the face of the terrorist threat is the basis of Bush’s reelection campaign. For that strategy to work, people need to be reminded constantly about the terrorist threat and how the current government is keeping them safe.

It has to be the right terrorist threat, though. Last month someone exploded a pipe bomb in a stem-cell research center near Boston, but the administration didn’t denounce this as a terrorist attack. In April 2003, the FBI disrupted a major terrorist plot in the U.S., arresting William Krar and seizing automatic weapons, pipe bombs, bombs disguised as briefcases, and at least one cyanide bomb–an actual chemical weapon. But because Krar was a member of a white supremacist group and not Muslim, Ashcroft didn’t hold a press conference, Tom Ridge didn’t announce how secure the homeland was, and Bush never mentioned it.

Threat warnings can be a potent tool in the fight against terrorism–when there is a specific threat at a specific moment. There are times when people need to act, and act quickly, in order to increase security. But this is a tool that can easily be abused, and when it’s abused it loses its effectiveness.

It’s instructive to look at the European countries that have been dealing with terrorism for decades, like the United Kingdom, Ireland, France, Italy, and Spain. None of these has a color-coded terror-alert system. None calls a press conference on the strength of “chatter.” Even Israel, which has seen more terrorism than any other nation in the world, issues terror alerts only when there is a specific imminent attack and they need people to be vigilant. And these alerts include specific times and places, with details people can use immediately. They’re not dissimilar from hurricane warnings.

A terror alert that instills a vague feeling of dread or panic echoes the very tactics of the terrorists. There are essentially two ways to terrorize people. The first is to do something spectacularly horrible, like flying airplanes into skyscrapers and killing thousands of people. The second is to keep people living in fear with the threat of doing something horrible. Decades ago, that was one of the IRA’s major aims. Inadvertently, the DHS is achieving the same thing.

There’s another downside to incessant threat warnings, one that happens when everyone realizes that they have been abused for political purposes. Call it the “Boy Who Cried Wolf” problem. After too many false alarms, the public will become inured to them. Already this has happened. Many Americans ignore terrorist threat warnings; many even ridicule them. The Bush administration lost considerable respect when it was revealed that August’s New York/Washington warning was based on three-year-old information. And the more recent warning that terrorists might target cheap prescription drugs from Canada was assumed universally to be politics-as-usual.

Repeated warnings do more harm than good, by needlessly creating fear and confusion among those who still trust the government, and anesthetizing everyone else to any future alerts that might be important. And every false alarm makes the next terror alert less effective.

Fighting global terrorism is difficult, and it’s not something that should be played for political gain. Countries that have been dealing with terrorism for decades have realized that much of the real work happens outside of public view, and that often the most important victories are the most secret. The elected officials of these countries take the time to explain this to their citizens, who in return have a realistic view of what the government can and can’t do to keep them safe.

By making terrorism the centerpiece of his reelection campaign, President Bush and the Republicans play a very dangerous game. They’re making many people needlessly fearful. They’re attracting the ridicule of others, both domestically and abroad. And they’re distracting themselves from the serious business of actually keeping Americans safe.

This article was originally published in the October 2004 edition of The Rake

Posted on October 4, 2004 at 7:08 PMView Comments

Sidebar photo of Bruce Schneier by Joe MacInnis.