How 9/11 Completely Changed Surveillance in U.S.

[Eugen Leitl]

http://www.wired.com/threatlevel/2011/09/911-surveillance/

How 9/11 Completely Changed Surveillance in U.S.

    By Ryan Singel September 11, 2011 | 6:30 am | 
    
Categories: politics, privacy, Surveillance

Mark Klein took this picture of the entrance to Room 641A in AT&T's building
on Folsom Street in San Francisco. The room housed internet spying equipment
Klein says was installed by the NSA.

Former AT&T engineer Mark Klein handed a sheaf of papers in January 2006 to
lawyers at the Electronic Frontier Foundation, providing smoking-gun evidence
that the National Security Agency, with the cooperation of AT&T, was
illegally sucking up American citizensb internet usage and funneling it into
a database.

The documents became the heart of civil liberties lawsuits against the
government and AT&T. But Congress, including then-Sen. Barack Obama
(D-Illinois), voted in July 2008 to override the rights of American citizens
to petition for a redress of grievances.

Congress passed a law that absolved AT&T of any legal liability for
cooperating with the warrantless spying. The bill, signed quickly into law by
President George W. Bush, also largely legalized the governmentbs secret
domestic-wiretapping program.

Obama pledged to revisit and roll back those increased powers if he became
president. But, he did not.

Mark Klein faded into history without a single congressional committee asking
him to testify. And with that, the government won the battle to turn the net
into a permanent spying apparatus immune to oversight from the nationbs
courts.  bI didnbt expect the terrorists would be so successful ultimately
into getting us to abandon our core principles.b

Kleinbs story encapsulates the state of civil liberties 10 years after the
shattering attacks on Sept. 11, 2001. After a decade, the country is left
with a legacy of secret and unilateral executive-branch actions, a
surveillance infrastructure whose scope and inner workings remain secret with
little oversight, a compliant judiciary system that obsequiously bows to
claims of secrecy by the executive branch, and a populace that has no idea
how its government uses its power or who is watching out for abuses.

bAs someone who was in the Financial District of Manhattan on 9/11, that was
a horrifying morning for everyone,b says Kevin Bankston, a lawyer for the
Electronic Frontier Foundation, whobs still fighting to reinstate the
lawsuits his organization filed against the government and the telecoms. bYet
I didnbt expect the terrorists would be so successful ultimately into getting
us to abandon our core principles, and I think the founders would, in many
ways, be ashamed of our response to the attack.b

Sen. Ron Wyden (D-Oregon) in August put a hold on Obamabs push to renew the
surveillance powers until the administration investigates how many people in
the U.S. have had their communications breviewedb by the feds. The director
of national intelligence responded that bit is not reasonably possibleb to
determine that number.

In the post-9/11 bureaucratic frenzy to never let a similar attack happen
again, the Congress rushed to pass the Patriot Act, a domestic-surveillance
wish list full of investigatory powers long sought by the FBI. And the
government created the Department of Homeland Security, an unwieldy
amalgamation of agencies united under a moniker straight out of a bad
science-fiction novel.

Those who thought that the election of Obama would bre-changeb everything
were mistaken. Instead, the administration has carried on the Bush-era policy
of using high-level classification and the bstate secrets privilegeb to block
court challenges to the unsavory aspects of the bWar on Terror.b

So endemic is the secrecy, that Jim Harper, director of information policy
studies at the Cato Institute, says he canbt answer the question about what
the state of surveillance and civil liberties is in the U.S. a decade after
9/11.

bThe best answer is, I donbt know,b Harper said. bWe have had a real
breakdown in government and public oversight of government. We have a real
secrecy problem in this country.b

But Harper does think that the next decade webll begin to see some
questioning of the money being spent on Homeland Security programs and that
the courts will start to stand up more to the executive branch.  Therebs no
way to confirm if you are on the No-Fly or Secondary Screening list, and no
way to challenge them.

Well-known examples of secrecy are the No-Fly and Secondary Screening lists.
The government initially refused to admit the lists existed, and struggled
for years to deal with a system that has never caught a terrorist, but has
inadvertently caught soldiers, politicians, children and even a prominent
nun.

Most recently, the Obama administration was caught using the No-Fly list as a
way to keep American citizens from flying back to the States, in order to
interrogate them overseas.

Therebs no way to confirm if you are on either of these lists, and no way to
challenge them or see the evidence against you.

Harper says thatbs plainly unconstitutional.

bItbs pretty black-and-white,b Harper said. bItbs just entirely
unconstitutional to have a direct executive branch punishment without the
intermediary of a judge.b

As for the Patriot Act, government watchers point to National Security
Letters as the prime example of abuse of the governmentbs expanded powers
under the bWar on Terror.b So-called NSLs are self-issued subpoenas that FBI
agents can use to get phone and other transaction records. The FBI began
using tens of thousands of such letters every year after the NSLsb reach was
expanded by the Patriot Act.

The Justice Departmentbs inspector general has issued a series of scathing
reports, including one that found that FBI agents used fake emergency
requests to gather data on Washington Post and New York Times reporters, and
that AT&T and Verizon were paid to open offices inside the FBI, where
employees for the telecoms let FBI agents search phone records without doing
any paperwork b in blatant violation of federal law. The violations were then
effectively legalized retroactively by a ruling from the Obama
administrationbs Office of Legal Counsel.

Now, the Administration is telling the American people that al-Qaida is on
the ropes. But it seems unlikely that Americans will witness, or even demand,
the withering away of the Homeland Security industrial complex.

While there are many reasons for that, perhaps the most important one is the
imperative that started just post 9/11, when President Bush turned to
Attorney General John Ashcroft and said, bDonbt let this happen again.b

Itbs those words, and that sentiment, that have kept electronic surveillance
powers in effect b even though theybve largely proved to be a source of dead
ends for those battling al-Qaida.  bWe begin to assume that the more our
liberties are invaded, the more secure we are.b

bThere is no evidence that the ability to conduct broad electronic
surveillance with less judicial supervision has been key to the intelligence
successes we have seen since 9/11, and the absence of those powers were not
an important factor before 9/11,b says Julian Sanchez, a research fellow at
the Cato Institute.

And Sanchez notes that the number of U.S. persons who had records siphoned up
by the FBI in 2010 reached over 14,000 b a new record. bWe have become so
accustomed to talking about the balance between civil liberties and security
that we begin to assume that the more our liberties are invaded, the more
secure we are, when there is very little evidence that is the case,b Sanchez
said.

Both Harper and Bankston see reasons for hope that the court system may have
lost its post-9/11 habit of deferring to the federal government anytime it
invoked the words secrecy and national security.

Bankston cited a recent court win for the ACLU, where the government is being
forced to reveal information about the number of people who have been tracked
through their cellphones without investigators getting a warrant.

bThere are always signs of hope that keep us going where we can occasionally
get a window in the what the government is doing, and we will keep looking
for those windows,b Bankston said.