[Paleopsych] NYTBR: Goodbye to Privacy
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Sat Apr 9 17:08:14 UTC 2005
Goodbye to Privacy
New York Times Book Review, 5.4.10
By WILLIAM SAFIRE
NO PLACE TO HIDE
By Robert O'Harrow Jr.
348 pp. The Free Press. $26.
CHATTER: Dispatches From the Secret World of Global Eavesdropping.
By Patrick Radden Keefe.
300 pp. Random House. $24.95.
YOUR mother's maiden name is not the secret you think it is. That
sort of ''personal identifier'' being used by banks, credit agencies,
doctors, insurers and retailers -- supposedly to protect you against
the theft of your identity -- can be found out in a flash from a
member of the new security-industrial complex. There goes the
''personal identifier'' that you presume a stranger would not know,
along with your Social Security number and soon your face and DNA.
In the past five years, what most of us only recently thought of as
''nobody's business'' has become the big business of everybody's
business. Perhaps you are one of the 30 million Americans who pay for
what you think is an unlisted telephone number to protect your
privacy. But when you order an item using an 800 number, your own
number may become fair game for any retailer who subscribes to one of
the booming corporate data-collection services. In turn, those
services may be -- and some have been -- penetrated by identity
The computer's ability to collect an infinity of data about
individuals -- tracking every movement and purchase, assembling facts
and traits in a personal dossier, forgetting nothing -- was in place
before 9/11. But among the unremarked casualties of that day was a
value that Americans once treasured: personal privacy.
The first civil-liberty fire wall to fall was the one within
government that separated the domestic security powers of the F.B.I.
from the more intrusive foreign surveillance powers of the C.I.A. The
9/11 commission successfully mobilized public opinion to put
dot-connection first and privacy protection last. But the second fire
wall crumbled with far less public notice or approval: that was the
separation between law enforcement recordkeeping and commercial market
research. Almost overnight, the law's suspect list married the
corporations' prospect list.
The hasty, troubling merger of these two increasingly powerful forces
capable of encroaching on the personal freedom of American citizens is
the subject of two new books.
Robert O'Harrow Jr.'s ''No Place to Hide'' might just do for privacy
protection what Rachel Carson's ''Silent Spring'' did for
environmental protection nearly a half-century ago. The author, a
reporter for The Washington Post, does not write in anger. Sputtering
outrage, which characterizes the writing of many of us in the
anti-snooping minority, is not O'Harrow's style. His is the work of a
careful, thorough, enterprising reporter, possibly the only one
assigned to the privacy beat by a major American newspaper. He has
interviewed many of the major, and largely unknown, players in the
world of surveillance and dossier assembly, and provides extensive
source notes in the back of his book. He not only reports their
professions of patriotism and plausible arguments about the necessity
of screening to security, but explains the profitability to modern
business of ''consumer relationship management.''
''No Place to Hide'' -- its title taken from George W. Bush's
post-9/11 warning to terrorists -- is all the more damning because of
its fair-mindedness. O'Harrow notes that many consumers find it
convenient to be in a marketing dossier that knows their personal
preferences, habits, income, professional and sexual activity,
entertainment and travel interests and foibles. These intimately
profiled people are untroubled by the device placed in the car they
rent that records their speed and location, the keystroke logger that
reads the characters they type, the plastic hotel key that transmits
the frequency and time of entries and exits or the hidden camera that
takes their picture at a Super Bowl or tourist attraction. They fill
out cards revealing personal data to get a warranty, unaware that the
warranties are already provided by law. ''Even as people fret about
corporate intrusiveness,'' O'Harrow writes about a searching survey of
subscribers taken by Conde Nast Publications, ''they often willingly,
even eagerly, part with intimate details about their lives.''
Such acquiescence ends -- for a while -- when snoopers get caught
spilling their data to thieves or exposing the extent of their
operations. The industry took some heat when a young New Hampshire
woman was murdered by a stalker who bought her Social Security number
and address from an online information service. But its lobbyists
managed to extract the teeth from Senator Judd Gregg's proposed
legislation, and the intercorporate trading of supposedly confidential
Social Security numbers has mushroomed. When an article in The New
York Times by John Markoff, followed by another in The Washington Post
by O'Harrow, revealed the Pentagon's intensely invasive Total
Information Awareness program headed by Vice Admiral John Poindexter
of Iran-Contra infamy, a conservative scandalmonger took umbrage.
(''Safire's column was like a blowtorch on dry tinder,'' O'Harrow
writes in the book's only colorful simile.) The Poindexter program's
slogan, ''Knowledge Is Power,'' struck many as Orwellian. Senators Ron
Wyden and Russell D. Feingold were able to limit funding for the
government-sponsored data mining, and Poindexter soon resigned. A
Pentagon group later found that ''T.I.A. was a flawed effort to
achieve worthwhile ends'' and called for ''clear rules and policy
guidance, adopted through an open and credible political process.''
But O'Harrow reports in ''No Place to Hide'' that a former Poindexter
colleague at T.I.A. ''said government interest in the program's
research actually broadened after it was apparently killed by
The author devotes chapters to the techniques of commercial data
gatherers and sellers like Acxiom, Seisint and the British-owned
LexisNexis, not household names themselves, but boasting computers
stuffed with the names and pictures of each member of the nation's
households as well as hundreds of millions of their credit cards. He
quotes Ole Poulsen, chief technology officer of Seisint, on its
digital identity system: ''We have created a unique identifier on
everybody in the United States. Data that belongs together is already
linked together.'' Soon after 9/11, having seen the system that was to
become the public-private surveillance engine called Matrix (in
computer naming, life follows film art), Michael Mullaney, a
counterterrorism official at the Justice Department, told O'Harrow:
''I sat down and said, 'These guys have the computer that every
American is afraid of.' ''
Of all the companies in the security-industrial complex, none is more
dominant or acquisitive than ChoicePoint of Alpharetta, Ga. This data
giant collects, stores, analyzes and sells literally billions of
demographic, marketing and criminal records to police departments and
government agencies that might otherwise be criticized (or de-funded)
for building a national identity base to make American citizens prove
they are who they say they are. With its employee-screening,
shoplifter-blacklisting and credit-reporting arms, ChoicePoint is
also, in the author's words, ''a National Nanny that for a fee could
watch or assess the background of virtually anybody.''
From sales brochures that ChoicePoint distributed to its corporate and
government customers -- as well as from interviews with its C.E.O.,
Derek V. Smith, the doyen of dossiers, who claims ''this incredible
passion to make a safer world'' -- The Post's privacy reporter has
assembled a coherent narrative that provides a profile of a profiler.
As if to lend a news peg to the book, ChoicePoint has just thrust
itself into the nation's consciousness as a conglomerate hoist by its
own petard. The outfit that sells the ability to anticipate suspicious
activity; that provides security to the nation's security services;
that claims it protects people from identity theft -- has been
easily penetrated by a gang that stole its dossiers on at least
145,000 people across the country.
ON top of that revelation, the company had to admit it first became
suspicious last September that phony companies were downloading its
supposedly confidential electronic records on individual citizens. Not
only is the Federal Trade Commission inquiring into the company's
compliance with consumer-information security laws, but the Securities
and Exchange Commission is investigating prearranged sales of
ChoicePoint stock by Smith and another top official that netted a
profit of $17 million before the penetration was publicly disclosed
and the stock price plunged.
''ChoicePoint Data Cache Became a Powder Keg'' was The Washington Post
headline, with the subhead ''Identity Thief's Ability to Get
Information Puts Heat on Firm.'' This was followed by the account a
week later of another breach of faith at a competing data mine: ''ID
Thieves Breach LexisNexis, Obtain Information on 32,000.'' Now that a
flat rock has been flipped over, much more scurrying about will be
observed. This will cause embarrassment to lobbyists for, and advisers
to, the major players in the security-industrial complex. ''No Place
to Hide'' names famous names, revealing associations with Howard
Safir, former New York City police commissioner; Gen. Wesley Clark,
former NATO commander; and former Senator Dale Bumpers of Arkansas.
(If you hear, ''This is not about the money'' -- it's about the
More of the press has been showing interest, especially since
Congressional hearings have begun and data is being disseminated about
the data collectors. A second book -- not as eye-opening as O'Harrow's
original reporting but a short course in what little we know of
international government surveillance -- is ''Chatter: Dispatches from
the Secret World of Global Eavesdropping,'' by Patrick Radden Keefe.
This third-year student at Yale Law School dares to make his first
book an examination of what he calls the liberty-security matrix.
Chatter, he notes, is a once innocuous word meaning ''gossip . . . the
babble of a child'' that in the world of electronic intelligence has
gained the sinister sense of ''telltale metabolic rhythm: chatter;
silence; attack.'' The flurry of ''sigint'' -- signals intelligence,
picked up by the secret listening devices of our National Security
Agency -- sometimes precedes a terrorist attack, and almost always
precedes an elevation of our color-coded security alerts.
Keefe does what a brilliant, persevering law student with no inside
sources or a prestigious press pass should do: he surveys much of what
has been written about sigint and pores over the public hearing
transcripts. He visits worried scientists and some former spooks who
have written critical books, and poses questions to which he would
like to get answers. He doesn't get them, but his account of
unclimbable walls and unanswered calls invites further attempts from
media bigfeet to do better. Keefe is a researcher adept at compiling
intriguing bits and pieces dug out or leaked in the past; the most
useful part of the book is the notes at the end about written, public
sources that point to some breaks in the fog.
''Chatter'' focuses on government, not commercial, surveillance, and
thereby misses the danger inherent in the sinister synergism of the
two. Moreover, the book lacks a point of view: at 28, Keefe has
formulated neither a feel for individual privacy nor a zeal for
government security. It may be, as Roman solons said, Inter arma
silent leges -- in wartime, the laws fall silent -- but the
privacy-security debate needs to be both informed and joined. This is
no time for agnostics.
For example, what to do about Echelon? That is supposedly an
ultrasecret surveillance network, conducted by the United States and
four other English-speaking nations, to overhear and oversee signals.
''We don't know whether Echelon exists,'' Keefe writes, ''and, if it
does exist, how the shadowy network operates. It all remains an
enigma.'' Though he cannot light a candle, he at least calls attention
to, without cursing, the darkness.
Keefe's useful research primer on today's surveillance society, and
especially O'Harrow's breakthrough reporting on the noxious nexus of
government and commercial snooping, open the way for the creation of
privacy beats for journalism's coming generation of search engineers.
A small furor is growing about the abuse of security that leads to
identity theft. We'll see how long the furor lasts before the
commercial-public security combine again slams privacy against the
wall of secrecy, but at least Poindexter's slogan is being made clear:
knowledge is indeed power, and more than a little power in unknowable
hands is a dangerous thing.
William Safire writes the On Language column for The Times Magazine.
First Chapter: 'Chatter'
By PATRICK RADDEN KEEFE
Radomes in the Desert, Radomes on the Moor
The Invisible Architecture of Echelon
You cannot help but note the juxtaposition. Here, away from the world,
amid rolling pastures, on a tract of land where the air is redolent of
cow dung, lies the most sophisticated eavesdropping station on the
planet. England's North Yorkshire moors are, after all, cow country.
Leaving the elegant Victorian spa town of Harrogate, my taxi winds
west through eight miles of verdant countryside. Just outside the
city, the traffic thins, and what cars we pass seem to go much slower
than they need to-a deliberate, agrarian pace. Fields are set off by a
network of hedges beneath a panoramic, cloudless sky. Sheep congregate
here and there, and dozens of cows lounge by crumbling stone walls,
some gazing as we whiz by, others chewing their cuds, oblivious.
I have been warned, seen photos-I know what to expect. But as the
first dome hovers into sight, I catch my breath. The bucolic road
winds and rises and falls, and as we dip and rise again and crest a
hill the tip of a great white sphere, shimmering in the summer heat,
becomes visible in the distance. One giant dimpled dome, a great
Kevlar golf ball. Then suddenly four domes, and then eight, as others
float into view above the hill. A dip in the road and they're obscured
again and then again in sight.
As the taxi rounds the perimeter fence, the base becomes visible in
flashes through a row of trees. The white globes are called radomes,
and each houses a satellite dish antenna, protecting it from the
elements and masking its orientation-the dome itself is just a kind of
skin. I count twenty-eight of these domes in all, ghostly white
against the green of the countryside. They look otherworldly.
And in a sense, they are. The dishes are hidden inside the radomes
because their supersensitive antennae are trained on a corresponding
set of satellites hovering more than twenty thousand miles above. Some
of those are communications satellites that transmit secure messages
to other intelligence installations around the world. Some are spy
satellites, which take photographs, intercept communications, and use
Global Positioning Systems to pinpoint the locations of various
individuals or vehicles around the planet. And some of the satellites
are regular commercial communications satellites, the kind that
transmit your telephone calls and Internet traffic across the oceans.
The first two varieties of satellite were built specifically to
correspond with the base. This third kind, however, was not. These
satellites are managed by a company called Intelsat, and the signals
they relay are private, civilian communications. But the base collects
these signals, too, soundlessly and ceaselessly intercepting great
flows of private communications every minute of every hour. The sign
at the gate reads: RAF Menwith Hill.
I approach the sandbagged entrance, smile at the grave British
military policemen who stand guard, and peer inside. RAF stands for
Royal Air Force, but the name is a deliberate misnomer. The base was
built in the 1950s on land purchased by the British Crown, but in 1966
the site was taken over by the American National Security Agency. Thus
while the station is nominally an RAF base, it is actually home to
more than twelve hundred Americans. These people live in housing
within the perimeter of the fence, send their children to primary and
secondary school within the fence, use their own grocery store, post
office, sports center, pub, and bowling alley, all within the fence.
The bowling alley, in a questionable piece of nomenclature for a base
that is instrumental to America's nuclear program, is called the
Strike Zone. There are houses and a chapel and a playground and a
full-sized track and baseball diamond. The whole base covers 560
acres. Beneath a curling ribbon of razor wire, armed men with dogs
patrol the fence.
While we are accustomed, in this age of American power projection, to
the idea of full-time military personnel living in this type of
enclave abroad, I was surprised to learn that the majority of the
employees at Menwith Hill are in fact civilians: engineers,
technicians, mathematicians, linguists, and analysts. The NSA has
always employed large numbers of civilian contractors: professionals,
generally with technical expertise, who satisfy the rigorous
background tests and security clearances to work at the forefront of
the most secret field in American intelligence. These people come from
aerospace and technology firms that do regular contract work for the
government. They move their belongings and their families to the base,
drawn by the allowances made for them: free housing, free shipping of
their furniture and cars, and most of all, a tax-free salary. They
work in three eight-hour shifts, so that the great interception
machine does not shut down. They work Christmas and New Year's Day,
and through the routine protests outside the gates of the base on the
Fourth of July. There are linguists trained in Arabic, Farsi, Hebrew,
and the gamut of European languages. With another four hundred or so
personnel from the British Ministry of Defence, this single quietly
humming spy station, which the vast majority of British and American
civilians have never heard of, has a staff as large as all of
Britain's storied domestic-intelligence service, MI5.
At the Black Bull Inn, a local pub, the night before my visit to the
base, a couple of teenagers drinking pints of bitter and eating
chicken curry-flavored potato chips at the bar joked about the
carloads of beautiful young American women, "the Menwith Hill girls,"
whom they occasionally see. The women drive American cars with the
steering wheel on the left and head out to pubs in surrounding
villages or into Harrogate or York on the weekends, before returning
to disappear behind the fence. If the social life of these women has
the quality of an apparition to the locals, their professional life is
even more obscure. One of the boys at the bar, reed thin with dark
hair and an eyebrow ring, said he had worked at "the Hill" for a
while, in the cafeteria, but that the base was segregated into the
Upper Hill and the Lower Hill, that there was a strict division
between the living areas and the working areas, and that his security
clearance, which in and of itself had required a battery of forms,
questions, checks, and tests, was inadequate to let him get anywhere
near the real activity on the base. He said that as far as he could
tell, much of the work happens in the untold stretches of the Hill
that are underground. "But from what I hear," he said, raising a
conspiratorial brow and eyeing my notebook to make sure I was getting
this, "it's an alien-testing zone." His mates cackled at this, and all
the louder when they saw me dutifully scribbling it down.
I stand at the entrance and, craning my neck, gaze through the fence.
The guards are toting machine guns and look at me with idle curiosity.
A digital screen by a cluster of low buildings flashes messages to
cars driving into the base. Raike and Massage Tuesday Night ... Geico
Insurance Every Thursday ... Karaoke Thursday Night ... Drinking and
Driving Wrecks Lives.
"Pardon me, sir," one of the guards clears his throat. He nods to
indicate something behind me.
A blue sedan is idling, waiting to get past. I move aside. The driver
is a young woman in a sweatshirt, her hair pulled back. We make eye
contact for a second. She's about my age-a Menwith Hill girl! The
guards wave her through, and she's gone.
Inside the fence, in one-story, windowless buildings and in high-tech
underground basements, the Menwith Hill girls join their colleagues in
the clandestine interception of billions of communications per day. It
has been claimed that all telecommunications traffic in and out of
Europe that passes through Britain is intercepted by the base.
This is the inscrutable face of American intelligence in the
twenty-first century. When the Iron Curtain fell, it ruptured the
fixed geography of Europe and the world, unleashing a slow tectonic
shift that continues to alter the geopolitical landscape to this day.
The end of the cold war also changed the nature of intelligence
activities for the United States and its allies. The decentralization
of the threat that had been posed by the Soviets, combined with a
reduced defense budget, a new sense of optimism, and a diminished
American tolerance for military casualties, led to a pronounced
reduction in the number of human spies on the ground. Gone are the
trench-coated cold warriors of John le Carré novels, the CIA spies who
were at the vanguard of cold war intelligence, sent to infiltrate the
opposition or work out of embassies, recruit moles and double agents,
and risk their lives in the process. Human intelligence, or Humint,
was already in a steady decline by the end of the cold war, and it
continued to dwindle as an American priority through the 1990s. In
1998, Porter Goss, the Florida congressman and former CIA case officer
who was the chairman of the House of Representatives' Intelligence
Committee and in September 2004 was appointed director of the CIA,
declared simply, "It is fair to say that the cupboard is nearly bare
in the area of human intelligence."
But while American politicians were unwilling to sacrifice the lives
of spies in countries that no longer played a decisive role against
the Soviets or those of soldiers in places such as Mogadishu or
Sarajevo, they were more than willing to invest in new technologies to
fight wars and gather intelligence, as it were, by remote control. In
a succession of conflicts, the George H. W. Bush and Bill Clinton
administrations made it clear that the United States, wherever
possible, would prefer to use gadgets instead of humans. In the words
of former CIA operative Robert Baer, "The theory was that satellites,
the Internet, electronic intercepts, even academic publications would
tell us all we needed to know about what went on beyond our borders."
Arguably, this trend was nothing new. Since the 1970s there had been a
growing sense that as technology advanced, it might displace the agent
on the ground. Stansfield Turner, President Jimmy Carter's director of
central intelligence, met with Carter twice per week to give him
tutorials on the various kinds of intelligence collection the United
States was engaged in. Turner felt that he and the president shared a
"technical bent" and observed that they both had come to regard the
"traditional human spy" as basically outmoded.
But what was an inkling for these men became a conviction for
subsequent administrations, as a combination of gadgetry and money
appeared to provide a way around sending agents on risky assignments.
In the July/August 2001 issue of the Atlantic Monthly, just weeks
before the terrorist attacks of September 11, a former CIA officer
named Reuel Marc Gerecht published an article deploring a total
absence of effective on-the-ground human intelligence in the Middle
East. He concluded, "Unless one of Bin Laden's foot soldiers walks
through the door of a U.S. consulate or embassy, the odds that a CIA
counterterrorist officer will ever see one are extremely poor."
Since the founding, more than a half century ago, of the NSA, there
has been a prevailing understanding that while the world of
intelligence matters was very secret and not something that should be
discussed with anyone not in the know, the world of signals
intelligence was the most secret of all. You can detect this hierarchy
of secrecy even in prevalent jokes about the agencies. The old saw
about the NSA, which was created not by Congress but by President
Harry Truman in a secret executive order on October 24, 1952, was that
NSA stood for "No such agency" or "Never say anything." This mantra
must have been enthusiastically adopted from the start, because for
the first two decades of its existence the NSA was not acknowledged by
the federal government and did not appear in any annual federal
intelligence budgets, its allocations buried in other,
inconspicuous-looking items. This despite the fact that at the time
the agency employed more than ten thousand people. By contrast, the
joke about the Office of Strategic Services, the predecessor of the
CIA, which does human intelligence, was that OSS stood for, "Oh so
social." This may explain why most Americans can tell you quite a bit
about the CIA today, while a surprising number have never heard of the
NSA. Few could tell you what it does or where it is located. It is
rarely discussed in newspapers, and despite all the talk of chatter on
the nightly news, the acronym NSA rarely impinges on the consciousness
of the average American.
The NSA operates out of a massive edifice of reflective black glass,
its headquarters at Fort Meade, Maryland. Even the architecture of the
"Puzzle Palace," as it is sometimes known, repels efforts to figure
out what is going on inside. It is literally a black box. We do know
that the agency employs more mathematicians than any other
organization in the world and that the campus at Fort Meade is the
densest concentration of computer power on the planet. Just one of the
agency's Cray supercomputers can handle sixty-four billion individual
instructions per second.
The NSA's work is divided into two functions: communications security
and signals intelligence. The former involves creating secure
communications and cryptography for America's political leaders and
military. The latter responsibility involves listening in. Part of the
reason it is hard to gather information on the NSA is that the agency
is not a user of its own intelligence. There are no gun-toting NSA
agents who go out into the field and act on the intelligence the
agency has gathered. The Puzzle Palace only provides intelligence to
other agencies and to politicians and generals. In that sense, it is
passive. It just sits and listens.
The reason for all of this secrecy is obvious: eavesdropping works
only if the person you are monitoring does not know he or she is being
monitored. When the press reported in 1998 that American intelligence
was intercepting the satellite-telephone conversations of Osama Bin
Laden, he promptly stopped using that phone. The lesson is clear: when
your quarry knows you can break his code, he will devise a new one.
Worse yet is the whole string of possibilities for deliberate
deception. After spikes in terrorist chatter set off a series of
alarms about impending terrorist strikes in various places around the
world in 2003, some observers of the intelligence community speculated
that Al Qaeda was deliberately throwing out red herrings on
frequencies they knew were being monitored by the NSA....
First Chapter: 'No Place to Hide'
By ROBERT O'HARROW JR.
Assistant Attorney General Viet Dinh took his seat in La Colline
restaurant on Capitol Hill and signaled for a cup of coffee. It was
one of those standard Washington breakfasts, where politicos mix
schmoozing and big ideas to start their days.
An intense foot soldier for Attorney General Ashcroft, Dinh had been
in his job for only a few months. He wanted to make a good impression
on others at the session and craved the caffeine to keep his edge. As
he sipped his fourth cup and listened to the patter of White House and
Hill staffers, a young man darted up to the table. "A plane has
crashed," he said. "It hit the World Trade Center."
Dinh and the rest of the voluble group went silent. Then their beepers
began chirping in unison. At another time, it might have seemed funny,
a Type-A Washington moment. Now they looked at one another and rushed
out of the restaurant. It was about 9:30 A.M. on September 11, 2001.
Dinh hurried back to the Justice Department, where the building was
being evacuated. Like countless other Americans, he was already
consumed with a desire to strike back. Unlike most, however, he had an
inkling of how: by doing whatever was necessary to strengthen the
government's legal hand against terrorists.
Jim Dempsey was sifting through emails at his office at the Center for
Democracy and Technology on Farragut Square when his boss, Jerry
Berman, rushed in. "Turn on the TV," Berman said. Dempsey reached for
the remote, and images came rushing at him. Crisp sunshine. Lower
Manhattan glinting in the brilliance. A jetliner cutting through the
Dempsey was a lanky and slow-speaking former Hill staffer who combined
a meticulous attention to detail with an aw-shucks demeanor. Since the
early 1990s, he has been one of the leading watchdogs of FBI
surveillance initiatives, a reasoned and respected civil liberties
advocate routinely summoned to the Hill by both political parties to
advise lawmakers about technology and privacy issues.
As he watched the smoke and flames engulf the World Trade Center, he
knew it was the work of terrorists, and the FBI was foremost in his
mind. "They have screwed up so bad," he said to himself. "With all the
powers and resources that they have, they should have caught these
At the same moment, it dawned on him that his work - and the work of
many civil liberties activists over the years to check the
increasingly aggressive use of technology by law enforcement officials
- was about to be undone.
The car arrived at Senator Patrick Leahy's house in northern Virginia
shortly after 9 am. The Vermont Democrat took his place in the front
seat and, as the car coursed toward the Potomac, he read through some
notes about the pending nomination of a new drug czar and thought
about a meeting that morning at the Supreme Court.
Half-listening to the radio, Leahy heard something about an explosion
and the World Trade Center. He asked the driver to turn it up, then
called some friends in New York. They told him what they were seeing
on television. It sounded ominous. The car continued toward the
Supreme Court and the conference he was to attend with Chief Justice
William Rehnquist and circuit court judges from around the country.
Leahy headed to the Court's conference room, with its thickly carpeted
floors and oak-paneled walls lined with portraits of the first eight
chief justices. When Rehnquist arrived, Leahy leaned toward him and
whispered, "Bill, before we start, I believe we have a terrorist
As if on cue, a muffled boom echoed through the room. Smoke began
rising across the Potomac from the Pentagon.
Leahy chaired the Senate Judiciary Committee, putting him at the
center of an inevitable debate about how to fight back. Leahy was one
of Congress's most liberal members, a longtime proponent of civil
liberties who had always worked to keep the government from trampling
individual rights. But Leahy was also a former prosecutor, a
pragmatist who understood what investigators were up against in trying
to identify and bring down terrorists.
He knew that conservatives were going to press him for more police
powers while civil libertarians would look to him as their
standard-bearer. Leahy wanted to strike the right balance. But after
watching an F-16 roar over the Mall that afternoon, he resolved to do
whatever he could, as a patriot and a Democrat, to give law
enforcement officials more tools to stop future attacks.
The attacks on the World Trade Center and the Pentagon didn't just set
off a national wave of mourning and ire. They reignited and reshaped a
smoldering debate over the proper use of government power to peer into
the lives of ordinary people.
The argument boiled down to this: In an age of high-tech terror, what
is the proper balance between national security and the privacy of
millions of Americans, whose personal information is already more
widely available than ever before? Telephone records, emails, oceans
of detail about individuals' lives - the government wanted access to
all of it to hunt down terrorists before they struck.
For six weeks that fall, behind a veneer of national solidarity and
bipartisanship, Washington leaders engaged in pitched, closed-door
arguments over how much new power the government should have in the
name of national security. They were grappling not only with the
specter of more terrorist attacks but also with the chilling memories
of Cold War Red-baiting, J. Edgar Hoover's smear campaigns, and
At the core of the dispute was a body of little known laws and rules
that, over the last half century, defined and limited the government's
ability to snoop: Title III of the Omnibus Crime Control and Safe
Streets Act governed electronic eavesdropping. The "pen register, trap
and trace" rules covered the use of devices to track the origin and
destination of telephone calls. The Foreign Intelligence Surveillance
Act, or FISA, regulated the power to spy domestically when seeking
foreign intelligence information.
The White House, the Justice Department, and their allies in Congress
now wanted to ease those restraints, and they wanted to do it as
quickly as possible. Though put into place to protect individuals and
political groups from past abuses by the FBI, CIA, and others, the
restrictions were partly to blame for the intelligence gaps on
September 11, the government said. Implicit in that wish list was the
desire to tap into the data revolution. In the previous decade, the
world had watched the power of computers increase at an extraordinary
pace. At the same time, the price of data storage plummeted, while new
software tools enabled analysts to tap into giant reservoirs of names,
addresses, purchases, and other details, and make sense of it all. It
was a kind of surveillance that didn't rely only on cameras and
eavesdropping. This was the age of behavioral profiling and at the
front were the marketers who wanted you to open your wallet. Now the
government wanted their help.
The administration also wanted new authority to secretly detain
individuals suspected of terrorism and to enlist banks and other
financial services companies in the search for terrorist financing.
Law enforcement sought broad access to business databases filled with
information about the lives of ordinary citizens. All this detail
could help investigators search for links among plotters.
Jim Dempsey and other civil libertarians agreed that the existing laws
were outdated, but for precisely the opposite reason - because they
already gave the government access to immense amounts of information
unavailable a decade ago. Handing investigators even more power, they
warned, would lead to privacy invasions and abuses.
They stared at a television in the bright sunroom of Dinh's Chevy
Chase home, a handful of policy specialists from the Justice
Department who wondered what to do next. Only hours before, they had
fled their offices, cringing as fighter jets patrolled Washington's
skies. Now, as news programs replayed the destruction, they talked
about their friend Barbara Olson, conservative commentator and wife of
Solicitor General Ted Olson. She was aboard American Airlines Flight
77 when it crashed into the Pentagon.
Dinh couldn't believe Barbara was gone. He'd just had dinner at the
Olsons' house two nights before, and she had been in rare form. Her
humor was irrepressible. Dinh passed around a book of photography she
had signed and given to him and the other dinner guests, Washington,
D.C.: Then and Now.
It was hard to process so much death amid so much sunshine. Dinh and
his colleagues tried to focus on the work ahead. They agreed they
faced a monumental, even historic task: a long-overdue reworking of
anti-terrorism laws to prevent something like this from happening
again on American soil. Their marching orders came the next morning,
as they reconvened in a conference room in Dinh's suite of offices on
the fourth floor of Justice. Ashcroft wasn't there - he was in hiding
along with other senior government officials. Just before the meeting,
Dinh had spoken to Adam Ciongoli, Ashcroft's counselor, who conveyed
the attorney general's desires.
"Beginning immediately," Dinh told the half dozen policy advisers and
lawyers, "we will work on a package of authorities" - sweeping,
dramatic, and based on practical recommendations from FBI agents and
Justice Department lawyers in the field. "The charge [from Ashcroft]
was very, very clear: 'all that is necessary for law enforcement,
within the bounds of the Constitution, to discharge the obligation to
fight this war against terror,'" he said.
Dinh's enthusiasm for the task was evident. At thirty-four, he seemed
perpetually jazzed up, smiled often and spoke quickly, as though his
words, inflected with the accent of his native Vietnam, couldn't keep
up with his ideas. A graduate of Harvard Law School, he had learned
his way around Washington as an associate special counsel to the
Senate Whitewater committee, and as a special counsel to Senator Pete
Domenici (R-N.M.) during the Clinton impeachment trial. "What are the
problems?" Dinh asked the group around the table.
For the next several hours - indeed, over the next several days -
Dinh's colleagues catalogued gripes about the legal restraints on
detective and intelligence work. Some of the complaints had been
bouncing around the FBI and Justice Department for years. Because of
the law's peculiarities, it was unclear if investigators were allowed
to track the destination and origin of email the same way they could
phone calls. They could obtain search warrants more easily for a
telephone tape machine than for commercial voice-mail services. And
the amount of information that intelligence agents and criminal
investigators were permitted to share was limited, making it much
harder to target and jail terrorists.
All of this, the lawyers agreed, had to change. Now.
Jim Dempsey was swamped. Reporters, other activists, congressional
staffers - everyone wanted his take on how far the Justice Department
and Congress would go in reaction to the attacks. "We were getting
fifty calls a day," he recalled. Dempsey knew Congress would not have
the will to resist granting dramatic new powers to law enforcement. It
was a classic dynamic: Something terrible happens. Legislators rush to
respond. They don't have time to investigate the policy implications
thoroughly, so they reach for what's available and push it through.
That was a nightmare for Dempsey. Looking for signs of hope that the
legislative process could be slowed, even if it could not be stopped,
he made his own calls around town. "A crisis mentality emerges, and
there was clearly a crisis.... The push for action, the appearance of
action, becomes so great."
Within days of the attack, a handful of lawmakers took to the Senate
floor with legislation that had been proposed and shot down in recent
years because of civil liberties concerns. Many of the proposals had
originally had nothing to do with terrorism. One bill, called the
Combating Terrorism Act, proposed expanding the government's authority
to trace telephone calls to include email. It was a legacy of FBI
efforts to expand surveillance powers during the Clinton
administration, which had supported a variety of technology-oriented
proposals opposed by civil libertarians. Now it was hauled out and
approved in minutes.
One of the few voices advocating calm deliberation was Patrick Leahy.
It was not clear what he would be able to do in such a highly charged
Across the city and across the country, other civil libertarians
braced themselves for the fallout from the attacks. Among them was
Morton Halperin, former head of the Washington office of the American
Civil Liberties Union and a former national security official in three
administrations. Halperin, a senior fellow at the Council on Foreign
Relations, was personally familiar with government surveillance.
While working as a National Security Council staffer in the Nixon
administration, Halperin was suspected of leaking information about
the secret U.S. bombing of Cambodia. His house was wiretapped by the
FBI, and the taps continued for months after he left the government.
Now, twenty-four hours after the attacks, he read an email from a
member of an online group that had been formed to fight a Clinton
administration plan to make publishing classified materials a crime.
The writer warned the plan would be reprised. Halperin had been
anticipating this moment for years. More than a decade ago, he wrote
an essay predicting that terrorism would replace communism as the main
justification for domestic surveillance. "I sat and stared at that
email for a few minutes and decided that I could not do my regular
job, that I had to deal with this," he would say later.
Halperin banged out a call to arms on his computer. "There can be no
doubt that we will hear calls in the next few days for congress to
enact sweeping legislation to deal with terrorism," he wrote in the
email to more than two dozen civil libertarians on September 12. "This
will include not only the secrecy provision, but also broad authority
to conduct electronic and other surveillance and to investigate
political groups.... We should not wait."
Within hours, Jim Dempsey, Marc Rotenberg from the Electronic Privacy
Information Center, and others had offered their support. Their plan:
To build on Halperin's call for legislative restraint while striking a
sympathetic note about the victims of the attacks. They started
putting together a meeting to sign off on a civil liberties manifesto:
"In Defense of Freedom at a Time of Crisis."
Underlying the discussion about how to respond to the terror attacks
was the mid-1970s investigation, led by Senator Frank Church
(D-Idaho), into the government's sordid history of domestic spying.
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