[Infowarrior] - Post-9/11 privacy and secrecy: A report card

Mon Sep 11 00:00:12 EDT 2006

Post-9/11 privacy and secrecy: A report card

By Declan McCullagh
http://news.com.com/Post-911+privacy+and+secrecy+A+report+card/2100-1028_3-6
113518.html

Story last modified Fri Sep 08 05:45:40 PDT 2006

This is the second in a two-part series that looks back at the five years
since Sept. 11, 2001. The first installment, published on Thursday, reviews
the government's mixed record using technology against terrorism.

news analysis In January, the U.S. government convened a public meeting at
the Marriott Hotel in Dulles, Va. The purpose was to ask area residents,
business owners and pilots what they thought about airspace security
restrictions near the nation's capital.

The extensive and complicated restrictions--imposed after the Sept. 11,
2001, terrorist attacks, supposedly as a temporary measure--drew an
overwhelmingly negative response. Lt. Cmdr. Tom Bush, for instance, a U.S.
Navy F-18 Hornet pilot who also flies a small general aviation plane, dubbed
them simply irrational.

Soon afterward, the Defense Department's North American Aerospace Defense
Command abruptly demanded that the meeting's transcript be yanked from a
government Web site--a move that some attendees attributed to the harsh
public criticism. After CNET News.com reported on the deletion in March, the
transcript was restored.

That incident highlights what has become an unmistakable trend in the five
years since the attacks on the World Trade Center and the Pentagon: The
federal government is concealing more information about its own activities,
while engaging in more surveillance of Americans' private lives.

"Controls on information are growing significantly, and official efforts to
exploit personal data are also on the rise," said Steven Aftergood, director
of the Project on Government Secrecy at the Federation of American
Scientists, or FAS.

The change has been dramatic. In the 1997 fiscal year, the federal
government spent $3.4 billion on securing classified information, a figure
that rose to $7.7 billion for 2005. Similarly, the government declassified
204 million pages of documents in 1997 but a mere 29.6 million in 2005.
(Those numbers come from calculations by OpenTheGovernment.org, an umbrella
group that includes FAS, the Reporters Committee for Freedom of the Press,
the Electronic Frontier Foundation, and the Society of Professional
Journalists.)

At the same time, surveillance of Americans by the federal government has
steadily increased. President Bush has acknowledged bypassing the checks and
balances of the courts when enlisting the National Security Agency in an
extensive surveillance program. Congress is discussing whether to rewrite
that law.

A lawsuit pending in San Francisco has yielded allegations of far more
extensive NSA surveillance. Former AT&T employee Mark Klein released
documents alleging the company spliced its fiber optic cables and ran a
duplicate set for the NSA to Room 641A at its 611 Folsom St. building in San
Francisco. Redacted documents show that AT&T has tried to offer benign
reasons for the existence of such a room. (AT&T refuses to comment.)
Listening in

The Bush administration has been especially secretive about the extent of
the NSA program and how it works. But even the far smaller number of known
wiretaps performed under court order has grown since 2001, government
statistics show. Not only has eavesdropping on criminal activities
increased, but Internet and telephone wiretaps performed under the Foreign
Intelligence Surveillance Act have roughly doubled from 2001 to 2005.

That has happened as executive branch agencies have become far more
resistant to Freedom of Information Act requests. "The very fabric of our
democracy is undergoing a kind of a mutation, in which access to information
is no longer a given," said FAS's Aftergood. "It's something that you
increasingly have to struggle for or make a conscious effort to obtain."

In addition, new justifications for not releasing unclassified government
documents to the public are proliferating. In the last few years,
especially, terms like "For Official Use Only," "Controlled But
Unclassified," "DEA Sensitive," "Confidential Business Information" have
appeared on more and more documents--even though, in almost all cases,
there's no legal justification for them.

"Such unchecked secrecy threatens accountability in governments and promotes
conflicts of interest by allowing those with an interest in disclosure or
concealment to decide between openness or secrecy," a recent report by
OpenTheGovernment.org states.

In addition, some expansions of government secrecy--perhaps including
NORAD's deletion of the transcript--appear to be driven by fear of public
criticism. In 2003, the U.S. Army surreptitiously pulled the plug on one of
its more popular Web sites after a report embarrassing to the military
appeared on it. In another example, the names of the members of the Defense
Science Board--an obscure but influential advisory body that influences
military policy and had a budget of $3.6 million a year--have vanished from
the group's public Web site.

That also happened in 2002 when the Defense Department tried to quell public
concern about the now-defunct Total Information Awareness project by
deleting files from the Web.

First, biographical information about TIA project leaders, including retired
Adm. John Poindexter, disappeared. Then the TIA site shrank even more, with
the slogan and logo for the TIA project--a Masonic pyramid that eyeballs the
globe--vanishing, a highly unusual move for any government agency. Finally,
a few weeks later, a diagram that explained the TIA project was erased.
For their part, the Bush administration and its allies argue that critics
are blind to the fact that the United States is embroiled in a war on terror
that could last for many more years.

Critics of such programs "seem surprised that we wouldn't tell the targets,
that we would keep surveillance secret," said Todd Gaziano, director of the
Center for Legal and Judicial Studies at the Heritage Foundation, a
conservative Washington, D.C., think tank, referring to the NSA program. "It
would be kind of laughable in any other era, and I don't know why it's not
laughable now."

Gaziano, who likened the Sept. 11 attacks to those on Pearl Harbor, said he
found it "absurd" that anyone would argue surveillance and secrecy have been
hallmarks of the Bush administration. Anyone who's read up on American
history should know that Woodrow Wilson and Franklin Delano Roosevelt
conducted far more sweeping interceptions during World Wars I and II, he
said.

"My theory is that we are not doing enough surveillance," Gaziano said.

"If Osama bin Laden calls up the next Mohammad Atta and says, 'Start
Operation Anthrax.' And then Mohammad Atta starts calling around to a
company inquiring about helicopter rides or about machinery that's useful in
milling anthrax, it doesn't matter whether the caller on the other side is a
legitimate, innocent American," he added. "We ought to know every plan."

Heather Mac Donald, a senior fellow at the conservative-oriented Manhattan
Institute for Policy Research, said she's unconvinced that any "significant
incursions" on civil liberties have occurred since Sept. 11. "This has been
one of the most law-abiding wars, overseen by lawyers at every step," she
said.

The Patriot Act's expansion of government powers, for instance, is "shot
through with checks and balances," she said. "There's hardly a power in it
that doesn't require some sort of judicial oversight. The government simply
doesn't have the resources available to be engaged in completely groundless
fishing expeditions or spying for the sake of spying."

And allegations of heightened government secrecy are just "preposterous,"
she added. Take, for instance, a Patriot Act provision that allows delayed
search warrants, permitting police to secretly enter a home and notify the
targeted person after the fact. "People thought that was improper, that
there should be full sunshine disclosure of terrorism investigations," Mac
Donald said. "Well, that's absolutely absurd."

Mac Donald acknowledged that she hadn't been persuaded by the Bush
administration's assertions that it had the power to ignore the Foreign
Intelligence Surveillance Act when authorizing the NSA to engage in
widespread surveillance of communications involving suspected terrorists.
But that's no reason to shut down the program, she said. The administration
could have resolved those concerns by simply asking for changes to FISA,
whose requirements of probable cause don't make sense "when you're initially
looking at computers working with large amounts of data."

"I think the NSA program is a good program and an essential program," she
added. "I don't think it has been used abusively to violate anybody's
privacy."

The level of surveillance conducted by the United States also pales in
comparison with other countries, particularly in Europe, said Gary Schmitt,
a resident scholar at the conservative-leaning American Enterprise
Institute.

"Even though we're far less intrusive than many people would suspect, the
intrusive capabilities we have are probably about right given the threat
that we face," Schmitt said. "I think we've probably got pretty much the
right balance."