America's new Department of Homeland Security won't enhance security, but will endanger liberty.
‘I and just about every agent in the FBI lays awake at night, wanting to make certain that we have done everything we can to assure that we prevent the next terrorist attack’ (1).
FBI (2) director Robert Mueller hasn’t been getting much sleep lately. Nor have the other members of his bureau, who seem to be constantly jumping at their own shadow. NASA’s next routine Space Shuttle mission is being considered a likely terrorist target by US intelligence, as one of the astronauts is of Israeli extraction. And the FBI is canvassing scuba diving shops nationwide, looking for would-be underwater terrorists (3).
All it took recently was for an al-Qaeda prisoner to made a cryptic reference to the film Godzilla – in which New York’s Statue of Liberty and Brooklyn Bridge are attacked by a giant lizard – for New York to be placed on full alert by the FBI (4).
The FBI clearly wants to be seen as keeping busy, following the drubbing it received at the hands of Congress for its failure to anticipate the 11 September attacks.
In recent hearings before the Senate Judiciary Committee (5), congressional investigators were given evidence that the US intelligence agencies bungled several opportunities to detect and prevent the events of 11 September (6). The hearings took place amid a series of spats, in which the general counsel of the FBI’s Minneapolis office accused her own bureau of hindering crucial investigations into terrorism. The FBI and CIA (7) accused each other of the same thing (8).
Reasons given for intelligence failures ranged from stifling bureaucracy and lack of communication, to the revelation that the FBI currently lacks intelligence tools that are commonly available to US schoolchildren. Perhaps most embarrassing was the fact that five of the 11 September hijackers lived in a motel right outside the gates of the US authorities’ largest spy organisation, the National Security Agency (9).
US President George W Bush’s response to the findings was to go on national TV to announce ‘a permanent Cabinet-level Department of Homeland Security to unite essential agencies that must work more closely together’ (10).
This new department will consolidate 100 government agencies into a single super-agency, employing 170,000 people and operating on a budget of $37billion – making this the most extensive overhaul of the federal government since the Second World War. Congressional leaders predict that plans for the new department will be approved within three months (11).
But what can his new department achieve, that all of the restructuring of US intelligence since 11 September hasn’t? After all, Robert Mueller and the US attorney general John Ashcroft have been busily reinventing the FBI for several months now.
Even before the Senate Judiciary Committee hearings, the FBI was attacked for failing to exercise sufficient power. One article – published in the USA with the provocative title ‘Does political correctness kill?’, and in the UK with the even more provocative title ‘Stop frisking crippled nuns’ – argued that ‘no one at the FBI…wanted to be seen to be noticing funny behaviour by Arabs’, prior to 11 September. ‘Thousands of Americans died because of ethnic squeamishness by federal agencies.’ (12)
This kind of criticism is not been confined to the USA. The head of the Belgian secret service resigned amid complaints that political correctness prevented her from monitoring mosques for anti-terrorist purposes (13). The idea that fighting terrorism should take precedence over ethnic sensibilities has emboldened the FBI to announce plans to fingerprint, photograph and register 100,000 foreign visitors at US borders over the next year (14).
It is unlikely that the FBI would have introduced this scheme before 11 September, for fear of public outrage. But post-11 September, criticisms of state intrusion and ethnic bias no longer have the same currency. After all, as the National Post points out, ‘every single person on the FBI’s Most Wanted Terrorist List, which catalogues people wanted for participating in terrorist crimes since 1985, is a young or middle-aged Arabic-speaking Muslim male with dark brown or black hair, dark eyes and an olive or dark complexion’ (15).
The FBI has also undergone a thorough revision of its entire purpose and orientation. Over a third of the FBI’s senior executives were recently replaced. The War on Drugs, the project that most defined the FBI in political terms, has now been subsumed under the priority of combating terrorism. FBI anti-drug units have been reduced by 400 agents, and Mueller has declared that the FBI’s top three priorities are counterterrorism, combating espionage, and countering cyberattacks (16).
Mueller intends to hire 900 new FBI agents by September 2002, and to devote permanently 2600 agents – almost a quarter of the bureau – to counterterrorism. From now on, the FBI will be ‘proactive, not reactive’, says Mueller (17). John Ashcroft has approved new Justice Department guidelines, giving FBI agents latitude to monitor libraries, religious institutions and the internet in the course of their investigative work – without any requirement that there be prior evidence of potential criminal activity (18).
For a long time now, US authorities have been keen to free themselves from the restrictions under which they operate. US prosecutors attempting to track down a computer hacker recently subpoenaed an MSNBC reporter’s notes, emails and other information, but were forced to withdraw the subpoena because it lacked the approval necessary under US law (19). 11 September is being taken as a green light to discard such restrictions.
While the impact of the Department of Homeland Security remains to be seen, the FBI is already running riot over Americans’ civil liberties. But the upgraded FBI and the prospective new government department do have certain things in common. They were both developed in secret, and they were both announced with a deliberate minimum of public and political debate.
The restructuring of US intelligence has been so clandestine that Bush’s chief of staff was reportedly nonplussed at the FBI’s change in direction being announced over his head. The New York Times points out that changes to Justice Department guidelines were brought about ‘by executive fiat: no public discussion, no Congressional action, no judicial guidance’ (20).
While empowering its intelligence agencies, the Bush administration has withdrawn from public scrutiny. ‘Remember John Ashcroft? He used to be the attorney general’, sneers the LA Weekly, which goes on to complain that the ‘mad-dog scourge of civil libertarians…has become the Bush administration’s invisible man’ (21).
The proposal for the Department of Homeland Security was designed by four senior aides in a bunker-style secure room beneath the White House. Utmost secrecy surrounded all plans for the new department, right up until Bush’s TV announcement. Not a single Cabinet secretary was consulted on the proposal, and most of the senior officials affected by it heard about it on the news (22).
But such autocratic policymaking is not unusual in post-11 September America. The US authorities have been granting themselves ever-increasing powers, with an ever-decreasing willingness to expose themselves to debate. For example, spiked has traced the way that American debate about civil liberties was stifled in the name of security during the development of the Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act (see Online insecurity).
A recent report compiled by the American Civil Liberties Union (ACLU) (23) – Insatiable Appetite: The Government’s Demand for New and Unnecessary Powers After September 11 – traces the erosion of civil liberties from the USA PATRIOT Act through to the recently expanded powers of the intelligence agencies. According to the report, the three main ‘losses of liberty accrued with these new measures’ have been ‘an unprecedented and alarming new penchant for government secrecy’; ‘a disdain [for] and outright removal of the checks and balances that have been a cornerstone of America’s democracy for more than 225 years’; and ‘a refusal to protect the American value of equality before the law’ (24).
Most disturbingly, the report warns of the threat to free speech when ‘those who voice opposition to government policies’ are ‘branded unpatriotic’ (25). As John Ashcroft has said: ‘Those who scare peace-loving people with phantoms of lost liberty…only aid terrorists – for they erode our national unity and diminish our resolve’ (26).
There are still some politicians in the USA concerned about ‘phantoms of lost liberty’ – although it is a sign of the times that opposition to the FBI’s expanded powers has not come from any one political perspective. House Judiciary Committee (27) chair James Sensenbrenner, a staunch Republican, has forged an alliance with Judiciary Committee member John Conyers, an outspoken Democrat, in opposing Ashcroft’s policies (28).
Outside of Congress, both the ACLU and the Centre for Democracy and Technology (CDT) (29) have been quick to mount a critique of the FBI’s new powers, particularly raising concerns about the bureau’s intention to purchase data from commercial organisations, for use in its investigations.
‘Data mining’, the ACLU points out, is ‘used by spammers to determine that you may be interested in various sex devices…should it be relied upon to open a terrorism investigation of a person?’ The CDT spells out the distinction between commercial and state use of data: ‘direct marketers can only call you during dinnertime or mail you another credit card offer…the FBI can arrest you’ (30).
But criticism of the US authorities’ new regime, while welcome, has sometimes failed to grasp the essence of the problem. Both the leftist publication Mother Jones and the pro-market publication Reason have published lengthy profiles of John Ashcroft, attempting to comprehend his recent policies in psychological terms (31). Other commentators have drawn historical analogies, likening Ashcroft and Mueller to former FBI director J Edgar Hoover (32).
Depending on which newspaper you read, the Bush administration is currently either ‘reinventing the worst times of the Cold War’ or ‘developing a new strategic doctrine that moves away from the Cold War’ (33).
But new threats to civil liberties cannot be reduced either to psychological portraits or to history repeating itself. For a start, the erosion of civil liberties in the name of security extends far beyond the bounds of Capitol Hill. The ACLU points out that ‘the federal government is not alone in seeking to aggrandise its powers in the aftermath of 11 September…46 state legislatures will debate anti-terrorism bills in the coming year, many expanding local law enforcement powers’ (34).
According to Patricia J Williams, a law professor at Columbia University (35), the ‘expansion of domestic spying highlights the distinction between punishing what has already occurred and preventing what might happen in the future’ (36). Since the future is inherently unpredictable, a concerted endeavour to prevent future harm is a blank cheque for incursions upon individual liberty.
The category of ‘thoughtcrime’ was created by George Orwell in Nineteen Eighty-Four, and describes an offence where one is held to account for one’s (alleged) thoughts rather than for one’s (actual) deeds (37). ‘Thoughtcrime’ is not dissimilar from the categories now being employed by John Ashcroft. Defending the FBI’s new powers, Ashcroft explains that ‘if you want to prevent, you can’t limit your investigators to investigating only crimes that have been committed’ (38).
Similarly disconcerting is the claim, by one senior Justice Department official, that ‘we are turning the ship 180 degrees from prosecution of crimes as our main focus to the prevention of terrorist acts’. And President Bush sounds distinctly Orwellian when he urges Americans: ‘Go about your lives, but pay attention to your surroundings. Add your eyes and ears to the protection of our homeland.’ (39).
The old restrictions, which prevented the FBI from snooping without prior reason, represented important protections of civil liberties. They were originally introduced after a number of scandals in which the FBI was implicated, including its persecution of Martin Luther King (40). Today though, John Ashcroft complains that ‘men and women of the FBI…are frustrated because many of our own internal restrictions have hampered our ability to fight terrorism’. In his opinion, such restrictions provide terrorists with a dangerous ‘competitive advantage’ (41).
The FBI’s new powers are dangerous, and the Bush administration’s blatant disregard for civil liberties should give us all cause for concern. But it is also important to recognise that the US authorities’ attempts to re-establish control over their country is a consequence of the weakness of those institutions. No amount of reorganising the intelligence agencies is going to resolve that weakness – in fact, the most likely consequence will be further loss of control.
The Register correctly defines the ‘subtext’ of recent pronouncements by US intelligence as: ‘failures will be inevitable and ongoing if the FBI isn’t allowed to operate outside the law’ (42). This captures the strange dialectic between the powerlessness of the US authorities and their hunger for power. While the power of the authorities expands, with dire consequences for civil liberties, the actual intelligence they possess diminishes.
While incompetence and inefficiency may well exist in the intelligence agencies, and there may be some practical remedies to these shortcomings, the kind of handwringing and ‘what if?’ scenarios now going about Washington hold intelligence up to an impossible standard (43). Besides, the creation of a mammoth new bureaucracy, in the form of the proposed Department of Homeland Security, hardly seems a measure likely to resolve the shortcomings of existing bureaucracies.
The impossibility of attaining certain intelligence about future terrorism is accurately, if somewhat incoherently, summed up by US defence secretary Donald Rumsfeld, when he says: ‘There are no knowns….There are things we know that we know. There are known unkowns – that is to say, there are things that we now know we don’t know but there are also unknown unkowns. There are things we do not know we don’t know.’ (44)
All of which means that US intelligence has less justification, rather than more, for riding roughshod over our civil liberties. We can never guard absolutely against events such as 11 September. But a concerted, nationwide attempt to do so may have more destructive consequences than a single act of terrorism ever could.
Sandy Starr has consulted and written on internet regulation for the Organisation for Security and Cooperation in Europe, and for the European Commission research project RightsWatch. He is a contributor to Spreading the Word on the Internet: Sixteen Answers to Four Questions, Organisation for Security and Cooperation in Europe, 2003 (download this book (.pdf 576 KB)); From Quill to Cursor: Freedom of the Media in the Digital Era, Organisation for Security and Cooperation in Europe, 2003 (download this book (.pdf 399 KB)); and The Internet: Brave New World?, Hodder Murray, 2002 (buy this book from Amazon (UK) or Amazon (USA)).
Not-so-secret services, by Josie Appleton
‘We can never be safe – but at least we can be free’, by Jennie Bristow
spiked-issue: After 11 September
(1) ‘Ashcroft, Mueller: attacks inevitable’, Bob Dart Arizona Daily Star, 3 June 2002
(2) See the Federal Bureau of Investigation website
(3) See ‘NASA prepares for terror’, Broward Liston, Time, 4 June 2002; FBI puts scuba dive shops, schools on terrorism alert, Karen Brandon, Chicago Tribune, 6 June 2002
(4) See Prisoner’s vague words led to NY Terror Alert, Washington Post, Greg Smith, Michele McPhee and Richard Sisk, 27 May 2002
(5) See the United States Senate Committee on the Judiciary website
(6) See FBI and CIA on the defensive, Kevin Anderson, BBC News, 4 June 2002; Congress fattens its dossier on September 11 intelligence errors, Greg Miller, Los Angeles Times, 6 June 2002; Additional clues aid Congress’ 9/11 probe, William Neikirk and Stephen J Hedges, Chicago Tribune, 6 June 2002
(7) See the Central Intelligence Agency website
(8) See Not-so-secret services, by Josie Appleton
(9) See FBI whistle-blower assails bloated bureaucracy, Dan Eggen, Washington Post, 7 June 2002; FBI director promises change, BBC News, 6 June 2002; Tracking America’s most powerful spy agency, Tom Carver, BBC News, 8 June 2002
(10) Remarks by the president in address to the nation, George W Bush, 6 June 2002
(11) See Bush: Unite security forces, Frank James and Michael Kilian, Chicago Tribune, 7 June 2002; Lawmakers: bush’s plan will pass, with changes, Jim VandeHei,Washington Post, 8 June 2002
(12) Does political correctness kill?, Mark Steyn, National Post, 30 May 2002; Stop frisking crippled nuns, Mark Steyn, Spectator, 1 June 2002
(13) See Brussels and the civil liberties balance, Ian Black, Guardian, 7 June 2002
(14) See US unveils fingerprint plan, angers Arab groups, New York Times, 5 June 2002
(15) Profiling makes sense, National Post, 5 June 2002
(16) See How far do we want the FBI to go?, Michael Duffy and Nancy Gibbs, Time, 10 June 2002; FBI shake-up puts IT as a principal, Wilson P Dizard III, Washington Post, 29 May 2002
(17) See Senators question FBI director, Jesse J Holland, Chicago Tribune, 6 June 2002; Terrorism focus set for FBI, Susan Schmidt, Washington Post, 29 May; September 11 blunders lead to major FBI shake-up, Ananova, 30 May 2002
(18) FBI given more latitude, Susan Schmidt and Dan Eggen, Washington Post, 30 May 2002
(19) See US prosecutors subpoeana reporter, New York Times, 4 June 2002
(20) See How far do we want the FBI to go?, Michael Duffy and Nancy Gibbs, Time, 10 June 2002; J Edgar Mueller, William Safire, New York Times, 3 June 2002
(21) Indicting Ashcroft for bumbling before and after 9/11, Bruno Shapiro, LA Weekly, 31 May-6 June 2002
(22) See Plan was formed in utmost secrecy, Dana Milbank, Washington Post, 7 June 2002; Bush plan’s underground architects, David Von Drehle and Mike Allen, Washington Post, 9 June 2002
(23) See the American Civil Liberties Union website
(24) Insatiable Appetite: The Government’s Demand for New and Unnecessary Powers After September 11 (.pdf 733 KB), ACLU, p1
(25) Insatiable Appetite: The Government’s Demand for New and Unnecessary Powers After September 11 (.pdf 733 KB), ACLU, p10
(26) Testimony of Attorney General John Ashcroft, Senate Committee on the Judiciary, 6 December 2001
(27) See the US House of Representatives Committee on the Judiciary website
(28) See A conservative takes on Ashcroft, John Nichols, Nation, 4 June 2002
(29) See the Centre for Democracy and Technology website
(30) Brief analysis of proposed changes to attorney general guidelines, Marvin J Johnson, ACLU Washington National Office, 30 May 2002; CDT’s analysis of new FBI guidelines, CDT, 30 May 2002
(31) The fundamental John Ashcroft, David Corn, Mother Jones, March/April 2002; John Ashcroft’s power grab: the saga of a troubled – and troubling – attorney general, Brian Doherty, Reason, June 2002
(32) J Edgar Hoover Lives!, Nat Hentoff, Village Voice, 7 February 2002; J Edgar Mueller, William Safire, New York Times, 3 June 2002
(33) Cold war lesson: hotheads prevail, RC Longworth, Chicago Tribune, 2 June 2002; Bush developing military policy of striking first, Thomas E Ricks and Vernon Loeb, Washington Post, 10 June 2002
(34) Insatiable Appetite: The Government’s Demand for New and Unnecessary Powers After September 11 (.pdf 733 KB), ACLU, p10
(35) See the Columbia University website
(36) This dangerous patriot’s game, Patricia J Williams, Observer, 2 December 2001
(37) 1984, by George Orwell. Buy this book from Amazon (UK) or Amazon (USA). For an analysis of the relevance of 1984 to today’s society, see Why do we love Big Brother?, by Jennie Bristow
(38) FBI throws off post-Nixon shackles, Jan Cienski, National Post, 31 May 2002
(39) Government will ease limits on domestic spying by FBI, Don Van Natta Jr, New York Times, 30 May 2002; Remarks by the president in address to the nation, George W Bush, 6 June 2002
(40) See The Dangers of Domestic Spying by Federal Law Enforcement: A Case Study on FBI Surveillance of Dr Martin Luther King (.pdf 136 KB), ACLU
(41) Ashcroft permits FBI. to monitor internet and public activities, Neil A Lewis, New York Times, 30 May 2002; Ashcroft: old rules aided terrorists, Bill Miller, Washington Post, 31 May 2002
(42) FBI and CIA coming online with new powers, Thomas C Greene, Register, 30 May 2002
(43) See Not-so-secret services, by Josie Appleton
(44) Rumsfeld baffles press with ‘unknown unknowns’, ABC News, 7 June 2002
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