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I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Sunday, December 03, 2006

The Federal Government's domestic intelligence-gathering on U.S. citizens

(updated below - Update II)

The Associated Press reported Friday that the Department of Homeland Security, over the last several years, has been secretly compiling detailed records of the travel activities of American citizens and assigning "risk assessment" ratings based on a whole slew of related information it collects and stores -- assessments which citizens have no right to review and which will be maintained by the U.S. Government for the next 40 years, (via the excellent Wired blog 27B Stroke 6):

Without notifying the public, federal agents for the past four years have assigned millions of international travelers, including Americans, computer-generated scores rating the risk they pose of being terrorists or criminals.

The travelers are not allowed to see or directly challenge these risk assessments, which the government intends to keep on file for 40 years.

The scores are assigned to people entering and leaving the United States after computers assess their travel records, including where they are from, how they paid for tickets, their motor vehicle records, past one-way travel, seating preference and what kind of meal they ordered.

Federal law provides that citizens have the right to access records being maintained about them and to contest their accuracy, but Homeland Security has the power to exempt certain programs from that right of access, and -- needless to say -- it provided itself such an exemption here:

In the Federal Register, the Homeland Security Department exempted ATS from many provisions of the Privacy Act designed to protect people from secret, possibly inaccurate government dossiers. As a result, it said travelers cannot learn whether the system has assessed them. Nor can they see the records to contest the content.

Privacy advocates were previously able to force DHS to shut down a similar program which also collected data concerning purely domestic travel pending enhanced privacy protections, but the just-revealed DHS program has been proceeding for years without the public's knowledge.

It is also worth remembering -- because it seems to have disappeared almost completely from our public memory -- that USA Today revealed earlier this year that the NSA continues to compile comprehensive records of every telephone number which every person inside the U.S. calls, every telephone number from which they receive calls, and the duration of the calls. We hear about these things, express a day or so of outrage, and then proceed with docility to accept it:

“It’s the largest database ever assembled in the world,” the paper quoted one source as saying. The agency’s goal is “to create a database of every call ever made” within U.S. borders, it said the source added. . . .

Sen. Lindsey Graham of South Carolina, told Fox News Channel: “The idea of collecting millions or thousands of phone numbers — how does that fit into following the enemy?”

And all of that, of course, is to say nothing of the NSA's ability not just to document, but also to listen in on -- in secret and with no oversight -- any and all international calls which Americans make or receive.

Combined, all of this (i.e., the surveillance activities that we happen to know about) amounts to a vast amount of data that the Federal Government is now compiling and maintaining about the activities -- including the domestic activities -- of its citizens. The Department of Homeland Security has rapidly become a multi-tentacled agency of domestic intelligence, and the NSA -- which, for the first several decades of its existence, had as its first mandate that it would never be turned against Americans inside the U.S. -- is being used exactly for that purpose, in ways that we know about and in ways that we almost certainly do not know about.

Worse still -- far worse -- the Government has developed these capabilities and instituted them almost entirely in secret, with no oversight of any kind. And as this week's revelation of this years-long travel data surveillance program makes clear (as did the revelations of the NSA programs before that), there are almost undoubtedly entire spying and other data-collection programs of which we are still completely unaware -- "we" meaning not only American citizens, but also virtually none (if not none) of our representatives in Congress, or, for that matter, anyone else outside of the Bush administration.

If a Government is permitted to collect and maintain vast dossiers on its citizens, that information is going to be abused. Period. As James Bamford wrote last year in The New York Times:

Originally created to spy on foreign adversaries, the N.S.A. was never supposed to be turned inward. Thirty years ago, Senator Frank Church, the Idaho Democrat who was then chairman of the select committee on intelligence, investigated the agency and came away stunned.

"That capability at any time could be turned around on the American people," he said in 1975, "and no American would have any privacy left, such is the capability to monitor everything: telephone conversations, telegrams, it doesn't matter. There would be no place to hide."

I had an ultimately inconsequential but nonetheless quite illustrative personal experience with this several months ago. Back in July, when right-wing blogs were obsessed with investigating my personal life, including where I spend my time, this comment was left at Wizbang, in response to a July 21 post by Wizbang's Kevin Aylward:

Kevin,

Glenn Greenwald departed the United States on June 22, 2006 and hasn't come back since. If you want to know how I know that and more, send me an Email.

Posted by: Baggi at July 21, 2006 06:30 AM

The information provided there by "Baggi" was accurate. I left the U.S. on exactly June 22, and as of July 21, had not re-entered the country.

Knowing the date I exited the U.S. would not necessarily require access to a DHS data base. It would be possible, for instance, for someone to have known that I left the country on that date by having access to the records of the specific airline I used to travel. But to know -- as this commenter did -- that, as of the date of the comment, I had not re-entered the U.S. (even for a day, or a few hours), would absolutely require access to non-public DHS customs and immigration data bases compiling data regarding international travel. There is simply no other way to have known that (let alone the "and more" to which the commenter obliquely referred).

We're not supposed to have a Government which keeps track of what we do, absent some reasonable suspicion of wrongdoing. Even with the most well-intentioned administration, it is self-evidently dangerous to allow the Government to maintain vast dossiers on tens or hundreds of millions of citizens. Those dangers are exacerbated -- severely -- when, as has been the case to an unconscionable degree, the Government is permitted to do all of this almost entirely in the dark, with no meaningful checks or oversight of any kind. And again, those conclusions are compelled by what we already know about all of this. The universe of what we don't know is assuredly vast.

Personally, I am going to have very little patience, understanding and tolerance for those who argue -- and there will be plenty of them, found everywhere -- that Democrats should use their new Congressional powers to investigate this administration only tepidly, delicately, and in the most limited and focus-group-tested ways. There is absolutely a need to ensure that investigations proceed in an orderly way and that they not be driven by vindictiveness. That's all well and true.

But along with the rule of law, the idea that we are supposed to have a transparent and open government -- one which operates in secret only in rare and extraordinary circumstances, i.e., when it truly needs to, not as a matter of course -- has been so discredited and forgotten that we almost reflexively accept, in a disturbingly sheep-like way, that we need not and should not know what the Government is doing because that is what is best for us (just like we reflexively accept that they can violate the laws we enact because that, too, is best for us).

Surveillance technology is only becoming more potent, as is -- in some circles -- the mentality that the Government's claimed need to "protect us" means that its power to monitor what we do ought to be unlimited. Those two trends -- increasingly potent surveillance abilities combined with an increasingly submissive and authoritarian-minded public -- have the potential, actually the likelihood, to create all sorts of undesirable outcomes, to put it quite mildly.

The last thing that ought to happen is that these matters get decided without public awareness, let alone debate. If our Government thinks it has good reason to start monitoring our actions and collecting and storing detailed data about how we live our lives -- including the millions of citizens suspected of no crimes -- then it ought to say what it wants to do and we can then debate if it ought to have that power. Why is that proposition controversial? (Apparently, like the prior disclosures about domestic spying, there was no national security reason to conceal this program, since it was the Government itself which, after several years of collecting this information, just disclosed the travel data program in the Federal Register).

Aggressively investigating what the administration has been doing over the last five years, behind the impenetrable wall of secrecy it erected, is not an option, and it isn't something to do for drama, political gain, or emotional retribution. It is vital because our democracy can only function if citizens know what its Government is doing.

There is more than ample ground for believing that this administration has engaged in all sorts of wrongdoing and lawbreaking. Even if that were not the case, there are all sorts of questions that ought to be publicly debated, not decided by Dick Cheney in the dark. There is no good or even decent argument -- none -- for believing that those matters ought to be simply left unexplored and undisturbed by Congressional Democrats due to some unseemly eagerness to show how "moderate" they are in order to maximize their prospects in the 2008 elections.

UPDATE: I have a post at C&L regarding the warrior GOP Congressman from Indiana, Mike Pence.

UPDATE II: Via some creative Google and Technorati searches and the like, Todd Larason and Mona in comments have rather conclusively established that the "Baggi" referenced above is (or at least repeatedly claims on right-wing blogs to be) an employee of the Department of Homeland Security.

As I said in comments, I'm not trying to suggest that this incident is the result of some exotic data-collection program, but am only using it to illustrate not just the potential -- but the inevitability -- of abuse when the Government collects and maintains information about the activities of its citizens.

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