History Repeated: The Dangers of Domestic Spying by Federal Law Enforcement (ACLU) In the early 1970s, revelations about the FBI spying on innocent Americans shocked the country. Led by Senator Frank Church, Congress thoroughly investigated allegations of FBI abuses and made recommendations to prevent further abuse. What the Church Committee found was breathtaking. From the 1950s through the early 1970s, the FBI and other intelligence agencies launched various domestic programs to spy on Americans. Political dissidents, anti-war activists, civil rights activists, groups from the left to the right were infiltrated, disrupted, and harassed, often for nothing more than exercising their First Amendment rights.2 For example, government agents infiltrated the “Womenʼs Liberation Movement.” FBI sources reported on the formation of the Conservative American Christian Action Council, and even collected information about the anti-Communist John Birch Society.3 The NAACP was investigated to determine if it “had connections with” the Communist Party. In the first year of the investigation, the FBI issued a report stating that the NAACP had a “strong tendency” to “steer clear of Communist activities.” No evidence was ever adduced by the FBI to rebut this report, yet the FBI investigation continued for a total of twenty-five years. The FBI harassed and investigated Dr. Martin Luther King, Jr. for decades in order to destroy his reputation.5 The FBI saw him as a potential threat because he might “abandon his supposed ʻobedienceʼ to white liberal doctrines (non-violence).” “In short, a nonviolent man was to be secretly attacked and destroyed as insurance against his abandoning non-violence.” In 1976, the Church Committee released its report on Intelligence Activities and the Rights of Americans. The extent of the FBIʼs spying campaign was shocking: • • • • • • • • Between 1960 and 1974, the FBI kept files on one million Americans, and investigated 500,000 so-called “subversives” – all without a single court conviction.8 In 1972 alone, the FBI opened 65,000 domestic intelligence files. The Church Committee found that intelligence collection programs naturally generate increasing demands for new data, and once the data has been collected, strong pressures are exerted to use it against the target. The government often secretly spied upon citizens on the basis of their political beliefs, even when those beliefs posed no threat of violence or illegal acts. Groups and individuals were harassed and disrupted because of their political views and lifestyles The FBI used intrusive techniques such as wiretaps, microphone “bugs,” surreptitious mail opening and break-ins, sweeping in vast amounts of information about the personal lives, views, and associations of American citizens. Investigations were based on vague standards whose breadth made excessive collection of information inevitable. Unsavory and vicious tactics were employed by the FBI, including anonymous attempts to break up marriages, disrupting meetings, ostracizing people from their professions, and provoking target groups into rivalries that could have resulted in deaths. Intelligence agencies have served the political and personal objectives of presidents and other high officials. Every administration from Franklin D. Roosevelt to Richard Nixon had “permitted, and sometimes encouraged, government agencies to handle essentially political intelligence.”
People often say that they have nothing to hide because they arenʼt doing anything wrong. Having the FBI spy on them doesnʼt make any difference to them. The Church Committee noted, however, that “[i]ntelligence activity. . .is generally covert. It is concealed from its victims and is seldom described in statutes or explicit executive orders. The victim may never suspect that his misfortunes are the intended result of activities undertaken by his government, and accordingly may have no opportunity to challenge the actions taken against him.”
After the attacks of September 11, 2001, the Department of Justice and the FBI saw an opportunity to expand the FBIʼs authority. Arguing that the Domestic Guidelines were “outmoded” and at times “hobbled FBI counterterrorism efforts,” then-Attorney General Ashcroft decided to change the Domestic Guidelines to give the FBI a freer hand in investigations. Contrary to Ashcroftʼs assertions, the FBI already had the operational freedom and authority to gather the information needed to do its job. Investigations since September 11, 2001 demonstrated that the FBI was not “hamstrung” by the Domestic Guidelines. The Domestic Guidelines largely related to how to collect evidence rather than how to analyze the evidence collected. The problems the FBI exhibited prior to September 11 were from failure to analyze the evidence it had already collected. Amending the Domestic Guidelines to address this problem is akin to a fisherman who, unable to clean all the fish he catches, purchases a larger net. The Domestic Guidelines were adopted to put the FBI out of the business of spying on Americans when there was no evidence they were involved in criminal activity. They were designed to deal with three problems arising from abusive FBI investigations: • • • Surveillance of dissenters from government policy because they dissent, not because they may be involved in criminal activity; Inadequate supervision of agents who engaged in objectionable investigative techniques; and The use of unlawful or otherwise objectionable investigative techniques to disrupt the efforts of those who dissented.
The Ashcroft Guidelines reversed course and allowed the FBI to attend any public meetings it desired. “For the purpose of detecting or preventing terrorist activities, the FBI is authorized to visit any place and attend any event that is open to the public, on the same terms and conditions as members of the public generally. No information obtained from such visits shall be retained unless it relates to potential criminal or terrorist activity.” This was the same basis upon which the FBI sent agents into churches and other organizations during the civil rights movement, and then attempted to block the movement, suppress dissent, and protect the administration. Monitoring of Anti-War Activities • In 2002, the FBI initiated a classified investigation into the activities of the Thomas Merton Center (TMC), an ecumenical anti-war and social justice organization, noting that the center “holds daily leaflet distribution activities in downtown Pittsburgh and is currently focused on its opposition to the potential war with Iraq. According to these leaflets, Iraq does not possess weapons of mass destruction.” The FBI memo describes the TMC as “a left-wing organization advocating, among many political causes, pacifism.” The FBI highlights an upcoming TMC event whose purpose is to “bring all people of Pittsburgh together in understanding and respecting each other and also to inform them about Islam and Muslims.” The memo notes, “one female leaflet distributor…appeared to be of • Middle Eastern decent.” • As part of a “domestic terrorism” investigation, the JTTF conducted surveillance of a Denver bookstore on February 15, 2003 and monitored forty people who gathered there to carpool to an anti-war demonstration in Colorado Springs. The document reports that FBI agents spent two hours watching Breakdown Bookstore and recorded the descriptions and license plate number of a dozen cars “in the vicinity” of the political bookstore. • Another FBI memorandum indicates that the FBI opened an investigation into an anti-war march on the basis of announcements the agency found on the Web sites of Rocky Mountain Peace and Justice Center and the Colorado Campaign for Middle East Peace. The document notes that organizers are “hyping the demonstration as the ʻbiggest peace rally in the history of Colorado.ʼ” The FBI reports that it will “effect surveillance” at the Denver location and relay information to FBI agents working with city police in Colorado Springs. Monitoring of Other Protest Activity • A “Call to Action Against Columbus Day” appears in a “counterterrorism” file calling for the opening of an FBI investigation into the event, even though “the majority of demonstrators at the Columbus Day events will be peaceful.” The report describes the Call to Action as a “week-long anti-capitalist convergence” and mentions various anarchist and diversity groups. • Several other FBI documents demonstrate the agencyʼs interest in Food Not Bombs, a group that opposes the governmentʼs prioritization of war and military programs over solving domestic social ills and that serves vegetarian meals to the homeless. An FBI report written in December 2004 focuses on Sarah Bardwell, a young Denver activist who worked for the American Friends Service Committee for several years and who is also active in Food Not Bombs. Bardwell is listed as a “point of contact” for the organizers of a Denver anti-war protest and her address is “associated with” Food Not Bombs and a bicycle collective. A hidden world, growing beyond control (Washington Post) The top-secret world the government created in response to the terrorist attacks of Sept. 11, 2001, has become so large, so unwieldy and so secretive that no one knows how much money it costs, how many people it employs, how many programs exist within it or exactly how many agencies do the same work. These are some of the findings of a two-year investigation by The Washington Post that discovered what amounts to an alternative geography of the United States, a Top Secret America hidden from public view and lacking in thorough oversight. After nine years of unprecedented spending and growth, the result is that the system put in place to keep the
United States safe is so massive that its effectiveness is impossible to determine. The investigation's other findings include: • • • Some 1,271 government organizations and 1,931 private companies work on programs related to counterterrorism, homeland security and intelligence in about 10,000 locations across the United States. An estimated 854,000 people, nearly 1.5 times as many people as live in Washington, D.C., hold top-secret security clearances. In Washington and the surrounding area, 33 building complexes for top-secret intelligence work are under construction or have been built since September 2001. Together they occupy the equivalent of almost three Pentagons or 22 U.S. Capitol buildings about 17 million square feet of space. Many security and intelligence agencies do the same work, creating redundancy and waste. For example, 51 federal organizations and military commands, operating in 15 U.S. cities, track the flow of money to and from terrorist networks. Analysts who make sense of documents and conversations obtained by foreign and domestic spying share their judgment by publishing 50,000 intelligence reports each year - a volume so large that many are routinely ignored. These are not academic issues; lack of focus, not lack of resources, was at the heart of the Fort Hood shooting that left 13 dead, as well as the Christmas Day bomb attempt thwarted not by the thousands of analysts employed to find lone terrorists but by an alert airline passenger who saw smoke coming from his seatmate. They are also issues that greatly concern some of the people in charge of the nation's security."There has been so much growth since 9/11 that getting your arms around that - not just for the DNI [Director of National Intelligence], but for any individual, for the director of the CIA, for the secretary of defense - is a challenge," Defense Secretary Robert M. Gates said in an interview with The Post last week. In the Department of Defense, where more than two-thirds of the intelligence programs reside, only a handful of senior officials - called Super Users - have the ability to even know about all the department's activities. But as two of the Super Users indicated in interviews, there is simply no way they can keep up with the nation's most sensitive work. "I'm not going to live long enough to be briefed on everything" was how one Super User put it. The other recounted that for his initial briefing, he was escorted into a tiny, dark room, seated at a small table and told he couldn't take notes. Program after program began flashing on a screen, he said, until he yelled ''Stop!" in frustration. "I wasn't remembering any of it," he said. Underscoring the seriousness of these issues are the conclusions of retired Army Lt. Gen. John R. Vines, who was asked last year to review the method for tracking the Defense Department's most sensitive programs. Vines, who once commanded 145,000 troops in Iraq and is familiar with complex problems, was stunned by what he discovered. "I'm not aware of any agency with the authority, responsibility or a process in place to coordinate all these interagency and commercial activities," he said in an interview. "The complexity of this system defies description." The result, he added, is that it's impossible to tell whether the country is safer because of all this spending and all these activities. "Because it lacks a synchronizing process, it inevitably results in message dissonance, reduced effectiveness and waste," Vines said. "We consequently can't effectively assess whether it is making us more safe." *** Every day across the United States, 854,000 civil servants, military personnel and private contractors with top-secret security clearances are scanned into offices protected by electromagnetic locks, retinal cameras and fortified walls that eavesdropping equipment cannot penetrate. This is not exactly President Dwight D. Eisenhower's "military-industrial complex," which emerged with the Cold War and centered on building nuclear weapons to deter the Soviet Union. This is a national security enterprise with a more amorphous mission: defeating transnational violent extremists. Much of the information about this mission is classified. That is the reason it is so difficult to gauge the success and identify the problems of Top Secret America, including whether money is being spent wisely. The U.S. intelligence budget is vast, publicly announced last year as $75 billion, 21/2 times the size it was on Sept. 10, 2001. But the figure doesn't include many military activities or domestic counterterrorism programs.
With the quick infusion of money, military and intelligence agencies multiplied. Twenty-four organizations were created by the end of 2001, including the Office of Homeland Security and the Foreign Terrorist Asset Tracking Task Force. In 2002, 37 more were created to track weapons of mass destruction, collect threat tips and coordinate the new focus on counterterrorism. That was followed the next year by 36 new organizations; and 26 after that; and 31 more; and 32 more; and 20 or more each in 2007, 2008 and 2009.
At least 20 percent of the government organizations that exist to fend off terrorist threats were established or refashioned in the wake of 9/11. Many that existed before the attacks grew to historic proportions as the Bush administration and Congress gave agencies more money than they were capable of responsibly spending. The Pentagon's Defense Intelligence Agency, for example, has gone from
7,500 employees in 2002 to 16,500 today. The budget of the National Security Agency, which conducts electronic eavesdropping, doubled. Thirty-five FBI Joint Terrorism Task Forces became 106. It was phenomenal growth that began almost as soon as the Sept. 11 attacks ended. Nine days after the attacks, Congress committed $40 billion beyond what was in the federal budget to fortify domestic defenses and to launch a global offensive against al-Qaeda. It followed that up with an additional $36.5 billion in 2002 and $44 billion in 2003. That was only a beginning. In all, at least 263 organizations have been created or reorganized as a response to 9/11. Each has required more people, and those people have required more administrative and logistic support: phone operators, secretaries, librarians, architects, carpenters, construction workers, air-conditioning mechanics and, because of where they work, even janitors with top-secret clearances. With so many more employees, units and organizations, the lines of responsibility began to blur. To remedy this, at the recommendation of the bipartisan 9/11 Commission, the George W. Bush administration and Congress decided to create an agency in 2004 with overarching responsibilities called the Office of the Director of National Intelligence (ODNI) to bring the colossal effort under control. ...There is a long explanation for why these databases are still not connected, and it amounts to this: It's too hard, and some agency heads don't really want to give up the systems they have. But there's some progress: "All my e-mail on one computer now," Leiter says. "That's a big deal." National Security Inc. (Washington Post) To ensure that the country's most sensitive duties are carried out only by people loyal above all to the nation's interest, federal rules say contractors may not perform what are called "inherently government functions." But they do, all the time and in every intelligence and counterterrorism agency, according to a two-year investigation by The Washington Post. What started as a temporary fix in response to the terrorist attacks has turned into a dependency that calls into question whether the federal workforce includes too many people obligated to shareholders rather than the public interest -- and whether the government is still in control of its most sensitive activities. In interviews last week, both Defense Secretary Robert M. Gates and CIA Director Leon Panetta said they agreed with such concerns. The Post investigation uncovered what amounts to an alternative geography of the United States, a Top Secret America created since 9/11 that is hidden from public view, lacking in thorough oversight and so unwieldy that its effectiveness is impossible to determine. It is also a system in which contractors are playing an ever more important role. The Post estimates that out of 854,000 people with top-secret clearances, 265,000 are contractors… Most of these contractors do work that is fundamental to an agency's core mission. As a result, the government has become dependent on them in a way few could have foreseen: wartime temps who have become a permanent cadre. There is no better example of the government's dependency on them than at the CIA, the one place in government that exists to do things overseas that no other U.S. agency is allowed to do. Private contractors working for the CIA have recruited spies in Iraq, paid bribes for information in Afghanistan and protected CIA directors visiting world capitals. Contractors have helped snatch a suspected extremist off the streets of Italy, interrogated detainees once held at secret prisons abroad and watched over defectors holed up in the Washington suburbs. At Langley headquarters, they analyze terrorist networks. At the agency's training facility in Virginia, they are helping mold a new generation of American spies. ..close to 30 percent of the workforce in the intelligence agencies is contractors. "For too long, we've depended on contractors to do the operational work that ought to be done" by CIA employees, Panetta said. But replacing them "doesn't happen overnight. When you've been dependent on contractors for so long, you have to build that expertise over time."
A second concern of Panetta's: contracting with corporations, whose responsibility "is to their shareholders, and that does present an inherent conflict." Or as Gates, who has been in and out of government his entire life, puts it: "You want somebody who's really in it for a career because they're passionate about it and because they care about the country and not just because of the money." Contractors can offer more money - often twice as much - to experienced federal employees than the government is allowed to pay them. And because competition among firms for people with security clearances is so great, corporations offer such perks as BMWs and $15,000 signing bonuses, as Raytheon did in June for software developers with top-level clearances. The idea that the government would save money on a contract workforce "is a false economy," said Mark M. Lowenthal, a former senior CIA official and now president of his own intelligence training academy.
As companies raid federal agencies of talent, the government has been left with the youngest intelligence staffs ever while more experienced employees move into the private sector. This is true at the CIA, where employees from 114 firms account for roughly a third of the workforce, or about 10,000 positions. Many of them are temporary hires, often former military or intelligence agency employees who left government service to work less and earn more while drawing a federal pension. Contractors kill enemy fighters. They spy on foreign governments and eavesdrop on terrorist networks. They help craft war plans. They gather information on local factions in war zones. They are the historians, the architects, the recruiters in the nation's most secretive agencies. They staff watch centers across the Washington area. They are among the most trusted advisers to the four-star generals leading the nation's wars. So great is the government's appetite for private contractors with topsecret clearances that there are now more than 300 companies, often nicknamed "body shops," that specialize in finding candidates, often for a fee that approaches $50,000 a person, according to those in the business. Making it more difficult to replace contractors with federal employees: The government doesn't know how many are on the federal payroll. Gates said he wants to reduce the number of defense contractors by about 13 percent, to pre-9/11 levels, but he's having a hard time even getting a basic head count. "This is a terrible confession," he said. "I can't get a number on how many contractors work for the Office of the Secretary of Defense," referring to the department's civilian leadership. With so much money to spend, managers do not always worry about whether they are spending it effectively. "Someone says, 'Let's do another study,' and because no one shares information, everyone does their own study," said Elena Mastors, who headed a team studying the al-Qaeda leadership for the Defense Department. "It's about how many studies you can orchestrate, how many people you can fly all over the place. Everybody's just on a spending spree. We don't need all these people doing all this stuff." Monitoring America Nine years after the terrorist attacks of 2001, the United States is assembling a vast domestic intelligence apparatus to collect information about Americans, using the FBI, local police, state homeland security offices and military criminal investigators. The system, by far the largest and most technologically sophisticated in the nation's history, collects, stores and analyzes information about thousands of U.S. citizens and residents, many of whom have not been accused of any wrongdoing. The government's goal is to have every state and local law enforcement agency in the country feed information to Washington to buttress the work of the FBI, which is in charge of terrorism investigations in the United States. The months-long investigation, based on nearly 100 interviews and 1,000 documents, found that: • • Technologies and techniques honed for use on the battlefields of Iraq and Afghanistan have migrated into the hands of law enforcement agencies in America. The FBI is building a database with the names and certain personal information, such as employment history, of thousands of U.S. citizens and residents whom a local police officer or a fellow citizen believed to be acting suspiciously. It is accessible to an increasing number of local law enforcement and military criminal investigators, increasing concerns that it could somehow end up in the public domain. Seeking to learn more about Islam and terrorism, some law enforcement agencies have hired as trainers self-described experts whose extremist views on Islam and terrorism are considered inaccurate and counterproductive by the FBI and U.S. intelligence agencies. The Department of Homeland Security sends its state and local partners intelligence reports with little meaningful guidance, and state reports have sometimes inappropriately reported on lawful meetings. "The old view that 'if we fight the terrorists abroad, we won't have to fight them here' is just that the old view," Homeland Security Secretary Janet Napolitano told police and firefighters recently.
The need to identify U.S.-born or naturalized citizens who are planning violent attacks is more urgent than ever, U.S. intelligence officials say. This month's FBI sting operation involving a Baltimore construction worker who allegedly planned to bomb a Maryland military recruiting station is the latest example. It followed a similar arrest of a Somali-born naturalized U.S. citizen allegedly seeking to detonate a bomb near a Christmas tree lighting ceremony in Portland, Ore. There have been nearly two dozen other cases just this year.
The total cost of the localized system is also hard to gauge. The DHS has given $31 billion in grants since 2003 to state and local governments for homeland security and to improve their ability to find and protect against terrorists, including $3.8 billion in 2010. At least four other federal departments also contribute to local
efforts. But the bulk of the spending every year comes from state and local budgets that are too disparately recorded to aggregate into an overall total. The Post findings paint a picture of a country at a crossroads, where long-standing privacy principles are under challenge by these new efforts to keep the nation safe. *** On a recent night in Memphis, a patrol car rolled slowly through a parking lot in a run-down section of town. The military-grade infrared camera on its hood moved robotically from left to right, snapping digital images of one license plate after another and analyzing each almost instantly. Suddenly, a red light flashed on the car's screen along with the word "warrant." "Got a live one! Let's do it," an officer called out. The streets of Memphis are a world away from the streets of Kabul, yet these days, the same types of technologies and techniques are being used in both places to identify and collect information about suspected criminals and terrorists. The examples go far beyond Memphis. • • • Hand-held, wireless fingerprint scanners were carried by U.S. troops during the insurgency in Iraq to register residents of entire neighborhoods. L-1 Identity Solutions is selling the same type of equipment to police departments to check motorists' identities. In Arizona, the Maricopa County Sheriff's Facial Recognition Unit, using a type of equipment prevalent in war zones, records 9,000 biometric digital mug shots a month. U.S. Customs and Border Protection flies General Atomics' Predator drones along the Mexican and Canadian borders - the same kind of aircraft, equipped with real-time, full-motion video cameras, that has been used in wars in Kosovo, Iraq and Afghanistan to track the enemy.
The special operations units deployed overseas to kill the al-Qaeda leadership drove technological advances that are now expanding in use across the United States. On the front lines, those advances allowed the rapid fusing of biometric identification, captured computer records and cellphone numbers so troops could launch the next surprise raid. Here at home, it's the DHS that is enamored with collecting photos, video images and other personal information about U.S. residents in the hopes of teasing out terrorists. The DHS helped Memphis buy surveillance cameras that monitor residents near high-crime housing projects, problematic street corners, and bridges and other critical infrastructure. It helped pay for license plate readers and defrayed some of the cost of setting up Memphis's crime-analysis center. All together it has given Memphis $11 million since 2003 in homeland security grants, most of which the city has used to fight crime. Now, instead of having to decide which license plate numbers to type into a computer console in the patrol car, an officer can simply drive around, and the automatic license plate reader on his hood captures the numbers on every vehicle nearby. If the officer pulls over a driver, instead of having to wait 20 minutes for someone back at the office to manually check records, he can use a hand-held device to instantly call up a mug shot, a Social Security number, the status of the driver's license and any outstanding warrants. The computer in the cruiser can tell an officer even more about who owns the vehicle, the owner's name and address and criminal history, and who else with a criminal history might live at the same address. Take a recent case of two officers with the hood-mounted camera equipment who stopped a man driving on a suspended license. One handcuffed him, and the other checked his own PDA. Based on the information that came up, the man was ordered downtown to pay a fine and released as the officers drove off to stop another car. That wasn't the end of it, though. A record of that stop - and the details of every other arrest made that night, and every summons written - was automatically transferred to the Memphis Real Time Crime Center, a command center with three walls of streaming surveillance video and analysis capabilities that rival those of an Army command center. There, the information would be geocoded on a map to produce a visual rendering of crime patterns. This information would help the crime intelligence analysts predict trends so the department could figure out what neighborhoods to swarm with officers and surveillance cameras. But that was still not the end of it, because the fingerprints from the crime records would also go to the FBI's data campus in Clarksburg, W.Va. There, fingerprints from across the United States are stored, along with others collected by American authorities from prisoners in Saudi Arabia and Yemen, Iraq and Afghanistan. There are 96 million sets of fingerprints in Clarksburg, a volume that government officials view not as daunting but as an opportunity. This year for the first time, the FBI, the DHS and the Defense Department are able to search each other's fingerprint databases, said Myra Gray, head of the Defense Department's Biometrics Identity Management Agency, speaking to an industry group recently. "Hopefully in the not-too-distant future," she said, "our relationship with these federal agencies - along with state and local agencies will be completely symbiotic."