— -- Every time you use your credit cards or a computerized pass to enter a building or to get by a toll booth, you're giving up personal information about yourself.
Author Robert O'Harrow takes a look at this trend and how it can affect your private life in his new book, "No Place To Hide."
Read chapter one of "No Place to Hide," by Robert O'Harrow.
Chapter 1: Six Weeks in Autumn
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 scene. 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 guys." 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 attack." 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 Watergate-era wiretaps. 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 atmosphere.
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. Through hundreds of interviews and the examination of tens of thousands of documents, the Church Committee found that the FBI, the CIA, and other government agencies had engaged in pervasive surveillance of politicians, religious organizations, women's rights advocates, anti-war groups, and civil liberties activists. At FBI headquarters in Washington, agents had developed more than half a million domestic intelligence files during the Cold War. The CIA had secretly opened and often photographed almost a quarter-million letters in the United States from 1953 to 1973. One of the most egregious intelligence abuses was an FBI counterintelligence program known as COINTELPRO. It was, the Church Report said, "designed to 'disrupt' groups and 'neutralize' individuals deemed to be threats to domestic security." Among other things, COINTELPRO operations included undermining the jobs of political activists, sending anonymous letters to "spouses of intelligence targets for the purposes of destroying their marriages," and a systematic campaign to undermine the Reverend Martin Luther King, Jr.'s, civil rights efforts through leaked information about his personal life. "Too many people have been spied upon by too many government agencies and too much information has been collected" through secret informants, wiretaps, bugs, surreptitious mail opening, and break-ins, the Church Report had warned.
Christopher Pyle, a professor at Mount Holyoke College, remembers those days well. In 1967 and 1968, while serving in the Army, he taught law at the Army's intelligence school at Fort Holabird, Maryland. One of his classes focused on CONUS intelligence and spot reports, the Army's shorthand for intelligence in the continental United States. No one told him exactly what to teach, so he concentrated on what he thought the Army might need to quell riots, the use of maps, layouts of city parks for bivouacs, the configuration of bridges, so that Army trucks would not get stuck under them or fall through them on the way to a crisis. One day an officer directly involved in actual CONUS intelligence operations approached him.
"Captain Pyle, you don't know much about this, do you?"
"No," Pyle said. "What can you tell me?"
Pyle and another instructor arranged for a briefing. They were taken to a huge building that once had been used to assemble railroad engines. It had a large black arch and, in one brightly lit room, an interior cage made of mesh wire. Pyle walked into the cage, where an officer showed him books containing mug shots. He looked in the first volume and saw a familiar face. It was Ralph David Abernathy, Martin Luther King's assistant. Officers called the books the "black list." As Pyle recalled it, they were actually labeled: persons active in civil disturbances. On a bench near the books was a stack of computer punch cards, the kind used in the 1960s to program the cutting-edge machines of the day. Written on the cards in pencil were the names of people whose information the cards contained. The top card was about Arlo Tatum, a man Pyle knew as the head of the Central Committee for Conscientious Objectors in Philadelphia, a group of activists who advised soldiers and others about their rights. Outside the cage, Pyle saw more than a dozen teletype machines. The head of the CONUS intelligence section told him they were spitting out reports from some fifteen hundred Army operatives about demonstrations with twenty people or more. Pyle was starting to understand how naive he'd been. He began formulating a plan. He would be getting out of the Army soon. He could tell the world about what was going on. When he joined the Army he took an oath to defend the country against all enemies, here and abroad. In his mind now, that included the Army's intelligence operation. They turned in their security badges and left the building.
"So I turned to the briefer and said, 'This is really terrific stuff. You are doing a great job. Do you have anything I can show my students?'" The briefer gave him teletype printouts for the week of March 11-18, 1968. One of the reports on it told of undercover Army agents attending a meeting at a Unitarian church. Pyle thanked him and turned in his security badge for the building. "It was very clear to me that we had just witnessed the essential apparatus of a police state," Pyle said. "It wasn't that these people were trying to create a police state. They were very nice people. The kind that you would want as your friends and neighbors. But they were creating a reporting apparatus that was covering millions of Americans engaged in completely lawful activity."
Pyle left the Army as planned, and in January 1970 he wrote a long story about the Army's vast and growing spy operations. The article, which won a Polk Award in 1971 for The Washington Monthly, began: "For the past four years, the U.S. Army has been closely watching civilian political activity within the United States."
Pyle's journalism provided one of the first major revelations about the depth and breadth of government spying. His stories prompted hearings by Senator Sam Ervin, which Pyle helped organize. As a result of the scrutiny, the Army soon shut down its domestic surveillance efforts. Similar operations came to light in the next few years, including those run by the FBI, CIA, and other agencies, and Congress responded to them as well. The result was a series of laws aimed at curbing government abuses. The Privacy Act of 1974 gave individuals new rights to know and correct what the government was collecting and sharing about them. The Foreign Intelligence Surveillance Act (FISA) of 1978 gave broad powers for counterintelligence officials to monitor the agents of foreign countries. It also created restrictions. Under FISA, authorities had to demonstrate, to the supersecret Foreign Intelligence Surveillance Court, that the principal purpose for their surveillance was foreign intelligence. But the law also restricted the use of those powers for domestic criminal investigations and prosecutions. Those laws provided ballast for civil liberties protections for three decades. Civil liberties activists even consider FISA a key safeguard against domestic spying. This despite all the secrecy surrounding it, and the fact that the FISA court almost never denied an application for electronic surveillance. Some conservatives have contended that the law created unnecessary, even absurd barriers between criminal and intelligence investigators. By the time of the Patriot Act debates, the Bush administration believed those barriers were getting in the way of uncovering terrorist cells operating in the United States and abroad. Law enforcement authorities chafed at internal guidelines imposed by the Justice Department in response to the Church Committee revelations. They claimed agents weren't allowed to monitor religious services without evidence of a crime, for instance, which made it hard to investigate mosques that might be harboring terrorists. Ashcroft claimed that the rules even prohibited investigators from surfing the Web for information about suspects. When Dinh and his team began taking stock of needed legal changes, the legacy of the Church Committee loomed large. They saw a chance to turn back the clock. Standing in their way were people like Dempsey and Halperin.
Scores of people streamed into the ACLU's white stucco town house on Capitol Hill on the Friday after the attacks, responding to Halperin's email and calls from ACLU lobbyists. As with so many privacy battles, there were some strikingly strange bedfellows in attendance: liberal immigration rights groups, libertarians from the conservative Free Congress Foundation and Eagle Forum, technology-savvy activists from the Electronic Privacy Information Center and the Center for Democracy and Technology. They filled the main conference room downstairs, overflowing through French doors into a garden, and up the stairway to the ACLU's offices. The ACLU's headquarters, later relocated downtown, had been the site of countless strategy meetings over the years on abortion rights, civil rights, freedom of speech, and religious freedom. "I had never seen that kind of turnout in twenty-five years," said Laura Murphy, director of the ACLU's national office. "People were worried. They just knew this was a recipe for government overreaching."
They also grasped the difficulty of their position. They were trying to persuade Americans to hold fast to concerns about individual freedom and privacy while the vast majority of people were terrified. Polls that fall showed that most people were more than willing to trade off civil liberties and privacy protections for more security. Even normally privacy-minded lawmakers, including Senators Dianne Feinstein (D-Calif.) and Charles Schumer (D-N.Y.), had no intention of questioning efforts to push a bill through quickly. Representative Bob Barr (R-Ga.), a staunch conservative and dedicated privacy advocate, couldn't offer much hope. Barr and Murphy had worked closely together in recent years, though they came from different ends of the political spectrum. When she called him after the attacks, he confessed there was probably little he could do to temper the fervor gripping Washington. After debate over how to express clear sympathy for the victims of the attack, the group worked out a ten-point statement. "We must have faith in our democratic system and our Constitution, and in our ability to protect at the same time both the freedom and the security of all Americans," read point No. 10. The document was signed by representatives of more than 150 groups, including religious organizations, gun owners, police, and conservative activists. A few days later, they released it at a press conference and posted it on a Web site. What kind of impact did it have? Apparently not much. A year later, several key officials from the White House and Justice Department said they had never heard of the appeal.
Senator Leahy would describe those days as among the most challenging and emotional of his twenty-eight years in the Senate. He was saddled with the responsibility of crafting the Senate proposal for anti-terrorism legislation. He didn't want to ram a bad law through Congress, but he also didn't want to be seen as an obstructionist. He offered to negotiate a bill directly with the White House, avoiding the time-consuming committee approval process. Now he had to come up with a way of maintaining meaningful privacy protections while expanding the government's surveillance powers. As he worked to reconcile those competing interests, he took long walks around the Capitol and down to the Mall. Everywhere he went, the mood was grim. "I saw the same faces as I did when I was a law school student [in the District] and President Kennedy had been killed," Leahy said. "I saw the same shock, and I wanted to make sure our shock didn't turn into panic." It was crucial, Leahy thought, to take enough time with the legislation to get it right. In the weeks before September 11, Leahy and Attorney General Ashcroft had consulted frequently on a major overhaul of the FBI, which was under fire for bungling a series of high-profile cases. But the terrorist attacks quickly strained their amicable relations. Within days, Ashcroft held a press conference and called on Congress to approve the Justice Department's legislative plan in a week's time. Leahy was surprised -- and irritated. The implication, Leahy says, was "we were going to have another attack if we did not agree to this immediately."
But if he balked, Leahy risked getting hammered as soft on terrorism -- or so he and other Democrats feared. Leahy, backed by other Democrats, had begun working on his own anti-terrorism bill, a 165-page tome called the Uniting and Strengthening America Act. On September 19, congressional, White House, and Justice leaders gathered in an ornate room in the Capitol to exchange proposals.
Leahy, Orrin Hatch (R-Utah), Richard Shelby (R-Ala.), and others were there from the Senate. House Majority Leader Richard Armey (R-Tex.), John Conyers, Jr. (D-Mich.), and others represented the House. From the White House came counsel Alberto Gonzales. Ashcroft, Dinh, and their entourage arrived from Justice. As the meeting got started, Dinh made a beeline for a seat near the head of the conference table. Leahy and his colleagues raised their eyebrows and shook their heads. Only members of Congress were supposed to sit at the table, one of the senators told Dinh, asking him to sit with the rest of the staff.
Dinh wasn't troubled by his faux pas. He and his staff were too focused on the forty-page proposal they'd brought with them, the fruit of several all-nighters at Justice. During the crash drafting effort, Dinh had slept on a black leather couch, beneath an American flag, not far from a worn paperback copy of The Federalist Papers. He handed out copies of his proposal. Leahy did the same with his draft, stressing that he thought the group should move forward deliberately.
It turned out the proposals were similar in some key respects. Both bills called for updates to the pen register and trap and trace laws, clarifying how they applied to email and the Internet. Both included provisions bolstering money-laundering and wiretap laws. They also proposed making it easier for authorities to get approval for wiretaps in spying and counterintelligence cases. The administration proposal, however, went much further. It called for indefinite detention of any noncitizen the attorney general "has reason to believe may further or facilitate acts of terrorism," as well as the unrestricted sharing of grand jury and eavesdropping data throughout the government. It permitted Internet service providers or employers to voluntarily allow the FBI to tap email. And it made a small but important modification to the FISA law, changing the legal language so that foreign intelligence had to be only "a" purpose of an investigation, rather than "the" purpose, to secure surveillance authority.
Leahy and some of the other lawmakers murmured about those last provisions. Giving criminal investigators unchecked access to FISA powers could break down constitutional safeguards against unreasonable searches and seizures, leading to abuses against U.S. citizens. Dick Armey, one of the most conservative members in Congress, also expressed concern. It was Armey, in fact, who was already discussing a "sunset" provision to the new law, placing time limits on how long parts of it would remain in effect. A sunset provision would guarantee that some of the most troubling new powers would be revisited by Congress, giving lawmakers an important check on executive authority. "There were a lot of people in the room, both Republican and Democrat," Leahy said later, "who were not about to give the unfettered power the attorney general wanted."
Armey also warned that it might take a few weeks to adopt a bill. In effect, he was urging Ashcroft to back away from his public pressure to approve a law in the next few days. When the group emerged from the meeting, Ashcroft changed his tone slightly, telling reporters that he wanted to pass a bill as quickly as possible. Leahy likewise struck a conciliatory note. "We're trying to find a middle ground, and I think we can," he said that day. "We probably agree on more than we disagree on." Leahy also made it clear he would not be rushed into approving a bill. "We do not want the terrorists to win by having basic protections taken away from us," he said. It was a boilerplate rendering of a quotation from Benjamin Franklin that Leahy invoked repeatedly: "Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety."
The truce between Leahy and Ashcroft didn't last long. Despite Ashcroft's shift in tone, the pressure to move quickly on legislation intensified. For Jim Dempsey, it was depressing. One afternoon in late September, he was invited by Beryl Howell, Leahy's adviser, to a legislative briefing. Howell wanted Justice Department officials and civil libertarians to describe to Senate staffers their thoughts about expanding law enforcement authority. The point was to give everyone involved more ideas. Dempsey was eager to attend. "My hope was there could actually be some sort of debate," he says.
Then the Justice Department folks arrived. Howell hadn't told them they would be discussing their proposals with civil libertarians. "They were livid," Dempsey says. "They explicitly said, 'We don't think outsiders should be here, and we won't talk unless they leave the room.'"
Howell quickly brokered a deal. Dempsey and the other civil liberties advocates could stay to hear Justice's presentation, but there would be no back-and-forth discussion. As soon as the Justice delegation finished speaking about their proposals, "they got up and left," Dempsey says. "I was just in despair. I just thought we are never going to be able to work this out."
At the end of September, Leahy's staff and administration officials spent hours together thrashing out questions about civil liberties, the new police and intelligence powers, and oversight by courts and Congress. In a push to come to some agreement on the bill's wording, Howell met with White House deputy counsel Timothy Flanigan in the Senate Judiciary Committee hearing room. Flanigan was representing the president as well as the attorney general in the negotiations. Howell and he tangled over whether the law would allow American prosecutors to use evidence from abroad that was obtained through methods illegal in the United States. They also differed over whether a court should serve as a check on the sharing of grand jury, wiretap, and other criminal investigative information.
Eventually, Flanigan made some concessions. He agreed that the government would not use evidence about U.S. citizens obtained abroad in a manner illegal under U.S. law, and that a court would review information before it could be shared among intelligence and law enforcement agencies within the United States. On October 1, Leahy thought he had a final agreement in hand. He was so confident that he stopped by Senate Majority Leader Tom Daschle's office to assure him: "We have it all worked out." Leahy left the Capitol that evening feeling satisfied. He'd done what he could to protect civil liberties by providing oversight for surveillance and domestic intelligence. But he had also moved quickly to bolster law enforcement and counterintelligence operations. No one could accuse the Democrats of coddling terrorists. The next morning, Leahy sat in his office across a polished wood conference table from Ashcroft, Hatch, Michael Chertoff, chief of the Justice Department's criminal division, and Gonzales, the White House counsel. They'd come together to sign off on the deal. But Ashcroft was having second thoughts about some of Flanigan's concessions. The agreement, he told Leahy, no longer held.
Leahy felt blindsided. He'd invested his prestige in these negotiations, and now it looked like he didn't count. "I said, 'John, when I make an agreement, I make an agreement. I can't believe you're going back on your commitment.'"
Ashcroft's support was critical to the bill's approval. The Senate and the Bush administration had agreed to deliver a proposal together, and the process could not go forward without Ashcroft's imprimatur. Flanigan downplays the dispute, saying it was only one of many disagreements in a tough series of talks that ebbed and flowed. "There were several points in the negotihe next morning, Leahy sat in his office across a polished wood conference table from Ashcroft, Hatch, Michael Chertoff, chief of the Justice Department's criminal division, and Gonzales, the White House counsel. They'd come together to sign off on the deal. But Ashcroft was having second thoughts about some of Flanigan's concessions. The agreement, he told Leahy, no longer held.
Leahy felt blindsided. He'd invested his prestige in these negotiations, and now it looked like he didn't count. "I said, 'John, when I make an agreement, I make an agreement. I can't believe you're going back on your commitment.'"
Ashcroft's support was critical to the bill's approval. The Senate and the Bush administration had agreed to deliver a proposal together, and the process could not go forward without Ashcroft's imprimatur. Flanigan downplays the dispute, saying it was only one of many disagreements in a tough series of talks that ebbed and flowed. "There were several points in the negotiations at which they recognized that they had given up too much, and there were other times that we realized we hadn't asked for enough," Flanigan says. "It's understandable. It's the pace of the negotiations.
"You know, there'd be groans around the table and nobody was pleased to see an issue reopened. But I think it all was conducted in a spirit [of] we're all trying to get to a result here."
In any case, there was no hiding the growing animosity between Leahy and the administration. Ashcroft didn't even try. Not long after leaving Leahy's office, Ashcroft held a press conference with Orrin Hatch at his side. "I think it is time for us to be productive on behalf of the American people. Talk won't prevent terrorism," Ashcroft said, adding that he was "deeply concerned about the rather slow pace" of the legislation.
"It's a very dangerous thing," Hatch agreed. "It's time to get off our duffs and do what's right."
Senator Leahy was deeply distressed by the collapse of the deal. He felt the administration was intent on steamrolling over him. But there was frustratingly little he could do about it. He didn't even have the political leverage in the Senate to push for the same sunset provision being championed by Armey in the Republican-controlled House. Leahy knew he would have to rely on the House to fight that battle with the administration. He would have to do the same on securing court oversight of the government's new surveillance powers.
Court oversight would be especially important in light of a critical but unheralded portion of the new legislation: Section 215. For many years, FISA gave investigators access to the commercial records of people under investigation in national security cases, but only from a small range of business, including hotels, storage facilities, and car rental companies. Section 215 of the bill would greatly expand that, allowing investigators to obtain records from Internet service providers, grocery stores, libraries, bookstores -- in essence, any business. More important, it would remove the requirement that the target of the records search be "an agent of a foreign power."
Those changes were significant because of the data collection revolution of the 1990s. Cheaper computing power and an ever-expanding Internet enabled businesses to more easily track customer transactions. Never before had so much information been collected about so many of us -- often in the name of giving us conveniences, discounts, and other benefits. Marketers knew our names, addresses, estimated incomes, the size of a family's house, the type of car we drive, the magazines we read, the beer we drink. Libraries used computers to keep track of what we read. Hotels kept electronic records of when we came and went, as well as the movies we watched. Bookstores knew what we bought. Many toll roads could register when we had driven by.
The implications of giving the government access to so much personal information unnerved Dempsey and other civil libertarians, who were disappointed that Leahy and his allies couldn't do more to stand up to the administration. While Dempsey understood the political pressures on the senators, he worried that they didn't completely understand some of the compromises they were making.
Leahy was also rueful about the outcome. His bill, introduced in the Senate two days after his acrimonious meeting with Ashcroft, gave Justice much more power than he had originally intended. He was prepared to swallow hard and support it. To do anything else was politically impossible.
Late on October 11, the Senate assembled to vote. Leahy and Daschle knew every Republican would support the bill. They wanted Democrats to do the same. But Senator Russell Feingold was refusing to go along. A liberal who routinely bucked pressure from his own party, the Wisconsin Democrat had deep reservations about the bill hurtling through the Senate. He considered the provisions "some of the most radical changes to law enforcement in a generation" and was particularly worried that Section 215 gave the government too much power to sift through people's lives. He wanted the Senate to vote on a series of amendments that would do more to protect privacy. Feingold's stance annoyed Daschle, who cornered him at the back of the Senate floor shortly before the vote. "The bill will only get worse if we open it up to debate," he told Feingold. Leahy also chimed in, telling Feingold that while he agreed with almost everything Feingold was proposing, the votes simply weren't there. Leahy warned that if Feingold offered amendments, their conservative colleagues would try to give investigators even more extensive powers.
Feingold wouldn't budge. "There is no doubt," he declared on the Senate floor that evening, "that if we lived in a police state, it would be easier to catch terrorists. If we lived in a country where the police were allowed to search your home at any time for any reason; if we lived in a country where the government was entitled to open your mail, eavesdrop on your phone conversations, or intercept your e-mail communications...the government would probably discover and arrest more terrorists, or would-be terrorists....But that would not be a country in which we would want to live."
Feingold offered his amendments, and they were rejected. One month after the attacks, the USA Patriot Act, short for Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act, passed the Senate, 96-1. The law's acronym spoke volumes about what the administration expected from its citizens.
Lawmakers and legislative aides were lining up for nasal swabs and Cipro. Yellow police tape encircled the Hart Senate Office Building. The House had shut down for the first time in memory. On October 17, the capital was confronting a new threat: anthrax. It was contained in a letter mailed to Daschle, and no one knew how many people might have been exposed. Were there more letters? Were anthrax spores floating through the Capitol's ventilation system? Suddenly, it became more urgent than ever to get the Patriot Act to the president's desk.
Amid the panic, Leahy, Daschle, Flanigan, Dinh, and others gathered in House Speaker Dennis Hastert's office to smooth out the differences between the Senate and House versions of the bill. The House bill, which had passed in the early morning hours of October 12, included sunset and court oversight provisions Leahy had been unable to get in the Senate. There was no longer any question that the Patriot Act would include some court oversight, though not as much as Leahy and Armey wanted. The key issue remaining for those in Hastert's office was how long the new law should be in effect. Leahy and Armey pressed for a two-year "sunset," which would force the White House to win congressional approval of the most controversial provisions of the law all over again in 2005. The administration wanted no time limit but eventually agreed on four years.
Sunset in 2005.
The USA Patriot Act powers went far beyond what even the most ardent law enforcement supporters had considered politically possible before the attacks. And the government moved quickly to take full advantage of both the new and existing authorities. In the first year alone, more than a thousand noncitizens were detained without being charged, and their identities were kept secret. Thousands of Muslim men -- citizens and noncitizens -- and others were placed under surveillance by federal investigators across the country. Their movements, telephone calls, email, Internet use, and credit card charges were scrutinized around the clock -- a technology-driven campaign that has resulted in criminal charges against eighteen suspected al-Qaeda operatives in or near Seattle, Detroit, Buffalo, New York, and Portland, Oregon. "We've neutralized a suspected terrorist cell within our borders," Ashcroft announced near the first anniversary of the terror attacks at a press conference about the indictments of six people in Portland charged with conspiring to aid al-Qaeda and the Taliban regime in Afghanistan. He called the indictments "a defining day in America's war against terrorism." In 2003, the government, for the first time, asked for more secret wiretap warrants for terrorism investigations than for criminal cases. The FBI said it got more than 1,700 Foreign Intelligence Surveillance Court warrants, while federal and state courts endorsed some 1,442 warrants for electronic surveillance in other kinds of cases. Outside law enforcement circles, no one will ever know who was targeted by those FISA warrants. Thousands of men, women, and children had been detained and searched at airports, most of them innocent people whose names sounded similar to suspects on computer watch lists or who showed some sign of threat. College students were questioned by law enforcement and intelligence officials for associating with certain campus seminars.
Many people, including some lawmakers and some judges, came to believe the Patriot Act went too far. Judge Gladys Kessler of the U.S. District Court for the District of Columbia, for instance, ruled in 2002 that the government overstepped its constitutional bounds by refusing to give the names of more than twelve hundred people detained since September 11, many of them initially on immigration charges. In response to a lawsuit by civil libertarians, Judge Kessler ordered the Justice Department to release the names, saying that without the information it was impossible to know whether the government is "operating within the bounds of the law." Kessler's ruling was overturned by an appeals court in June 2003, after the government argued that the secrecy was necessary to avoid compromising its investigation into September 11 and future terror plots. The Justice Department also challenged a decision by the FISA court not to grant criminal investigators the authority to use FISA primarily for criminal prosecutions. The FISA court said in 2002 that, long before September 11, the government had misused the law and misled the court dozens of times in its requests for search warrants and wiretaps. Those warrants and wiretaps might not have been granted in criminal courts, which, unlike FISA, require evidence of probable cause. And if the FISA court wouldn't let criminal investigators make wide use of FISA powers, the Patriot Act would provide as much investigative muscle as the administration wants.
Near the end of 2003, Ashcroft extolled what he thought of as the Patriot Act's virtues during a public tour in support of the law. In lower Manhattan, Ashcroft appeared at Federal Hall, where George Washington took the oath as the nation's first president. The attorney general was surrounded by police and prosecutors and American flags. "At times I doubted America could make it still safe, still secure today. We have had two years of safety, a sign of blessing, a sign of God's grace upon this nation and its people that we have had 728 days of safety is second a testament to you, the men and women of our nation who guard our borders, patrol our streets and enforce our laws," he said over the hum created by thousands of protesters outside.
"Freedom is not self-sustaining. It is not automatic and the security that ensures liberty does not come without effort. For two years you have expended that effort, preserving our security, protecting our liberty. All of us owe you a debt that cannot be repaid. We learned the painful lessons of 9/11. "We once had a culture of law enforcement that inhibited and prevented communication and coordination. We have constructed a new spirit of justice. We've built America's defense, the defense of life and liberty upon a foundation of prevention, nurtured by cooperation, built on coordination and communication and rooted in our constitutional liberties. 9/11 taught us that terrorists had outflanked law enforcement in technology, communications and information. So we have fought for the tools necessary to protect the lives and liberties of the American people. Congress provided these tools in the USA Patriot Act passed overwhelmingly by bipartisan majority: 98 to 1 in the US Senate and better than a five to one ratio in the House.
"Our job is not finished," Ashcroft added, "but we have used the tools provided in the Patriot Act to fulfill our first responsibility, that of protecting Americans. We have used these tools to prevent terrorists from unleashing more death on our soil. We have used these tools to save innocent American lives."
As with other claims by Bush administration officials, Ashcroft offered few particulars. He was, in essence, asking us to accept his assertions on faith.
Long after its approval, Viet Dinh said he was proud of the Patriot Act and his role in creating it. He believed the law made Americans safer, just as intended. He dismisses criticism that Justice was using a heavy hand in its investigations, and that civil liberties were being compromised. While the government can examine the lives of Americans as never before, he says, the Constitution is always there as a safeguard. "It was very clear that we did not tell the American people just simply trust us, trust law enforcement not to overstep their bounds. Rather we say, trust the law," Dinh said. "The attorney general said very clearly, 'Think outside the box, but not outside the Constitution.'" But Dinh, who returned to life as a law professor at Georgetown University, noted that the effort to protect Americans relies substantially on private information brokers and other technology companies. He knows those companies face little of the oversight of government agencies. "The amount of information publicly available to businesses is mind-boggling. It really belies the notion that each of us has an expectation to be left alone. So many people know about what we do," said Dinh, sitting in his law school office not far from where he oversaw the drafting of the Patriot Act. "The leap in technology has not been met with a proportionate response in terms of how we think of this technology. We need to think more creatively. Not put the genie back in the bottle, but make the most use of it. Like most technology, it's mixed use. It could be put to good or bad use."
The situation seems far more dire to Jim Dempsey, who since the Patriot Act's approval was named director of the Center for Democracy and Technology. Though he maintains the government needs to use information technology to protect the country, he describes the efforts by the government to make the most of personal data and the Patriot Act since 2001 as the beginning of unprecedented intrusion into American life. In 2005, Dempsey said, he will be pressing hard to curb the Patriot Act authorities. "It's an electronic door-to-door search," Dempsey said. "You can't physically go door to door or stop every car on the highway. But now we have the [ability] to do it unbeknownst to the people. Now it can be done electronically and constantly."
Senator Leahy is convinced the Justice Department and FBI have overreached in their efforts to identify and apprehend terrorists. And like Dinh, he began to worry about the role of the private companies, their monitoring capabilities and their expanding partnership with the government.
"The temptation will be more and more -- especially in a polarized society and a society where there is a fear, whether it's the Red Scare in the fifties or terrorism in this century -- to use those databanks," he said, sitting at the same table in his office where he negotiated portions of the Patriot Act with Ashcroft. "At some point it doesn't matter if they're private or public, at some point they will be used by the government to determine who is a good American and who is a bad American. Not determined through prosecution, trial, but based on what came up on someone's computer screen."
Excerpted from "No Place to Hide" by Robert O'Harrow, Copyright 2005.