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Six Weeks in Autumn
One of the few voices advocating calm deliberation, Dempsey says, was Leahy. But 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, is 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. To this day, Halperin has not addressed the allegations, but his house was wiretapped by the FBI, and the taps continued for months after he left the government.
Now, 24 hours after the attacks, he read an e-mail 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 now 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 e-mail for a few minutes and decided that I could not do my regular job, that I had to deal with this," he says.
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 e-mail 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, 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 Sen. 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, CIA and other government agencies had engaged in pervasive surveillance of politicians, religious organizations, women's rights advocates, antiwar groups and civil liberties activists.
At FBI headquarters in Washington, for example, agents had developed more than half a million domestic intelligence files in the previous two decades. The CIA had secretly opened and 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 Rev. 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 warned.
Congress responded with a series of laws aimed at curbing government abuses. One was the Foreign Intelligence Surveillance Act of 1978, which gave broad powers for counterintelligence officials to monitor the agents of foreign countries.
Under FISA, authorities had to demonstrate, to the super-secret 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.
For all the secrecy surrounding FISA--and despite the fact the FISA court has never denied an application for electronic surveillance--civil libertarians consider the law one of the key safeguards against domestic spying.
But some conservatives have long contended that the law created unnecessary, even absurd, barriers between criminal and intelligence investigators. The Bush administration believed those barriers were getting in the way of uncovering terrorist cells operating here and abroad.
Law enforcement authorities also chafed at internal guidelines imposed by the Justice Department in response to the Church committee revelations. 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 townhouse on Capitol Hill on the Friday after the attacks, responding to Halperin's e-mail 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, recently relocated downtown, has been the site of countless strategy meetings over the years on abortion rights, civil rights, freedom of speech and religious freedom.
Even so, "I had never seen that kind of turnout in 25 years," says Laura Murphy, director of the ACLU's national office. "I mean, people were worried. They just knew this was a recipe for government overreaching."
They also grasped the difficulty of their position. Here 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 later showed that most people were more than willing to trade off civil liberties and privacy protections for more security.
Murphy and others also had reached out to Congress in an effort to head off any instant legislation. They found that normally privacy-minded lawmakers, including Sens. Dianne Feinstein (D-Calif.) and Charles Schumer (D-N.Y.), had no intention of questioning efforts to push a bill through quickly.
Even Rep. Bob Barr (R-Ga.), a conservative and dedicated privacy advocate, couldn't offer much hope. Barr and Murphy had worked closely together in recent years, though they come 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 anti-terrorism fervor gripping Washington.
"You could sort of hear the clutch in his voice: 'I don't know how we're going to do this,' " she recalls.
Murphy stood at the front of the room with Halperin, trying to win consensus from those assembled on language they would use to voice their concerns. Dempsey, who arrived late, was off to one side, a sinking feeling in his stomach. For all the numbers, the normally raucous group was subdued. Some in attendance owned up to their own fears about new attacks. Everyone "was a little overwhelmed by the magnitude of the task," Dempsey says.
After debate over how to express clear sympathy for the victims of the attack, the group worked out a 10-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 say they have never even heard of the appeal.
To say it was a trying time for Leahy is an understatement. He would later describe those days as among the most challenging and emotional of his 28 years in the Senate: "What made this the most intense were not just the issues, but the great sorrows I felt."
The senator 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. So 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 says. "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. Or as he put it to senior aide Beryl Howell, a former federal prosecutor: "Let's not do a knee-jerk reaction."
Leahy thought he could serve as a bridge between privacy advocates and the government. He was trusted by civil libertarians, but had a cordial enough relationship with Ashcroft, who was a former Senate colleague. Though Ashcroft was an ardent conservative loathed by many liberals, the two had worked together in Congress on encryption legislation. Even after Leahy voted against Ashcroft's confirmation as attorney general, he called Ashcroft afterward to pledge his cooperation. Since then they'd gotten along fine. In the weeks before September 11, they'd been consulting 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.
Along with 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 too troubled by his faux pas. He and his staff were too focused on the 40-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 e-mail 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 farther. 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 e-mail. And it made a small but important modification to the FISA law, changing the legal language so 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.
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 says, "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."
But 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 Dempsey, it was depressing.
One afternoon in late September, he was invited by 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 an illegal manner 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 Depart-ment'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 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 Hatch at his side.
"I think it is time for us to be productive on behalf of the American people," said the attorney general. "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."
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 businesses, 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--just about any business. More importantly, 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 have enabled businesses to watch what was once unwatchable and glean meaning and profit from the ephemera of daily life. Never before has so much information been collected and parsed about so many of us--often in the name of giving us conven-iences, discounts and other benefits.
Someone is likely monitoring us at work, recording what we buy, noting our whereabouts while we use our cell phones, scrutinizing our drug prescriptions. Marketers know 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 use computers to keep track of what we read. Hotels keep electronic records of when we come and go. Bookstores know what we buy. Many toll roads can say precisely when we have 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. But 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 Sen. Russell Feingold was refusing to go along.
A liberal who routinely bucks pressure from his own party, the Wisconsin Dem-ocrat 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 way 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 in 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 bill passed the Senate, 96-1.
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 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 four-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 on its effect.
"We're feeling very strongly about the sunsetting," Flanigan told the lawmakers. "This is not a war of a fixed duration. And it will not change the culture of law enforcement and national security if we basically make this a short-term fix."
Daschle, who knew how badly Bush wanted to avoid any delay in signing the legislation, turned to the lawyer and smiled. "Mr. Flanigan, does this mean the president will veto the bill?" he asked.
"And then of course," Flanigan acknowledges now, "I had to say no."
They agreed on four years.
In the year since the Patriot Act was approved, the government has moved quickly to take full advantage of new and existing powers.
More than a thousand noncitizens were detained without being charged last fall, and their identities were kept secret. Hundreds of Muslim men--citizens and noncitizens--were placed under surveillance by federal investigators across the country. Their movements, telephone calls, e-mail, Internet use and credit-card charges are being scrutinized around the clock--a campaign that has resulted in criminal charges against 18 suspected al Qaeda operatives near Seattle, Detroit, Buffalo, N.Y., and Portland, Ore.
"We've neutralized a suspected terrorist cell within our borders," Ashcroft announced earlier this month at press conference about the indictments of six 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."
And it's clear that the war is just getting underway. The FBI is still building a data-mining system that will draw in huge amounts of commercial and governmen-tal information and parse it for signs of terrorism. The Transportation Security Administration has begun work on a passenger-profiling system that some officials say would be the largest domestic surveillance system in the nation's history.
All of this makes Viet Dinh smile as he eats curry at a restaurant across from the Justice Department. The Patriot Act, he declares proudly, is making Americans safer, just as intended.
He dismisses criticism that Justice is using a heavy hand in its investigations, and that civil liberties are being compromised. While the government can peer into 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 says. "The attorney general said very clearly, 'Think outside the box, but not outside the Constitution.' "
Yet at least one federal judge, Gladys Kessler of the U.S. District Court for the District of Columbia, has already accused the government of overstepping its constitutional bounds by refusing to name more than 1,200 people detained since September 11. In response to a lawsuit by civil libertarians, 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 is being appealed by the government, which argues that the secrecy is necessary to avoid compromising its investigation into September 11 and future terror plots. The Justice Department is also challenging an extraordinary decision by the FISA court not to grant criminal investigators the authority to use FISA primarily for criminal prosecutions. The FISA court said earlier this year 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 won't let criminal investigators make wide use of FISA powers, the Patriot Act won't provide as much investigative muscle as the administration wants.
That would be just fine with Dempsey, who argues that the government already had all the power and information it needed to thwart terrorist attacks before September 11 and failed to make effective use of them.
Now, he says, "we are facing the risk of a fundamental redefinition of the role of government and the freedom of individuals . . . Look at this ocean of information that's available."
In his downtown office, he clacks away at the computer, drafting a legal brief in support of the FISA court's position on limiting the flow of information between intelligence and criminal investigators. The federal courts are the next battleground, Dempsey and other civil libertarians believe, in the clash between national security and privacy rights.
For Leahy, however, the battleground remains the Senate Judiciary Committee, where he and other panel members will be responsible for monitoring how the Justice Department uses its new powers. That won't be easy, given the secrecy involved in terrorism investigations and the administration's reluctance to share sensitive information with Congress. Even so, Leahy and his allies in the House and Senate have no intention of giving Justice a free ride on the Patriot Act. The potential for abuse is too great, they say, and the need for congressional oversight and scrutiny too strong. They'll be watching.
Robert O'Harrow Jr. covers technology policy and privacy issues for The Post. This article was prepared with assistance from the Center for Investigative Reporting.