No Place to Hide
Behind the Scenes of Our Emerging Surveillance Society
Friday, February 18, 2005
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.