NO GREATER THREAT:

America After September 11

And the Rise of a National Security State

By
C. William Michaels

Completely Updated for 2005.

Includes review and analysis of: Homeland Security Act, "PATRIOT Act II,’
Intelligence Reform and Terrorism Prevention Act, Supreme Court decisions,
“National Strategy” documents, 9-11 Commission recommendations, and various
ongoing developments nationally and internationally in the “war on terrorism.”

Algora Publishing
New York
 © 2005 by Algora Publishing.
All Rights Reserved.
www.algora.com

No portion of this book (beyond what is permitted by

Sections 107 or 108 of the United States Copyright Act of 1976)
may be reproduced by any process, stored in a retrieval system,
or transmitted in any form, or by any means, without the
express written permission of the publisher.
ISBN: 0-87586-154-7 (softcover)
ISBN: 0-87586-155-5 (hardcover)

Library of Congress Cataloging-in-Publication Data

Michaels, C. William.
No greater threat : America after September 11 and the rise of a national security state / by C. William
Michaels.
p. cm.
Includes bibliographical references and index.
ISBN 0-87586-154-7 (pbk. : alk. paper) — ISBN 0-87586-155-5 (hardcover : alk. paper)
1. National security—Law and legislation--United States. 2. Terrorism—United States—
Prevention. 3. Civil rights—United States. 4. United States. Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT)
Act of 2001. I. Title.
KF4850 .M53 2002
363.3'2'0973—dc21
2002010738

Printed in the United States

Credits and Acknowledgements

The author wishes to acknowledge the use of the following material, or information
from the following groups or organizations:

Source material:
Congressional Research Service
Government Accounting Office
Department of Justice
Department of the Treasury
Department of State
Compliance Headquarters
American Civil Liberties Union
Center for Constitutional Rights
Center for Democracy and Technology
Center for National Security Studies
Center for Defense Information
First Amendment Foundation

Wendell Berry, T h e F a i l u r e o f W a r , originally published in Y e s ! M a g a z i n e , A Jour-

nal of Positive Futures (Positive Futures Network), P.O. Box 10818, Bainbridge Island, Wash-
ington, 98110. Subscriptions: 800-937-4451. Web site: www.yesmaganize.org. Used with per-
mission by Wendell Berry and Yes!Magazine.

Thich Nhat Hahn material in Being Peace used with permission of Parallax Press,
Berkeley, California. www.parallax.org.

Use of Charlotte Aldebron essay on American flag with permission from Jillian
Aldebron.

Use of John Dean article from John W. Dean and www.FindLaw.com.

Use of Jennifer Van Bergen articles by Jennifer Van Bergen and www.truthout.org.

Thanks for assistance and encouragement from:

Cathy Hedge, Joan Jacobson, Bill Barry, Fred Ruof, Richard Ochs, Max Obuszewski,
Richard Ullrich, David Yaffe, Sr. Joan Hart SSND, Arnold G. Ziegler, Esq., Royal W. Craig,
Esq. and: Phillip Berrigan, Elizabeth McAlister, Sr. Ardeth Platte, O.P. and everyone at Jonah
House, and Brendan Walsh and Willa Bickham and everyone at Viva House.
S p e c i a l t h a n k s t o : Joelyn Sherley-Michaels.
 TABLE OF CONTENTS

TABLE OF CONTENTS I

A WORD FROM THE AUTHOR 1

A Word About This 2005 Update 3

PART I: A NEW REALITY, A PICTURE COMING INTO VIEW 7

INTRODUCTION 7
SOME HISTORICAL ANTECEDENTS 9
THE “NATIONAL SECURITY STATE” 13
SOME NOTABLE HISTORICAL ATTACKS ON CIVIL LIBERTIES 15
Comment at Close of 2004 22
APPENDIX 1-A 27
APPENDIX 1-B 28

PART II: THE USA PATRIOT ACT — TITLES I THROUGH III 31

A GIANT STEP — BUT IN WHAT DIRECTION? 31
THE CHALLENGE TO THE FEDERAL COURTS, AN OVERVIEW OF THE ACT, “TERRORISM” 32
SOME MISCONCEPTIONS 35
TITLE I: ENHANCING DOMESTIC SECURITY AGAINST TERRORISM 36
TITLE II: ENHANCED SURVEILLANCE PROCEDURES 38
TITLE III: INTERNATIONAL MONEY LAUNDERING 53
Comment at Close of 2004 81
Title III: Permanent And Expanded 81
Further Developments in Title III Authorities 83
Additional DOJ Commentary/Activity on the PATRIOT Act 84
Selected Legal Developments and Court Decisions 85
APPENDIX 2-A 86
APPENDIX 2-B 88
APPENDIX 2-C 89

ix
 No Greater Threat

PART III: THE USA PATRIOT ACT — TITLES IV THROUGH VI 91

TITLE IV: PROTECTING THE BORDER 91
TITLE V: REMOVING OBSTACLES TO INVESTIGATING TERRORISM 103
TITLE VI: PROVIDING FOR VICTIMS OF TERRORISM, PUBLIC SAFETY OFFICERS,
AND THEIR FAMILIES 106
Comment at Close of 2004 107
JUSTICE DEPARTMENT IMPLEMENTATION OF TITLE IV (AND ISIS) 108
SPECIAL REGISTRATION PROGRAM AND “ABSCONDER INITIATIVE” 109
US-VISIT PROGRAM (AND NSEERS) 112
NO-FLY LISTS, “SECURE FLIGHT” (CAPPS II) AND “REGISTERED TRAVELER” 115
APPENDIX 3-A 118
APPENDIX 3-B 119

PART IV: THE USA PATRIOT ACT — TITLES VII THROUGH X 121
TITLE VII: INCREASED INFORMATION SHARING FOR CRITICAL INFRASTRUCTURE
PROTECTION 121
TITLE VIII: STRENGTHENING THE CRIMINAL LAWS AGAINST TERRORISM 121
TITLE IX: IMPROVED INTELLIGENCE 130
TITLE X: MISCELLANEOUS 133
Comment at Close of 2004 139
JUSTICE DEPARTMENT AND TITLES VIII THROUGH X 139
Selected Patriot Act Related Investigations, Arrests, And Convictions 140
Selected Court Decisions On The Patriot Act 145
Administration And Justice Department Activities To Promote The Patriot Act 146
SELECTED LEGISLATION IN CONGRESS ON THE PATRIOT ACT 147
Continued Response To The Patriot Act In Towns, Municipalities, Cities, And States 153
TABLE 1. DEADLINES UNDER THE PATRIOT ACT 154
TABLE 2. ACT APPROPRIATIONS AND AUTHORIZATIONS 158
APPENDIX 4-A 161

PART IV-A: THE HOMELAND SECURITY ACT OF 2002 AND THE DEPARTMENT OF
HOMELAND SECURITY 165
Title I: Department of Homeland Security 167
Title II: Information Analysis and Infrastructure Protection 168
Title III: Science and Technology in Support of Homeland Security 172
Title IV: Directorate of Border and Transportation Security 174
Title V: Emergency Preparedness and Response 177
Titles VI (Charitable Trusts) and VII (Management) 178
Title VIII: Coordination with Non-Federal Entities 178
Title IX: National Homeland Security Council 183
Title X: Federal Information Security Management Act 183
Title XI: Department of Justice Divisions 184
Title XII: Airline War Risk Insurance Legislation 184
Title XIII: Federal Workforce Improvement 185
Title XIV: Arming Pilots Against Terrorism 185
Title XV: Transition 186
Title XVI: Corrections to Existing Law Relating to Airline Transportation Security 186
Title XVII: Conforming and Technical Amendments 187

x
 Table of Contents

PART IV-B: DOMESTIC SECURITY ENHANCEMENT ACT OF 2003 (PROPOSED) 189

OVERVIEW OF STATUTE AND SUMMARY OF KEY SECTIONS 189
TITLE I: ENHANCING NATIONAL SECURITY AUTHORITIES 190
Subtitle A: Foreign Intelligence Surveillance Act Amendments 190
Subtitle B: Enhancement of Law Enforcement Investigative Tools 193
TITLE II: PROTECTING NATIONAL SECURITY INFORMATION 195
TITLE III: ENHANCING INVESTIGATIONS OF TERRORIST PLOTS 197
Subtitle A: Terrorism Identification Database 197
Subtitle B: Facilitating Information Sharing and Cooperation 198
Subtitle C: Facilitating International Terrorism Investigations 198
TITLE IV: ENHANCING PROSECUTION AND PREVENTION OF TERRORIST CRIMES 199
Subtitle A: Increased Penalties and Protections Against Terrorist Acts 199
Subtitle B: Incapacitating Terrorism Financing 201
TITLE V: ENHANCING IMMIGRATION AND BORDER SECURITY 202

PART IV-C: THE INTELLIGENCE REFORM AND TERRORISM PREVENTION ACT OF 2004 205
TITLE I: REFORM OF THE INTELLIGENCE COMMUNITY 206
TITLE II: FEDERAL BUREAU OF INVESTIGATION 212
TITLE III: SECURITY CLEARANCES 212
TITLE IV: TRANSPORTATION SECURITY 213
TITLE V: BORDER PROTECTION, IMMIGRATION, AND VISA MATTERS 215
TITLE VI: TERRORISM PREVENTION 216
TITLE VIII: OTHER MATTERS 225

PART V: THE FIRST SIX ELEMENTS OF A NATIONAL SECURITY STATE 227

1. VISIBLE INCREASE IN UNIFORMED SECURITY PERSONNEL 229
Comment at Close of 2004 232
2. LIMITED ACCOUNTABILITY OF LAW ENFORCEMENT AND SECURITY OFFICERS 233
Comment at Close of 2004 235
3. REDUCED ROLE OF THE JUDICIARY AND EXECUTIVE TREATMENT OF SUSPECTS 235
Comment at Close of 2004 248
4. SECRECY OF RULING AUTHORITY AND MOMENTUM OF THREAT 250
Secrecy Surrounding the Rationale for Afghanistan War and
Further Military Actions. 250
Continued Domestic Threat Assessments and Warnings.. 256
Comment at Close of 2004 257
5. MEDIA IN SERVICE OF THE STATE 258
Comment at Close of 2004 263
Comment at Close of 2004 269
EXPANDED COMMENTARY FOR 2004 ON CHARACTERISTIC NO. 1 270
EXPANDED COMMENTARY FOR 2004 ON CHARACTERISTIC NO. 2 277
EXPANDED COMMENTARY FOR 2004 ON CHARACTERISTIC NO. 3 277
EXPANDED COMMENTARY FOR 2004 ON CHARACTERISTIC NO. 4 292
EXPANDED COMMENTARY FOR 2004 ON CHARACTERISTIC NO. 5 298
APPENDIX 5-A 308
APPENDIX 5-B 309
APPENDIX 5-C 311
APPENDIX 5-D 313
APPENDIX 5-F 319

xi
 No Greater Threat

PART VI: THE NEXT SIX ELEMENTS OF A NATIONAL SECURITY STATE 327
7. PATRIOTISM MOVING TO NATIONALISM 327
Comment at Close of 2004 330
8. LACK OF CRITICAL RESPONSE BY RELIGIOUS DENOMINATIONS/RELIGION IN
SERVICE TO STATE 331
Selected Statements of Christian Denominations in the United States
After September 11. 334
Comment at Close of 2004 339
9. NATIONAL SECURITY MENTALITY AND PERMANENT WAR ECONOMY 340
Comment at Close of 2004 351
10. TARGETED INDIVIDUALS OR GROUPS 351
Comment at Close of 2004 355
11. DIRECT ATTACK AGAINST DISSENT 355
Comment at Close of 2004 359
12. INCREASED SURVEILLANCE OF CITIZENRY 360
Comment at Close of 2004 366
EXPANDED COMMENTARY ON CHARACTERISTIC NO. 7 367
Patriotism Moving to Nationalism 367
EXPANDED COMMENTARY ON CHARACTERISTIC NO. 8 368
EXPANDED COMMENTARY ON CHARACTERISTIC NO. 9 368
EXPANDED COMMENTARY ON CHARACTERISTIC NO. 10 370
Targeted Individuals and Groups 370
EXPANDED COMMENTARY ON CHARACTERISTIC NO. 11 374
Direct Attack on Dissent 374
EXPANDED COMMENTARY ON CHARACTERISTIC NO. 12 376
Increased Surveillance of Citizenry 376
APPENDIX 6-A 383
APPENDIX 6-B 384
The “National Strategy” Documents 384
APPENDIX 6-C 405
RECOMMENDATIONS OF THE 9/11 COMMISSION 405
CHAPTER 12: WHAT TO DO? A GLOBAL STRATEGY 406
12.1 Reflecting on a Generational Challenge 406
12.2 Attack Terrorists and Their Organizations 406
12.3 Prevent the Continued Growth of Islamist Terrorism 406
12.4 Protect Against and Prepare for Terrorist Attacks 407
CHAPTER 13: HOW TO DO IT? A DIFFERENT WAY OF ORGANIZING GOVERNMENT 408
13.1 Unity of Effort Across the Foreign-Domestic Divide 408
13.3 Unity of Effort in Sharing Information 408
13.4 Unity of Effort in the Congress 409
13.5 Organizing America's Defenses in the United States 409

PART VII: THE NATIONAL SECURITY STATE SCORECARD, A POSSIBLE FUTURE,

OVERALL CULTURAL THEMES 411
THE RATINGS: A NATIONAL SECURITY STATE “SCORECARD” 411
Comment at Close of 2004 412
AN OVERALL THEME: MASS MEDIA CULTURE 415
Comment at Close of 2004 418

xii
 Table of Contents

AN OVERALL THEME: THUNDEROUS STARS AND STRIPES 418

AN OVERALL THEME: EDUCATION 419
AN OVERALL THEME: “PATRIOT ACT PROGENY” 420
Comment at Close of 2004 421
AN OVERALL THEME: UNITED STATES AND THE MIDDLE EAST 423
Comment at Close of 2004 425
THE UPCOMING ELECTIONS: SOME CHALLENGES 425
Comment at Close of 2004 426
A CONCERNED RESPONSE 427
APPENDIX 7-A. A GENERAL OUTLINE OF WAR ON TERRORISM STATUTES, AGENCIES,
AND PROGRAMS 429

PART VIII: CLOSING OBSERVATIONS AND THE NEED FOR WATCHFULNESS 437
INTERNATIONAL ISSUES OF TERRORISM, “SECURITY” AND THE ROLE OF
THE UNITED NATIONS 437
Comment at Close of 2004 439
“SECURITY” AND “PEACE” 445
Comment at Close of 2004 447
PEACE, SECURITY, AND PERSONAL RESPONSES 450

INDEX 455

xiii
A WORD FROM THE AUTHOR

This book got its start, perhaps appropriately enough, at the Ronald Reagan National
Airport as my wife and I took a trip to the Midwest to visit some family of hers. That was late
October, 2001. The terrible events of September 11 were just weeks old. The country was still
reeling. The PATRIOT Act was just signed by President Bush. More of that was on the way.
Airports already had become strange, eerie places. Armed guards mixed with vacationers.
Intense baggage searches amidst business travelers shrugging their shoulders. Everyone on
edge. Looking for something that no one, still, has been able to find. But looking, looking.
I have never grown accustomed to the odd ballet that airport travel became many years
ago. The inane questions at the ticket counter about checked luggage — as if anyone would say
“yes” when asked if a stranger had offered to put something in one’s baggage or requested one to
check unknown baggage as one’s own. Is the ticket agent supposedly trained to detect furtive
behavior or attempted deception in the answers? What if the agitated behavior is simply
traveler aggravation at being asked these same absurd questions?
This is matched only by the bizarre activity at checkpoints, where every traveler is treated
as a criminal suspect. Laptop computers hauled out of carry on luggage so the passengers can be
forced to turn them on and prove they work. Cameras, gifts, items of any description, without
explanation, without justification, pulled out of luggage and impertinent questions asked about
them. As if the next hijacking could be stopped by going through grandma’s makeup kit. It was
always, to me, an unnerving and essentially unproductive invasion of privacy. But I knew I was
a distinct minority in this attitude.
Yet, America was victim to a diabolical act that cost thousands of lives, and it was done so
low-tech that few if any airport security processes then in effect would have caught it. No one
and nothing can anticipate and prevent all the possibilities open to the madness of a suicide
attack. Still, after the horror of September 11, the burden fell heavily upon the airline security
apparatus. Neither they nor the government would let the country down next time. And so,
matters quickly moved from the merely annoying and ridiculous to the downright insane. It was
that way at Reagan Airport in late October, 2001.
My bags and my wife’s bags were rifled through at length, a different security staffer
assigned to each set of luggage, with an armed soldier in camouflage looking on intently. Finally,
after many minutes, the staffer looking through my wife’s bag found the offending item — a
small screwdriver no longer than a pinky finger, used to repair one’s glasses. That got tossed.
Then the other staffer discovered my crime: a pair of nail clippers and the kind of small compli-
mentary sewing kit that one finds in hotel rooms, complete with its tiny needles. After being
confronted with our evidence, we were allowed to proceed.
I suppose all of this could be justified in Washington, DC, the site of one of the tragedies.
But the entire scenario was replayed at the airport on the return trip, from a small Midwest
town where one could drive from one end to the other in less than 20 minutes. Now, things had
gone from overly cautious, to screaming-down-the-hallways deranged. I am truly even more in
the minority at this point, since airports have now determined that not a fly holding a paper clip
is going to get through undetected. So be it.
For my part, on the way there and back, I started writing notes. I was still writing, days
after the return. Once I read through the PATRIOT Act, the President’s Military Order, and the
Executive Order on the Office of Homeland Security, when full published versions were
available, and watched the State of the Union address, the book I was contemplating began to

1
 No Greater Threat

take shape. Many months later, after much research, interviews, reading over dozens of sources,
governmental and not, and piles of newspaper clippings and Internet articles which covered
tables in the house and office, the book achieved its final shape.
My intent is not simply to make my own point but also to initiate a different, parallel
dialog about the “war on terrorism,” so that it does not become a war on ourselves and a war on
the Constitution. I hope to encourage a discussion of the long term effects of what is happening,
the sacrifices asked of us — which may be too dear — an examination of a growing govern-
mental conviction that the ends justify the means, and a challenge to the national broadcast
media’s disturbing attitude that everything is under control, when it decidedly is not. Useful as
well would be a truthful consideration of why the United States has become such a favorite
target for extremists, Muslim or otherwise (hint: it is not all about the Middle East).
I hope also to remind us of the deeper meanings of liberty, peace, and security, which
cannot and will not ever ultimately depend upon airport screenings or military engagements.
True peace is the end product of the work that is done, and that is only possible, when the
weapons are laid down. The true objective, naturally, is to create the circumstances, within the
nation and globally, so they need not ever be taken up in the first place.
I wish us all to recognize, as American flags fly from every vehicle and doorway, that we as
a nation still have far to go to live up to the ideals which that symbol represents. I wish us to be
cautious about saying “God bless America” too often, for the extremists are claiming God is on
their side, too. Something tells me that if God appeared to all of us today, God would have
something quite different to say. And I tend to believe that God is not in the business of blessing
the violent actions of any group or nation-state, especially when the deaths of innocents are
involved and most assuredly when peace is not the end result.
I hope you find this book informative, at least. I welcome the honest and forthright
discussion which it might generate.

***
Comment at Close of 2004: Since this introduction, airline passengers no longer are
required to answer impertinent questions from ticket agents about their luggage. The increased
availability of electronic ticketing and electronic check-in has made it possible to purchase an
airline ticket, check in at an airport, and board an airplane without any contact with airline
ticket counter personnel. However, as for making it easier to move about airports and get on
board planes, that change has not necessarily been an improvement.
Although it is now rare that armed military squadrons patrol U.S. airports, the level of
passenger anxiety and inconvenience is still at record highs. The Transportation Security
Administration (now part of the Department of Homeland Security), continues to search
passenger luggage and carry-on items in ways more extensive and intrusive than ever contem-
plated before September 11. Passengers routinely are asked to take off shoes or to stand with
arms outstretched for "wanding," or are routinely selected at "random" for more intrusive
searches of their person or of carry on items, including in some cases, examining women's bras
for potentially concealed explosives. All of this supposedly is to ensure that a tired, harried
business traveler flying to Pittsburgh is not actually a mad terrorist intent on mass murder.
Photo IDs and boarding passes are still required just for the privilege of entering this
absurd security process. In some airports, after passing through security, IDs also are still
required to board the plane. Sophisticated bomb detection machinery for checked luggage is
now in systematic use, and checked luggage cannot be locked - a requirement which the TSA
surely added further to increase passenger inconvenience and anxiety. Suspicions and delays
abound. In all, the process of boarding an airplane in the U.S. is at least as burdensome than

2
 A Word from the Author

when the most annoying part was impertinent questions about luggage from the ticket counter
agent.
In times of higher alert, even getting to the airport is an adventure. One's vehicle may be
selected by police or by airport security patrols for random search, before one even reaches the
airport parking lot. And impertinent questions are likely to be asked - for those who do not
respond calmly, confidently, and without hesitation to any question, goodness knows what
could be next.
As a result, it has become more difficult than ever to determine how far in advance one
must arrive to make a flight on time. Advance times of 60 to 90 minutes for domestic flights,
depending on the airport, are recommended. But with random vehicle checks, security
requirements, long lines at security stations, and long walks to the gate, it is possible to arrive at
airport environs 90 minutes before a given flight and still miss the plane. And that says nothing
about the "no fly lists" by which passengers are being pulled out of line for questioning, and even
interrogation, whether they are a threat or not.
There is more to come: not only additional airport security or more extreme measures
during "high alerts," but also security procedures for train stations, bus stations, other public
transportation, and seaports, in addition to all border entry-exit points. The recent Intelligence
Reform and Terrorism Prevention Act of 2004 includes a program to subject cruise ship
passengers to similar treatment. Under immigration security programs now being
implemented, international passengers are routinely fingerprinted and photographed. While
certain precautions may be wise after the September 11 attacks, it must be asked whether the
war on terrorism truly can be won by essentially criminalizing the entire American traveling
public, along with all international entrants. Perhaps it would be simpler just to go back to the
impertinent ticket agent questions about luggage.

A Word About This 2005 Update

The objective of this update is to provide additional material and comment on events and
developments affecting the concept of a post 9-11 “national security state” in the United States,
from the time of the manuscript for the original 2002 edition, to date — which roughly covers
July, 2002 to December, 2004. That is a substantial period, given the pace, scope, and depth of
the government's "war on terrorism," which shows no signs of slowing. In that time, there have
been an entire host of developments:
— additional major statutes, most notably the Homeland Security Act of 2002 which
created a new federal government Department of Homeland Security and the Intelligence
Reform and Terrorism Prevention Act of 2004,
— a proposed Domestic Security Enhancement Act of 2003 (often called "PATRIOT Act
II") with provisions that, if enacted, would represent unprecedented alterations of federal law,
— White House policy documents on terrorism including three particularly noteworthy
documents, "The National Strategy on Homeland Security," "The National Security Strategy of
the United States," and "The National Strategy on Combating Terrorism,"
— three major decisions from the U.S. Supreme Court on judicial consideration of the
government's "enemy combatant" designations which can include U.S. citizens, and on court
review over detainees at Guantanamo Bay/Camp Delta, other federal court opinions in "war on
terrorism" cases,
— government investigations into the September 11 attacks including reports from the
Joint House-Senate Intelligence Committee and from the The 9/11 Commission (National
Commission on Terrorist Attacks Upon the United States),

3
 No Greater Threat

— heightened government investigations into "terrorist" activity including high- profile

prosecutions such as the notorious "Virginia Jihad Paintball Case,"
— continued detention of enemy combatants and of Guantanamo Bay / Camp Delta
detainees (approximately 500 detainees, with reports that a permanent prison facility is being
constructed there), along with even further legal developments to come, following the Supreme
Court decisions,
— further anti-terrorism security programs such as Special Registration, NSEERS, US-
VISIT, and Secure Flight,
— more terror alerts and terror threat levels, with accompanying heightened security
measures, at government centers, commercial buildings, and airports, enhanced security plans
for train stations, bus stations, and seaports,
— law enforcement responses to demonstrations at the 2004 national conventions of the
Democratic Party (Boston) and the Republican Party (New York)
— government terror investigation entities including Joint Terrorism Task Forces, the
Terrorist Threat Integration Center (soon to be part of the National Counterterrorism Center),
and the Homeland Security Council, and
— new investigation and security technologies being developed for public and private
sectors and a research unit in the Department of Homeland Security on homeland security
technologies: the DHS Advanced Research Projects Agency.
That is not a complete list. And this is not to mention the wars in Afghanistan and Iraq. It
need hardly be noted that those conflicts are ongoing, producing daily reports (most of the
news not good), generating daily casualties of U.S. troops and civilians, and punctuated by
almost daily terror attacks or engagements.
Add to this, shocking revelations of abuse of prisoners in Afghanistan, Iraq, and in Camp
Delta (Guantanamo Bay) by U.S. troops (and in the case of Iraq, also by civilian security forces
under contract with the Department of Defense). Courts martial are underway over these
revelations and more developments will come. The long term impact upon the reputation of the
United States — especially with the additional revelation that the Administration considered
an internal position paper arguing for minimal compliance with U.S. law and international
conventions against torture of prisoners — cannot yet be measured.
Not to be overlooked are ongoing responses to the USA PATRIOT Act, including: bills in
Congress to modify the statute, continued lobbying by advocacy groups, the movement among
counties, cities, towns, and State legislatures to adopt resolutions critical of or denouncing the
statute (the total now exceeds 300), and a major national-level conference in Washington DC
in October, 2003 sponsored by several organizations including the National Coalition to
Protect Political Freedom and the Bill of Rights Defense Committee, which has done
tremendous, original, groundbreaking work on spearheading the anti-PATRIOT Act
resolutions movement. Statements about the PATRIOT Act were prominent in the 2004
Presidential campaign. President George Bush, in his 2003 and 2004 State of the Union
addresses, made the PATRIOT Act a central feature by declaring Congress must "renew" it— a
statement that unfortunately leaves the incorrect impression that the entire statute will expire,
which is not the case.
Various groups have issued reports and position papers on the state of civil liberties since
September 11: ACLU, the Cato Institute, the Friends Committee on National Legislation, and the
Bill of Rights Defense Committee. It would be impossible to name them all. There have been
conferences, forums, and events across the country on the PATRIOT Act and civil liberties,
including a several-day event in New York City in 2003 on the second anniversary of September 11.

4
 A Word from the Author

Government investigations into the September 11 attacks, delving into what was or was
not known or done in the federal government about the attacks, were to be expected in the
culture of Washington, DC which too often looks backward. Yet these reports do not speak
enough to the larger question of the "war on terrorism," how it came to be, how it should be
"fought," and where the country is going with it. Further, these investigations are based upon
the presumption that only if the federal government had been sharper, keener, and quicker, the
September 11 attacks would not have happened. While a valid concern, that presumption also
does not address these larger issues. "Preventing" future terrorist attacks, if this is the goal of
these investigations and of the "war on terrorism" itself, cannot hope to succeed without
addressing such matters, for—as mentioned more than once even in the reports—terrorist
attacks are a "tactic" rather than an "end" in themselves.
Books continue to be written 9-11, the Iraq conflict, and surrounding issues, including
Gerald Posner's Why America Slept, Richard Clarke's Against All Enemies, and Seymour Hersh's
Chain of Command. Some additional notable recent publications include David Cole's Enemy Aliens,
James Bovard's Terrorism and Tyranny, Nat Hentoff's The War on the Bill of Rights and the Gathering
Resistance, Jennifer Van Bergen’s The Twilight of Democracy, and Phillip B. Heymann's Terrorism,
Freedom and Security: Winning Without War. These and others are recommended reading for anyone
interested in these issues. However, the present undertaking is not so much about the precise
events leading up to the 9-11 attacks or the policy blunders connect to the Iraq conflict, but the
overall question of the "war on terrorism" and where this country is going.
It is hoped that this update will be of interest to those who have found the original edition
of this book of value in considering whether and to what extent this country could become a
national security state. Certainly, the ongoing events and developments of various types since
the first anniversary of the September 11 attacks have placed considerable additional weight
upon those concerns.

C. William Michaels
January, 2005

Source material for this update includes statutes, court decisions, government
documents, statements or position papers of organizations, Internet sources and websites,
books, and news reports, and have been cross-checked wherever possible. Sources are noted
where practical. The update is accurate to the extent these sources are accurate. Ongoing
developments may have undergone changes since original manuscript submission prior to this
edition going to press. To contact the author, go to www.nogreaterthreat.com.

5
PART I: A NEW REALITY, A PICTURE COMING INTO VIEW
America may soon become a different nation. But this transformation would be no cause for celebration.
Returning to familiar and disturbing trends in its history, America already is obsessed with threats,
surveillance, and investigation. The end of this journey is not yet known. It is a journey requiring increasing
watchfulness.

Imagine: Staggering from the choking, roiling smoke and ash rising from the unbelievable
collapse of the two massive World Trade Center towers, a group of Americans emerge. They are
shocked, dazed, stunned, shaken to have witnessed the unthinkable. They begin looking for
some way home. They see a bus waiting on a street corner. It has been idling for some time. It
seems old, but strangely, it has new tires, a new interior and is freshly painted in glowing red,
white, and blue. There is writing on its sides — “United We Stand” on one, “God Bless the
U.S.A.” on the other.
Desperate to escape the awful scene, and with nothing else around, the group has no
choice but to board the bus. Some do so eagerly. Some are less certain. Suddenly, with a speed
unexpected for its size, the bus hurtles through city streets and onto a highway. It is a road not
known to them, but like the bus itself, the road is vaguely familiar. The passengers notice that
both sides of the highway are posted with dozens of American flags. After a brief but rapid ride,
the bus comes to a quick halt. The passengers notice a large blinking road sign in yellow caution
letters: “Now Entering National Security State: No Return to Previous Route.” The bus sits. The
driver revs the engine and looks back to the passengers, waiting for their signal to go ahead...

INTRODUCTION
Although America and the rest of the world are well into 2002, the September 11 tragedies
in New York, Pennsylvania, and Washington, D.C. remain emblazoned in the national psyche as
an indelible historical event. Proposals for new construction at Ground Zero are well under
way, focusing on how to create an appropriate memorial to the thousands of innocent lives lost.
But September 11 is not just a piece of history. Across the country Americans are watering their
lawns, buying groceries, going to classes, getting to jobs, sitting in coffee shops, taking kids to
activities. It may seem as if life is returning to normal. Beyond any doubt, that is not so. Beneath
the appearances of the everyday world, as Americans sit in workday traffic, crowd the malls on
weekends, and watch their televisions in evenings, a new reality is taking shape.
This transformation is both plain and subtle. Clues can be found daily in the news, but its
impact has not yet been truly felt. Persistently, deliberately, sometimes quietly and sometimes
not, the post-September 11 government of the United States and its myriad investigative
agencies, along with a massive law enforcement apparatus at numerous levels including states
and cities large and small, are re-forming themselves. Much ink has been spilled and much
news-talk time spent arguing over the threat to civil liberties after September 11. That is worthy
debate, but it does not nearly cover the issues.
Concern about civil liberties is just the beginning. An even bigger picture is being
overlooked. Within another year, perhaps by the second anniversary of September 11,
Americans could wake up and sip their coffee in a new country: a national security state. In the
chapters that follow, we will consider what that means, and examine the USA PATRIOT Act
which seems designed to speed us on the way.
A national security state need not be an overbearing dictatorship. It is extremely unlikely
that America ever will reach that stage of total transformation. More likely is the development
 No Greater Threat

of some other form, an odd mix of relentless high-tech surveillance and investigation with a
compliant consumer culture and oddly familiar retro politics.
A national security state generally believes it is under constant siege by malevolent forces
both within and without. It usually has suffered a catastrophic event perceived as a blow to
national pride and honor. A national security state often is beset by internal strife and even
armed conflict aimed at the ruling government. It often believes that it has few allies in the
world, that other nations do not understand it and will not support it. And a national security
state usually believes it is on a special mission to avenge its national pride abroad or to maintain
social order within. It cannot relax its guard; it must be ever vigilant. The ruling authority of a
national security state sees its role starkly. It undertakes the mission of national security as a
primary and defining image of its authority.
To that end, a national security state will deal harshly will all who oppose it — from
without and within. That means a consistent pattern of military action abroad mixed with
intense surveillance, investigation, harassment and detention at home. Before long, very few
aspects of society are untouched. It will become not only unfashionable but directly dangerous
to protest, question, or challenge the ruling authority. Once that stage of transformation occurs,
certain freedoms may be lost. History has shown that freedoms which are lost are seldom, if
ever, regained.
It doesn’t necessarily take a drastic change in leadership or even violent upheaval to forge
a national security state. A national security state can arise in more subtle ways, through
accepted avenues of legislation, media, and governmental directives, by national attitudes
influencing and in turn shaped by these forces, by a steadily increasing level of governmental
control, surveillance, and response. Such a state need not even act as dramatically as in the well
known images of George Orwell’s 1984 and Ray Bradbury’s Fahrenheit 451. References to those
images may seem trite, alarmist, or cartoonish; yet there is nothing preposterous about the
transformation America may be undergoing.
At immediate risk are freedoms of movement, freedoms of speech and press, privacy, and
other civil liberties. As much as it extols political freedoms and governmental openness, the
United States government has a long and dark history of rounding up troublemakers,
suppressing dissent, criminalizing expression, sowing suspicion, and delaying justice. What is
most disturbing is that America may be turning to these unfortunate trends to unleash forces
which now will operate in an unprecedented atmosphere of political legitimacy, within the
framework of a huge and multi-faceted governmental bureaucracy fueled by massive funding
increases and with a previously unheard-of electronic efficiency. Never before has such a
combination existed. The result will be a permanent and interlocking investigatory and
national security apparatus never before experienced.
Concern about the rise of a national security state is not limited to liberals, civil
libertarians, and government opponents. There is plenty of apprehension to go around. Of
course, survivalist, extreme right-wing and “patriot” movements long have claimed that the
federal government has too much power or acts beyond constitutional authority strictly
understood. These movements have not been taken seriously by mainstream America, in part
because of their extreme and often bigoted views, their religious reactionism, and their
insistence that citizens must arm themselves to the teeth and train for a supposedly inevitable
direct confrontation with their own government. Such a vision of armed rebellion takes these
concerns in an unnecessarily violent direction.
Without lending credence to survivalist movements, it must be said that post- September
11 activities from Congress and the White House have hastened the potential arrival of a
national security state, a government that could exceed the limits of its constitutional power,

8
 Part I: A New Reality, A Picture Coming Into View

that could criminalize what was innocent conduct, that may pass the point of no return. Such a
development should be a concern to every American.
Liberal and progressive segments of American politics also have taken notice. These
segments distrust government too, but for vastly different reasons, in large part due to a
vigorous distrust of authority. It remains for conservatives, pleased with the resurgence of
American political symbols and supportive of forceful American political and military actions
abroad, albeit less enthused with expansion of governmental programmatic and regulatory
authority on domestic fronts, to take a look around. Already, well known conservatives have
criticized the scope and extent of the current national direction.
How the American public (whatever the political starting point) responds in the next
two to three years to this prospect of a national security state will be a decisive factor in setting
the course not only for current American political life but also American history. While this
progressing transformation is the name of “security,” in the long run the result will be an
America which looks, acts, and feels more insecure.
Despite the convictions of pessimists on the right or the left, there is no need for the
American government as a constitutional institution to so totally reform in an image and
likeness which would be a mockery of its own ideals. That is, there is still time to respond to
this threat, a threat more significant than any external menace. Indeed, there is no greater threat to the
security of this country than a systematic dismantling of civil liberties and the rule of law with a dramatic shifting
of political will and resources to investigation, surveillance, and prosecution, coupled with the almost uncanny
ability of the American public to place too much faith in government at the precise time when just the opposite
approach is required.

SOME HISTORICAL ANTECEDENTS

Modern elements of a national security state in America have been present for almost 20
years. The arrival of the Reagan-Bush administration in the 1980s brought with it a renewed
interest in intelligence operations, domestic and international. Perhaps it should be no surprise
that the Middle East continues to be the world region generating the momentum for tighter
controls in this country. The Middle East played a significant role in the arrival of the Ronald
Reagan administration, since a key aspect of the his presidential campaign was vilifying Jimmy
Carter’s administration for its intelligence and covert action failures connected to the
November 1979 seizure in Iran of the American Embassy and the taking of 62 American
hostages. When Reagan had handily defeated Carter in 1980, the hostages were released — but
not until after the inauguration the following January, further ensuring the humiliation of the
Carter administration as well as of the Democratic Party and helping to make Republican
occupation of the White House a fact of American life for more than a decade.
The Reagan administration seemed to be the image Americans wanted. Riding approval
ratings never seen by Carter, it appeared that the Reagan administration could turn any defeat
into victory, any blunder into achievement. So it mattered little to the public that the Reagan
administration itself would face far greater embarrassment than Carter in the Middle East
when American civilians and soldiers were killed in two tragic bombing incidents in Beirut in
1983, the most infamous being the October suicide bomb attack which killed 241 U.S.
servicemen.1 The Middle East continued to play a pivotal foreign policy role as the Reagan-Bush
administration moved from posturing to actual military action in the Middle East numerous
times, notably the “line in the sand” attack on Libya in March and April 1986 and, most dramat-
ically, in the immense Persian Gulf War campaign against Iraq in 1991, which committed, all
told, more than 450,000 troops. Forgotten, of course, was the fact that just a few years before,
Iraq had received millions of dollars of aid from Western nations including the United States, in

9
 No Greater Threat

support of Iraq’s adventurous military campaign against (the now hated) Iran. This followed
the time-worn but consistently ill-advised foreign policy mantra of the United States
government that “the enemy of my enemy is my friend.” Ultimately, the failures of the Reagan-
Bush administrations to define its role more clearly as a broker for peace in the Middle East,
even after the Gulf War had militarily neutralized one of the most belligerent states in that
region, did not help the Reagan-Bush agenda as it vainly sought in 1992 to continue its hold on
the White House.
A term had been given to this foreign policy posture: “low intensity conflict.” Facing a
post-Cold War environment in the early 1980s, the American military and intelligence agencies
were searching for a new mission to return to center stage in the American consciousness. A
central feature of that new mission was “low intensity conflict.” It was tailor-made. Such a
conflict is played out mostly in Third World nations around the globe; it is not a war as
traditionally understood; it would last longer than a traditional war, would require different
strategic allies than a war, would demand increased levels of military preparedness, and would
necessitate more covert operations. There is even a “Board for Low Intensity Conflict.”1 This
policy requires a sustained military and intelligence effort on a global scale. It is just the kind of
foreign policy now brought to a whole new level by George W. Bush after September 11.
Nevertheless, twelve years of Reagan-Bush dominance over American foreign and domestic
policy left its mark, moving this country at least one full step forward in the transformation that
is now underway. The Reagan administration’s unspoken credo was that extremism in the
defense of America’s perceived global interests is no vice. Increased emphasis on intelligence
agencies and a return of the military both as a symbol of national pride and an increased
presence in federal spending priorities were Reagan-Bush hallmarks. It took some people
awhile to understand what Reagan meant when he declared in campaign speeches to veterans
groups, “No more Vietnams.” (Hint: he did not mean, “no more military adventurism.”) Military
adventurism into foreign countries that were perceived as threats was a continual expression of
that foreign policy, and was not restricted to the Middle East. Reagan-Bush campaigns of this
type, designed to protect American security and interests, included overt support for the
military government in El Salvador, thinly-veiled involvement in the formation and support of
the contras operating against Nicaragua, and the outright invasions of Grenada (1983) and
Panama (1989). In that environment, marked by a rise in military adventurism along with a
greater militarization of foreign policy and the national budget as America pressed its interests
of “freedom” around the world, part of the picture of a national security state was in place.
This declaration of foreign policy and military purpose served several ends suitable to the
Reagan-Bush worldview: It maintained the United States as the most powerful military
presence in the world;, it ensured that the United States would be in a position to “respond”
(translation: intervene or assist militarily) in many hotspots including Central America, the
Caribbean, and the Middle East; it rallied the American public around the Reagan-Bush goal of
substantially increasing military spending; and it guaranteed that even the Democratically-

1. In speeches following that tragedy, including one at the Baptist Convention in Washington, DC,
Reagan made political capital out of the senseless deaths of nearly 250 servicemen by extolling their virtues
as soldiers for America. While it may have been a presidency of modern times, the Reagan administration’s
unshakable popularity was in large part due to its ability to draw upon traditional, even ancient, themes of
national pride, the glory of struggle, and the sacrifice of the fallen soldier in the service of the state. Those
themes have returned but now are advanced with the aid of Congressional legislation and executive orders
of unrivaled reach and dimension, further assisted by intelligence and surveillance capabilities not in wide
use or hardly dreamed of twenty years ago.
1. See 50 U.S.C. §402(g). This Board on Low Intensity Conflict is part of the National Security
Council.

10
 Part I: A New Reality, A Picture Coming Into View

controlled Congress would be unable to muster sufficient objection to dramatic spending

proposals from the White House for the Defense Department. The “low intensity conflict”
scenario was quite suited for continued funding and deployment of military and intelligence
personnel. This policy doctrine was a perfect “training ground” for the present “war on
terrorism.”
The general public paid little attention to the fact that this military posturing and
constant United States action in global arenas (especially during the Reagan-Bush adminis-
tration) might not be looked upon favorably by other nations. If this policy was designed to
quell “terrorism,” increase security and reduce global conflicts, it faced an internal contradiction
since it went hand in hand with deliberate efforts to thwart true peace initiatives, such as
START II (essentially scuttled by the Reagan administration after valiant efforts by the Carter
administration to move it forward), along with deliberate attempts to stir up trouble, such as
the Reagan administration’s flouting of the 1985 Boland Amendment prohibiting direct military
action against Nicaragua or direct aid to the contras (resulting in the “Iran-Contra” scandal), and
outright disdain for the authority of international agencies.1 Even less attention was paid to the
fact that many other nations and their citizens might also take a dim view of America’s rejection
of international avenues to address world conflict coupled with its persistent readiness to act as
a major arms supplier worldwide.
This pattern is repeated today, as the George W. Bush administration presses for
increased military spending while at the same time rejecting treaty opportunities. Bush recently
withdrew from one of the unqualified successes of Cold War nuclear arms treaties — the Anti-
Ballistic Missile Treaty — calling it obsolete, so that his administration can proceed with its
highly questionable project to shoot ballistic missiles out of the sky. Another example is the
United States’ withdrawal from the Kyoto Accord regarding global warming.
Typical to this tradition, the “war against terrorism” in Afghanistan is being conducted by
the United States with only a nod to international involvement. During this entire conflict, little
has been said or heard from the United States’ mission to the United Nations. Also, typically,
the United States has not sought out the United Nations except to press for UN support in
condemning the Taliban government of Afghanistan when it refused to “release” Osama bin
Laden. The United States must do far more to bring effective and sustained international
cooperation to the region, even as the fighting in Afghanistan winds down.
Without a doubt, the single-mindedness of the United States government when it comes
to “terrorism” is not reserved for the desperately poor nations of the Middle East. Now, even
more than in the Reagan-Bush administration, the war on terrorism has been expanded to new
domestic fronts.

1. One example of the lack of United States interest in international approaches during this period
would be the Reagan administration’s refusal to accept jurisdiction by the International Court of Justice
over Nicaragua’s claim for damages connected to the CIA-sponsored mining of its harbors, a case which
nevertheless resulted in a court decision finding that the United States had violated international law and
awarding substantial damages to Nicaragua — which the United States never has paid. The United States
not only refused to be part of this case, but also totally withdrew its recognition of “compulsory jurisdic-
tion” of the World Court over any dispute involving the United States, an action it has never reversed.
Despite this move by the United States, the World Court refused to renounce its jurisdiction over the case.
On June 27, 1986, the Court issued an impressive, extensive judgment, ruling in favor of Nicaragua and
assessing unspecified damages against the United States — which could be calculated to be as great as $17
billion. In 1991, after a shift in power in Nicaragua, where aid from the United States had become an issue,
the Bush administration required that Nicaragua drop its efforts to enforce the World Court judgment in
order to receive favorable consideration of aid requests.

11
 No Greater Threat

Part of this domestic process is a new patriotism. The 1991 Persian Gulf War, although it
did not guarantee George Bush’s re-election, served to increase the military- intelligence
emphasis in national political life. With these trends accelerating for 10 years following the Gulf
War, it did not take much for America after September 11 fully to embrace its military in a way
not seen in fifty years. Patriotism is “in” again, if there had been any doubt about that when
Reagan took office. The return of the Democrats to the White House in 1992 did little
fundamentally to alter this approach, although President Clinton’s use of military forces was
considerably less grandiose (Somalia (1994), Bosnia (1995), with the possible exception of the
use of US forces in Haiti). It cannot be overlooked that World War II, forever residing in the
American collective memory as this country’s last “good war,” is being invoked consistently by
the current administration. Overt references to the September 11 tragedies as a “Pearl Harbor”
go hand in hand with a rapid resurgence of interest in World War II rhetoric and a startlingly
increased presence of the American flag. The stage is set for moving this momentum even
farther to an extreme patriotism and total reliance on the global reach of the military, to the
exclusion of nearly all else, trends which surely have characterized the advent of George W.
Bush.
If that were the full extent of the situation, there might not be deep cause for concern. We
have seen this before. It comes and goes. But much more is afoot. The pre- eminence of the
military along with the pivotal role of intelligence as a tandem method of accomplishing policy
goals (relied upon so strongly in the Reagan-Bush years), although a central feature of United
States foreign policy since World War II, now is moving into domestic life. With the actions taken
by Congress and declarations issued from the White House following September 11, America is
in danger of becoming a country unknown to its own citizens except those who remember the
darker pages of United States history.
So it is that this return to traditional symbols masks a return of less enviable trends in
American history. It was immediately after World War II that Congress passed, at President
Harry Truman’s urging, the National Security Act of 1947. Among other things, it created the
Central Intelligence Agency (CIA) and the National Security Council (NSC).1 In the fifty years
since then, Congress has passed much additional national security legislation, creating
intelligence agencies and subagencies, from the National Security Agency (NSA) to the
Counterintelligence Policy Board. Among these laws are the Foreign Intelligence Surveillance
Act of 1978 (FISA) and the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA).
Markedly, this string of legislation committed the United States to an external effort against
global terrorism and to seek out agents of terrorist organizations or hostile foreign powers
which may be operating in the United States. In addition, part of the AEDPA imposed sweeping
changes in immigration standards, linked with other immigration restrictions enacted contem-
poraneously, effectively rewriting national immigration policy.
These approaches have not been limited to Congressional legislation. Along with
legislation, national security increasingly has become the subject of Executive Orders. One
significant Executive Order was issued by President Reagan in December, 1981 — Executive
Order 12333.2 This comprehensive Executive Order redefined and expanded the mission and
purpose of the “intelligence community” such as the Defense Intelligence Agency (DIA) and the
National Security Agency (NSA), and among many other things, established a National Foreign

1. See 50 U.S.C. §402(a). NSC members are the President, Vice President, Secretary of State, Secretary
of Defense, Director of Mutual Security, Chair of the National Security Resources Board, and Secretaries or
Under Secretaries of other Executive Departments. The chair or members of the Joint Chiefs of Staff and the
Director of the CIA may also be at Security Council meetings.
2. Found at 46 Fed. Reg. 59941 (December 4, 1981).

12
 Part I: A New Reality, A Picture Coming Into View

Intelligence Program. (And in November 1990, Congress would establish the Commission on
Defense and National Security, which would submit a report to Congress on national security
concerns.) An Executive Order issued by President Clinton in July 1996 — Executive Order
13010 — directed the private sector to assist the government in combating electronic, radio, or
computer based attacks. Linked to this Executive Order was a report from the Defense Science
Board Task Force on “Information Warfare Defense.” The potential arrival of the “national
security state” was coming into view.
George W. Bush may have brought new life to these trends, but without the September 11
tragedies it would have taken much longer for them to coalesce into an outward, express
centerpiece of American political life and of United States government foreign and domestic
policy. Since September 11, America has moved perhaps 10 to 15 years farther down this road in a
mere six months. That movement continues. The trends of the past 20 years are in clear focus. A
form of national security state is already here. A full- fledged national security state of some type
is on the horizon. If it materializes, it could be permanent. That would mean the end of the
Constitution as we know it.
Americans have played down this danger. A recent Newsweek poll found greater than 60%
support for the recently announced use of military tribunals to try suspected terrorists. Another
recent poll indicates high trust among Americans in areas of national security. According to a
Washington Post-ABC News poll released in March 2002, “strong” support of the US military
action in Afghanistan was at 69%, with 21% supporting it “somewhat” (combined figures:
90%), with 80% believing that the military action was not finished, and 72% supporting US
action in other countries to “capture terrorists.”1
Americans need take care what wishes they are making. Unquestioning endorsement of
these actions, unquestioned support of anything, has its price. Once rights and freedoms are
lost, they are unlikely to be regained without a fundamental shift in government or in national
attitudes. By that time, it is doubtful that the middle Americans who hold the bulk of political
and electoral clout (but who are so preoccupied by the demands of a stressful workplace and
the distractions of a consumer society) could summon the requisite national will to do so. It will
be too late.

THE “NATIONAL SECURITY STATE”

National security states have appeared in many different times and in different guises in
recent history, especially after World War I when intelligence gathering became more sophis-
ticated and commonplace. These states have existed at both ends of the political spectrum, and
have appeared around the world. It would be pointless to note examples because each is
different — and many are characterized by the rule of an absolute dictator or military junta. It
would be foolish to suggest that the United States is in danger of following some contemporary
examples of national security states like North Korea or Myanmar. It would be even more
absurd to contend that the United States could duplicate examples over the past 70 years such
as Pinochet’s Chile, Amin’s Uganda, Sukarno’s Indonesia, Somoza’s Nicaragua or Botha’s South
Africa. The national security state which America may become would not be this kind of overt,

1. Richard Moran and Claudie Dean, “Poll: Strong Backing for Bush, War,” The Washington Post,
March 11, 2002, p. A1. The article notes, “Six months after Sept. 11, the survey suggests that the Bush admin-
istration enjoys nearly as much support now for a broad war on terrorism as it did in the weeks immediately
after the attacks on New York and the Pentagon.” However, by that point the Taliban had been removed as
the governing force in Afghanistan and so poll results showed less support over whether it was necessary to
accept potentially large numbers of US military casualties to capture or kill high-profile terrorist leaders
such as Osama bin Laden.

13
 No Greater Threat

rampant, jack-booted, bloodthirsty dictatorial machine, contemptuous of large segments of its

citizenry, capable of any act of violence, imprisoning and murdering its citizens on mere
suspicion, deaf to international outrage, desirous of nothing but total political control.
Among the reasons these forms of national security state would not occur here is that
America is not by any means in the same political or economic situation as were many of these
other nations when a national security state emerged. No one would disagree that Germany
under National Socialism was a national security state. But despite the shameful and widening
gap between rich and poor in America, it is nowhere near the total economic and social disaster
mixed with a political vacuum which faced Germany after the Treaty of Versailles and which
the National Socialists seized upon in their rise to power. No analogous situation is even on the
American horizon.1 Similarly, the Soviet Union from the moment of its inception in 1917 until
the 1950s was struggling with civil wars, foreign threats and famines, with millions of lives lost
and no major city intact; it was in near-total economic ruin and was still facing a fierce and
costly internal power struggle.
As well, many of these countries either had little or no well-established system of consti-
tutional government or electoral politics, or had experienced a loss of public confidence in a
multiparty process. This also not is the case in the United States, when in 1996 a Democrat was
re-elected President for the first time since 1936, minimizing at least for awhile any doubts
about the outward viability of the two-party system (although there are those who would argue
that it is becoming increasingly difficult to tell one party from the other). Most of these states
did not have a substantial middle class or a runaway consumer society. In a word, even as
America may be transforming into a national security state, it is not going to become Nazi
Germany. But saying that the United States will not become one of the most hated governments
in modern times is not meant to suggest that Americans can rest easy. There remains consid-
erable cause for concern over the nature of this present transformation, including its longevity
and extent. A national security state which could arise in this country would be much more
subtle, pervasive, far-reaching — and for those reasons perhaps longer-lasting. The cause for
concern comes from these shifts in crucial characteristics, either subtle or dramatic, such as a
redirection of governmental priorities, national resources, citizen compliance, and political
attitudes.
These examples serve to identify common characteristics of a national security state, offer
some guide of what to look for, and provide a sense of where America is on this scale and where
it might be going. Whether acting at extreme levels or not, national security states are
suspicious of political opposition; they actively target dissent, decrease civil liberties, engage in
military adventurism, consolidate power, increase domestic investigation and surveillance,
enlist the aid of the media to generate support for the ruling regime or actively suppress or
eliminate opposition media, and reduce the role or the ability of the judiciary to challenge or
hinder the operation of the ruling political apparatus. Nearly all of these elements were present
in the examples noted.2 They all could show up here.
Also, however they arise, national security states maintain their rule and status by persis-
tently calling public attention to the national mission, encouraging the citizenry to join forces
behind the national banner. As this preoccupation grows and intensifies, the State begins to see
the need to eliminate obstacles and difficulties to the efficient accomplishment of its mission.

1. Interestingly, by contrast the most serious economic crises in recent American history, the Great
Depression of the 1930s, did not result in the rise to power of a right wing or even conservative government.
Instead, due to a set of influences outside the scope of this discussion, Americans turned to the more popu-
list ideals of Franklin Delano Roosevelt, and continued to return him to the White House in what will
stand forever (thanks to the 22nd Amendment) as the longest single presidency in American history.

14
 Part I: A New Reality, A Picture Coming Into View

This includes reducing freedoms, treating dissent with ridicule (at best), and perhaps the
marginalization, suppression and elimination of those who openly oppose it. These kinds of
developments also could happen here.
National security states deal sharply with religion. The state may decide to make religious
allies among those churches that will support or at least not impede its mission. (South Africa’s
Dutch Reformed Church is one example). In that event, other religions are suppressed if they
become a threat. If the national security state decides that religion itself is not significant to its
national mission, or is a threat to it, then all religion is suppressed. The Soviet Union, especially
in its early Stalinist period, is among the clearest recent examples, though there are others.
For America, the interplay of religion and the possible national security state is crucial
and perhaps the least predictable. That is, the issue is not “state vs. religion” viewed as a danger
to the freedom of religion guaranteed by the First Amendment — among America’s most well
understood political rights. After all, President Bush, after September 11, attended and spoke at
a religious service at the National Cathedral. Part of this conduct may have been sincere, but
part comes from a President who learned well the Reagan-Bush political strategy of crafting a
careful alliance with religious forces, especially conservative religious forces. Instead, and much
more momentous for the direction of the developments now underway, the issue before America is
“religion vs. state.” It is critical for religion to speak from its own perspective, as the voice of the
State becomes louder. So it must be asked often and plainly: Where are the critical and careful
voices of this country’s religions, which should be the voices of national conscience, as America
moves ever closer to the brink of becoming a national security state? The answer to that
question is one of the keys to the future of America in the next 10 to 20 years.

SOME NOTABLE HISTORICAL ATTACKS ON CIVIL LIBERTIES

America could draw upon several dark examples in its own history as it transforms into a
society capable of curtailing civil liberties, attacking political opponents, and silencing dissent,
and more.1 A few quite obvious illustrations from the last fifty years are the Jim Crow laws of
the postbellum South, the detention of Japanese-Americans in specially built camps in
California during World War II, and the McCarthy hearings of the 1950s at the height of the
anti-Communist hysteria of that era.
This history offers many other precedents. It includes far wider and more complex events
such as the suppression of labor movements — from coal mines in the Southeast to textile mills
in the Northeast, to steel mills in the East and Midwest, to railroads which ran on the steel
tracks themselves.

2. A few examples: Uganda engaged in military adventurism in 1997 and 1998, in the Congo. Indonesia
under Sukarno engaged in military actions against Malaysia in 1964 and 1965, and under Suharto invaded
East Timor in December 1975 as that island sought independence following the collapse of Portuguese rule.
Indonesia annexed East Timor the following year, despite international condemnation, and more than
250,000 East Timorese have died in the resulting famine, oppression, and violence. [In a United Nations-
monitored referendum in August, 1999, the islanders voted for independence, but this only touched off
another wave of violence by pro-Indonesian militias, during which the Indonesian government was slow to
intervene. In the following months a UN peacekeeping force arrived and an UN-sponsored interim adminis-
tration took command. In May 2002, in a ceremony that received worldwide attention and was attended by
former president Bill Clinton, East Timor formally celebrated independent status. The United Nations
recently approved East Timor for UN membership.] Pinochet’s Chile rattled sabers against Latin American
neighbors. And there can be no debate that the Soviet Union under Stalin and Khrushchev was a national
security state.
1. For a short discussion of other historical American trends which bear mentioning such as slavery
and treatment of Native Americans, in this context, see Appendix 1-A.

15
 No Greater Threat

The famous Haymarket Square riot of May 4, 1886 in Chicago during a strike at the
McCormick reaper works, which left 11 dead and led to the hanging executions of four
“ringleaders” that same year, came only twenty years after the Civil War. Nine years prior to
that, in 1877, 11 leaders of the Molly Maguires, the Irish labor activists in Pennsylvania coal
mines, were hanged. That year President Rutherford B. Hayes sent federal troops to suppress a
national railroad strike. In 1892, the Homestead strike at the Carnegie steel mills erupted in
violence that left 11 strikers and 7 guards dead. That pattern of harsh response to labor struggles,
which began well before the Civil War, continued into the 20th century with incidents like the
“Bread and Roses” strike in Lawrence, Massachusetts in 1912, violence against the United Mine
Workers in the 1920s, the United Farm Workers’ organizing efforts of the 1960s and 1970s, the
Reagan Administration’s treatment of the PATCO (air traffic controllers) strike in early 1980s,
the Pittston coal company labor difficulties of the late 1980s, and the lockout in February 1996
of Crown Petroleum workers from that Baltimore-based refinery company’s Pasadena, Texas
plant, a lockout that is historic for its longevity and that was not resolved until January 2001.1
Many of these incidents were marked by involvement of the Congress or the White
House. But there are many more instances. More than once in American history there has been
direct Congressional action designed to stifle or dilute political opposition or unpopular views.
Without being an exclusive list, ten Congressional actions or events are of special note in
America’s history of national-level suppression of dissent, information, or expression:
1. In the Alien and Sedition Acts, several laws passed in 1798 (less than ten years after the
Constitution was ratified), Congress took bold steps to curtail the civil liberties of suspected
terrorists. The Acts were a reaction to the “XYZ” affair, an alleged attempt by French agents to
affect negotiations between the United States and France designed to avert a war crisis. The
“affair” was used by President John Adams and his Federalist Party to create fear of foreign
agents operating in the United States.
The Alien Act authorized the President to arrest and deport any alien considered
dangerous. The Alien Enemies Act allowed for the arrest and deportation of agents of foreign
powers at war with the United States. The Sedition Act made it a crime to print or publish false,
malicious, or scandalous statements against the United States Government, the President or
Congress. It was also illegal under the Sedition Act to foster opposition to the lawful acts of
Congress or to aid a foreign power in plotting against the United States. Violation of these acts
could result in imprisonment of up to five years and fines of up to $5,000.2
Without question, these Acts were aimed at immigrants and refugees, especially Irish and
French, as well as at any press supportive of the opposition Republican Party. By 1802, all of the
Alien and Sedition Acts either expired or were repealed, but not before more than 25 people
were arrested and approximately ten convicted under various charges.
The Alien and Sedition Acts were not widely embraced. Kentucky and Virginia
legislatures passed resolutions opposing them. The Acts were never subjected to direct consti-
tutional challenge, but they became a blemish on the Federalist Party, which was unable to

1. Of particular value for an overview of the American experience in suppressing labor movements is
the painstakingly researched and well presented book by Howard Zinn, A People’s History of the United States
(Harper & Row, 1980) especially the chapters “The Other Civil War” and “Robber Barons and Rebels.”
Additional useful reading, also suggested in the book’s bibliography, would include: Thomas Cochran and
William Miller’s The Age of Enterprise, Richard Hofstadter’s and Michael Wallace’s American Violence: A Docu-
mentary History, Jeremy Brecher’s Strike! and Philip Foner’s four volume work, A History of the Labor Movement in
the United States.
2. Certainly, the Act was not passed without debate and concern. On June 21, 1798, the last day of the
congressional debates on the Alien and Sedition Act, Senator Edward Livingston roundly criticized the Act:

16
 Part I: A New Reality, A Picture Coming Into View

retake the White House in the election of 1800 due in part to sentiment against these Acts. But
Congress had set an important precedent. In the very earliest years of the new United States,
despite the constitutional guarantees of political freedoms, particular groups could be targeted
and political opposition could be targeted or criminalized.
2. Only about fifty years after the expiration of the Alien and Sedition Acts, after the
outbreak of the Civil War, Congress and President Lincoln permitted wholesale investigations,
detentions, interrogations, or other actions of civilians on suspicion of anti- government
activities or of being sympathetic to the South. The actual numbers are not clear, but there is no
doubt they occurred and that there were few if any direct court challenges to these actions.
President Lincoln’s suspension of habeas corpus, itself constitutionally questionable, was simply one
of many examples of harsh treatment of anyone suspected of expressing anti-government
sentiments in the North. Military tribunals were formed, although the Supreme Court at that
time questioned their use when applied to civilians.1
3. Less than ten years after the Civil War ended, Congress in 1873 passed the Comstock Law
(after anti-obscenity crusader and reformer Anthony Comstock). This Act made it a crime to
import or distribute devices, medicine, or information concerning birth control and abortion.
Nurses and doctors were prohibited from giving this information to patients. The law also
prohibited the use in print of the names of sexually transmitted diseases. Although it was
presented as an anti-obscenity law, it was more accurately intended to stifle what were
considered dangerous social ideas. The law achieved more notoriety when Margaret Sanger, one
of the founders of the birth control movement, directly challenged it many years later, in 1914.
Sanger’s indictment for violating the statute was dismissed in 1916, undercutting the effect of
the Comstock law. The Comstock law was revised or effectively repealed by 1938. Yet for more
than 60 years, it was the law of the land.
4. Forty years later the United States was involved in World War I. With that came the
Espionage Act of 1917, portions of which are still essentially in force today, having been amended in
1940 and 1970.2 The Espionage Act provided for fines and imprisonment for collecting and
transmitting to a foreign power information related to United States national defense or
impeding armed forces recruitment. The Act made it illegal to use the United States mails to
transmit information or messages that could be considered treasonous or that urged resistance
to United States law.
Shipping activity in United States waters was regulated. Even neutral ships could be
stopped and searched. The Espionage Act continues to be an active statute in that it became the
basis of the later Espionage and Sabotage Act of 1954, which is still current law.3
5. With the Espionage Act came another Sedition Act in 1918, which amended the
Espionage Act (although the Acts generally were referred to, together, as the Espionage Act of
1917. This Sedition Act was repealed in 1921). This Sedition Act prohibited spoken or printed
attacks on the United States Government, Constitution, or flag. That statute also made it a
crime to “willfully cause or attempt to cause, or incite or attempt to incite, insubordination,

1. The Supreme Court rejected President Lincoln’s use of military tribunals to try Confederate sympa-
thizers. Christopher H. Pyle, “Tribunal Myths Debunked” (December 16, 2001). The Court overturned the
conviction of a civilian by a military tribunal because such use of military tribunals had not been authorized
by the Constitution or by Congress. The Court rejected the government argument that wide authority for
the tribunal was necessary due to the circumstances of the Civil War. Ex parte Milligan, 4 Wall. 2-142, 71 U.S.
210, 18 L.Ed. 281 (1866).
2. The Espionage Act of 1917 was upheld as constitutional by the Supreme Court in several decisions.
Abrams v. United States, 250 U.S. 616 (1919).
3. See 18 U.S.C. §794. For a further review and examination of the Espionage Act including examples of
some notorious convictions under this Act, in its 1917 version or later, see Appendix 1-B

17
 No Greater Threat

disloyalty, mutiny, or refusal of duty” in the military or to willfully obstruct or attempt to

obstruct recruiting and enlistment in the armed forces. It was a crime, as well, to print or to
publish any “disloyal, profane, scurrilous, or abusive language about the form of government of
the United States” or its constitution, military forces, flag, or uniform, or to publish any
statement bringing the government or these symbols into contempt or disrepute.
Under the Espionage and Sedition Acts of 1917 and 1918 there were thousands of arrests
and more than 1,500 trials and sentences. Freedom of the press was severely diminished. It was
during a case under these Acts that the Supreme Court issued its famous “fire in a crowded
theater” declaration that the government could regulate speech and publication if the offending
speech or material was a “clear and present danger” to national security.
Following United States’ entry into World War II and during the post-War Communist
scare of the 1950s, the revised Espionage Act came into more active use. More than 160 people
were convicted under the Act. Among the most famous were Julius and Ethel Rosenberg,
convicted of providing H-bomb secrets to the Soviet Union, and executed in 1953.
The mood of the country in passing the Espionage Act in 1917 also raised the ante in anti-
labor activities. In late 1919 and early 1920, the federal government was given an excuse to crack
down on undesirables with the bombing of the home of Attorney General A. Mitchell Palmer. A
series of roundups and arrests occurred of suspected “terrorists,” mostly foreigners, snaring
more than 4,000 people in 33 cities, in what became known as the Palmer raids (a time also called
the “Red Scare”). They were detained in holding areas. Many confessions were extracted by
duress. In the end, more than 500 immigrants were deported. These actions obviously were
politically motivated rather than serving as any serious effort to link those rounded up, arrested,
or deported to the bombing.
6. Only twenty years after the Espionage Act, anti-Communist and anti-labor frenzy led
to the creation of the House Un-American Activities Committee (HUAC) in 1938.1 Also known as the
Dies Committee after its first chairman, Rep. Martin Dies, Jr. (D-Tex), it was intended as a
temporary committee to look into “disloyalty” by government employees and monitor foreign
agents, but was made a standing committee in 1945. HUAC over its long and infamous reign
investigated supposed Communist influence in all areas of American life, including
entertainment. Among the most famous incidents of its investigations were the 1947 hearing on
Communist influence in Hollywood, leading to the imprisonment of the “Hollywood Ten,” and
the later celebrated “spy case” of State Department official Alger Hiss, which began in earnest
the political career of Richard Nixon. Although HUAC was abolished in 1975, when it was then
known as the Committee on Internal Security, it left the citizenry with no doubt that Congress
has the will to attack any group or destroy any career in the name of national safety and
security.
7. In 1940, shortly before United States’ entry into World War II, Congress passed the
Smith Act.2 It outlawed advocacy of force or violence as a means to challenge or change the
government (which would seem to be contrary to the Declaration of Independence, which

1. Investigations of the House Un-American Activities Committee were upheld by the Supreme Court.
Barenblattt v. United States, 360 U.S. 109 (1959). The court upheld questioning and investigation of individuals
in the Committee’s exploration of potential Communist infiltration of schools. Barenblatt had refused to
answer Committee questions about his membership to or allegiance to the Communist Party. The Supreme
Court upheld his conviction for contempt of Congress, rejecting his First Amendment challenge. The Court
also upheld HUAC investigations into other areas. Braden v. United States, 365 U.S. 431 (1961), and Wilkinson v.
United States, 365 U.S. 399 (1961).
2. 18 U.S.C. §2385 (later repealed). The Smith Act also was upheld by the Supreme Court as constitutional. Dennis v.
United States, 341 U.S. 494 (1951), and Scales v. United States, 367 U.S. 203 (1961).

18
 Part I: A New Reality, A Picture Coming Into View

expressly announces that the people may “alter or abolish” the national government if it has
failed in its duty to secure and ensure the inalienable rights of every citizen). The Smith Act
prohibited advocating overthrow of the government.
8. Ten years later, in 1950, Congress passed the (McCarran) Internal Security Act.1 Enacted
during the height of the McCarthy era, it established a new federal agency called the
“Subversive Activities Control Board.” The act was designed to identify and suppress
supposedly subversive individuals and organizations. Among its requirements were that
Communist organizations file registration statements noting the names and addresses of
officers and members including those who were officers or members in the past year, submit to
financial accounting, and list all printing presses in the organization’s possession or control.
9. During the Vietnam War, Congress made it illegal to burn draft cards, which was
occurring with great frequency during antiwar protests across the country. Measures were also
passed outlawing the burning of the American flag. The Supreme Court ruled in 1989 and 1990
that the American flag could not be singled out as an object of a criminal statute and basically
found that flag burning, while it may be reprehensible to many in Congress, constituted
symbolic and protected speech under the First Amendment.2 However, measures relating to the
burning of draft cards were allowed to stand.3
10. In the 1978, Congress passed the Foreign Intelligence Surveillance Act, establishing a unique
Court, called the Foreign Intelligence Surveillance Act Court. This Act is still very much in force
today and in fact has been amended and expanded by Congressional action following
September 11. The FISA Court’s sole duty is to review specialized requests by government
investigatory officials for search, seizure, wiretap, and similar orders permitting investigation of
“agents of a foreign government” operating in the United States. The FISA and the FISA Court
system were upheld as constitutional, although the Court itself was little known until Congres-
sional legislation after September 11 expanding the Court became a subject of discussion.
These notable examples, along with the surveillance, espionage, military, and foreign
policy activities of the United States around the world after World War II (Vietnam being only
one immediate and glaring example) and Congressional legislation authorizing wiretaps to
investigate a wide range of criminal conduct, are part of an overall collection of government
activities providing the historical basis for a potential transformation into a national security
state. Restrictive legislation and suppression of dissent or of anti- government sentiment is as
old as the founding of the nation.
Tremendous forces are at work. America now sees itself under constant direct threat of
“terrorism.” The 9-11 events have struck deep into the national psyche, bringing forth
(somewhat inappropriate) comparisons to Pearl Harbor — which resulted in America’s last
declared war. This “terrorism” is perceived as an internal as well as an external threat. The

1. 50 U.S.C. §781 and §782, also called the Subversives Activities Control Act of 1950. This was directed
against, and mostly used against, the Communist Party and suspected Communist Party members. The act
was upheld as constitutional. Communist Party of United States v. Subversive Activities Control Board, 367 U.S. 1
(1961).
2. Texas v. Johnson, 491 U.S. 397 (1989). Considering a Texas flag desecration statute similar to a national
statute, the Court decided that the burning of an American flag as part of political demonstration against a
Republican Party meeting was expressive conduct within First Amendment protection. And see United
States v. Eichman, 496 U.S. 310 (1990), where the Court also said that flag burning as a mode of expression,
unlike obscenity or fighting words, can claim First Amendment protection as expressive speech.
3. See United States v. O’Brien, 391 U.S. 367 (1968). The Court said that the government had a “substantial
interest” in the existence and availability of draft cards and in their use in the lawful system of conscription
and so the statute’s punishment for destroying draft cards was an “appropriately narrow” means of
protecting that interest.

19
 No Greater Threat

bizarre anthrax events that followed soon after only amplified this perception and underscored
the sense of national sorrow and unease.
In that sense, four fundamental early motivators of a national security state already have
occurred: a catastrophic event felt nationally; dread of the prospects of internal attack; fear of
additional external attacks; and a national government which has vowed to respond in all
corners of political and social life and has linked its political future to the nature of that
response.
In observing the resulting combination of forces, it is essential to look carefully at the
specific characteristics or elements of a national security state. It is a look down the dark road
upon which this country may be traveling.
Americans will not have long to wait to find out if a full-fledged version of a national
security state takes shape. Indeed, whether and to what extent America will become a national
security state will be decided in a very short time: within the next three, no more than five,
years. As will be seen, 2005 will be a critical year for Congress to take a step back from the giant
leap that it made in October 2001.
That giant leap is the USA PATRIOT Act. (The acronym stands for “Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism.”) Even before it was enacted, concerns were raised about the civil liberties dangers it
posed. Most of those concerns centered on what is now Title II of the Act, but Title II is not the
only problem. Indeed, the PATRIOT Act is not the entire picture. And there is more at stake
than our civil liberties.
As this is being written, continued concerns are raised about another major terrorist
attack on the United States or its personnel or facilities around the world. As noted in some
television news reports, a video recently was released showing what appeared to be a very-
much-alive Osama bin Laden, vowing new attacks on America and declaring that most officers
of the al-Qaida network have not been killed or captured despite the massive military action in
Afghanistan following September 11, and so have survived to plan and carry out new attacks. If
the United States sustains another serious terrorist attack, there will be a further outcry for
government action and possibly a stronger campaign of investigation and prosecution
accompanied by an insistence that broader governmental powers be exercised. No one wishes
for any further terrorist strikes against the United States or anywhere else. Yet it does little to
honor the innocent victims and their families of the terrible attacks already unleashed, or the
victims which any further such attacks may claim, for the United States to lose its balance, its
sense of self, and its vision, in the process becoming less of a nation.
No less a personage in the field of governmental powers than John Dean, former White
House Counsel under Richard Nixon, in a recent commentary, considered whether the United
States since September 11 could be transformed into a “constitutional dictatorship.”1 He noted
that democracy “works best in times of peace, when there is debate, compromise, and
deliberation” as government policies develop. However, in a major crisis, such as a crisis of
terrorism, the nation will turn to the President and the Executive Branch for leadership, with
strong support for whatever action may be needed, even if it means the use of extreme executive
authority. Dean pointed out, as already suggested, that in a crisis the government has brought

1. John W. Dean, “Presidential Powers in Times of Emergency: Could Terrorism Result in a Consti-
tutional Dictator?” Commentary in “FindLaw” (www.findlaw.com), June 7, 2002. Copyright, 2002. Used
with permission of John Dean and FindLaw.com. Mr. Dean became Counsel to the President in July 1970.
Prior to that he was Chief Minority Counsel to the House Judiciary Committee and was also Associate
Deputy Attorney General. He is the author of Blind Ambition (1976) and Lost Honor (1982).

20
 Part I: A New Reality, A Picture Coming Into View

tremendous forces to bear. Sweeping presidential powers have been exercised in crisis periods
by leaders ranging from Abraham Lincoln to Woodrow Wilson to Franklin Delano Roosevelt.
The concern centers upon how such power is used and whether it will be retained after
the crisis fades. Dean noted, “The distinction between a ‘constitutional dictator’ and a strong
president is remarkably thin, if non-existent.” Mentioning other authorities on this matter,1
Dean warns that while there has not yet been a true constitutional dictatorship in America, its
potential development cannot be ruled out.
Even if the use of presidential powers amounting to a constitutional dictatorship were
necessary in a time of extreme crisis, “The greatest danger with such a form of government, and
its related institutions and laws, is that they can remain after the crisis has abated.” The
terrorism threat, as an undeclared war and continuing national crisis that has no end in sight
and may escalate, “is a war that could force the nation to live under martial law — for indefinite
periods.”
The extent of those presidential powers is substantial. The National Emergencies Act of
1976 gives the President powers approaching martial law if a national emergency is declared.
Prior to that Act, a series of Executive Orders in the 1960s gave the President and Cabinet
Departments power over nearly every aspect of American life in a time of catastrophic national
emergency.2
Dean also criticized the PATRIOT Act and its long-term effects, which possibly may
bring the country to the brink of a constitutional dictatorship. “One need only look at the haste
and thoughtlessness with which we have adopted the potentially dangerous USA PATRIOT
Act, most of which Republicans and Democrats alike had earlier rejected, to understand why
legislating the aftershock of terrorism should be avoided if possible.” Dean adds, “Each national
crisis has left the nation a little less democratic than before.”
With the new Executive Office advancements in homeland security and other areas, “It is
not too soon to consider whether, in fighting terrorism, we really want a constitutional dictator
to lead us.” He astutely notes that no one wishes it, but “if a future attack comes, and it is
devastating, the pressure to resort to constitutional dictatorship may be irresistible.”
A potential national security state contains all the elements of a “constitutional
dictatorship.” If such a thing occurs and becomes permanent, we will have lost much, in fact too
much, in the war on terrorism. The fundamental question is not so much the necessity of taking
extraordinary measures in extraordinary times, but how those measures affect the social and
political fabric and how “permanent” the situation becomes. No one would argue that the
country is in a crisis in dealing with terrorism. Yet the long- term results of establishing a
complex anti-terrorism apparatus that is transmuting political, social, and economic priorities,

1. Dean’s article noted Clinton Rossiter’s 1948 work Constitutional Dictatorship: Crisis Government in the
Modern Democracies, and a 1949 essay by Albert Sturm, “Emergencies and the Presidency” in an issue of Journal
of Politics of that year.
2. Those Executive Orders, mostly issued in February of 1962, gave the government and the Executive
Branch wide power to take over transportation, highways, airports, seaports, communication, power
supplies, food resources, farms, health, education, and housing. (See EO 10990 and EO’s 1519 through 1542,
27 Fed.Reg. 1065 and 1519 et seq.). The obvious intent of these Executive Orders was the restructuring of
American society after a tremendous catastrophe such as a nuclear war. These Executive Orders were
revoked in October of 1969 (Executive Order 11490) and certain executive offices were reorganized to deal
with national emergency or crisis. Then, in 1976, Congress terminated any declaration of national emer-
gency and Presidential emergency powers as of September 14, 1978. However, the existing National Emer-
gencies Act (50 U.S.C. §1601, and see 50 U.S.C. §1621 et seq.) still gives the President substantial powers to
exercise in the event of a Presidential declaration of national emergency, including invoking any number of
statutes or authorities available to the President in such an emergency.

21
 No Greater Threat

cannot be ignored. The trouble is, however, that more has already occurred than many wish to
admit. The vast majority of PATRIOT Act is already permanent.
Some may consider that America is doing well, that terrorism is a battle worth extreme
sacrifices, and that the PATRIOT Act is simply water already under the bridge. However, the
PATRIOT Act is too substantial, too elaborate, and too significant to be ignored. It is the bull
raging through the china shop of civil and political rights, which are more fragile than we wish
to believe. It is a large part of the potential development of a national security state.
That development can be described by considering twelve common “characteristics” of a
national security state, which this book will review in detail after analyzing the PATRIOT Act.
They are:

Visible increase in uniformed security, and increased security measures

Lack of accountability in law enforcement
Reduced role of judiciary and executive treatment of suspects
Secrecy of ruling authority and momentum of threat
Media in the service of the State
National resources devoted to security threat
Patriotism moving to nationalism
Lack of critical response by religions
Wartime mentality and permanent war economy
Targeted individuals and groups
Direct attack on dissent
Increased surveillance of citizenry.

How the PATRIOT Act fits into those categories will be nearly self-explanatory as we
move through the Act. But the PATRIOT Act, as substantial as it is, is not the whole story.
Many other ingredients are at work, which will be evident when the discussion returns to these
characteristics.

Comment at Close of 2004

Unfortunately, a very long list would be required to describe events and U.S. government
activities since mid-2002 (when No Greater Threat was readied for publication) affecting the war
on terrorism and the concept of a potentially emerging national security state. An overview is
included in the comment for this edition, to the Introduction (see "Word from Author").
Unquestionably, topping the list is "Operation Iraqi Freedom," launched in March of 2003
(when the original edition appeared in October, 2002, this author joined many in predicting
such an attack was immiment). Announced by the Bush Administration as a pre- emptive
attack to prevent dictator Saddam Hussein from further developing and using weapons of mass
destruction against the U.S. or allies and in violation of UN sanctions imposed upon Iraq after
the Gulf War (Operation Desert Storm), this war was conducted by US-led "coalition" forces —
despite the lack of UN approval and in the face of widespread opposition from many quarters
domestically and internationally, even the Vatican. It was to be expected that the massively
outgunned Republican Guard could not hold their ground for long, especially lacking an
effective response to the formidable firepower put into the sky by U.S. air and naval forces,
raining down upon Iraq and its major cities with devastating results.
Most regrettably, although Baghdad had fallen and major military operations were
declared completed in May, 2003 by President Bush in his "mission accomplished" speech from

22
 Part I: A New Reality, A Picture Coming Into View

deck of the aircraft carrier USS Abraham Lincoln, the situation on the ground has yet to improve
to the point where Iraqis can confidently return to their lives. In other words, the combat is over
but the fighting goes on. Despite the dramatic capture of Saddam Hussein in December, 2003,
the killing of his two sons (who were widely feared during the days of their father's regime) in a
battle some weeks before, the virtual destruction of the Republican Guard as a military
presence and of the Hussein's Ba'ath Party as a political force, the adoption of an interim Iraq
Constitution, and the handover of formal power to an interim government, the Iraq situation
continues to degenerate massively. Insurgency actions and guerilla attacks, explosions and
assassinations, gruesome acts of beheading of kidnapped hostages by hooded terrorist groups,
and continual targeting of U.S. soldiers, have become grimly commonplace. The U.S. has
sustained more casualties since the announcement of the successful end of combat operations,
than before. The Iraq governing council which supposedly is now in control of the country,
along with Iraq police and security forces, so far have not had an appreciable impact upon a
dangerously unravelling situation.
As a result, there is no firm date for withdrawal of U.S. troops, although withdrawal
seems wise since the citizenry increasingly views the U.S. as an occupying force. That unsavory
reputation was further tarnished by revelations about U.S. abuses of Iraqi prisoners and
detainees, including children. Meanwhile, the Department of Defense has extended tours of
duty, changed rotation schedules, demands more funds be spent on a larger overall armed force
to maintain troop strength in Iraq, and is predicting a U.S. troop presence in Iraq for years.
The U.S. press focuses almost exclusively on U.S. troops and the domestic political
impact of the conflict, so not enough is said to the U.S. public about Iraqi civilian casualties,
persistent problems with everything from schools to hospitals to travel on the roadways to
electrical power, and oppressive unemployment. There is much uncertainty about Iraq's long
term future and whether elections can produce the desired results of an authentic, emerging
democratic nation.
Equally problematic for the justification for this war is fact that no large stockpiles of
weapons of mass destruction (nuclear, chemical, biological, etc.) have yet been found. The
widely broadcast presentation by Secretary of State Colin Powell at the UN Security Council,
before the war began, about Iraq and its facilities for manufacturing such weapons, now rings
hollow. Alternative pronouncements that the Iraqi regime had something to do with the
September 11 attacks and had working relationships with al- Qaida terrorists, have not materi-
alized into solid evidence. Although the Administration shifted gears of justification again, to
the value of putting an end to Hussein's brutal and corrupt dictatorship, that justification also
rings hollow with the historical background of U.S. support for Hussein while he was at war
with Iran, and Iraqi's other shady dealings with the West. Undermining as well the United
States' "moral" justification for the war, besides revelations of mistreatment of Iraqi prisoners,
are reports of possible mismanagement of Coalition funds, lack of clear control of contracted
private security agents, and the wholesale failure of U.S. troops to stop widespread crime
including the tragic looting of precious and irreplaceable museum artifacts as major fighting in
Baghdad drew to a close — which Iraqis have not forgotten.
Congressional inquiries, hearings, and reports have criticized the use by the White House
and the Defense Department of the CIA information in forming rationales for the war, which
information actually cast doubt upon existence of weapons of mass destruction, warned of a
potentially unmanageable aftermath, and challenged optimistic prospects for achieving
political stability in the country in a matter of weeks. CIA Director George Tenet eventally
resigned over those concerns. This is on top of the enormous daily financial cost of the
continued U.S. presence, with no end in sight, and almost daily deaths or serious wounding of

23
 No Greater Threat

U.S. soldiers by one insurgency attack after another. And this is further not to mention —
although it bears mentioning because it is not well reported in the U.S. press — the long term
ecological and environmental impact in Iraq of two devastating wars and years of economic
sanctions all within a decade, including environmental and health effects of depeleted uranium
munitions which have an enormously long half-life and which will affect water and agricultural
systems for years to come.
Less consistently discussed, with so much attention devoted to Iraq, is the continuing
situation in Afghanistan, which remains an overall danger area although a civilian government
in Kabul has been in power for more than a year. U.S. troops continue to be at risk and combat
events continue. Much of the countryside still remains controlled by warlords or by nobody.
The situation for civilians has improved only slightly (although granted, just about any change
from the ruthless fundamentalist Taliban regime would be an improvement). Osama bin Laden
still has not been captured, never mind Bush Administration's early pledges to do so when
Afghanistan operations began. The Afghan economy is still in disarray — with the exception of
the tremendous opium trade which has greatly increased since the Taliban days. Government
officials in Afghanistan continue to face assassination attempts.
It was predicted here (in the original edition) that the outcome of the major military
engagements in Afghanistan could put the United States in the same unenviable, grinding
position as the Soviet Union found itself, when it attempted to take control of the country by
force. That is, after years of military activity, the occupying force would control of major cities
but not the countryside, which would continue to be a no-man's land. And that is just what
appears to be happening. United States troops have a degree of control in major cities or towns,
namely Kabul, but continue to have difficulty quelling conflict or establishing control
elsewhere. The Afghanistan military action—as predicted by many including this author—
bogged down in an effort to stabilize the current installed civilian government. One major
reason is that the Taliban, although removed from power, remain a political and culural force to
be reckoned with. Whether any election held there can truly improve long term political
stability is quite uncertain.
Even though movement continues toward establishing a functioning government in both
these countries, these situations will get worse before they get better. The U.S. is learning that
"nation building" is not as simple as it seemed or as national memory served when the Marshall
Plan helped transform and rebuild western Europe after WWII. If the "war on terrorism" is to
be exemplified by the continual difficulties facing the U.S. in Afghanistan and Iraq, the
American public is in for a rude awakening. This indeed will be a "war" without end.
Further, while the wars in Iraq and Afghanistan top the list of major U.S. government
activities in the "war on terrorism" since mid-2002, they are by no means all of it. Domestically,
putting aside for the moment developments in the federal courts including the Supreme Court
anti-terrorism decisions of June, 2004 (reviewed in this 2004 update, see Appendix 5-C and 5-
D), developments since mid-2002 in Congress and in the current Administration have only re-
emphasized the potential that the United States could be transforming itself into a national
security state.
The array of statutes, agency actions, Executive Orders, and Administration policy
documents from September 11, 2001 to date, has been dramatic indeed. Aside from the
PATRIOT Act itself, they include (some of which were noted in the previous edition):

Executive Order on Cybersecurity

Executive Order (Military Order) establishing military tribunals

24
 Part I: A New Reality, A Picture Coming Into View

Executive Order establishing the Office of Homeland Security (which will continue,
despite creation of the Department of Homeland Security)
The Aviation and Transportation Security Act
The Enhanced Border Security and Visa Entry Reform Act
The Public Health Security and Bioterrorism Preparedness and Response Act
The Homeland Security Act (creating the Department of Homeland Security of 2002
[which already has observed its 1st anniversary]), and which also includes several specially-
titled statutes (the statute is reviewed in this 2004 update)
The Intelligence Reform and Terrorism Prevention Act of 2004 (reviewed in this 2004
update)
Treasury Department regulations on Title III of the USA PATRIOT Act
FBI revised guidelines regarding undercover operations
FBI revised guidelines on counterintelligence investigations
FBI guidelines on monitoring attorney-client communications
Increased use of "national security letters"
Increased use of material witness warrants
Increased use of administrative subpeonas
Operation Noble Eagle
Department of Homeland Security's "Operation Liberty Shield"
Department of Homeland Security's threat levels
Department of Homeland Security 's web site, "Ready.gov" with information on how
citizens can make emergency kits and contingency plans for terrorist threats or other
emergencies
Enemy combatant" designations of individuals suspected of terrorism, which has
included United States citizens
Terrorist Threat Integration Center
Terrorist Threat Warning System
Joint Terrorism Task Forces in nearly every federal prosecutorial jurisdiction
Camp Delta at Guantanamo Bay which currently holds approximately 500 detainees
AND at least seven major Administration policy documents:
The National Strategy on Homeland Security (July, 2002)
The National Security Strategy of the United States (September, 2002)
The National Strategy to Combat Weapons of Mass Destruction (December, 2002)
The National Strategy for the Physical Protection of Critical Infrastructures and Key Assets (Feb-
ruary, 2003)
The National Strategy for Combating Terrorism (February, 2003),
The National Strategy to Secure Cyberspace (February, 2003), and

25
 No Greater Threat

The National Money Laundering Strategy (February, 2003).

(To this list of policy documents could be added the National Drug Control Strategy and
the National Military Strategy, making nine significant Administration position papers on
terrorrism. These documents are reviewed in this 2004 update in Appendix 6-B).
Some additional developments:
— the proposed Domestic Enhancement Security Act or "PATRIOT Act II" [leaked in
February, 2003 and reviewed in detail in this update in Part IV-B],
— President Bush's exortations that Congress "renew" the PATRIOT Act,
— "free speech zones" for political protests at public appearances of the President or of
major Administration officials and at the national conventions of the two major political
parties,
— continued terror threat alerts with increased anxiety levels by the public and increased
security measures),
— federal anti-terror arrests or prosecutions ranging from the dramatic to the senseless,
— FBI anti-terror actions including one comunication which actually urged law
enforcement personnel to be watchful of suspicious individuals with almanacs,
— new security and investigative technologies,
— increased monitoring of employees in the private sector, and
— the numbing sameness of major U.S. broadcast media.
If all of these trends continue for an additional four or five years, the arrival of a national
security state in this country would be virtually assured.
In almost three years since September 11, 2001, this country has not experienced another
terrorist attack on U.S. soil. That is not to say that the terror threat does not exist — there have
been attacks elsewhere (aside from Iraq, which more properly should be called a daily
insurgency campaign) including Spain, Turkey, Indonesia, and Saudi Arabia. It may still happen
again here, so alertness, watchfulness and care are wise. But overkill is not. In most of the seven
major Administration policy documents on the war on terrorism, these larger issues are given
only passing treatment. It appears that the Administration is more content to "fight" the "war on
terrorism" almost solely in strategic, tactical, and military terms. Ultimately, this approach is
doomed to failure.
As pointed out in terrorism commission reports, terrorism is a "tactic" rather than an end
in itself, a means to something else. More attention must be paid to the sources of terrorism, the
nature of its objectives, and whether and how those objectives can be politically addressed, if
the war on terrorism is to be effective. A better approach would be to view the situation as "the
challenge of terrorism." Efforts must be directed to economic, human rights, cultural, and
theological aspects of the development of terror groups and objecctives. The war on terrorism
will never be won by locking down this country and by sending out aircraft carrier battle
groups.
All of these developments and events collectively describe a very disturbing picture that,
indeed, is coming even more clearly into view. It a picture which, if brought more into focus, has
not been seen in this country in perhaps 50 years, if at all.
The brightly-painted bus has passed the blinking sign. It is now moving into uncharted
territory. Passengers are looking out the windows, wondering what to make of the new scenery.
Now it must be seen if the driver will put on the brakes, either on his own or because the
passengers demand it — when the driver or the passengers realize that the bus is headed to a
dead end or, worse, toward a precipice of previously unknown consequences.

26
 Part I: A New Reality, A Picture Coming Into View

APPENDIX 1-A
Some mention must be made that the two overshadowing themes of American domestic
political affairs from 1790 to 1890 were slavery and the treatment of Native Americans. It was
illegal for a slave to learn to read or write. With Native Americans from 1790 to 1890, opposition
to the will of the American Government was dealt with severely. Detailed exploration of both of
these themes, which cover at least 150 years since the founding of the nation, is outside the
current discussion. It is not by chance that some of the clearest and most articulate voices of
political radicalism in the United States in the years following the Civil War came from former
slaves. Since that time, African-Americans have tapped into a regrettable history of racial
violence, the silencing of Black voices of dissent and obstructed access to political structures, to
consistently produce progressive and challenging figures for American society.
As for Native Americans, the history is no less tragic. The chronicle spans more than 200
years of treaties, violence, relocations, and confrontations. One of the final and arguably the
most lamentable incidents of violence between Indians and United States government forces
occurred on December 29, 1890 at Wounded Knee at the Pine Ridge Sioux Indian reservation in
South Dakota. That incident marked the effective end of collective Native American resistance
at the time to the policies of the American government. Among the recommended reading is the
celebrated book by Dee Brown, Bury My Heart at Wounded Knee (Henry Holt & Co., Inc., 1971).
By 1900, nearly all of the Native Americans of the East and Midwest were on reservations,
and a government-sponsored program of “assimilation” began which nearly destroyed Native
American culture. By the time that effort was abandoned, the United States Government had
little to fear in terms of any concerted and outright political opposition from Native Americans.
That did not change significantly until the 1960s. Now, as native peoples continue to regain
their cultural and political identity, the debate regarding the relationship between the United
States Government and native peoples has turned to treaty rights, tribal governance, economic
development, education, return of cultural pride and values, fishing and hunting rights, the
extent and nature of reservation governance, management of the Indian trust fund (managed by
the federal Bureau of Indian Affairs), and the future of new enterprises (casinos, power plants).
The long chapters of American history involving Native Americans and enslaved Africans
were not viewed at that time as a function of the need to suppress political dissent from
populations in the society likely to seriously threaten the national government’s authority and
control. Despite slave revolts, during slavery White slaveowners were of the belief that slaves
could not collectively overcome White authority and seize or maintain political power,
certainly due to the conditions of slavery itself. By the same token, there was no chance that the
hopelessly outgunned native tribes of the Midwest and Plains, many already struggling for their
own survival, could launch a successfully coordinated campaign against the American Army,
march on Washington and overthrow the government. Rather, activities like the campaigns
against the Native Americans were viewed as imperatives to the maintenance and development
of the economy and of industries such as mineral exploitation (gold, silver, oil), and population
expansion. Just as slavery was essential to the economy of the South, removing Native
Americans was essential to the economic exploitation of land in the Midwest and West.
Concerns about political dissent and possible seizure of political power came more from other
quarters — labor movements, socialists, and suffragists — although they often were dealt with
nearly as harshly. To be sure, between 1790 and 1890 there was no more dangerous place to be
than in the way of American progress.

27
 No Greater Threat

APPENDIX 1-B
See 18 U.S.C. §794.
A well known conviction under the original 1917 Espionage Act was that of Eugene Debs,
a national Socialist figure and consistent candidate for President. He was convicted and
sentenced under the original Espionage Act for a speech he gave in Canton, Ohio during World
War I, against the United States’ entry into the war, and urging common working men to refuse
military service. Debs said that the ruling classes are always the ones to declare wars while the
working classes are sent to fight and die in them. Among his statements to the crowd were,
“You need to know that you are fit for something better than slavery and cannon fodder,” and
“Don’t worry about the charge of treason to your masters; but be concerned about the treason
that involves yourselves.” Debs’ Socialist Party had adopted a platform in St. Louis in April, 1917,
called the “Anti-war Proclamation and Program,” which was used in evidence at his trial. His
conviction and 10-year sentence was affirmed by the Supreme Court. See Debs v. United States, 249
U.S. 211 (1919).
In that same year, the Supreme Court also upheld the original Espionage Act and a
conviction under that Act in the celebrated case of Schenck v. United States, 249 U.S. 47 (1919) (the
source of the well-known statement, in the Opinion by Oliver Wendell Holmes, that free
speech does have limits and that a person is not free to shout “fire” in a theater: “The most
stringent protection of free speech would not protect a man in falsely shouting fire in a theater,
and causing a panic.”) The Court upheld the conviction of Schenck, general secretary of the
Socialist Party, for printing and circulating leaflets calling for men to refuse military service. The
circular denounced the World War I draft, and the international affairs of the ruling classes
which brought about the war, and challenged the power of the United States to send troops
overseas to fight the war. The Schenck case also established the standard that free speech can be
limited if the speech presented a “clear and present danger.” The opinion added, in words of
special significance here: “When a nation is at war, many things that might be said in time of
peace are such a hindrance to its effort that their utterance will not be endured so long as men
fight, and that no court could regard them as protected by any constitutional right.”
The Espionage Act of 1917 was the basis for the 1954 statute. 18 U.S.C. §793, §794. This
statute no longer criminalizes incitement to refuse military service or obstructing military
recruitment. It is focused on passing any type of information relating to national defense to a
foreign power. The severest penalty is reserved for a violation of the statute if the information
transmitted resulted in the identification and death of a United States agent operating in a
foreign country, or involved “nuclear weaponry, military spacecraft or satellites, early warning
systems, or other means of defense or retaliation against large- scale attack, war plans,
communications intelligence or cryptographic information, or any other major weapons
systems or major element of defense strategy.” In that situation, the penalty can be death. The
1954 statute also provides for a penalty of imprisonment up to life, or the death sentence, for
communicating to the enemy, in a time of war, “any information” concerning United States
military activities, plans, or troop movements. The statute also contains a forfeiture provision.
The death penalty provisions of the statute as well as its constitutionality were upheld. United
States v. Sobell, 314 F.2d 314 (2nd Cir. 1963), cert.den. 374 U.S. 857. Convictions continue to occur
for violations of the 1954 statute. See United States v. Pitts, 973 F.Supp. 576 (E.D.Va. 1997).
Of course, as noted, one of the most prominent convictions under the Espionage Act were
those of Julius and Ethel Rosenberg, accused of passing atomic secrets to the Soviets. The
Supreme Court consistently refused to hear the case except to vacate stays of execution. See
United States v. Rosenberg, 195 F.2d 583 (2nd Cir. 1952), cert. denied 344 U.S. 838, rehearing

28
 Part I: A New Reality, A Picture Coming Into View

denied, 344 U.S. 889; writ of habeas corpus denied, 200 F.2d 667 (2nd Cir. 1952), later Second
Circuit temporary stay of execution vacated and cert. denied, 345 U.S. 965, 345 U.S. 989,
rehearing denied, 345 U.S. 1003; petition to file original writ of habeas corpus with Supreme
Court denied, 346 U.S. 371, opinion vacating stay of execution granted by Justice Douglas (6 to 3
decision, carefully avoiding discussing merits of basic case), 346 U.S. 273 (1953), and further
requests for stays of execution or rehearing, denied, 346 U.S. 322, 346 U.S. 324, 347 U.S. 1021.
The Rosenbergs were put to death by electrocution in 1953.
Congress was not the only governmental authority in the World War I era enacting
statutes restricting speech and political expression. Statutes making it a crime to “encourage or
advocate disrespect for law,” speak in favor of overthrow of the government, advocate refusing
military service, or engage in activity similar to those described in the Espionage Act, often
called State Sedition statutes, were enacted in many States, including Connecticut, Illinois,
Iowa, Minnesota, Montana, New Jersey, New York, Pennsylvania, Texas, and Washington.
These statutes were universally upheld as constitutional and convictions under those statutes
were affirmed.

29
PART II: THE USA PATRIOT ACT — TITLES I THROUGH III
The USA PATRIOT Act was passed by Congress and signed into law in record time after the September 11
attacks. It ranks as one of the most significant pieces of legislation enacted in twenty years. Yet misinforma-
tion about the Act abounds. The extent of its provisions ushers in dramatic changes in American life.

A GIANT STEP — BUT IN WHAT DIRECTION?

Any discussion of the United States as a potential national security state after September
11 requires a comprehensive review of the USA PATRIOT Act (referred to for convenience as
USAPA, or the Act). Passed virtually without dissent by Congress on October 25, 2001 while
the billowing smoke from the fallen World Trade Center still hung in the air, and signed by
President Bush the next day, the Act surely stands as a monumental legislative response to the
September 11 tragedies.1
Yet the Act’s monumental status promises to be far more than its connection to the
September 11 events. The Act also is a sweeping series of troubling provisions placing
intelligence, surveillance, investigation, law enforcement, and terrorist attack preparedness on
a new level in American social and political life. It represents nothing less than a fundamental
shift of national attention, funds, and priorities. The total funds expressly committed by
Congress by this Act exceed $2.5 billion in direct appropriations, with billions more possible
through additional provisions where Congress authorizes “such funds as may be necessary” for
various studies, offices, initiatives, or programs, subject to budget submission and review.
The PATRIOT Act’s scope cannot be overestimated. It has ten Parts, or Titles, each with
several sections (the exception being Title VII, which is one section by itself). Some of these
Titles, notably Title III involving bank records, international financial transactions, and money
laundering, are extremely detailed. All told, there are nearly 150 different sections of the
PATRIOT Act.
The PATRIOT Act may have been approved virtually overnight, but it seems unlikely to
have been written merely in the few weeks between September 11 and its introduction in
Congress, let alone the October 25 date of its enactment. The Act is more than 130 pages long.2
In many places, it interlocks with or amends sections of an entire list of existing federal laws. It
creates new federal offices, task forces, or bureaus, and appropriates or authorizes billions of
dollars in spending. Its scope reaches numerous congressional committees. Ordinarily,
legislative drafting and congressional review and approval of a statute so extensive would take
weeks, if not months. The complexity of many of its sections makes it extremely doubtful that
the Act could have been originated, drafted, submitted, reviewed, and enacted all within 40
days.
The Act not only draws upon but also expands upon the new political atmosphere that
descended upon Washington, DC after September 11. The Act secures a new status for federal,
state, and local law enforcement personnel as investigators of terrorist threats and protectors of
the civilian population from the specter of terrorism. It provides what will amount to long-term
financial security for what soon will become entire companies, foundations, programs, and
think tanks devoted to development of, or training in, threat assessment, global strategies, high-

1. Public Law 107-56 (HR 3162). 115 Stat. 272, et seq.

2. In the version issued in the advance sheets of West's U.S. Code and Administrative News.

31
 No Greater Threat

tech surveillance, database sharing, criminal information tracking, financial transaction

monitoring, counter-terrorism readiness, and the next level of computer security systems.1
Given all of that background, any general review of the USAPA would reveal that it is by
no means a mere symbolic congressional expression in a period of national grief. It puts America
on a new path. Its effects have just begun to be felt. In that sense, its long-term impact might be
compared with the Civil Rights Act, the National Education Act, and the Clean Air Act as a
hallmark of federal legislation exemplifying a new national direction.

THE CHALLENGE TO THE FEDERAL COURTS, AN OVERVIEW OF THE ACT,

“TERRORISM”
It will be most interesting to see how the federal courts apply this Act. It is inevitable that
in the near future many of its provisions will face court challenge. Even the limited number of
sections which “sunset” in 2005 could come under federal court scrutiny. The four-year sunset
period for those sections from the Act’s October 2001 effective date is plenty of time for a legal
attack upon any of those sections to make its way through the federal system to the Supreme
Court. The Supreme Court could render a crucial decision on the scope and validity of those
sections, which contain some of the Act’s most extreme provisions, while they are still active.
Aside from that, since most of the Act is permanent, federal courts will be involved in applying
it for years to come. That portends several federal court decisions and perhaps at least one
Supreme Court decision on any number of the Act’s provisions, whether or not that occurs
before the sunset provisions expire.
The federal judicial system should not shirk this duty. In any challenge to any part of the
USAPA, there will be a tremendous political impetus for federal courts not to intrude into the
encyclopedic law enforcement powers granted by the Act. That pressure must be resisted and
traditional judicial deference to Congress put in its proper place. The courts should
contemplate that rare occasion when a congressional enactment could be declared invalid, since
many of the more extreme provisions of the Act raise serious constitutional concerns. As will be
discussed later, the courts are the last resort to see that justice is done when governmental
authorities overstep their bounds, yet past experience has not been encouraging. Legal
challenges to the constitutionality of recent similar statutes like the Foreign Intelligence
Surveillance Act (FISA) have been unsuccessful.2
Even if federal courts take the same deferential approach and declare it valid, that will not
close the discussion of involvement by the federal court system in applying this Act. Assuming
the PATRIOT Act passes threshold federal court review and takes its place unaffected in the
legal landscape of federal statutes, it will pose a far-reaching challenge for federal courts, no less
significant than the legacy of court interpretation of major environmental legislation or of many
other statutes like RICO (Racketeer Influenced and Corrupt Organizations Act), Civil Rights
Act Title VII and Title IX, and the ADA (Americans with Disabilities Act).

1. Other commentators have made comparable criticisms of the Act. Nancy Chang, Senior Litigation
Attorney for the Center for Constitutional Rights in New York, had similar comments in “The USA
PATRIOT Act: What’s So Patriotic About Trampling on the Bill of Rights?” The article is an excerpt from
Silencing Political Dissent: How Post-September 11 Antiterrorism Measures Threaten Our Civil Liberties (Seven Stories
Press: 2002).
2. For a brief examination of some federal cases considering the Foreign Intelligence Surveillance
Act, upholding the Act against numerous constitutional challenges, so long as activities under the Act are
focused on investigation of suspect foreign nationals for foreign intelligence or national security purposes,
see Appendix 2-A.

32
 Part II: The USA PATRIOT ACT — Titles I Through III

One measure of the PATRIOT Act’s scope is that it also reaches into numerous existing
federal laws, especially those dealing with foreign intelligence surveillance, criminal offenses,
national security, banking, and immigration. Many provisions make subtle yet precise and
notable changes in specific language of these statutes. Other provisions attach new sections to
existing statutes, ranging from the simple to the exceedingly complex. Statutes affected or
amended by the PATRIOT Act include the:
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
Bank Holding Company Act of 1956 (BHCA)
Bank Secrecy Act of 1991
Cable Communications Policy Act
Electronic Communications Privacy Act
Fair Credit Reporting Act
Foreign Intelligence and Surveillance Act of 1978 (FISA)
Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA)
Immigration and Nationality Act
International Emergency Powers Act
Money Laundering Control Act of 1986 (MLCA)
National Security Act of 1947 (NSA)
Omnibus Crime Control and Safe Streets Act
Right to Financial Privacy Act of 1978
Stored Communications Act, and the
Trade Sanctions Reform and Export Enhancement Act of 2000.
The Act also amends several general criminal and banking statutes in the federal system
or changes existing omnibus crime laws (mostly found in Title 18 for criminal laws, and Title 31
for banking laws). In addition to all this, specialized federal Rules governing criminal trials in
federal courts are also changed.
The PATRIOT Act’s scope encompasses several federal Cabinet Departments and
agencies, most importantly Justice (especially the FBI and the Immigration and Naturalization
Service), Treasury (including the Secret Service), State, Central Intelligence Agency, and
Defense. Many of these Departments are given new offices, new budgets, new or expanded
enforcement powers, or new regulatory authority. Curiously omitted from direct mention by an
Act so dedicated to enhanced surveillance or investigative powers are other agencies of the
“intelligence community,” such as the National Security Agency (NSA) and the Defense
Intelligence Agency (DIA). There is no express appropriation of funds in the Act to either of
these highly secretive federal agencies. But it can well be assumed that some of the funds later to
be provided through the Act’s general budget authorizations will find their way to one or more
of these “overlooked” offices.
Without any question, terrorism is the Act’s overall theme. But the direct or potential
reach of the new investigative powers and authorities it creates go far beyond terrorism in
several areas. In many respects, the Act is a “wish list” of powers long sought by federal law
enforcement and investigative agencies, chiefly the FBI and CIA. Some of these provisions may
have languished on a shelf or in a desk drawer in some federal agency or congressional office. No
matter. The Act now gives them the force of law.
Until October 2005, while all of the Act’s provisions are active, this will be a different
America. It is likely to stay that way for long afterwards, given the immense new surveillance,

33
 No Greater Threat

intelligence, law enforcement, and national security momentum generated by this Act, partic-
ularly if some or all of the Act's 2005 sunset provisions (for Title II) are repealed by Congress as
the current Administration has proposed.
Especially in Titles I through V, the terms “terrorist” or “terrorism” as well as “foreign
intelligence information” appear consistently in the Act. It may be well to note the Act’s
expanded definitions of those terms.
A more detailed consideration of what is “terrorism” is taken up in Part III (reviewing the
USAPA Titles VI through X, which includes the expansive definition of terrorism in Sections
801 to 809). For present purposes, it will suffice to note in general the USAPA’s description of
these terms. The Act defines “domestic terrorism.” These are “acts dangerous to human life” that
also are a crime under any State or federal law and “appear to be intended” to intimidate or
coerce a civilian population, influence government policy by intimidation or coercion, or affect
government conduct by mass destruction, assassination, or kidnapping.1
A wider definition of “terrorism” or of “the federal crime of terrorism” includes an entire
list of criminal activity, from damaging or destroying mass transit systems to attacks upon
airplane or airports, to crimes involving dangerous chemicals, to crimes involving computers.
Much of that list already existed. But the Act adds to it and brings the entire list to new
attention. It must be noted, also, that an attempt to commit or conspiracy to commit any crime of
“domestic terrorism” or “federal crime of terrorism” is also a terrorist crime. So also is “harboring”
a person who has committed or is about to commit a terrorist crime. Beyond this, in certain
instances, direct support of a person or group committing or about to commit a terrorist crime
will be treated the same way. Since so much of the new surveillance or investigative power
granted by the Act involves investigation of “terrorism,” any investigation that falls within any
of these expanded definitions is permitted by the Act.
“Foreign intelligence information” gets similar treatment. Borrowing from definitions in
the Foreign Intelligence Surveillance Act, “foreign intelligence information” is described as
information that “relates to the ability of the United States to protect against” certain activities
of a “foreign power or agent of a foreign power.” These are: an actual or potential attack “or
other grave hostile acts,” sabotage or international terrorism, or clandestine intelligence
endeavors. “Foreign intelligence information” also is information “with respect to” a foreign
power or foreign territory that “relates to” United States national defense or security, or “the
conduct of the foreign affairs” of the United States.2
An obvious concern is that, in an expanded reading of this second part of the “foreign
intelligence information” definition, many things “relate to” many other things. Political
activism concerning, say, the United States’ continued support for economic sanctions against
Iraq, which is the subject of increasing debate in this country and elsewhere as counterpro-
ductive, fits this definition precisely. Such activity concerns a foreign power and “relates to”
United States foreign affairs. Strictly speaking, that is all the definition requires. A person
engaging in such activism possibly could have “foreign intelligence information” and under the
USAPA, possibly could be investigated. If this is the approach to be taken by federal investi-
gators acting under the USAPA, a national security state is not far from fruition.

1. This definition also occurs in or is borrowed from FISA. See 50 U.S.C. §1801(c). The FISA defini-
tion concentrates on activities that occur outside of the United States. The USAPA applies the same general
definition to “domestic” terrorism.
2. This language is borrowed almost entirely from FISA. See 50 U.S.C. §1801(e). If other FISA defini-
tions would apply to USAPA, it would be useful to note how FISA defines “foreign power” and “agent of a
foreign power.”

34
 Part II: The USA PATRIOT ACT — Titles I Through III

SOME MISCONCEPTIONS
A detailed review of the PATRIOT Act also is essential due to the general misconceptions
which have developed and which persist, judging from media reports about the Act as well as
by public reaction. The public perception continues to be that the Act contains just a few
provisions. That is not so — it is enormously extensive. The public perception continues to be
that the Act involves only specialized concerns, chiefly increased intelligence directed to, or
surveillance of, non-U.S. citizens present in this country. That is not so — increased
intelligence and surveillance powers for federal investigators are only part of the Act's very
broad scope. Also, many of these expanded intelligence and surveillance authorities are not restricted to
foreign nationals. The public perception continues to be that most of the Act will sunset, or
become inactive, in 2005. That most definitely is not so — the vast bulk of this Act is permanent.
Only certain identified portions of Title II of the Act are to automatically "sunset" on December
31, 2005, and the Administration is pressing to make those portions permanent by requesting
that Congress repeal the sunset language. The public perception also continues to be that the
$40 billion authorized by Congress in its nearly immediate response to the September 11 attacks
is part of the Act. That is not so — the $40 billion was a separate authorization. Rather, billions
more on top of that were authorized by the Act.
Further, and most importantly as this country moves into 2005, the PATRIOT Act, with
all its scope and impact, is not the sole issue when considering the potential transformation of
the United States into a national security state. For example, other prominently discussed "war
on terrorism" developments — the possible use of military tribunals to try foreign nationals
suspected of terrorist acts, the "enemy combatant" designation by the government of certain
individuals including United States citizens, the White House Office of Homeland Security ,
and numerous other pieces of legislation including the Homeland Security (establishing the
Department of Homeland Security) — are not part of the PATRIOT Act. These additional
developments were brought about by Executive Order or by Congressional action.1 This is not
even to mention the ongoing conflicts in Afghanistan and Iraq.
As indisputably significant as the PATRIOT Act is, it has become only one part of the
overall picture of a potentially emerging national security state. What already has issued from
Congress and the Executive Branch so far since the September 11 attacks amounts to more than
30 legislative enactments, Executive Orders, special policies, new initiatives, and position
papers. Not the least of which, from that list, is the recently-established Department of
Homeland Security. Moreover, involvements from Congress and from the Executive Branch in
the ongoing "war on terrorism" continue, with additional legislative proposals underway and
more Executive Branch actions taking place. More on many of these items later. Without
becoming too ensnared in legislative details, what follows is a Title-by-Title summary and
review of this fundamental new legislation..2

1. There will be more discussion later of the Office of Homeland Security and the Department of
Homeland Security, and in fact the entire development of “homeland security” think tank and private sector
agencies, and the military tribunals. For an exhaustive and scholarly treatment of the military tribunals, see
article, American Justice on Trial: Who Loses in the Case of Military Tribunals? by Barbara Olshansky, Assistant Legal
Director of the Center for Constitutional Rights.
2. For convenience, although not legislatively precise, the Act’s use of the term “Secretary of” a
particular federal Department is replaced by the Department name. So the Act’s use of “Secretary of the
Treasury” is referred to as “Treasury Department,” the Act’s use of “Attorney General” will be referred to as
“Justice Department,” and so on.

35
 No Greater Threat

TITLE I: ENHANCING DOMESTIC SECURITY AGAINST TERRORISM

PATRIOT Act Title I is a collection of unrelated provisions. As with most of the
remaining Act, some of these provisions must have been in draft form prior to the Act’s consid-
eration by Congress. Others clearly were drafted in the shock wave that followed the
September 11 tragedies. Despite the unconnected nature of these sections, they set the tone for
much of what is to follow.
Included in Title I is a congressional condemnation of acts of violence against Arab and
Muslim Americans (most of which occurred, in scattered incidents, shortly after September 11).
This is echoed by a similar Section in Title IX condemning violence against Sikh Americans.
However, the provision does not expressly encourage or require enhanced or special federal
investigation or priority prosecution of such attacks. Instead, the Section broadly condemns
any “acts of violence” against “any American,” including Arab Americans, Muslim Americans, and
Americans from South Asia. It calls upon the Nation to “recognize the patriotism of fellow
citizens from all ethnic, racial, and religious backgrounds.” While a useful statement, in
principle, it is lost in dozens of other provisions in the Act containing some of the most
powerful law enforcement declarations to come from Congress in years and which authorize or
appropriate huge sums for intelligence, surveillance, and investigation, and prosecution of non
US-citizens and citizens alike.
Notably, Title I inaugurates a series of appropriations or authorizations1 which appear
throughout the Act. Title I establishes a “counterterrorism fund” of unspecified amount.2 This
fund, similar to the fund established in 1995 following the bombing of the federal building
Oklahoma City, singles out the Justice Department to reimburse the cost of re-establishing any
Justice Department office or facility damaged by the September 11 attacks, as well as to provide
Justice Department support and pay rewards for investigating and prosecuting international
terrorism, and underwrites a Department program of “terrorism threat assessments” for federal
agencies. The Act does not indicate how much this would cost.
Beyond this, Title I issues a huge appropriation to the FBI’s “Technical Support Center,”
set up by the 1996 Antiterrorism and Effective Death Penalty Act.3 That Center did not get
much attention in the AEDPA, much of the focus then being on its death penalty and habeas
corpus provisions. Now, the focus has shifted. The additional funds are to help the Center “meet

1. An “appropriation” is a designation by Congress of specific funds to a federal department or

agency for a specific purpose. An “authorization” is a statement of congressional approval for providing
later funding for a given purpose, subject to a later submission by the Executive Branch of a budget figure
for congressional consideration. The USAPA contains a wide range of both appropriations and authoriza-
tions, scattered throughout its provisions. For a full appreciation of the total funds committed by Congress
under the Act, it would be necessary not only to note each appropriation but also to track each authoriza-
tion through one or perhaps two budget cycles. This may be a worthwhile effort, since the total appropria-
tions under the Act, alone, exceed $2 billion. (See table or listing following Part IV). The total
authorizations may be as much or more.
2. USAPA §101. The Counterterrorism Fund was first created to provide funds for the Justice Depart-
ment’s loss of operations affected by the 1995 bombing of the Alfred P. Murrah Federal Building in Okla-
homa City and for other counterterrorism programs. Public Law 104-19, 109 Stat. 249 (1995). The PATRIOT
Act follows this same approach.
3. USAPA §103, referring to AEDPA §811. See Public Law 104-132, 110 Stat. at 1312 (1996), at §811. This
statute already created an FBI “counterterrorism and counterintelligence fund” (see §811(a)(1)(B)). Appro-
priations to the FBI “to help meet the increased demands for activities to combat terrorism” (which would
appear to include the Technical Support Center although not expressly stated) were: $114 million for FY
1997, $166 million for FY 1998, $96 million for FY 1999, and $92 million for FY 2000. The funding was gener-
ally declining until the PATRIOT Act, which now gives the Technical Support Center $200 million for each
of the next three fiscal years.

36
 Part II: The USA PATRIOT ACT — Titles I Through III

the demands for activities to combat terrorism” and to “support and enhance” FBI technical
support and tactical operations. Title I appropriates $200 million to this Center for each of
fiscal years 2002, 2003, and 2004, a two-fold increase from previous fiscal years.
The following section, very short, clarifies exceptions to a statute preventing the use of
the armed forces to enforce civilian law. It does not otherwise alter that statute.
Title I authorizes the Secret Service (in the Treasury Department) to develop a “national
network of electronic crime task forces” throughout the United States.1 There is no statement
as to when this network is to be established, how long it would exist, or what it would cost.
The purpose would be to investigate, detect, or prevent “various forms of electronic crimes”
including potential terrorist attacks against “critical infrastructure and financial payment
systems.” This begins the Act’s consistent attention to cybercrime, computer trespassing, and
heightened federal interest in computer content traffic especially over the Internet.
**Special Note: There is no specified restriction in this Section on the use of these task force
and technical support funds. Whatever prior funding the FBI’s Technical Support Center
already had, it now has $200 million for each of the next three fiscal years. These funds appear
to have been placed in the pipeline immediately. The USAPA also wastes no time in
demonstrating that its scope is broader than “terrorism” itself. The very general reference to
“various forms of electronic crimes” can mean, and may very well be interpreted by federal
investigatory agencies and even courts to mean, any form of electronic crime, even credit card
fraud over the Internet, so long as it can be viewed as a direct attack against “critical
infrastructure or financial payment systems.” Through all of its Titles, the Act continues this
process of increasing by substantial amounts federal funding available for technical support,
data analysis, computer systems investigation, information sharing, and agency training. It
remains to be seen if all of this increased activity will result in increased security.**
Title I expands presidential authority to investigate terrorist attacks and to seize
property used in such attacks.2 This Section contains sweeping language authorizing confis-
cation of property, to be echoed later in Titles II and III. The expanded authority gives the
President the power to seize the property of any foreign person, organization, or nation which
planned, authorized, aided, or engaged in an attack upon the United States.
This new language, amending the International Emergency Powers Act, provides broad
powers to the president (which could mean the Executive Branch including the Department of
Justice and all investigative agencies) to confiscate property of foreign nationals if the United
States is “is engaged in armed hostilities or has been attacked” by that foreign country or foreign
national. The foreign country or national must be determined to have planned or been involved
in the attack. The Act allows the president to freeze assets while an investigation is pending
rather than waiting until the investigation is complete. The property can be used, sold, or
disposed of as the president (or the agency involved) wishes. There is no requirement to obtain
a court order before this seizure can be effected. If the seizure is challenged in court, the

1. USAPA §105. How these electronic crimes task forces will operate is not made clear. This is
another ongoing law enforcement program or development set in motion by the Act and left to Executive
Department discretion.
2.USAPA §106, amending the International Emergency Powers Act (IEEPA), 50 U.S.C. §1701 and
following. This Act grants the President emergency economic powers when faced with extreme threats to
national security, foreign policy, or economy. In those situations the President can freeze assets in this
country of a nation or foreign person considered responsible for the threat. Those actions were taken, for
example, during the Iranian hostage crisis. Soon after September 11, a list was issued of suspected terrorist
groups and any assets of those groups found in the United States were frozen. During war time, the Trading
with the Enemy Act gives the President similar powers.

37
 No Greater Threat

government can present to the court in secret — that is, ex parte and in court chambers — any
classified information used to order the seizure or freezing of assets.
Such tremendously broad authority may even reach or revive the archaic power of
“forfeiture of estate,” that is, forfeiture by a person convicted of a crime of that person’s property
even if the property had nothing to do with the crime itself. This a wider and more far- reaching power
than “statutory forfeiture,” used commonly in drug cases, where a person convicted of certain
narcotics crimes could forfeit property used to commit the crime or property obtained by
profits from the crime. This “forfeiture of estate” specifically was rejected in the Constitution
and in the first session of Congress.1
In the event that overzealous law enforcement results in the erroneous confiscation of
property under authority granted by this Act, it is extremely doubtful that the affected person
would be able to retrieve the confiscated property (even if it had not been altered or destroyed).
The Act does provide, in another Title, a means for an affected person to bring a civil action
against the government for improper use of certain investigative, surveillance,
or search and seizure authorities granted by the Act; but even if that civil action remedy applies
to this situation, it remains to be seen if there will be any success in pursuing it.
Title I comprises only six sections. However, already the USAPA has authorized a major
unspecified sum for anti-terrorism activity and has brought the FBI’s “Technical Support
Center” to a new forefront with a total three-year appropriation of $600 million. The Act does
not provide for any specific accountability for Title I appropriations. There will be little if any
congressional oversight of these funds.

TITLE II: ENHANCED SURVEILLANCE PROCEDURES

Much of the concern which continues to be raised about the USAPA — and this remains
the case since the statute became effective — involves Title II, which grants wide- ranging law
enforcement authority and new surveillance powers. However, as already mentioned, it is a
mistake to believe that all of Title II’s provisions will sunset. It also is erroneous to say, as
President George W. Bush declared in his 2004 State of the Union address in a statement that
became a theme of his 2004 Presidential campaign, that the PATRIOT Act must be "renewed."
The PATRIOT Act does not need to be "renewed" in order to remain effective. It has no "expiration date."
Rather, any effort to "renew" the PATRIOT Act actually is an effort to remove the 2005 sunset
provisions which currently are in place for several Title II sections. (This effort to "renew" the
Act would also have ignored the provision in Title III allowing Congress to invalidate the entire
Title III by Joint Resolution on or after October 1, 2005 — see discussion of Title III — however,
that inactivation provision for Title III itself was eliminated by §6204 of the recently-enacted
Intelligence Reform and Terrorism Prevention Act of 2004. Title III is now permanent).
Regardless, with respect to Title II, many Title II provisions have no sunset clause and thus are

1. There are three special characteristics of forfeiture of estate: the property is lost solely by reason of
its connection to the person, the confiscation can include all of the person’s property not just crime-related
property, and in extreme cases the person’s future right to hold any property is affected. This last feature,
called “corruption of blood,” was rejected by the Constitution in Art. III, §3, cl. 2, dealing with treason. Early
assembly of Congress declared that the ban on corruption of blood would include all federal crimes. 1 Stat.
117 (1790). During the Civil War, Congress did authorize confiscation of all property of Confederate
supporters, but allowed for the property to go to the person’s heirs upon his or her death. 12 Stat. 589 and 12
Stat. 627 (1862). There are similar State statutes eliminating the practice of forfeiture of estate or corruption
of blood.

38
 Part II: The USA PATRIOT ACT — Titles I Through III

permanent. Only selected provisions are to become dormant on December 31, 2005, without
further congressional action.1

Title II reflects three themes: 1) expanded investigative and surveillance authority, 2)

expanded investigative and surveillance abilities, and 3) information sharing of “foreign
intelligence” information between federal investigative agencies, especially the FBI and CIA.
Title II eliminates any quandaries which may have existed over information sharing between
these or other agencies.2 Many of the USAPA’s provisions amend existing federal law.3 Since
Title II is concerned chiefly with intelligence, investigation, and surveillance, its amendments
are directed mostly to two existing statutes: the National Security Act of 1947 (NSA) and the
Foreign Intelligence Surveillance Act of 1978 (FISA). There are amendments to other existing
federal criminal statutes, as well as to the Antiterrorism and Effective Death Penalty Act
(AEDPA) of 1996.
1. Interception of Communications and Information Sharing. Title II expands federal authority to
intercept wire, oral, or electronic communications. It amends the AEDPA to authorize this
interception to investigate criminal use of chemical weapons, terrorism, or computer fraud and
abuse.4 Title II’s amendments in this area are designed to ensure that investigation or
surveillance can be devoted to “wire, oral, or electronic” communication, altering references in
other federal statutes to reflect this approach.5 With this mantra, all forms of communication
over any standard or cell phone, computer line, cable connection, or fax
machine are within the scope of federal investigators. That would include e-mails and any other
communication over the Internet.6 Also, the term “computer fraud and abuse” does not

1. USAPA, §224. Yet whatever Congress has done, it can un-do. With the sweeping investigatory
powers provided by Title II, and given that the American public has a short memory, many Justice Depart-
ment and other investigatory officials may be hoping that in 2005 Congress may be persuaded to re-autho-
rize Title II’s “sunset” provisions. That is one of the many reasons why the implementation and
development of the USAPA must be carefully monitored. Congress must be held to its word on its sunset
declarations regarding Title II.
2. These concerns about the PATRIOT Act and several other issues were raised in extensive
comments by Sen. Patrick Leahy, especially on the floor of the Senate during the brief periods that the
PATRIOT Act was being considered and debated in Congress before it was overwhelmingly approved.
Those comments included a prediction that the Act could be susceptible to judicial challenge An extensive
summary of those very telling comments appears in Appendix 2-B.
3. As the Chang article notes, “By and large, Congress granted the Administration its longstanding
wish” by enacting enhanced surveillance tools along with the ability to use them with “minimal judicial and
Congressional oversight.” However, in the rush to enact this legislation, Congress “failed to exact in
exchange a showing that these highly intrusive tools are actually needed to combat terrorism and that the
Administration can be trusted not to abuse them.”
4. USAPA, §201 and §202. For the federal statutes dealing with this area, see 18 U.S.C. §1030. Title III of
the Omnibus Crime Control and Safe Streets Act of 1968 (18 U.S.C. 25ten et seq.) allows for federally autho-
rized wiretaps or other surveillance to investigate specific crimes. The USAPA adds several “terrorism
offenses” to this list, which were present in existing federal law. They include: chemical weapons offenses (18
U.S.C. §229), use of weapons of mass destruction (18 U.S.C. §2332a), violent acts of terrorism transcending
national boundaries (18 U.S.C. §2332b), financial transactions with countries supporting terrorism (18 U.S.C.
§2332d), material support of terrorists (18 U.S.C. 2339A), material support of terrorist organizations (18
U.S.C. §2339B), and computer fraud and abuse. These sections (§201 and §202) are to sunset.
5. The Department of Justice Guidance on USAPA §202 is that under prior law investigators could
not obtain a wiretap order to intercept wire communications (see 18 U.S.C. §2516(l)) if the investigation
involved violations of the Computer Fraud and Abuse Act (18 U.S.C. §1030); but in some cases, computer
hackers have stolen teleconferencing services from a phone company to conduct hacking raids, conduct
that was outside wiretap investigation. According to the DOJ, the USAPA closes the loophole.

39
 No Greater Threat

necessarily have to involve terrorism, per se. It can be anything from unauthorized entry into an
e-mail system to computer hacking into a government web site.
Indisputably, the Act extends the reach of law enforcement to many computer activities.
There are more provisions concerning increased computer crimes investigation in other Titles
of the Act.
Title II often refers to “terrorist” activities. Beyond the general definition of “domestic
terrorism” included in the Act, there already existed in federal criminal law an extensive list of
“terrorist” activities under the “federal crime of terrorism.”1 That list is expanded in USAPA
Title VIII, reaffirming this new commitment to investigation. Also, under similar USAPA
provisions, being part of a “conspiracy” to commit a terrorist act or being a member or
supporter of a terrorist “organization” is also terrorist act. It follows that, linking these
expanded definitions of “terrorism” with the new investigative powers granted by Title II to
intercept “wire, oral, or electronic communications” allows investigation into a wide array of
activity not necessarily directly related to a bomb plot or biochemical attack.
Among the more troubling provisions for civil liberties and due process in criminal
investigations and trials is Title II’s authorization of information sharing concerning results of
criminal investigations, grand jury testimony, and private matters like financial and consumer
records. Federal investigative agencies can share grand jury information or testimony.2 This
provision is permanent. By changing federal rules governing criminal trials, the Act allows
sharing or disclosing information “when the matters involve foreign intelligence or counterin-
telligence” as defined by the National Security Act or “foreign intelligence information.”3 As has
also been mentioned, “foreign intelligence information” can mean many things. Under the
USAPA, the “foreign intelligence” information to be shared must relate to the ability of the
United States to “protect against” certain specified activity including actual or potential attack,
sabotage, or clandestine intelligence activities by a foreign power or agent of a foreign power.4
The information sharing permitted by Title II is quite wide ranging. The provisions
allowing this sharing are new. Disclosure of grand jury information may be made to any federal
law enforcement, intelligence, protective, immigration, national defense, or national security “official,” if the
disclosure would assist that official “in the performance of his official duties.” Naturally,
“performance of official duties” could mean any type of investigation by any federal agency. And,
again, because terrorism, foreign intelligence, or foreign intelligence information are so broadly
defined, the investigation could involve almost anything. No court order is needed for this information

6. There has been sharp criticism about the return of the FBI’s dreaded “Carnivore” program which
can intercept and analyze e-mail communications. The Center for Democracy and Technology, a cyber-
rights group, has warned that use of the system encroaches on civil liberties. The group said “surrendering
freedom will not purchase security” and “open communications networks are a positive force in the fight
against violence and intolerance.” (Quoted in article by Sam Costello, IDG news service, about legislative
efforts to authorize use of the Carnivore or similar e-mail surveillance systems by the FBI, September 17,
2001).
1. This is the “federal crime of terrorism.” The extensive list appears in 18 U.S.C. 2332(g)(5)(B), and
is further expanded by USAPA, which applies the expanded definition to other Act purposes. More about
this in later Parts.
2. The various information sharing provisions discussed here are found in §203 of the USAPA, some
of these provisions amend existing federal statutes (i.e., 18 U.S.C. §2517) and some amend federal criminal
rules. §203(b) and (d) will sunset.
3. Naturally, there is a similar reference to and definition of the term “foreign intelligence informa-
tion” in the Foreign Intelligence Surveillance Act of 1978, see 50 U.S.C. §1801(e). The USAPA §203 changes
Federal Rule of Criminal Procedure 6. See new Rule 6(e)(3)(C)(i)(V), (C)(ii), (C)(iii), and (C)(iv).
4. As already noted, in this respect, Title II borrows heavily from definitions of these terms already in
place in FISA or the National Security Act.

40
 Part II: The USA PATRIOT ACT — Titles I Through III

sharing. Also, the Act does not specify a limit to the use made of this information by these other
government officials. The Act does not limit information sharing to more than one official from
more than one agency. Information can be “shared” by one to many.
**Special Note: This provision allowing for the sharing of usually secret and private grand
jury information expands the limited sharing provisions of federal rule to unprecedented levels.1
It might seem that this new authority only concerns aliens operating secretly in the United
States to plan and carry out terrorist acts. That is not so. Under the broad definition of “foreign
intelligence information,” grand jury information can also be shared if it “relates to” United States
national security, national defense, or foreign affairs. The authority applies whether or not the
information “concerns a United States person,” which means grand jury testimony of U.S.
citizens also is affected by Title II. The targeted information need only involve a “foreign power
or foreign territory.” That is not much of a limitation. What sort of “involvement” this must be is
not described. Further, United States “national security, national defense, or foreign affairs” has
worldwide connotation.
These provisions accelerate and streamline investigations into terrorism by allowing this
information to be shared between any federal agencies. Any traditional secrecy which
accompanied grand jury information is now substantially altered. And there is no limitation of
the type of “official” use to be made of shared information. With this amazingly expansive
language, nearly anything can come under these definitions. Title II opens the door wide to
extensive and secretive sharing of grand jury information between federal agencies and investi-
gative departments without any specific justification. All that is required is that the
information qualify under the Act’s minimal definition of “relating to” United States national
security, national defense, or foreign affairs.
Much has been said recently, in the Capitol Hill finger-pointing aftermath of September
11, about whether information should be shared more freely between government agencies in
order to improve coordination of anti-terrorism investigation and to prevent terrorist attacks.
However, even if some information sharing is valuable, that does not make all information
sharing valuable or even mandatory. To a large extent, the so-called agency or intelligence
deficiencies discussed concerning September 11 involved internal agency procedures and the
speed with which warnings are moved up the agency chain of command. The PATRIOT Act
solves that problem too much, by opening the barn door to let all the horses out — when the
real problem is barn maintenance.
Further, in the current political and investigatory climate, agencies will tend to overcom-
pensate. Information will be shared which has little to do with an actual terrorism investigation
but nevertheless will become part of what now seems to be a never-ending inter-agency
information loop. The potential for abuse is greater than the potential that such wholesale

1. The well established rule of secrecy concerning grand jury testimony, evidence, minutes, and tran-
scripts has been noted and upheld countless times by the courts, including the Supreme Court. Reasons for
grand jury secrecy include: preventing escape of those who may be indicted, ensuring freedom for the grand
jury in its deliberations, avoiding public disclosure of normally confidential information, protecting reputa-
tions of those who may be under investigation but not indicted, encouraging witnesses to speak freely and
without fear of retaliation, preventing tampering by those under investigation, guarding the grand jurors
from harassment and threats, and maintaining the integrity and independence of the grand jury process. In
re Grand Jury Proceedings, 309 F.2d 440 (3rd Cir. 1962); United States v. Rose, 215 F.2d 617 (3rd Cir. 1954); United
States v. RMI Co., 599 F.2d 1183 (3rd Cir. 1979); United States v. Malatesta, 583 F.2d 748 (5th Cir. 1978); Petrol
Stops Northwest v. United States, 571 F.2d 1127 (9th Cir. 1978), and United States v. Kabbaby, 672 F.2d 857 (11th Cir.
1982). The traditional secrecy of the grand jury is not to be disturbed except for substantial reason or
compelling necessity. United States v. Procter & Gamble Co., 356 U.S. 677 (1958), and United States v. Nasser, 301
F.2d 243 (7th Cir. 1962), cert.den. 370 U.S. 923.

41
 No Greater Threat

information sharing will stop terrorism. These new provisions are little better than simply
improving procedures in the investigation and intelligence structure which existed on
September 10. With all of the information sharing that the PATRIOT Act either mandates or
allows, the real problem soon to be faced by these agencies is how to coordinate, assimilate,
categorize and analyze the mountains of information — which potentially will create a backlog
that may impede rather than improve terrorism investigations. Thus, the PATRIOT Act may
leave the situation worse than when it found it.**
Title II warns that this shared information is to be used only for official purposes. Other
sections of Title II impose potential sanctions for improper use or disclosure of any of this type
of information by government officials. As to grand jury information, within “a reasonable time”
— not specified — after disclosure, a government attorney is required to file, under seal, a
notice with the court describing the disclosure (supposedly the court where the filing occurs is
the court with jurisdiction over the grand jury involved). However, the Act does not require any
other activity as to that notice. The notice will be under seal and so will not be available for
inspection by others, perhaps even the person whose testimony or information is being shared.
It might have seemed enough to make such changes in the sharing of grand jury
testimony. But Title II goes even farther. The same Section authorizes sharing of electronic, wire,
and oral intercepted communication.1 Again, the sharing is limited to “foreign intelligence or counter-
intelligence” information. But the language still ranges far and wide. Title II requires the
Attorney General to “establish procedures” for disclosing and handling intercepted information,
but sets no deadline (it is not known at this point whether those procedures have been
established and if so, if they are available to the public). The language is staggeringly broad
(with parenthetical references to other statutes omitted for clarity):
Any investigative or law enforcement officer, or attorney for the Government, who by
any means authorized by this chapter, has obtained knowledge of the contents of any
wire, oral, or electronic communication, or evidence derived therefrom, may disclose such
contents to any other federal law enforcement, intelligence, protective, immigration,
national defense, or national security official to the extent that such content includes for-
eign intelligence or counterintelligence or foreign intelligence information to assist the
official who receives that information in the performance of his official duties. Any federal
official who receives information pursuant to this provision may use that information
only as necessary in the conduct of that person’s official duties subject to any limitations
on the unauthorized disclosure of such information.
Just one reading of that single provision provides an eye-opening encounter with the
scope and depth of the USAPA. Any “investigative or law enforcement officer” or even
government attorney — this is about as broad as things get — who has knowledge of a “wire,
oral, or electronic communication” (there is that mantra again), may disclose the contents of
this communication to any other federal official in any number of agencies: law enforcement,
intelligence, protective, immigration, national defense, or national security. Such a definition
covers nearly any existing federal law enforcement or investigative agency. There are no limits on the
timing, extent, or frequency of this information sharing. The disclosure of any given piece of
information can be to more than one such federal “official,” on more than one occasion, at the
discretion of the person doing the “sharing,” and without a court order.
Title II makes it clear that information sharing goes in both directions. This provision is
designed in part to eliminate any agency “turf battles” which might impede investigation or
information sharing. Title II officially lowers any official barriers between domestic and
international intelligence and investigative authorities between federal agencies, such as the

1. USAPA §203(b), amending 18 U.S.C. §2510 and §2517.

42
 Part II: The USA PATRIOT ACT — Titles I Through III

FBI and CIA. This provision, similar to the other information-sharing provisions, states that it
“shall be lawful” for any “foreign intelligence or counterintelligence information” obtained as
part of a “criminal investigation” — any criminal investigation — to be disclosed to any federal
law enforcement, intelligence, protective, immigration, national defense, or national security
“official,” if the disclosure is useful to assist that official in the performance of official duties.
**Special Note: These information sharing provisions as to electronic, wire, and oral
surveillance or as to foreign intelligence information do not require that any notice that this
sharing has occurred be filed by any government attorney in any court, as with grand jury
information. Of interest as well is that, as Title II indicates and as later USAPA provisions make
more explicit, the objective is to include narcotics and racketeering investigations into the wide
net cast by the USAPA and information sharing.
The wide definitions make federal surveillance or investigation regarding any federal
crime a potential source of foreign intelligence or terrorism “information.” If that information is
obtained, in whatever manner, it can be immediately shared with any other federal agency
involved in law enforcement, intelligence, protective, immigration, national defense, or national
security. This includes the Drug Enforcement Agency, the Alcohol, Tobacco and Firearms
Investigative Agency, Secret Service, and any others which could be named. With the exception
of “notice” to be filed in a federal court regarding grand jury information only, the information
sharing occurs in secret. These provisions are not restricted to non-U.S. citizens. The potential
for abuse of these information sharing authorities is mammoth, regardless of their utility in
terrorism investigations. Even more significant is that this “information sharing” section of the
Act is permanent. It will not sunset in 2005.**
To assist with investigations, the Act authorizes the FBI and other investigative agencies
to hire translators. Broad authority is granted to the FBI on this subject.
2. Expansion of Certain Search and Seizure Warrants, and FISA Court and Warrants. With Title II
authorizing widespread sharing by federal agencies of investigative information, the Act then
broadens the way in which some of that information can be obtained. Only some of these
provisions are designated to become inactive in 2005.
With international terrorism and “foreign intelligence information” an overall theme of
the USAPA, it stands to reason that the Act would address the Foreign Intelligence Surveillance
Act, a major existing federal statute involving federal investigation into intelligence or similar
activities conducted in the United States, chiefly by foreign nationals — although an FISA
investigation can involve a U.S. citizen who is conducting unauthorized dealings with a foreign
power. Title II increases the scope of FISA search and seizure or wiretap requests submitted by
federal agencies to a specialized review court created by the FISA.1 This FISA Court was little
known until the USAPA gave it such notoriety. It exists only to review specialized surveillance
or search and seizure requests relating to federal investigations of “agents of a foreign power”
operating in the United States.
The Act broadens warrants which the FISA Court may authorize and increases the FISA
Court itself. Previously, the FISA Court had seven judges, designated by the Chief Justice of the
Supreme Court and serving seven year terms. The Act now gives the FISA Court eleven judges.
That expansion of the FISA Court judges is permanent.
The time period for a FISA surveillance order (wiretap, etc.) is increased to 120 days. For a
FISA physical search and seizure orders, the time period is increased from 45 days to 90 days.

1. These FISA provisions are reflected in §207 to §211 of USAPA, and also §218. Amendments are to 50
U.S.C. §1803, 1804, 1805 and similar sections (FISA), to 18 U.S.C. §2510, and to 18 U.S.C. §2703. §207 will
sunset, but not §211.

43
 No Greater Threat

Extensions of surveillance and search orders can be for up to one year.1 These FISA orders for
surveillance and seizure also can include “electronic” communications, continuing the
expansion of surveillance scope occurring throughout Title II. These are among the provisions
to sunset in 2005.2
Demonstrating once again how subtle changes can make a big difference, under Title II,
the scope of FISA surveillance order (and possibly a FISA search warrant) is expanded. Prior to
the USAPA, one of the requirements for obtaining a surveillance order under FISA was a
statement or certification in the request that “foreign intelligence” was “the” purpose of the
surveillance or investigation. The USAPA has changed that. Now, foreign intelligence need only
be “a significant purpose” rather than “the purpose” of the investigation.3 This is a fundamental
change. Many more types of surveillance requests can be justified if the basis need be only that
foreign intelligence is a “significant purpose” of the surveillance.4 This section is among those
which are to sunset in 2005.
Another USAPA Section amends or substantially rewrites two sections of the United
States Code involving disclosure of customer information or communications by the “provider”
of phone services or computer network services (which would include the Internet and e-
mail).5 One section involves “voluntary” disclosure. This allows the provider immediately to
disclose to government officials a communication if the provider “reasonably believes” that
disclosure is required because the communication presents or indicates “an emergency

1. USAPA §207, amending 50 U.S.C. §1805(d)(2), (e)(1) and §1824(d)(1). As noted, §207 will sunset.
2. There may not have been a need for USAPA to give greater powers to the FISA Court. According
to reports, available records indicate that since 1979 of 12,179 warrants sought, 12,178 were granted and 1
denied. This includes 1,005 warrants for eavesdropping or covert entries in 2000, which was double the
figure for 1993. By comparison, according to reports, in 2001, only 480 warrants were issued by federal
judges across the country in all criminal cases. The secrecy and obscurity with which this Court operates
also is a factor in the increased secrecy of governmental activity — another characteristic of the national
security state. FISA warrants continue to increase, especially since the PATRIOT Act allowed expanded
use of the FISA Court and greatly expanded the FISA warrant itself.
3. USAPA §218, amending 50 U.S.C. §1804(a)(7)(B). The Justice Department sought an even lower
requirement for a FISA surveillance order of foreign intelligence being “a” purpose of the investigation,
rather than “a significant purpose” as the statute now reads. Even so, this requirement as lowered by §218
allows a much closer working relationship between criminal and intelligence investigators, that is, FBI and
CIA than previously existed, at least, as directly expressed in federal law. This change could silence prior
court challenges to the use of FISA investigation material in other criminal prosecutions, which had divided
federal courts. See United States v. Troung Dinh Hung, 629 F.2d 908 (4th Cir. 1980) (indicating that standard
warrant procedures based on probable cause should be followed if the investigation actually involves crim-
inal prosecution under other federal laws), United States v. Duggan, 743 F.2d 59 (2nd Cir. 1984) (stating that
the more relaxed standards for FISA procedures and warrants can only be used for foreign intelligence
investigations), United States v. Pelton, 835 F.2d 1067 (4th Cir. 1987) (stating that if the primary purpose of the
investigation was foreign intelligence, information could be used in a criminal prosecution under other
federal statutes), United States v. Sarkissian, 841 F.2d 959 (9th Cir. 1988) (declaring that it would not decide
the issue of the extent of use of information obtained through FISA procedures in a criminal investigation),
and United States v. Johnson, 952 F.2d 565 (1st Cir. 1991) (stating that while evidence obtained by a FISA
warrant can be used in later criminal prosecutions, “the investigation of criminal activity cannot be the
primary purpose of the surveillance”). §218, like all other Title II Sections that are to sunset, is scheduled to
sunset at the end of 2005.
4. The Chang article also raises a substantial concern about this expanded warrant power,
contending that the change is so broad that it will allow federal investigators to circumvent the Fourth
Amendment. In this view, the USAPA has given the “green light” for federal investigators to resume spying
on government enemies (i.e., the FBI’s now-infamous COINTELPRO program).
5. USAPA §212, amending 18 U.S.C. §2702 and §2703. In other words, information about subscriber
information obtained and stored in the files of hundreds of Internet Service Providers (e.g., ATT, AOL,
Yahoo!, EarthLink) or from cellphone companies such as Cingular. This section also sunsets in 2005.

44
 Part II: The USA PATRIOT ACT — Titles I Through III

involving immediate danger of death or serious physical injury to any person.” Another section
involves “required disclosure.” If requested by a government agency, the provider “shall”
disclose “a record or other information pertaining to” a subscriber or customer. Also, a single
surveillance order or search warrant can be issued authorizing surveillance “without or outside”
the jurisdiction of the court issuing the order. Those sections are among the permanent sections
of Title II. They will not sunset in 2005.
**Special Note: Linking up the “information sharing” provisions with these disclosure
provisions, with other expanded warrant or surveillance provisions, and with expanded
terrorism definitions, a federal investigative agency not only can conduct surveillance or obtain
private information but also can place that material into the “information sharing” stream
which now will exist throughout the federal law enforcement and investigatory system.
Whether or not these sections sunset in 2005, the amount of material and information which
these re-energized and generously-funded federal investigative agencies will be able to amass in
this time period is as enormous as it is disturbing. Beyond this, even if these sections sunset in
2005, nothing is said in the Act about deleting or removing from federal files the information so
gathered, or whether such information no longer would be available for any future investi-
gation. So, while some of Title II may be temporary, its long-term effects upon the gathering,
sharing, and future use of information collected by a wide array of federal agencies taking full
advantage of their considerably expanded authorities, will be permanent.**
In another Title II section which has received much attention,1 the “delivery” of certain
“non-seizure physical search warrants,” that is, presentation of the warrant to the person
affected — a crucial element of due process if the affected person intends to challenge the
legality of the warrant on Fourth Amendment or other grounds — can be “delayed,” after the
warrant is issued and executed. These provisions relate to so-called “non-physical” search or
“sneak and peek” warrants, which allow investigators secretly to enter (physically or electron-
ically) an office, home, or other location, conduct a search, observe, take measurements, conduct
examinations, take pictures, copy documents, download or transmit computer files, and similar
activity — and leave without “taking” anything tangible or even indicating they have been
there. This section is permanent. It also involves any criminal investigation involving any federal crime. The
investigation does not necessarily have to do with terrorism and this provision is not restricted
to non-U.S. citizens.
The Section declares that the delay provisions concern service of a warrant or court order
involving search and seizure “that constitutes evidence of a criminal offense” under federal law.
Upon application by the law enforcement agent, service of the warrant can be delayed if the
court finds there are “reasonable grounds” to believe that immediate notification of the
execution of the warrant to the person involved may have “adverse results” on obtaining the
information sought.2 If so, service of the warrant is to occur within “a reasonable period” after it
is executed.3 Presumably, on a case-by-case basis, the court sets a date within a “reasonable

1. USAPA §213, amending 18 U.S.C. §3103a, and discussed also in the Chang article (see that article at
part B.1.a.). §213 will not sunset. There was an effort in Congress (the "Otter" amendment, after Rep. C.L.
"Butch" Otter (R-ID)), attached to a $37.9 billion comprehensive appropriations bill), to remove federal
funding for— and thus supposedly to bring to a halt Department of Justice activity on— these "sneak and
peek" warrants. The appropriations bill with this amendment added was approved in the House (309-118),
but did not get the same reception in the Senate. By early December, 2003, it was evident that House and
Senate conferees on the appropriations bill could not agree on adding the Otter amendment to the appro-
priations bill, and that amendment was dropped. The Justice Department praised the result, saying it was
doubtful that any measure like the Otter amendment designed to limit PATRIOT Act authorities, would be
approved by the full Congress. It is unclear how the amendment would have functioned even if it had
passed, and even if President Bush would have signed any bill with any amendment of that sort.

45
 No Greater Threat

period” to release the warrant. Significantly, even the “non-seizure” characteristic of the
warrant necessary to permit service delay can be avoided. Issuance of the warrant still can be
delayed, even if the warrant authorizes seizure of material, if the federal court finds this seizure
is “reasonably necessary.”1
Even broader provisions amend certain sections of the federal criminal code. Government
officials can obtain information from voice mail messages and obtain more detailed telephone
records.2 That is, voice mail is now treated like e-mail. Federal officials may now access such
information with a more standard court order, rather than being required to follow the more
exacting wiretap procedures for live telephone conversations. The expanded USAPA provisions
now allow investigators to obtain credit card and payment information used for Internet
accounts.3
3. Expanded Surveillance Procedures. In other more technical sections of Title II, use of pen
register and trap and trace devices is expanded.4 These are frequently-used means of wiretap
and similar electronic surveillance which secretly identify the source and destination of calls
made to and from a particular telephone, and are often used in FISA- related surveillance
activities. The USAPA eliminates the restriction of using a FISA surveillance order only to
communications means used by foreign agents or persons suspected of involvement in interna-
tional terrorist or clandestine intelligence activities. While the investigation related to the FISA
surveillance order still must involve a foreign national, it now can include investigation of a U.S.
citizen, so long as the activities investigated are not activities protected by the First
Amendment. This section sunsets in 2005.

2. Those “adverse results” might be endangering life or physical safety of a person, flight from prose-
cution, destruction or tampering with evidence, intimidation of a potential witness, seriously jeopardizing
the investigation, or undue delay of a trial. See 18 U.S.C. §2705.
3. These warrants are related to Federal Rule of Criminal Procedure 41. The Rule appears to require
that after execution of a warrant, officers leave a copy of it with any inventory of anything they have taken
or stating what they have done at the site. There has been concern over whether this procedure satisfies the
Fourth Amendment. The USAPA turns aside any such concerns, and allows for sneak and peek warrants
and delayed notice of the warrant. It uses also the delayed notification in 18 U.S.C. §2705 for executing a
warrant allowing government access to electronic communications held in third party storage for longer
than 180 days.
1. The Chang article notes that the extent of this delay can be as much as 90 days, for something like
a wiretap warrant, under the Department of Justice’s Field Guidance for the new authorities granted by the
2001 anti-terrorism legislation. This is a far greater delay period than the seven days contemplated by
federal courts that have addressed the issue. See United States v. Villegas, 899 F.2d 1324 (2nd Cir. 1990),
cert.den. 498 U.S. 991.
2. USAPA §209, 210, and 211 (only §209 will sunset). The Department of Justice Guidance on these
Sections states that the amendments are necessary to recognize that the distinctions between various sorts
of electronic communications and companies that provide them (phone, fax, Internet, e-mail) are being
blurred by new technological developments (such as e-mails with attachments or faxes that go into e-mail)
and changes in the companies themselves. There were other restrictions in prior law that limited access to
certain information such as credit card and payment information or Internet protocol addresses. The
USAPA makes changes allowing for an entire new set of information to be obtained by federal investigators.
3.According to the House Committee report, this new authority solves a problem of law enforcement
attempting to identify terrorist suspects who use aliases in registering for the Internet or for phone service.
Current law allowing access of basic information such as name and address was proving insufficient and
“does not help when the suspected terrorist or criminal lies about his or her identity.” Therefore, allowing
investigators “to obtain credit card and other payment information by subpoena, along with subscriber
information (already permitted to be obtained under current law) will help law enforcement track a
suspect and establish his or her true identity.” This section (§210) does not sunset.
4. §214(a), amending Section 402 of FISA, 18 U.S.C. §1842; §214(b), amending Section 403 of FISA, or
50 U.S.C. §1843. §214 is to sunset.

46
 Part II: The USA PATRIOT ACT — Titles I Through III

Another Title II Section allows for modification of pen registers and trap and trace
devices to cover several telephone numbers.1 This also includes State investigations involving or
requiring authority from a federal court for wiretap or other such surveillance. This additional
authority for obtaining pen registers and trap and trace devices relates broadly to any “ongoing
criminal investigation.”2 The order can authorize use of a pen register or trap and trace device
“anywhere within the United States” and applies to “any person or entity providing wire or
electronic communication service” in the country. The Section is detailed and represents a
significant amendment to prior federal law.3
The government agent seeking this authority need only certify to the court that the
information is “relevant” to “an ongoing criminal investigation.” Again, that can be any sort of
criminal investigation. Certification or information requirements clearly have been diluted by
the USAPA for search and seizure and investigative warrant applications. Crucial terms used in
these Sections, such as “dialing, routing, addressing and signaling information” or “content” are
insufficiently described in the USAPA (although “content” is defined in separate federal
statutes).
The Act’s approach is to allow investigators to direct surveillance activities to a wider
array of electronic “facilities,” like an Internet user account, Internet e-mail address, Internet
protocol address, or specific cell phone number, and to obtain more “non-content” information
through these surveillance methods, including IP addresses and port numbers, as well as
information in the “to” and “from” parts of a given e-mail. These devices are not supposed to
obtain “content” information such as the actual e-mail text (although other investigative or
search techniques or orders might do so). What constitutes “content” in the context of this sort
of surveillance is yet to be fully tested in the courts, although “content” is defined in a separate
statute as “any information concerning the substance, purport, or meaning” of a communi-
cation. A wider definition of these devices also allows for the use of invasive investigative or
surveillance software. And these surveillance methods can now have multi-jurisdictional reach
and so can involve any communications carrier or system in the country — regardless of the
number of these systems or carriers or their location — that has been involved in transmittal of
any message or group of messages under surveillance. Geographic limits are avoided. This

1. USAPA §216(a) and (b)). This amends 18 U.S.C §3121(c), §3122(a)(1) and (a)(2), §3123 and §3124.
The House Committee report on the Act states that “content” of e-mail communication, for example, still
cannot be obtained, such as the “subject” line of an e-mail, or text. However, permissible information
includes dialing, routing, addressing, and signaling information, such as the portion of a URL specifying
Web search terms or the name of a requested file or article. The issuing court must have jurisdiction over
the crime being investigated and not just over the communication line involved.
2. USAPA §216. Section 216, unlike Section 214, is permanent. According to DOJ Guidance, §216
amends, clarifies, and updates existing federal laws on such devices as pen register and trap/trace devices by
stating that the relevant federal statutes authorizing the use of these surveillance devices apply “to a broad
variety of communications technologies.” For example, adding “line or other facility” to the authorizing
language will broaden the scope to include various cell phone, Internet, or other forms of electronic commu-
nication and permit the surveillance to obtain “non-content” information about the source and destination
of the communication.
3. According to the DOJ Guidance, such broad authority was necessary because of the special
actions taken by computer criminals or terrorists to thwart investigation or conceal their identity. Previ-
ously a court could only authorize installation of a pen/trap device within the jurisdiction of the court,
creating complications if the call goes through various phone providers or originates in another area. “If
these carriers do not pass source information with each call, identifying that course may require compelling
information from a string of providers located throughout the country — each requiring a separate order.”
Also, separate search orders might be needed at the originating and ending point of a call, causing difficul-
ties and delays.

47
 No Greater Threat

situation will make it quite difficult for a local service provider to challenge a court order
allowing surveillance through various jurisdictions.
These various sections of the Act already have been criticized as authorizing the instal-
lation of the FBI’s “Carnivore” program that seizes and examines all e-mail messages coming
through a given Internet provider. The FBI has contended that the use of these sorts of
extremely high-tech Internet surveillance programs can be modified so that the person
operating the system will only be able to view the e-mail messages that relate to the court order.
That has not been conclusively shown, and these sweeping programs allowing review of an
entire ISP’s e-mail have not been subjected to sufficient court scrutiny. If the FBI or other
investigative agency uses such a device in its surveillance, the Act requires
that a record of the use of the device must be provided to the court authorizing its use, but after
termination of the search and seizure order. The record is to be provided under seal, and ex parte.
This record is to describe the investigating officers who installed the device and who made use
of it, when the device was installed, the times it was used and when it was de-activated, the
device configuration, and information obtained. The long-term use of such a record is not made
known. It could sit in a court file or in an agency file for some time, long after the investigation is
over and long after any sunset provisions of Title II.
As indicated, these USAPA provisions will not sunset. They are permanent. While they
may “clean up” certain issues of jurisdiction, definition, application, and reach of electronic
surveillance, their scope paves the way for a new era of national-level electronic surveillance
and investigation by federal agencies, not necessarily restricted to terrorism, less susceptible to
challenge, and not subject to extensive court supervision or review.
Similar sections provide for “nationwide service” of surveillance or search warrants,
greatly expanding that authority.1 However, similar search warrants of other types — single
jurisdiction search warrants involving an investigation of domestic terrorism or international
terrorism — are authorized by a permanent section.2
4. Disclosures of Electronic Communication by Service Providers, Obtaining Computer Information,
Educational, Business Records. It already has been mentioned that Title II authorizes voluntary
disclosure to the government of customer information or a particular communication by
Internet or cable Internet providers, if the provider “reasonably believes that an emergency
involving immediate danger of death or serious physical injury requires disclosure of the
information without delay.” Title II also requires such a disclosure if so demanded by a “govern-
mental entity.” It should be added that the Act states that no lawsuit by the affected person can
be brought against any commercial service provider which has disclosed this information,
especially if the disclosure is sought or demanded by a government agent. Another section
confirms this protection from liability as to a FISA warrant or wiretap.3 So even if an individual
learns that his or her cellular phone company, telephone company, or Internet provider has
furnished government investigators with information or that investigators have served an order
or warrant for such information or have seized e-mail through one of these highly advanced
surveillance systems, there is no legal recourse available.

1. USAPA §220, amending 18 U.S.C. §203 and other sections. This section will sunset. This allows
investigators to compel records concerning e-mail that may exist outside a particular federal district, so
that other federal districts like in California and Virginia where some major Internet Service Providers are
located, will not be overwhelmed. Under the House Committee report, the amendment also reduces
complications in an investigation involving Internet traffic when the “suspected terrorist” is in one city but
the ISP is in another city or state. The broader warrant allows for service on Internet providers anywhere in
the country and supposedly will greatly assist such investigations. §220 will sunset in 2005.
2. USAPA §219, amending Federal Rule of Criminal Procedure 41(a). §219 is permanent.

48
 Part II: The USA PATRIOT ACT — Titles I Through III

The Act also addresses interception of “computer trespasser” information or communi-

cation.1 That is, Title II gives even broader authority for investigation into hackers of any
“protected” computer system, allowing a service provider or owner or operator of a protected
computer (or system) to permit federal investigation into such activity. A variety of computer
systems are protected, as defined by federal law, including computers used by the federal
government, by federal law enforcement, and by financial institutions, or used in interstate or
foreign commerce.
There is another section authorizing seizure of voice mail messages.2 Again, this is in
keeping with Title II’s theme of expanding the authority and reach of investigation,
surveillance, and seizure.
An even broader provision, which is scheduled to sunset in 2005, involves business
records. Upon a special request by the FBI Director or high-ranking FBI official (rank no lower
than Assistant Special Agent in Charge, but that is not a small number of agents) made to a
federal judge or magistrate judge, business records of someone who is not a United States
citizen can be seized under an ex parte order, if the records are believed by the enforcement
agency to involve “international terrorism or clandestine intelligence activities.”3 This provision
replaces a list of certain items which could be seized with the broad term, “any tangible things.”
The items are to be seized without the targeted person being notified.4 This is a requirement of
that Section.
The usual requirements of a general search warrant, even one under the FISA, such as a
statement of probable cause or a description of the investigation and the likely use or value of
the information sought, are omitted or diluted under this provision. The FBI request need only
“specify that the records concerned are sought for an authorized investigation” to obtain
“foreign intelligence information” or “to protect against international terrorism or clandestine
intelligence activities.” The person whose records are sought need not even be a target of the
investigation, but simply have records that the FBI wants. The search application can include
“tangible things” as well as other records, which means tangible things of any type or
description.5

3. USAPA §225, amending 50 U.S.C. §1805. The Section simply states: “No cause of action shall lie in
any court against any provider of a wire or electronic communication service, landlord, custodian, or other
person (including any officer, employee, agent, or other specified person thereof) that furnishes any infor-
mation, facilities, or technical assistance in accordance with a court order or request for emergency assis-
tance under this Act.” §225 will sunset, although that event may require Congress to enact or extend other
statutes to provide for continuing immunity for compliance with a surveillance order.
1. USAPA §217, amending 18 U.S.C. §2510 and §2511. The DOJ Guidance declares that this change
allows a victim of computer trespassing or computer hacking to obtain the assistance of federal investiga-
tors in looking into the crime, just as a victim of a physical crime like burglary can “invite the police into
their homes to help them catch burglars in the act of committing their crimes.” The wiretap statute “should
not block investigators from responding to similar requests in the computer context simply because the
means of committing the burglary happen to fall within the definition of ‘wire or electronic’ communication
according to the wiretap statute. Also, someone affected by computer crime did not often have the expertise
to investigate it.
2. USAPA §209, also amending 18 U.S.C. §2510. As noted, §209 will sunset.
3.USAPA §215, adding new Sections 501 and 502 to the Foreign Intelligence Surveillance Act, 50
U.S.C. §1861. §215 will sunset, but as has been noted, this Section would be permanent, along with other
Title II provisions scheduled to sunset, if Congress follows the Administration's request to "renew" the
PATRIOT Act.These “records” can involve common carriers, public accommodation providers (hotels),
physical storage facilities, and car rental agencies. The tangible items can be wide ranging, so long as they
relate to an investigation into international terrorism or clandestine intelligence. See note 50 below. §215
will sunset.
4. See new §1861(d).

49
 No Greater Threat

The Act prohibits this sort of seizure order if the records sought or the conduct involved
relate to “free speech activities.” Supposedly, that restriction is designed to protect against, for
example, wholesale searches and seizures by law enforcement agencies of foreign newspapers
or other media agencies with offices in the United States. It is unclear how successfully these
protections would be applied to private persons such as a foreign college student researching a
term paper for a political science course. This may well become an area of challenge in the
federal courts, depending upon how federal agencies act upon this broad new language.
The Act does not describe how these often fine distinctions and determinations are to be
made, or which court or agency will oversee them. In fact, the Act deliberately provides only
very limited means of dealing with overzealous activities, seeking relief from erroneous or
improper searches and seizures, or appeal to the courts.
**Special Note: How any court is to carefully review or scrutinize such surveillance,
investigation, or search requests in deciding whether to grant them, or deny them, is
disturbingly unclear. What is very clear in this provision (as with many other provisions of the
PATRIOT Act), is that judicial review or scrutiny of any federal investigatory activity under its
provisions is to be kept to a minimum. It also should be noted that, as with all applications for
surveillance orders or search and seizure warrants, even those in ordinary criminal cases, the
application, court review, and warrant issuance process are never public. There is no court
hearing or open court session inviting public review and comment on surveillance and search
and seizure warrant applications, and naturally the person who is the subject or target of the
warrant application is never informed beforehand. It also should be noted that it is not very
common for federal courts to refuse surveillance orders or search and seizure warrant requests,
in any case.
Another usual requirement in surveillance orders, especially for electronic or wiretap
information, is “minimization.” The term refers to the duty or necessity of the investigators to
not record, use, or otherwise take advantage of any information they come across in the
surveillance that does not relate to the crime being investigated. That is, for example, phone
calls of a personal nature coming through the telephone line being tapped are not to be recorded
or used. There is little or no requirement in the USAPA that the usual minimization procedures
be followed. This lack of restriction could very well be interpreted to mean that it is not
necessary to follow standard minimization procedures for a wiretap or surveillance order under
the USAPA.

5. Under USAPA §215, the court orders can extend to any tangible object held by anyone. Items
sought need not relate to an identified foreign agent of foreign power as was once the case, but need only be
sought as part of an investigation to protect the United States from international terrorism or clandestine
intelligence activity. They cannot be sought when the activity involves an American citizen or permanent
resident alien, or involves First Amendment conduct. As mentioned, this section is to sunset. Although §215
does not expressly mention bookstores or libraries (it does mention "books"), considerable concern has
been generated among some segments of the public, advocacy groups, and library associations about the
potential authority given by this Section for the FBI to search an individual's bookstore purchase records or
library check-out records— which indeed would be a substantial invasion of privacy for First Amendment
activity. Congress has sought to respond to these concerns with "The Freedom to Read Protection Act" and
similar bills. (More about that activity will be said later). Along with this Congressional response has been
lobbying activity and educational forums by library associations, intense attention to this Section by advo-
cacy groups, and specific reference to §215 authorities in most anti-PATRIOT Act resolutions adopted in
municipalities, cities, counties, and State legislatures across the country. Although the DOJ has insisted
that it is has not to date made use of this §215, the ongoing reaction to that Section is a strong indication of
the public response to potential invasion of privacy rights that occurs, in fact, throughout the PATRIOT
Act. Noteagain that §215 is scheduled to "sunset" but that if the current Administration is able to persuade
Congress to "renew" the PATRIOT Act§215 is likely to be among the Title II Sections to become permanent.

50
 Part II: The USA PATRIOT ACT — Titles I Through III

The standard and often only available avenue for a targeted person to challenge the
surveillance or search activity is a motion to suppress the evidence obtained, if it is to be used in
a later criminal case where charges are brought. However, even that approach only applies if the
person who was the target of the search or surveillance is also the person being charged. If
information obtained from one person is used against another person who is charged, the
person being charged might not have a basis for challenging any unlawful process of obtaining
the information. Also, the information might not be used in any actual criminal case, but the
surveillance could continue nonetheless. It must also be kept in mind that, as with all other
information and investigative provisions under the USAPA, once the information is obtained by
any means, and it involves foreign intelligence, it can be shared with any agency also without
prior review or court order and without the knowledge of the person connected to the
information. This situation leaves it very unclear whether a person who is eventually
prosecuted based on shared information can challenge the means of obtaining, or even discover
the ultimate source of, the information.**
Search and seizure activity under this Section of the USAPA is to be reported by the
Justice Department to certain identified committees in Congress dealing with intelligence
matters, on a semi-annual basis. The Justice Department also is to report on a semi-annual basis
to the House and Senate Judiciary Committees regarding the total number of applications for
orders seeking search and seizure of “tangible things” and the total number of court approval,
denial, or modification of these requests. However, these reports need not provide any other
details, such as the investigation involved, precise nature of the application, the items seized, or
the ultimate fate of the items seized. What Congress would do with such reports, or how it may
act to limit or modify investigatory power under the USAPA, also is not known.
5. Civil Action to Challenge Unauthorized Disclosures or Use of Information. With the broad
powers now granted under Title II, the Act offers some civil relief for overzealous law
enforcement. But it is limited to abuse of certain of the investigative, surveillance, or search and
seizure authority granted by Title II, especially new authorities under the now- amended FISA.1
Under this Section, if a federal court is provided with information indicating that a federal
agency has been involved in overreaching or improper search and seizure activity and the court
finds that the circumstances raise questions over whether the prohibited conduct was “willful,”
the court is to send its findings to the appropriate department or agency. The department or
agency is to investigate and may decide that disciplinary action is warranted. If no discipline is
warranted, the department or agency so notifies the Inspector General. However, the Act does
not specify the nature of any internal investigation or the type of discipline within a given
agency. In fact, this general language could be satisfied by an “investigation” done in a few days
or hours.
Of special interest is a section in Title II providing for a private civil action that can be
brought in a federal court against the federal government by an “aggrieved person,” whose
rights might have been violated by agency conduct under the Act, so long as the supposed
violation was “willful.” If the person shows that improper conduct occurred, damages available
begin at $10,000, along with “litigation costs, reasonably incurred.” However, the lawsuit must
be brought within two years of when the “claim accrues.” The claim would “accrue” on “the date
upon which the claimant has a reasonable opportunity to discover the violation.” That may be
never, given the tremendous secrecy that surrounds much of the surveillance powers and
information sharing of these Title II provisions. Other requirements are imposed for bringing a

1. USAPA §223, amending 18 U.S.C. §2520 and §2707, and adding new §2712. This section is to
sunset.

51
 No Greater Threat

claim, similar to other claims against the government under the federal Tort Claims Act. In this
type of action as well, the federal court can send information to the appropriate agency for
possible investigation and administrative discipline.
However, any lawsuit, if it is ever brought, can be suspended — and, it appears, indefinitely
— if the government requests the court to do so. The agency can request suspension, and the
court can order it, if the court finds that continuing with the lawsuit at that time, including
responses that would be required from the government to discovery demands by the person
bringing the lawsuit, would “adversely affect the ability of the government to conduct a related
investigation or prosecution of a related criminal case.”1 This is supposed to involve an actual
prosecution or investigation in progress. Court decision on the suspension request can involve a
private court review of confidential government documents relating to the suspension request.
The Act puts no limits on how long the suspension can be in effect. Presumably, if a case is suspended under
these provisions, either side could ask the court to lift the suspension. But it is doubtful that the
court would do so if the government agency involved objects. This could mean that a civil
lawsuit under the USAPA against a government agency for improper search and seizure
conduct could be placed on hold for years.
What is interesting about Section 223, providing for civil liability, is that it is designed to
sunset in 2005. But some of the new investigative authority granted by Title II is not designed to
sunset. And there is no telling what use can be made of information obtained by or shared
between federal agencies, even after some of the sunset provisions become inactive. It would
have been better for Congress to make the Section 223 remedies permanent.
**Special Note: The only “sunset” requirements in the entire USAPA involve only selected
sections of Title II. The “sunset” effect upon these sections requires no further action by Congress.
As Section 224 states, except for other specified sections, Title II and amendments to other
federal statutes made by the sunset sections will “cease to have effect on December 31, 2005.”
Nevertheless, there is nothing preventing Congress from taking another look at that sunset
provision. After four years of investigative activity under Title II, public complacency about its
provisions, court rulings that are likely to uphold major portions of Title II, and a federal
investigatory system grown accustomed to the powers granted to it by Title II, great pressure
no doubt will be placed upon Congress to repeal the “sunset” provisions and re-authorize all of
Title II. Careful attention should be paid to congressional activity in 2005 to ensure that the
sunset language of the Act is followed and that Congress does not simply re-authorize or
extend the effective date of some or all of these very broad search and seizure provisions.**
In sweeping provisions some of which have never been seen before, regardless of whatever
existing statutory language is borrowed or amended, Title II eliminates traditional barriers
between surveillance, investigation, and information roles of the FBI and CIA. It brings the
entire federal law enforcement and investigative apparatus into a free-flowing information
stream never so expressly declared in any federal statute and without any control aside from
internal guidelines. This information sharing can encompass the length and breadth of human
communication, no matter how private it previously was believed to be: electronic voice mail,
cell phones, standard phones, fax machines, standard voice mail, Internet e-mail, credit card
information, business records, grand jury testimony. Surveillance can now be conducted on a
national basis based on a single surveillance order. Nationwide service of search warrants is
authorized in particular cases.

1. See new §2712(a) and (b)(2), as enacted by the USAPA. This section borrows heavily from a
similar section in the Foreign Intelligence Surveillance Act, 50 U.S.C. §1810.

52
 Part II: The USA PATRIOT ACT — Titles I Through III

“Information” of any type or nature can be investigated and shared if it relates generally to
“terrorist crimes” — and the definition is so expansive that a great many things will — or, more
precisely, if it relates to “foreign intelligence information” — also a wide definition which may
be appropriate for foreign intelligence surveillance but which becomes ominous when placed
within the tremendous reach and scope of the Act. Not only that, but surveillance, investigation
and seizure under this process to be allowed under the Foreign Intelligence Surveillance Act are
permissible so long as foreign intelligence is “a purpose” rather than “the purpose” of the
investigation. These warrants do not have to be based on probable cause and now will have a
longer shelf life and a longer extended life than in the original statute. The FISA Court has been
expanded with more judges, obviously so more warrant applications can be processed. This is a
Court which since its creation has refused almost none of the surveillance or warrant
applications presented to it. If a warrant application or investigative or seizure activity is
challenged, assuming that is even possible, previously inadmissible or classified information can
be presented by federal officials to the court, ex parte and in camera, to justify the action.
The Act expands other searches or seizures which can be conducted without standard
warrant conditions such as requiring a showing of probable cause (not that federal investi-
gators have any difficulty obtaining warrants under that standard). Seek and peak investi-
gations can be conducted, with service of that search warrant “delayed” for any “reasonable
period,” a time frame which can be anything within the “reasonable” judicial imagination. A
single district court can issue a single warrant or surveillance order which can be served on any
number of phone service or Internet service providers around the country. Sophisticated
Internet e-mail capture programs like “Carnivore” can be utilized. Be assured that after years of
further technical development, surveillance programs will be implemented which are sure to
make “Carnivore” a mere memory. Electronic surveillance devices will be utilized, the nature of
which can only be imagined given the speed at which these technologies are developing.
Emergency forfeiture and confiscation powers have been expanded, to the extent that
they may even have revived the evils of “forfeiture of estate” detested at the time of the Consti-
tution. A variety of findings, declarations, executive orders, regulations, and internal guidance,
all within the Executive Branch, will define and drive these new powers. Budgets have been
increased, agency offices expanded or new offices created. Now, there is literally no scrap of
information out of the reach of federal officials investigating a “terrorist crime” or seeking
foreign intelligence as “a purpose” of their activities.
Many of these provisions are not restricted to non-U.S. citizens. Some involve or relate to
investigation of any federal crime.
All of this can be done with only one stop at the courthouse, if that. All done in secret. All
for the protection of the citizenry, all for the greater good. If Title II alone was passed by
Congress, it would be enough for grave concern. Yet, this is not by any means all that the
USAPA does.

TITLE III: INTERNATIONAL MONEY LAUNDERING

A substantial part of the PATRIOT Act is taken up with Title III, which contains the
Act’s often complex provisions directed to banking, money laundering, international funds
transfers, and currency crimes. This part of the Act bears its own separate title: the “International
Money Laundering Abatement and Anti-Terrorist Financing Act of 2001.” The Act now moves into areas
having little or nothing to do with previous Titles, yet the Titles are linked together in the ever-
widening authorities given to federal agencies to investigate and prosecute “terrorism,”
however defined.

53
 No Greater Threat

Title III is the most extensive banking and anti-money laundering legislation to be issued
by Congress in more than 30 years.1 Title III’s several subtitles greatly expand federal investi-
gation into money laundering, bank records, and currency transactions. Various regulations
from government offices are directed by Title III. Imposing sums are appropriated or
authorized. Although Title III provisions can be very precise, much of Title III’s implementation
is left to regulations to be issued by the Treasury.2
Title III makes it plain that it is time for domestic banks and similar financial entities to
be part of a worldwide investigation into terrorist financing. New “special measures” can be
imposed and new “due diligence” requirements are to be implemented, transforming banks and
other financial institutions across the country into virtual partners with federal officials in
terrorism investigations. Title III’s list of “findings and purpose” make it clear that Congress
intends to permit investigators to reach as far as possible into banking transactions, interna-
tional and otherwise, to investigate terrorism.3 However, as with the other Titles, these
provisions have a wider reach and will generate more long-term effects.
Little has been said of Title III in the general media. But it is no less momentous than any
of the other PATRIOT Act provisions that have received media attention. The majority of Title
III will have little effect upon the ordinary United States citizen doing ordinary business with
domestic banks in standard checking, savings, money market accounts, or CDs. But there are
provisions which do concern these areas, and they are significant. Title III will have a far-
reaching effect on the banking industry, one way or another. Title III has three subtitles:
Subtitle A — International Counter Money Laundering and Related Measures, Subtitle B —
Bank Secrecy Act and Related Improvements, and Subtitle C — Currency Crimes and
Protection. Several regulations have already issued.
Some of Title III’s provisions or regulations may have been proposed previous to the
USAPA and been halted by the very effective banking lobby. But there was precious little time
to organize any lobbying efforts, given the speed by which Congress enacted the USAPA —
reviewed and passed by Congress and signed into law by President Bush a mere 45 days after
the September 11 attacks. The banking industry now will have to live with some very compre-
hensive provisions, probably indefinitely.
Rather than allow Title III automatically to sunset, as with selected Sections of Title II,
the Act allows for the possibility of Title III being terminated entirely as of the first day of fiscal
year 2005.4 However, for Title III to be inactivated, Congress must pass a joint resolution so stating. It can be
assumed that if Congress does not do so when the time comes, as to some or all of Title III, then
Title III will continue in force until Congress acts. (Again, the opportunity to invalidate Title III
by joint resolution has been eliminated by §6204 of the Intelligence Reform and Terrorism
Prevention Act of 2004, signed December 17, 2004).
This is another reason why 2005 will be a crucial year in the potential development of a
national security state. It is very likely that, when the time does arrive, Congress will be
reluctant to terminate Title III in full. The investigations which Title III permits, the funds
appropriated or authorized, and the regulations to be issued will create a momentum after four
years of activity which could sweep away any effort to pass the joint resolution required to

1. The most similar previous statute is the Bank Secrecy Act of 1970.
2. As of this writing, that is, early to mid-2002, several regulations and proposed regulations have
been issued. For listings of regulations authorized by the PATRIOT Act and of funds appropriated or
authorized by the Act, see the appendix lists at the end of Part IV.
3. USAPA §302.
4. USAPA §303. The only “sunset” provisions are the selected provisions of Title II. Title III can be
inactivated only by Congressional action. The remainder of the PATRIOT Act is permanent.

54
 Part II: The USA PATRIOT ACT — Titles I Through III

invalidate it. It remains to be seen how Congress addresses Title III in 2005. Although the
Intelligence Reform Act (in §6204 of that Act) has eliminated the opportunity to invalidate
Title III in 2005 by joint resolution of Congress, there remains substantial need to raise public
awareness about Title III's reach and impact.Compared to Title III's scope, given as well the
expansion in December 2003 of the term "financial institution," there is a disturbing lack of
attention, action, or public debate about it. Especially now that Title III is permanent along
with all regulations issued under that Title and all subagencies and enforcement programs
created by that Title, such efforts would be worthwhile by increasing information about, and
focusing the public concern upon, Title III and its extremely wide-ranging provisions, in
addition to how it is being used.

The introductory section to Title III lists 13 “purposes” for its enactment. Among them are:
— strengthening federal measures to “prevent, detect, and prosecute” international
“money laundering and financing of terrorism,
— providing a clear “national mandate” for closer surveillance of “foreign jurisdictions,”
foreign financial institutions, and “classes of international transactions or types of accounts”
that pose “particular, identifiable opportunities” for “criminal abuse,”
— providing “guidance” to “domestic financial institutions” (which includes the ordinary
domestic bank with a neighborhood bank branch) for identifying “classes of international
transactions” that are of “primary money laundering concern” to federal authorities,
— protecting due process rights of person whose accounts may be subject to seizure or
forfeiture, and
— making it more difficult for “corrupt foreign officials” to use banks in the United
States to place or hide stolen assets.
After these introductory statements, Title III launches into a series of exacting provisions
affecting banking transactions throughout the country and, in overall effect, around the world.1
Financial entities covered by the Act are those within the existing and very detailed federal
definition of a “financial institution.”2 This includes private banks, foreign bank branches in the
United States, credit unions, commercial banks or trusts, investment banks, credit card
companies, telegraph companies which offer money transfer services by wire, and even
pawnbrokers and currency exchangers.3
Although the Act chiefly is concerned with investigating internal financial support for
international terrorism, it casts a net wide enough to bring a range of financial transactions into
the scope of increased federal law enforcement investigation and action. This reach could
include or affect standard and quite legitimate international business transactions conducted

1. Many provisions are designed to amend 31 U.S.C. §5317, §5318 and also to add a new section, 31
U.S.C. §5318A. Successive Sections or provisions of Title III result in separate subsections of new §5318A, so
that Title III, when taken together, constructs totally new or totally rewritten sections to this part of Title
31 of the United States Code. However, some provisions incorporated into Title III were part of existing
Federal anti-money laundering statutes. In other instances, the USAPA expands upon existing law, applies
existing provisions to international money laundering circumstances, or borrows from existing statutes to
create new language. The Act represents a near-total rewrite of major federal banking laws, and incorpo-
rated most of previous H.R. 3004.
2. See the definition at 31 U.S.C. §5312.
3. For convenience, reference will be made to “bank” or “financial institution” although, as the Act
states, the definition is broader than that, so other types of financial entities are affected by particular Title
III provisions as they appear. Note, however, that as part of legislation signed in December, 2003 by Presi-
dent George Bush, the term "domestic financial institution" has been even further expanded, thus further
increasing the reach and scope of Title III.

55
 No Greater Threat

every day. The efficacy of Title III’s authorities, unprecedented in many areas, is yet to be
demonstrated.
1. Banking Investigative Authority and Cooperation by Domestic Banks, Treasury Department “Special
Measures,” New “Due Diligence” Standards. The Act allows the Treasury Department (namely, the
Secretary of the Treasury, but understood to mean the Department and its investigative or
regulatory agencies and offices) to require domestic financial entities to cooperate with federal
investigation of international money laundering through the use of highly unusual “special
measures” which now can be imposed by the Treasury or by banking regulators upon a
particular domestic financial institution for a certain time period. It appears that the financial
institution involved has no choice in the matter. These new provisions are dramatic and the
potential for their abuse is extreme, although they chiefly are directed to foreign funds or
accounts in domestic financial institutions or certain accounts where a foreign national is the
account holder or customer.
Before imposing “special measures,” the Act requires that the Treasury Department make
a “finding” to determine “reasonable grounds exist” that a particular foreign bank, account, or
transaction to be targeted (and which has some relation to a domestic financial institution) is of
“primary money laundering concern.”1 To make this determination, the Treasury Department is
to meet certain requirements described in the Act and to consider or review other specified
“factors.” One requirement is a notice of rulemaking. That concerns the Act’s directive that the
Treasury Department issue regulations relating to the enhanced federal investigation of money
laundering and other transactions authorized by Title III.
The “factors” to be considered in making the “finding” for imposing special measures
include both jurisdictional and institutional elements. Some of these factors involve the extent
of an investigation which might be underway, such as “evidence that organized criminal groups,
international terrorists, or both, have transacted business in that jurisdiction” and “the
relationship between the volume of financial transactions occurring in that jurisdiction and the
size of the economy of the jurisdiction.” Another factor is “the extent to which that jurisdiction
or financial institution operating in that jurisdiction offer bank secrecy or special regulatory
advantages to nonresidents or nondomiciliaries of that jurisdiction.” Another is “the substance
and quality of administration of the bank supervisory and counter-money laundering laws of
that jurisdiction.” Still another factor is “the extent to which that jurisdiction is characterized
as an offshore banking or secrecy haven by credible international organizations or multilateral
expert groups.” Yet another factor is “the extent to which that jurisdiction is characterized by
high levels of official or institutional corruption.”
So, if a country has weak supervisory laws concerning banks, provides a locale for banks
to operate with a high degree of secrecy concerning accounts, has a history of being used as an
account haven for criminal activity, and has a bad reputation for official corruption, it is a target
for a “finding” there are “reasonable grounds” that this country, or one or more banks within
that country, or any number of accounts or transactions occurring in these banks, is of “primary
money laundering concern.” This process may be linked to existing international agency efforts
directed against money laundering, notably the Financial Action Task Force on Money
Laundering (FATF).2

1. USAPA §311, adding new 31 U.S.C. §5318A. It appears that this entire “special measures” Section
added to 31 U.S.C. is new. It is fairly safe to say that §5318A would not likely have passed Congress prior to
September 11, 2001.
2. For a more detailed description of the FATF and its mission concerning international money laun-
dering, along with some comments on related activity by the United States and the European Union in
identifying other "terrorist" groups although they have nothing to do with September 11, see Appendix 2-C.

56
 Part II: The USA PATRIOT ACT — Titles I Through III

The Act requires that the Treasury Department consider other cautionary factors and
take other preliminary actions before imposing these “special measures” on a domestic financial
institution with respect to the targeted foreign account or transaction. Among these are consul-
tations with other United States banking, finance, and securities agencies and with the State
Department. Consultations are to involve whether similar action has been taken by other
nations, the extent to which imposing the “special measures” would be a hardship or burden to
the bank, the extent to which the action to be taken under the “special measures” would affect
legitimate business activities or international payments or settlements, and the effect on United
States national security and foreign policy (See USAPA §311(a), adding new 18 U.S.C.
§5318A(a)(4)).
Also, the Treasury Department is to consider the extent to which the targeted foreign
bank or account is used to “facilitate or promote” money laundering, whether the bank or type
of account is used for legitimate business purposes, and the usefulness of the “special measure”
in the investigation. There are many dots to connect, but the Treasury Department, State
Department, and other banking regulatory agencies surely are prepared to satisfy the Act’s
requirements to these “special measures.” Any order issued as part of the “special measures”1
can be in effect for 120 days (four whole months).
Finally, the Treasury Secretary is to notify congressional House and Senate finance
committees within ten days of imposing “special measures.”2 Any order issued as part of the
“special measures” can be in effect for 120 days (four whole months).
Note that there is no requirement that a court order be obtained by Treasury investigators
before imposing “special measures” on a domestic financial institution. The special measures
process and issuance of the special measures order is all done internally.
The special measures requirements are complex. Nevertheless, if a “finding” is made
incorporating these various factors, preliminary actions and consultations are undertaken, and
the notice requirements are satisfied, then the Treasury can impose special measures on a
domestic financial entity such as a domestic bank concerning accounts in that bank linked
either to a terrorism investigation or to certain targeted overseas accounts or banks suspected
of providing financial resources for terrorism.
The special measures, once imposed, mandate precise actions for the domestic financial
institution as to recordkeeping and other tracking information regarding the targeted accounts
or type of accounts. That is, the domestic bank is to make or supply records of transactions in a
targeted account or in various accounts covered by the special measure, so as to provide investi-
gators with that information. This activity can continue for the duration of the special measures
order, which is at least up to four months. This presumes four months of account activity,
although there is nothing in the Act concerning special measures that prevents investigators
from seeking records of prior activity in any such account while the special measures order is in
effect.
Under the special measures, the domestic financial entity is to make and retain the
account records “at such time, in such manner, and for such period of time” as investigators
require (supposedly up to the expiration of the special measures order). Among the account
record information would be the identity and address of transaction participants, including the
identity of the person or entity transferring funds, whether the transaction participant is acting

1. These committees are the House Committee on Financial Services and the Senate Committee on
Banking, Housing, and Urban Affairs.
2. USAPA §311, establishing new 31 U.S.C. §5318A, at new §5318A(a)(3)(A) and (3)(B). However, this
120-day period may be extended “pursuant to a rule promulgated on or before the end of the 120-day period”
from the date of the order. How long that extension could be is not stated.

57
 No Greater Threat

for some other person or entity, and the identity of the beneficial owner of the funds involved.
That is, a federal investigator or banking regulator armed with a special measures order can
deliver that order to a particular domestic financial entity and require it to provide investigators
with exhaustive information on the nature of and customers of a targeted account involving a
foreign bank.
Special measures also could involve prohibiting the domestic bank from keeping or
starting particular types of account with certain other foreign banks or with any bank in a
particular targeted foreign country, or imposing conditions on maintaining certain accounts of
that sort.1 These provisions are so new that only time will tell how they will be applied and to
what extent they would be subject to court review.
Three types of accounts are of greatest interest under Title III and are also specifically
covered under special measures: accounts with beneficial ownerships, correspondent accounts,
and payable-through accounts.2 In a beneficial ownership account, a person or entity who
might not be transacting business in the account on a regular basis has an interest in the
account funds. That person or entity could be anywhere else in the world. It is possible that the
name of the beneficial owner might not be on the account or daily account paperwork,
depending on where or how the account was opened.
A correspondent account is held or managed by a domestic bank but involves funds
linked to a foreign bank, and is managed on behalf of a person or company holding the account,
and under certain directions. (The process can also work in reverse). That is, correspondent
accounts are accounts in a domestic financial institution held in the name of a foreign financial
institution. In these correspondent accounts, transfers, deposits, and payments can be made as
directed by the account holder, sometimes without direct involvement by the account holder
and sometimes without strict identification requirements for recipients of payments from these
funds (depending on various factors such as any restrictions placed on the account by the
holder or by the foreign bank, domestic bank internal policies, and applicable domestic laws or
regulations concerning these accounts). A domestic bank may also have a “co-respondent
relationship” with one or more foreign banks for various account or financial purposes.
A payable-through account is used to place funds from another account or source (this
might be any other account or source) either for transfer to a third account or for payment to
another person, at the direction of the account holder. The Act defines it as an account opened
at a domestic bank by a foreign bank by which “the foreign financial institution permits its
customers to engage, either directly or through a subaccount, in banking activities” in the
United States.3
These various types of accounts are not unusual in banking activity. Correspondent
accounts, correspondent relationships, and payable-through accounts are common things in
international banking and international business matters. The Act is interested in them because
they also can be utilized in illegal money laundering or criminal financing schemes.
When special measures are imposed, in beneficial ownership accounts, information
concerning any related account may be required. In correspondent or payable-through
accounts, the domestic financial institution must supply to investigators information about
each customer, or representative of the customer, who is permitted to use “or whose
transactions are routed through” the account. This information is to be “substantially
comparable” to information usually obtained by the bank regarding its own United States

1. USAPA §311, establishing new 31 U.S.C. §5318A, at new §5318A(b)(1) through (5), especially (b)(5).
2. USAPA §311, establishing new 31 U.S.C. §5318A, at new §5318A(e)(1)(C).
3. See USAPA §311 and new 31 U.S.C. 5318A(e)(1)(A) to (C).

58
 Part II: The USA PATRIOT ACT — Titles I Through III

customers. Although not specified, that sort of information could be name, address, home and
business phone numbers, and fax number, perhaps e-mail address, and perhaps any person-
alized number like a social security number.1 Certain other account records and reports would
be sent by the domestic bank or financial institution to Treasury Department investigators.2
Meanwhile, aside from special measures, the Act imposes additional standard requirements on all
domestic financial institutions concerning certain foreign accounts.3 These requirements are now
imposed upon any United States financial entity that “establishes, maintains, administers, or
manages” certain correspondent accounts or maintains a “private bank account” in the United
States for someone who not a United States citizen, including a foreign person visiting the
United States or a representative of someone not a United States citizen. These require new
minimal and enhanced due diligence standards, which are across-the-board standards without
the necessity of any special measures order. They encompass most major United States financial
institutions or banks, possibly their branch offices or departments, which handle any sort of
regular foreign financial transactions or accounts.
Under Title III’s additional requirements, these financial entities are to put into place
“appropriate, specific, and where necessary, enhanced” policies of “due diligence, procedures,
and controls.” This can be described as “minimal” and “enhanced” due diligence.4 The Act states
that the objective of these new policies is to “detect and report” instances of money laundering
in these accounts.
The “minimum standards” (minimal due diligence) to be put into place by all affected
domestic financial institutions will require, in some cases, heightened bank policies. Among
these requirements are procedures if a “private banking account” is requested or maintained by, or
on behalf, or a non-United States person. These requirements include determining the identity of the
nominal and beneficial owners of the account and the source of funds for the account. Other
procedures are that the institution conduct “enhanced scrutiny” for any such account involving
“a senior foreign political figure” or any immediate family member or close associate of such a
person, so that the domestic financial institution can “detect and report transactions that may
involve the proceeds of foreign corruption.” (Some details as to banking procedures for these
accounts under proposed Treasury regulations, indicating the government’s reach through Title
III into banking affairs, will be noted shortly.)
The vast majority of private accounts opened by non-United States persons would not be
affected by these provisions. That is because for a “private banking account” to come under
these particular requirements, it must have minimum aggregate deposits of $1 million, be

1. Also, as indicated elsewhere, under a separate provision, any domestic bank maintaining a corre-
spondent account in the United States for a foreign bank is to maintain records in the United States “identi-
fying the owners of such foreign bank and the name and address of a person who resides in the United
States and is authorized to accept service of legal process” concerning account information. If a Federal
investigator submits a “written request” to the domestic bank for this type of account information as to a
particular account, the bank is to provide that information in seven days. USAPA §319(b), amending 31
U.S.C. §5318, and see new (k)(3)(B)(i) and (B)(ii).
2.USAPA §311 and new 31 U.S.C. §5318A(b)(1) through (4).
3. USAPA §312, amending 31 U.S.C. §5318.
4. One commentator has observed that these new requirements will mean an additional level of
activity for nearly all banks. “Mandates relating to operations such as recordkeeping and reporting informa-
tion may cause financial institutions, from a risk management standpoint, to increase their recordkeeping
capabilities and reporting frequency.” To meet data tracking requirements, financial institutions “may need
to enhance their documentation processes.” Robert Ballieu, Product Development Attorney, Bankers
Systems, Inc., “The USA PATRIOT Act: Complying With New Anti-Money Laundering Requirements.”
January, 2002. See www.complianceheadquarters.com. And, see interim final regulations on anti-money
laundering programs issued by the Treasury in late April, 2002. 67 Fed.Reg.21110.

59
 No Greater Threat

established on behalf of one or more persons having a beneficial ownership in the account, and
be managed by an officer or agent of a bank acting as a “liaison” for the account’s “direct or
beneficial owner.” These particular requirements are to be effective nine months after
enactment of the Act.
As to correspondent accounts with certain other foreign banks, they can be maintained
by the domestic financial entity if the foreign bank involved is affiliated with a financial
institution having a branch or other location in the United States and is subject to supervision
by a banking authority in the foreign country. These requirements which can be described as
“minimal due diligence” standards, may result in heightened standards or new policies for some
domestic financial entities.
Also, there are “enhanced due diligence” requirements concerning correspondent
accounts with foreign banks that are of “investigatory interest.” Such a foreign bank would
operate under an offshore license, or would be located or have a banking license in country
without adequate anti-money laundering laws or regulations. The “enhanced due diligence”
standards for these accounts are similar for the “private banking accounts” and include
“enhanced scrutiny” to guard against money laundering and reporting any “suspicious
transactions.”1 So, if a United States bank has a correspondent account with a suspect foreign
bank,2 the domestic bank must implement these “enhanced due diligence” procedures and must
notify the Treasury of any suspicious transactions.3
The Treasury Department issued a proposed regulation covering many of these areas on
May 30, 2002 (67 Fed.Reg. 37736). The regulation specifies due diligence requirements to be
met by financial institutions regarding correspondent accounts and deals with procedures or
definitions for “private banking accounts” covered under Title II.
The regulation takes an extensive approach to the definition of correspondent account,
which encompasses “most types of banking relationships between a U.S. bank and a foreign
financial institution.” For other types of financial institutions, a correspondent account would
be “an account for receiving deposits from, making payments on behalf of, or handling other
transactions related to such foreign financial institution.” (67 Fed.Reg. at 37737, summarizing
regulation). For purposes of the regulations, a “covered financial institution” involves more
financial entities than described in other parts of Title II, and will include futures commission
merchants and introducing brokers, casinos, mutual funds, money service businesses, and
credit card companies or systems. It is plain that the Treasury Department in its regulations
will go as far as it can to implement the broadest possible approach to Title III’s provisions.

1. USAPA §312, amending 31 U.S.C. 5318, at new §5318(i)(2)(A) and (2)(B).

2. There are three types of suspect foreign banks for purposes of these provisions of Title III: 1) the
foreign bank operates under an offshore banking license, 2) the foreign bank operates under a banking
license issued by a country that “has been designated” by “an intergovernmental group of which the United
States is a member” as “noncooperative with international anti-money laundering principles or procedures”
so long as the United States has agreed to this designation, or 3) the foreign bank has been designated by
the Treasury, under the process described in Title III, as warranting “special measures due to money laun-
dering concerns.” As to 1) a foreign bank operating under an offshore license is a bank that does not and may
not do business in the chartering country. As to 2) although not expressly stated, it clearly refers to use of
the FATF’s NCCT list as part of the identification process. As to 3) this is an open-ended designation
process conducted internally by the Treasury and guided by the Act provisions or perhaps by other internal
guidance documents or regulations to be issued.
3. What is a “suspicious transaction” is not described in the Act. However, banks are experienced in
spotting such transactions. Additional guidance and regulations from the Treasury Department are
expected to be issued to assist banks in implementing these minimal and enhanced due diligence require-
ments.

60
 Part II: The USA PATRIOT ACT — Titles I Through III

Also, because “correspondent account” is viewed broadly, it is not limited to a traditional

banking account and can include various foreign financial transactions conducted by various
financial entities. The Treasury Department is considering additional regulations in that
respect.
Under the proposed regulation, minimal due diligence programs for correspondent
accounts would have five elements:
— determining whether the correspondent account is of a sort that will necessitate
“enhanced due diligence” as required by Title II, such as if the correspondent account is for a
foreign bank operating under certain types of offshore banking license;
— a “risk assessment” concerning whether the correspondent account poses a “significant
risk of money laundering activity” such as the type of foreign financial institution involved in
the account and its lines of business, size, and customer base, as well as the type of transaction
activity that will occur in the account;
— reviewing available information from federal government or international organi-
zations regarding the kind of regulation and supervision imposed on the foreign financial
institution involved in the account;
— reviewing guidance documents by federal agencies regarding money laundering risks
“associated with particular foreign financial institutions and types of correspondent accounts,”
and finally,
— reviewing available information to find out if the foreign financial institution involved
in the account “has been the subject of any criminal action” of any nature or any regulatory
action related to money laundering, to decide if the circumstances of any such activity indicate
an “increased risk” that the account may be used for money laundering.

These are the “minimal” due diligence requirements. The summary to the regulation states
that a financial institution’s due diligence programs should be “risk-focused” to ensure that all
correspondent accounts receive “appropriate due diligence” and that correspondent accounts
presenting “more significant risks of money laundering activity” receive further scrutiny
“reasonably designed to detect and report” such activity. A financial institution’s programs may
be more detailed and, overall, the procedures “should be tailored to the covered financial
institution’s business and operations and the types of financial services it offers” through
correspondent accounts.
For enhanced due diligence to be applied to certain types of correspondent accounts with
certain foreign banks (mentioned in the regulation’s first aspect of minimal due diligence), there
are three additional requirements.
The first additional requirement is “enhanced scrutiny” of the account to guard against
money laundering or report it, if it occurs. This includes, at the least, reviewing documentation
from the foreign bank about its own money laundering program and considering if that bank’s
program is “reasonably designed” to detect and prevent money laundering. Also, enhanced
scrutiny could involve monitoring transactions through the account and obtaining information
about the beneficial ownership of the account.
The second requirement for enhanced due diligence is to ascertain whether the foreign
bank involved in the correspondent account itself maintains other correspondent accounts
with other foreign banks. This includes determining the identity of these other foreign banks
and, if necessary — considering any indications that the account poses a money laundering risk,
identifying the foreign correspondent bank’s measures to prevent money laundering.

61
 No Greater Threat

The third requirement is to determine the ownership of the foreign bank involved in the
correspondent account, if the bank is not a corporation with publicly traded shares. This may
be done by obtaining a statement from the foreign bank providing details of bank ownership.
The regulations are detailed enough to serve notice that under Title III, all correspondent
accounts will be of special interest to the federal government regarding money laundering and
terrorism. Although some banks may already have policies similar to those described in the
regulations or can adapt current policies, these requirements will bring a new level of attention
to these accounts from all financial institutions covered by them.
Of further and quite particular interest is the additional detail provided by the May 30,
2002 regulations regarding a “private banking account” and Title III’s statement that for such an
account to be covered by its heightened scrutiny provisions, the account must involve or be
held by a “senior foreign political figure” (in addition to certain other requirements). The
Treasury regulation’s definition of this term is wide ranging. Tracking the general approach to
this definition in Title III, this person can be: a current or former senior official in any branch of
foreign government (executive, legislative, administrative, military, judicial), a senior official of
a major foreign political party, a senior executive of a foreign company (whether government-owned,
separate business, or privately formed), an immediate family member of anyone who fits the definition
(and that can be spouse, parents, siblings, children, and a spouse’s parents or siblings), or a
“close personal or professional associate” of anyone who fits the definition. A “senior official” or “senior
executive” means “an individual with substantial authority over policy, operations, or the use of
government- owned resources.” (67 Fed.Reg. at 37739, summarizing regulation).
This definition certainly covers an entire group of individuals. A mother-in-law of a
foreign food import company vice-president, who opens and maintains a “private banking
account,” comes under this definition (assuming the account meets the other Title III
requirements).
Also, the regulation details due diligence programs that are to be applied to these
accounts. They include “reasonable steps” to be taken by the financial institution to find out the
identity of all “nominal holders and holders of any beneficial interest” in the account, the “lines
of business and source of wealth” of these persons, the source of funds deposited into the
account, and whether any holder is a senior foreign political figure. The “reasonable steps” could
include ways to confirm account information, reviewing any public information on the
individuals including information on the Internet, statements by the individuals, and other
data. Regarding the “senior foreign political figure,” the “enhanced due diligence” requirements
described in the proposed regulation also mandate utilizing methods reasonably designed to
“detect and report transactions that may involve the proceeds of foreign corruption.” The level
of enhanced scrutiny may vary, and could be affected by factors such as the length of time the
senior political figure has been in office, for those persons in government positions (or was in
office, in cases of former officeholders). For example, if the private banking customer is a senior
foreign political figure in a government position and the bank obtains information that current
or foreign political figures in that country have been implicated in large-scale corruption, “it
may be appropriate to probe regarding employment history and sources of funds to a greater
extent than for a customer from a jurisdiction with no such history.”
Any “enhanced scrutiny” to be applied to these private banking accounts should consider
all risk factors such as the purpose and use of the account, location of the account holders,
source of funds in the account, type of transactions occurring in the account, and the
jurisdictions involved in the transactions. When necessary, enhanced due diligence could
include account monitoring by the domestic financial institution.

62
 Part II: The USA PATRIOT ACT — Titles I Through III

The regulations further provide, as to correspondent accounts or private banking

accounts, that if the financial institution is unable to conduct its due diligence (minimal or
enhanced as may apply) for the particular account, especially if that inability relates to lack of
cooperation by the account holder, the financial institution should have in place a policy of
steps to be taken. Those steps could include not opening the account, suspending transactions
in the account, filing a “suspicious activity report,” or closing the account.

These procedures and regulations (and others like them under Title III), will require
banks to develop more comprehensive policies, if they do not already have them, concerning
foreign accounts and accounts with non-U.S. citizens, such as internal statements, relationship
management, risk assessment, and development of consistent access to numerous information
systems and sources. A wide range of personal, business and credit information will be sought
and retrieved, as banks seek to implement these various requirements for accounts and
individuals.
Title III goes so far as to absolutely prohibit domestic financial entities from opening or
maintaining correspondent accounts involving “foreign shell banks.” These “banks” may be no
more than an office, a telephone, and a fax machine. These “shell banks” have been used as
conduits for clandestine funds transfers. Title III makes it illegal for a United States bank to have
an account with a foreign shell bank, that is, a bank which “does not have a physical presence in
any country.”1 United States financial institutions also are now required to take “reasonable
steps” to ensure that any correspondent account maintained by that entity for a foreign bank “is
not being used by that foreign bank to indirectly provide banking services to another foreign
bank” which is a shell bank. So, aside from the special measures which now can be imposed
upon any bank regarding any identified account at any time without a court order, Title III
brings a new level of daily financial investigation practices to United States financial entities by
requiring them to put minimal or enhanced “due diligence” procedures in place (depending on
the type and nature of the accounts involved), to track suspect accounts under these minimal or
enhanced due diligence policies, and to monitor a “private banking account” (as defined by the
Act) for any non-United States person. These provisions usher in a new era of daily interaction
between financial entities and federal investigators or banking regulators, beyond existing law,
regarding a wide range of foreign accounts with connections to United States banks, as well as
certain domestic accounts.
Proposed Treasury regulations describing what measures domestic financial entities are
to take to meet this requirement were published on December 28, 2001 (66 Fed.Reg. 67460).
Among the requirements is that financial institutions that provide correspondent accounts to
foreign banks must maintain records of the ownership of the foreign banks and information as
to the agent of that foreign bank in the United States who is designated to receive legal service
of process.
**Special Note: As mentioned, when the Treasury Department imposes “special measures”
concerning any account, certain congressional committees are to be given notice within ten
days. What the committees are to do with this information is not described, nor does Title III
say whether this notification information is deemed secret. But it is at least some attempt by
Congress to keep track of what sort of Treasury Department investigations are to be conducted

1. A “physical presence” means that the bank has a location at a fixed address in the foreign country,
other than solely an electronic address, employs at least one person on a full time basis, keeps regular bank
operating records, and can be inspected by the banking authority of the foreign country where it is located.
And see proposed rules at 66 Fed.Reg. 67460 (December 28, 2001).

63
 No Greater Threat

under Title III. It is possible that if these notifications become too frequent, are imposed too
often on a particular bank, or otherwise appear troubling to these committees, perhaps a
congressional hearing may be held or investigation conducted on Treasury Department actions.
It must be emphasized that Title III does not require regulators or banking investigators to obtain a
court order to impose “special measures” upon domestic financial entities for what can be
extreme tracking and reporting requirements to targeted foreign accounts or transactions —
providing substantial information to the government ordinarily considered private. The
Treasury Department is given certain restrictions and must make certain “findings.” But that is
all that is needed. No court will review the findings and no court will oversee the activity or
information obtained.
Also, there is no requirement, as in Title II search and seizure requirements or even as
would be required in any ordinary search and seizure warrant, that there be any showing to any
third entity of “probable cause” to believe that the particular account is involved in criminal
activity. Even certifications as to the targeted account or transaction are not necessary. To this
extent, investigatory powers granted under Title III exceed even some of the most troubling aspects of Title II.
It is very unclear whether any legal challenge to these actions, such as a bank seeking an
injunction to prevent imposition of “special measures,” is even available or would have any
chance of success. It is doubtful in any event that federal courts would get involved in these
special measures, particularly when Title III has no express provision allowing for a court
challenge by a domestic financial entity faced with special measures or by an account holder or
customer of a targeted account.**

2. New Regulations Authorized, Including Regulations on “Special Measures.” As noted, Title III
authorizes the Treasury Department, within six months (180 days) to issue regulations on the
due diligence, procedures, and controls to be exercised by domestic banks and other financial
institutions under the new authorities granted by the Act. Some of those regulations have
already been described.
Under another provision, the Treasury Department is given authority to issue, within 120
days or four months of the Act’s date, regulations to encourage further cooperation among
financial institutions, regulatory authorities, and law enforcement authorities, with the specific
purpose of “encouraging regulatory authorities and law enforcement authorities to share with
financial institutions information regarding individuals, entities, and organizations engaged in
or reasonably suspected of engaging in terrorist acts or money laundering activities.”1 These
regulations can require a domestic financial entity to designate a person to monitor accounts
and to receive and share such information, under established standards and with certain
restrictions as to use of the information. Financial institutions would not be liable for use or
sharing of account information within these described purposes.
Certain regulations authorized by these provisions were announced by the Treasury on
February 26, 2002. As described by the Treasury, the regulations “seek to utilize the existing
communication resources” of FinCEN to “establish a link between federal law enforcement and
financial institutions for the purpose of sharing information concerning accounts and
transactions” that may involve terrorist activity or money laundering. Under the proposed rule,
as described by the Treasury, “federal law enforcement will have the ability to locate accounts
of, and transactions conducted by, suspected terrorists or money launders by providing their
names and identifying information to FinCEN.” The FinCEN office will then provide that
information, electronically and by fax, to financial institutions “so that a check of accounts and

1. USAPA §314.

64
 Part II: The USA PATRIOT ACT — Titles I Through III

transactions can be made.” If “matches” are found, law enforcement “can then follow up with
the financial institution directly.” This allows FinCEN to be a generalized clearinghouse and
informational reporting center by and for all United States financial institutions.
Another related regulation, issued on the same day and effective when published, allows
for certain financial institutions to share information between themselves to identify and report
suspected terrorism and money laundering. Once notice of doing so is provided to the Treasury,
by means of a yearly certification, “financial institutions are free to share such information
amongst themselves solely for the purpose of identifying and reporting to the federal
government such activities.” Procedures to protect account confidentiality are to be described
and followed. (See Treasury Department news release PO-1044). However, as the Rule states,
financial privacy standards (Right to Financial Privacy Act, 12 U.S.C. §3402 et seq.) do not
preclude a bank from providing to the government the name or other identifying information as
to any person, corporation or account suspected by the bank to have violated any statute or
regulation or been part of an illegal act — which would include money laundering. The
information to be shared, including this sort of account data, can be provided to FinCEN by a
bank through secure websites.
These procedures, standards, and regulations do not affect the federal government’s other
law enforcement abilities or authorities concerning financial institutions — considerably
enhanced by the “special measures” provisions of Title III. Again, the information sharing theme
of the USAPA is being carried forward on many fronts through federal government regulations
and policies being developed under the Act.
The “reasonable suspicion” under Title III prompting investigation or authorizing a
demand for information would be determined by Treasury or other federal investigators, on
their own. There is no description in this part of Title III about the factors to be considered in
deciding what is “credible evidence” that a person, entity, or organization is engaging in
terrorist acts or money laundering activities. It appears that this determination can also involve
United States citizens, entities, or groups.
In a most startling part of Title III’s description of these regulations to be issued, they are
to include standards for investigating non-profit or non-governmental organizations in the United States
which may be involved in providing financial assistance to terrorist organizations, even if the organizations are
“unwittingly involved.” This could mean that federal authorities could investigate a non-profit
organization’s finances and could continue do so, even if the organization denies any
involvement with terrorist activities. Federal authorities could decide that such denials need
not halt their investigation.1 It is not known how detailed the information will be that banks are
to provide to federal investigators concerning financial transactions of non-profit organizations.
This is an investigatory area yet to be explored and, once again, operating without any judicial
or legislative supervision.
Regulations also are to cover investigations into links between international narcotics
traffickers and foreign terrorist organizations and the extent to which these groups engage in
“joint activity” or “cooperate with each other in raising and transferring funds.” (USAPA
§314(a)(2)(B)). Certainly this language in Title III has to do with the well-publicized link
between paramilitary organizations in places like Afghanistan and the millions of dollars in
revenue generated by narcotics-related activities there. However, that language also could be
interpreted to include just about anywhere in the world where terrorist organizations operate
from the same country or region as do drug traffickers, even if the links are not as well
established. Pacific Rim countries, such as the Philippines, would be one example.

1. USAPA §314(a)(2)(A).

65
 No Greater Threat

As mentioned, these regulations are to require that each domestic financial institution
designate one or more persons to “receive information concerning and to monitor the accounts
of” individuals, entities, and organizations identified as terrorist organizations. (See USAPA
§312, and also §314(a)(3)(A), §352). The regulations would establish “procedures for the
protection” of shared information — that is, to keep the information and its sources as secret as
possible, especially from the targeted groups and individuals. This means that all domestic
financial entities (presumably not all bank branches) either will need to hire or will need to
designate a bank officer to receive and manage such sensitive information. The general public
will need to assume that such a person will have the background, training, or experience to
treat this information properly and manage it effectively.
The general regulations proposed by the Treasury on February 26, 2002, and the
information-sharing regulation already in place on that date, address most of these
requirements. Further regulations will only make it more clear that banks and the federal
government will become investigative partners in monitoring accounts, identifying customers,
sharing information, developing procedures, reporting suspicious transactions, tracking
customer information, and many other activities relating to banking and financial matters
covered by Title III.
Title III declares that financial information obtained through these investigative activities
is to be used only for “identifying and reporting on activities that may involve terrorist acts or
money laundering.” However, the Act does not state how long the information may be kept in
investigative files and the USAPA’s definition of terrorist activities is very broad.

As is already a consistent theme throughout the PATRIOT Act, any financial institution
keeping records or reporting information as required under the Act or due to federal investi-
gative efforts undertaken under the Act is protected from any civil liability. This includes
protection “for any failure to provide notice” to the targeted person or group that financial
information has been passed on to investigators.1
Title III requires a semiannual report from the Treasury Department to be sent to
financial institutions on the results of investigations and “patterns of suspicious activity.”
Supposedly, this will provide greater assistance to them in giving investigators information.
To conduct investigation and law enforcement into money laundering and other illegal
actions indicating terrorist activity on various financial fronts, the federal government has
established several new or enhanced task forces and other offices. A strategic information
operations center in the FBI is a central location for all information obtained by these task
forces as well as from other state, local, or federal investigation into terrorist activity, including
IRS criminal investigation agents. More than 30 special joint terrorism task forces have been
created between various federal, state, and local law enforcement agencies around the country.
General anti-terrorism task forces have been established in each judicial district under
the authority of the Justice Department. These task forces are to be a conduit of information
about suspected terrorists between various federal and state agencies. Information about
terrorist networks obtained at the federal level is sent through these task forces to local police
officials, to help monitor any local activity by these networks.
Operation Green Quest is located within the Treasury Department and is a “multi- agency
initiative” to target sources of funding for terrorist organizations. It would work with the Office
of Foreign Assets Control (OFAC), in addition to the new Foreign Terrorism Asset Tracking
Center (FTAT) which was established by the USAPA and is part of OFAC. (OFAC will be

1. USAPA §314(b).

66
 Part II: The USA PATRIOT ACT — Titles I Through III

mentioned again, shortly.) While not as visible as might be other anti-terrorism offices or
activities of the Department of Justice, FBI, or Treasury Department, these offices are
comparably as powerful and as significant, especially in their investigative powers. Broad
definitions in the USAPA ofkey terms including "domestic financial institution," "money
laundering," and "material support to terrorism" bring the investigative activities of these offices
to the forefront of the government's domestic anti- terrorism efforts. The spotlight is not often
directed to these investigations until they result in high-profile arrests, frequently for "material
support" charges (those arrests frequently have resulted in convictions). Title III, and the
investigative activities connected to it— which involve these as well as other government
agencies— simply cannot be overlooked as a substantial enforcement aspect of the USAPA, as
much, if not more, than Title II.

Also, High Intensity Money Laundering and Related Financial Crime Area (HIFCA) task
forces have been established in certain regions, composed of federal, state, and local law
enforcement authorities and other officials. HIFCA task forces are to concentrate law
enforcement activity at various governmental levels, especially in high intensity money
laundering areas. Specific HIFCA task forces have been established in New York/New Jersey,
Chicago, San Francisco, Los Angeles, Texas/Arizona, and San Juan, Puerto Rico (although not
all task forces operate at the same time or for any given time frame). Not surprisingly, HIFCA
task forces when they are in operation work with drug trafficking task forces (HIDTA) and
with organized crime drug enforcement task forces (OCDETF).
USAPA Title III therefore continues the themes of Titles I and II in moving forward
aggressively in all areas of investigation, surveillance, information sharing, tracking, law
enforcement, and other related activities concerning a wide variety of financial matters, money
laundering concerns, specified bank accounts, and particular bank customers. Under Title III,
regulations, policies, and law enforcement activities, financial institutions are virtually made a
part of an over-arching, complex, and comprehensive investigation and law enforcement
strategy.
**Special note: In some respects, Title III builds on existing federal requirements relating to
its concerns. The OFAC list, FATF lists and documents, suspicious activity reports, money
laundering investigations, and cooperation by financial entities with federal investigators and
regulators, already existed. But Title III expands these requirements to a significant degree
never before experienced in American financial circles. Title III’s requirements, special
measures, minimal and enhanced due diligence, and new regulations usher in a new era of
activity and involvement between the federal government and domestic financial
institutions.**
It may seem to many that Title III should not be considered burdensome or ominous and
in any case is necessary. Money laundering or other financial means of support for terrorist
activity is an immediate law enforcement interest. Most of Title III’s requirements concern only
foreign nationals. A “private banking account,” for example, must have a seven-figure balance
and be opened or held by a “senior foreign political figure” to be singled out for special scrutiny
under USAPA and Treasury requirements. Yet the expansive involvement of the federal
government into domestic and international banking must be carefully watched, especially
since there is no provision for court review of any of it, before or after the fact. Also, many of
Title III’s provisions are not restricted to foreign nationals. Also, with investigations in this
respect related to “terrorism” and with “terrorism” given such a broad definition, there are few
limits to the kinds of investigations Title III will permit, whether they concern foreign nationals

67
 No Greater Threat

or not. Further, and of equal concern, how this pervasive investigatory atmosphere will affect
legitimate international financial transactions and business dealings is yet unknown.

3. Other Prohibitions and Money Laundering Crimes. A bank’s use of “concentration accounts”
also will be affected by Title III. This provision notes that the Treasury Department “may” issue
regulations (no date set) on how concentration accounts are managed.1 These regulations, if
issued, are expected to be no less detailed than regulations already proposed or in place
regarding private banking accounts, correspondent accounts, and information sharing.
Under Title III, “foreign corruption offenses” are now a money laundering crime. These
are foreign offenses which in turn can be the basis of a federal money laundering prosecution.
Widening the definition from prior law as to narcotics, bank fraud, and specific crimes of
violence (murder, kidnapping, robbery, extortion), these crimes now also include: any crime of
violence, bribery of a public official, theft, embezzlement, misappropriation of public funds,
certain smuggling violations including importing firearms, and computer fraud and abuse. By
adding these offenses, Title III allows for prosecution of any person who conducts a financial
transaction in the United States involving the proceeds of any such foreign offense, if done with
the required intent (no intent is required if the transaction involves more than $10,000). Also, it
will now be an offense to send money from any source into or out of the United States with the
intent to promote one of these foreign offenses.2

4. Forfeiture and Other Enforcement, Increased Penalties. If investigations are suc-cessful and
terrorist financing accounts are identified, what is to be done with these accounts? Title III
includes tremendously broad forfeiture and seizure provisions. Some of the most exacting and
complex sections of the entire PATRIOT Act include Title III provisions involving court
jurisdiction, summons, information, seizure, and enforcement activity over banking records and
accounts targeted or identified by federal investigators. These powers are spelled out in
Sections 316 through 320 of Title III. The level of detail in these provisions can only be
summarized here.
Asset or property forfeiture now can be imposed through the new authority given to the
President by Title III’s amendment to the International Emergency Economic Powers Act. This
forfeiture power is now the same as the power that previously could be exercised only through
the Trading with the Enemy Act, which required among other things, a formal declaration of
war. This forfeiture authority tracks similar authority granted the President by Title II. Under
the amended IEEP, if the United is engaged in “armed hostilities” or has “been attacked by a
foreign country or foreign nationals” the President can exercise these new powers to “confiscate
any property” within United States jurisdiction “of any foreign person, foreign organization, or
foreign country” that has planned, authorized, aided, or engaged in such hostilities.
As was mentioned concerning this similar forfeiture power in Title II, such a broad power
to seize “any property,” even if was not used in committing the crime and was not obtained by the financial
proceeds of the crime, is similar to the ancient “forfeiture of estate” or “corruption of blood”
practices outlawed in the Constitution and by the first Session of Congress. These confiscation

1. USAPA §325, amending 31 U.S.C. §5318(h).

2. See Department of Justice “Field Guidance on New Authorities (Redacted) Enacted in the 2001
Anti-Terrorism Legislation,” discussing USAPA §315. As the DOJ Guidance states, the additional offenses
“makes it possible to prosecute any person who conducts a financial transaction in the United States
involving the proceeds of such offense” with the requisite intent or with no intent if more than $10,000 is
involved. (See 18 U.S.C. §1956(a)(2)(A) and §1957).

68
 Part II: The USA PATRIOT ACT — Titles I Through III

powers are extensive and also do not require any “probable cause” finding prior to seizure or
any court involvement.
There is a provision for court challenge or review of the confiscation, and defenses may be
presented that the confiscation is not allowed by any law or that the owner of the property is an
innocent owner. However, in a court proceeding involving such a challenge, the government can
introduce otherwise inadmissible evidence if the court finds that complying with the standard
evidence rules would jeopardize national security (USAPA §316(b)). The chances for success in
any such court challenge must be rated as low.
Federal jurisdiction over these funds is expanded by Title III even to include swift
enforcement of foreign judgments.1 Previous law did not provide for a means for a United States
court to preserve property in the United States that could be subject to forfeiture to satisfy the
foreign judgment. Title III allows for a United States court to issue a restraining order over the
property, either before or after United States investigators or prosecutors receive the foreign
judgment itself. The person contesting the forfeiture cannot point to any similar challenge being
made to it in the foreign court as a means to delay court action here. The United States court
could proceed, so any legal challenge to the seizure of property in the United States must be
taken here — and supposedly would not be affected by foreign court determinations of a similar
legal challenge to the judgment there. The United States court can issue a pretrial restraining
order over the domestic funds. The foreign judgment can be enforced regarding any violation of
foreign law that, if committed in the United States, would be a basis for a forfeiture order.
This more powerful language for United States courts relates to some degree to “long-arm
jurisdiction” provisions over foreign money launderers in Title III. Under Title III, the federal
government has a claim in a foreign country against a foreign bank involved in money
laundering, bringing that foreign bank into the jurisdiction of a United States federal court.
This claim also can be advanced against a foreign person in a foreign country who is subject to a
forfeiture order but has not turned over the property to be confiscated and has made use of it
instead.
Federal jurisdiction also is increased over foreign currency activity which is a violation of
existing federal currency or money laundering statutes. Forfeiture of funds in an interbank
account, such as a correspondent account, is authorized.2 So, if a forfeiture is ordered of an
account in an offshore office of a foreign bank that also has offices in this country, the forfeiture
can be exercised by substituting the funds in the domestic bank correspondent account, up to
the value of the funds in the foreign account involved. The funds deposited into the foreign bank
are “deemed” to have been deposited into the correspondent account, allowing seizure of
correspondent account funds. The money in the domestic account does not have to be traceable
to any offense that may have resulted in the money that is present in the foreign account.3

1. USAPA §323, amending 28 U.S.C. §2467.

2. USAPA §319, amending 18 U.S.C. §981.
3. The DOJ Guidance on this Section (§319) notes that foreign criminals often deposit funds derived
from crimes committed in the United States into foreign bank accounts, such as by depositing the funds
directly into the correspondent account that a foreign bank has at another bank in the United States. When
the federal government attempts to seize that money, the foreign bank asserts an “innocent owner” defense
to block the seizure. With the USAPA amendment, “if a drug dealer deposits funds into a foreign bank that
has a correspondent account in the United States, the government can now seize and bring a forfeiture
action against an equivalent sum of money in the correspondent account, regardless of whether the money
in the correspondent account is traceable to the foreign deposit, and without having to be concerned with
the application of the fungible property provisions of 18 U.S.C. §984.” The “owner” of the funds is now
deemed to be the person who deposited the funds, not the foreign bank. Therefore, only the original depos-
itor would be able to challenge the forfeiture action.

69
 No Greater Threat

In certain instances, a federal court can impose a restraining order against a bank account
or other property in the United States held by the targeted person or a defendant which would
be used to satisfy a judgment. Investigators may seek a federal court order appointing a receiver
for certain identified funds. The receiver would have a legal status equivalent to a prosecutor
and would have the authority to take control of all assets so identified to pay a civil judgment in
a civil action brought by investigators or to meet a criminal penalty if the investigation results
in a criminal case.1
That is not all. If a criminal defendant is suspected of transferring funds to try to avoid
seizure, forfeiture, or freezing of assets, the court can order the defendant to “repatriate” those
funds pending trial or face contempt of court or increased sentence. Note that given the high-
level accounts Title III is targeting, these funds to be “repatriated” could amount to millions of
dollars. A defendant can be ordered to return property located abroad and can be ordered to
forfeit “substitute property” if the property being sought has been placed outside the court’s
jurisdiction, has diminished in value, or has been transferred or sold to another.2 This also
includes narcotics offenses that might involve activities which would be “an offense against a
foreign nation.”3 A defendant who does not cooperate with these repatriation procedures can
face an increase in possible sentence.4
There are other provisions allowing for forfeiture of any proceeds of an offense and any
property used to commit any offense in the expanded list of foreign crimes, if the offense would
be a felony if committed in the United States. This is a further expanded forfeiture provision.
The Act also tightens provisions concerning a corporation which may own certain
property of a defendant that could be subject to forfeiture, but which asserts an “innocent
owner” defense even though the corporation itself is owned or controlled by the defendant.
Federal prosecutors previously have addressed these situations by showing that the
corporation is a shell controlled or solely owned by the defendant. The Act eliminates the need
for prosecutors to do so, by providing that a corporation cannot block forfeiture “if any majority
shareholder, or individual filing the claim on behalf of the corporation” is otherwise disqualified
from contesting the forfeiture.
Similar provisions set criminal penalties for attempting to “evade” a geographic targeting
order. These provisions apply as much to banks and financial institutions which do not comply
with specialized targeting or reporting orders issued by federal investigators authorized by
Title III, as they would apply to targeted individuals.5
Also, Title III gives a federal court jurisdiction over certain computer fraud even if
committed outside the United States.6 Even if the offense is committed in another country, if it
is done using an “access device” issued by a United States entity, such as a credit card, the
federal court can have jurisdiction over that offense, so long as the defendant transports,

1. The DOJ Guidance states that this receiver over assets can be appointed in three instances: 1)
where the assets are subject to civil penalty under existing Federal law (18 U.S.C. §1956), 2) where the
assets are subject to any civil or criminal forfeiture under other sections of federal law, 18 U.S.C. §981 or
§982, or 3) where assets are subject to a restitution order in a criminal case under 18 U.S.C. §1956 or §1957. It
adds, “This authority — both to enter restraining orders and to appoint receivers — appears to be limited,
however, to cases in which the court is exercising its long-arm authority over a foreign person.”
2. USAPA §319, amending 21 U.S.C. §853(e) and (p).
3. USAPA §320, amending 18 U.S.C. §981(a)(1)(B).
4. USAPA §319, amending Section 413(e) of the Controlled Substances Act (21 U.S.C. §853(e)),
adding new (4)(A) and (4)(B), stating:
5. USAPA §353, amending 31 U.S.C. §5321(a)(1).
6. USAPA §377, amending 18 U.S.C. §1029.

70
 Part II: The USA PATRIOT ACT — Titles I Through III

delivers, or transfers, within the United States, “any article” used to commit the offense, any
proceeds of the offense, or any property obtained by the offense.
**Special Note: Forfeiture actions by a governmental agency often severely affect the
person involved, with little recourse. In narcotics cases, the forfeiture can include any type of
tangible things including a house or a car, if it is suspected to be connected with the illegal
activity or to have been obtained through the proceeds of illegal activity. Title III does allow in
certain instances for a person to challenge the forfeiture action by filing a claim contending that
constitutional due process procedures were not followed, the property is not subject to
forfeiture, or the property owner is an “innocent” owner. This also is typical of forfeiture
procedures. But these challenges are seldom successful. As indicated, achieving success in these
legal challenges is extremely difficult.**
Continuing with Title III’s broad provisions, a domestic financial institution is required
to comply with “a request” by federal investigators or banking agencies “for information relating
to anti-money laundering compliance” by that bank. Within 120 hours after receiving that
“request,” the domestic bank is to provide or make available “information and account
documentation for any account opened, maintained, or managed in the United States” by the
financial entity.1 Supposedly, this provision is intended to focus on international accounts
which would be of special money laundering concern. However, the provision does not contain
that restriction.
Widely interpreted, this provision could mean that a federal investigator can, within 120
hours, obtain account information about any account whatsoever. Even if it were only
restricted to international accounts or accounts with offshore banks, the effect of this sort of
investigatory power upon normal business transactions or activities involving offshore banks
could be massive. Along the same lines, a foreign bank is to comply with similar account
information requests by federal banking authorities or investigators, especially as to
correspondent accounts.
Title III also authorizes federal investigators to serve a summons on a foreign bank for
account information about a correspondent account established by that bank in a domestic
financial entity.2 This summons can be served on the foreign bank under mutual assistance
treaties. To aid this process, a domestic financial entity is to maintain certain records for
correspondent accounts, including the name and address of a United States resident authorized
to accept legal service of process regarding the account (upon request by a federal law
enforcement officer, a domestic entity is to provide this information within 7 days). If the
foreign bank does not comply with the summons or does not take any action in the United
States challenging the summons, the domestic bank having the correspondent account
relationship with the foreign bank can be ordered by the Treasury Department or Justice
Department to terminate that correspondent account within ten days. If the domestic bank
does not do so, it can be assessed a civil penalty of $10,000 per day until the correspondent
account relationship is terminated. Supposedly, the penalty on the domestic bank would not be
enforced but is placed in Title III as a means of demonstrating to the foreign bank the
consequences of not complying with the summons.3
There are additional requirements for “concentration accounts,” which are also targets of
money laundering investigations. The Treasury Department may issue regulations that could
prohibit domestic financial entities from allowing clients to direct transactions through those
accounts, prohibit the entities from informing customers about identifying those accounts, and

1. USAPA §319, amending 31 U.S.C. §5318, under new §5318(k)(2).

2. USAPA §319, amending 31 U.S.C. §5318, at new §5318(k)(3)(A) to (3)(C).

71
 No Greater Threat

require domestic financial entities to establish procedures for documenting all transactions
occurring in concentration accounts (USAPA §325).
In addition, Title III increases penalties on financial institutions that participate in money
laundering or violate Title III’s money laundering provisions of Title III.1 Civil and criminal
penalties are increased to two times the amount of the transaction or up to $1 million.
Title III expands and increases criminal penalties for counterfeiting, doubling the
maximum penalties under existing counterfeiting statutes involving dealing in counterfeit
currency from ten years to twenty years.2 Maximum penalties for dealing in counterfeit foreign
currency now also are increased to twenty years. Maximum criminal penalties for actual
counterfeiting activity of United States currency using standard or electronic means are
increased from ten years to 25 years. And maximum criminal penalties for actual counterfeiting
activity of foreign currency using standard or electronic means are increased to 25 years.

5. New or Enhanced Requirements to Verify and Track Identity of Persons Opening or Maintaining
Accounts, Additional Regulations or Reports. In addition to the new re-quirements, special measures,
correspondent account information, overall account monitoring and information sharing
standards, and minimal or enhanced due diligence for certain types of accounts such as
correspondent or private banking accounts, and expected regulations on concentration account
requirements, Title III provides for further regulations to be issued by the Treasury Department
regarding verifying identities of new account customers at domestic financial institutions. At
some later unspecified date, the Department is to issue regulations identifying “minimum
standards” regarding “the identity of customers opening accounts at financial institutions.”3
These regulations would apply to any customer, whether or not a United States citizen,
opening any type of account in any domestic bank or financial entity.
Although no date is set for these regulations to be issued, they are to become effective one
year after Title III went into effect. Title III allows for the possibility that the regulations could
exempt certain types of accounts from these requirements.
According to Title III’s directive for these regulations, account identification process
would range from fairly standard methods of verifying identity to giving permission for a bank
to consult “lists of known or suspected terrorist organizations” which would be “provided to
the financial institution by any government agency.” That is, a bank officer, headquarters, or
even bank branch could have access to certain files of suspected terrorists. The bank would
cross-check those files against the name or identity of any person seeking to open an account in
a domestic bank.

3. DOJ Guidance on this provision (portion of §319) states: “Thus, if the government wished to
obtain records maintained by the foreign bank in its offices overseas, it would no longer be necessary to
seek those records pursuant to a mutual legal assistance treaty or other procedure that is dependent upon
the cooperation of a foreign government. Rather, the government could proceed by serving the subpoena,
issued by the Department of Justice or the Department of the Treasury, on the person the foreign bank is
required to designate to ‘accept service of legal process’ in the United States.” Again, this approach is
consistent with USAPA’s objective of streamlining investigative and surveillance procedures, eliminating
delays, and allowing for swift and unencumbered prosecutions.
1. USAPA §363. Under prior law, the Secretary could impose a civil fine or money penalty up to the
amount of the transaction or $100,000 and a criminal fine for violating the “suspicious activity” reporting
requirement was $250,000.
2. USAPA §374. Thus, analog and digital images used in counterfeiting are brought within prosecu-
torial reach, as well as tangible counterfeiting methods such as plates, stones, or other materials.
3. USAPA §326, adding subsection “(l)” to 31 U.S.C. §5318. This section is among the additions to
§5318 that are totally new.

72
 Part II: The USA PATRIOT ACT — Titles I Through III

These lists of suspected individuals certainly would include the already-available OFAC
list (issued by the Office of Foreign Assets Control, in the Treasury Department). OFAC
administers and enforces economic and trade sanctions against certain foreign countries,
terrorism sponsoring organizations, international drug traffickers, and other specific
individuals to be added to the list. (OFAC also enforces certain United States laws or
regulations involving financially-related international activity by United States citizens.)
“Blocked” persons or entities on the OFAC list can face controls on financial transactions or
freezing of assets in the United States.1 The OFAC international sanctions programs include
countries like Iraq, North Korea, Sierra Leone, Sudan, Cuba, and Liberia. Additions to the
OFAC list often are made by presidential directive, such as a 1995 Executive Order relating to
“terrorists who threaten to disrupt the Middle East peace process.”2 After the September 11
attacks, President Bush issued an Executive Order to block property and prohibit transactions
of various identified persons or entities linked to terrorism.3 However, names also can be added
to the OFAC list by the Treasury Department in consultation with the State Department and
the Justice Department, or by the State Department in consultation with these other
Departments.
The entire current OFAC list of blocked persons or entities is more than 50 pages of single
spaced type in three columns. It lists names of individuals, companies, and entities, including
aliases, from around the world, mostly Africa, South America, and the Middle East.4 A financial
institution is to check account activity (especially new accounts) against the names on the
OFAC list. Banks are required to block transactions and accounts as to any names on the OFAC
list.5
There may be another separate “control” list, issued by federal banking investigators and
regulators, containing names of persons or entities linked to terrorism investigations. Banks
would search their records and notify banking authorities if the names match any of those
records. There then could be a further investigation of the account and its activity. In addition,
there may even be other lists, such as sensitive watch lists for terrorists maintained by the FBI
or CIA, which now could be made available to financial institutions. The Act does not place a
limit on what sorts of lists can be provided to banks from what kinds of government agencies.
Under anti-money laundering enforcement, the Treasury Department is given authority
to issue, within six months, special regulations for banks and financial institutions to develop
additional, comprehensive, anti-money laundering programs (USAPA §326(b)). These
programs are to include, at a minimum: internal policies, procedures, and controls; designating
a “compliance officer” for the programs in banks and branches, instituting and implementing an
ongoing employee training program, and an independent audit to test anti-money laundering
programs.6 As indicated, those interim final regulations were published by the Treasury on

1. See regulations at 31 C.F.R. Part 595, “Terrorism Sanctions Regulations.”

2. See Executive Order 12947, January 25, 1995, at 60 Fed.Reg. 5079. That list included the Abu Nidal
Organization, the Democratic Front for the Liberation of Palestine, Hezbollah, Jihad, and the Popular Front
for the Liberation of Palestine. By additional Executive Orders, more names such as Osama bin Laden were
added to the list. See Executive Order 13099 (August 20, 1998).
3. Executive Order 13224, September 25, 2001, 66 Fed.Reg. 49079. The list of groups in this Execu-
tive Order includes (not all are listed) Al-Qaida, the Armed Islamic Group, Al-Jihad, the Salfist Group for
Call and Combat, the Libyan Islamic Fighting Group, the Islamic Army of Aden, the Al Rashid Trust, the
Wafa Humanitarian Organization, and the Mamoun Darkazanli Import-Export Company. Individuals
listed include Osama (Usama) bin Laden, Muhammad Atif, Sayf al-Adl, and Thirwat Salah Shihata.
4. See OFAC list as of May 15, 2002 (Specially Designated Nationals and Blocked Persons).
5. See the regulations and descriptions of what can be done with blocked accounts, funds that can be
transferred in and out of such accounts, and disposition of the accounts.

73
 No Greater Threat

April 23, 2002 (67 Fed.Reg. 21110). The requirements included, at a minimum, internal policies,
procedures and controls for ongoing compliance with Bank Secrecy Act requirements (as
amended by USAPA Title II), designation of a compliance officer, ongoing employee training
program, and independent audit functions to test programs put in place. These provisions and
regulations may well be a boon to independent audit agencies which can provide audit services
to domestic financial institutions which will be required to meet the standards.
A similar provision much more far reaching involves identity of foreign nationals opening
bank accounts.1 This is similar to the new requirements that are to be imposed by regulation
upon domestic banks.2 Within six months, the Treasury Department and federal functioning
regulators are to report to Congress as to recommendations for:
(1) determining the most effective ways for foreign nationals to provide domestic financial
institutions and agencies with appropriate and accurate information, comparable to that of U.S.
citizens, as to identity, address, and other information,
(2) requiring foreign nationals, before opening any bank account with a domestic bank, to
apply for and obtain “an identification number which would function similarly to a Social Security number or
tax identification number,” and
(3) establishing a system for domestic banks and agencies to “review information
maintained by relevant Government agencies” to verify identities of foreign nationals opening
accounts in domestic banks, that is, allowing banks to consult government lists such as OFAC
lists, control lists, watch lists, or other lists.
**Special Note: The new regulations (not to mention the account customer identification
considerations to be reviewed by the Treasury Department report to Congress, if such measures
also are imposed by later law or regulation) will fundamentally change the way in which the
federal government can track foreign nationals in the United States. Title III provisions
potentially already allow a common neighborhood bank on the corner potential access to
sensitive government information involving identity and activities of foreign nationals even
beyond the OFAC list. It is yet to be seen how widespread the effect of such a new system will
be. It also is not known how such tracking numbers would be assigned and the extent of the
system or administration required to make the tracking process effective and timely. Surely
discussion of it will begin in earnest when this required report is released.**
In addition to these regulations, Title III authorizes the Treasury Department, in consul-
tation with the Justice Department and federal banking, securities, and credit agencies, to
evaluate the activities conducted so far under Subtitle A of Title III. The report is to be issued 30
months after the USAPA became effective. The report is to make “recommendations to
Congress as to any legislative action with respect to this subtitle” as the Treasury Department
may determine to be “necessary or advisable.” This is another report which could generate
considerable discussion. What also is unknown is whether any recommended legislation
passed by Congress before Title III is inactivated (if that occurs) would also be inactivated.

6. USAPA §352. The compliance officer language is taken in part from then-existing 31 U.S.C.
5318(h). The Ballieu article notes that banks would do well to “revive your anti-money laundering policies
and procedures. Be aware that this must include a method to compare your customer information files
against the list of Specially Designated Nationals and Blocked persons provided by OFAC and other agency
lists. The use of software to run these checks may become part of these minimum standards.”
1. USAPA §326(b). How these minimum standards are to operate and the burdens they will place on
domestic financial institutions will await further development.
2. Some bank observers are noting that these various Title III provisions and expected regulations
appear to revive previous “Know Your Customer” (KYC) bank policies. See, for example, Ballieu article.

74
 Part II: The USA PATRIOT ACT — Titles I Through III

Following other similar provisions in Title III and in the Act generally, Title III gives
blanket immunity to financial institutions which provide information requested or required.1
Also immune are officers or employees of financial entities who require others to make
disclosures as may be necessary by federal government order, law, or regulation. The person or
entity which is the subject of the disclosure is not to be informed of the disclosure. This is in
keeping with the USAPA’s overall theme to increase and expand surveillance, investigation, and
information sharing and to limit civil or criminal liability for this activity as to federal officers or
investigators or as to private persons or entities providing or releasing information.
The scope of these Title III provisions is unprecedented. Most of these new bank
requirements and impending regulations would have been considered preposterous on
September 10, 2001. Now, a wide range of domestic financial entities are brought into the
information and investigatory process of federal regulators or officers looking into terrorist
organizations. It would also be likely that any information obtained through these processes
can be shared with other agencies under Title II’s broad information sharing provisions, if it
reasonably could be considered as “foreign intelligence information.”

6. Other Information Sharing Provisions and Regulations, Potential Involvement of IRS. As mentioned,
to take the investigative and law enforcement efforts even farther, Title III includes expanded
secrecy and reporting provisions regarding bank investigation information. A bank that
“reports a suspicious transaction” to federal authorities, either voluntarily or if required to do
so, “may not notify any person involved in the transaction” that it was reported. Federal investi-
gators are not to inform the targeted person or agency.2
In a most interesting provision, a financial institution may include in an employment
reference of a particular employee (“current or former institution-affiliated party”) information
as to any suspicions of that person’s involvement in money laundering or terrorist financing
activity, that is, “information concerning the possible involvement of such institution-affiliated
party in potentially unlawful activity.” The activity (or suspected activity) does not even have
to appear to be actually unlawful, just potentially unlawful. If the financial entity includes this
information in an employment reference requested by another financial entity, which would no
doubt end that person’s career in the banking industry, it does not have any civil liability to the
affected person, so long as the information was released without “malicious intent.”3 The
potential for abuse of this provision is also extreme, and may affect many a career in the
financial world.
The Act provides for reporting by stock brokers of suspicious activity and expands bank
secrecy provisions.4 These suspicious activity reports already are filed by other financial
institutions under existing federal law.5 The Treasury Department was to issue additional
proposed regulations, before January 1, 2002, requiring stock brokers and dealers to submit
these “suspicious activity reports.”6 Title III requires that the regulations were to be final by
July 1, 2002. Also, within one year after the enactment of the USAPA, the Treasury Department
is to report to Congress about implementing bank secrecy provisions to investment companies.

1. USAPA §351, amending 18 U.S.C. §5318(g)(3)

2. See §351(b), amending 31 U.S.C. §5318(g)(2); §355, §356.
3. USAPA §351, amending 31 U.S.C. §5318(g)(2) and USAPA §355.
4. USAPA §356. The provision requires that the Treasury publish proposed regulations by January 1,
2002, requiring brokers and dealers “to submit suspicious activity reports” under the USAPA act new
provisions (see new 31 U.S.C. §5318(g)).
5. See 31 U.S.C. §5318(g).
6. USAPA §351, amending 31 U.S.C. §5318(g).

75
 No Greater Threat

Another provision of special note is Title III’s requirement that the Treasury Department
report to Congress within six months “relating to the role of the Internal Revenue Service” in
administering the Bank Secrecy Act.1 This includes recommendations for possible transfer of
any IRS responsibility and authority under the Bank Secrecy Act to “other agencies,” which
might even mean involving the investigative authority of other agencies outside the Treasury
Department — such as the FBI.
Among the more notable provisions of Title III are information sharing and enforcement
provisions regarding any financial activity or any “report” issued by the Treasury Department or
other agency or banking institution under the Act. The Act provides that the Treasury
Department “shall” make information in a report filed under Title III available to a range of
agencies.2 These agencies include “any State financial institution supervisory agency,” any
United States intelligence agency, and any regulatory organization registered with the SEC or
with the Commodities Futures Trading Commission. The Act provides for specific record-
keeping by banks and financial institutions. Again, information sharing is an overall USAPA
theme.
In a very broad provision, Title III allows for a consumer reporting agency to furnish a
consumer report of a customer and other information in a consumer’s file to any number of government agencies.3
The agencies include “a government agency authorized to conduct investigations of, or
intelligence or counterintelligence activities or analysis related to” international terrorism.
Given the USAPA’s broad definition of terrorism, such an investigation would fit several
agencies, such as the FBI, CIA, NSA, and IRS, even the DEA and the ATF, given the PATRIOT
Act’s encouragement to investigate links between drug trafficking and international terrorism.
All that is required for an agency to obtain consumer information is a “written certifi-
cation” by a government agency that the information “is necessary for the agency’s conduct or
such investigation, activity, or analysis.” Once again, Title III is not interested in judicial
requirements or supervision. No court order is required for an agency to obtain this
information. In addition, the Act prohibits the consumer reporting agency from disclosing to
the consumer that the file has been requested and provided.
The Act further immunizes the consumer reporting agency from any civil liability for
disclosing the information, so long as the consumer reporting agency relied in good faith on the
certification by the requesting agency. Title III states that the consumer reporting agency
releasing the information “shall not be liable to any person” for making any disclosures.

7. New “FinCEN” Office in Treasury Department. To assist in the management of the information
likely to be gathered by these new investigative powers or heightened investigative policies
created by Title III, the Act adds a new Treasury Department office to implement the Financial
Crimes Enforcement Network.4 This Network already was established by the Treasury
Department in 1990. The FinCEN office is to be “a bureau in the Department of the Treasury.”
The enhanced FinCEN Bureau will have a director appointed by the Treasury Secretary. Title III
gives this Bureau budget authority to hire appropriate staff and acquire other necessary items.

1. USAPA §357. If the report indicates that IRS information processing or audit and examination
responsibilities should be transferred to another agency, the report is to include recommendations
concerning which agency should take on these responsibilities, “complete with a budgetary and resources
plan for expeditiously accomplishing the transfer.”
2. USAPA §358, amending Bank Secrecy Act at 31 U.S.C. §5319 and also 31 U.S.C. §5311 and
5318(g)(4)(B).
3. USAPA §358, amending Fair Credit Reporting Act, at 15 U.S.C. §1681u, and adding a new section.
4. USAPA §361, adding a new §310 to 31 U.S.C., renaming existing §310 as §311.

76
 Part II: The USA PATRIOT ACT — Titles I Through III

FinCEN already has been mentioned in the context of new Treasury department regulations
and FinCEN’s central role in gathering from, and disseminating to, various types of investi-
gatory information between law enforcement and financial institutions.
The authorities and duties given to this new FinCEN office by Title III are quite detailed.
They include:
— to establish a government-wide data service to store and coordinate data collected by
financial transaction investigations, other records and data maintained by “other federal, State,
local and foreign agencies” (that would range anywhere from a State banking agency to the CIA
to INTERPOL),
— to identify possible criminal activity and report it to appropriate federal, state, local,
and foreign law enforcement agencies,
— to support ongoing financial investigations and prosecutions and related proceedings,
including civil and criminal tax and forfeiture proceedings,
— to determine emerging trends and methods in money laundering and other financial
crimes,
— to support the conduct of intelligence and counterintelligence activities,
— to establish and maintain a “financial crimes communication center” to provide law
enforcement authorities with “intelligence information related to emerging or ongoing investi-
gations and undercover activities”
— to assist law enforcement and regulatory authorities in combating the use of informal
nonbank networks allowing funds transfers without sufficient records and to ensure
compliance with criminal and tax laws,
— to provide computer and data support and data analysis to the Treasury Department,
and
— to coordinate with financial intelligence units in other countries on anti-terrorism and
anti-money laundering activities.

The Treasury Department is authorized by Title III to set up operating procedures for this
new Office, including how this information is received, stored, analyzed, retrieved, and
distributed. For example, the “government wide data access service” and “financial crimes
communication center” to be established by FinCEN is to be capable of efficient transmittal of
information between government offices, useful cataloging of information, and “prompt internal
review” of suspicious activity reports made by banks and other financial entities required to
make those reports under Title III.1 There are to be new reporting requirements and a study as
to the overall effectiveness of the system. The Treasury is to establish guidelines as to who will
have access to FinCEN network information, limits on the use of the information, and how
“information about activities or relationships which involve or are closely associated with the
exercise of constitutional rights is to be screened out of the data maintenance system.” These
new guidelines are not yet known. But protection of constitutional rights does not appear to be
a strong interest in the USAPA. The development and operation of FinCEN under Title III
should be of paramount concern, as least as significant as the use of the FBI “Carnivore”
program regarding the Internet and e-mails, as authorized by Title II.
Title III mandates that FinCEN develop, among its programs, a “highly secure network”
for providing certain information to domestic banks and financial institutions. This “network”
would provide “alerts and other information regarding suspicious activities that warrant

1. USAPA §361, adding §310(c) to 31 U.S.C.

77
 No Greater Threat

immediate and enhanced security.” The network is to be set up within 9 months from the
effective date of the USAPA.1
Title III does not set any budget limit for this new Treasury Office. It simply states that
Congress authorizes “such sums as may be necessary” for FinCEN for fiscal years 2002, 2003,
2004, and 2005. The extent of those funds was not known, as of this writing, and would need to
be monitored through the congressional approval cycle of the federal budget.
**Special Note: Whether this Office would continue even if Congress does not re-
authorize Title III in 2005 is not clear. It is doubtful that Congress would pull the plug on such
an Office crucial to Title III investigations, once it is up and running, regardless of what
happens to Title III in 2005. Any action by Congress not to re-authorize Title III might include
an exception for FinCEN. If so, this new Bureau could continue in operation beyond 2005. This
also will be something to watch in 2005. (Again, joint resolution to invalidate Title III has been
eliminated by Intelligence Reform and Terrorism Prevention Act of 2004.)**

8. Federal Reserve Security, New Financial Reporting Requirements, Other Provisions. Title III also
provides for increased security for facilities in the Federal Reserve system. The Federal Reserve
Board can now authorize armed guards who would have authority to make arrests without
warrants for any federal offense committed on the grounds of any Federal Reserve Bank
facility.2 The Board is to issue regulations for this additional level of security, which the
Attorney General must approve. That would be merely a formality.
Also, in the money system and Federal Reserve System, Title III provides for increased
reporting requirements for transactions over $10,000. This includes “nonfinancial trade or
business” transactions — that is, transactions of almost any type. Title III makes it a crime for
any person to try to evade these reporting requirements.3
Title III expands these reports and requirements to “bulk cash smuggling” in and out of
the United States. This adds a new section to 31 U.S.C. Chapter 53, to be called 31 U.S.C. §5332,
creating a new criminal offense of knowingly concealing more than $10,000 and transporting it
in or out of the United States, or attempting to do so.4 Civil forfeitures are also authorized
under these provisions. That forfeiture could include imposing a money judgment against the
individual if the funds to be forfeited are not available and the defendant does not have other
funds to meet the forfeiture order. There are new provisions dealing with an illegal money
transmitting business and in currency reporting cases, with amendments that supposedly
clarify any problems or close loopholes in existing law.
As to coin and currency transfers and reporting requirements, Title III states that certain
currency transaction reporting being done under existing banking laws is not precise, and some
reports are being filed that are not necessary. That is, “some financial institutions are not
utilizing the exemption system, or are filing reports even if there is an exemption in effect”

1. USAPA §362.
2. USAPA §364.
3. USAPA §365, adding 31 U.S.C. §5331. Under 31 U.S.C. §5312, a “financial institution” subject to
these reporting requirements included business dealings like car sales, real estate sales, and casinos, and can
include any business or agency determined by the Treasury to engage in activity similar to a “financial insti-
tution.” The Treasury had authority to apply the reporting requirements to these other entities or transac-
tions, by regulation if it so wished. 31 U.S.C. §5313. This has not yet occurred, but USAPA provides even
wider authority, although it need not be exercised until Treasury issues the regulations.
4. USAPA §371, also adding 31 U.S.C. §5332. The DOJ Guidance suggests that under these new provi-
sions, forfeiture to be imposed for violation of bulk cash smuggling requirements should be 100% of the
amount involved, pointing to other similar forfeiture provisions involving other crimes, and the legislative
intent of USAPA. The DOJ is seeking complete forfeiture authority.

78
 Part II: The USA PATRIOT ACT — Titles I Through III

resulting in too many reports that are clogging the review system. The Treasury Department is
authorized to study ways to improve this situation, including expanding the exemptions, and is
to submit a report to Congress within 1 year with recommendations for legislative and adminis-
trative action.1
Under the coin and currency reporting requirements now imposed, including
amendments made by Title III, anyone involved in a trade or business who receives $10,000 or
more in coins or currency (including foreign currency) in a single transaction or in two related
transactions must file a report on the transaction with FinCEN. Such reports must include the
name and address of the person who presented the coin or currency, the nature and date of the
transaction, and other required information. These are broad provisions which have not been
strictly applied and the Act expands them even farther.

9. Civil Action as to Seizures, Anti-Corruption Provision. There are a few safeguards provided in
Title III for challenging seizures and forfeitures, aside from any existing means in Federal law.2
A person affected by such a seizure or forfeiture can bring an action in a federal court claiming
that the property is not subject to confiscation or that the person is an “innocent owner.” There
is no indication of how well received by federal courts these challenges would be, given the
tremendous political force of the PATRIOT Act and the current mood of the country. Usually,
however, civil challenges to seizures and forfeitures are not successful, given their history with
narcotics enforcement and investigations. This provision may appease those concerned with
the broad powers and regulatory authorities granted to federal agencies by Title III, but its
effectiveness is uncertain.
Title III also includes an anti-corruption provision. It sets criminal penalties for any
government official who “corruptly demands, seeks, receives, accepts, or agrees to receive or
accept anything of value” either personally or for another with respect to conducting financial
account investigations. The Act sets a penalty of 15 years in prison, and a fine of up to three
times “the monetary equivalent of the thing of value” (that is, any bribe) which was involved.
How corruption actually would be prosecuted under Title III will be another development to
observe closely.

10. International Cooperation. Title III has a separate provision seeking international
cooperation to trace the source of wire transfer instructions for banking accounts. The
provision includes information on wire transfers between the United States and other countries
(§328). That language reasonably could encompass wire transfer instructions worldwide. This
is expected to be a long term goal but the Treasury Department is required to take all
reasonable means possible to achieve it. The Treasury Department is to provide congressional
banking committees with an annual report on those efforts.
There is a similar provision seeking international cooperation in investigating money
laundering, financial crimes, and finances of terrorist groups.3 The Act includes other
provisions encouraging foreign cooperation with these investigations, including authorizing
United States support for loan funds sought by foreign countries who have assisted in these

1. USAPA §366(b).
2. USAPA §316. The DOJ Guidance states that the USAPA exempts confiscations from the require-
ments of the Civil Asset Forfeiture Reform Act of 2000. And see previous notes to §316.
3. USAPA §330.

79
 No Greater Threat

investigations.1 This would be utilized through the authority of an “executive director” of these
institutions who serves as the United States representative.2
Overall, Title III brings to the forefront a whole new level of federal investigation into
money laundering, financial transactions, bank information, and a range of financial activity.
Jurisdiction and enforcement powers are expanded. Federal enforcement of money laundering
and prohibited financial transactions is increased. It adds an entire series of new Sections to
existing federal statutes dealing with money laundering, bank reporting requirements, and
investigations. A host of new Treasury Department regulations are directed by the Act, many of
which have been issued, including sharing financial transaction information, new bank policies
on scrutinizing accounts including new accounts, new anti-money laundering programs for
financial institutions, and international enforcement activity.
There are new reporting requirements for stock brokers. The Treasury Department is to
report to Congress, within six months or on an annual basis depending on the type of report, on
the scope of these investigation and enforcement activities.
Thus, a new office or bureau in the Treasury Department is created or expanded
(FinCEN) with an open-ended budget; that Office will be in existence at least until 2005 and
possibly beyond. A new database will be set up to share information with almost any other
related federal investigative agency. Secrecy of information and investigation is mandated. Even
consumer reports can be obtained by nearly any government investigative agency, secretly and
without court order.
By any measure, Title III changes the landscape of banking in the United States. The new
reporting, investigative and various due diligence and financial institution policy requirements
for account monitoring and anti-money laundering, along with the requirement that Treasury
Department information be shared with other federal agencies — as well as the potential
imposition of “special measures” upon a domestic financial institution at any time or place —
added to the new regulations and the new FinCEN office, will have a dramatic effect on banking
policies and procedures through the country. When these various new regulations are issued or
become final — and many of them due 6 months from the date of the USAPA have been issued
or proposed, as already described — and then go into effect, this undoubtedly will be a different
banking atmosphere in the United States, even if Title III is inactivated in 2005.

***

PATRIOT Act Titles I through III would appear to be enough for anyone convinced that
powerfully expanded investigation, surveillance, and enforcement in criminal justice and
financial areas are imperative to stop terrorism. This assumes an interesting premise — that
more investigative, more surveillance, more encroachment, and more agency activity can stop
nameless violence. It also assumes that federal investigative agencies and federal financial or

1. USAPA §360.
2. These “international financial institutions,” as defined or listed by federal statute, are: the Interna-
tional Monetary Fund, the International Bank for Reconstruction and Development, the European Bank for
Reconstruction and Development, the International Development Association, the International Finance
Corporation, the Multilateral Investment Guarantee Agency, the African Development Bank, the African
Development Fund, the Asian Development Bank, the Inter-American Development Bank, the Bank for
Economic Development and Cooperation in the Middle East and North Africa, and the Inter-American
Investment Corporation. See 22 U.S.C. §262r(c)(2). Many of these institutions also have observer status at
the Financial Action Task Force on Money Laundering (FATF). As is noted in Commentary following this
Part and Part III, FATF and its member nations including the United States, have increased their moni-
toring and investigative activity with respect to terrorist financing and its various international aspects.

80
 Part II: The USA PATRIOT ACT — Titles I Through III

banking authorities or regulators did not already have enough power. Little accounting is made
of the fact that federal investigative bodies like the FBI, despite recent troubles, were hardly
inept on September 10. Little accounting is made of the fact that investigative powers were
already quite broad — denial by any federal court of a search warrant or electronic surveillance
application submitted for approval by federal agents was a rare event. Denial by the Foreign
Intelligence Surveillance Act Court of a surveillance or warrant application essentially was non-
existent.
Yet the tendency is strong to turn to these agencies for security in times of crisis. With
the PATRIOT Act, Congress has done so with almost reckless abandon. If a potential national
security state is to form in this country within the next five years, the PATRIOT Act will have
had much to do with it. And the review of the Act is not yet over. There are seven Titles to go.

***
Comment at Close of 2004
Title III: Permanent And Expanded
Developments since mid-2002 on regarding the USA PATRIOT Act have underscored
that this Title remains an extremely substantial part of the PATRIOT Act. Of immediate signif-
icance is the fact that this Title is now permanent. Through a provision in the Intelligence
Reform and Terrorism Prevent Act of 2004 (§6204), a Section in PATRIOT Act Title III (§303)
which would have allowed for Title III to be invalidated on or after October 1, 2005 by joint
resolution of Congress, was eliminated.
No less momentous is the expansion of Title III's scope. An expansion of the definition of
“domestic financial institution," the essential entities to which Title III is directed, was enacted
as part of an intelligence authorization bill for fiscal 2004 (signed in December 2003). Under
that expanded definition, a “financial institution” not only includes standard meanings (such as
banks, savings and loans, credit unions, trust firms, and the like) and currency exchangers, but
also now includes issuers or redeemers of cashier or traveler’s checks or money orders,
insurance companies, pawn brokers, travel agencies, telegraph companies, retail dealers of cars
or trucks or boats, gambling casinos with annual gross revenues of $1 million, jewelers, the Post
Office, and any other business designated by the Treasury Department “whose cash
transactions have a high degree of usefulness in criminal, tax, or regulatory matters.”

DOJ Commentary On Use Of Title II Authorities

Additional developments since the USA PATRIOT Act became law on October 26, 2001
have shown that the Administration, especially the Justice Department, intends to take full
advantage of the powers and authorities granted by Titles I through III. To the extent that
information about such investigations — which largely are secret — is known, Justice
Department agencies have continued to make aggressive use of the PATRIOT Act.
One telling example is the May 13, 2003, Justice Department response to a detailed letter
of April 1, 2003 by the Judiciary Committee of the House of Representatives (sent by
Committee Chair Rep. F. James Sessenbrenner, Jr. (R-Wisc) and by Ranking Minority Member
John Conyers, Jr. (D-Mich)), inquiring into Justice Department activity since the USA
PATRIOT Act. That DOJ response provides some relevant information on the Justice
Department's post-PATRIOT Act activities.

81
 No Greater Threat

In that response, the Justice Department said that following the PATRIOT Act, DOJ had
sought 113 emergency authorizations for electronic surveillance or physical searches under
FISA, as part of "the most extensive investigation in the history of the United States" following
September 11 attacks. It stated it has adopted new procedures to streamline the FISA process.
The Justice Department said that these and other investigations have led to more than 200
arrests since September 11.
The DOJ noted that to date it had sought and obtained delayed notification of specialized search
warrants, as authorized by Title II, 47 times. It has sought seizures through such warrants 15 times,
with that request granted in 14 instances. Those numbers surely have only increased in the
remainder of 2003 and in 2004. However, it will be noted that not all of these situations
involved terrorism investigation— at least one involved credit card fraud.
The Justice Department said that in situations of delayed notification of warrants which
are not to be search warrants except in special circumstances, it has sought delayed notification
of searches also. The Department said those special circumstances justifying a search included:
protecting the identity or safety of confidential informants, preventing removal of evidence,
seizing controlled substances.
For delays in warrant notifications, the most common delay has been 7 days, but have
been as short as 1 day and as long as 90 days. Courts have allowed delays of unspecified
duration, in a situation of a sealed indictment, until the indictment was unsealed. Extensions of
delay notice periods were sought 248 times (which includes several extensions of a single
warrant). Similar reasons were advanced by the DOJ for these delays. The Justice Department
said that no court has rejected a delay request.
The Justice Department response said various authorities under Title II have enabled it to
investigate and dismantle "terror networks" in the U.S.. The DOJ mentioned that nearly every
Section of Title II, that is, from Section 201 to Section 220 (with few exceptions), has been
useful — a strong indication that the Administration will press in Congress for repeal of sunset
provisions affecting various Title II Sections.
The Justice Department response addressed concerns raised about the authority granted
in Title II for investigators to obtain "any tangible thing." (Section 215). Civil liberties groups,
commentators, and advocacy organizations, especially those representing libraries and
bookstores, consistently have challenged that Section as permitting confidential inquiries by
federal agents into records of bookstore and library patrons. As mentioned, although the
PATRIOT Act does not specifically mention bookstores and libraries, Section 215 does mention
"books" as an example of information to be obtained under this authority.
The DOJ response minimized this concern, stating grand juries investigating crimes
"traditionally have had the power to issue subpoenas to all manner of businesses, including
libraries and bookstores." The response mentioned the Unabomber investigation, which the
Department said involved reviewing records at several University libraries, including the
University of Utah, the University of California, and a County library. According to the Justice
Department, Section 215 "simply provided that this investigative tool is also available for foreign
intelligence and terrorism investigations." The Department response also said Section 215
requirements for obtaining a court order for the government to obtain tangible items are more
strict compared to the total lack of court review when a grand jury issues a subpoena.
However, the DOJ did not mention that under Section 215, any court essentially is required to
issue the investigation order, so long as Section 215 conditions are met. Nor did the DOJ
response mention that under Section 215, obtaining this order does not require a showing of
probable cause (rather, it is more in the nature of a national security letter).

82
 Part II: The USA PATRIOT ACT — Titles I Through III

Under other PATRIOT Act (Title II authorities), the Justice Department has hired 264
new translators to support counterterrorism efforts, including 121 Arabic and 25 Farsi speakers
(Farsi is a language commonly spoken in Iran but used in other Arab countries).

Further Developments in Title III Authorities

As to Title III authorities, according to the Justice Department response to the House
Judicial Committee letter, authorities granted under Title III have "substantially benefitted"
terrorism investigations. The Department specifically mentioned Section 358, which allows
financial regulators to share certain financial information related to terrorism with intelligence
and criminal investigators. However, the DOJ did not mention what sort of information was
shared, how it was shared, with whom it was shared, and how the information is being retained
or for how long — all of the concerns that accompany such information sharing provisions
which appear throughout the Act.
Offering some general examples, the Justice Department stated numerous FISA
intelligence files were reviewed for possible use in criminal prosecutions. It noted one case in
Tampa, Florida ,in which arrests of members of a possible terrorist cell group (Palestinian
Islamic Jihad (PIJ)) were "largely based on electronic surveillance authorized pursuant to FISA
and conducted prior to the USA PATRIOT Act." The Justice Department said that sharing of
information in these intelligence files with criminal prosecutors allowed a wider scope of the
investigation and led to the indictments and arrests.
The Justice Department response pointed to various Title III authorities as examples of
increased availability of other investigative means to respond to terrorist threats. Title III
sections on money laundering and wire fraud were also mentioned, although only one of the
two investigations noted involved terrorism charges. These two examples were: a person in
Massachusetts eventually sentenced to 18 months in prison for providing funds to a terrorist
organization through a supposedly fraudulent foreign money transmittal firm and who had
wired $3 million from that account to the United Arab Emirates, and further investigation
concerning an attorney who already was under investigation for absconding with client funds
and who had relocated to a foreign country. Once again, this report indicated the concern
regarding use of PATRIOT Act authorities which this observer and others had mentioned,
which is use of the statute for government investigations of conduct that is not related to
terrorism.
With this expanded definition and broad authorities in Title III permitting government
agents to obtain records of any “financial institution” by a process which is not a court order
(and essentially is an administrative subpoena), vast amounts of information now are available
to the government without any type of court review. In fact, the basis for obtaining information
by this method itself was broadened under the PATRIOT Act (§505). The means for
government agents (particularly FBI or Treasury Department) to obtain highly private
information without a search warrant or court review, continues to increase.
A good deal of current federal anti-terrorism investigations are conducted under Title III
authorities. This includes a Department of Homeland Security program, “Operation
Cornerstone” (not included in the DOJ Response to the House Judiciary Committee inquiry,
part of the DHS Bureau of Immigration and Customs Enforcement (BICE or ICE) and involving,
among other areas, customs agents now part of DHS). This program initiates and coordinates
with other agencies on anti-terrorist financing. However, as indicated by available “Operation
Cornerstone” reports, its activity is not limited to anti-terrorism and include cigarette
smuggling, counterfeit merchandise, and seizures of property suspected to have been obtained

83
 No Greater Threat

through narcotics enterprises. Nevertheless, these investigations can be conducted under

federal prohibitions against "material support to terrorism" found elsewhere in the USA
PATRIOT Act (as well as in previous statutes, notably the Anti Terrorism and Effective Death
Penalty Act of 1996). Title III is emerging as a central feature of government anti-terrorism
investigation and prosecution.
Due to the central importance and reach of Title III, Congressional activity and public
concern over Title III must rise to a level comparable to, if not greater than, activity and concern
long underway — and continuing — regarding Title II. This has not yet occurred. As noted
elsewhere in this 2004 update, these efforts should continue even if the opportunity to
invalidate Title III by Congressional joint resolution on (or after) October 1, 2005—as the Act
had provided in §303—was eliminated by §6204 of the Intelligence Reform and Terrorism
Prevent Act of 2004 (signed December 17, 2004).
When the provision in Title III allowing Congress to invalidate it by joint resolution in
2005 was intact, this author encouraged early development of a strategy to encourage Congress
to enact the joint resolution—even if Congress would likely not do so, given certain opposition
by a recently re-elected Administration and the fact that Republicans control both Houses.
Indeed, any activity to restrict any aspect of the PATRIOT Act, including any resolution for
inactivating Title III, has little chance. Nevertheless, even though Title III is now permanent,
efforts to focus atttention on Title III are worthwhile in raising public awareness about the
pervasive effect of this Title and considering its overall impact.

Additional DOJ Commentary/Activity on the PATRIOT Act

For more discussion of the Justice Department position on the PATRIOT Act and what
the DOJ calls the "myths" surrounding the PATRIOT Act, see www.lifeandliberty.gov, a DOJ
website specifically directed to dispelling supposed misperceptions about the statute and
asserting the statute's necessity, effectiveness, and public support for it. The site is intended to
respond to various concerns about the statute raised by civil liberties groups and other
observers.
Another action by the Justice Department extolling the PATRIOT Act was a “report”
issued in July, 2004: “Report from the Field: The USA PATRIOT Act At Work.” This 29-page
report reviewed aspects of the PATRIOT Act and declared how important the Act is to Justice
Department investigations. The report concludes the Act “has played a vital role in the
Department of Justice’s efforts to preserve America’s system of ordered liberty for future
generations.” Yet, many of the Report's examples of investigations or prosecutions supposedly
assisted or made possible by PATRIOT Act provisions, did not involve terrorism. Of those
which did involve terrorism-related activity, many were investigations into alleged financial
support for terrorist groups or illegal money laundering.
Of additional interest and not to be overlooked, is Attorney General John Ashcroft's
whirlwind multi-city speaking tour in 2003 of inspirational talks to assembled law enforcement
audiences about the importance of the statute and proclaiming the Administration's anti-
terrorism commitment. Little advance information was made available to the public about this
tour, deliberately making it difficult for civil liberties advocacy groups to organizing response to
it. In 2003 and 2004, and certainly beyond, the Justice Department clearly perceives the need to
shore up support for the PATRIOT Act in the face of continued public criticism, a rare situation
indeed for an enacted federal law approved in Congress by overwhelming bi-partisan margins
in both the House and the Senate, and which has been in place for more than three years.

84
 Part II: The USA PATRIOT ACT — Titles I Through III

Selected Legal Developments and Court Decisions

Other legal developments have enhanced the Justice Department's abilities to proceed
under authorities in Title II and Title III. Decisions so far from federal appeals courts have
tended to side with the government's view of the extent of these Title II authorities, especially
the PATRIOT Act's expansion of FISA.
A notable example for Title II and its amendments to FISA is the distinction which had
been drawn between information obtained in investigating an agent of a foreign power (such as
in a terrorism investigation) through FISA warrants or surveillance, and evidence obtained for a
criminal investigation under more standard warrant or wiretap procedures. (For an outline of
that discussion, see existing Appendix 2-A). Previously, information obtained in a FISA investi-
gation could not be utilized in a criminal prosecution of that individual, that is, a "wall" was
deemed to exist between these types of information. That "wall" no longer exits.
After the PATRIOT Act, DOJ had revised certain FISA procedures (March 6, 2002, new
intelligence sharing procedures). These new procedures, among other things, prompted a rare
public decision from the FISA Court. That decision, issued May 17, 2002, criticized DOJ's
approach and guidelines, concluding they were too broad. The decision further noted that in 75
instances, information provided by FBI agents to the FISA court in support of FISA warrants was misleading—
which supposedly came to light through FBI admissions as to such conduct. The extensive
decision was directed at restricting or invalidating these new FBI procedures.
The Justice Department appealed this decision to the Foreign Intelligence Surveillance
Act Court of Review. In another rare public decision from this specialized appeals court which
rarely is called into service, issued November 18, 2002, the FISA Court of Review sided with the
government. (See 310 F.3d 717 (2002)). The FISA Court of Review, considering both the Justice
Department new policies and the assumed distinction between FISA-developed information
and evidence obtained by standard search and wiretap methods, upheld the new DOJ policies.
The Court declared there was no distinction in uses that could be made of information or
evidence obtained by either means. That is, FISA-obtained information could be used in a criminal case.
This view may seem to circumvent Fourth Amendment protections, if it can be said that
FISA investigations do not involve the same level of Fourth Amendment attention as investi-
gations through other search and wiretap methods. The FISA Court of Review decided
otherwise. It said, "Our case may well involve the most serious threat our country faces. Even
without taking into account the President's inherent constitutional authority to conduct
warrantless foreign intelligence surveillance, we think the procedures and government
showings required under FISA, if they do not meet the minimum Fourth Amendment warrant
standards, certainly come close. We therefore firmly believe…that FISA as amended is constitu-
tional because the surveillance it authorizes are reasonable."
The decision effectively eliminated any "wall" concerning the uses to be put of information
obtained in FISA investigation as opposed to other means of obtaining information for a
criminal prosecution. (References to the FISA Court's criticism of instances where FBI agents
submitted misleading information for FISA warrants was relegated to a footnote [See court
opinion at footnote 18]). The FISA Court of Review affirmed the FISA statute, as amended by
the PATRIOT Act, and also commented that it found nothing unconstitutional about the PATRIOT Act
— to the extent that the Court considered that issue. (This decision is also noted in Part V, in
the the Comment for 2004 and Expanded Commentary on Characteristic No. 3).
The Supreme Court declined to review the FISA Court of Review's decision. On March
26, 2003, the Supreme Court indicated civil liberties groups seeking to challenge the FISA
Court of Review decision and bring it to the Supreme Court, had not been a part of the case and

85
 No Greater Threat

so did not have legal standing to invoke Supreme Court review. This means the FISA Court of
Review's decision is firmly in place and represents the governing interpretation for using FISA-
obtained information in criminal prosecutions. (The Justice Department, in its May 13, 2003
response to the House Judiciary Committee letter, praised the FISA Court of Review decision,
stating the decision "finally permitted the coordination between intelligence and law
enforcement that is vital to protecting the Nation's security.")
Title II and Title III authorities will continue to be used extensively, and considerable
information sharing and cross-file review will continue to occur. The true scope or extent of
these investigations cannot be known to the public, given the level of secrecy involved.
The PATRIOT Act is fast becoming a fact of American life. Congressional efforts to
mitigate it so far have been unsuccessful. No court decision has struck the Act down. Law
enforcement agencies are quite involved in utilizing nearly every authority granted by the Act in
a wide variety of investigations. Truly, when it comes to the government's use of the PATRIOT
Act, there is no end in sight.

APPENDIX 2-A
For the Foreign Intelligence Surveillance Act of 1978, see 50 U.S.C. §1801 and following.
For general discussion of FISA and its background, see Note, The Foreign Intelligence Surveillance
Act: Legislating a Judicial Role in National Security Surveillance, 78 Mich.L.Rev. 116 (1980). Prior to the
Act, federal courts had found that the Executive Branch had constitutional authority under
Article II to conduct warrantless foreign electronic surveillance. See United States v. Butenko, 494
F.2d 593 (3rd Cir. 1974), cert.den. 419 U.S. 881, and United States v. Brown, 484 F.2d 418 (5th Cir.
1974), cert.den. 415 U.S. 960. FISA itself has received similar favorable treatment from federal
courts as to its constitutionality.
In United States v. Pelton, 835 F.2d 1067 (4th Cir. 1987), cert.den. 486 U.S. 1010, the Fourth
Circuit Court of Appeals ruled that the FISA was constitutional and did not violate the Fourth
Amendment. The Court stated that the “safeguards” included in the statute to ensure against
abuse of the surveillance powers it authorizes provide “sufficient protection” against violation
of any Fourth Amendment rights of anyone under surveillance through an FISA surveillance
order. For example, the surveillance order requires review by the FISA court, has a time limit,
and there are restrictions on the use of surveillance information. The Court also stated, in a
decision issued 14 years before the September 11 attacks, that governmental interests in
gathering foreign intelligence are “of paramount importance to national security” and may
“differ substantially” from the governmental interests involved in normal criminal investi-
gations.
A comparable approach to the FISA, also finding it constitutional, was taken by a Federal
District Court in California, in an opinion affirmed by the Ninth Circuit Court of Appeals. In re
Kevork, 634 F.Supp. 1002 (C.D.Cal. 1985), affirmed, 788 F.2d 566 (9th Cir. 1986). Also, Fifth and
Sixth Amendment challenges to FISA were turned aside by the District of Columbia Court of
Appeals. United States v. Belfield, 223 U.S.App.D.C. 417, 692 F.2d 141 (1982).
Similarly, a Federal District Court in New York, in United States v. Falvey, 540 F.Supp. 1306
(E.D.N.Y. 1982), decided that the FISA was “not overbroad” and did not violate the First
Amendment. The court determined the Act was constitutional. It also addressed and rejected
objections to FISA under the Fourth, Fifth, and Sixth Amendments. As to the Fourth
Amendment, for example, the court, noting other authorities, said: “When, therefore, the
President has, as his primary purpose, the accumulation of foreign intelligence information, his

86
 Part II: The USA PATRIOT ACT — Titles I Through III

exercise of Article II power to conduct foreign affairs is not constitutionally hamstrung by the
need to obtain prior judicial approval before engaging in wiretapping.” The only requirement is
that any search or seizure resulting from the surveillance be “reasonable.” 540 F.Supp. at 1311-
1312, and see fn. 15. The court noted that “obtaining foreign intelligence relating to international
terrorism” not only is an exercise of the President’s Article II authority but also relates to Article
VI responsibilities of the United States concerning treaties, especially international treaties on
terrorism investigation and prevention.
The court also found, consistent with other federal courts, that FISA does not violate the
Fifth and Sixth Amendments by requiring court consideration of a challenge to a FISA
surveillance order to be conducted ex parte and in camera — that is, a person challenging the FISA
order might not be able to examine all government documents or cross-examine government
witnesses. See Giordano v. United States, 394 U.S. 3ten (1969) (generally, pre- FISA decision), and
Taglianetti v. United States, 394 U.S. 316 (1969) (also generally). See McCray v. Illinois, 386 U.S. 300
(1967) (declaring the view that Sixth Amendment Confrontation Clause does not extend to pre-
trial matters and that right to public trial is not absolute in pre-trial proceedings such as
suppression hearings).
A similar Fifth Amendment challenge to FISA was rejected in United States v. Megahey, 553
F.Supp. 1180 (E.D.N.Y. 1982), aff’d without opinion, 729 F.2d 1444 (2nd Cir. 1983). For another
discussion on how FISA is an important statute in the surveillance of foreign nationals in the
United States, see United States v. Rahman, 861 F.Supp. 247 (S.D.N.Y. 1994).
One is given to wonder whether the same careful language can be applied to the sweeping
powers granted by the USAPA. Many surveillance or other information gathering provisions of
the Act do not require a court order. There is no limit or restriction to the use and sharing
between agencies of information obtained even in normal criminal investigations so long as that
information involves “foreign intelligence.” Nevertheless, for federal courts already to have
recognized that government interests in gathering such information are of “paramount
importance” to national security will make it unlikely that federal courts would be willing to
invalidate all or part of the USAPA on constitutional grounds, particularly those aspects of Title
II drawn from FISA or similar statutes.
Of interest as to current or likely lawsuits by civil liberties groups like the American Civil
Liberties Union to challenge the PATRIOT Act is the fact that a similar challenge to the FISA
was rejected by the District of Columbia Court of Appeals. ACLU Foundation of Southern California
v. Barr, 293 U.S.App.D.C. 101, 952 F.2d 457 (D.C.Cir. 1991). This judicial legacy of FISA makes it
unlikely that USAPA provisions patterned after it will suffer under judicial review.
But that remains to be seen. Other federal courts have made it clear that FISA survives
constitutional scrutiny because of its restricted approach to foreign nationals who may be
operating as agents of a foreign power against the United States, not ordinary criminal investi-
gations. United States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980) (when warrantless
electronic surveillance is conducted to obtain evidence of criminal activity under standard
domestic federal statutes, that evidence is not admissible at trial). Although the Ninth Circuit
affirmed the 1985 Kevork decision finding the FISA constitutional, it warned in another more
recent opinion that the FISA, to survive constitutional scrutiny, cannot be directed to the
investigation of ordinary criminal activity. United States v. Johnson, 952 F.2d 565 (9th Cir. 1992)
(FISA “is not to be used as an end-run around the Fourth Amendment prohibition of
warrantless searches”). If the USAPA extends FISA provisions into investigation of ordinary
criminal activity, and it is very evident that the Act can be interpreted and implemented in that
way, substantial portions of it may be struck down before the sunset deadline occurs (or

87
 No Greater Threat

evidence obtained in such a fashion and sought to be introduced in a criminal trial for violations
of other federal laws could be rejected by the court).

APPENDIX 2-B
Senator Patrick Leahy (D-Vt), Chair of the Senate Judiciary Committee, in remarks on the
bill at the time of the final senate vote on the Act, noted that the Bush Administration had
opposed the sunset provisions for Title II of the Act (to be discussed). He noted that among the
additions to the Act by Congress in the short time the bill made its way through the House and
Senate were the provisions against cyberterrorism, humanitarian relief to immigrant victims of
the September 11 attacks, provisions regarding money laundering, and a measure to fight
terrorism against mass transportation systems.
However, Senator Leahy also cautioned against the Act’s overreaching provisions in
investigation and surveillance. He quoted Benjamin Franklin: “If we surrender our liberty in the
name of security, we shall have neither.” Sen. Leahy said that the surveillance provisions in the
Act called for “vigorous legislative oversight” so that Congress “will know how these legal
authorities are used and whether they are abused over the next four years.” Whether and to
what extent Congress would do anything with any such knowledge is unclear. It is extremely
doubtful that Congress would be willing to inactive ahead of schedule some of the stronger Act
provisions which are to sunset.
Sen. Leahy pointed out that information sharing among agencies also must be watched.
He noted that under the National Security Act of 1947, which established the Central
Intelligence Agency, the CIA is not to have any police, subpoena, law enforcement power or
internal security function. Yet the new information exchange provisions in the PATRIOT Act
“make fundamental changes in the rules for the handling of highly sensitive personal, political
and business information acquired for law enforcement purposes.” These disclosures and
information sharing can include a broad range of information “about United States persons,
including citizens, permanent resident aliens, domestic political groups, and companies
incorporated in the United States.”
Sen. Leahy also noted that it is routine for surveillance and investigation to be conducted
and grand jury testimony to be given which does not result in a criminal prosecution. That
information still can be shared if it meets the Act’s meaning of “foreign intelligence.” He said,
“Federal criminal investigators have enormous discretion, with little statutory or constitutional
guidance for how they interview people, conduct physical surveillance, recruit informants in
organizations, and request access to records they consider ‘relevant’ to an investigation. All that
information would be eligible to be disseminated widely within the government, beyond the
purposes of the criminal investigation, if it meets the definition of ‘foreign intelligence’ or
`foreign intelligence information.’”
The remarks also noted the concerns expressed 25 years ago by the Senate Select
Committee to Study Governmental Affairs (headed by Sen. Frank Church and often called the
“Church Committee”). It investigated Cold War abuses of investigatory powers by federal
agencies, including the FBI’s COINTELPRO program which investigated and sought to disrupt
members of civil rights and antiwar groups, including the notorious, almost personal campaign
by then FBI-director J. Edgar Hoover against Rev. Martin Luther King, Jr. Senator Leahy said,
“The scope of intelligence gathering swept up environmental groups, women’s liberation
activists, and virtually any organization that mounted peaceful protest demonstrations.”
Among the results of the Church Committee legislative recommendations was the Foreign

88
 Part II: The USA PATRIOT ACT — Titles I Through III

Intelligence Surveillance Act of 1978, which required court orders for domestic national security
electronic surveillance.
Sen. Leahy criticized the broad authorities for sharing information among government
agencies and officials, lack of judicial oversight (except for limited oversight in sharing of grand
jury testimony), and praised the inclusion of a provision allowing for a possible lawsuit against
the government for abuses of authority. However, his view was that many aspects of the
PATRIOT Act will face “difficult tests in the courts.”

APPENDIX 2-C
Established at the G-7 Summit in Paris in 1989 and located in Paris, the FATF interna-
tional agency concentrates on maintaining a coordinated international response to money
laundering. The FATF lists 31 member countries, including the United States. Other FATF
members include Canada, Mexico, the United Kingdom, most West European nations,
Singapore, Japan, and Australia. A variety of international financial agencies have observer
status with the FATF, such as the Inter-American Development Bank, the World Bank, the
International Monetary Fund, Europol, and INTERPOL. The FATF in 1990 issued a list of Forty
Recommendations for anti-money laundering efforts (revised in 1996). These recommendations
address criminal justice, financial systems, monitoring, and law enforcement.
Among FATF activities are reviewing internal laws, regulations, and procedures of other
countries concerning banking and finance. If the country does not have in place strong enough
measures to prevent, investigate, detect, or prosecute money laundering activity, the FATF
places that country on a list of “Non Cooperating Countries or Territories (NCCT).” These
countries have deficiencies in their anti-money laundering procedures or have not been willing
to cooperate in anti-money laundering programs. As of the NCCT list issued April 25, 2002,
these countries included (not all are listed): Dominica, Cook Islands, Egypt, Indonesia, Israel,
Lebanon, Marshall Islands, Myanmar, Nigeria, St. Kitts and Nevis, St. Vincent and the
Grenadines, the Philippines, and Russia.
After the September 11 attacks, at a meeting in Washington DC, the FATF incorporated a
program against terrorist financing into its overall approach. It has issued new international
standards on terrorist financing and will be issuing other guidance documents or recommen-
dations as its focuses its efforts on the topic.
In addition to or jointly with the Financial Action Task Force, at the urging of the United
States other international agencies and different countries have taken financial action related to
terrorism. According to available and recent Department of the Treasury information, the
United States with the European Union has taken “joint blocking action” on an additional list
that has been developed of 18 terrorists and supporters. These include groups which have not
engaged in any direct action or threat against the United States, such as the Sendero Luminiso
(Shining Path) Maoist-influenced rebel group in Peru, and the Basque Separatist Group
operating in Spain, the Basque Fatherland and Liberty (ETA), formed in 1959, which since 1968
has incorporated acts of violence as part of its campaign to establish a separate state in Basque
regions of Spain and France.
This action is part of an overall designation made in December, 2001 of 42 terrorist groups
and supporters. Under Executive Order 13224, the United States designated 21 persons
allegedly involved in terrorism in Europe. The Treasury Department said that on April 19, 2002
the G-7 countries “took the first multilateral joint action by designating nine terrorists and
terrorist financiers and one entity that support al-Qaida.” With a further action on May 2, 2002,

89
 No Greater Threat

“we have yet taken another step, along with our European partners, in our quest to dismantle all
groups that sponsor acts of terror in every part of the world.”
As of June, 2002, the Treasury states that it has blocked the assets of 210 entities and
individuals. 161 countries and jurisdictions have taken concrete action to block assets of these
groups, and $116 million in assets has been frozen. $34 million of that has been blocked
domestically in the United States. The remaining $82 million has been blocked by international
nations or agencies.
However, what also is emerging from this trend is a new tangential development in the
war on terrorism: a war against any “rebel” group opposed to an established government,
anywhere, to gain that government’s assistance in the United States’ own war on the al-Qaida
network. Soon the Tamil Tigers in Sri Lanka, Kurdish separatists in Turkey, pro-Muslim
factions in Algeria, armed nationalist groups in Chechnya, and Quebec nationalists in Canada
could be deemed “terrorists” in the same manner, with the entire financial and military power of
the United States, combined with its allies, coming down upon them.
If the United States continues in this approach of labeling rebel groups in a given country
as “terrorists” in order to add that country’s government to the US terrorism campaign, it could
be faced with serious political and logistical challenges. Those include assisting against often
intractable rebel struggles in many parts of the world and taking sides when it is not clear who
holds the moral high ground. International agencies would be crucial in making those
distinctions: for example it would have been less likely that East Timorese resisting Indonesia’s
attempt to control that island would be called “terrorists,” because Indonesia’s military action
against East Timor was internationally condemned. But these can be complex situations. Clear
examples may not always be easy to find. The often-violent situation going on in say, the
Chiapas region of Mexico, may not fit the “terrorist” epithet so neatly. The same question can be
asked of this process when it comes to other, more familiar situations such as the American
Indian Movement in this country.

90
PART III: THE USA PATRIOT ACT — TITLES IV THROUGH VI
The PATRIOT Act has radically altered search and seizure principles for investigation of “foreign intelli-
gence,” given permission for unrestricted information sharing between federal agencies, and brought an
entire list of domestic financial institutions fully within the investigative processes of the federal govern-
ment’s anti-terrorism efforts. Now the Act turns to treatment of foreign nationals suspected of terrorism
and other investigative techniques.

TITLE IV: PROTECTING THE BORDER

In PATRIOT Act Title IV, Congress addresses alien and immigration issues, especially
concerning terrorism and terrorism investigation. The reach of this Title is long, the security
measures imposed are new, and some of its provisions are unprecedented in American history. If
the potential for the United States to develop into a national security state was left in any doubt
after a review of Titles I through III, Title IV eliminates that doubt.
It already was mentioned that certain provisions in Title II are scheduled to sunset at the
end of December, 2005 and that Title III could have been inactivated in October 2005, if
Congress had so declared. (Again, this possibility of inactivating Title III was eliminated by the
Intelligence Reform and Terrorism Prevention Act of 2004.) The remainder of the PATRIOT Act has
no sunset or de-authorization limitations. All of Title IV, including new provisions dealing with
immigration and terrorist organizations, is permanent. This marks the beginning of all-
permanent PATRIOT Act provisions.
Each Title of the USAPA involves particular amendments to existing federal laws, based
on its overall topic. Title IV concerns immigration, and so amends or adds sections to two major
existing federal statutes on immigration, the Immigration and Nationality Act (INA) and the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA).
Title IV wastes no time in giving attention to border patrol and immigration enforcement.
The Canadian border receives particular attention. In addition, strikingly expansive and severe
immigration provisions related to terrorism are put in place.
1. New Canadian Border Security. In 2000 and 2001, there were reports of suspected terrorists
from foreign countries attempting or achieving entry into the United States through Canada to
carry out terror plots, so Title IV begins with a congressional response to that perceived threat.
It authorizes the tripling of Border Patrol personnel and facilities, Customs Service personnel
and facilities, and Immigration and Naturalization Service personnel and facilities at the
Canadian border.1 Title IV authorizes “such sums as may be necessary” to achieve these goals.
No target date is set in the Act for this tripling of personnel, but it supposedly is to occur quite
soon.
Also, Title IV authorities an additional $50 million each to the Customs Service and the
INS “for making improvements in technology” and acquiring “additional equipment” to monitor
the Canadian border. The Act does not state the nature of these technological improvements or
additional equipment. Only future developments in implementing Title IV will reveal how these
agencies will make use of this new authority and funding.
2. New Information Technology and Information Sharing, Reports or Regulations. Continuing with
the information sharing approach of Title II and Title III, considerable information sharing is

1. USAPA §402

91
 No Greater Threat

authorized by Title IV. To speed up and improve criminal background checks performed for
visa applications, the FBI is now required to provide the Department of State and the INS with
criminal history information, so that it can be determined whether a foreign national applying
for a visa has a criminal history in the FBI files.1 This information is to be updated periodically.
This information is to be used only for deciding whether to issue the visa.
As part of these totally new provisions, within four months from the October 26, 2001
date of the Act the State Department was to issue regulations implementing fingerprint and
other procedures to obtain this criminal background information. The regulations also are
supposed to protect individual privacy rights. But the extent of information sharing among
agencies authorized by the PATRIOT Act will greatly affect the extent to which any privacy
right can be protected. Also, within two years, the Justice Department and the State
Department are jointly to report to Congress on implementing these procedures.
New technology is authorized by Title IV to verify the identity of any visa applicant.
Within two years, the State Department, working with the Treasury Department “and other
federal law enforcement and intelligence agencies,” is to develop and put into practice “a
technology standard” to “verify the identity” of persons applying for a visa or seeking entry into
the United States under an existing visa. This new technology is to be directed to background
checks, confirming identity, and ensuring the person has not obtained the visa under an alias.
Whether such a new technology standard would involve biometric identification is unclear.
Generally, biometric identification (such as fingerprint, iris, retina, face, voice) requires that the
system already have such information on a particular individual for comparison.
This new standard is to be the basis for a “cross-agency, cross-platform electronic system”
which will establish a “fully integrated” means of sharing law enforcement and intelligence
information. The system will be available to all consular offices, all United States border
inspection points, and “all law enforcement and intelligence officers” determined by regulation
to be responsible for “investigation and identification” of foreign nationals admitted to the
United States under visas. Title IV requires that within 18 months and every two years
afterwards, the Justice Department, State Department, and Treasury Department are to jointly
report to Congress on the development and implementation of this new standard. Congress
provides a funding authorization to carry out these provisions, which means that Congress
would review and appropriate funds based upon a budget submitted by the agencies involved
to carry out these provisions.
In addition to these new technology directives, Title IV authorizes the potential
expansion of fingerprint identification technology to the INS or to other similar agencies.2 The

1. USAPA §403, amending 8 U.S.C. §1105. Information includes material from the National Crime
Information Center (NCIC-III), Wanted Persons File, and “any other files” maintained by the NCIC that
may be agreed upon by the Justice Department and the INS “for the purpose of determining whether or not
a visa applicant or applicant for admission has a criminal history indexed in any such file.” Also, the FBI is
required to provide periodic file updates at mutually agreed upon times. Title IV states that this access does
not entitle the State Department to the entire content of the criminal history record, but allows the entire
content to be available if State submits fingerprints and a processing fee to the FBI.
2. USAPA §405. The provision states that the Justice Department, in consultation with State, Trea-
sury, and Transportation, is to report to Congress on the feasibility of enhancing the FBI’s Integrated Auto-
mated Fingerprint Identification System (IAFIS) “and other identification systems (not described)” to
“better identify a person who holds a foreign passport or a visa and may be wanted in connection with a
criminal investigation in the United States or abroad, before the issuance of a visa to the person or the entry
or exit from the United States by that person.” This provision does not require that the targeted person
should have been charged or convicted with any crime, only that he or she should be “wanted in connection
with a criminal investigation.” This is a very broad area, but one which is unlikely to be challenged in the
courts.

92
 Part III: The USA PATRIOT ACT — Titles IV Through VI

Act allows for at least $2 million for this study (more could be available and appropriated by
Congress upon submission of an agency budget for the study). The study results are to be
reported to Congress, although no deadline is set.
3. Designation of Terrorist Groups and Organizations. Moving directly into treatment of
suspected terrorists either attempting to enter or residing in the United States, Title IV enacts
some of the most sweeping and far-reaching provisions ever to be approved by Congress. By far
the broadest provisions of Title IV, and perhaps the entire PATRIOT Act with the exception of
some of the investigative and enforcement provisions in Titles II and III, are these new
immigration provisions, including the new arrest and detention provisions as to suspected
aliens. Title IV amends the Immigration and Nationality Act and other similar immigration
statutes to add several new provisions or requirements. One need not be a foreign national to be
concerned about the reach of many of these provisions, which include the length of time an alien or foreign
national may be detained without criminal charge by the Justice Department and the limited extent to which
habeas corpus relief is available for these detained persons.
These provisions are in Title IV Subtitle B, “Enhanced Immigration Provisions.” The
statute defines “engaging in” a “terrorist activity,” and lists an entire series of actions within
that definition, borrowed in part from existing immigration law describing a wide range of
aliens in various situations or circumstances who cannot be admitted into the United States.
These definitions are separate from the definition of “terrorism” (that is, “domestic terrorism”
and the “federal crime of terrorism”) incorporated into the Act, but have overall bearing on the
extensiveness by which the Act views “terrorist” activity or groups. Since they relate to
immigration of aliens or treatment by the United States of aliens in this country, the provisions
are directed at foreign nationals rather than United States citizens. Yet they are still disturbing
in their scope.
For example, “terrorist activity” means any act unlawful in the country where it was
committed or that would have been unlawful if committed in the United States (that is, any
criminal act) and which involves hijacking or sabotage of “any conveyance” including an
airplane; use of hostages including threatening to detain, injure, or kill a hostage to compel a
third person to take some action; attacks and assassinations, or the unlawful use of firearms,
explosives, biological agents, chemical agents, dangerous devices, or nuclear weapons. A
“terrorist activity” also includes a “threat, attempt, or conspiracy” to do any of these acts.
As amended by the USAPA, borrowing from prior law, a person can “engage” in “terrorist
activity” if the person commits, or incites another to commit, any act that qualifies as “terrorist
activity” (as already described); prepares or plans “terrorist activity”; gathers information on
potential terrorist targets; solicits funds or anything of value to support terrorist activity or a
terrorist organization; solicits another for membership in a terrorist organization or
government or to engage in terrorist activity, and does any act which the person reasonably
should know affords “material support” for a terrorist organization. This “material support” can
be, in turn, numerous identified acts, such as: providing a safe house, funds, communication,
transportation, or training.
**Special Note: As mentioned, these definitions of “terrorist activity” and “engaging in
terrorist activity,” for Title IV purposes, do not expressly relate to the definitions in Title VIII of
“domestic terrorism” (new) or “federal crime of terrorism” (expanded). However, an alien in the
United States convicted of “domestic terrorism” or any of the crimes identified under the
“federal crime of terrorism” would surely be deported or removed under other immigration
provisions, aside from those described here, and could even be subject to USAPA’s mandatory
seizure and detention under the wide-ranging provisions of that statute (described below). So,
charge or conviction under those crimes, or under any federal or State crime for that matter,

93
 No Greater Threat

certainly would affect the status of an alien residing in the United States, even if that is not
expressly stated in Title IV.**
Under existing law, an alien is “inadmissible” if the alien has engaged in a terrorist
activity, is reasonably believed by a consular officer or by the Justice Department (especially
INS) to have engaged in or to be likely to engage in such activity, or has incited such activity
with the intent to cause death or serious bodily harm.
Linking these definitions, the USAPA greatly expands the definition of “terrorist organi-
zation” to include different types of groups so designated by federal authorities, chiefly the
Justice and State Departments. An alien also is inadmissible (as in prior law) if the alien is a
representative or member of a “foreign terrorist organization” (particularly as defined by prior
law).
Under the new language of the USAPA, an alien also is not admissible into the United
States if the alien: is a member or a representative of a “political, social or similar group” that has
espoused terrorism (not necessarily designated as a “terrorist organization”), has used a
“position of prominence” elsewhere to espouse or to support terrorism, or is the spouse or child of a
terrorist “if the activity causing the alien to be found inadmissible occurred within the last five
years.” This last description is subject to an exception provided by the Act.1 These definitions
interrelate with each other to form a solid wall preventing any alien who may fall under any of
these definitions from being admitted into the United States.
What is essential to the interlocking nature of these provisions, as amended by USAPA
Title IV (§411), is that the statute now defines three types of “terrorist organizations.”2 In prior
law, there was only one type. The different organizations and members or suspected members
are given slightly different treatment in Title IV, although as noted any of the “terrorist organi-
zations” qualify under the definitions of inadmissible aliens.
The first and most serious type of “terrorist organization” is one specifically so designated
by the State Department under existing Section 219 of the Immigration and Nationality Act (8
U.S.C. §1189). This was the original type of terrorist organization. Procedures for this terrorist
organization designation are described in §1189, in Title IV §411,3 as well as in any applicable
federal regulations. These groups are listed or noted in the Federal Register. Involvement with
this first type of terrorist organization is more serious. The statute does not permit any
“innocent involvement” defense.
The second type is a terrorist organization “otherwise designated” by the State Department
in what appears to be a new designation provided by Title IV. This designation would be made
“in consultation with or upon the request of” the Justice Department after a State Department

1. There is an exception for spouses or children if they did not know or should not reasonably have
known of the activity involved or if federal officials have “reasonable grounds to believe” that the spouse or
child (assuming the child is old enough to do so) has “renounced the activity.” This exception may be
humane, but it could also be used to pressure spouses of suspected aliens to provide information in order for
the INS or other agency to make such a finding and permit the person to enter the United States or remain
here.
2. USAPA §411(a)(1)(G), amending Section 212(a)(3) of the Immigration and Nationality Act (8
U.S.C. §1182(a)(3)), to add new clause (vi)(I) to (III), and §411(a)(2), adding new clause (F).
3. These are the Section 219 designations. See Title IV amending or including Section 219 of the
Immigration and Nationality Act (8 U.S.C. §1189(a). USAPA §411(c). See also 8 U.S.C. §1182(a)(3)(a)-(c) as
to individuals and 8 C.F.R. Part 204. Given the political climate and the extent of PATRIOT Act provisions
concerning aliens, it is evident that an alien found to be a member or supporter of a Section 219 terrorist
organization has virtually no rights. There appears to be no court review of or challenge to the designation
procedures expressed in the Act as to the second and third types of terrorist organizations or groups,
although the Act does not appear to eliminate the judicial review previously provided for as to Section 219
designations (first type of terrorist group).

94
 Part III: The USA PATRIOT ACT — Titles IV Through VI

“finding” that the organization engages in any of four specifically-stated “terrorist activities”:
committing or inciting to commit a terrorist activity (as defined in 8 U.S.C. §1182(a)(3)(B)(iv)
as amended), preparing or planning for terrorist activity, gathering information on potential
targets, or providing “material support” to “further terrorist activity.” As noted, the USAPA
describes several other forms of “engaging in terrorist activity.” But only these four identified
activities apply to an “otherwise designated” second type of terrorist organization. How this
“finding” by the State Department is made is not described in the Act. The evidence supporting
this finding is not detailed in the Act. The definition could apply to organization activities
inside as well as outside United States borders. This designation also is to be published in the
Federal Register. Formal designations of the first two types of terrorist groups can be renewed.
The third type is another new and extremely broad description: any group of two or more
individuals “whether organized or not” which engages in any of the same particular “terrorist activities”
(except for “material support,” which is not expressly included for this third type). There is no
special designation procedure or requirement for this third type of terrorist group, which
appears to be totally at the discretion of federal investigators in the Justice or State
Departments. It is not even clear if such a group need be entirely composed of aliens or foreign
nationals or even exist outside the United States. It may be assumed that this designation also
can be renewed. (In general, see USAPA §411, adding (vi)(I), (vi)(II), and (vi)(III) to 8 U.S.C.
§1182(a)(3)(B)).
Also, an alien can become a suspect person by “associating with” any of these types of
terrorist organizations. This determination also can be made internally by the State Department
in consultation with the Justice Department, without any other check or control.
**Special Note: §411 does not expressly state what is the overall effect upon these terrorist
organization designation procedures of a listing of a terrorist organization — or of an
individual, for that matter — on the OFAC list (Office of Foreign Assets Control in the Treasury
Department), a placement on a listing of a terrorist organization made by the President through
Executive Order, or regarding any other Executive Branch department which can supply
information relevant to those listings. It surely would seem that this activity has a direct
bearing on any of the three types of terrorist organizations designated by the State Department
under §1182 as amended by USAPA §411.
Placement of an organization on the OFAC list (or any similar list), through whatever
avenue, carries the implication that the organization could be involved in terrorist activity as
broadly defined in §1182 as amended by USAPA §411. Most certainly, identification by Executive
Order as a terrorist organization would have significant implications for State Department
designation of that organization as any of the three types of terrorist organizations. The same
can be said of the effect upon individuals listed on OFAC or identified as terrorists by Executive
Order.
The interrelationship of these activities, which also would widely relate to investigations
under Titles II and III, surely is substantial. An OFAC listing or Executive Order identification
is expected to have a bearing upon, or may even be borrowed by, the State Department in
making a terrorist organization designation of the same group under Title IV, with further long-
term results. To the extent any challenge is available to these designations, if this other activity
was used as a basis by the State Department, evidence leading to an OFAC listing or Executive
Order identification would be extremely relevant. Whether that background information
would be available to the organization challenging the designation is another matter.**
Under definitions for non-admissibility, an alien is not admissible to the United States if
that person has “engaged in terrorist activity” which as amended by the USAPA, now could
involve association with or support for any of the three types of terrorist organizations, such as

95
 No Greater Threat

“soliciting funds,” encouraging membership, or providing “material support.” As to the third type
of terrorist organization, a suspect alien charged with any such involvement, as described, in
that type of terrorist organization can claim that he or she “did not know or should not
reasonably have known” that the organization was a terrorist organization or that the activity
that the alien engaged in was a terrorist activity. Although not identified, such a claim could be
made, perhaps, as to any prosecution, deportation, or removal procedures, assuming the alien is
already in the country, or perhaps to challenge denial of admission. But the “innocent actions”
defense is not expressly available concerning the other two types of terrorist organizations —
that is, designated by the State Department under Section 219 or under the new second type of
designated group described in §411. So, by implication, an alien declared to be a member or
supporter of a Section 219 terrorist organization or of the second type of designated terrorist
organization is subject to arrest and detention even if that person did not know or reasonably
should not have known what the organization was doing.
As to certain of these designations, seven days before the designation is made the State
Department is to notify, by classified written communication, specific members of Congress.1
After that seven days has passed, the State Department is to publish the terrorist organization
designation in the Federal Register. Designations are in effect for two years and can be renewed
for additional two-year periods (but this renewal must come at least 60 days before the current
two-year period expires). The State Department can “revoke” a terrorist organization
designation at any time. A renewal or revocation of a terrorist organization also must be
published in the Federal Register.2 These procedures follow existing law. (8 U.S.C. §1189(a)(2)
to (a)(8)).
However, the USAPA makes no such express provision for judicial review of the second type of
terrorist organization “designation” — although it could be argued that as a similar designation
to be published in the Federal Register, similar judicial review provisions should apply. There is
a similar absence of any express provision for judicial review as to a “declaration” of the third
type of terrorist organization or group. Nor does there seem to be any review of the similar
determination by the State Department of what is a “political, social, or other similar group”
that has made a “public endorsement” of “acts of terrorist activity.” USAPA §411, adding new
language to 8 U.S.C. §1182(a)(3)(B)(I)(IV), and rendering an alien inadmissible who is a
“representative” of such a group.
**Special Note: Court review is expressly provided concerning Section 219 designations, in
existing law (8 U.S.C. §1189(b), not changed by USAPA). Within 30 days after the Section 219
designation appears in the Federal Register, an organization so listed can seek judicial review of
the designation in the United States Court of Appeals for the District of Columbia Circuit. If
classified information was used in making the designation, the government can submit that
information to the court for review ex parte and in camera (that is, the organization making the
challenge cannot review or confront that information). The court can set aside the designation
if it is arbitrary and capricious, contrary to a constitutional right or power, violates statutory
jurisdiction or authority, lacks substantial support considering the administrative record, or
otherwise does not conform to law. Further appeal, which would only be to the U.S. Supreme
Court, would be unlikely.

1. These would be the Speaker and Minority Leader of the House, President pro tempore, Majority
Leader, and Minority leader of the Senate, and members of “relevant committees” (most likely dealing with
foreign relations, intelligence, and immigration — Title IV does not provide a list).
2. USAPA §411(c)(3) to (c)(11), making certain amendments to Section 219 of the Immigration and
Nationality Act, 8 U.S.C. §1189.

96
 Part III: The USA PATRIOT ACT — Titles IV Through VI

Title IV therefore establishes nearly unchecked powers for these other terrorist group
designations or declarations, including the third type of terrorist group and whether an alien is
associating with a terrorist group. Also, this loosely defined third type of “terrorist organi-
zation” or “group” has no parameters and is a determination totally at the whim of State
Department or Justice Department officials or investigators.
This raises the specter that an alien who is merely under investigation or sought for
questioning immediately could be detained or deported, should a government agency claim to
suspect that person as a “terrorist” or as a member or supporter of any type of “terrorist” organi-
zation or group. It will be a very useful means of leveraging information from aliens who have
little or no experience of asserting their own individual rights.
Further, as noted, a person determined to be a member, representative, or supporter of a
Section 219 organization (if that designation is upheld in any legal challenge) has no defense. Even
an innocent involvement defense is not available. Also, where that defense is available, the
burden is on the alien to show that he or she “did not know, and should not reasonably have
known” that the targeted conduct was not a terrorist activity or the organization was not a
terrorist organization. This will be very difficult for the individual to prove, especially when the
federal investigators will be holding all the evidence cards.
These provisions allow guilt by association, eliminate the bedrock concept in our judicial
system that a person is innocent until proven guilty, and permit “designations” of “terrorist”
organizations with virtually no oversight.1 Linked with the extremely broad and detailed
definition of “terrorism” found in Title VIII (even if the Title IV provisions seems to be directed
only to immigration matters), suspicion of engaging in or conspiring to commit a wide range of
federal crimes (including computer crimes) can place an alien under suspicion. Coupled as well
with the surveillance and seizure powers and information sharing policies of the USAPA
established in Title II and Title III, no part of a suspected person’s life would be free from
scrutiny, down to bank records, with federal investigations into these areas obviously not
restricted to non-U.S. citizens. As for treatment of aliens falling under any of these definitions,
no finding of probable cause is required; the person suspected or investigated does not have to
be charged with a crime. Due process guarantees are almost non-existent.2 These various
amendments are also retroactive.
The USAPA surely will be used meticulously to watch aliens and, depending on the
nature of the investigation, even United States citizens who engage in various activities which
might not be strictly within the definition “engaging in terrorist activity.” Political advocacy,
fundraising, conduct of a non-profit organization, seeking membership in a certain political
organization, all could be part of surveillance and investigation under the USAPA. With each

1. See also the criticism of these PATRIOT Act provisions in James Dempsey and David Cole,
Terrorism and the Constitution: Sacrificing Civil Liberties in the Name of National Security (First Amendment Founda-
tion, Second Ed., 2002), at pp. 151-158. In a sweeping but hardly far-fetched statement given the current
political climate, the authors declare that “the Act’s proscription on associational activity potentially
encompasses every organization that has ever been involved in a civil war or a crime of violence, from a pro-
life group that once threatened workers at an abortion clinic, to the African National Congress, the Irish
Republican Army, or the Northern Alliance in Afghanistan.” p. 153.
2. Due process guarantees under the Fifth Amendment apply to all “persons” in the United States,
including aliens, even if the person is not lawfully present and even if the person is temporarily present. Zadvydas v. Davis,
150 L.Ed.2d 653, 121 S.Ct. 2491 (2001). This means that once an alien is on United States soil, certain due
process standards should apply. Among them would be the principle that a person is innocent until proven
guilty. Guilt by association has been consistently rejected as a sufficient basis for conviction of a crime
without a showing of actual conduct by the person connected with the preparation for or commission of
the crime.

97
 No Greater Threat

USAPA Title building upon the other and linking together an entire federal investigatory,
surveillance, intelligence, and law enforcement apparatus, a disturbing amount of unchecked
power is now placed in the Executive Branch. What is even more disturbing is that these Title
IV provisions are permanent. Not one of these provisions is given any sunset or inactive date.**
As indicated, with these definitions firmly in place, Title IV goes on to declare new
standards for admitting aliens into the country (rather, denying admittance) and for detaining
or prosecuting aliens suspected of being terrorists or engaging in terrorist activity. The Title IV
provisions apply to all aliens seeking admission or those already in this country.
For example, an alien seeking admission can be denied admission if the State Department
or the Justice Department determines that he is “associated with a terrorist organization” and
“intends while in the United States to engage solely, principally, or incidentally in activities that
could endanger the welfare, safety, or security” of the United States. USAPA §411, adding new
(F) to 8 U.S.C. §1182(a)(3). How this determination is made is not described, but could involve
investigative activities authorized by Title II and Title III.
4. Enhanced and Mandatory Detention Provisions, Regulations. Having described terrorist activity
and the types of terrorist organizations, Title IV then goes on to provide new and sweeping authority
to federal immigration or other law enforcement officials to take custody of and detain certain identified aliens in
this country.1 This involves certifying an alien as a potential terrorist, with significant results as to
detention and deportation (“removal”). The Section relates only to non-United States citizens.
The Attorney General or Deputy Attorney General can “certify” an alien as a potential
terrorist under any of seven specifically listed bases. Certification can be made if there are
“reasonable grounds” to believe that the alien has:
[1] — engaged in espionage or sabotage in violation of United States law (8 U.S.C.
§1182(a)(3)(A)( i), relating to inadmissible aliens),
[2] — opposed the United States government or sought to overthrow the government by
force, violence, or other unlawful means (8 U.S.C. §1182(a)(3)(A)(iii), relating to inadmissible
aliens),
[3] — been involved in any of the wide range of conduct that qualifies as “terrorist
activity” or as “engaging in terrorist” activity, which includes being a member, representative, or
supporter of any of the three types of terrorist organizations (as already explained, see 8 U.S.C.
§1182(a)(3)(B), as amended by the USAPA §411),
[4] — engaged in espionage or sabotage (8 U.S.C. 1227(a)(4)(A), relating to deportable
aliens but containing similar definition as [1]),
[5] — opposed the United States government or sought to overthrow the government by
force, violence, or other unlawful means (8 U.S.C. §1227(a)(4)(A)(iii), relating to deportable
aliens but containing similar definition as [2]),
[6] — engaged in “terrorist activity” (8 U.S.C. §1227(a)(4)(B) relating to deportable
aliens, referring in turn to 8 U.S.C. §1182(a)(3)(B)(iii), as amended by USAPA §411), or
[7] — engaged in “any other activity that endangers the national security of the United States.”
This last basis for “certifying” a particular alien provides wide authority without further
description, procedures, regulations, or requirements. The term “any other activity” is not
described in the Act and is entirely open-ended. Note also that the certification procedure itself
is entirely internal.

1. USAPA §412, adding new Sec. 236A to 8 U.S.C., 8 U.S.C. §1226A. Further, under interim rules
issued by the INS shortly after September 11, but before the PATRIOT Act was passed, the time permitted
after an alien’s arrest to determine if the alien was to remain in custody or be released was changed from 24
hours to 48 hours. See 66 Fed.Reg. 48334 (September 20, 2001).

98
 Part III: The USA PATRIOT ACT — Titles IV Through VI

The Attorney General (Justice Department, most usually the Immigration and Natural-
ization Service aided by the FBI) “shall” take into custody “any alien” who is so certified under any of
these approaches or bases. This mandatory seizure and detention requirement is now linked to
the extremely broad definitions of designated terrorist groups, terrorist activity, engaging in
terrorist activity, or “activity that endangers” national security. The Attorney General “shall
maintain custody” of the alien “until the alien is removed” from this country, unless the alien is
decertified or “finally determined” not to be subject to removal. In an extreme provision,
detention is to continue even if the alien seeks and obtains judicial relief from statutorily-
defined removal proceedings.
An alien who is certified and detained by the Justice Department can be detained for seven days
before being charged with a crime. By then, the alien must be criminally charged or be placed in
removal proceedings (“removal” proceedings are more strict and provide fewer opportunities
for defense or for judicial review than “deportation” proceedings). However, as has been noted,
if the alien is not “removed” or if removal proceedings are deemed too dangerous should the
person be released by any means, even if that involves returning the alien to his or her home
country, the alien can be further detained for additional periods of up to six months. This detention is
available if the Attorney General (that is, Justice Department/ INS) determines that the alien,
even if “removed,” will “threaten the national security of the United States or the safety of the
community or any person.” How that determination is to be made also is not described. It seems
that “any person” could mean any person anywhere in the world.
This six-month detention or certification can be extended for additional six month periods.
The alien “may request each six months in writing” a reconsideration of his status, supposedly
to the Justice Department or the INS. That is, this request for release could be made only twice
per year.1 If the request for review or change in the certification is administratively denied, then
apparently there will not be another opportunity for review until another six months passes.
The only judicial relief allowed by Title IV for an alien certified by the Justice Department
and placed in this situation, or indefinitely detained, is a habeas corpus petition. A habeas corpus
petition is a civil proceeding based on the ancient and common law right to challenge the state’s
authority to arrest or to detain a person. Title IV provides that the petition can be filed in the
United States Supreme Court, with any Supreme Court Justice, with a circuit judge of the
United States Court of Appeals for the District of Columbia Circuit, or in “any” federal district
court with jurisdiction over the case.2 If the petition is filed with the district court or with a
circuit judge, there may be an appeal from a decision on the petition to the United States Court
of Appeals for the District of Columbia Circuit. There is no other avenue of appeal. These
procedures are already going into effect. And they are permanent.
**Special Note: The inclusion in these provisions of the availability of habeas corpus relief to
challenge a detention need not be considered gracious. The use of habeas corpus in federal courts
by inmates and detainees has been restricted over the years by the federal courts and by

1. For a review of some significant cases involving foreign nationals (aliens) who were detained and
held without charge or without counsel or due process, even prior to the PATRIOT Act— providing a fore-
boding indication of what is to come after the PATRIOT Act authorizes unfettered governmental power to
seize and detain aliens as well as the unacceptable conditions they may be forced to endure while held —
see Appendix 3-A.
2. See USAPA §412, amending the Immigration and Nationality Act by adding new Section 236A, at
§236A(b)(1) and (b)(2). This provision appears to create original jurisdiction in the Supreme Court of the
United States to hear a habeas corpus petition in these circumstances. The reason for this provision is not
clear nor is it clear whether the Supreme Court will accept such original jurisdiction, which is not favored
in the Supreme Court, and almost always the Court transfers such petitions to an appropriate lower federal
court. It is possible that if a habeas corpus petition is filed with the Supreme Court or with any Supreme
Court justice, it would be transferred to the United States Court of Appeals for the District of Columbia
Circuit or to an appropriate United States District Court.

99
 No Greater Threat

Congress, notably in recent legislation such as the Anti-Terrorism and Effective Death Penalty
Act. Under prevailing standards, habeas corpus relief could be employed once or perhaps twice,
even though Title IV places no limit on the number of such petitions which could be filed or
when petitions are to be filed. Issues brought up on a second petition or in later petitions,
which a court finds could have been raised in the first petition, could be deemed by the court to
be precluded.
It must be noted that, in any case, any habeas corpus petition filed by an alien certified
under these mandatory detention provisions surely would be vigorously opposed by federal
officials. In any event, it is extremely unlikely that an alien detainee who has been seized and
placed in custody because he meets the definition of “terrorist activity” or is a member or
representative or supporter of a terrorist organization will find much sympathy in federal
courts.1
Also, although Title IV allows an alien detainee to appeal a denial of habeas corpus relief
(exclusively to the Court of Appeals for the District of Columbia), success at that level is even
more unlikely. Therefore, it is probable that there will be virtually no actual judicial relief
available to aliens detained by federal officials on grounds of, or suspicion of, being terrorists.
With only six-month intervals provided by Title IV to administratively challenge these
detentions, aside from habeas corpus, and with a change in the administrative determination
totally within federal agency discretion, some detentions can very well be indefinite.2
What also is not clear is whether an alien so detained in this process, depending on the
nature of the charges against the alien, could be tried by military tribunal. Although the Section
mentions only criminal proceedings, removal, or indefinite detention, there is no express
prohibition against military tribunal trial. It is possible that the government will seek to expand
the types of aliens or particular charges subject to military tribunal proceedings.**
Title IV requires the Justice Department to report to Congress every six months regarding
aliens taken into custody and detained under these strict provisions. The report goes to the
Judiciary Committees of the House and the Senate. The report is to include the number of aliens
so certified, the grounds for certification, the nationalities of the aliens, the length of detention,
and whether the alien is removed, granted relief, decertified, or released. It is assumed that the
report also is to include whether the alien is still in detention.
What is significant is what the report does not have to mention. The report does not have to
include the name of the alien, other background information, when the alien was taken into custody, or even where
the alien is being held. Even if the alien is released, the report does not have to state when and

1. As noted in the article by Nancy Chang, Senior Litigation Attorney for the Center for Constitu-
tional Rights, posted at “www.crr-ny.org” (see Part III of article), “the judiciary has consistently bowed to
the wishes” of government “in times of crisis” and in the interests of national security. Among the more cele-
brated cases is the Supreme Court’s decision upholding the conviction of Socialist and presidential candi-
date Eugene Debs for expressing opposition to the United States’ entry into World War I. Debs v. United
States, 249 U.S. 211 (1919). As the Chang article also notes, in World War II, the Supreme Court upheld an
Executive Order mandating the detention of more than 100,000 Japanese-Americans and Japanese immi-
grants, based solely on their ancestry. The Court refused to recognize this preventive detention as a viola-
tion of the Equal Protection Clause. Korematsu v. United States, 323 U.S. 214 (1944). The article also notes with
trepidation comments by Justice Sandra Day O’Connor, at a visit to Ground Zero, that Americans are likely
to see “more restrictions on personal freedom than has ever been the case in this country” (quoted in New
York Times article of September 29, 2001.)
2. Also unclear is the relationship between these detention procedures and the Military Order estab-
lishing the military tribunals (Presidential Military Order of November 13, 2001, at 66 Fed.Reg. 57833).
There will be more discussion of the military tribunals later. There does not appear to be an express prohi-
bition in Title IV’s mandatory detention procedures against a detained alien being tried before the military
tribunal as opposed to standard criminal prosecution in a District Court or INS deportation or removal
proceedings.

100
 Part III: The USA PATRIOT ACT — Titles IV Through VI

where that release occurred. Title IV therefore allows for considerable secrecy in the treatment
by the Justice Department and the State Department of these individuals. It is the sort of
secrecy in the government arrest and detention of a person more commonly seen in Third
World nations.
**Special Note: Similar to Title III’s approach, Title IV takes existing law and expands it.
There already were detention provisions concerning aliens or foreign nationals arrested in the
United States for immigration violations or for other crimes and facing removal, or for those
being investigated for possible proceedings of one form or another. In most cases, especially
involving removal, habeas corpus already was established as the sole remedy. Judicial review of
administrative decisions of this sort already was very limited, if it existed at all. In these
respects, Title IV does not add to the present very severe landscape of federal immigration law.
But Title IV’s “certification” provisions invoke new or expanded definitions of “terrorism,” the
mandatory detention provisions are in many respects novel, the authorities for administrative
detentions for up to six months are unprecedented, and the full scope of investigatory and
enforcement powers brought to bear in the entire landscape are unparalleled. With the
additional expanded definitions of “terrorism” and of “terrorist organization” coupled with the
fact that all of Title IV is permanent, the overall effect of these provisions is nothing short of
massive, regardless of the nature of existing immigration law.**
5. Information Sharing, Visa Security, Other New Technologies, Reports. Still conti-nuing with the
Act’s overall theme of exchanging information not only between federal agencies but also
between countries as to aliens or terrorist activity of one sort or another (this is made very clear
in provisions involving money laundering), Title IV allows the State Department, if it wishes to
do so, to share information in its “computerized visa lookout database” with foreign
governments. The State Department can arrange for various “agreements” with foreign
governments to share this information.1 State Department information on processing visa
applications is confidential by law and generally available only for court and law enforcement
purposes.2 Title IV now allows this information to be shared with other countries in investi-
gation of terrorism and certain other criminal activity.
There is more. Title IV authorizes the Justice Department to develop an extensive “visa
integrity and security” system.3 This system, called the “Integrated Entry and Exit Data
System,” was noted in the Immigration and Naturalization Service Data Management
Improvement Act of 2000 (PL 106-215) and in the Immigration Reform and Immigrant Respon-
sibility Act of 1996 (8 U.S.C. §1365a). The system is to provide, in electronic form, arrival and
departure information for a given alien and track that information, provide a data base, be ready
for use at airports and seaports, and supply basic information for an annual report to Congress
on alien arrival and departure information. The deadline to implement the system is December
31, 2003 as to airports and seaports; December 31, 2004 as to high-traffic land ports of entry, and
December 31, 2005 as to a comprehensive system for all entry points. As to these deadlines for
developing the integrated entry and exit data system, Title IV underscores its necessity, stating
that the system is to be implemented “with all deliberate speed and as expeditiously as
practicable.”
The system is to be operational at international entry points such as airports and border
entry areas. The Justice Department, in consultation with Commerce and Treasury

1. USAPA, §413.
2. See 8 U.S.C. §1202(f).
3. USAPA, §414. Congress in 2000 later established a 16-member task force to study this system,
complete with a director and staff. See P.L. 106-215, 114 Stat. 339

101
 No Greater Threat

Departments and the new Office (soon to be Department) of Homeland Security, is to

“immediately” set up a task force to implement it. In developing the system, the task force is to
consider utilizing “biometric technology” and tamper resistant documents readable at customs
stations.
The system is to interface with “law enforcement databases for use by federal law
enforcement to identify and detain individuals who pose a threat” to national security. Within
12 months, Homeland Security is to report to Congress on informational needs from federal
agencies to be considered in developing this system. As already indicated, biometric technology
would include supposedly foolproof personal identification methods linked to an individual’s
fingerprint or other unique features (retina, iris, face, voice). Title IV therefore authorizes a
study for possible widespread use of, for example, face recognition software to identify aliens
seeking visas or otherwise attempting to enter the United States.
Along with this system, Title IV moves up the date for establishing “machine- readable”
passports.1 The original date of 2007 is moved up several years, to 2003.2 The State Department
is to perform annual audits of the program every year until 2007 and report to Congress each
year.
6. Monitoring Aliens, Expanded Foreign Student Monitoring Program. Also continuing with the
theme of increased investigation and surveillance, the Act expands the foreign student
“monitoring program” established by section 641(a) of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996.3 Instead of only institutions of “higher education,” the
monitoring program as expanded by the USAPA now includes “other approved educational
institutions.” Title IV adds air flight schools, language training schools, or vocational schools to
the list of educational entities or programs whose foreign students would be included in the
reporting requirement. This means that the State Department, Justice Department, INS, or
other federal agencies can monitor the whereabouts or activities of foreign students in this
country on student visas, at hundreds if not thousands of more educational institutions. This
new monitoring program is to be in place by January 1, 2003. For this new task, Title IV
appropriates $36,800,000 to the Justice Department.
7. Special Provisions Extending or Changing Certain Deadlines for Immigrants Whose Applications Were
Affected by September 11, Other Humanitarian Relief. Title IV then shifts gears. The rather complex
provisions of Subsection C4 apply only to specific groups of alien individuals or families (if also
affected) whose own visa application, visa review, legal proceedings to change immigrant
status, or other similar situation was affected in one way or another by the September 11
attacks. These Sections change or extend particular deadlines for filing proceedings on
immigrant status and other situations. Title IV also authorizes humanitarian relief for certain
surviving spouses and children of immigrants and waives certain deadlines or other legal
requirements.5 In certain instances, permanent resident status is granted. These provisions are
not of serious concern for purposes of the present PATRIOT Act review. These Title IV

1. Section 217 of the INA allows for a visa waiver program for foreign tourists from countries which,
among other things, issue such machine readable passports or comply with international standards for
passport security. The State Department is to report results of an annual review of the process of program
countries to full implementation of machine-readable passports. This effort is especially concerned with
reducing passport tampering, counterfeiting, or theft.
2. USAPA §417 and Immigration and Nationality Act (see 8 U.S.C. §1197(c)(2)(B)).
3. 8 U.S.C. §1372(a).
4. USAPA §421 to §428.
5. USAPA §§423 through 428.

102
 Part III: The USA PATRIOT ACT — Titles IV Through VI

provisions concern fine points of immigration law and relate only to aliens involved in special
immigration proceedings.
With Title IV, the PATRIOT Act completes a comprehensive rewriting of federal law that
began with Title I. Massive changes in federal law enforcement, investigation, surveillance,
searches and seizures, and other powers are effectuated by this Act. New legal standards are
applied. Improved entry and exit systems possibly using biometric technology and machine
readable passports are to be developed. Designation authority is given to federal officials to
declare particular groups as “terrorist” organizations. Existing law as to “terrorist organi-
zation,” “terrorist activity” and “engaging in terrorist activity” for purposes of refusing
admission or deporting suspected aliens is greatly expanded. Mandatory detention of certain
“certified” aliens in the United States is to take place under very broad definitions, with this
detention process being almost solely in the hands of federal officials. Even required reports to
Congress concerning the mandatory detention procedures do not have to list names, charges, or
detention locales.
There is no doubt that many of these provisions are considered necessary by the Congress,
Executive Branch, and general public, given recent events. Yet recent events may not provide
ongoing rationale for sweeping, permanent legislation substantially affecting personal rights
and virtually unchallengeable in the courts. A national security state is always completely
confident of the rightness of its actions, which does not mean, however, that history would
judge it so. And there is more to come.

TITLE V: REMOVING OBSTACLES TO INVESTIGATING TERRORISM

Title V provides even more investigative and surveillance authorities to federal investi-
gators. What must be kept in mind is that Title V, unlike Title II and now also III, also is
permanent. Title V sets out even more provisions to “combat” terrorism. If it was not already
obvious, Title V again makes it very plain that Congress will basically pave the way for federal
investigative authorities to acquire and to utilize nearly every shred of information available to
conduct terrorism investigation and surveillance.
1. Rewards. Title V authorizes rewards for assisting the Justice Department to “combat
terrorism and defend the Nation.” The Justice Department can offer rewards up to $250,000.1
Rewards higher than that can be made but require the personal approval of the White House or
the Attorney General. Any federal agency may provide reward funds.2
Within 30 days after approving an award of any amount, the Justice Department is to give
written notice to the Chair, as well as to the ranking minority and majority members, of the
Senate and House Appropriations Committees. The State Department’s ability to offer rewards
is also expanded.3
2. DNA Profiles. Then, Title V moves into investigative areas. It amends a little-known law
called the DNA Analysis Backlog Elimination Act of 2000.4 This project collects DNA of

1. USAPA §501.
2. Over the last several years, annual appropriation acts have raised the cap on rewards of $500,000
to $2 million and the total reward ceiling of $5 million to $10 million. In addition, the counterterrorism fund
of USAPA §101 can be used without limitation to pay rewards to prevent, investigate, or prosecute
terrorism.
3. USAPA §502. The Secretary of State’s reward authority has been broader than the Attorney
General’s. The State Department has been able to pay rewards of up to $5 million for information in interna-
tional terrorism cases, as long as the Secretary of State personally approves payments greater than $100,000.
22 U.S.C. §2708. Title IV removes the $5 million cap and allows rewards to be paid for information
concerning the whereabouts of terrorist leaders or for helping break up a terrorist organization.

103
 No Greater Threat

persons convicted of certain crimes. Crimes to be part of this project now include any offense of
18 U.S.C. 2332(g)(5)(B) (that reference is to the greatly expanded definition of “terrorism” or
“terrorist acts” found in Title VIII), any crime of violence, and any attempt or conspiracy to commit any of
the above offenses. The expansion is enormous. Previously, DNA profile information to be obtained
under the existing statute concerned homicides, sexual abuse, white slavery, robbery and
burglary, and child sexual abuse.1 Now, the DNA profile of a person convicted even of
conspiracy to violate any of the much-expanded acts of “terrorism” is to be include in this data
bank.2
3. Information Sharing. Title V continues with the Act’s intent of sharing federal surveillance
information and investigative information among federal law enforcement agencies.3 Federal
officers “who conduct electronic surveillance to acquire foreign intelligence information”
(again, expansion of that authority and of the Federal Intelligence Surveillance Act Court was
among Title II’s provisions) or who have conducted searches and seizures (such as under FISA
warrants) can consult with other federal law enforcement agencies. Consultation can involve
coordinated efforts to investigate or protect against actual or potential attack or “other grave
hostile acts” by an “agent of a foreign power,” sabotage, or secret intelligence activities by
foreign individuals.
In other words, this Section declares that the certification requirement for a FISA search
or surveillance order allows investigators conducting search or surveillance under FISA orders
to coordinate these investigations with other law enforcement officers in such cases. Title V
also expands the Secret Service’s authority to conduct investigations, coordinating with the FBI
which has primary authority to investigate offenses.
4. Telephone Records, Financial Records, Consumer Reports, Educational Records. A Section that
should generate much concern involves federal authority to obtain sensitive information. Title
V expands FBI investigative powers into certain private information so long as the investigation
involves “international terrorism.”4 This information itself, however, need not be restricted to
foreign nationals, aliens, or suspected terrorists. The scope of FBI authority to conduct these
investigations therefore is considerably expanded.
The information can include telephone records such as long distance telephone records,
financial records, and consumer reports. This Section amends a federal criminal statute.5 Note
that no court order is required for the FBI to obtain this information. And the affected person is
not to be informed that the information was obtained.
As for telephone records, investigators upon a required certification can obtain customer
name, length of phone service, and toll billing records. The investigator only needs to state that
the information “is relevant to an authorized investigation to protect against international
terrorism or clandestine intelligence activities.”6 The provision contains a restriction, in the

4. 42 U.S.C. §14135a(d)(2) as amended by USAPA §503.

1. See 42 U.S.C. §14135a(d)
2. The Department of Justice “Field Guidance on New Authorities (Redacted) Enacted in the 2001
Anti-Terrorism Legislation,” treats this USAPA Section as closing a loophole. It states that Section 503
addresses a “deficiency” in prior law and “generally strengthened the collection of DNA samples from
federal offenders, by extending sample collection to all federal offenders convicted of the types of offenses
that are likely to be committed by terrorists” or “any crime of violence.”
3. USAPA §504, adding new language at the end of FISA Section 106, 50 U.S.C. §1806, establishing
language for §1806(k) and new language at §1825.
4. USAPA §505, amending certain other federal statutes such as Right to Financial Privacy Act, 12
U.S.C. §3414(a)(5)(A), and Fair Credit Reporting Act, 5 U.S.C. §1681u.
5. Again, see 18 U.S.C. §2709(b), the Right to Financial Privacy Act of 1978 (12 U.S.C.
§3414(a)(5)(A)), and the Fair Credit Reporting Act (15 U.S.C. §1681(u))

104
 Part III: The USA PATRIOT ACT — Titles IV Through VI

case of a United States citizen, that this information cannot be obtained if the activities
involved are protected by the First Amendment. But investigators are allowed to make these
determinations for themselves. The request must be made or authorized by an FBI Assistant
Director or Special Agent in Charge of an FBI field office, designated by the FBI Director.
There is a similar provision for obtaining financial records or consumer reports. The
request also must be made or authorized by a similar high-level FBI official. The USAPA adds
terrorism investigations to those situations where these records can be obtained by federal
investigations upon a necessary certification. Again, this does not require a court order.
It remains to be seen how much of this information will be obtained by the FBI. But the
Act’s consistent expression of expanded FBI authority combined with the current political
climate virtually guarantee that the agency will make full use of any new investigative powers
granted to it.
In a provision which has received some attention, Title V (§507) authorizes federal
agencies to obtain educational records.1 A court order is required, but the basis for requesting
the order is not very restrictive and does not require a showing of probable cause, a statement of probable
cause, or an affidavit describing the nature of the investigation and the need for or use to be made of the documents
sought.
The Justice Department (not just the FBI but a broader group of federal investigators) can
seek from a federal court an ex parte order. All that is required is a certification by the
investigator that there are “specific and articulable facts giving reason to believe” that the
educational institution has records relevant to an investigation of a terrorist act (under the new
and broader definition of terrorist act) or “domestic or international terrorism.” The order
would require an educational agency or institution to open its files to the Justice Department
investigator, allowing that person to “collect” education records “relevant to an authorized
investigation.” Title V also makes the same provision for information compiled in national
educational surveys.2
Federal investigators may “retain, disseminate, and use” this information, but the Justice
Department is to develop guidelines for this activity to protect confidentiality. Title V states
that an educational institution complying with such an order by releasing or making available
its records to a federal investigator “shall not be liable to any person” for doing so.
So, Title V, although a much shorter Title than Title II, III or IV, provides even more
expanded power and authority for federal investigation into terrorism. To name just a few of the
troubling aspects of these provisions:

1) the Act does not provide for Title V provisions to become inactive, so they must be
assumed to be permanent,
2) the provisions are extremely extensive, requiring just a simple certification by federal
investigation officials to be provided with private and sensitive information without a court
order or a showing of probable cause (in the nature of a national security letter or an adminis-
trative subpoena),

6. The affected statutes, the Electronic Privacy Act, the Right to Financial Privacy Act, and the Fair
Credit Reporting Act, authorize third parties to release confidential information such as transaction
records, financial reports, and credit information. But prior law required the FBI to describe the nature of
the investigation and state that there were “specific and articulable facts” that the information being sought
involves a person or entity who (or which) is an agent of a foreign power (as defined in the FISA). Note again
that an agent of a foreign power does not have to be a foreign national, but could in some cases be a United States citizen.
1. USAPA §507, amending Section 444 of the General Education Provisions Act (20 U.S.C. §1232(g).
2. USAPA §508, amending National Education Statistics Act of 1994 (20 U.S.C. §9007).

105
 No Greater Threat

3) certain search and seizure orders can be obtained by federal investigators ex parte
without notifying the individual involved,
4) there appears to be no relief from a search and seizure order authorized by Title V even
assuming a person became aware that this information was obtained,
5) there is no limitation as to scope of investigation or whose information is sought, and
6) the sort of information to be obtained is generally viewed by Americans to be among
the most private of personal informational areas (aside from, perhaps, health records) —
telephone records, financial records, consumer reports, and educational records.
Title V gives federal officials very wide investigative powers. As a result of Title V alone,
this is a new America.

TITLE VI: PROVIDING FOR VICTIMS OF TERRORISM, PUBLIC SAFETY OFFICERS,

AND THEIR FAMILIES

This Title is relatively brief. It redefines and expands funds available for victims of
terrorism.
Section 611 authorizes accelerated payments to public safety officers or their families if
the public safety officer was killed or “suffered a catastrophic injury” in the line of duty and “in
connection with prevention, investigation, rescue, or recovery efforts related to a terrorist
attack.” Authorized payments are to be made within 30 days upon “certification” by the Bureau
of Justice Assistance that the requirements are met. Note that the Section is not limited to the
September 11 events. The Section is permanent and therefore applies to any “terrorist attack” in
the future. How that term will be defined might become a matter for the courts, but the
PATRIOT Act provides a broad, detailed, and permanent definition of “terrorism.”
Section 612 makes clerical amendments to another federal law authorizing expedited
payments to public safety officers killed or injured in the September 11 attacks. Section 613
expands the benefit program from $100,000 to $250,000.1 Another provision, Section 614,
removes certain limitations on certain grant programs to be administered by the Office of
Justice Programs.2
The remaining sections of Title VI are amendments to the Victims of Crime Act of 1984.3
Section 621 confirms that the crime victims fund may receive gifts, bequests, and donations
from private entities (i.e., corporations or non-profit groups), and persons. The Section permits
the Bureau of Justice Assistance to distribute sums from this fund to victims of terrorism.
In a further amendment to the Victims of Crime Act,4 Title VI allows the Bureau of Justice
Assistance to “set aside” up to $50 million of the amounts transferred to the Fund from
September 11 donations, as an “anti terrorism emergency reserve.” This reserve would be used
for grants and victim compensation. As declared in Section 623,5 grants are available to various
federal agencies for crime victim assistance, including any federal agency that performs “local
law enforcement” duties in special areas such as the District of Columbia, Puerto Rico, and the
Virgin Islands. Additional parts of this definition are technical or clerical.

1. Amending the Omnibus Crime Control and Safe Streets Act of 1968, 42 U.S.C. §3796).
2. The OJP was created by the Omnibus Crime Control and Safe Streets Act (P.L. 90-351). Congress
recently had denied OJP authority over grants concerning the National Institute of Justice, Bureau of Justice
Statistics, and some Juvenile Justice and Delinquency Programs. (P.L. 106-113, 113 Stat. 1501A-20 (1999) and
P.L. 106-553, 114 Stat. 2762A-67 (2000). This Section removes those limitations.
3. 42 U.S.C. §10601, mostly at (b) and (c).
4. USAPA §621(d), amending 42 U.S.C. §1402(d)(5).
5. Amending 42 U.S.C. §10603(a).

106
 Part III: The USA PATRIOT ACT — Titles IV Through VI

In a broadly worded section,1 the Bureau of Justice Assistance is authorized to make

grants from this fund to crime victim programs, victim service organizations, and public
agencies providing crime victim assistance whether federal, state, or local. The grants are to be
for “emergency relief, including crisis response efforts, assistance, compensation, training and
technical assistance” as well as “ongoing assistance” during an investigation or prosecution, to
victims of a terrorist act or “mass violence.”2
No additional funds are appropriated or authorized. But Title VI emphasizes that
Congress intends to make available substantial funds for victims of terrorist acts.

***

With four Titles still remaining in this review of the complete PATRIOT Act, its
tremendous influence toward a potential national security state is painfully evident. Whatever
might be said about the need to increase federal agency surveillance and enforcement powers to
deal with “terrorism” within the United States — and that is still an open question given the
secretive and multifarious aspects of terrorism and the undeniable fact that its roots lie outside
the United States — it is obvious that Congress has decided that the jeopardy now facing
personal privacy and civil and political rights is a necessary evil.
Yet evil of any sort is rarely quite so necessary. And rights lost are seldom regained. What
will become of all of this may not be a better America. Many American citizens are ready to pay
this price for a stronger feeling of security, yet it is a price that should not be paid, not only
because it should never be asked of a people by a nation but also because payment of that price
will purchase just the opposite result.
Instead, as will be suggested in the discussion to follow, true “security” cannot be
achieved in this manner, for true security can never be achieved by force. The surveillance,
investigation, enforcement, and military responses to “terrorism” will be costly on many levels
and ultimately will be self-defeating.
The four remaining Titles of the PATRIOT Act contain language even more extreme than
what has come before. Closing the review of the Act in the next section opens the discussion of
the 12 “characteristics” of a national security state. It is a discussion that does not bode well for
the national future, if the trends identified through those characteristics continue.

***
Comment at Close of 2004
For authorities and initiatives under PATRIOT Act Titles IV through VI, especially Title
IV dealing with immigration and foreign visitors, there has been considerable government
activity since the statute was enacted. Immigration, border security, and entry-exit at United
States border points, have received steadily increasing attention. These activities include:
— Justice Department implementation of Title IV including ISIS (Integrated Intelligence
Surveillance System),
the “Special Registration” program in late 2002 to early 2003,

1. USAPA §624, amending 42 U.S.C. §10603b(b).

2. The compensation provided by the PATRIOT Act brings up the special victims compensation
fund following the September 11 attacks, established in a separate statute and administered by a special
master appointed exclusively for this purpose. For a review of that other compensation fund in this context
taken from news reports and from a Congressional Research Service report on the subject, see Appendix 3-
B.

107
 No Greater Threat

— the NSEERS (National Security Entry-Exit Registration) program,

— the SEVIS (Student and Exchange Visitor Information System) program,
— the US-VISIT (United States Visitor and Immigrant Status Indication Technology)
program administered by the Department of Homeland Security (currently part of, but
eventually to replace, NSEERS),
— increased concentration regarding immigrants from certain Arab countries or
nationals from those countries residing in the United States,
— terrorist watch lists or “no-fly” lists, and
“Secure Flight” (previously CAPPS II or Computer Assisted Passenger
Prescreening System II, which replaced the previously operating CAPPS system).
Each of these programs, some in continuing development, will be briefly noted.

***

JUSTICE DEPARTMENT IMPLEMENTATION OF TITLE IV (AND ISIS)

Of continuing use in this general review is the Justice Department’s response, of May 13,
2003, to the letter of April 1, 2003 by the Judiciary Committee of the House of Representatives
(sent by Committee Chair Rep. F. James Sessenbrenner, Jr. (R-Wisc) and Ranking Minority
Member John Conyers, Jr. (D-Mich)), inquiring into Justice Department anti- terrorism actions
since the USA PATRIOT Act. (See discussion as to Titles II and III in the Comment at Close of
2004 following Part II).
Regarding Title IV authorities, the Justice Department response noted that Title IV
authorized tripling INS agents and Custom Service agents on the northern border and
technology improvements to monitor that border. The DOJ said it has “rapidly implemented”
those authorities and has committed to hiring 245 new agents for Canadian border assignment,
by close of 2002. This has been completed. Also, DOJ has conducted recruitment campaigns on
colleges, universities, and military installations, for customs and border agent positions.
The Department’s 2003 response said that since September, 2001, the INS (functions of
the now-abolished INS have now been separated into several divisions in the Department of
Homeland Security, see review in this 2004 update of the Homeland Security Act of 2002) had
received more than 65,000 applications for agent positions, and that selections were being made
at 1,000 per month. More training classes for border agents are being conducted.
On technology and equipment enhancements for border monitoring (especially the
Canadian border), the Department said it has deployed three additional helicopters and 500
infrared scopes for border agents. As is commonly known, these scopes increase night vision
capability.
The Department is installing a computer-aided detection system, the Integrated
Intelligence Surveillance System (ISIS) at 55 northern border sites, to be completed in 2004.
According to the Department’s response, the System will provide continuous “border coverage
through ground-based sensors, fixed cameras, and other technology.”
Also according to the Department’s response, under an Attorney General directive of
April 11, 2002, all Department investigative agencies will include, in the National Crime
Information Center (NCIC) database, “the names, photographs, and other identifying data of all
known or suspected terrorists.” Under Title IV authorities allowing the State Department
access to information on the NCIC system, the FBI has given the State Department over 8.4
million NCIC records. In addition, the FBI has provided to the INS (now DHS) 83,000 compre-
hensive records of “key wanted persons” in the NCIC databases, as well as information

108
 Part III: The USA PATRIOT ACT — Titles IV Through VI

regarding military detainees in Afghanistan, Pakistan, and Guantanamo Bay (Camp Delta).
Information on alien passengers is being provided to agents at airports.
The Justice Department explained that an integrated entry-exit data system mandated by
Title IV is expected to be in place by December 31, 2003, making it operational for all travelers
to the United States at all air and sea ports of entry. This system is expected to be available to
the 50 largest land points of entry into the United States in December 31, 2004, and at all points
of entry for all travelers, on December 31, 2005. (As noted here and in the discussion following
Part IV and Part V, various aspects of this massive and comprehensive new entry-exit system
are underway or in place.)
The expanded foreign student monitoring program is also being put into place, as
mandated by Title IV. A deadline of January 30, 2003 was set for all schools and programs using
the system, and in general that deadline has been met, with the expanded SEVIS system and
US-VISIT system.
Curiously, according to the DOJ response to the House Judiciary Committee letter, the
government has not yet utilized one of the most extreme authorities granted under the Act, which is the Title IV
authority under Section 412 for mandatory seizure and detention and possible indefinite administrative detention
of an alien suspected of terrorism. The Justice Department said “traditional administrative bond
proceedings have been sufficient to detain these individuals without bond.” The Department
said it will make use of this authority in “appropriate situations.” The Justice Department no
doubt will carefully guard information about when, where, and how this authority is used. It is
to be kept in mind that, due to the decision of the United States Court of Appeals from the
District of Columbia Circuit regarding information sought from DOJ on aliens “rounded up”
shortly after the September 11 attacks, an entire list of basic information concerning arrest and detention
by the government of aliens suspected of terrorism is exempt from the Freedom of Information Act.
The Justice Department's response did not provide details of further investigation or
detentions of aliens. Nor did it comment on the change of procedures which double the time
(from 24 hours to 48 hours) that an alien detained under suspicion of illegal activity must be
given a notice to appear at an immigration proceeding. It also did not comment on the “special
registration program” for aliens which occurred from late 2002 to early 2003. The Justice
Department referred those inquiries to the Department of Homeland Security.

***

SPECIAL REGISTRATION PROGRAM AND “ABSCONDER INITIATIVE”

The Special Registration Program (also known as “Domestic Call-in Registration”), was
announced by the Department of Justice and the INS in November, 2002 and continued until
April, 2003. Special Registration is part of the NSEERS program (National Security Entry-Exit
Registration System) introduced on October 1, 2002. (Another component of the NSEERS
system, port-of-entry registration, also was implemented at all entry-exit points and especially
applies to visitors or immigrants from Iran, Iraq, Libya, Sudan, and Syria).
The Special Registration program required male non-citizens age 16 or older from more
than 20 specified countries, residing in the United States, to report to a local INS office between
December 2002 and April, 2003.1 When they did so, their immigration status was checked, they

1. The identified countries were: Iraq, Iran, Libya, Sudan, Syria (First Group); Afghanistan, Algeria,
Bahrain, Eritrea, Lebanon, Morocco, North Korea, Oman, Qatar, Somalia, Tunisia, the United Arab Emir-
ates, and Yemen (Second Group); Saudi Arabia and Pakistan (Third Group), and Bangladesh, Indonesia,
Egypt, Jordan, and Kuwait (Fourth Group).

109
 No Greater Threat

were required to answer questionnaires, and they were fingerprinted and photographed.1
Various “groups” of immigrants from the named countries had various deadlines to present
themselves to INS offices. Failure to participate could be treated as an immigration violation or
as a criminal offense.
The program faced delays and confusion. Among the most disturbing was overreaching
and arrests at INS offices in Southern California as thousands of immigrants (the total
nationally was more than 80,000) sought to comply with the directive. More unsettling was
that many of those facing legal problems already had submitted to the INS still pending
paperwork on their immigration status but were caught in administrative confusion sorting out
that paperwork. The program was criticized for bias, lack of community outreach, along with
staffing and internal communication problems contributing to delays and difficulties.
In addition to registration, those in the Special Registration program must comply with
ongoing requirements:
— Upon leaving the country, advance notification must be provided and on the day of
depature, a departure check and special departure processing must be conducted at one of 100
designated sites (not always convenient to where the immigrant may be residing), which
involves appearing before a Customs and Border Protection (CPB) officer. Processing by airline
personnel does not satisfy that requirement.
— Notification (if in the United States for more than 30 days) in writing to DHS (Bureau
of Citizen and Immigration Services) of any change of address, employment, or educational
institution within 10 days of the change.
— Additional requirements for nationals from Iraq, Iran, Syria, Libya or Sudan upon entry
into the United States.
Notwithstanding this, anyone can be designated by a customs agent or DHS agent for
Special Registration on an individual basis. Also, DHS can require certain persons to “re-
register” at any time, with 10 days’ notification. This means anyone who was part of Special
Registration must have a current address posted with DHS and be watchful for additional DHS
information or requirements.2 There were other requirements that those in the program re-
register within one year, or after 30 days after initially registering at a port-of-entry. As of
December 1, 2003, it appears DHS has suspended the annual interview and 30-day requirements
for some categories of persons, such as students and scholars.
According to DHS, the NSEERS program (and Special Registration) identified 13,800
persons with suspected “immigration status” violations who were “referred to immigration
courts for hearings” — although the extent to which these "hearings" met with any reasonable
standard of due process is subject to serious debate. The program also supposedly resulted in
denying entry into the U.S. of certain persons with suspected terrorist links — although
available DHS information provides no details of those situations. Civil liberties groups
monitoring the program noted that many of the more than 13,000 identified "violators"—of the
82,000 Arab and Muslim men required to register—may face deportation. These groups
criticized the program as not truly directed to any security issues, but as a targeted “dragnet” to
seize and deport aliens for minor visa violations.

1. New York Times, June, 2002. According to the story, deportations of immigrants from Asian and
African countries have risen by nearly 27 per cent in the last two years. In that same time period, the
numbers of deportations of immigrants from Pakistan, Jordan, Lebanon, and Morocco have doubled, while
deportations of immigrants from Egypt have tripled.
2. Much of this was in an interim regulation published by DHS on December 2, 2003, see 68 Fed.Reg.
67578. It is likely that a final rule has since been published, once the 60 day comment period expired.

110
 Part III: The USA PATRIOT ACT — Titles IV Through VI

Under new visa screening procedures, not necessarily part of Special Registration, males
between the ages of 16 and 25 from Arab states and other Muslim nations will be required to
answer a special, additional visa questionnaire and wait an additional 20 days for processing a
visa application. Not surprisingly, many Arabs and Muslims, especially young men, are having
difficulty obtaining visas to enter the United States or extending their visas, once in the United
States.
There is an “Absconder Apprehension Initiative” which according to the Justice Department or
DHS has targeted an estimated 314,000 foreign nationals still in the United States although they
have received deportation orders (mostly for overstaying visa periods). “Apprehension teams” of
agents from the FBI, INS (DHS), and other agencies are seeking out these “absconders” for
arrest and deportation. Considerable criticism has been leveled at increased efforts to hunt
down “absconders,” since the vast majority of these people pose no terrorist threat whatever.

***

SEVIS Program
Under a newly-enhanced SEVIS program (Student and Exchange Visitor Information
System) program, the government has expanded the requirement that all post secondary schools in
the nation track foreign students. This program was established in 1996 (by the Illegal Immigration
Reform and Immigrant Responsibility Act, later amended by the Immigration and Natural-
ization Service Data Management Improvement Act of 2000, among other statutes). The
program was been given increased attention by PATRIOT Act Title IV and by the Enhanced
Border Security Act.
Nearly 9,000 schools and exchange visitor programs in the U.S. are involved in SEVIS. All
international students and exchange visitors residing in the U.S. and their dependents residing
here (a number estimated by DHS at 770,000 students or visitors, with an additional 100,000
dependents) must register with SEVIS. Student information to be put into this database
includes the student’s name, age, address, major course of study, and student standing.1
Foreign students returning to the United States are subjected to additional screening and
delays.2 Failure by the student or exchange visitor to comply with initial requirements can
result in refusal of entry into the United States. In addition, beginning September 1, 2004, there
will be a $100 registration fee.
DHS (which administers SEVIS through its BICE agency) said the program “is designed
to keep our nation safe while facilitating the entry and exit process for foreign students and
exchange visitors already in the United States and for students and exchange visitors seeking to
come to the United States.” The DHS said that in 2003, 36,600 “potential violators” of SEVIS
requirements were reported to BICE Compliance Enforcement Unit, by various schools.
Violations include failure to report for the educational program involved and expulsion,

1. “New Database Tracks Foreign Students,” Associated Press, February 15, 2003, describing the SEVIS
program, which as noted was initiated in 1996, but received additional expansion, attention, and funding in
the USA PATRIOT Act.
2. “Foreign Students’ Return Stalled by U.S. Screening,” Associated Press, September 1, 2002. The
report said the Bush Administration is implementing a program to check foreign students closely if their
expertise could possibly be used in an attack against the United States, such as those studying biochem-
istry, nuclear physics, and missile telemetry and who are travelling from suspect countries.

111
 No Greater Threat

suspension, or failure to maintain a full course of study in that educational program.1 Of these
reports, 1,591 were considered for further investigation, resulting in 155 arrests.2
According to DHS, a June, 2004 Government Accounting Office (GAO) Report on SEVIS
noted improvements in program administration. Whether the program is quite so positively
viewed by the foreign students and exchange visitors now much more closely monitored closely
by educational institutions, in partnership with the government, is another matter.

***

US-VISIT PROGRAM (AND NSEERS)

The new US VISIT program (United States Visitor and Immigrant Status Indication
Technology), a system using biometrics and advanced technology at entry-exit points in the
United States, is already underway. It was to begin by the end of 2003. DHS officials launched
the first phase of US-VISIT in January, 2004. The system uses biometric technology for passports and
identification for foreign visitors to the United States, especially those using visas (in various
categories). Biometric security systems at border entry points were required in PATRIOT Act
Title IV. It has been in place at 115 airports and 14 seaports.
DHS soon will expand the program to land borders — which supposedly presents
additional challenges, since ordinarily there is no “advance information” when persons use land
border entry points (such as is the case for advance ticket purchase for airline travel). US-VISIT
eventually will replace the current NSEERS system (National Security Entry-Exit Registration
System) and incorporate the SEVIS program.
As the DHS describes it, “Drawing heavily on technologies and scientific capabilities, the
system will utilize a minimum of two biometric identifiers, such as photographs, fingerprints or
iris scans, to build an electronic check in / check out system for people coming to the U.S. to
work, study, or visit.” In other words when the program is in place, all foreigners with visas entering
the United States will be photographed and fingerprinted upon arrival at any air and sea port of entry, with this
identification checked against terrorist watch lists and continually maintained.3 The program
applies to anyone between the ages of 14 to 79.
The process begins overseas with a visa application where a U.S. visitor undergoes a
fingerprint scan and a photograph— that data checked against information on known
terrorists— before a visa is issued. The information is re-checked when the person arrives in the
U.S, to ensure the person arriving is the same person who was issued the visia. The digital
picture is displayed to the customs officer “for visual comparison and confirmation.” A visa
visitor will be required to provide information on immigrant and citizenship status, nationality,
country of residence, and a contact address in the United States.

1. According to the American Association of Collegiate Registrars and Admissions Officers, more
than 200 colleges and universities have turned foreign students over to the FBI, INS (DHS), either as part of
this program or in compliance with other laws.
2. From DHS information. Some arrests and investigations appear to be of a certain value, since
according to DHS one investigation involved corrupt school officials, including officials at a university in
Texas selling fraudulent SEVIS registration forms and transcripts for $150 to $400 each. Other investiga-
tions involved efforts to generate fraudulent registration forms.
3. A person will have their two index fingers scanned and a digital photograph taken to verify their
identity at a point of entry. Visas are required for most students, business travelers depending on length of
stay, and millions of other visitors to the United States, regardless of country of origin. By September 30,
2004, the US-VISIT program will also include persons traveling to the U.S. under the Visa Waiver Program.
This program applies to 27 Visa Waiver countries such as Japan and most European nations. The US-VISIT
program, by definition, would not apply to U.S. citizens.

112
 Part III: The USA PATRIOT ACT — Titles IV Through VI

To implement the program, physical modifications and new equipment will be required
at airport and seaport entry points, as well as at more than 150 land ports of entry. According to
DHS, there also will be “self-serve kiosks” for a person entering the United States to scan travel
documents and fingerprints. Supposedly, if the kiosk system notes a problem, the person would
be notified that entry into or exit from the United States may be delayed or refused. It can be
assumed that the kiosk system would immediately notify on-scene customs or border agents or
security, although how that would operate is not yet detailed.
According to the government, travelers with visas made up 60 per cent, or 23 million, of
all foreign visitors to the United States in 2002 (which means that every year, between 39
million and 40 million people lawfully enter the United States, for stays of short or long
duration). Congress has appropriated $380 million for the new program for 2003, and a
comparable figure $330 million has been included in the federal budget for 2004. (It was
reported that in June of 2004 a Bermuda-based firm called Accenture was awarded a $10 billion
contract to develop and administer the entire US-VISIT program, despite criticism from some
members of Congress about this contract, DHS did not change it.)
The government plans to expand the system to visitors to the United States from 27 “visa
waiver” countries (mostly western Europe, Scandinavia and some countries in the Pacific)—
persons from these countries are not required to apply for a visa to enter the United States. New
passport requirements will be imposed.
Expanding the program when visitors exit the United States is underway as well. DHS has
said the “exit” portion of US-VISIT will ensure that foreign persons entering the US on visa
abide by admission requirements and departure dates. The “exit” system, when in place, will
match departing visitors with their travel documents and visa requirements. DHS is conducting
pilot “exit programs” (at Baltimore-Washington International Airport and International Cruise
Line Terminal in Miami) and announced that it intends to add Chicago O’Hare airport, eleven
other airports, and another seaport to the test system, by the Fall of 2004. This aspect of US-
VISIT also would require a new system infrastructure. Firms reportedly involved in the pilot
“exit” program are Unisys and L-3 Communications.
Concerns about how US-VISIT is designed and implemented and how system
information will be used and stored have been expressed by a collection of 30 civil liberties
groups which, in a recent statement, called upon DHS to develop a clear and accessible policy
for redress, with fair review and rapid appeals, concerning persons caught up in the process in
error. The importance of an effective redress process is particularly strong since DHS
apparently proposes to keep data in one information system to be used by the program, the
Arrival Departure Information System (ADIS), for 100 years.1 The statement noted additional
concerns about privacy and called DHS’s privacy impact assessment flawed. (China is one
example of a country which has expressed its own dissatisfaction with US-VISIT and has
requested that the program not include its citizens.)

1. Other systems affected or utilized by this program are the Advance Passenger Information System
(APIS) (passenger manifest information, in turn to be expanded by the Secure Visit program), Computer
Linked Application Information Management System 3 (CLAIMS 3) (information on foreign nationals
requesting benefits), Interagency Border Inspection System (IBIS) (lookout data on terrorists that links
with Interpol and related systems such as NICIC), Automated Biometric Identification System (IDENT)
(storing information on foreign visitors), the Student Exchange Visitor Information System (SEVIS)
(which has been already noted), and Consular Consolidated Database (CCD) (on valid or invalid visas).
Critics claim that information in many of these systems exceeds the basic information requirements to be
utilized by US-VISIT.

113
 No Greater Threat

The statement also criticized expanding the program to the 27 “visa waiver” countries. It
notes that these countries have not imposed any similar requirements upon U.S. visitors.1
Including in US-VISIT, additional millions of people from “visa waiver” countries who visit the
U.S. each year will be an additional burden on the system and might require documentation
similar to a visa, aside from a passport.
Apparently in an effort to make it simpler to include visitors from “visa waiver” countries
in the US-VISIT program, PATRIOT Act Title IV requires that by October 26, 2004, all
countries in the Visa Waiver Program must certify that they will issue passports which will
comply with biometric identification methods. At this writing, it was unclear whether that
deadline has been met.
The PATRIOT Act requires that the US-VISIT program access federal law enforcement
agency databases involving investigation and detention of aliens (including DOJ and DHS), and
allows this information to be shared by other agencies. Under the Data Management
Improvement Act of 2000, DOJ can allow other federal, state, and local law enforcement
officials access to this data. As stated by one civil liberties group (Electronic Privacy
Information Center), “The expansive purpose of ‘investigative and identification’ leaves open
serious questions as to whether US-VISIT, a border control system, will be used routinely on
the streets of America.”
Although US-VISIT does not involve American citizens, plans are underway for biometric
passports for Americans as well, as part of requiring biometric passports for visa waiver countries.
When the program is fully in place, all Americans returning to the United States from foreign
trips will be processed through a system that scans faces and compares the scan to a digital
photograph stored in a computer chip in the passport.2 The goal is to prevent known terrorists
from using stolen passports to enter the United States. The State Department and DHS plan to
start issuing these passports in a trial run in the Fall of 2004 and to move into full production in
2005.
Driven by PATRIOT Act Title IV mandates and related statutes, “biometric passports”
soon will be an international standard, especially in European nations. Some technology issues
must be resolved, including developing a chip that would last 10 years, the valid period for a
standard U.S. passport.3

***
Selected Congressional Proposals
Related to these developments are additional Congressional proposals concerning
immigration. Two are of particular note (also see review of Congressional proposals related to
the PATRIOT Act, at the Comment at Close of 2004, following Part IV):
(1) The CLEAR Act (Clear Law Enforcement for Criminal Alien Removal) (H. 2671) (see
also discussion at end of Part IV). This would require state and local law enforcement to
investigate, apprehend, and remove aliens, require state and local authorities to report illegal
aliens to the federal government, require states to enact an iimmigration statute in two years or
lose federal funds for state and local prisons, and increases criminal and civil penalties for illegal
entry and failure to report entry to the government. It would put immigration violators on the

1. Visa Waiver Program countries include all Western European, United Kingdom, and Scandinavian
nations, and Slovenia, New Zealand, Australia, Japan, Singapore, and Brunei.
2. See Frank James, “U.S. Moving With Switch to `Biometric’ Passports,” Chicago Tribune, May 15,
2004.
3. Other technology issues to be resolved are privacy and limitation concerns because the chips will
utilize radio frequency identification technology, which conceivably could be intercepted or pirated.

114
 Part III: The USA PATRIOT ACT — Titles IV Through VI

National Crime Information Center database, provide grants to states and localities for
arranging for custody of illegal aliens in local facilities, provide training for state and local law
enforcement personnel, and impose immunity for these personnel from any civil lawsuit for any
action taken under these authorities. The bill also would reward state and local agencies
helping to round up illegal immigrants with a share of any fine or forfeited property. As of the
close of 2004, this bill has not passed Congress.
(2) The Undocumented Alien Emergency Medical Assistance Amendments of 2004 (H.R. 3722). This
would require hospitals and emergency care facilities to report illegal aliens to the government.
The bill would deny hospitals and other health care providers reimbursement for
uncompensated emergency care provided to any undocumented alien, unless those persons
were reported to DHS. Health care providers would have to verify the immigration status of all
uninsured patients with health care emergencies, and transmit information to DHS including
patient’s financial data, identity of employer, and any biometric information available.
Employers of undocumented workers would have to repay the government for any government
reimbursement for medical services. According to critics, the bill would make inability to pay
for medical services a basis for removal from the United States. Critics also state that it would
severely penalize immigrants, jeopardize health care for immigrants, overburden health services
staffs, and pose additional burdens on employers. As of late 2004, this bill has not yet passed
Congress.

***

NO-FLY LISTS, “SECURE FLIGHT” (CAPPS II) AND “REGISTERED TRAVELER”

Although not strictly part of Title IV authorities since Title IV is not in general directed to
travel within the United States or to U.S. citizens, but still within the range of Title IV’s
mandates regarding travel, considerable attention has been paid by airlines and by the
government (especially DHS/TSA and DOJ) to “no-fly lists.” A person whose name is on such a
list—which relates to numerous existing terrorist watch lists kept by government agencies and
in some cases by airlines themselves—either must be given additional screening and possibly
interrogation before boarding an airplane or must be prevented from air travel. (Further
discussion of these programs is found in Comment at Close of 2004 or Expanded Commentary
for 2004 for national security state characteristics in Part V and Part VI.)
Stories abound about innocent persons caught up in this “no-fly list” effort, by accident or
design. One well-publicized 2004 incident involved Sen. Edward Kennedy (D-MA) being
refused permission to board a plane because his name somehow was confused with a name
supposedly used as an alias by a suspected terrorist.1 However, numerous other incidents or
reports of “no-fly lists” indicated that these "lists" are being deliberately used against non-
terrorists, such as persons from certain localities like San Francisco or groups like "Global
Exchange," preventing them from boarding flights apparently because they are involved in
activities critical of the government.
Government agencies and airlines maintain several separate no-fly lists, containing
thousands of names. The Transportation Security Administration (TSA) has two main lists

1. That incident was widely reported. See, e.g., Associated Press, “Error Puts Kennedy On Airline No-
Fly List,” USA Today, August 20, 2004. The story noted that Sen. Kennedy “was stopped five separate times in
March at airports in Washington, DC and Boston as he tried to board US Airways shuttles, because a name
similar to his appeared on a list or his named popped up for additional screening.” DHS apologized for “any
inconvenience” to Sen. Kennedy. As is noted, as of the close of 2004, the ACLU was pursuing lawsuits in San
Francisco and Seattle over the errors and incidents that have plagued these "no fly" lists..

115
 No Greater Threat

which are shared with the airlines and with other law enforcement agencies. Those persons on
these no-fly lists are not permitted to board an airplane, while those on separate selectee lists
are to be more carefully searched and perhaps questioned about travel plans and destinations.
There have been other criticisms of airlines using different lists, airlines using old lists, and
airlines not communicating or interacting properly with government authorities in updating or
reviewing their lists. DHS and DOJ supposedly is reviewing these criticisms, but there still
seems to be no easily-available method for someone to challenge or to remove a name that has
been inaccurately or even accidentally placed on a “no-fly” list.
In April, 2004, the ACLU announced a class-action lawsuit in San Francisco and Seattle
against the TSA “no-fly” lists. The lawsuit is led by seven people — including an Air Force
sergeant and a retired minister — who have been mistakenly detained, questioned,
interrogated, or delayed often causing missed flights, because their names were confused with
other names on “no-fly” lists or were mistakenly placed on those lists.1
The TSA has acknowledged glitches or problems with the system, which have become
much more evident as the lists become ever more extensively used. However, TSA and DHS have
yet not developed or announced any comprehensive redress or correction methods to be used by people who are
mistakenly placed on these lists.
One bureaucratic attempt to avoid “no-fly” list complications and other passenger-
screening difficulties is a Registered Traveler program, in development, which would be
implemented by DHS and TSA. This program, currently in place on a development basis at
airports in Boston, Houston, Los Angeles, Minneapolis, and Washington, DC, will allow
“frequent travelers” to provide certain personal information to DHS and TSA for review and
system retention, which supposedly will make the screening process easier for these persons.
This information will include name, address, phone number, date of birth, and biometric scans
of fingerprints and iris.2
A related program by DHS was “CAPPS II” (Computer Assisted Passenger Prescreening
System), now to be called "Secure Flight." By this system, all persons about to board any domestic
flight are to be checked against government computer records, criminal files, and watch lists.
The system would attach a “code” for each person: green, yellow, or red, before the person
arrives at the airport. A person with a “green” code requires no additional screening attention.
Someone with a “yellow” code would require additional screening or perhaps questioning at the
airport. A person with a “red” code would not be allowed to board an airplane.3

1. Ricardo Alonso-Zaldivar, “Lawsuit Challenges TSA `No-Fly’ Lists,” Los Angeles Times, April 7,
2004.
2. Although it would seem that there would be some resistance to this pervasive use and sharing by
the government of personal information, some opinion polls show otherwise. An article in the February,
2004 Conde Nast Traveler, titled “How Safe Are We Now?” reviewed airline screening systems including the
(now modified) CAPPS II program, and also detailed the developing “Registered Traveler” program. An
opinion poll as part of that article indicated that of those responding, 56 per cent were “very comfortable”
and 29 per cent were “somewhat comfortable” with providing the government personal information to be
used for air travel advance screening systems. The same poll indicated that 36 per cent were “not very
concerned” and 19 per cent were “not at all concerned” that this information might be misused or made part
of a government monitoring program. Also, 76 per cent approved the use of a “registered traveler” program,
indicating that they would participate in it.
3. It should be noted that February, 2004 Conde Nast Traveler in the article, DHS acknowledged that
under current screening systems, 16 per cent of passengers are identified for additional security and
screening. The article states that some observers predict that if a system such as CAPPS II is implemented,
even a small percentage of “false positives” will result in three to four million people each year incorrectly
placed in the “yellow” category, while some persons who could be actual terror threats, might still slip
through the system.

116
 Part III: The USA PATRIOT ACT — Titles IV Through VI

The CAPPS II program received considerable criticism, especially since it is an automated

program, would include all passengers, citizen or not, and there seemed to be no way for someone
to challenge a negative code assignment. In mid-2004, DHS announced a replacement program,
“Secure Flight.” Under Secure Flight, DHS/TSA “will take over responsibility for checking airline
passengers’ names against terrorist watch lists — a function currently administered by each
airline individually.” This move “will help eliminate must of the false alerts caused by the
current out-dated system.”
DHS says this new Secure Flight system “will help move passengers through airport
screening more quickly and reduce the number of individuals selected for secondary screening
— while fully protecting passengers’ privacy and civil liberties.” Once again, the view of DOJ
and DHS concerning what amounts to “protection of privacy and civil liberties” is likely to be
quite different than that of many Americans. The DHS announcement continues:
Significant progress has already been made by the U.S. Government by providing
greatly expanded No-Fly and Selectee lists to airlines to conduct checks on their own
computer systems. New names are being added every day as intelligence and law enforce-
ment agencies submit persons for consideration. Under Secure Flight, TSA will take over
responsibility for comparing Passenger Name Record (PNR) information of domestic air
passengers to a greatly expanded list of known or suspected terrorists in the Terrorist
Screening Center (TSC) database. As the program is phased in, TSA will be able to check
passenger records against watch list information not previously available to airlines.
DHS claims the new program will include a “redress mechanism” for people to resolve
questions “if they believe they have been unfairly or incorrectly selected for additional
screening.” This “redress mechanism” is not yet fully explained. DHS maintains that program
testing and implementation “will be governed by strict privacy protections including passenger
redress procedures, data security mechanisms, and limitations on use.” .
According to DHS, testing for Secure Flight, through TSA, was to begin in the Fall of
2004. (DHS has requested passenger lists from some airlines for a given travel month in 2004, to
test-run through the system.) Once testing is completed, DHS will issue a proposed regulation
for the program. That rule should be carefully reviewed, especially as to what sort of “redress
mechanism” DHS will include.

***

In all, the mandates of PATRIOT Act, including Title IV, have moved quickly through the
government system, taken up directly by DHS and DOJ, especially. Various programs, some
initiated years ago but now in the forefront of government policy, and others and some totally
new, soon will be fully integrated into border control and immigrant tracking systems. Privacy
and redress aspects of these programs must be addressed. At present, attention to these aspects
by government agencies appears unclear, non-existent, or the subject of bureaucratic lip service.
It must be emphasized that no part of Title IV is scheduled to sunset. Although DOJ claims it has
not yet, to date, made use of the broad powers granted under Section 412 to arrest and detain
aliens suspected of terrorism or made use of the authority under that Section to keep any
number of these people in “administrative detention” for a potentially indefinite period, that
situation could change in the near future. Certainly, DOJ has not recommended that this
Section be repealed. Those authorities surely would be used to the fullest in the event of
another major terrorist attack in the United States. Again, information about those arrested or
detained does not have to be supplied by the government.

117
 No Greater Threat

APPENDIX 3-A
It has been suggested by commentators and in some news reports that these secretive and
extended detention provisions without immediate court review could be abused, even to the
point of using torture on detainees. See Jennifer Van Bergen (J.D., Benjamin N. Cardozo School
of Law, New York, and faculty member, New School University, New York), Repeal the USA
Patriot Act, Part III, posted at “truthout.org.” Already lawsuits against the Department of Justice
or the State Department brought by advocacy groups like the Center for Constitutional Rights
and the Center for National Security Studies have made allegations, based on reports, of
shocking incidents of severe mistreatment almost amounting to torture against many detainees.
An amended complaint filed March 18, 2001 in CNSS v. DOJ seeks government accountability
for these and for other similar situations and demands information on detainees. According to
reports, some detainees have been stripped and beaten, blindfolded during questioning,
handcuffed in their cells, forced to take lie detector tests, or made to stay in cells without
sleeping material. Fewer than five of the 718 immigration charges detailed by the government in
connection with these detentions and arrests relate to terrorism. Instead, most of the
government charges involve visa violations, errors or omissions in visa applications, or technical
infractions of visa restrictions.
The article notes (see Part VI) other cases prior to the PATRIOT Act where aliens were
placed in custody by United States officials and in some cases successfully have challenged their
detention. Some examples:
— Hany Kiareldeen, released in October of 1999 after 18 months of detention and
apparently held solely on accusations made during a custody battle by his wife, who
disappeared with their child upon the alien’s release;
— Nasser Ahmed, released after three years in solitary confinement on no charges;
— Anwar Hammad, released after four years although never charged with a crime and
never found to have engaged in terrorism;
— Dr. Mazen al-Najjar, “a respected university professor, a stateless Palestinian, and a
resident in the U.S for 18 years before he was detained. After several years in prison, al- Najjar
was released in December 2000, the judge finding the classified evidence insufficient grounds to
hold him. Free for about a year, he was then taken again into custody, where he currently
remains, on deportation proceedings.” [As of the date of the Van Bergen article in April, 2002].
The Van Bergen article notes that in other terrorism cases prior to the PATRIOT Act,
United States courts have invalidated convictions due to evidence of torture used to extract
information or confessions — although the torture supposedly occurred outside the United
States. The article cites one incident of personal knowledge where a suspect claimed he was
tortured over the course of four months in 1994 by Pakistani military, with the knowledge or
supervision of the FBI. He was later convicted.
The Van Bergen article states that some detainees were held several months without
being charged with any violation. Others were held after they had been granted bail and were
ready to meet bail conditions.
The article cites testimony before the Senate Judiciary Committee by attorney Gerald H.
Goldstein, whose detainee client was arrested on September 12 and held incommunicado until
September 18, despite the detainee’s request for counsel and counsel’s request for access to him.
The article also notes that Amnesty International has called for a full inquiry into
conditions at the federal Metropolitan Detention Center in New York. According to AI as cited
by the article, approximately 40 detainees were confined in solitary cells for 23 hours or more
each day. The Van Bergen article equates this treatment with the severe treatment meted out to

118
 Part III: The USA PATRIOT ACT — Titles IV Through VI

Irish Republican Army members or suspects by British investigators or authorities under

Britain’s Prevention of Terrorism Act — which also allows for suspects to be held and
interrogated for several days without indictment or counsel.
The Van Bergen article argues for a legal standard by which a detainee’s status would be
similar to that of an asylum applicant in challenging evidence which may have been obtained by
torture or deprivation to be used in the detainee’s criminal case. The asylum applicant “is not
required to meet the impossible standard of supplying eyewitness testimony or documentary
proof of past or probable future persecution in his homeland.” Instead, the court may rely upon
“information compiled from credible sources such as international organizations, private
voluntary agencies, news organizations, or academic institutions, to corroborate the applicant’s
testimony.” Applying this standard to challenge evidence in a terrorism case which the detainee
contends was obtained by torture, “a substantial claim of torture by a suspected terrorist would
not per se exonerate him, but would go towards a valid defense.” This would also apply to
evidence obtained by torture of the detainee in another country, and the court could consider
this claim in light of evidence or information supplied or developed by human rights organi-
zations (or even the State Department) on the use of torture or abuses of human rights by police
authorities in those countries.
As is discussed elsewhere, the decision of the U.S. Court of Appeals for the District of
Columbia Circuit in CNSS v. DOJ declares that the government need not be required through
the Freedom of Information Act to provide relevant information or details on such detainees.
However, a detailed review of the condition and treatment these detainees especially in the
Metropolitan Detention Center in New York, was the subject of two highly critical reports
from the Office of Inspector General of the Department of Justice.

APPENDIX 3-B
Subtitle B of Title VI has also been the subject of a Congressional Research Service Report
on its relationship with other compensation funds, including the September 11 Victim Compen-
sation Fund of 2001, which is still being administered for families affected by the September 11
attacks. That Fund was established in Title IV of the Air Transportation Safety and Stabili-
zation Act of 2001 (P.L. 107-42, signed into law September 22). A victim or his or her estate may
seek no-fault compensation from the program, or bring a legal action against an airline or any
other party, but not both (unless the other party is a terrorist — an exemption enacted by the
Aviation and Transportation Security Act, P.L. 107-71, see Section 201).
A Special Master was appointed to administer the compensation fund and establish rules
for review of compensation requests. The regulations were published on December 21, 2001. The
final day for filing claims is December 31, 2003. The claims are to be filed on behalf of the
deceased person’s estate, not for economic loss or pain and suffering suffered by the family
members of the deceased person. Compensation therefore is restricted to “economic loss” due to
the death of the deceased person or certain “non-economic loss” sustained by the deceased
person. Economic loss includes loss of future earnings (but limit of the salary to be taken into
account is $225,000 annually), loss of other benefits related to employment, medical expense
losses, death and burial costs, and loss of business or employment opportunities. Non-economic
loss includes physical pain and suffering sustained by the deceased person, not by the surviving
family members. The amount of compensation is determined solely by the Special Master.
However, the Interim Final Rule on the compensation program states that awards shall be at
least $500,000 for cases where there is a spouse or dependent and $300,000 for cases of a
September 11 victim who was single with no dependents. For non-economic loss for victims

119
 No Greater Threat

who died, the award would be $250,000 for an additional $50,000 for the spouse and each
dependent of the deceased victim.
According to the CRS report (also noting press articles about the fund), the plan would
yield an average payment of $1.65 million per family. This would be before deductions for
compensation obtained through other available federal funds and insurance payments [but
most likely no deduction for charitable payments]. Based on different circumstances such as the
age of the victim, salary being earned, and whether there are surviving spouses or dependents, a
low award would be $350,000 and a high award would be $4.5 million. (See CRS Report at p.
10, citing New York Times and Washington Post articles of December 21, 2001 on the special
compensation fund, and compensation charts posted at http:// www.usdoj.gov/victimcompen-
sation/).
Considerations of victim compensation are not directly involved in the present
discussion. But the interaction between these funds and the congressional intent to provide for
September 11 victims is one indication of the extreme scope of the PATRIOT Act.
As noted in the CRS report, compensation obtained through the compensation program
under Title VI of the PATRIOT Act will affect any claim made through the special compen-
sation fund administered by the Special Master. “This is consistent with the provision of P.L.
107-42 that provides that the Special Master shall reduce the amount of compensation by the
amount of collateral course compensation that the claimant is entitled to receive.”

120
PART IV: THE USA PATRIOT ACT — TITLES VII THROUGH X
The PATRIOT Act ushers in new legal standards, increased surveillance, enhanced search and seizure
authorities, wider information sharing, mandates for new technologies, new designations of “terrorists” and
mandatory detention of suspected foreign nationals, and widens the scope of terrorism and foreign intelli-
gence investigations to include not just federal agencies but also areas of American life from banks to tele-
phone companies, Internet service providers, and educational institutions. Remaining PATRIOT Act Titles
continue the focus on defining “terrorism,” improving investigative technologies, and amplifying the investi-
gation and prosecution powers of federal agencies.

TITLE VII: INCREASED INFORMATION SHARING FOR CRITICAL INFRA-

STRUCTURE PROTECTION

Title VII is the shortest title of all, with just one Section. But it should not be overlooked.
Section 701 amends the Omnibus Crime Control and Safe Streets Act of 1968,1 to establish a new
information-sharing system. This system will “enhance the investigation and prosecution abilities
of participating enforcement agencies in addressing multi-jurisdictional terrorist conspiracies
and activities.” Title VII directs that this system would involve state and local law enforcement
agencies as well as certain federal agencies.
Information sharing is a USAPA motto. Although Congress obviously makes a serious
commitment to this effort in Title VII, exactly what the program is and how it will work is not
defined. Nevertheless, Title VII appropriates $50 million for fiscal year 2002 and $100 million
for fiscal year 2003 to develop this system. The program is to be established and implemented
by the Bureau of Justice Assistance — which now could be expected to place a “help wanted”
sign on its door. The Bureau of Justice Assistance also is given increased responsibilities and
authorities under Title VI.

TITLE VIII: STRENGTHENING THE CRIMINAL LAWS AGAINST TERRORISM

If there was any doubt about the PATRIOT Act’s impact in broadening the legal concept
of “terrorism,” Title VIII is definitive proof that new or previous descriptions of what criminal
acts qualify as “terrorism” will have a new impact. This also means that intelligence activities
including surveillance and searches supposedly directed to the “war on terrorism” can draw
upon this same expansive definition. As with all Act provisions aside from Title II (selected
sections to sunset in 2005) and Title III (to be invalidated by Congress as of October 1, 2005
provided Congress passes a joint resolution doing so [note: as mentioned, this provision in Title
III to allow Congress to inactivate Title III by joint resolution was eliminated by a section of the
Intelligence Reform and Terrorism Prevention Act of 2004]), these sections are permanent.
They also are not necessarily restricted to non-U.S. citizens. In fact, much of the new or
expanded definitions of various crimes, including “domestic terrorism” and the “federal crime of
terrorism,” would appear to be directed to U.S. citizens, since “terrorist activity” and “engaging
in terrorist activity” as to aliens was comprehensively described in Title IV — but that is not to
say that an alien could not be charged with these crimes. There is no citizenship or residency
requirement in any of these definitions.

1.. 42 U.S.C. §3796h.

121
 No Greater Threat

The various Parts of the PATRIOT Act are designed to complement each other, so the
greatly expanded definitions of “terrorism” contained in Title VIII must be brought forward to
the terrorism provisions of all the previous Titles, especially Titles II, III, and IV, and the
statutes they amend. This broadened definition becomes even more profound when combined
with the increased surveillance and enforcement powers in Title II, the heightened financial
investigative powers of Title III, and the sweeping authorities for arrest and detention of
suspected alien terrorists in Title IV.

1. Mass Transportation. Title VIII’s Section 801 adds a new section to the federal criminal
code.1 It relates to attacks “or other acts of violence” against mass transportation systems, and
expands existing law in some areas. The new section criminalizes actions to wreck, derail or
disable mass transportation systems, to place biological agents or other destructive substances
or devices on a mass transportation system (with the intent to endanger passengers), to commit
arson against these systems, or to take any actions against operators, drivers or employees of
these systems.2 The new section, as expected, also covers attempts, threats, or conspiracies to do any of
these acts. These acts are not expressly declared to be “terrorism,” but that is taken up in another
Title VIII section.
Notably, this new section also makes it an offense to convey “knowingly false”
information that any of these acts would occur. This clearly is a congressional response to
“hoax” phone calls about terror attacks, which occurred after the September 11 tragedies.
The new section provides stiff penalties. Commission of the crime without actual death
or potential injury to human life can bring penalties as high as 20 years’ imprisonment. If the
criminal act occurs and the transportation system was carrying any passengers or the death of
any passenger results, the penalty can be life imprisonment. This section adds a new criminal
charge and prosecution avenue to the federal criminal code.3
2. New Crimes of “Domestic” Terrorism and of Harboring Terrorists. As noted in the discussion of
earlier Titles of the Act, Title VIII defines a new crime of “domestic” terrorism.”4 The definition
has four requirements. “Domestic terrorism” is an act which is “dangerous to human life,” AND
which is a crime under federal or state law, AND which “appears to be intended to”: intimidate or coerce a
civilian population, change federal government policy by intimidation and coercion, or “affect the conduct of a
government by mass destruction, assassination, or kidnapping,” AND which takes place “primarily within”
the United States.
This definition is both wide and narrow at the same time. The statute is quite broad in
that it includes any crime. There is no express exception for activities which would be
legitimate expressions of First Amendment freedoms of speech. There has been a concern that
some types of political protest could be treated by federal prosecutors as “domestic terrorism.”
However, political activity or political protest might not come under this Section, since the
“terrorist” conduct, as the statute describes it, not only must be a crime but also must be

1. 18 U.S.C. §1993.
2. The transportation systems encompassed by USAPA §801 (adding new §1993 to 18 U.S.C.)
include: a mass transportation vehicle (such as a bus or train) a ferry, a terminal facility that supports mass
transportation vehicles (bus station or train station), and a mass transportation signal system. Curiously, in
the statutory definition of “mass transportation” borrowed by §801, see 49 U.S.C. §5302(a)(7), school buses
are not included.
3. This section fills in some gaps in previous federal laws making it a crime to attack or to destroy
various transportation systems. Under this Title VIII section it is a federal crime to (many of these crimes
were described in prior federal law):
4. This amends 18 U.S.C. §2331, which previously related to international terrorism, and borrows
from that definition.

122
 Part IV: The USA PATRIOT ACT — Titles VII Through X

dangerous to human life.1 There is also the requirement that the conduct seek to change
government policy by “intimidation or coercion,” which is not quite the objective of political
protests or rallies or marches, even large demonstrations.
The statute is restrictive because all of the four aspects of the definition must be present.
A criminal act that is dangerous to human life but not intended to affect the conduct of
government or influence government policy would not be “domestic terrorism.” A particular
group does not have to claim responsibility or issue a public statement after an incident of
violence in order for the act to be “domestic terrorism.” No such statement ever was issued after
the September 11 attacks, but the definition unquestionably was met in those tragedies. As with
any new definition of this sort, the question is how the borderlines will be set as federal courts
apply the statute.
Title VIII also adds another new section to the federal criminal code, prohibiting the
“harboring or concealing” of terrorist. The new section2 lists various offenses that would be
considered terrorism. These include destruction of aircraft, aircraft piracy, use of biological or
chemical weapons, use of weapons of mass destruction, arson or bombing of government
property, and violence or sabotage against an energy facility, maritime facility, or nuclear
facilities. Anyone who “harbors or conceals” a person whom he or she knows or has reasonable
grounds to believe has committed, or is about to commit, any of those offenses commits a
federal crime. The penalty can be a fine or up to 10 years’ imprisonment.
A related section makes it a crime to lend “material support,” financial or otherwise, or
training or other assistance, to terrorists. The list of offenses includes chemical weapons
offenses, terrorist attacks on mass transportation, and sabotage of a nuclear facility or interstate
pipelines. Other provisions in this Section state such offenses can be prosecuted in any federal
district where the offense was committed. If “material assistance” was provided in one part of
the country but the actual terrorist crime was committed in another part, the prosecution for
assistance to the crime can occur where the crime was committed.
Of potential First Amendment interest is that this section includes references to
providing “expert advice and assistance.”3 Prosecutions claiming that providing an opinion or
advice can be “material assistance” to a crime may run afoul of First Amendment vagueness
concerns.4
A section connected to this confirms that the federal government may seize assets of a
person or organization engaged in planning or carrying out any act of domestic or international
terrorism.5 This tracks the extensive forfeiture provisions found in Title III of the USAPA.

1. This new crime of “domestic terrorism” has raised concerns and alarm that it could be applied to
certain forms of political protest, which not only would have a chilling effect on these forms of protest but
also could be unconstitutional. For a detailed review of that issue, see Appendix 4-A.
2. USAPA §803, adding 18 U.S.C. §2339. Apparently this section was included in the Act at the request
of the Justice Department. According to the Department of Justice Field Guidance on New Authorities
(Redacted) Enacted in the 2001 Anti-Terrorism Legislation, this new offense under Section 803 involves
harboring or concealing persons who have committed or are about to commit various terrorist offenses,
including destruction of aircraft or aircraft facilities, use of nuclear materials or chemical or biological
weapons, use of weapons of mass destruction, arson or bombing of government property, destruction of
energy facilities, sabotage of nuclear facilities, or aircraft piracy. The Guidance states that while there is an
offense in existing federal law of harboring spies (under 18 U.S.C. §792), “there was no comparable terrorism
provision, though the harboring of terrorists creates a risk to national security readily comparable to that
posed by harboring spies.”
3. USAPA §805, amending 18 U.S.C. §2339A(b). This expands the definition of material support to
include expert advice and assistance, indicates that support can include providing funds and so includes
this act as a money laundering offense (see USAPA Title III), broadens the application for other types of
terrorist crimes, and allows prosecution to take place wherever the related terrorist offense occurred.

123
 No Greater Threat

This forfeiture or seizure includes all property or assets, foreign and domestic, of “any
individual, entity, or organization engaged in planning or perpetrating any act of domestic or
international terrorism” or property “acquired or maintained by any person with the intent and
for the purpose of” supporting, planning, or conducting a terrorist act, or “derived from,
involved in, or used or intended to be used to commit” a terrorist act.
Some situations within this forfeiture provision do not require that the property
confiscated be directly linked to the crime itself or be proceeds of (or obtained with the
proceeds of) that crime. A forfeiture of that type is based solely upon the connection of the
property to the offender, rather than upon its connection to the offense. In that respect once
again it presents the same problem of possibly reviving the discarded “forfeiture of estate,” a
means of forfeiture that conflicts with standard notions of civil forfeiture and is condemned in
the Constitution.1 This provision presents the same potential constitutional issue.
Another Title VIII section confirms that United States jurisdiction for criminal
prosecution extends to anyone committing an act of violence against a person in a United States
embassy, consulate, or similar facility. The Section appears to have been included to clear up
any doubts about United States authority to prosecute these crimes, especially as to extradition
requests.2

3. Incorporating and Expanding List of Offenses Qualifying as “Federal Crime of Terrorism” (Interna-
tional Aspects). As was mentioned already, Title VIII’s most significant effect is to confirm and
slightly expand the existing definition of the federal crime of terrorism.3 This definition is
slightly different than the other legal definitions of criminal offenses also affected by Title VIII.
Title VIII adds certain offenses to an already long list in prior federal law.4 The statute
amended by the USAPA is entitled, “Acts of Terrorism Transcending National Boundaries,” and
is directed to an offense “involving conduct transcending national boundaries.” The conduct

4. Humanitarian Law Project v. Reno, 205 F.3d 1130 (9th Cir. 2000). The DOJ Guidance expresses no
such concerns. The DOJ Guidance suggests that expert advice could include advice by a civil engineer on
destroying a building, or by a biochemist on making a biological agent more lethal. Material support, of
course, would also include providing funds. [Note: a provision of the Intelligence Reform and Terrorism
Prevent Act of 2004, signed December 17, 2004 (see §6603 of that Act), attempts to clarify "material
support" language in the wake of this Ninth Circuit decision, and ensure that the definition does not
include legitimate First Amendment activity. Whether this effort to clarify such an inherently vague term as
"material support to terrorism" is yet to be seen.]
5. See USAPA §805 and §806, amending 18 U.S.C. §981(a)(1), adding (G).
1. Constitution, Art. III, §3, cl. 2 and Fifth Amendment. And see United States v. Grande, 620 F.2d 1026
(4th Cir. 1980). However, the DOJ Guidance expresses no misgivings about this type of forfeiture. It views
USAPA Section 806 as providing additional means of striking at terrorist organizations and reducing the
often difficult or laborious process of tracing funds or accounts used by terrorists, which can be scattered in
the banks of several countries. Still, whether forfeiture provisions this dramatic can survive constitutional
challenge is yet to be seen. The USAPA’s use elsewhere of the International Economic Emergency Powers
Act and its forfeiture provisions are designed to follow this overall Act approach of preventing or striking at
terrorism by reaching or affecting its financial support.
2. This Section touches upon a legal jurisdictional debate over the nature and reach of United States
special maritime jurisdiction and of United States territorial jurisdiction. There were different views in the
federal courts over whether laws applying to federal enclaves, either domestically or in American territories
overseas, also apply to overseas areas where the federal government has only “proprietary control.” United
States v. Gatlin, 216 F.3d 207 (2nd Cir. 2000); United States v. Laden, 92 F.Supp.2d 189 (S.D.N.Y. 2000) took one
view of the issue while the other view was represented by cases such as United States v. Corey, 232 F.3d 1166
(9th Cir. 2000), and United States v. Erdos, 474 F.2d 157 (4th Cir. 1973).
3. USAPA §808, amending 18 U.S.C. §2332b(f) and (g).
4. See prior §2332b(g)(5)(B).

124
 Part IV: The USA PATRIOT ACT — Titles VII Through X

(which, as in other provisions, includes threats and conspiracies) would have to be planned or
carried out either outside the United States or partially outside United States borders.
As amended by Title VIII, the “federal crime of terrorism,” as the statute calls it, must
transcend national boundaries, be “calculated to influence or affect the conduct of government
by intimidation or coercion, or retaliate against government conduct” and be a violation of one
or more specifically listed federal statutes, usually posing a substantial risk of serious bodily
injury. These are (italics are offenses added by USAPA):

— destruction of aircraft or aircraft facilities

— violence at international airports
— violence against maritime installations or facilities
— wrecking trains
— acts of violence against mass transportation systems
— destruction of national defense materials, premises, or utilities
— arson or bombing of government property risking or causing death
— arson or bombing of property used in interstate commerce
— sabotage of nuclear facilities or fuel
— destruction of interstate gas or hazardous liquid pipeline facility
— destruction of an energy facility
— use of weapons of mass destruction
— use of biological weapons
— use of chemical weapons
— use of nuclear materials
— use of plastic explosives
— assault on a flight crew with a dangerous weapon
— use of explosive or incendiary devices or endangering life by use of weapons, on an
aircraft
— killing or attempted killing on an aircraft
— assassination or kidnapping of President or White House staff,
— assassination or kidnapping of member of Congress, Cabinet, or Supreme Court
— killing or attempting to kill federal officers or employees
— murder or manslaughter of foreign officials, official guests, or internationally pro-
tected persons,
— killing or attempted killing during an attack on a federal facility with a dangerous
weapon
— conspiracy to kill, kidnap, or harm persons abroad
— killing or violence against United States nationals abroad
— torture
— hostage taking
— crimes involving computer security and protection1
— destruction of communication lines, stations, or systems,

1. 18 U.S.C. §1030 and (a)(1)). see 18 U.S.C. §1030(a)(1), (a)(5)(A)(i) and (B)(ii).

125
 No Greater Threat

— harboring terrorists, and

— providing material support to a terrorist organization.

Notably, some offenses that were included in the prior list are removed by Title VIII.
These include offenses related to government contracts, producing defective national defense
materials, assault, and malicious mischief. The definition is a comprehensive list of terrorist
crimes. It can be assumed that, as in other provisions, attempt to commit or conspiracy to
commit any of these crimes also is within the definition. The scope of federal surveillance,
investigation, information sharing, and prosecution of terrorism will be based in general on the
terrorism definitions of Title VIII. [Note: some additions and clarifications of the "federal crime
of terrorism" are also included in the Intelligence Reform and Terrorism Prevention Act of 2004.
See discussion of that Act elsewhere.]
This new definition also relates to investigations of aliens described in Title III and the
DNA information network mentioned in Title V. As mentioned, the DNA information of any
person convicted of committing, attempting to commit, or conspiring to commit any of these offenses under
this new and expanded list in Title VIII’s amended 18 U.S.C. §2332(g)(5)(B) will now be part of the DNA
information network.
**Special Note: With a new definition of “domestic terrorism” and an expanded definition
of “the federal crime of terrorism,” other Sections of other Titles in the USAPA become more
significant. Any reference in any other USAPA Section of “terrorism” or “terrorist acts,”
including the certification of an alien as a terrorist or a member of a terrorist group under Title
IV, or investigation of money laundering or funds transfer for “terrorism” under Title III, could
also reference these definitions. This is despite the near-complete definitions of “terrorist
activity” and “engaging in terrorist activity” in Title IV and the seven very specific bases for
certifying an alien under the mandatory detention provisions of Title IV, for the last “certifi-
cation” basis of an alien for mandatory detention is, “engaged in any other activity that
endangers the national security of the United States” — and some of these definitions could fit
into that open-ended language. Since it is also a crime to conspire to commit or to attempt to commit
any of these acts, these definitions become extremely significant, as they are broad.
Also, federal investigation into this entire list of crimes, including attempts and
conspiracies, would be a legitimate investigation into “terrorism.” That brings in many of the
investigative, surveillance, search and prosecution provisions of Titles II and III. Of particular
concern is the inclusion in this list of certain crimes involving computer systems. Given the
wide use of computer systems, special attention will need to be paid to how the federal
government will treat the addition of this offense in the Title VIII’s expanded definition of
“terrorism.”**

4. New Statutes of Limitation, Including No Statute of Limitation for Certain Terrorism Offenses,
Increased Penalties. A related section1 extends the statute of limitations for these offenses to eight
years, generally. But if the terrorist act “resulted in or a created a foreseeable risk of” death or
serious bodily injury to another person, there is no statute of limitation. The section applies to
any offense committed “before, on, or after” the USAPA went into effect.2
Not stopping at expanding definitions and changing statutes of limitations when it comes
to terrorist acts, Title VIII also changes maximum penalties for certain terrorist offenses.3 In general, if

1. §809, 18 U.S.C. §3286.

126
 Part IV: The USA PATRIOT ACT — Titles VII Through X

the terrorist act has resulted in the death of any person, the penalty is up to life imprisonment.
These include:
— arson: changed from 20 years to up to life imprisonment;
— destruction of an energy facility (or causing more than $100,000 damage): changed
from 10 to 20 years if not resulting in the death of a person, and up to life imprisonment if
death has resulted;
— material support to terrorists: changed from 10 to 15 years if death of person has
not resulted, and up to life imprisonment if death has resulted;
— destruction of national defense materials: changed from 10 to 20 years if death of
person has not resulted, and up to life imprisonment if death has resulted;
— sabotage of nuclear facilities or fuel: changed from 10 to 20 years for various
offenses if death of person has not resulted, and up to life imprisonment if death has
resulted
— certain aircraft offenses: changed from 15 to 20 years if death of person has not
resulted, and up to life imprisonment if death has resulted;
— damaging or destroying an interstate gas or hazardous liquid pipeline facility:
changed from 15 to 20 years if death of person has not resulted, and up to life imprison-
ment if death has resulted.

A similar section in Title VIII1 increases penalties for “terrorist conspiracies” or adds
conspiracy counts to other existing federal crimes. These include: arson, killings in federal
facilities, destroying communication lines, stations or systems, destroying of maritime facilities,
sabotage of nuclear facilities or fuel, damaging or destroying interstate gas or hazardous
pipeline facility, wrecking trains, interference with flight crew members and attendants on
aircraft, providing material support to terrorists, and torture. A person convicted of conspiracy
as to any of these offenses is subject to the same penalty as the offense, aside from the death
penalty.
Another Title VIII section extends the reach of “supervised release” (post conviction
release on conditions, similar to parole) to new boundaries.2 The section provides that if a
federal court, as part of sentencing a person convicted of any of the “federal crime of terrorism”
offenses in 2332(g)(5)(B) (the long list of terrorist acts in that new section), imposes

2. USAPA §809, amending 18 U.S.C. §3286. The provision extends the usual five-year statute of limi-
tation for federal crimes, to eight years involving any of the crimes of terrorism on the Title VIII list. It
appeared that the Bush Administration recommended there be no statute of limitations as to any terrorist
crime. Instead, the Act eliminates the statute of limitations if the terrorist crime involves a risk of, or results in, death or
serious bodily injury. The DOJ Guidance states that these new limitations periods “will make it possible to
prosecute the perpetrators of such terrorist acts whenever they are identified and apprehended.” The
statute is also retroactive, which will allow for prosecution of the September 11 offenses under these provi-
sions. Retroactive changes in statutes of limitation for criminal offenses have been found constitutional.
United States v. Grimes, 142 F.3d 1342 (11th Cir. 1998).
3. USAPA §810.
1. USAPA §811.
2. A “protected computer” is a computer used by a federal agency, a computer used by financial
institutions, or a computer used in interstate or foreign commerce (which covers a long list of computers,
and could include even a standard home computer used to make purchases over the Internet). 18 U.S.C.
§1030. In that definition, the Section clarifies that a protected computer also can include a computer in the
United States used to route computer hacking activity to other locales. This definition gives United States
government jurisdiction over the crime, even if a United States computer was not damaged or affected.

127
 No Greater Threat

“supervised release,” the term of that release can be nearly indefinite. If the offense resulted in or
created a foreseeable risk of death or serious bodily injury, supervised release can be any number
of years, up to life.1 This means that supervised release can be life or any term less than a person’s
natural life, for example 15, 20 or 25 years. Such supervised release terms were virtually unheard
of in the federal system up to this point.
Still another Title VIII section includes acts of terrorism as a racketeering activity.2 This
substantially amends federal law by adding the long list of offenses in the amended 18 U.S.C.
§2332(g)(5)(B) to racketeering offenses, as well. This provision now brings RICO
(Racketeering Influenced and Corrupt Organizations Act) into the investigation and
prosecution of terrorist crime.

5. “Cyberterrorism.” Going even farther, Title VIII moves into the area of “cyberterrorism.” In
Section 814, new crimes are added relating to computer systems. As to protected computers,3
the offense includes any activity which causes or would have caused a “loss” to one or more persons
during any one-year period of at least $5,000 in value, modification or impairment of medical
diagnosis or treatment, physical injury, threat to public health, or damage to any computer
system used by any government entity (a very broad definition and would include state and
local governments and agencies of any kind) “in furtherance of the administration of justice,
national defense, or national security.”
The term “loss” means “any reasonable cost” to the victim, including the cost of
responding to an offense, conducting a damage assessment, or restoring data or program or
system to a condition or status prior to the offense. The “loss” also can include “any revenue lost,
cost incurred, or other consequential damages incurred because of interruption of service.”4
This means a “terrorist” crime or “cyberterrorism” can include hacking into or damaging a
computer system, or sending out a virus that damages or delays or otherwise harms computer
systems or networks, especially if they are government computer systems used by a government
agency engaged in justice, national defense, or national security.
In addition, the Section allows for an amendment to federal sentencing guidelines for
imposition of “appropriate penalties.” This can include any mandatory minimum term of
imprisonment. There are enhanced penalties if the computer attack or trespass involved federal
computers used in criminal investigation, national defense, or national security, even if the
“loss” is not $5,000 or more.5

1. For a description of supervised release and its conditions and restrictions, see United States
Federal Sentencing Guidelines. The restrictions upon supervised release, as may be imposed by a court or as
required by Federal law, can be burdensome, although they are intended not to be so. However, the objec-
tive is for supervised release to be for a limited period of time. Now, the term can be for life. It is possible that
such an imposed term could be subject to constitutional challenge, although no such sentence has yet been
imposed. The DOJ Guidance states that a lifetime supervised release “permits appropriate tracking and
oversight following release of offenders whose involvement with terrorism may reflect lifelong ideological
commitments."
2. USAPA §812.
3. USAPA §813, amending 18 U.S.C. §1961(1). The DOJ Guidance states that this amendment will
make it possible “to use RICO more readily in the prosecution of terrorist organizations.” This amendment
therefore also will be relevant in investigations under USAPA Title II and III, along with those statutory
amendments.
4. This tracks the wider approach to what is “loss” in computer crime, discussed in United States v.
Middleton, 231 F.3d 1207 (9th Cir. 2000).

128
 Part IV: The USA PATRIOT ACT — Titles VII Through X

This Section makes several changes in the Computer Fraud and Abuse Act. The penalty is
now 10 years for first offenders and 20 years for repeat offender.1 Prior law provided for only
five-year penalty for first offenders. The change is a recognition that even first offenders can
cause severe damage to computer systems.2
The Section also clarifies the intent of the crime — that the person only intend that some
damage result from the hacking and need not intend that the damage be a certain dollar amount.
Also, “damage” to a computer is deemed to be any “impairment” of the integrity and availability
of data, a program, a system, or information. If damage of less than $5,000 occurred to more than
one computer from a single computer hacking or trespass incident, with a total combined
damage or loss of $5,000 or more, the government now can prosecute the crime based on the
accumulated loss over several computers.
Turning to cyberterrorism investigations, the Act authorizes the Justice Department to
establish “regional computer forensic laboratories.”3 This new program would permit review
and analysis of computer forensic evidence, training and education of federal, state, and other
law enforcement personnel as to computer crime and analysis of investigative information, and
sharing of information and expertise. Title VIII authorizes $50 million for this effort.

6. Restrictions on Possessing or Transporting Biological Toxins. Finally, Title VIII adds a §175b to
the criminal code, involving restrictions on persons who can have or transport biological agents
or toxins. It is an offense to possess or transport a biological agent or toxin, if the person doing
so is: under indictment or has been convicted of a crime punishable by more than one year in
prison, a fugitive from justice, a drug abuser, an illegal alien, found by a court to be a mental
defective or been committed to any mental institution, an alien who is from a country
designated by the State Department as a country supporting terrorism, or dishonorably
discharged from the armed forces. The penalty can be a fine or imprisonment up to 10 years. The
Act also expands the biological weapons statute to include a specialized crime of possession, to
include all situations where the person did not have a legitimate, research, or other peaceful use
for the material.4
The PATRIOT Act, under Title VIII, greatly expands definitions of terrorism and
conspiracies. The definitions of “domestic terrorism” and “federal crime of terrorism” are as
expansive as they are significant. Since Title VIII, like most of the PATRIOT Act, does not

5. The DOJ Guidance notes: “attacks on computers used in the national defense that occur during
periods of active military engagement are particularly serious — even if they do not cause extensive damage
or disrupt the war-fighting capabilities of the military — because they divert time and attention away from
the military’s proper objectives. Similarly, disruption of court computer systems and data could seriously
impair the integrity of the criminal justice system.” [Additional discussions and revelations of government
concerns about cyberterrorism and cyberspace can be found in the "national strategy" document, The
National Strategy to Secure Cyberspace, summarized elsewhere in this edition, as part of a summary of various
anti-terrorism "national strategy" policy documents.]
1. For federal sentencing purposes, Title VIII now clarifies that a prior state conviction for a
comparaable crime 1can be a prior offense, which could trigger the repeat offender sentencing provisions
and double the maximum penalties. A state computer crime felony that includes unauthorized access, or
exceeding authorized access, to a computer, can now count as a prior federal offense.
2. The DOJ Guidance states, as an example, that the person who pleaded guilty to releasing the
“Melissa” virus which damaged thousands of computers across the Internet agreed as part of the plea that
the virus caused damage amounting to at least $80 million (which is the maximum Sentencing Guidelines
figure). However, according to the Guidance, experts estimated that the total damage to computer systems
might have been as high as $800 million.
3. USAPA §816.
4. USAPA §817, amending 18 U.S.C. §175 and adding §175b.

129
 No Greater Threat

sunset, these definitions will be defining frameworks for federal government authorities
involving terrorism in any form. The broad surveillance and investigation powers granted by the
PATRIOT Act certainly could be employed as to any of this increased list of offenses.

TITLE IX: IMPROVED INTELLIGENCE

As if the expanded investigation, surveillance, and search and seizure powers already
granted by the PATRIOT Act were not enough, even greater surveillance powers are granted by
Title IX. Once again, while some of the other PATRIOT Act provisions in this area (such as
some Sections of Title II and entire Title III) may sunset or become inactive after a period of
time, these provisions are permanent.

1. Information Sharing. Continuing with the USAPA’s information sharing theme (although,
as noted, how much information can be shared, assessed, analyzed, and stored is an open
question), Title IX in Section 901 provides that foreign intelligence information obtained by the
CIA or information obtained by the Justice Department “from electronic surveillance or
physical searches” done under the Foreign Intelligence Surveillance Act can be shared. This
supplements information sharing provisions already in Title II and Title III. This Section
provides that the agencies may “establish requirements and priorities” for information sharing.
[Of course, as is well known, "information sharing" has now become a government anti-
terrorism watchword, and broad information sharing provisions are included in various other
statutes enacted since the PATRIOT Act, including the Homeland Security Act of 2003 and the
Intelligence Reform and Terrorism Prevention Act of 2004. Both of those Acts are reviewed or
summarized elsewhere in this edition.]
That is, the Section states that requirements and priorities are to be established for
foreign intelligence information gathered under the FISA (expanded by certain provisions of
Title II) “to ensure that information derived from electronic surveillance or physical searches
under that Act is disseminated so it may be used efficiently and effectively for foreign
intelligence purposes.” There is the restriction that this information must be obtained through
established procedures, but those procedures already have been expanded.
Section 902 includes international terrorist activities among the activities that can be
investigated under the FISA. This also expands the sort of search and seizure warrants to be
sought by government investigators under the FISA. That is, activities of international
terrorists are formally added to the definition of “foreign intelligence.” Because that definition is
used so extensively, especially in Title II of the Act, this provides an even further expansion of
federal investigative and surveillance powers.
Another highly interesting Section, 903, encourages federal intelligence agency officers and
employees to “make every effort” to “establish and maintain intelligence relationships with any
person, entity, or group for the purpose of engaging in lawful intelligence activities.” This
includes obtaining information on “identity, location, finances, affiliations, capabilities, plans,
or intentions” of a “terrorist or terrorist organization.” This effort also includes information on
“any other person, entity, or group (including a foreign government) engaged in harboring,
comforting, financing, aiding, or assisting a terrorist or terrorist organization.”
This language is so grandiose as to be either dangerous or merely outlandish. An
“employee” of a federal intelligence agency such as the CIA, NSA, or DIA, presumably at any
employment level, can consider — on his or her own — that a given individual might be a
“terrorist.” With such expansive definitions in the Act of “terrorist,” “domestic terrorism,”
“terrorist crimes” and also noting that this Section includes “harboring, comforting, financing,

130
 Part IV: The USA PATRIOT ACT — Titles VII Through X

aiding, or assisting” a terrorist as well as conspiracies and attempts, suspicion can fall upon
almost anyone who might be believed to be doing anything unusual — even a neighbor. The
employee is encouraged to develop information on this individual, entity, or group by
maintaining an “intelligence relationship.” What that term could mean is not described and for
those not familiar with the inner workings of intelligence or covert activity, is left to the
imagination.
The potential for abuse of this provision is obvious. It actually permits federal intelligence
officers and employees to spy on any suspected person and to conduct their own intelligence
relationships designed to investigate such persons. With the wide authority for searches,
seizures, and information permitted throughout by the Act simply on the presentation by a
federal investigator or official of a written certification or demand, these investigations can
explore private information from telephone and Internet records to consumer reports. It is
difficult to imagine the extent of this sort of activity, when it is also considered that Title IX
also is permanent. Provisions of this sort are unworthy even of the extreme approaches taken by
many other Sections of the Act.
Of special concern and interest is Title IX’s authorization that information obtained in
other criminal investigations can be disclosed to the CIA. Title IX’s Section 905 amends the
National Security Act of 1947.1 If in the course of “any criminal investigation” by any federal
agency with investigation and prosecution authority (and this would include the ATF and
DEA), the investigation acquires “foreign intelligence,” that information “shall” be “expedi-
tiously” disclosed to the CIA. The only restriction for such information sharing is whether this
disclosure might jeopardize an ongoing investigation.
As is also reflected in other parts of the USAPA, the information sharing is to go both
ways. The Section mandates that within 180 days from the effective date of the USAPA, the
Justice Department and the CIA are to develop guidelines “to ensure that after receipt of a
report from an element of the intelligence community of activity of a foreign intelligence source
or potential foreign intelligence source that may warrant investigation as criminal activity,” the
Justice Department will notify the CIA, within a reasonable time, whether the Justice
Department will open a criminal investigation.

2. International Cooperation in Information Sharing. Another aspect of Title IX's general open-
ended approach, reflected as well in other areas of the USAPA, is international cooperation,
including encouraging efforts by federal intelligence agencies to link up with or share
information with other foreign intelligence agencies. This information certainly will involve any
details obtained by a host of other foreign intelligence sources on terrorism and will be now
used, traded, or exchanged by other federal agencies in their effort to identify and track down
suspected terrorists. It can also include such activities of any person or group engaged in
“harboring, comforting, financing, aiding, or assisting” a terrorist or terrorist organization.

3. Foreign Terrorist Asset Tracking Center. Again emphasizing the USAPA’s abiding interest in
authorizing the investigation and gathering of as much information as possible, Title IX
authorizes expanded scope of the Foreign Terrorist Asset Tracking Center and the Office of Foreign
Assets Control.2 The expanded capabilities of these offices authorized by Title IX would allow

1. Adding 50 U.S.C. §105B.

2. The OFAC functions and the OFAC list were discussed concerning Title III. The Foreign
Terrorist Asset Tracking Center was announced by the Treasury Department after the September 11
attacks. It consists of agents from Customs, OFAC, IRS, FBI, and CIA.

131
 No Greater Threat

expanded investigations regarding foreign assets in the United States and elsewhere, relating
also to Title III investigations.
Title IX provides that by February 1, 2002, the Justice Department, Treasury Department
and the CIA were to jointly report to Congress on expanding these tracking programs to
sharing information on “the financial capabilities and resources of international terrorist
organizations.” This report is to include whether the Treasury Department’s Financial Crimes
Enforcement Center (FinCEN, itself expanded and enhanced by the Act) can be brought into
the tracking program. If the report is positive in this respect, it is to include a proposal for new
legislation. [Other similar government tracking projects regarding anti-terrorism now include
the Terrorist Threat Integration Center, joint terrorism task forces, and , soon to come, the
National Counterterrorism Center (NCTC), established bv the Intelligence Reform and
Terrorism Prevention Act of 2004. See summary of that Act elsewhere and summary of anti-
terrorism programs in appendices following Part VII.]

4. Potential New Translation Agency or Office. Along the same lines, Title IX Section 907
requires that by February 1, 2002 the CIA is to submit a report to various Congressional
committees to establish a new intelligence office or agency. The new office will be devoted to “timely
and accurate translation of foreign intelligence for all other elements of the intelligence
community.” This includes any element of the intelligence community named in the National
Security Act.1
The CIA report is to discuss current technologies, integrating existing translation
capabilities, and utilizing “remote-connection capacities” to minimize the need for a central
physical facility. Clearly, this would also affect the National Security Agency, an agency
conspicuously absent in the broad breadth and scope of the PATRIOT Act’s expansion of
investigative and surveillance powers. Other areas to be covered by the report are also described
in this Section, including staff needed, communication capabilities, interfacing this information
system with FBI systems, and security of the information.

5. Inter-Agency Training Program.Finally, in another far-reaching provision leaving no doubt

whatever that the USAPA is designed to usher in a new era of cooperation and information
sharing among federal investigative agencies, Section 908 requires that an ongoing training
program be set up jointly by the Justice Department and CIA for its respective investigators, on
sharing “foreign intelligence” information in federal agencies.
The program would assist officials in identifying and utilizing foreign intelligence
information in their duties. It would be intended for federal officials or investigators who
ordinarily are not engaged in the collection, dissemination, and use of foreign intelligence, and
officials of state and local governments who may encounter in the course of a terrorist event,
foreign intelligence. The Section authorizes such funds as may be necessary to carry out this
program.
The expanded intelligence capabilities and information sharing in Title IX are significant.
Consistent with other Act Titles, Title IX makes it publicly and abundantly clear that there is to
be a new atmosphere of cooperation and exchange of information when it comes to “foreign
intelligence.” This information is to be shared among these agencies, between other intelligence
agencies (including the NSA and the Defense Security Agency), and among other federal
Departments such as State and Treasury. The information systems established under the
PATRIOT Act will no doubt be highly sophisticated. And their existence will be permanent.

1. See 50 U.S.C. §401a(4).

132
 Part IV: The USA PATRIOT ACT — Titles VII Through X

TITLE X: MISCELLANEOUS
The final Part of the PATRIOT Act is Title X. It may be titled “Miscellaneous,” but it
should not be considered a congressional afterthought. Title X contains a host of other
provisions affecting other Titles of the Act, or establishing new programs. These sections are
also permanent.

1. New Justice Department Office to Track Complaints. Among the most intriguing of these Title X
Sections is the first one. Section 1001 requires that the Justice Department’s Office of the
Inspector General designate an official to “review information and receive complaints alleging
abuses of civil rights” by Justice Department officials and employees. This supposedly would
include FBI agents acting in various overzealous or improper ways in carrying out their
massively expanded investigatory powers under the PATRIOT Act.
However, it appears that Congress also intended this Section to provide for oversight of
the FBI, due to recent situations of security lapses.1 The Section also is directed to abuses of civil
liberties and racial and ethnic profiling.2 Of course, other sections of the PATRIOT Act make it
extremely difficult for anyone to bring a civil action against any of these employees and investi-
gators and limit the ways in which any action can be filed.
To publicize this office, the Justice Department is to make public “through the Internet, radio,
television, and newspaper advertisements” information on the responsibilities of this office and how to
contact the office. The Section does not describe how often and where these ads are to appear.
Supposedly, that is left up to the Justice Department. So far, the Justice Department does not
appear to have seen fit to conduct any type of nationwide ad campaign to inform Americans of
this new office, which supposedly was to be established as of the date the PATRIOT Act
became effective.
Further, the Justice Department’s Office of Inspector General is to make a semi- annual
report to the House and Senate Judiciary Committees about the complaints received by this
special office. The report is to include information on the complaints of civil rights abuses and
the use of funds to carry out the responsibilities of the office.
**Special Note: Exactly what this new office is to do with any complaints it is to receive
and review is not described. Supposedly, it can pass the information on for possible internal
administrative action or discipline. Congress might intend to do something with the
information it receives on a semi-annual basis. But the time frame involved would mean that
immediate action by Congress on civil rights abuses would not occur. Also, the Section does not
require the House and Senate Judiciary Committees to do anything with them. At the least, the
Section does not expressly state that reports are confidential. Perhaps, then, Congress would
make them public. The first such report would be of special interest. If the Section is meant to

1. According to the House Judiciary Committee report, “In the wake of several significant incidents
of security lapses and breach of regulations, there has arisen the need for independent oversight” of the FBI.
The Section directs the Inspector General of the DOJ to appoint a Deputy Inspector General for Civil
Rights, Civil Liberties, and the FBI “who shall be responsible for supervising independent oversight of the
FBI” until September 30, 2004. However, there is no express time limit in §1001 on the duration of this
office.
2. The problem of racial and ethnic profiling is becoming an ever-increasing concern and warrants
even more serious attention, given the substantial surveillance and investigation powers of the PATRIOT
Act. See discussion in James X. Dempsey and David Cole, Terrorism and the Constitution; Sacrificing Civil Liberties
in the Name of National Security, (First Amendment Foundation, 2nd Ed. January, 2002).

133
 No Greater Threat

establish a more direct review of the actions of the FBI, and thus become more internally
directed, little may come of the other purposes provided.**
Echoing a similar provision in Title I as to Arab or Muslim Americans, Title IX condemns
bigotry and acts of violence against Sikh-Americans. In the wake of the September 11 attacks,
Sikhs have faced violence and discrimination. Section 1002 expresses the “sense of Congress”
that such crimes be prosecuted to the fullest extent of the law and asks that federal and state
law enforcement agencies “work to prevent” these crimes.

2. Clarification of Computer Crimes, Adding “Trespassers,” Other Venue Provisions. Title IX Section
1003 amends the Foreign Intelligence Surveillance Act adding to 50 U.S.C. §1801(f)(2) and
stating that activities described there “does not include the acquisition of those communi-
cations of computer trespassers that would be permissible” under 18 U.S.C. §2511(2)(i). In other
words, information on computer hackers can be obtained through other investigative means.
This means that an FISA surveillance order may be issued to acquire the communications of a
computer trespasser in a qualified investigation.
Another Section establishes venue in prosecuting money laundering cases. (This relates to
Title II and III provisions concerning money laundering investigations.) The provisions are
technical, and add a new subsection to 18 U.S.C. §1004. The Section permits prosecution for
money laundering where the underlying crime occurred, if the defendant was involved in
transferring funds obtained from this offense from the location of the offense to another location
where money laundering occurred. This language resolves jurisdictional debates among the
federal courts over where a money laundering offense could be prosecuted.

3. Additional Investigation and Training Under “First Responders Assistance Act.” Even further
surveillance and investigation is authorized by the PATRIOT Act under Title IX’s Section 1005.
This particular Section is an Act unto itself, titled, “First Responders Assistance Act.” The Section
allows for grants to state and local law enforcement, fire department and first responders “to
respond to and prevent acts of terrorism.” These Section 1005 grants under the First
Responders Assistance Act can be used for a wide range of purposes. They include:
— hiring new law enforcement personnel “dedicated to intelligence gathering and
analysis functions, including the formation of full-time intelligence and analysis units”
— purchasing technology and equipment for intelligence gathering and analysis,
including wiretap, pen links, cameras, and computer equipment
— purchasing equipment for “responding to a critical incident,” including protective
equipment for police
— purchasing equipment for “managing a critical incident” such as communications
equipment for “improved interoperability among surrounding jurisdictions and mobile
command posts for overall scene management”
— funding technical assistance programs to emphasize coordination among local law
enforcement agencies for sharing resources and combining intelligence gathering and
analysis functions, and
— developing new policies and procedures.
Additional grants authorized by this “First Responders Assistance Act” are “anti-
terrorism training grants.” These can be used for:
— intelligence gathering and analysis techniques
— community engagement and outreach

134
 Part IV: The USA PATRIOT ACT — Titles VII Through X

— critical incident management for all forms of terror attack

— threat assessments
— conducting follow-up investigations
— stabilizing a community after a terrorist attack.
How these grants would be issued, managed, and reviewed is described only generally.
Title X gives the Justice Department authority to develop grant requirements.
The money authorized is substantial. Title X appropriates $25 million for each of the fiscal
years 2003 through 2007 for these grants. No doubt, the Justice Department or associated agency or
office will need a new group of personnel to receive, review, and process the rush of grant
applications likely to come from state and local law enforcement agencies or offices around the
country, and to track grant programs and activities.
A whole new training industry will arise due to these large grants. Firms manufacturing
high tech surveillance and investigative equipment will see a new dawn. Beyond this, it is
possible that through these grants, funds to purchase intelligence or surveillance sophisticated
equipment by even local law enforcement agencies can be obtained without going through local
government boards or state authorities, by direct application to the Justice Department.
Although there will likely be checks and balances, Title X leaves considerable gaps to be filled
in as to how this grant program will be established and conducted.
Another Title X provision, Section 1006, relates to further efforts in money laundering
investigations. This includes non-admissibility of an alien who may be engaged in money
laundering. The Section also establishes a money laundering watch-list that tracks suspected
money launderers. The watch-list is to be updated by with information sharing between State,
Justice, Treasury, and CIA.
Another Title X Section allows for training of DEA agents or cooperating law
enforcement in Turkey and other areas such as South and Central Asia.1 The Section
appropriates $5 million for this. This Section was a recognition that terrorists groups in
Afghanistan have funded their activity in part by heroin trafficking (and may have passed these
proceeds to other groups). Afghanistan has become a major supplier of heroin to the West. The
Section authorizes DEA agents to train police in Turkey and in countries in South and Central
Asia on programs to disrupt heroin production in Afghanistan.

4. Biometric Identifier Systems, Airline Passenger Information. Continuing with the PATRIOT Act
interest in tracking aliens and using biometric identification systems (such as described in Title
IV), Section 1008 directs a feasibility study between the Justice Department, State Department,
and Transportation Department, on using a biometric identifier system as to aliens and visas.
This would be used by customs officials. This relates to other PATRIOT Act provisions about
border security and tracking suspicious aliens. A biometric system using fingerprints is
reported to be accurate above 99% reliability, and such a system also could make use of the
sophisticated FBI fingerprint identification system (as described in Title IV of the Act). There is
no question that biometric systems utilizing fingerprints or perhaps other methods will be in
place as customs points as soon as possible.
Along these same lines, Section 1009 allows for a study on the feasibility “of providing to
airlines access via computer to the names of passengers who are suspected of terrorist activity
by federal officials.” This is very broad language and allows the airlines to link up with highly sensitive

1. USAPA §1007.

135
 No Greater Threat

foreign intelligence or investigative information (similar to the notion in Title III that banks and
financial institutions would have access to watch- lists or similar other information to verify the
identity of banking customers). Note also that “passengers” means anybody. Keep in mind that
“terrorism” itself is given various and broad definitions throughout the Act, especially in Titles
IV and VIII. The FBI is to report to Congress within 120 days on results of this study. The
Section appropriates $250,000 for the study.
In a rather unusual provision, Section 1011 requires that solicitation of charitable funds
over the telephone or otherwise for assistance with the September 11 tragedies include
disclosures of the organization making the solicitation. The Section is intended to address
schemes to pick American pockets for “donations” for bogus September 11 relief funds. It
increases the penalty for impersonating Red Cross members or agents in order to solicit
fraudulent charitable donations, from one year imprisonment to five years.

5. Hazardous Materials Restrictions. On a different subject, Section 1012 limits the use of
hazardous materials licenses.1 These requirements are technical and are designed to prevent an
alien suspected of terrorist activity from obtaining a license to use or transport certain
hazardous materials. But the Section requires a criminal background check to be done of
anyone seeking such a license, whether an alien or not. The Section allows for such funds as may
be appropriate to effectuate this purpose.

6. New National Effort on Bioterrorism Preparedness. Responding to a national concern about

bioterrorism, as the anthrax scare moved into Congressional offices, Section 1013 establishes a
“sense of the Senate” resolution on the need for authorizing major new funding to prepare for
bioterrorist attacks or threats. This ambitious and certainly expensive project would involve
the Centers for Disease Control, the Food and Drug Administration, National Disaster Medical
System, and the Metropolitan Medical Response System and Epidemic Intelligence Service.
There would be expansion of the National Pharmaceutical Stockpile Program as to vaccines and
responses to bioterrorism. In part following through on this provision, Congress continued
with its commitment to this issue by passing, in May of 2002, the $4.3 billion Bioterrorism
Preparedness Act of 2001.2
The Section is extensive. Among the areas it identifies are:
— improving state and local preparedness capabilities by: upgrading state and local
surveillance epidemiology, assisting in the development of response plans, assuring ade-
quate staffing and training of health professionals to diagnose and care for bioterrorism
victims, and extending communications networks;
— assisting hospitals in developing plans for bioterrorist response;
— upgrading bioterrorism capabilities of the Centers for Disease Control;

1. This amends 51 U.S.C. by adding a section §5103a.

2. The extent to which Congress is committed to bioterrorism readiness was made clear by its
approving this substantial legislation, signed by President Bush on June 12. (The House vote on the bill was
425 to 1). The bill represents $4.3 billion in federal government spending. Among its spending provisions
are: $300 million to upgrade facilities at the Centers for Disease Control in Atlanta, $640 million to produce
and stockpile smallpox vaccines, expanding the availability of potassium iodide for areas near nuclear
power plans to treat radiation poisoning in the event of a terrorist attack on a nuclear power plant resulting
in a radiation release, more funds for the National Pharmaceutical Stockpile, $1.6 billion in state and local
grants for hospitals readiness plans, and programs to assess the ability of water systems to withstand a
terrorist attack by developing emergency plans which would be sent to the Environmental Protection
Agency.

136
 Part IV: The USA PATRIOT ACT — Titles VII Through X

— improving disaster response medical systems, such as the National Disaster Medi-
cal System and the Metropolitan Medical Response System and Epidemic Intelligence
Service;
— increasing the scope of research for bioterrorist vaccines against bioterrorist
agents;
— improving the National Pharmaceutical Stockpile program by increasing the avail-
ability of certain “therapies” such as smallpox vaccines;
— improving food safety procedures, and
— increasing international cooperation to secure dangerous “biological agents,” and
to increase surveillance.
As a resolution, this Section does not authorize or appropriate specific funds. It sets a
tone and policy in Congress which no doubt will result in additional legislation and appropri-
ations.

7. New or Expanded Grant Programs for Training, Readiness, Technology. Another grant program is
established in Section 1014. The Office of State and Local Domestic Preparedness Support of the
Office of Justice Programs is directed to make grants to each state. The states are to use these
grants in conjunction with local governments, “to enhance the capability of state and local
jurisdiction to prepare for and respond to terrorist acts.” These would include readiness for
potential terrorist events involving weapons of mass destruction including biological, chemical,
nuclear, incendiary, and explosive devices.
The grants may be used to purchase equipment and conduct training programs including
training and technical assistance to first responders. There is no specific funding stated in this
Section, only “such sums as may be necessary” to provide these grants, through fiscal year 2007.
Also, along these same lines, Section 1015 expands grants to state and localities under the
Crime Identification Technology Act (42 U.S.C. §14601). Funds available for these grants are $250
million for each of fiscal years 2002 through 2007.
On security areas, Section 1010 allows for the federal government to contract with local
and state governments to assist with security at United States military installations. This can
be done for as long as “Operation Enduring Freedom” is underway and for 180 days (6 months)
afterwards. The Defense Department is to report to Congressional Armed Services Committees
within 1 year, on the contracts arranged under this Section.

8. Critical Infrastructures. Finally, Title X concludes with, and thus the PATRIOT Act ends
with, Section 1016. This is also its own Act, entitled, “Critical Infrastructures Protection Act of 2001.”
This Act does several things, including establishing a National Infrastructure Simulation and
Analysis Center, which is to serve as a “source of national competence to address critical
infrastructure protection and continuity through support for activities related to counterter-
rorism, threat assessment, and risk mitigation.” The Center would be in the Defense
Department and would be part of the Defense Threat Reduction Agency. Modeling, simulation,
and analysis activities to be conducted by this Center are described in considerable detail by
this Section. [Further revelations regarding sweeping new government programs and initiatives
on infrastructure occur in the Homeland Security Act and in a "national strategy" document, The
National Strategy for the Physical Protection of Critical Infrastructure and Key Assets. The Homeland
Security Act and this "national strategy" document are reviewed or summarized elsewhere in
this edition, in Appendix 6-B.]

137
 No Greater Threat

The Section describes “critical infrastructure” as systems or assets (physical or computer

based) “so vital” to the United States that “incapacity or destruction of such systems and assets
would have a debilitating impact on security, national economic security, national public health
or safety, or any combination of those matters.” It authorizes $20 million for this new Center, to
the Defense Department’s Defense Threat Reduction Agency. Just what this Agency will do
with an extra $20 million, aside from the millions it no doubt already has, is not described by
Title X. This Section punctuates the sweeping authorities, appropriations, and authorizations
scattered throughout the PATRIOT Act’s ten Titles.

***

There is a legal doctrine of “exigent circumstances” which is an exception to the strict

requirement that police officers must have a warrant in order to enter and search a home, office,
or any private area. The exception applies in immediate emergencies, such as if police officers
need to enter a house to provide aid to a person they reasonably believe to be in distress.1 A
warrant is not required “to break down a door to enter a burning home to rescue occupants or
extinguish a fire, to prevent a shooting or to bring emergency aid to an injured person. The need
to protect or preserve life or avoid serious injury is justification for what would be otherwise
illegal absent an exigency or emergency.”

In effect, Congress in enacting the PATRIOT Act has declared that the United States after
September 11 is in a situation of “exigent circumstances.” Usual search warrant standards, along
with whatever caution was involved or whatever judicial review was required to conduct
investigations, should be waived or minimized in order to meet this immediate threat to life,
safety, and security. The question is whether such “exigent circumstances” can ever exist on a
indefinite basis (in fact, that would be a contradiction in terms) and how long crucial principles
of limited government intrusion can be waived or ignored before the actions being taken to
address the emergency turn into the emergency itself.
The PATRIOT Act in all of its ten Titles is nothing less than a fundamental change in
national priorities and resources. It moves surveillance, information gathering, and information
sharing by and between many federal investigative and law enforcement agencies to new levels.
It greatly expands the definition of terrorism and the reach of federal agencies to investigate it.
Its express reach may chiefly be into areas previously viewed as limited: immigration, foreign
intelligence, specific terrorism offenses, and international banking. But the breadth of many of
its provisions extend well beyond these areas and will affect many aspects of American life for
many years to come.

***

1. 4 LaFave, Searches & Seizures §6.6(a), “It is clear that police ‘may enter a dwelling without a warrant
to render emergency aid and assistance to a person they reasonably believe to be in distress and in need of
that assistance.’” The Section quotes Wayne v. United States, 318 F.2d 205 (D.C.Cir. 1963), that a warrant is not
required “to break down a door to enter a burning home to rescue occupants or extinguish a fire, to prevent
a shooting or to bring emergency aid to an injured person. The need to protect or preserve life or avoid
serious injury is justification for what would be otherwise illegal absent an exigency or emergency.” The
quote from Wayne continues that “A myriad of circumstances” could fall within the terms “exigent circum-
stances” including “smoke coming out of a window or under a door, the sound of gunfire in the house,
threats from the inside to shoot through the door at police, reasonable grounds to believe an injured or seri-
ously ill person is being held within.”

138
 Part IV: The USA PATRIOT ACT — Titles VII Through X

Now that this review of the complete PATRIOT Act is concluded, the tremendous impact
of this legislation in the potential development of a national security state is beyond question.
With little opportunity for examination or debate, the American public has been placed by this
Act not on the road to a future without terrorism but on a collision course with the Consti-
tution.
The horror of September 11 must never be minimized. The shock waves still ripple
through American politics and society. But it does not honor those who died in the airliners, the
World Trade Center towers, or the Pentagon to try to drive away the beast of terrorism by
torching the parchment of our Founding Documents. It does not honor those who remain if we
place liberty on the altar of security and expect the outcome to be peace.
At least two large aspects of the PATRIOT Act, Titles II and III, can be put to rest in the
fall of 2005. The American public should ensure that this occurs. However, there are numerous
other trends in motion, some present in one way or other before September 11, some occurring
afterwards, but all greatly accelerated afterwards by the PATRIOT Act, by other legislation, or
by Executive Branch actions. Examining those trends is the next task. It is an examination
demonstrating that pervasive internal threats to the national psyche, direction, and spirit are no
less real and may even be greater than the physical and external threat posed by the specter of
terrorism itself.

***
Comment at Close of 2004
With the completion in this Part IV of the comprehensive review of the USA PATRIOT
Act, a number of activities related to the PATRIOT Act since mid-2002 should be noted, in
addition to Justice Department comments on Titles VIII through X. These developments
continue at a rapid pace and include:
— Selected PATRIOT Act related investigations, arrests, and convictions.
— Selected court cases on the PATRIOT Act.
— Legislation in Congress on the PATRIOT Act.
— Administration efforts to promote the PATRIOT Act.
— Continued response to the PATRIOT Act in towns, municipalities, cities, and states.
***

JUSTICE DEPARTMENT AND TITLES VIII THROUGH X

As noted in previous Comment at Close of 2004 for Parts II and III, a useful indication of
Justice Department activities under the PATRIOT Act is the Department's response of May 13,
2003, to the letter of April 1, 2003 by the House Judiciary Committee (sent by Committee Chair
Rep. F. James Sessenbrenner, Jr. (R-Wis) and Ranking Minority Member John Conyers, Jr. (D-
Mich)), inquiring into Justice Department anti-terrorism actions since the PATRIOT Act.
Regarding Title VIII authorities, Title VIII in its expansion of terrorism crimes makes it
illegal to engage in terrorist attacks or other violence against mass transportation systems. The
Justice Department said it attempted to use this expanded definition to bring criminal charges
against Richard Reid, the "shoebomber" who allegedly attempted to ignite a bomb hidden in his
shoe during an international flight, but the trial court ruled the charge was not available

139
 No Greater Threat

because an "airliner" was in the statute's definition of "mass transportation vehicle." The DOJ
noted that later Congressional legislation had "closed this loophole."
The Justice Department observed that Title VIII's expanded definition of "material
support for terrorism" includes providing "expert advice or assistance" for terrorist actions or
providing finances. (However, as will be noted, a federal court in California has ruled that the
PATRIOT Act's "material support" provisions are unconstitutional. See also note of that
decision in Comment at Close of 2004 Part V, Characteristic 3.)
In June, 2003 testimony before Congress, Attorney General John Ashcroft said that
without the PATRIOT Act it would be "difficult if not impossible" to prevent another terrorist
attack on U.S. soil.1 He also said the PATRIOT Act should be strengthened to address "several
weakness" which terrorist could "exploit." This statement was another example of the Adminis-
tration's continuing effort to expand the Act by provision such as broader "material support"
definitions and stronger sentences including the death penalty for terrorist crimes (among the
provisions of "PATRIOT Act II"). He said the country must be "unrelenting" in its commitment
to fight terrorism.
Three years after being signed into law, the PATRIOT Act continues to be a high-
visibility subject of public commentary and attention. It was a controversial topic in the 2004
Presidential campaign, and continues to play a major role in the government's "war on
terrorism."2
Yet contrary to Justice Department contentions, public acceptance of the statute is not
universal. A poll in April, 2004 by a legal publishing firm Thomas Wadsworth reported that 95
per cent of those responding felt that the PATRIOT Act was passed too quickly. Nearly 75 per
cent believed that the Act violates individual rights, and nearly 70 per cent believed that
existing laws could be used to fight terrorism without the PATRIOT Act.

***
SELECTED PATRIOT ACT RELATED INVESTIGATIONS, ARRESTS, AND
CONVICTIONS
The Justice Department noted several investigations or prosecutions which it said were
aided by various PATRIOT Act provisions (although the DOJ did not explain exactly how
PATRIOT Act authorities were crucial in these investigations and arrests):
—The indictment and arrest in October, 2002 of six United States citizens near Buffalo,
New York, charged with material support for terrorism. They were alleged to have participated
in weapons training at an Afghanistan training camp used by al Qaida and allegedly visited by
Osama bin Laden while the six were present. During their time there, the defendants also

1. Richard B. Schmidtt, "Ashcroft Seeks More Anti-Terror Laws," The Baltimore Sun, June 6, 2003, p.
3A.
2. See, e.g., New York Times News Service, "Patriot Act Becomes Campaign Issue," April 21, 2004.
The article notes that Senator John Kerry (D-MA), who voted for the PATRIOT Act, would not repeal the
statute and supports "95 per cent" of the Act. Kerry would have removed public libraries from the reach of
Title II and reform other Title II provisions. He would have allowed most of the Title II sunset provisions to
take effect, as scheduled on December 31, 2005. But he would have expanded the reach of Title III, required
more information sharing among federal, state, and local law enforcement (including access to 58 national
lists of terror suspects), and consolidated domestic intelligence gathering under a "director of national intel-
ligence" who would have authority over budgets and personnel at intelligence agencies (this last proposal
eventually was incorporated into the Intelligence Reform and Terrorism Prevention Act of 2004, passed by
Congress that December). And see, e.g., Associated Press, "Bush Urges a Permanent Patriot Act," April 20,
2004 (discussion of Kerry campaign position).

140
 Part IV: The USA PATRIOT ACT — Titles VII Through X

allegedly viewed videos on suicide bombings including the attack on the USS Cole in Yemen,
which killed 17 sailors. (However, these convictions may be in difficulty given recent revelations
of prosecutorial overreaching in the case. Those problems have resulted, in a separate
prosecution in the Detroit area, in terror convictions being vacated. See below.)
—Charges against two Pakistani nationals and one U.S. citizen in October, 2002 in an
alleged conspiracy to provide Stinger anti- aircraft missiles to anti-U.S. forces in Afghanistan.
Beyond material support for terrorism charges, criminal narcotics charges were brought against
one defendant because the scheme involved an arrangement to exchange narcotics for Stinger
missiles.
—Charges against four persons in November, 2002, in a similar drugs-for- weapons
scheme, involving rebel forces in Colombia, known as the United Self- Defense Forces of
Colombia (AUC)—an organization on the State Department's terrorist group list. The weapons
involved included shoulder-fired anti-aircraft missiles, 9,000 assault rifles, and 3,000 grenades.
(This group's activities, in general, so far have been confined to targets in Colombia.)1
In all, according to separate DOJ information, by 2004 the government and the FBI has
claimed numerous "victories" in domestic anti-terrorism activity including: four "terrorist cells"
dismantled (Buffalo, Detroit, Portland, and Alexandria), 357 persons criminally charged, 189
persons convicted or pled guilty, and 515 individuals supposedly linked to the September 11
attacks removed from the United States.
According to DOJ information, counterterrorism investigations have more than doubled,
with more than 1,000 new and redirected FBI agents. DOJ claims the government has
designated an additional 36 groups as terrorist organizations, frozen $133 million in assets
around the world, and launched 70 investigations into terrorist financing leading to 23
convictions.
The government has established Joint Terrorism Task Forces (JTTF) in every
prosecutorial jurisdiction (66 task forces) linking federal agencies as well as various state and
local law enforcement agencies or units. According to the government, this had led to an
increase in more than 300 per cent in JTTF staffing. Also established are FBI "Flying Squads"
developed for rapid deployment to anti-terrorism hot spots or other investigations worldwide.
This is in addition to a Terrorist Threat Integration Center at the CIA, terror threat
response center at DHS, the White House Office of Homeland Security, the Homeland Security
Council, the Treasury Department's FinCEN and OFAC, and related other activity in the State
Department and Defense Department. Further government activity of this sort will increase, as
government agencies continue to make full use of PATRIOT Act authorities.

***

As indicated, convictions in one of these terrorist "sleeper cell" cases, in Detroit, were
reversed in August of 2004. U.S. District Judge Gerald Rosen reversed the convictions at the
request of DOJ, because the Department's own review showed prosecutors had mishandled the
case, including not providing the defense with crucial information known to the government —

1. For more on the use of the PATRIOT Act for various criminal investigations that are not directly
related to terrorism, see Associated Press, "Patriot Act Use Improper, Groups Say," The Baltimore Sun,
September 15, 2003, noting that the statute is being used in investigations of con artists, fraud suspects, and
drug dealers. And New York Times News Service, "Government Using Patriot Act in Non-Terrorist Investi-
gations," September 28, 2003. That the PATRIOT Act is being used by the government for non-terrorism
investigations is a fact. Other such examples appear in the Department of Justice's own review of the
PATRIOT Act. See DOJ's "Report from the Field: The USA PATRIOT Act At Work," dated July, 2004.

141
 No Greater Threat

as required by federal law and criminal justice rules. The three convicted of terrorism charges
(Abdel Ilah Elmardoudi, Ahmed Hannan, and Karim Koubrit) now face only document fraud
charges carrying a much lesser sentence. Among the supposed pieces of terrorist evidence relied
upon by the government at trial was a home video of Disneyland and other tourist spots, which
the government said was part of an exploration by the defendants of potential terrorist strike
targets. The Department's internal investigation into the convictions found a "pattern of
mistakes and oversights" by federal prosecutors. The internal investigation is now focusing on
Richard Convertino, the lead prosecutor — who claims in turn that the investigation of him is
politically motivated and has filed a lawsuit against the DOJ.
Also, as noted, convictions of alleged terrorists in Buffalo, New York have been placed in
difficulty when federal prosecutors admitted in August, 2004 that the government fabricated
key evidence used by the FBI to obtain search warrants. Convictions of providing "material
support" to terrorism, importing firearms without a license, money laundering, and conspiracy,
could be reversed.

***

Significant to this review and update are other examples of arrests, investigations, or
incidents (not necessarily included in the DOJ response) revealing how far use of PATRIOT Act
authorities can be taken and how extensive are the activities of JTTFs—posing the question of
how wide-ranging use of these authorities is likely to become. (See also incidents or selected
follow ups of previously noted incidents in the additional discussions following Part V and Part
VI). These situations run the length and breadth of anti-terrorism investigation in the United
States.
Some notable investigations and convictions:
—Investigation and convictions in Virginia, over vocal objections of the local and national
Muslim community and groups, of several American Muslims in what became known as the
"Virginia paintball jihad" case. The defendants were Seifullah Chapman, Hamman Abdur-
Raheem, and Masoud Ahmad Khan. Prosecutors claimed the defendants, who had played
paintball in Virginia parks or woods, were training for terrorist activities and had visited or
trained at a freedom- fighter training camp in Pakistan. The government contended the
defendants were training to help a Pakistani group (Lashkar e-Tayyaba, which in December
2001 was listed by the State Department as a terrorist organization) to wage war against Indian
forces in Kashmir and had planned to attack American troops in Afghanistan. The charges were
part of a larger indictment involving 11 defendants. Of the other eight, six pled guilty and agreed
to cooperate with the government, one was acquitted, and as of late 2004, another was still to
be tried.
After a four-week trial, U.S. District Court Leoni M. Brinkema, issued a 75-page bench
ruling convicting the three defendants on major conspiracy and weapons charges. The three
defendants to be tried had rejected plea agreements, stating they were convicted only for
playing paintball and being Muslims, and had no intentions of harming Americans. They later
were sentenced to extensive jail terms. (These convictions will most likely be appealed,
although the appeal will go to the U.S. Court of Appeals for the Fourth Circuit, where appeal
success for the defendants is dim.)
—The "Portland 7" trial involving charges that defendants planned to travel to
Afghanistan to fight against U.S. forces there. Of the seven charged, six admitted to travelling to
China after the September 11 attacks to try to make their way to Afghanistan through Pakistan
and join Muslim fighters. Two defendants, Jeffrey Leon Battle and Patrice Lumumba Ford, pled

142
 Part IV: The USA PATRIOT ACT — Titles VII Through X

guilty to some charges and will serve 18 years in prison. However, they refused to cooperate
with the government despite guilty pleas, resulting in more severe sentences. Battle's ex-wife,
October Martinique Lewis, pled guilty to charged of money laundering and terrorist financing
for sending money outside the country as part of the plan, and was facing three years in prison.
Guilty pleas from other defendants also brought long prison sentences. The final defendant,
Habis Abdulla al Saoub, described by the government as the leader of the "terrorist cell," was at
large. Prosecutors said PATRIOT Act information sharing and investigative provisions were
useful in permitting nationwide search warrants to be served on Internet service providers so
investigators could search e-mail communications.
—The arrest and detention of Mahar (Mike) Hawash, also of Portland, on conspiracy
charges. The detention of Hawash, a software engineer, was severely criticized as an example of
government overreaching. In August, 2004, he admitted to conspiring with friends, some of
whom were among the "Portland Seven," to travel to Afghanistan and fight with the Taliban. As
of late 2004, he was facing a sentence of seven to ten years. This situation appears to still be in
development, and available update information at press time is sketchy.
—A guilty plea in May, 2003 by a 20-year-old California woman, Kelley Marie Ferguson,
who left (supposedly anonymous) threatening notes on a cruise ship ("Legend of the Seas"), on
which she was a passenger, as it headed for Hawaii. The notes, threatening to kill crew
members and passengers boarding in Mexico, were found in a restroom. Ferguson left the notes
supposedly because she was unhappy about being on the cruise and was hoping the notes
would cut short the cruise so she could be reunited with her boyfriend.
The cruise ship staff reported the notes to authorities. The ship anchored off a Hawaiian
port, and a 120-member terrorism response team from more than a dozen local, state, and
federal law enforcement agencies, along with 40 bomb-sniffing dogs — all from the Hawaii
Joint Terrorism Task Force — searched it, but found no explosives or dangerous chemical or
biological devices. More than 2,300 passengers and crew were questioned. The cost of the
search and investigation was estimated at $300,000. Eventually, Ferguson was revealed as the
note writer. She was arrested and charged with terror-related crimes. (She was pregnant at the
time of her guilty plea.)
Although not formally charged with actual terrorism — because her actions were not
designed to affect government policy — she was charged with conveying false information
about a terrorist plot (generally a crime under the PATRIOT Act, although a "terrorism hoax"
charge would be a separate federal felony under a provision of "PATRIOT Act II"). She was
sentenced in September, 2003 to two years in prison. The judge required her to undergo a
mental evaluation and counseling. At the time of sentencing, Ferguson's baby girl was three
months old. Nevertheless, federal prosecutors had argued for the maximum 20-year prison
term.
—The arrest and sentencing of Richard Reid, the British resident charged with
attempting to blow up an airplane in flight with a bomb hidden in his shoe. He freely admitted
in court to sympathies in favor of terrorists and, in a trial extensively covered by the media, was
sentenced to a long prison term.
Some notable acquittals or investigation setbacks (in addition to the situations noted in the
Detroit, Michigan and Buffalo, New York cases):
—Acquittal in June, 2004 of Sami Omar al-Hussayen on three charges of promoting
terrorism supposedly through computer web sites. The charges were brought under the
PATRIOT Act. The doctoral student at the University of Idaho was charged with setting up and
registering Islamist web sites which encouraged terrorist activity. The jury acquitted al-
Hussayen of all counts.

143
 No Greater Threat

—Mistaken Accusation of Brandon Mayfield, an attorney on the West Coast and convert to
Islam, who was mistakenly identified through a mis-read of fingerprints at the scene of the
March 11, 2004 devastating train bombing in Madrid, as a potential suspect in that incident. He
was seized by the FBI on a material witness warrant and held for two weeks before being
released. The FBI later admitted that his detention was a mistake. Further legal developments
of this matter are expected.
—Unnecessary Inquiry when the FBI conducted an inquiry (albeit rather brief) concerning a
12-year-old student in Baltimore, Maryland who was the subject of a brief FBI investigation
over a school project on the huge twin-span Chesapeake Bay Bridge linking western and eastern
portions of Maryland. The student was doing Internet research on the bridge, which caused
bridge authorities to notify the FBI about a possible terrorist interest in the bridge. The
student's name resembles the name of a character played by action star Bruce Willis in the "Die
Hard" movies, and so might have been taken by agents to be an alias. The school's headmaster
was visited by a member of the local JTTF, but the matter was cleared up and no charges were
brought. Nevertheless, nothing even remotely approaching this sort of FBI interest in a student
project about a bridge would have occurred prior to the September 11 attacks.
—Arrest of Protestor when a Boston College student, Joe Previtera, arrested and charged in
June, 2004 for dressing up to resemble the picture, widely circulated in the press at that time, of
a hooded Iraqi prisoner forced to stand on a box with electric wires attached to his fingers. He
posed as such near an Armed Forces recruitment center in downtown Boston. According to
reports, reaction from passers-by to this silent "one-person protest" was mixed, with one
individual supposedly striking the student. Worse, the action was viewed by local police as a
potential terror threat. Police arrived and roped off an area surrounding Previtera. Once he
stepped down from the box, he was charged with disturbing the peace.1 Other charges may
follow. As of late 2004, the case was continuing.
—Improper Suspicion of Bioterrorism when an art professor in at the University of Buffalo,
New York, Steven Kurtz, was suspected of potential acts of bioterrorism for having harmless
bacteria in petri dishes in his home as part of an art-and-theater project. Prof. Kurtz partic-
ipates in the Critical Art Ensemble, an artists' collective that produces artwork to educate the
public about the politics of biotechnology, genetically engineered foods, and abuse of genetic
information.2
The matter began innocently, through a tragic incident when the material was discovered
after Prof. Kurtz called police to his house to report that his wife had died from a heart attack.
The police investigation turned to the petri dishes and lab equipment in the home. Police
reported this to the FBI. Agents came and sealed off the house (and, reportedly, for a time, the
neighborhood block around it). He was not allowed to return to his home for two days, as the
FBI and the Buffalo area JTTF confiscated his equipment and biological samples (harmless
modified forms of E. coli bacteria), on suspicion that he was a "bioterrorist." Agents also

1. See Camille Dodero, "Recruitment Office Protest," The Boston Globe, June 3, 2004. According to the
story, Boston Police spokesperson Michael McCarthy said that the student should "know better" and that
he should have expected that his protest would "arouse suspicion" that he might actually have a bomb.
According to the story, McCarthy added, "If he has any questions as to why people might think he may've
had a bomb, then he needs to maybe go back to Boston College to brush up on his public policy. Or at least
common sense, but they can't really teach that there."
2. CAE projects have included critical actions targeting the difficulties health care in the United
States, a newspaper called "Useless Technology" that was slipped into Sunday papers, and "Child As Audi-
ence," a survival kit for teen boys that included a pamphlet on youth indoctrination. CAE projects empha-
size both insight and humor.

144
 Part IV: The USA PATRIOT ACT — Titles VII Through X

removed books, personal papers, and a computer. When Prof. Kurtz was allowed to return to
his home, the FBI did not return the confiscated equipment and materials.
The house was cleared by the Health Department, which confirmed that the petri dishes
and equipment contained nothing harmful. Nevertheless, the investigation continued and the
federal prosecutor in Buffalo convened a grand jury. Another member of the Critical Arts
Ensemble, Beatriz de Costa, an art professor at the University of California at Irvine, was
subpoenaed to appear at a grand jury hearing. A similar subpoena was served on a colleague of
de Costa's, Steve Barnes. In a much-circulated interview, de Costa said the investigation "shows
how vulnerable the PATRIOT Act has made freedom of speech in this country." Also, others
who know Kurtz were questioned by the FBI, including Adele Henderson, chair of the art
department of the State University of New York at Buffalo.
The basis for the initial bioterrorism suspicion was a PATRIOT Act provision (in Title
VIII §817) expanding an existing criminal law1 prohibiting possession of a "biological agent,
toxin, or delivery system" for use as weapon. After grand jury proceedings in which 15 people
were subpoenaed, charges were brought against Kurtz and against a professor of human
genetics at the University of Pittsburgh, Robert Ferrell, who provided some of the harmless
bacteria that Kurtz uses in his CAE projects — through perfectly legal means. However, these
charges were not the possible serious charges of possession of a biological agent, but concern
technicalities of how Ferrell helped Kurtz obtain $256 worth of harmless bacteria for his
projects. Both have pled not guilty. Court proceedings were expected to take place in
December, 2004. It is possible these charges also could be dropped. No further information was
available as of manuscript deadline.

***
SELECTED COURT DECISIONS ON THE PATRIOT ACT
Contrasting the Justice Department's view of the usefulness of the PATRIOT Act's
expansion of the "material support" for terrorism, another development in the challenges to the
Act, including Titles IV and VIII, is a court decision in January, 2004, finding the Act's
defiinition of "material support for terrorism" unconstitutional.2 The Court ruled the language was
too vague and covered too many potentially innocent activities.
The lawsuit, Humanitarian Law Project v. Ashcroft, was filed in California and was brought by
a New York doctor, Nagalingam Jeyalangim, and concerned the Liberation Tigers of Tamil
Eelam (TTE or Tamil Tigers), a liberation group operating in Sri Lanka. The federal government
has designated the TTE as a terrorist organization. The lawsuit was sponsored by civil liberties
groups such as the Center for Constitutional Rights.Dr. Jeyalangim and his family were forced
to flee Sri Lanka due to the ongoing violence there. The Humanitarian Law Project seeks to
provide medical and assistance to areas controlled by the Tamil Tigers, such as medical aid and
training for doctors. The lawsuit challenged the Act's provision that material support for
terrorism can involve "expert advice and assistance." The CCR said this language "makes it a
crime to provide such advice or assistance no matter what its intent and purpose, and even
where it has nothing to do with furthering terrorism." The court agreed. This is the only

1. Section 175 of the Biological Weapons Anti-Terrorism Act of 1989.

2. Associated Press, "Part of Federal Patriot Act Unconstitutional, Judge Says," January 27, 2004.
United States District Court Judge Audrey Collins said the "material support" provisions in Title IV and
other parts of the Act, some of which are borrowed from previous provisions in the Antiterrorism and Effec-
tive Death Penalty Act of 1996, were too vague or overbroad.

145
 No Greater Threat

reported federal case of any sort that has found any portion of the USA PATRIOT Act unconsti-
tutional.
(The Project challenged similar "material support" language in the Anti Terrorism and
Effective Death Penalty Act of 1996. In that action, court similarly found the AEDPA's
provisions were too broad and could affect free speech rights related to supposed terrorist
groups. That opinion received some favorable treatment on appeal. See Humanitarian Law Project
v. Reno, 205 F.3d 1130 (9th Cir. 2000), affirming 9 F. Supp.2d 1176 and 1205 (D. Ca. 1999). Due to
that case, a provision of the Intelligence Reform and Terrorism Prevention Act of 2004 attempts
to address the vagueness issues surrounding the "material support for terrorism" provisions in
the AEDPA and in the PATRIOT Act ).
In a decision in New York, a District Court has called into question the authorities
granted by the PATRIOT Act to the FBI to obtain information related to terrorism from an
Internet Service Provider (ISP). The Court indicated that the authorities are too broad and do
not contain sufficient safeguards. In a 120-page ruling on a lawsuit filed by the ACLU on behalf
of theISP, the District Court ruled that the national security letter authority granted to the FBI
does not provide the opportunity to challenge the demand for information by a person or entity
served with the letter. The court stated that the operation of these authorities in effect coerced
persons into compliance by creating the effect of a "biblical commandment" to produce the
information. Available information indicated that the government was planning to appeal the
ruling to the Second Circuit Court of Appeals.

***
ADMINISTRATION AND JUSTICE DEPARTMENT ACTIVITIES TO
PROMOTE THE PATRIOT ACT
As is well evident from the discussion in the original edition of this book and 2004 update
material, the Bush Administration, chiefly through the Justice Department, continues to
promote the use and expansion of the PATRIOT Act. Among notable activities since mid-2002:
—A DOJ website, "lifeandliberty.gov" which reviews the PATRIOT Act, extols public
support for it, and "dispels" the "myths" of the statute.
—Support by DOJ and the Administration for Congressional proposals to expand the
PATRIOT Act, including eliminating sunset provisions of Title II.1
—Testimony before Congress by Attorney General Ashcroft and other Justice
Department officials on the supposed value of the PATRIOT Act in fighting terrorism.
—A multi-city tour in July and August, 2003 by Ashcroft to promote the PATRIOT Act
(mentioned elsewhere). This carefully-orchestrated tour featured little advance announcement
of the next city to be visited and was confined to lectures before closed-session gatherings of
various area law enforcement agencies. The cities included Philadelphia, Pittsburgh, Cleveland,
Detroit, Milwaukee, Minneapolis, Omaha, and Des Moines.2
—A July, 2004 Justice Department report glowingly supportive of the PATRIOT Act,
"Report from the Field: the USA PATRIOT Act At Work." This 29- page report provides
examples of PATRIOT Act authorities, describes how the statute has been useful in a range of

1. See New York Times New Service, "Sharp Debate Likely on Plan to Broaden Patriot Act," September 14,
2003, discussing various Congressional proposals.
2. Laura Sullivan, "Amid Criticism, Ashcroft Tours U.S. to Defend the Patriot Act," The Baltimore Sun,
August 20, 2003, p. 1A. And Associated Press, "Ashcroft Tours Nation to Defend Patriot Act," September 21,
2003.

146
 Part IV: The USA PATRIOT ACT — Titles VII Through X

investigations and prosecutions (some concerning alleged terrorist conduct and some which
have nothing to do with terrorism), and declares that the Act has become an essential feature of
federal government law enforcement.

***
SELECTED LEGISLATION IN CONGRESS ON THE PATRIOT ACT
The PATRIOT Act continues to be the subject of intense legislative activity in Congress.
Although the Act was passed by an overwhelming majority in the House of Representatives
(357 to 66) and nearly unanimously in the Senate (98-1), several efforts are underway to modify
its provisions. To date, none has emerged from committee, let alone passed both Houses of
Congress. Even if that occurred, it is extremely unlikely that the current White House, returned
to power on a Presidential campaign emphasizing the "war on terrorism," would sign into law
any substantial restrictions on the PATRIOT Act. (Note: Congressional proposals are subject to
frequent alteration as they move through the legislative process. Many proposals described here
may no longer be active or may have experienced revision in subsequent review or in later
sessions of Congress. The value of these descriptions is to illustrate the scope of the ongoing
debate over the statute.)
In 2003 and 2004, nearly a dozen legislative initiatives related to the PATRIOT Act have
been proposed:1

Limiting or Reducing Scope or Reach of PATRIOT Act or Related Government Agency

Action:
—The "Otter" Amendment on "Sneak and Peek" Warrants (also known as the Otter-Kucinich-
Paul Amendment, mentioned elsewhere): Originally submitted by Rep. C.L. "Butch" Otter (R-
ID) and also sponsored by Rep. Dennis J. Kucinich (D-OH), and Rep. Ron Paul (R-TX), this
was an amendment to a must-pass appropriations bill and would have withheld funding for
"sneak and peek" warrants (non-physical search warrants) described and expanded in Title II.
The House approved the amendment by an impressive margin (309-118) but after much debate
it was dropped from the bill. Coverage on the amendment brought greater public attention to
these "sneak and peek" warrants (as mentioned elsewhere, the PATRIOT Act represents the
first time such warrants are expressly authorized and described in a federal statute). It is
possible that this amendment will be re-introduced in the 109th Congress.
—The Civil Liberties Restoration Act of 2004 (S. 2528 and see also H. 4591 which adds
additional protections against data mining) (Sens. Ted Kennedy (D-MA) and Patrick Leahy (D-
VT), among the sponsors): Would terminate large portions of the NSEERS program (National
Security Entry-Exit Registration System) (see commentary at end of Part III), reverse or limit
certain immigration policies, require that an alien in the U.S. receive 48 hours' notification to
appear for a hearing on immigration charges, require immigration hearings to be public (unless
the government can show closing the hearing is justified by a "compelling government
interest"), and impose other limits upon government actions in immigration matters including
bond hearings and case reviews. The bill establishes a more independent Immigration Review

1. Source material for this listing includes legislative website Thomas.gov, and websites or literature
from various groups such as: Friends Committee on National Legislation, First Amendment Foundation,
National Coalition to Protect Political Freedom, ACLU, Center for Constitutional Rights, Electronic
Privacy Information Center, Center for Democracy and Technology, People for the American Way, and Bill
of Rights Defense Committee. See also www.patriotwatch.org.

147
 No Greater Threat

Commission to replace the Executive Office of Immigration Review. One of the preambles to
the bill states, "steps that are taken to protect the United States from terrorism should not
undermine constitutional rights and protections."
—Reasonable Notice and Search Act (S. 1701) (Sen. Russ Feingold (D-WI)): Would restrict or
eliminate the "sneak and peek" warrants (non-physical search warrants allowed by Title II), and
restrict or eliminate administrative subpoena powers.
—Security And Freedom Ensured (SAFE) Act (S. 1709 and H. 3342). (Various sponsors,
including Rep. C.L. "Butch" Otter (R-IND)): Would restrict or eliminate "sneak and peek"
warrants, curtail delayed notification of these warrants in place of seven- day notice, impose
other restrictions, limit or eliminate certain administrative subpoena powers, remove libraries
as Internet service providers under Title II, and allow additional PATRIOT Act provisions to
sunset in 2005 (§§213, 216, 219, and 505). The SAFE Act was seriously considered in the House
in 2004, particularly when it was co-sponsored by House Democratic Leader (Minority Leader)
Nancy Pelosi, although the Administration announced it would veto any SAFE Act legislation.1
Efforts are being considered to re-introduce the SAFE Act in the current 109th Congress.
—PATRIOT Oversight Restoration Act (S. 1695) (Sen. Patrick Leahy (D-VT), sponsor):
Would require more PATRIOT Act provisions to sunset, throughout the statute. In Title II: all
provisions except §§201, 202, 204, 205, 208, 221, and the first sentence of 222; in Title III: §358;
in Title IV: §§411 and 412; in Title V: §§505, 507, 508; in Title VIII: §§802 and 806, and in Title X:
§§1003 and 1006, and would also impose other restrictions on PATRIOT Act investigations.
—Protecting Rights of Individuals Act (S. 1552) (Sens. Lisa Murkowski (R-AK) and Ron
Wyden (D-Or), sponsors): Similar to the SAFE Act with stricter requirements for delayed
notification of warrants, investigation restrictions, declaring a library is not an Internet service
provider under the Act, and requiring more standard search warrant procedures obtaining
Internet information or conducting electronic surveillance.
—Library, Bookseller, and Personal Privacy Act (S. 1507) (Sen. Russ Feingold (D-WI), sponsor,
other co-sponsors include Sen. Edward Kennedy (D-MA), and Sen. Ron Wyden (D-OR):
Would require a standard warrant to search library and bookstore records, imposingin general
stricter warrant standards than currently are present in the PATRIOT Act.
—Library and Bookseller Protection Act (S. 1158) (Sen. Barbara Boxer, D-CA): Similar to other
proposals, this also would take libraries out of the reach of PATRIOT Act Title II (§215), require
libraries and similar places cannot be searched by administrative subpoena, and impose other
requirements on investigations.
—Freedom to Read Protection Act (H.R. 1157) (Rep. Bernard Sanders, I-VT, sponsor, with
nearly 150 co-sponsors in the House): Also would take libraries out of the reach of PATRIOT
Act Title II (§215) and require that libraries and similar places cannot be searched by adminis-
trative subpoena, but a search must be by standard warrant procedures, and impose other
requirements on investigations. The provisions would prevent the government from demanding
library or bookstore records, reading lists, customer lists and other material in terrorism
investigations. (For additional information, see also Rep. Sanders' own website, "Civil Liberties
and the USA Patriot Act.")
Note: In another effort to modify the PATRIOT Act by an attachment to a must-pass bill,
provisions similar to the Freedom to Read Protection Act, were added to a fiscal 2005 $39.8
billion comprehensive appropriations bill and made their way through the House in July, 2004,
despite a White House threat of a Presidential veto of any legislation containing any such

1. Associated Press, "Bush and Ashcroft Say SAFE Act Would Be Vetoed," The Baltimore Sun, January
30, 2004.

148
 Part IV: The USA PATRIOT ACT — Titles VII Through X

provisions. However, House Republicans delayed the final vote on the bill long enough to
obtain additional votes for an even split vote on amendment (210-210), which defeated the
amendment. Democrats charged that the Republicans violated House rules on vote delays to get
the additional votes they needed.1
—Restore Freedom of Information (S. 609, H. 2526) (Sen. Patrick Leahy (D-VT), sponsor, also
Sens. Carl Levin (D-MI), James Jeffords (I-VT), Joseph Lieberman (D- CT), and Robert C. Byrd
(D-WVA)): Would allow Freedom of Information Act requests to reach "critical infrastructure"
reports or information submitted to DHS by corporations, not necessarily allowed under
current law, and allow some sharing of information and restrict other FOIA exemptions.
—Domestic Surveillance Oversight Act of 2003 (S. 436) (Sen. Patrick Leahy (D-VT)): Would
require new rules and procedures by the Foreign Intelligence Surveillance Act Court (FISA
Court) for reviewing electronic surveillance requests, the rules to be transmitted to certain
other judges and to certain Congressional committees, and public report made by DOJ to
Congress on the use of these increased FISA provisions by the government.
—Surveillance Oversight and Disclosure Act (H.R. 2429, S. 436): Would also require an annual
report to Congress from DOJ on FISA warrants, electronic surveillance including e-mail
searches, pen registers, non-physical searches, and physical searches. This report would include
descriptions of the number of times this information was used in criminal cases. It also would
require a six-month report on requests for library and school records.
—Ben Franklin True Patriot Act (H.R. 3171) (Dennis Kucinich, D-OH): Would change many
PATRIOT Act provisions and initiate major reforms in the use of the statute.2 It essentially
would "un-do" the PATRIOT Act, repealing several PATRIOT Act sections (mostly in Title II)
such as sneak and peek searches, government authority to obtain information without a
warrant from businesses including bookstores and libraries, authorities to obtain medical and
education records, authorities under Title III regarding financial information. It also would
repeal Title IV authorities permitting the government to seize and detain aliens suspected of
terrorism and (among other things) hold those persons for seven days without charge (Title IV,
§412). The bill has at least 20 co-sponsors and is supported by the ACLU, NAACP, and
advocacy groups representing Islamic and Jewish interests. (Unfortunately, even if it passed
Congress, as a stand-alone bill it would have no chance of being signed into law in the current
Administration).
—End Racial Profiling Act (H.R. 3847, S. 2132) (Rep. John Conyers (D-MI)): Would
prohibit racial profiling in terrorism investigations and other similar areas.
—Homeland Security Civil Rights and Civil Liberties Protection Act of 2004 (S. 2536): Although not
PATRIOT Act legislation, this relates to civil liberties concerns by requiring that the
Department of Homeland Security's activities will not adversely affect civil liberties, and
includes stronger procedures for investigating any DHS abuses of civil liberties. The bill
includes provisions for periodic review of DHS policies and procedures "to ensure that the
protection of civil rights and civil liberties is appropriately incorporated into Department
programs and activities." It increases duties of the existing DHS Office for Civil Rights and Civil

1. New York Times News Service, "Republicans Block House Bid to Curb USA PATRIOT Act," July
9, 2004. In the midst of this debate, the Justice Department (through Assistant Attorney General William
E. Moschella, presented a letter stating that terrorists have used Internet facilities at public libraries,
although providing no details.
2. Rep. Kucinich is one of the few in Congress who voted against the PATRIOT Act. In a press
conference announcing his proposed law, he noted the Ben Franklin quote (now being mentioned with
some regularity) that "Those who would give up essential liberty to purchase a little temporary safety
deserve neither liberty nor safety." Rep. Kucinich said that the country must "take back our Constitution."

149
 No Greater Threat

Liberties and designates a senior official in DHS' Office of Inspector General to coordinate that
office's activities in investigating civil rights or civil liberties abuses, including complaints and
information "from any source" concerning alleged abuses. It requires that DHS Inspector
General personnel receive "sufficient training to conduct effective civil rights and civil liberties
investigations."
—Citizens' Protection in Federal Databases Act of 2003 (S. 1484) (Sen. Ron Wyden (D- OR):
Although also not PATRIOT Act legislation, this bill would require Congress receive a report
from the CIA, Department of Defense, Department of Homeland Security, or Department of the
Treasury, whenever any of these departments use commercial databases to track terrorists, the
report to be filed within 60 days of that activity.
Related to the database or data mining proposals, as mentioned elsewhere, the Senate in
July, 2003, blocked further funding from the Department of Defense' Total Awareness
Information program (in the DOD Advanced Research Projects Agency, DARPA). The proposal
(introduced by Sen. Ted Stevens (R-AK)) as an amendment to the Defense Appropriations Bill
and passed unanimously. (However, DARPA continues similar research, and a comparable
agency now exists in the Department of Homeland Security, DHSARPA).
—Data Mining Moratorium Act of 2003 (Sen Russ Fiengold): Although also not a PATRIOT
Act bill per se, this proposal would immediately suspend development of data mining systems in
the Department of Defense and the Department of Homeland Security, and would require all
federal agencies to report to Congress within 90 days regarding any existing data mining
programs, and their scope. The bill addresses "data mining" with respect to "a broad search of
public and non-public databases in the absence of a particularized suspicion about a person,
place, or thing." (According to the press release from the Senator's office about the bill).

Expanding or Increasing PATRIOT Act or Related Government Agency Action:

Along with legislative proposals to modify or reduce the PATRIOT Act, are several
proposals to expand it. Many of these have Administration support, and at least one has been
enacted. It can be assumed that this support will continue now that the Administration has
been returned to the White House, should these proposals be revisited, as expected, in the
current Congress:
— ENACTED: Intelligence Authorization Act for Fiscal Year 2004: This amendment to the
Intelligence Authorization Act passed both Houses of Congress and was signed into law by President Bush
in December, 2003. It expands the reach of PATRIOT Act Title III by changing the definition of
"domestic financial institution" to include casinos (annual revenue over $1 million), travel
agents, car dealers, boat dealers, redeemers of money orders or cashier's checks, the Post Office,
and other entities. (See discussion of Title II at end of Part II and Part III). This mirrored a
provision of "PATRIOT Act II" and demonstrates that the Administration remains committed
not only to maintaining and expanding the PATRIOT Act but also to enacting many portions of
the proposed Domestic Enhancement Security Act.
—Anti-Terrorism Intelligence Tools Improvement Act of 2003 (H.R. 3179) (Rep. James Sessen-
brenner (R-WI) and Rep. Porter Goss (R-FL)): Would expand FBI authorities to obtain
records and wiretaps without a court order through national security letters or administrative
subpeonas, limit the discretion of judges when considering classified information in criminal
cases, expand the Foreign Intelligence Surveillance Act to declare an individual a "foreign
power" regarding the definition of "agent of a foreign power" (the so- called "lone wolf"
provision, which was approved by the Senate as a separate stand- alone proposal and which
now is ENACTED as a provision of the Intelligence Reform and Terrorism Prevention Act of
2004), expand or allow the use of FISA information in immigration proceedings, allow use of

150
 Part IV: The USA PATRIOT ACT — Titles VII Through X

intelligence wiretaps or searches in immigration cases without prior notice, allow DOJ to
compel cooperation with a national security letter, and impose strict penalties (up to five years
in prison) for disclosing the contents of a government information request (a "gag order"
provision). The proposal was to be an amendment to an intelligence authorization bill for Fiscal
Year 2005. After criticism from civil liberties groups, it was not included in that bill.
—Antiterrorism Tools Enhancement Act (H.R. 3037) (Rep. Feeney, R-FLA): Echoes provisions
of proposed "Antiterrorism Intelligence Tools Improvement Act" (H.R. 3179). Would allow
subpoenas in anti-terrorism investigations without probable cause, expand use of
administrative subpoenas, and impose a non-disclosure requirement to prevent a person served
with a subpoena from disclosing anything about it. This bill may go farther than H.R. 3179 in
expanding administrative subpoenas in terrorism investigations, containing explicit nondis-
closure requirements and setting a possible penalty of one year in prison for violating the
nondisclosure requirement (five years if the violation is committed "with the intent to obstruct
an investigation or judicial proceeding"). It contains a limited form of judicial review to
challenge the subpeona.
—Pretrial Detention and Lifetime Supervision of Terrorists Act (H.R. 3040) (Rep. Bob Goodlatte
(R-VA) and Sen. John Kyl (R. Az) as S. 1606): Another proposal that would enact a provision of
"PATRIOT Act II," this bill would deny bail to anyone accused of domestic or international
terrorism and authorizes or requires that any supervised released imposed on a person
convicted of a terrorist crime, be up to life. It would require judges to deny bail to anyone accused
of a terrorism crime, even without a showing that the person presents a danger to the
community or flight risk.
(Given the time involved in bringing such charges to trial, this pretrial detention be for
months. Of additional concern is the treatment of such individuals in pretrial detention. The
often inhumane treatment of the terrorism "suspects" rounded up by the FBI in the weeks and
months immediately following the September 11 attacks, especially those held at the
Metropolitan Detention Center in New York, was the subject of two critical reports by the
Department of Justice Office of Inspector General, discussed elsewhere.)
—Joint Terrorism Task Force Enhancement Act of 2003 (H.R. 3439) (Rep. Carolyn Maloney (D-
NY)): Would encourage and further allow exchanges of personnel between federal and local
law enforcement and intelligence agencies. (Note also that, as mentioned elsewhere, CIA agents
are posted in many FBI bureau offices as advisors or assistants to FBI counter-terrorism
activities including Joint Terrorism Task Forces).
—Tools to Fight Terrorism Act of 2004 (S. 2679) (Sen. Jon Kyl (R-AZ)): Would reduce judicial
power or authority in issuing terrorism-related subpoenas, impose a "lone wolf" provision in a
further expansion of FISA, and allow the death penalty in terrorism cases. Again, these are all
portions of the "PATRIOT Act II."
—Terrorism Penalties Enhancement Act (S. 1604) (Sen. Arlen Spector (R-PA) and see related
H.R. 2934): Similar to H.R. 2034, would permit use of the death penalty for any act of domestic
or international terrorism that results in the death of any person (again echoing a provision of
"PATROT Act II") and similarly for any federal or state crime included in the PATRIOT Act's
definition of "domestic terrorism." (It appears also to include various crimes listed in the
"federal crime of terrorism," which conceivably encompasses "material support" for terrorism,
requiring only a showing that the accused person assisted a terrorist organization even if that
person did not know the organization was an officially-listed terrorist group.)
—VICTORY (Vital Interdiction of Criminal Terrorist Organizations) Act (Sen. Orrin Hatch, R-
UT): Would allow expanded use of administrative subpoenas, national security letters, and
other investigative methods. It would also make drug possession a potential terrorist offense,

151
 No Greater Threat

and increase use of illegal wiretaps. It would also eliminate or modify the "agent of a foreign
power" definition or requirement for FISA investigations, allow a "good faith" exception to
permit otherwise illegally obtained information to still be used in a criminal case or other
investigation, and would include other forms of drug activity as a terrorist crime — thus
bringing the full weight and scope of all anti-terrorism laws and provisions including those of
the PATRIOT Act, into drug investigations.
—Clear Law Enforcement for Criminal Alien Removal (CLEAR) Act (H. 2671) (Rep. Charlie
Norwood (GA) (see also discussion at end of Part III): Would require state and local law
enforcement agencies to investigate, apprehend, and remove aliens, require state and local
authorities to report illegal aliens to the federal government, require states to enact a local law
enforcement immigration statute in two years or lose federal funds for state and local prisons,
and would increase criminal and civil penalties for illegal entry and failure to report entry to the
government. It also would put immigration violators on the National Crime Information Center
database, provide grants to state and localities for arranging for custody of illegal aliens in state
and local facilities, provide training for state and local law enforcement personnel, and impose
immunity for these personnel from any civil lawsuit from any actions taken under these
authorities. The bill proposeds to reward state and local agencies which help to round up illegal
immigrants with a share of fine or forfeited property.
—Homeland Security Enhancement Act of 2003 (Sen. Jeff Sessions R-AL): A companion bill to
the CLEAR Act.
—Foreign Intelligence Collection Improvement Act of 2003 (S. 410): Although not a PATRIOT Act
related proposal, this bill would, among other things, establish a "Homeland Intelligence
Agency" within the Department of Homeland Security to "support the Director of Central
Intelligence" in discharging intelligence responsibilities, and would transfer some authorities to
that new agency from FBI, CIA, and DOJ. It would establish an Office of Foreign Intelligence
Coordination. (Congress might not return to these proposals now that it has enacted the
Intelligence Reform and Terrorism Prevention Act of 2004. But additional intelligence
proposals of various types surely will be considered in the future.)

***

Overall, the current Administration is seeking from Congress an expansion of the

PATRIOT Act and related authorities, in at least four ways:
—"Renew" the PATRIOT Act which means removing automatic sunset provisions for
certain sections of Title II (December 31, 2005) (this surely also would have included not
passing the joint resolution to invalidate Title III, except that the opportunity to do so was
eliminated through a provision in the Intelligence Reform and Terrorism Prevention Act of
2004, striking the Title III provision containing the joint resolution language).
—Increase administrative subpoena authorities for FBI and similar agencies established
in the Act (even though there already have been 3,900 administrative subpoenas issued over the
last few years).
—Make the death penalty available for certain terrorist crimes, thus expanding the Act's
penalties for terrorist crimes.
—Restrict or refuse bail for persons arrested or detained on suspicion of committing a
terrorist crime (even though the government admits that there is no instance so far of a terror
suspect on bail fleeing the jurisdiction or not showing up for court).
These proposals are in addition to using PATRIOT Act authorities for investigations not
related to terrorism. As mentioned, that development also appears to be increasing.1

152
 Part IV: The USA PATRIOT ACT — Titles VII Through X

***
CONTINUED RESPONSE TO THE PATRIOT ACT IN TOWNS, MUNICI-
PALITIES, CITIES, AND STATES
The PATRIOT Act continues to be unique among federal statutes in generating
nationwide attention in community and municipal forums and events and continuing to be the
subject of state or local resolutions or statements critical of its impact and content. No other
standing federal law in recent memory has produced this sort of response.1 Since the "resolution
movement" began in Massachusetts in late 2001, there has been an impressive, if not
phenomenal, growth in activity and resolutions on the Act.
As of late 2004, nearly 370 resolutions critical of the USA PATRIOT Act have been
adopted at various levels in cities and towns large and small.2 These include four State
legislatures as well as major metropolitan areas such as New York, Albany, Hartford,
Providence, Wilmington, Philadelphia, Pittsburgh, Baltimore, Washington, D.C., Richmond,
Durham, Greensboro, Flagstaff, Toledo, Chicago, Denver, Boulder, Milwaukee, Boise, San
Francisco, Santa Monica, Seattle, Anchorage, and Fairbanks. The four State legislatures so far
adopted are in Hawai'i (April, 2003), Alaska (May, 2003), Vermont (May, 2003), and Maine
(May, 2004—by a resolution requesting Congress ensure that federal anti-terrorism legislation
does not compromise civil liberties). At the state-legislature level, as of the close of 2004 there
were similar resolution efforts underway in more than a dozen states, including Arizona,
California, Idaho, Massachusetts, Minnesota, Montana, and Wyoming.
Some municipalities have enacted binding ordinances rather than resolutions—among
them Arcata, California (which made headlines when it did so)—which among other things
"forbid" local law enforcement to participate or cooperate in any activity by federal law
enforcement agencies such as the FBI, under PATRIOT Act authorities, that would affect civil
liberties. The Justice Department has not yet challenged the impact of these resolutions by
insisting on local law enforcement cooperation in a federal PATRIOT Act investigation, despite
such a resolution or ordinance. But this challenge may be a matter of time, for it is likely that
local law enforcement agencies in city or town which has enacted such a resolution or
ordinance is part of a local or regional Joint Terrorism Task Force, and so would be expected to
participate in a local terrorist-related investigation or incident response.
In October, 2003, many of those involved in this resolutions movement, including groups
such as the First Amendment Foundation, Bill of Rights Defense Committee, Friends
Committee on National Legislation, and ACLU, held a three-day conference in Washington,
DC, presented by the National Coalition to Protect Political Freedom. Some sessions featured

1. See discussion elsewhere and, e.g., New York Times News Service, September 15, 2003, noting that
critics such as the National Association of Criminal Defense Attorneys say that the government is using the
PATRIOT Act for non-terrorist investigations, and September 28, 2003, "Governing Using Patriot Act in
Non- Terror Investigations." And, as mentioned, see DOJ's own report, "Report From the Field: The USA
PATRIOT Act At Work" (July, 2004).
1. Much credit must be given to the Bill of Rights Defense Committee and its founder Nancy Tala-
nian for providing not only the initiating spirit but also the momentum and communication which have
fostered this nationwide movement. For more information on this continuing movement (more State or
municipal resolutions are likely to have been adopted since press time for this 2nd edition) and details on
developing a resolution, see www.bordc.org.
2. For a further discussion of this movement and related PATRIOT Act issues, see Nat Hentoff's
recent book, The War on the Bill of Rights and the Gathering Resistance (Seven Stories Press, 2003).

153
 No Greater Threat

representatives from conservative groups expressing their own concerns about the Act's reach
and impact. Curiously, although the vote in Congress for the PATRIOT Act was bi-partisan and
included both liberals and conservatives, so as well, at least to some degree, is the larger
response critical of the statute. Several regional conferences were planned for 2004 and 2005.
The resolutions movement is mirrored by the public reaction to this statute in general.
Letters to the editor in newspapers, response on radio talk shows, and comment in public
forums, reveal a reaction to the PATRIOT Act ranging from mixed to very critical. Although
that view is challenged by the Justice Department on its web site "lifeandliberty.gov," which
quotes the results of early polls showing public support for the statute,1 there is unquestionably
a deep public concern over this statute, its reach, its impact, and its potential for abuse. A
significant part of that concern is the fact that expanded investigations and surveillances
authorized by the statute (especially in Titles II and III) are done in secret.

***

Debate about the PATRIOT Act continues in Congress and among the public. Although
the statute is firmly in place and its existence is not in jeopardy despite Congressional proposals
to modify it, the Administration is committed — through websites, statements, and public
appearances by Administration officials — to promoting the statute and praising its role in
fighting the "war on terrorism." Indeed, the statute very well could be re-authorized in full,
including Title II, if the now re-elected Bush Administration has its way.
Yet, most Congressional proposals to modify the Act concentrate on Title II authorities
such as surveillance, sneak and peek warrants, and information from libraries and bookstores.
While these proposals are commendable, they do not address the full scope and reach of the Act
or the fact that it is just one of numerous statutes, regulations, Executive Orders, Adminis-
tration actions, and policy documents, which collectively are moving the country in a
disturbing direction in the name of the "war on terrorism."
Curiously, Administration efforts to promote the Act hardly seem necessary since public
debate about it, even the mixed reaction over the Act or resolutions criticial of it, appears to lose
its force outside of a discussion of certain Title II authorities or beyond an intangible concern
about potential civil liberties abuses. That is, the anti- PATRIOT Act resolutions movement,
though significant, did not translate into wholesale rejection either of the Bush Administration
or of the "war on terrorism." For example, it is unlikely that, in the 2004 election, each munici-
pality and State adopting an anti-PATRIOT Act resolution also rejected the Republican ticket.
In any event, the resolutions movement provides the foundation of a wider public
examination of the state and fate of civil liberties in post-September 11 America. That debate
needs to be deeper and wider than a single resolution critical of the statute. Of significance will
be how the public will react to further travel down this road, for to be sure — as predicted here
and by other commentators — the Administration wants even more from Congress and from
the American people concerning the PATRIOT Act and the "war on terrorism."

TABLE 1. DEADLINES UNDER THE PATRIOT ACT

(Act passed by Congress October 25, 2001 and signed into law October 26, 2001)

1. See "Department of Justice Says 2 to 1 Americans Support Patriot Act," The Baltimore Sun, August
20, 2003, p. 1A.

154
 Part IV: The USA PATRIOT ACT — Titles VII Through X

Section Activity Deadline

II/205 Attorney General to report to House and Senate
Judiciary Committees on use of translators [no date]

II/[215] Attorney General to inform House and Senate 6 months

Select Committees on Intelligence concerning
all requests made for seizures [new FISA, 50 U.S.C. §502(a)]

II/[215] Attorney General to inform House and Senate Judiciary 6 months

Committees of applications for seizure orders under new
FISA §402 and orders granted, modified, denied
[new FISA, 50 U.S.C. §502(b)]

III/[311] Treasury Department to notify certain [10 days]

Congressional committees, 10 days after invoking
"special measures" upon a financial institution
[new 31 U.S.C. §5318A(d)]

III/[312] Regulations by Treasury Department, inconsultation 6 months

with Federal functional regulators, on due
diligence policies required by Act [USAPA §312(b)]

III/314(a) Regulations to encourage cooperation among financial 4 months

institutions, regulatory authorities,and law enforcement,
to share with financial institutions information on
individuals, entities, and organizations engaged in or
suspected ofterrorism or money laundering

III/314(d) Treasury Department to publish comprehensive report Semi-Annual

or study identifying patterns of suspicious activity
and noting investigative insights, drawn from review
of suspicious activity reports and investigations, for use
by financial institutions in implementing anti-money
laundering programs and meeting related requirements

III/324 Treasury Department in consultation with 30 months

Attorney General and federal banking agencies,
National Credit Union Board, SEC, and others,
to evaluate operations of Title III, Subtitle A
and make recommendations as to legislative action.

III/[325] Treasury Department "may" issue regulations that govern No date

"concentration accounts" [under new 31 U.S.C. §5318(h)(3)]

III/[326] Treasury Department regulations "settingforth minimum To take

standards" for financial institutions customers regarding 1 year
the identity of customers opening accounts at financial after

155
 No Greater Threat

institutions [under new 31 U.S.C. §5318(l)(1)] enactment

Title III

III/326(b) Treasury Department and Federal regulators 6 months

to report to Congress on:
(1) ways for foreign nationals to provide financial
institutions with appropriate and accurate information
comparable to that of U.S. citizens as to identity,
(2) require foreign nationals, before opening any
account, to apply for and obtain an identification number
which would function as Social Security number or tax number,
(3) establish a system for domestic financial entities to
"review information" by relevant Government agencies
to verify identities of foreign nationals opening accounts

III/328(2) Treasury Department reports to House and Senate Annually

banking committees on progress toward goal of encouraging
foreign governments to require that originator of wire transfer
instructions sent to U.S. or to other countries be included and
retained in instructions, and also to report on means of including
and retaining identification of wire transfer instruction recipients

III/[352] Regulations regarding anti-money laundering programs, 6 months

including procedures, compliance officer, training
[USAPA §352(c), also new 31 U.S.C. §5318(h)(2))]

III/356(a) Regulations requiring stock brokers and dealers 1/1/02,

to submit suspicious activity reports Final by
[31 U.S.C. 5318(g)] by 7/1/02

III/356(c)(1) Treasury, Federal Reserve, and SEC submit joint 1 year

report to Congress on recommendations for
effective regulations to apply the requirements
of subchapter II, of chapter 53 of Title 31, to
investment companies [31 U.S.C. §5312(a)(2)(I)]

III/357(a) Treasury to submit report to Congress on possibly 6 months

shifting or adjusting IRS role in administering
Bank Secrecy Act and related provisions, as to federal
investigations authorized by Act into money
transactions laundering and financial transactions

III/[359] Treasury Department to report to Congress on need 1 year

for any additional legislation for dealing with or
investigating informal money transfer networks
as to money laundering [USAPA §359(d)) and
new 31 U.S.C. §5318(l)]

156
 Part IV: The USA PATRIOT ACT — Titles VII Through X

III/366(b) Treasury Department to report to Congress on ways 1 year

to streamline or improve bank reports on currency transac-
tions so as to reduce number of reports or improve review

IV/403(a) State and Justice Departments to issue regulations for new 4 months
fingerprinting of visa applicants, to obtain criminal history
information on those applicants from FBI fingerprint
databases [new 8 U.S.C. §1105(d)]

IV/403(b) State Department report to Congress on 2 years

implementing amendments made by 403 on
immigration activity [new 8 U.S.C. §1105(b)]

IV/403(c)(1) State, Justice, and Treasury Departments jointly 18 mos,

(c)(4) to report to Congress on new technology then 2 yrs.
standard to verify the identity of foreign nationals
coming into US under visas

IV/403(c)(4) State, Justice and Treasury Departments jointly to 18 mos,

report to Congress on development, then 2 yrs.
implementation, efficacy, and privacy
implications of technology standard and use of
electronic database system

IV/405(a) State, Justice and Treasury to report to Congress [no date]

on feasibility of enhancing fingerprint ID system

IV/411(c) Notification to House and Senate leaders by [10 days]

classified writing of intent to make terrorism
group classification [new 8 U.S.C. §1189(a)(2)(A)(i)]

IV/412(c) Justice Department to report to House and Senate 6 mos and

Judiciary Committees as to aliens specially then every
designated or certified as terrorists and held 6 mos.
under mandatory detention provisions, stating:
number, certification basis, nationalities, length of
detention, and whether removed, granted relief,
decertified, or released

IV/414(d) Office of Homeland Security to report to Congress 12 months

on information needed from Federal agencies to
screen visa applicants and identify potential terrorists

IV/417(b) State Department to submit annual report on machine Every year

readable passports and similar program Until 2007

157
 No Greater Threat

IX/906(a) Justice Department, State Department, and CIA to Feb.1, '02

report to Congress on feasibility and desirability
of reconfiguring Foreign Terrorist Asset Tracking
Center and the Office of Foreign Assets Control
for sharing information as to "financial capabilities
and resources" of international terrorist organizations,
with a proposal for new legislation

IX/905 Justice Department to develop procedures, [no date]

Regulations for exceptions to disclosure of
foreign intelligence info [new 50 U.S.C. §105B(2)]

IX/907(a)(1) CIA to submit report to Congressional committees Feb.1, '02

for new intelligence office or agency for
"timely and accurate translation of foreign intelligence"

X/1001(3) Justice Department Office of Inspector General to Semi-

report to House and Senate Judiciary Annually
Committees on special office to receive and
review complaints about civil rights violations
by Justice Department officials and
employees and detailing any abuses

X/1006(b) State Department to certify to Congress the 3 months

establishment of money laundering watchlist.
The watchlist is to be updated with information
sharing between State, Justice, Treasury, and CIA

X/1008(b) Justice Dept report to House Int’l Relations and 3 months

Judiciary Committees and to Senate Foreign Relations
and Judiciary Committees on findings of a study to use
biometric identifiers and information exchange system

X/1009(a) FBI to report to Congress on results of study to allow 4 months

airlines access to "names of passengers who are
suspected of terrorist activity" by Federal officials

X/1010(c) Defense Department to report on use of authority 1 year

to contract with State and local governments
for security at military installations

TABLE 2. ACT APPROPRIATIONS AND AUTHORIZATIONS

APPROPRIATIONS (in millions)

Title I§103 FBI Technical Support Center FY '02 $200

158
 Part IV: The USA PATRIOT ACT — Titles VII Through X

FY '03 $200
FY '04 $200
Title IV§402 Customs Service - Canadian border improvements $ 50
INS - Canadian border improvements $ 50

Title IV§405(b) Study of use of fingerprint identification technology $ 2

Title IV §416(d) New or expanded monitoring program

for foreign students $36.8

Title VI Expanded benefits for first responders $0.25

Title VII §701 New or expanded regional information-sharing program FY '02 $ 50

FY '03 $100

Title VIII Regional computer forensic laboratories $50

Title X §1005(f) "First Responders Assistance Act" grants to State and FY '03 $ 25
local law enforcement and first responders FY '04 $ 25
FY '05 $ 25
FY '06 $ 25
FY '07 $ 25

Title X Training of DEA agents in Middle East $5

Title X §1009(b) Study for feasibility of system allowing airlines

access to FBI or other criminal information/passengers $0.25

Title X §1015 Expanded grants under Crime Identification Technology Act

new 42 U.S.C. FY '02 $250
§14601 FY '03 $250
FY '04 $250
FY '05 $250
FY '06 $250
FY '07 $250

Title X§1016(f) Nat’l Infrastructure Simulation/Analysis Center $ 20

TOTAL $2,589.3

(approximately $2.6 billion)

AUTHORIZATIONS
(“Such funds as may be necessary”) [Amounts not specified]

Title I Counterterrorism fund to reimburse certain agencies

§101 and departments suffering damage or loss

159
 No Greater Threat

in September 11 attacks —-

Title I Secret Service to develop national network

§105 of electronic crimes task forces

Title III FinCEN to be a new bureau —-

§361 [FY '02 through '05]

Title IV Triple Border personnel /Canadian Border —-

§402 Triple Customs Service/Canadian Border —-
Triple INS inspectors/Canadian Border —-

Title IV New program for access by State Department and INS of FBI
§403(c)(5) information on criminal backgrounds of visa applicants —-

Title IV New integrated entry and exit data system for airports,
§414(a)(1) seaports, and land ports of entry, including new
Integrated Entry and Exit Data System Task Force —-

Title V Rewards
(501 and 502) —-

Title VI Public safety officers benefit program,

§613(a) increase from $100,000 to $250,000 —-

Title IX
(§908) Special training program between Justice and CIA —-

Title X System to for conducting criminal background

§1012 checks of anyone seeking hazmat transport license —-

Title X Contracting with local or State governments for security

§1010 at US military installations [no special authorization]

Title X Expanding grant program for State and local governments

§1014(c) to prepare and respond to terrorist attack, under
Office of State and Local Domestic Preparedness
Support of Office of Justice Programs
[FY 2002 through 2007] —-

EXPRESSION OF NEED FOR NATIONAL FUNDING COMMITMENT

Title X Funding commitment on readiness for bioterrorist attacks including

§1013 Centers for Disease Control,
Food and Drug Administration,
National Disaster Medical System,
Metropolitan Medical Response System,
Epidemic Intelligence Service, and
National Pharmaceutical Stockpile Program

160
 Part IV: The USA PATRIOT ACT — Titles VII Through X

APPENDIX 4-A
Civil libertarians have raised concerns that the definition of “domestic terrorism” is so
broad it could include political protest. Arguably, it could be claimed that some types of protest
intended to influence public opinion or change government policy are within this definition.
For example, certain actions of non-violent civil disobedience by anti-government activists
(“Plowshares” actions) involve pouring blood upon or, more directly, taking a hammer to
“objects of warmaking.” These could be (and have been) weapons components in a weapons
research lab, warhead cones in a manufacturing plant, military aircraft at an airbase, submarines
or naval ships at a construction dock site or in a Navy harbor, missile or weapons displays at a
weapons convention or federal building or facility. Pouring blood on such objects can be part of
a “Plowshares” action, but this action also can occur in certain other civil disobedience protests
at federal buildings such as the White House or the Pentagon.
Considering those types of protest, a scenario could be imagined with some effort — that
would bring these acts within the new crime of “domestic terrorism,” although several things
would have to happen which ordinarily do not happen. Suppose, in the case of blood thrown on
an object of protest during one of these civil disobedience actions, nearby guards or other
personnel claimed the material inadvertently came into contact with them — although that is
not the objective of the protests and never has been known to occur. Suppose also that this
claim is followed by a fear (unreasonable though it may be) that the blood might be contam-
inated with AIDS or some other virus — another situation which has never been the case. It
then could be contended by a prosecutor that such a protest action not only was criminal but
also was “dangerous to human life.” Because the protest also was designed to influence
government policy, albeit indirectly, the action could qualify as a “domestic terrorism.”
Or, if it is claimed that entry by anti-government or anti-war protestors onto a military
base or into sensitive governmental facility caused difficulties with base or facility operations or
resulted in damage to base equipment or aircraft which would make the material or aircraft
unsafe to use (although no one would use equipment so damaged without repairing it), this also
could be contended as an act “dangerous to human life.” Then “domestic terrorism” again could
be an issue. A similar statement might be made concerning protests at an abortion clinic which
attempt to prevent persons from entering (which would be a quite ironic twist on the
definition).
Other nonviolent protests involve entry onto weapons testing ranges (Vieques in Puerto
Rico, underground test sites for nuclear weapons in Nevada or in the Pacific), or tree-sitting in a
forest scheduled for logging. (A death recently occurred when an individual involved in a tree-
sitting protest fell — 22- year-old Beth O'Brien, who died in April, 2002 after falling 150 feet
from a tree in the Eagle Creek Wilderness Area of the Mount Hood National Forest in Oregon,
as part of a tree sitting protest by the Cascadia Forest Alliance. Although she survived the fall
and an immediate emergency call was made by colleagues via cell phone, she was pronounced
dead when first responders arrived at the incident site more than two hours later.) These acts
clearly are dangerous to human life — although the chief danger is to the individuals involved in
the protest. Whether that would qualify as “domestic terrorism” would be an interesting
question — since it is assumed that the “danger to human life” aspect of the crime involves
someone other than the person committing the act.
However, some actions engaged in by other groups and which are violent could fit the
definition more easily. Some extreme environmental groups have been accused of arson or
linked to other property destruction. In some protests, occasional deliberate property damage
has occurred. These actions might be deemed dangerous to human life. Some anti-abortion

161
 No Greater Threat

groups have bombed abortion clinics or used offensive chemicals to clear the facility of human
occupants (for example, the January 1997 bombings of abortion clinics in Tulsa and Atlanta,
which injured six people). Such conduct undoubtedly is dangerous to human life. Even more
extreme are situations where murder or attempted murder has been committed on abortion
clinic physicians or staffers (such as the fatal shootings of staffers at two abortion clinics in
Massachusetts in 1994 and the murder of an abortion clinic doctor in New York in 1998). It is
far more likely that acts of this kind would be charged as “domestic terrorism” since they not
only are specifically directed against human life but also are intended to change a policy —
legalized abortion — by coercion. (Again, not all violent acts would qualify if they are not designed
to change government policy — shooting incidents at high schools, elementary schools, and places of
employment are not acts of “domestic terrorism” under the statute’s definition.)
The Nancy Chang article (Chang, “The USA PATRIOT Act: What’s So Patriotic About
Trampling on the Bill of Rights,” posted on the Website for the Center for Constitutional
Rights, www.ccr-ny.org/whatsnew/), makes a similar statement. The article notes, “Vigorous
protest activities, by their very nature, could be construed as acts that ‘appear to be
intended...to influence the policy of a government by intimidation or coercion.’ Further, clashes
between demonstrators and police officers and acts of civil disobedience — even those that do
not result in injuries and are entirely non-violent — could be construed as ‘dangerous to human
life’ and in ‘violation of the criminal laws.’ Environmental activists, anti-globalization activists,
and anti-abortion activists who use direct action to further their political agendas are
particularly vulnerable to prosecution as domestic terrorists.”
This sentiment also is echoed in the Jennifer Van Bergen (J.D., Benjamin N. Cardozo
School of Law, New York, and faculty member, New School University, New York) article also
critical of the USA PATRIOT Act. See Van Bergen Article, Repeal the Patriot Act, Part V: “Who’s A
Terrorist” posted at www.truthout.org. The article notes comments by Attorney General John
Ashcroft that anti government activity or critical commentary could “erode national unity” and
“give ammunition to America’s enemies.” These remarks suggest that outspoken political
commentary might be considered “domestic terrorism.” This seems to take the issue to its
limits. In any case, even if prosecution of such conduct under the USAPA would be unlikely to
succeed, the activity could still be targeted by federal investigators for surveillance and investi-
gation under the very comprehensive powers authorized by the Act.
While these concerns are legitimate, as yet the federal government has not used the
USAPA to attack political protest, non-violent or otherwise. Federal activities at present have
concentrated on “terrorists” as understood to be individuals intent upon committing acts of
mass destruction and deliberately endangering or targeting substantial numbers of people or
infrastructures such as bridges and power plants.
Of course, there is the ongoing debate within progressive or political activist circles as to
what manner of protest is proper and legitimate in keeping with the ideals or objectives of the
group, the protest, or the issue campaign: Should protest adhere to classic principles of non-
violence or are certain acts of violence appropriate? No attempt is made to resolve that debate
here.
On another side of the discussion, some “extremist” groups might not come under the
definition of “domestic terrorists” at all. The definition of domestic terrorism requires action
that is dangerous to human life and is designed to influence government policy. The action of
Timothy McVeigh (and any who acted with him) in bombing the Murrah Federal Building in
Oklahoma City on April 19, 1995 which killed 168 people without question is within the
definition, since it clearly was a politically motivated act against the federal government, even
though no group formally claimed responsibility. (In fact, McVeigh was charged and convicted

162
 Part IV: The USA PATRIOT ACT — Titles VII Through X

of, among other things, terrorist acts under still-existing federal law. 18 U.S.C. §2332a. See
United States v. McVeigh, 940 F.Supp. 1341 and 1571 (D.C. Col. 1996). Some extremist groups
challenging the federal government and which often take up armed action could also qualify
under that definition.
Yet, for example, the Branch Davidians in Waco, Texas, involved in the fatal standoff with
federal agents in 1993 that ended in tragedy, might not meet the definition. The Branch
Davidians were the subject of a large-scale government standoff which began in February with
the fatal shooting of four federal agents and ended on April 19 when their compound burned as
federal agents sought to breach it (more than 70 killed). But their actions were not necessarily
designed to influence government. Quite to the contrary, the group believed deeply that temporal
government had little or no ultimate power. Rather, the cult was awaiting the arrival of the
spiritual or political apocalypse — and so would have little interest in influencing government
policies. Arguably, the “domestic terrorist” definition might not apply to such a group.
Still, it is apparent that aside from the obvious situations, what is “domestic terrorism”
and how the government will view and apply the term are yet to be seen in full. Keep in mind
that attempt and conspiracy also are within the definition. Nevertheless, it is doubtful that the
federal government will prosecute anyone for “domestic terrorism” as defined by the USAPA in
all but the most clear cases.

163
PART IV-A: THE HOMELAND SECURITY ACT OF 2002 AND THE
DEPARTMENT OF HOMELAND SECURITY

By any reading of the USA PATRIOT Act, there is no doubt that the federal government
has undergone a dramatic shift of direction, commitment and resources in investigation,
surveillance, detention and prosecution of terrorist crimes. There also is no doubt that the
PATRIOT Act represents an unprecedented expansion of existing federal law in foreign
intelligence, computer crime, terrorist financing, and information gathering.
As already described, the PATRIOT Act itself would be a serious enough concern,
standing alone. Unfortunately, it is only part of a long list of legislative or administrative
responses to the terror attacks of September 11, 2001. By far one of the most significant of the
post-September 11 statutes is the Homeland Security Act.
Approved by Congress by wide margins on November 25, 2002 after much debate (one
year and one month from the October 25, 2001 enactment of the USA PATRIOT Act), and
immediately signed by President Bush, the Homeland Security Act (HSA) represents the most
comprehensive reorganization of Executive Branch agencies in more than 50 years. Not since
the creation of the Department of Defense and the CIA in statutes such as the National Security
Act shortly after World War II, has there been such an extensive federal government reorgani-
zation. The statute establishes a new federal department, the Department of Homeland Security
(DHS). The functions or operations of more than a score of federal agencies are affected, chiefly
involving the Departments of Justice, State, Treasury, Defense, Agriculture, Energy, and
Transportation.
Not the least of these affected agencies is the Immigration and Naturalization Service
formerly within the Department of Justice, now abolished by the Homeland Security Act. The
bulk of INS functions are transferred to the new DHS. Also transferred is the massive Transpor-
tation Security Administration (TSA) from the Department of Transportation (DOT), an
agency created by another post-September 11 federal statute, the Transportation Security Act.
The TSA comprises thousands of employees, including airport security screeners.
Billions of dollars will be spent annually on the DHS. A conservative estimate of DHS'
basic annual budget, which includes budgets of the respective agencies transferred to it, is more
than $37 billion. That number is expected only to rise.
The Department of Homeland Security, sometimes derided for its color-coded "threat
levels" and comments that citizens can secure their houses from a chemical warfare attack with
plastic sheeting and duct tape, is not an agency to be taken lightly. The first DHS Secretary,
former Pennsylvania Governor Tom Ridge, often presented a folksy press image. But DHS itself
receives, manages, and controls vast amounts of information involving terror alerts, including
information which could be supplied by an Internet service provider. Much if not all of that
information is shielded from public access through specific exceptions granted to DHS by the
HSA from the Freedom of Information Act (FOIA). The DHS now oversees a broad federal
workforce from numerous transferred agencies (the TSA being only one). It is authorized to
invoke sweeping powers in the event of a real or perceived terror attack, and wields substantial
investigative and law enforcement power in many areas of daily activity in America including
border entry and exit points, customs enforcement, and immigration.
The DHS Secretary heads the Homeland Security Council, integrated into the Homeland
Security Act, functions as a domestic counterpart to the National Security Council. The DHS
Secretary has a seat at meetings of the National Security Council.

165
 No Greater Threat

The DHS has the authority to coordinate with the private sector and with other
government agencies on a wide range of areas involving homeland security, including
protection of critical infrastructure. It has authority to coordinate with federal, State, and local
agencies in preventing potential terrorist attacks, including sharing information.
The DHS now has authority (which once resided in other agencies) to address whatever
potential may exist of a terror attack utilizing nuclear weapons, and it is given significant
investigative abilities to meet that task. It can mandate development of new technologies in the
interests of homeland security. It has its own Advanced Research Projects Agency (similar to
the Department of Defense Advanced Research Projects Agency, or DARPA, which received
much recent attention for its "Total Information Awareness" project). The DHS is a government
contracting agency, and can issue regulations. Many of its sweeping powers are virtually
unchecked by judicial review or by any effective Congressional oversight. Its reach and
authority is also international.
As the DHS matures as a department and integrates the various duties transferred to it, it
may become the most pervasive Executive Branch department in daily American life. No one should
underestimate this Department.
A general review of the Homeland Security Act is useful to an overall appreciation of the
potential rise of a national security state and of the increasing scope of the effects upon the
federal government and the citizenry from the September 11 attacks. But the review need not be
as extensive as a section-by-section analysis of the PATRIOT Act. Much of the HSA concerns
DHS structure rather than expanding federal investigative and surveillance powers.
Nevertheless, many aspects of this extensive statute merit particular attention.
The Homeland Security Act has 17 titles:

Title I Department of Homeland Security

Title II Information Analysis and Infrastructure Protection
Title III Science and Technology in Support of Homeland Security
Title IV Directorate of Border and Transportation Security
Title V Emergency Preparedness and Response
Title VI Treatment of Charitable Trusts for Members of the Armed
Forces of the United States and Other Governmental
Organizations
Title VII Management
Title VIII Coordination with Non-Federal Entities;
Inspector General,
United States Secret Service, Coast Guard,
General Provisions
Title IX National Homeland Security Council
Title X Information Security
Title XI Department of Justice Divisions
Title XII Airline War Risk Insurance Legislation
Title XIII Federal Workforce Improvement
Title XIV Arming Pilots Against Terrorism
Title XV Transition
Title XVI Corrections to Existing Law Relating to Airline Transportation
Security
Title XVIII Conforming and Technical Amendments

166
 Part IV-A: The Homeland Security Act of 2002 and The Department Of Homeland Security

A listing of the HSA Titles alone demonstrates the enormous scope of the HSA upon
government policies and programs, into the distant future. However, for present purposes,
detailed attention need not be paid to Titles VI (Treatment of Charitable Trusts), VII
(Management), XII (Airline War Risk Insurance Legislation), XIII (Federal Workforce
Improvement—although it was an aspect of this statute most debated in Congress), XV
(Transition), and XVIII (Conforming and Technical Amendments).

Title I: Department of Homeland Security

Title I of the HSA, although comprising just a few sections, establishes the standard,
purpose, and mission for DHS. Title I is prefaced by formal definitions of key terms used
throughout the statute. Among these are definitions of "terrorism," "infrastructure," and "key
resources," largely borrowed from existing federal statutes, including the PATRIOT Act.
As described in the HSA, "terrorism" is any act which is:
—dangerous to human life or potentially destructive of critical infrastructure or key
resources,
—a crime under State or Federal law, AND
—appears to be intended to intimidate or coerce the public, influence government policy
by intimidation or coercion, or affect government conduct by mass destruction, assassination,
or kidnapping.

"Key resources" are:

—publicly or privately controlled resources essential to the minimal operations of the
economy and government.

"Critical infrastructure" is:

—physical or electronic systems that are essential to the orderly functioning of society in
the United States, including defense and economic security, and among these are telecommuni-
cations, electrical power systems, gas and oil storage and distribution, banking and finance,
transportation, water supply, health systems, and continuity of government.

On the more general term of "infrastructure," the HSA references another statute, 42
U.S.C. Sec. 5195, itself containing a long list of references including several previous Executive
Orders concerning infrastructure protection and emergency, disaster, or hazard planning.
After these (and other) definitions are set out, Title I describes the "primary mission" of
the DHS, which is to:
—prevent terrorist attacks;
—reduce national vulnerability to terrorism;
—minimize damage and assist in recovery from terrorist attacks that do occur,
—carry out the functions of agencies transferred to DHS,
—serve as a "focal point" for natural and other crises, and, notably,
—monitor connections between illegal drug trafficking and terrorism.
Title I sets out the position and functions of the DHS Secretary. The exact statute
language describing these duties need not be recited here. Many functions are to expected in
descriptions of this sort, such as making contracts and issuing regulations. Among the duties
are to coordinate with State and local government agencies and the private sector to "assure

167
 No Greater Threat

adequate planning, equipment, training, and exercise activities," coordinate with State and local
governments on homeland security information, and coordinate the distribution of national
security warnings. As indicated, the Secretary is authorized to attend and participate in
National Security Council meetings.
There is a Special Assistant to the Secretary, whose function, among other things, is to
interact with other agencies, engage in "strategic communications" with the private sector,
create and manage "private sector advisory councils," assist in developing "innovative
approaches to address homeland security challenges," and promote or create public-private
sector partnerships. Title I confirms that the DHS has the authority to issue regulations.
Title I establishes five "Under Secretary" divisions or directorates within DHS (see the chart
supplied):
Information Analysis and Infrastructure Protection
Science and Technology
Border and Transportation Security
Emergency Preparedness and Response, and
Management

There also is a Bureau of Citizenship and Immigration Services ("BCIS." taking many of
functions of the former INS), and a Bureau of Immigration and Customs Enforcement ("BICE"
the investigative, enforcement, and prosecutorial functions of the former INS, a separately
created bureau from within DHS, under its Congressional authority). There is a separate
Commandant of the Coast Guard and a separate Director of the Secret Service. DHS has a
general counsel and an Inspector General. In addition, DHS is given 12 assistant secretaries and
separate offices, including information, human capital, and finance.
Or special note is a separately-existing Officer for Civil Rights and Civil Liberties,
apparently created to address consistent concerns expressed, as the HSA was reviewed by
Congress, over secrecy and civil liberties issues relating to DHS operations. Of particular
interest will be how that office will function within DHS and whether it truly will guard civil
rights and civil liberties. For example, courts would not consider DHS to have committed a civil
rights or civil liberties violation if the agency acted as it is allowed to act under the statute—
and the DHS's powers as granted by the HSA are extensive.
Already in Title I, DHS emerges as a dramatic new presence for nearly every security
concern in the United States. The merger of corporate and government action on security issues
also is well underway, as is the prominence of government themes of infrastructure protection
and information gathering. There will be bold new infrastructure protection initiatives by DHS
in range of areas: transportation (airports, bus and rail lines, passenger transport terminals),
ports of entry, seaports, communications including satellite ground stations and telephone or
cellphone networks, computer systems, government information networks, financial
operations such as banks and stock markets, all means of power generation and distribution
(including nuclear power plants), water supply and treatment, crucial public and private
buildings, hospitals and medical centers, national sites and monuments, and perhaps even food
supply.
Title II: Information Analysis and Infrastructure Protection
Title II of the HSA describes the directorate or division of Informational Analysis and
Infrastructure Protection, one of the five major DHS divisions. Among the executive level positions
in this directorate, aside from the Under Secretary, are an Assistant Secretary for Information

168
 Part IV-A: The Homeland Security Act of 2002 and The Department Of Homeland Security

Analysis and an Assistant Secretary for Infrastructure Protection. These two functions—
information and infrastructure—act in parallel fashion in this Directorate.
The statute lists 19 aspects to this directorate's function. The scope of this mission is
indicated by just a few:
—Receiving and analyzing information from federal agencies including law enforcement
and intelligence agencies, comparable State agencies, and "private sector entities" to assess the
scope of terrorist threats;
—Developing a "comprehensive national plan" for security key resources and critical
infrastructures, which include power generation, information technology, telecommunications,
electronic storage of property records and financial records, and physical assets;
—Determining vulnerabilities in the United States to terrorist threats especially as to
critical infrastructure and key resources and develop plans to respond;
—Administering the Homeland Security Advisory System;
—Recommending enhancements to procedures for sharing information among federal
agencies, including obtaining information from agencies such as the CIA and FBI;
—Establishing "a secure communications and information technology infrastructure,
including data-mining and other advanced analytical tools," and
—Providing "intelligence and information analysis and support" for DHS generally.

Widely applied, these provisions virtually create a mini-"CIA" within the DHS, having authority to
gather information from almost any source, obtain information from any other federal agency, analyze
and process information, and develop reports and recommendations to public and private
sector agencies. In fact, Section 202 of the HSA gives the DHS extensive powers to obtain
information related to its mission from any federal government agency, and requires any other agency having
information concerning terrorist threats or infrastructure vulnerability to provide that information to DHS.
Also, DHS is an agency entitled to receive "foreign intelligence information" as shared among
federal agencies, under the PATRIOT Act.
Another indication of how far this goes is suggested by some agency functions transferred
to the DHS directorate of Information Analysis and Infrastructure Protection:
—National Infrastructure Protection Center (DOJ/FBI),
—National Communications Systems (DOD),
—Critical Infrastructure Assurance Office (DOC),
—National Infrastructure Simulation and Analysis Center (DOE), and
—Federal Computer Incident Response Center (GSA).

The infrastructure theme continues in a portion of Title II (Sections 212 to 215) with its
own title, the "Critical Infrastructure Information Act of 2002." These three sections give this
DHS division authority to conduct detailed reviews and analyses of likely threats or attacks on
critical infrastructure information and systems and to devise plans to protect these systems and
respond to potential attacks.
As indicated, a major section is DHS Section 214, which exempts critical infrastructure
information from availability to the public under the Freedom of Information Act (FOIA). The Section
declares that any "critical infrastructure information" voluntarily submitted to DHS from any
public agency or private entity for use by DHS "regarding the security of critical infrastructure
and protected systems, analysis, warning, interdependency study, recovery, reconstitution, or
other informational purpose" is exempt from FOIA disclosure. If DHS in turn provides this same
information to a State or local government agency, the Section exempts the information from
disclosure under any comparable State or local information statutes. Critical infrastructure

169
 No Greater Threat

already has a long definition, as indicated. DHS (or the Administration) can declare other
infrastructures as "critical," therefore further expanding this statute's information and secrecy
provisions.
The Section provides procedures for maintaining and storing this information. A
provision states penalties, including fine and imprisonment, for federal employees (including
DHS employees) who commit any unauthorized disclosure. To further ensure information
privacy, Title II establishes a DHS Privacy Officer, with a variety of missions involving obtaining,
analyzing, storing, and securing information. How the Privacy Officer will interact with the
Office for Civil Rights and Civil Liberties, and how any conflicts in policy or in specific cases
will be resolved, is not yet known.
Section 214 allows some information concerning critical infrastructure to be obtained or
reviewed by the citizenry by other lawful means. That is, the FOIA exemption does not extend
to the same information supplied independently by the same information source, to another
federal agency, whether supplied voluntarily or as required by any other law. One example
might be response plans for accidental chemical release, be provided by chemical firms to the
Environmental Protection Agency plants, under EPA statutory authority. That information
would still be available through the EPA under whatever availability and procedures still apply,
even if also submitted to DHS.
Section 221 and Section 222 describe procedures for information sharing. This includes the
privacy officer, securing information, and establishing special guidelines for sharing
information. Once again, the HSA theme of information secrecy, once information reaches DHS,
is repeated, a theme which continues throughout the statute.
Title II also contains provisions (Sections 223 and 224) protecting private computer
systems and enhancing cybersecurity. Under Section 224, the DHS directorate of Information
Analysis and Infrastructure Protection is to establish a "national technology guard" known as
NET Guard, "to assist local communities to respond and recover from attacks on information
systems and communications networks." With these provisions, related PATRIOT Act
provisions on cybersecurity, other statutes, and executive orders (including the Executive
Order on Cybersecurity), and a national policy position paper (the National Strategy to Secure
Cyberspace, mentioned in Appendix 6-B) computer security nationwide is becoming an ever
greater watchword.
Continuing with the cybersecurity theme, another section of HSA Title II (Section 225)
has another separate title, the "Cyber Security Enhancement Act of 2002." The Section amends
federal sentencing guidelines to allow for stiffer sentences for convictions of certain computer crimes.
Standards for imposing these greater sentences include the potential or actual loss resulting
from the offense, level of sophistication, if malicious intent was involved, and if the offense
affected a government computer network. Sentences can be up to life. The HSA brings certain
computer crimes more closely into the range of terrorist acts.
Similar to the PATRIOT Act, this "Cyber Security Enhancement Act," also allows for
voluntary disclosure to the government (including DHS) by an Internet Service Provider (ISP)
of information concerning an emergency indicating a harm to human life or threat to national
security. An increase in DHS threat level, declaration of emergency, specific local emergency, or
other government declaration of terrorist threat, could supply the basis for reporting this
information. This reporting is done in secret, which means an Internet customer who might be
the subject of this reporting by the ISP, is not to be informed that the report was made. Also
similar to the PATRIOT Act, DHS is to report such disclosures to Congress, but reporting
details are not mentioned.

170
 Part IV-A: The Homeland Security Act of 2002 and The Department Of Homeland Security

The Cyber Security Enhancement Act permits further government investigations if there
is an "ongoing attack" on a "protected computer." This could be done without a court order, if an
emergency exists. (HSA Section 225(i), amending 18 U.S.C. Sec. 3125(a)(1)). As noted in the
PATRIOT Act, which incorporates government definitions of a "protected computer," such a
computer would be connected to one or more of any number of various of networks and
systems, including a computer used in "interstate commerce"—which could mean any computer
connected to the Internet. Given broad investigation authorities, the broad definition of
"protected computer," and the broad definition or application of "emergency" or "threat"
(including a "threat" to a computer system since such threats are a frequent occurrence) this
DHS investigative authority could be used far more often than the statute suggests.
The last portion of Title II (Section 231 to Section 237) establishes an Office of Science
and Technology, to be situated not in DHS but in the Department of Justice (under the Office of
Justice Programs). It is to be a "focal point" for law enforcement technology, including
improving safety, effectiveness, and access to law enforcement technology by law enforcement
agencies at all levels. The Office will coordinate advisory groups, set performance standards,
provide technical assistance to law enforcement agencies, support research fellowships, and
develop and acquire "advanced investigative analysis and forensic tools" to assist State and local
law enforcement agencies in combating cybercrime. It will also operate and support National
Law Enforcement and Corrections Technology Centers. The HSA indicates the objectives of
this Science and Technology Office, by the list of technologies the Office is to research or
develop:
—personalized weapons,
—protective gear,
—explosive-resistant glass,
—monitoring and alarm systems "capable of providing precise location information,"
—interoperable communications systems,
—counterterrorism equipment, "including devices and technologies to disable terrorist
devices,"
—techniques for investigating computer crime, and
—DNA identification technologies.

A similar office in the National Institute of Justice had conducted some of these activities.
That Office is abolished, with relevant duties transferred to this new DOJ office.
Two reports are to be delivered to certain Congressional committees within one year of
the HSA. One report concerns the operation of the Office, the other is to describe the
effectiveness of the National Technology Centers system.
These provisions bring into focus another significant aspect of the HSA: development of
new technologies relating to homeland security. Other HSA provisions expand on this goal,
making it clear that a new technological forefront, of a type not seen before, will be an integral
and long-term part of federal government anti-terrorism strategy. Title II brings to the forefront
a new emphases and policies on infrastructure, computer crime, information acquisition and
analysis, cooperation with State and local law enforcement agencies, and development of new
law enforcement technologies. These themes resonate throughout the HSA.

171
 No Greater Threat

Title III: Science and Technology in Support of Homeland Security

Continuing with the technology theme, HSA Title III establishes another of the DHS five
directorates or divisions: Science and Technology. As suggested, an amazing new wave of techno-
logical development is ushered in with the operations of this division.
Among the major purposes of this directorate is to develop a strategic plan for assessing
and coordinating federal efforts to "identify and develop countermeasures to chemical,
biological, radiological, nuclear, and other emerging terrorist threats." This objective is to have
specific goals and targets. The directorate will conduct research on homeland security vulnera-
bilities, develop means to prevent efforts to smuggle terrorist devices such as chemical or
biological or nuclear weapons into the United States, and work with other agencies including
the Departments of Energy, Agriculture, and Health and Human Services.
To that extent, some DOE research functions are transferred to DHS. These include
programs on nuclear weapons nonproliferation and verification, nuclear smuggling, nuclear
assessment, and life sciences. Some of these are among the most security-sensitive programs in
the federal government. Also transferred to DHS are certain programs of the Lawrence
Livermore National Laboratory and the DOD National Bio-Weapons Defense Analysis Center.
These programs and centers also conduct extremely sensitive operations and experiments.
A substantial part of Title III (see Sec. 304) is devoted to describing an extensive program,
to be developed by this division (in part with other federal agencies) to provide counter-
measures, including vaccines, against the possible use of smallpox (a highly infectious and
contagious disease invariably fatal if not treated) as a terrorist bio-weapon. DHS authority
given to DHS in this area is considerable.
The DHS Secretary, presumably upon advice of this division, can issue a declaration that an "actual or
potential bioterrorist incident" or other public health emergency requires the use of countermeasures on some
portions of the population. Under this declaration, smallpox countermeasures are to be administered. This
means that vaccine administration can be required even if there is no actual threat, but only a
potential one. That determination is made solely by the DHS Secretary. The Section allows for a
claim against the United States government, under certain conditions, for harm to a person that
might result from any side effects of the vaccine. However, the availability to pursue such a
claim is very limited. (There is already a DHS-administered program to give smallpox vaccine to
various "first responders" and others who would be part of a national response to any use of this
virus as a bio-weapon. More discussion of that program may be found elsewhere.)
There was a fair amount of debate in Congress and some press attention directed to these
unprecedented public health powers of the DHS Secretary. With the anthrax scare that struck
New York and Washington, DC and certain other localities, and with greater concern in the
federal government about bio-terrorism from national or international sources, extensive
federal commitment in both administrative effort and financial resources will be directed to
meeting the possibility—however remote—of a bio-terrorism attack or incident.
Unquestionably, a dramatically significant aspect of Title III concerning development of new
technologies is Section 307, which establishes a new "advanced programs" office in this
directorate: the Homeland Security Advanced Research Projects Agency (HSARPA). This agency is to:
support basic and applied homeland security research to promote "revolutionary changes" in
technologies for homeland security, advance development and deployment of "critical homeland
security technologies," and "accelerate the prototyping and deployment of technologies" to
address "homeland security vulnerabilities."
Advanced research programs may be of the type conducted by another, more well-
publicized and comparable agency, the Department of Defense's Advanced Research Projects

172
 Part IV-A: The Homeland Security Act of 2002 and The Department Of Homeland Security

Agency (DARPA). That agency was criticized for its "Total Information Awareness (TIA)"
project which, in its farthest scope, could have created a massive computer-driven database
capable of recording the movements of anyone by monitoring easily-tracked activities like
credit card transactions, cell phone calls, and computer usage. Due to that criticism, the Total
Information Awareness program name was changed to Terrorist Information Awareness, its
approach was altered, and the person who was to direct that program (former Admiral John
Poindexter who previously was implicated in the Reagan-era "Iran-contra" scandal) left the
Pentagon. However, the TIA program was not completely dismantled.
Something similar could be developed by the DHS Homeland Security Advanced
Research Projects Agency. There does not appear to be any limit to the programs and research
capabilities given to this new agency. Section 307 specifically empowers HSARPA to coordinate
efforts and run joint projects with "other relevant research agencies." Very little press attention
has been paid to activities of this newly-created agency. Only time will tell what sort of
proposals and programs will emerge.
Within the HSARPA mandate is an Acceleration Fund for Research and Development of
Homeland Security Technologies. (HSA Section 307(c)(1)). In fiscal year 2003 alone, $500 million
is to be devoted to that Fund. At least 10 per cent is to be used to develop, with the Coast Guard, new
methods to protect ports and waterway, and to improve "coastal security surveillance and
perimeter protection capabilities." The statute does not specify uses for the other 90 per cent of
the Fund—$450 million in the first year—those potential uses are limited only by the
imagination.
Title III continues its emphasis on research by establishing a somewhat controversial
program of "university-based centers for homeland security," under the general authority of the
Directorate of Science and Technology (Section 308). These university research centers are to
be established within one year of the Act and would focus on developing training first
responders, addressing incidents involving weapons of mass destruction and biological warfare,
increasing food safety, and enhancing port and waterway security. There would also be a
"headquarters center," to be determined after DHS develops criteria for the headquarters center
(to be published in the Federal Register) and reports to Congress on the selection of the
headquarters center and how that selection met the criteria. Some major universities have been
identified as possible centers, but additional clarity will come through further development.
A related Section (Section 309) links DHS research efforts to similar efforts at DOE
facilities. DOE research programs, which often involve nuclear weapons issues, could be jointly
sponsored by DHS. To add to this linkage of research programs, the Department of
Agriculture's Plum Island Animal Disease Center is transferred to DHS. Plum Island studies
unique or rare biological agents related to animal diseases, including foreign animal diseases not
present in the United States. Located in Long Island, the program dates back to 1951. The highly
sensitive research activities of this facility (equipped for bio-safety level 3 research, the second-
highest sensitive research biological research level) surely will increase under increased federal
government interest and funding through the HSA.
Title III then establishes three overall homeland security research entities or programs, all
within the Directorate of Science and Technology: the Homeland Security Science and Technology
Advisory Committee, the Homeland Security Institute, and a "technology clearinghouse" to support
"innovative solutions" to homeland security. Each of these have additional missions and duties.
The Homeland Security Science and Technology Advisory Committee (Section 311), to function for
three years (although Congress has the power to re-authorize it), consists of 20 members
representing first responders, first responder organizations such as fire department organi-
zations, and citizen groups. (Section 311). This not to be confused with the higher-level

173
 No Greater Threat

Homeland Security Council. The Committee would hold quarterly meetings and make security
recommendations to the Science and Technology directorate. The Committee is to submit a
report to Congress each January 31.
The Homeland Security Institute, also to function for three years, has a more specific mission.
(Section 312), with duties that include:
—conduct research including systems analysis to determine vulnerabilities of critical
infrastructure,
—engage in economic and cost analysis on various proposals to enhance security,
—evaluate methods deployed to enhance the security of institutions, facilities, and
infrastructure that may be terrorist targets,
—identify means of using common standards and protocols of first responders,
—assist other federal agencies to evaluate the effectiveness of technologies in
development and possible deployment,
—design methods to determine the effectiveness of homeland security programs
throughout the federal government,
—design and support homeland-security exercises, and
—create "strategic technology development plans to reduce vulnerabilities in critical
infrastructure and key resources.

The Institute is to submit an annual report to Congress. The statute does not detail where
the Institute would be located or staff and budget.
The technology clearinghouse (Section 313) is to encourage "technological innovation" in
facilitating the DHS mission. Its activities include: serving as a central hub of information for
security technologies, seeking unique and innovative technologies, establishing a technical
assistance team to assess cost and feasibility of security enhancement proposals, providing
guidance to government and private sectors to implement these technologies, and assisting
individuals in pursuing federal funding for proposals to develop or deploy technologies for
enhancing homeland security. The clearinghouse would coordinate these activities with the
Technical Support Working Group. The clearinghouse has no three-year limitation on activity.
HSA Title III is completed with Section 313l. There is enough in Titles I through III to
establish any new federal agency, and yet 14 Titles remain in the HSA.
Title III places DHS squarely in the forefront of developing new homeland security
technologies, conducting research into homeland security initiatives, and coordinating with
federal, State, and local government agencies, and corporations, in producing a new wave of
homeland security strategies and implementations. This research is conducted at every
conceivable level.

Title IV: Directorate of Border and Transportation Security

Moving on, HSA in Title IV describes another of the five DHS directorates: Border and
Transportation Security. This Title builds on a theme in the PATRIOT Act (see Title IV of that
statute) in addition to other statutes, Government Accounting Office reports, and Executive
Orders. Title IV formally brings into DHS, the enormous Transportation Security Agency.
Along with the other duties, this directorate will be one of the most active and visible DHS
divisions. As with the other directorates, its mission is multi-faceted:
—prevent the entry of terrorists and instruments of terrorism into the United States,
—secure borders, territorial waters, ports, terminals, waterways, and air, land, and sea
transportation systems,

174
 Part IV-A: The Homeland Security Act of 2002 and The Department Of Homeland Security

—carry out the immigration enforcement functions which were conducted by the former
INS, including immigration enforcement policies, and rules for visas or other forms of
temporary admission of persons into the United States,
—administer customs laws, and
—conduct certain inspection and related functions of the Department of Agriculture.

Into this directorate of DHS are transferred numerous agencies, including:

—Customs Service (Treasury),
—Transportation Security Administration (TSA) (Transportation),
—Federal Protective Service (GSA),
—Federal Law Enforcement Training Center (Treasury),
—Office of Domestic Preparedness (Justice), and
—Transportation Security Oversight Board (Transportation).

Concerning the Customs Service, that agency's revenue functions are retained by the
Treasury and it will function as a quasi-independent agency. Several Sections are devoted to
this description (Sections 411 to 420), and much of it is not of crucial interest here, although the
Customs Service no doubt will continue to gain authority as the DHS and other federal agencies
turn attention to additional border security issues such as cross-border crossings, air cargo, and
seaports.
There are similar descriptions in HSA Title IV for inspection functions of the Agriculture
Department transferred to DHS, involving "agricultural import and entry inspection activities,"
including those found in various existing federal law (Plant Protection Act, Federal Seed Act,
Animal Health Protection Act). (Section 421). The functions of up to 3,200 Agriculture
Department employees are to be transferred to DHS.
Concerning the huge and quite visible Transportation Security Agency, the TSA is
transferred to DHS as a distinct entity. (Also transferred is the authority to extend the deadline
for deployment of bomb detection equipment at airports throughout the country. Concerns
were raised by TSA and others that, due to various financial, logistical, and personnel factors,
the original deadline set by Congress of December 31, 2002 to deploy this equipment at airports,
could not be met. A more complete description of the broad authorities granted to the TSA can
be found in the Aviation and Transportation Security Act.).
Title IV moves into areas of immigration. A new overhaul of U.S. immigration law, which
occurred to a significant degree in the PATRIOT Act and other post September 11 statutes and
regulations, is continued in the HSA.
A notable provision gives DHS the authority to issue regulations concerning visas.
(Section 428). In that context, DHS is authorized to place DHS employees at United States consulates
throughout the world. (Section 428(e)). Some of employees could be permanently assigned to those
consular posts which have country-wide or regional responsibilities. DHS employees serving at
consulates would advise consular officers of "security threats" which might apply to someone
seeking a visa and "conduct investigations with respect to consular matters" of concern to DHS.
DHS would work with the State Department in this process.
DHS employees posted to consulates could also be part of the "terrorist lookout committee" established by
the Enhanced Border Security and Visa Entry Reform Act of 2002 (yet another post-September 11 federal
statute) (HSA Section 428(e), and also Section 304 of that Act, see 8 U.S.C. 1733). DHS
employees would be given appropriate training through the National Foreign Affairs Training
Center. DHS is to report to Congress on this program of within one year. Of special interest is a

175
 No Greater Threat

provision that third party reviews of visas in Saudi Arabia is terminated. All Saudi visas are to
be reviewed by on-site DHS employees.
Also, if a visa is denied, a consular officer "shall enter the fact and the basis of the denial
and the name of the applicant into the interoperable electronic data system" which was also
established by the Enhanced Border Security and Visa Entry Reform Act. No person who has
been denied a visa can be reconsidered, unless that information has been reviewed and a
statement made as to why the visa can be issued.
Title IV establishes another new DHS office: an Office for Domestic Preparedness. This
Office will be a primary office for coordinating government-wide programs for combating terrorism
including training and exercises, directing terrorism grant programs, implementing terrorist
response strategies, and providing counter-terrorism training for DHS analysts, other agencies,
State and local agencies, and international entities.
Title IV transfers certain functions of former INS to DHS under the Directorate for Border
and Transportation Security: the Border Patrol program, detention and removal programs,
intelligence programs, investigations programs, and inspections program. Essentially, the DHS
Directorate for Border and Transportation Security will function as the new INS.
As part of transferring activities of the former INS to DHS, Title IV creates a distinct
Bureau of Border Security, within the directorate of Border and Transportation Security. This
Bureau will have a chief of policy strategy and a special legal advisor. It will also be responsible
for employee training, discipline, investigation, and programs to improve employee
performance. Of special note, Title IV (Section 446) makes it a priority to complete the 14 mile
border fence project near San Diego which was established under a previous statute, the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (see 8 U.S.C. 1103).
The Bureau of Border Security will encompass much of the mission of former Customs
Inspectors and border guards. Along with the TSA and similar agencies transferred, DHS
therefore has law enforcement power as well as a mission of general information gathering,
study, development, and interaction with other agencies related to homeland security. Any
perception that the DHS is simply a large research and analysis and terror-threat center is
incorrect.
The next several sections of Title IV are of further interest concerning immigrants and
aliens. These sections establish other functions of the former INS transferred to DHS: the Bureau
of Citizenship and Immigration Services. (Section 471).
This new BCIS agency would not technically be within the division of Border and
Transportation Security. It will report directly to the DHS Deputy Secretary. There are to be
programs for backlog elimination at this new agency. The BCIS will have responsibility for
administrative functions such as immigrant visa petitions, naturalizations, asylum and refugee
applications, service center adjudications and determinations, and "all other adjudications" which had
been conducted by the former INS. This Bureau will also have a chief of policy strategy and a
separate legal advisor.
Through an internal reorganization proposed by DHS under authority granted by Title
IV, some of the investigative, enforcement, and adjudication functions of BCIS have shifted to
the Bureau of Immigration and Customs Enforcement (BICE), which is not a subagency
separate to itself, but is within the DHS Directorate of Border and Transportation Security.
BICE consists of Customs Service and INS special agents, INS detention and deportation
officers, and the INS immigration litigation section. Also part of BICE is the Federal Protective
Service, customs air and marine interdiction functions, and the intelligence components of
Customs, the Federal Protective Service, and the former INS. The agency will have more than
14,000 employees. BICE became operational on March 1, 2003.

176
 Part IV-A: The Homeland Security Act of 2002 and The Department Of Homeland Security

Given this size and with these functions, BICE will be one of the most well recognized
and visible agencies in DHS, and of course the one with the most effect upon immigrants. In
addition to this, BICE's intelligence functions and authorities will rank it similar to the FBI
especially concerning activity at US borders and various points of entry.
Of special interest is Section 452, which sets up a Citizenship and Immigration Services
Ombudsman. This office is designed along the lines of a customer service center and supposedly
is to operate independently of the BCIS (and apparently also, of BICE), with its own office,
phone number, and authority. The Ombudsman is to assist persons having problems with the
BCIS, to propose changes in BCIS policies to reduce problems, and to intercede on behalf of
those with difficulties moving through the immigration process. The BCIS is required to
respond to Ombudsman recommendations (Section 452(g) and (f)). The Ombudsman is to
make an annual report to Congress with recommendations in areas such as immigration process
improvements and reducing backlogs. The Ombudsman has other wider authorities and can
appoint local ombudsman, including one for each State. Meetings with an ombudsman are
confidential.
To further emphasize the importance of providing proper BCIS services, Title IV permits
investigations into any allegations of misconduct by BCIS employees, requires backlog
elimination, and requires BCIS to itself to report to Congress within one year on how the BCIS
will efficiently, promptly, and fairly complete immigration matters. Title IV also establishes a
Technology Advisory Committee for that purpose.
Additional provisions (Section 462) involve improving the difficult situation of unaccom-
panied children in the immigration system. These new provisions, described as "children's
affairs" in the Section, many of them far reaching, should improve that situation, although they
are not of direct interest here.
Most of the remaining sections of Title IV dealing with the transfer of INS functions
concern transition issues, employees, salaries, discipline, and personnel. These administrative
and personnel details also are not relevant for the present discussion. Under a related provision,
(Section 478) a comprehensive annual reports on the immigration process, directed to
improving the system, are to be given to Congress.
HSA itself makes no major changes to existing immigration laws and regulations. Current
immigration law remains in place, and that law has become increasingly strict under a variety of
statutes such as the Illegal Immigration Reform and Immigrant Responsibility Act, the
Immigration and Nationality Act, the Antiterrorism and Effective Death Penalty Act, the
Enhanced Border Security and Visa Entry Reform Act, and the USA PATRIOT Act (especially
Title IV of that Act). Immigration law and regulations now will be enforced by one or more
agencies or subagencies in DHS, chiefly BCIS and BICE.

Title V: Emergency Preparedness and Response

Title V of the HSA establishes the fourth of the five DHS divisions or directorates:
Emergency Preparedness and Response. Along with the Management directorate (described in Title
VII and not extensively considered here), Title V completes the description of the basic
administrative structure of DHS.
This directorate is concerned with response to terrorist attacks, disasters, and national
emergencies. Its mission involves coordinating federal response resources, aiding recovery from
terrorist attacks, and developing a "comprehensive national incident management system"
involving all levels of government. Transferred to this directorate are several agencies, some very
familiar to American citizens:

177
 No Greater Threat

—Federal Emergency Management Agency (FEMA),

—Integrated Hazard Information System (NOAA),
—National Domestic Preparedness Office (DOJ),
—Domestic Emergency Support Teams (DOJ),
—Office of Emergency Preparedness (DHHS),
—National Disaster Medical System (DHHS),
—Metropolitan Medical Response System (DHHS),
—Strategic National Stockpile (DHHS), and
—Nuclear Incident Response Team (DOE) (in a terrorist emergency).

The directorate is authorized to use private and public sector networks. Again, a new
merger of public and private sector entities is designed by the HSA, a theme carried through the
statute.
The Emergency Preparedness and Response Directorate may be one of the most visible
Directorates to American citizens, compared to DHS directorates concentrating on information
gathering and analysis, research, and customs or immigration. With the functions of FEMA,
NOAA, Office of Emergency Preparedness, and the National Disaster Medical System, the DHS
Directorate of Emergency Preparedness and Response figures to be a high visibility department
in DHS.
Titles VI (Charitable Trusts) and VII (Management)
As mentioned, Title VI and Title VII are not of immediate interest. Title VI concerns
technical matters involving members of the armed services which are outside the scope of the
present discussion. Title VII establishes the fifth and final HSA directorate, Management. Much
of the provisions in Title VII involve transfers of administrative functions and reflect the debate
in Congress over federal employment protections available to DHS employees.
Of significance is Section 705, which establishes an Officer for Civil Rights and Civil Liberties.
This office is to "review and assess information alleging abuses of civil rights, civil liberties, and
racial and ethnic profiling" by DHS employees. The Office is to make itself known to the public
through Internet, radio, television, or newspaper advertisements. This is similar to an Office in
the Department of Justice established in the PATRIOT Act.
The DHS Civil Rights and Civil Liberties Office also is to submit an annual report to
Congress on activities. (That report was submitted in June of 2004, "Report to Congress on the
Implementation of Section 705 of the Homeland Security Act and the Establishment of the
Office of Civil Rights and Civil Liberties" available from various sources including through the
webpage for this Office in the DHS website. The 50-page report describes the overall purpose of
the Office, notes some areas or incidents of civil liberties and civil rights concerns being
reviewed by the Office—mostly racial profiling matters especially at airports—and discusses
the long range goals and objectives of the Office.) To what extent this Office will be utilized of
course is not yet known. Section 705 is not specific about the authority of the Office, but the
Office has a detailed list of mission statements and objectives in its recently-released Strategic
Plan. Surely, the Office should take full advantage of HSA's authorization to make itself known
through various means of advertising, which so far does not appear to have occurred on a
widespread scale, aside from a webpage at the DHS website, and an Internet address.

Title VIII: Coordination with Non-Federal Entities;

Inspector General, Secret Service, Coast Guard, General Provisions

178
 Part IV-A: The Homeland Security Act of 2002 and The Department Of Homeland Security

Title VIII is one of the most extensive in the HSA. It creates still additional offices in the
DHS, including an Office for State and local government coordination, and an inspector general.
The Office of State and local government coordination is another example of the
consistent theme, present although to a lesser extent in the PATRIOT Act, of merging and
closely coordinating federal, state, and local governmental activities and functions involving
terrorism and terrorist response initiatives. With similar federal government activity along
these lines, such as the Terrorist Threat Integration Center and Joint Terrorism Task Forces in
every federal prosecutorial jurisdiction, assembling key personnel on terrorism investigations
from several federal, State, and local agencies, this theme will continue to be an established
federal policy for the foreseeable future.
The inspector general provisions in Title VIII include increased authorities for inspectors
general in other federal departments and agencies. Expansion of these authorities include arrest
and search warrants, seizing evidence, and carrying weapons. Guidelines are to be issued.
Among the agencies transferred to DHS under Title VIII is the Secret Service, formerly
within the Department of the Treasury. The Secret Service is transferred as a separate entity,
but ultimately now reports to the Secretary of DHS rather than to the Secretary of the Treasury.
The same approach is made with the Coast Guard, another agency transferred separately to
DHS and essentially retaining its own authority and structure.
Acquisitions authority, human resources management, labor-management relations, and
emergency procurement powers are also described in Title VIII. In general, these provisions,
which make up a good deal of the text of this Title, need not be reviewed in detail here. Many of
the provisions are standard for government agencies.
A. Support Anti-terrorism by Fostering Effective Technologies Act (SAFETY)
Of direct interest is a portion of Title VIII with its own title, the "Support Anti-terrorism
by Fostering Effective Technologies Act" or SAFETY Act. The unique Act will permit DHS to
insulate manufacturers and designers of designated technologies from legal action in the event the use of
these technologies results in injury, and to deploy these technologies to protect against
terrorism. Under this SAFETY Act, even if failure of the technologies to provide the intended
protection results in personal injury or even death—such as a technology designed to prevent or
reduce injury in the event of a certain terrorist act—the private manufacturer of the technology
could be insulated from legal action.
The DHS Secretary (or an appropriate officials in DHS) can designate what particular
technology or protection method comes under this provision, after a review of criteria noted in
the statute. For example, a technology can be so designated if it poses a risk of "extraordinarily
large or extraordinarily unquantifiable" third- party liability—that is, potential legal liability for
technology designers or manufacturers—but is still useful in anti-terrorism measures and could
not be deployed without this legal protection.
For a technology so designated, any claims connected to injuries occurring from is use
must be brought against the federal government, rather than against the manufacturer or the
supplier of the technology involved. Recovery for such a claim is limited: "non-economic"
damages (pain, suffering and related damages) can be awarded, but not punitive damages. In
any action against a manufacturer or supplier, the government contractor defense would be
available.
Beside their uniqueness in a statute of this type, what more interesting about these
provisions is that the government fully anticipates another terrorist attack within the U.S. that
could result in major property damage or loss of life. After entire Titles of the HSA devoted to
research and development of new protection and security technologies, these Title VIII
provisions are a recognition that such technologies still might not be effective.

179
 No Greater Threat

For illustration purposes only, various possibilities could be imagined—although the

statute does not describe any examples. A biometric technology system designed to screen
persons entering a building might be bypassed or disabled, allowing a terrorist to enter and
commit a terrorist act, resulting in casualties. A method to enhance a building's stability in the
event of a terrorist strike—such as special shatterproof glass—might fail in an actual strike,
resulting in injuries. A device to screen mail for anthrax might miss an anthrax-tainted letter,
resulting in fatal cases of anthrax. In these eventualities, if the technology was designated by
DHS for special treatment, a lawsuit would be brought against the government rather than the
technology designer or manufacturer, shifting liability. Of course, in the event of a terrorist
strike could involve the unthinkable—a nuclear device, a purloined cruise missile, or large-scale
weapon of mass destruction, even extreme building-securing technology, at the present state of
the art, would be ineffective. The objective is to encourage development and deployment of
security technologies reasonably expected to enhance security for certain terrorist actions or
assaults.
B. Homeland Security Information Sharing Act
Continuing the consistent theme of information sharing, Title VIII (in Subtitle I, Section
891 and following) surely contains some of the most wide-reaching information sharing
provisions regarding terrorism and homeland security, yet enacted by Congress. Called the
"Homeland Security Information Sharing Act," the Act defines "homeland security information"
as information that relates to a terrorist threat, concerns the ability to prevent or disrupt the
terrorist threat, improves identification of suspected terrorists or terrorist organizations, or
would improve response to a terrorist act.
The list of Congressional findings for these specialized sections contains the statement,
"Federal, State, and local governments and intelligence, law enforcement, and other emergency
preparation must act in partnership to maximize the benefits of information gathering and
analysis to prevent and respond to terrorist attacks." This is an effective summary of the
information sharing theme dominant throughout the HSA. The Act directly requires such
sharing: "Under procedures prescribed by the President, all appropriate agencies, including the
intelligence community, shall, through information sharing systems, share homeland security
information with Federal agencies and appropriate State and local personnel" to the extent the
information can be shared within other provisions of this portion of the HSA (Section
892(b)(1)). This appears to go beyond information sharing provisions in Title II of the
PATRIOT Act. Not that although information may be shared among certain government
agencies, it is shielded from access by the general public.
Information sharing will occur in both directions and at several levels: among and
between federal, State, and local law enforcement or intelligence agencies. Recognizing that
much of terrorism investigation information is classified (in fact, much of it is developed
through highly secret investigative methods such as those conducted under the Foreign
Intelligence Surveillance Act), the HSA describes ways to declassify, arrange for limited
sharing, or otherwise to allow this information to be shared outside the intelligence community
where appropriate, including with law enforcement officials of State and local governments.
The Act requires the President to implement procedures sharing this type of information.
It mandates developing information sharing systems for transmitting classified or unclassified
information which still but can restrict access to this information to certain groups, agencies, or
geographic areas, but be accessible to State and local governments. In turn, State and local
governments are mandated to share their own homeland security information, allowing access
to appropriate federal agencies. There are to be conditions on the use of security information to
prevent unauthorized disclosure, protect privacy, and ensure data integrity.

180
 Part IV-A: The Homeland Security Act of 2002 and The Department Of Homeland Security

Existing law enforcement information sharing systems would be utilized. These include
(not all are mentioned in the HSA) the National Law Enforcement Telecommunications
System, the Regional Information Sharing System (RISS or RISSNET), and the Terrorist Threat
Warning System. The HSA points out that related law enforcement programs would be a
further means of information sharing, namely the FBI's Joint Terrorism Task Forces, the Justice
Department's Anti-Terrorism Task Forces, and regional Terrorism Early Warning Groups.
Information originating from a federal government or agency would remain under federal
control.
To address potential problems of releasing or sharing classified information, this portion
of the HSA sets conditions for sharing this information with State or local government personnel.
The methods include arranging for security clearances, requiring nondisclosure agreements for
unclassified but sensitive information, and using existing information sharing programs.
HSA's definition of "State and local personnel" for these broad information sharing
provisions is quite wide, and includes:
—State governors, mayors, and local elected officials,
—State and local law enforcement personnel and firefighters,
—public health and medical professionals,
—regional, State, or local emergency management agency personnel, including State
adjutant generals (these generally are the commanders of the State National Guard),
—other emergency response personnel, and
—"employees of private sector entities that affect critical infrastructure, cyber, economic, or
public health security," as designated by federal officials.

Under the last part of the definition of "State personnel," managers or directors of a private
firm such as a power generating company or an Internet service provider, could have access to
sensitive or classified information on a given terrorist threat. This information would be
provided or shared through State or local law enforcement and other officials. This brings private
sector parties into the loop of sharing sensitive government information on terrorist threats, in a way not before
seen so expressly in federal laws of this type.
A report is to be made to Congress in one year, reviewing this information sharing process
and offering recommendations. The objective is to provide an even greater effectiveness for
information sharing. .
Beyond this, the HSA, under this specialized Act, adds four extremely significant
provisions expanding even further the information sharing from criminal investigations or
intelligence surveillance. They are:
—Sharing grand jury information relating to "foreign intelligence," with State and local
law enforcement officials (this is more restrictive than the "State or local personnel" for other
parts of the information sharing Act) or with foreign government officials (Section 895). This
provision appears to expand even the very broad information sharing provisions involving
material such as grand jury information, enacted in Title II of the PATRIOT Act.
—Sharing results of surveillance interceptions of electronic, wire, or verbal communi-
cations with foreign investigative officers for general purposes or, if the information involves
terrorist threats, with foreign, State or local law enforcement officers. (Section 896).
—Allowing the Director of Central Intelligence to disclose information to certain federal, State,
local or foreign law enforcement officials, if the information involves "a threat of actual or potential
attack or other grave hostile acts of a foreign power or agent of a foreign power" (which is part
of the definition of "foreign intelligence information" in the Foreign Intelligence Surveillance
Act, incorporated into certain provisions of the PATRIOT Act especially Title II).

181
 No Greater Threat

—Sharing information from electronic surveillance under the Foreign Intelligence

Surveillance Act, with State or local law enforcement personnel and with the "chief executive officer" of the
state or political subdivision who has authority to appoint or direct the chief law enforcement officer of that area.
This would mean a State governor, county manager, county executive, city manager, city mayor,
or chair of a local governing body.
Through these provisions, a growing array of persons will have access to sensitive
government information involving investigation and surveillance in a way not seriously
considered prior to the September 11 attacks. It is not clear how this information can be used,
and how Fourth Amendment or other privacy protections would be addressed if the
information was not obtained through strict adherence to Fourth Amendment requirements.
C. Other Special Title VIII Provisions
Other Title VIII provisions continue with the statute's description of the wide authorities
given to the DHS. It is evident that DHS will have some of the attributes of the CIA, the
Department of Defense, and the Department of Justice. These provisions:
—permit certain advisory committees to be established;
—authorize a "Future Years Homeland Security Program" structured similarly to the
Future Years Defense Program (a regularly-issued, forward-thinking Defense Department
policy document, under this provision a similar document will be issued by DHS);
—prevent DHS from engaging in any military activity or having any military authority
(Section 876) (similar to Section 886, noted below, as part of the reaffirmation of the "Posse
Comitatus" statute preventing use of federal military forces to enforce civilian law);
—establish a Counternarcotics Officer to coordinate DHS activities that might relate to
the Director of National Drug Control Policy (Section 878) (and therefore makes clear the
government's approach of linking the war on drugs with the war on terrorism);
—create an Office of International Affairs within DHS, which will conduct international
coordination and international conferences on terrorism concerns (although curiously no
mention whatever is made of the United Nations) (Section 880);
—abolish the much-criticized "TIPS" program (Terrorism Information and Prevention
System) (but similar programs such as "Amber Alert" seem to be taking its place),
—establish an Office for National Capital Region Coordination;
—provide for equal employment opportunity and whistleblower protections (the extent
of those protections and their use will not be clearly known, but they are clearly connected to
the NO FEAR provisions which at that time recently had been enacted by Congress and
supposedly expand whistleblower protections);
—permit development of a Joint Interagency Homeland Security Task Force composed of
representatives from military and civilian federal government agencies "for purposes of antici-
pating terrorist threats against the United States and taking appropriate actions to prevent
harm to the United States" (Section 885) (this would create at the federal level a task force
similar to the Joint Terrorism Task Forces, and presumably this federal level task force would
coordinate with similar task forces such as the Terrorist Threat Integration Center);
—reaffirm the Posse Comitatus Act which prevents the use of military forces to enforce
civilian law (Section 886, and also 18 U.S.C. Section 1385);
—describe coordination with the Department of Health and Human Services in the
Public Health Service;
—transfer certain "homeland security missions" of the Coast Guard to the DHS, and
—incorporate certain provisions of the Air Transportation Safety and System Stabili-
zation Act.

182
 Part IV-A: The Homeland Security Act of 2002 and The Department Of Homeland Security

This extensive Title VIII completes the HSA's description of the basic administrative
structure, general authorities, purposes and objectives, and policies of the Department of
Homeland Security. The remaining Titles provide additional policy guidance and transfer of
other federal government functions to the DHS. These Titles are mostly administrative, with
the exception of Title IX, Title X, and Title XIV.

Title IX: National Homeland Security Council

Title IX, a quite short Title, sets up yet another homeland security entity, the National
Homeland Security Council. This will not be placed in DHS but in the Office of the President
(which also will continue to operate the Office of Homeland Security despite the fact that the
DHS is now established). This Council has somewhat different functions than the Joint
Interagency Homeland Security Task Force established in Title VIII, and the separately-
established Terrorist Threat Integration Center and the Joint Terrorism Task Forces.
Members of the Homeland Security Council (HSC) (structured partially along the lines
of the National Security Council (NSC)), are: the President, Vice President, Secretary of
Homeland Security, Attorney General, Secretary of Defense, and others designated by the
President. The Council will have a staff and Executive Secretary. The Council is to assess
objectives, commitments, and risks of the United States "in the interests of homeland security"
and make recommendations, oversee and review homeland security policies, and perform any
other related function. It surely would coordinate with similar task forces or divisions within
DHS having similar functions or missions.
Consistent with the linkage in federal policy and approach between homeland security
and national security, especially as it pertains to foreign matters, Title IX allows the President
to convene joint meetings of the HSC and NSC. This makes clear the almost total merger of
federal agency activity in both domestic and foreign security concerns.

Title X: Federal Information Security Management Act

Title X of the HSA is another special statute, the "Federal Information Security
Management Act." This statute inserts various amendments to existing federal law regarding
information integrity and security. Through this Title, combined with other provisions, the
HSA confirms that the federal objective regarding homeland security and terrorist activity
information, is that information will come into DHS, can be secretly or securely shared by DHS
with certain other federal (and possibly State and local) agencies and officials, but that once
this information arrives in DHS, it is not available to the general public.
The statute defines "information security" as "protecting information and information
systems from unauthorized access, use, disclosure, disruption, modification, or destruction."
Policy goals include providing integrity, confidentiality, availability, and authentication of
crucial information. The statute also is concerned with national security systems and computer
networks which involve information used by federal agencies involved with intelligence, data
gathering and analysis, weapons systems, or military forces.
The Act requires new information security standards and guidelines, new information security
protections at agency levels to be reviewed at least annually, and a report to Congress on federal
agency efforts to increase information security. The information security requirements are quite
detailed. (Title X, Section 1001, and the new or amended 44 U.S.C. Sections 3534 and 3535).
They include agency compliance with new information security requirements, assessments,
agencywide information security programs, testing and evaluation of information security

183
 No Greater Threat

systems or controls, establishing chief information officers in agencies which will have special
duties for information security and will report to the agency head on effectiveness of agency
information security programs, and agency reports to Congress on information security systems
and effectiveness.
Another section involves management of information technology. Additional standards
are authorized or permitted, including standards for certain subagency information that, if
appropriate, could be more strict than the mandated agencywide information security standards. (Sec. 1002,
amending 40 U.S.C. Section 11331). Still another section charges the National Institute of
Standards and Technology to develop such standards and to assist agencies in doing so. (Sec.
1003). To continue with this information security theme, the HSA in Title X changes the
Computer System Security and Privacy Board of the NIST to the Information Security and
Privacy Advisory Board, and places additional requirements on the function of that Board.
Title X therefore increases privacy and integrity, but also secrecy, in information
throughout the federal government. Considerable resources and personnel effort will be
required to meet the information security standards set by Title.

Title XI: Department of Justice Divisions

This short Title transfers immigration functions of the Executive Office of Immigration
Review to the Department of Justice and also transfers the Bureau of Alcohol, Tobacco and
Firearms to the Department of Justice, which had been in the Treasury Department (although
revenue functions of the ATF are retained by Treasury).
A new headquarters building for the ATF is re-authorized. The Title reaffirms and to
some extent expands the powers and authorities of ATF agents. (Section 1113, amending 18
U.S.C. 203). Title XI also directs an explosive training and research facility at Ft. Hill in
Virginia. This facility will train federal, State, and local law enforcement officers in investigating
bombings, handling and disposing of explosive materials, use of bomb-sniffing dogs, and other
research. There are provisions limiting permits for purchase and possession of certain
explosives, including various restrictions and background checks.

Title XII: Airline War Risk Insurance Legislation

This Title is a response to indications by insurance firms providing airline insurance that
due to the potentially catastrophic losses resulting from terrorist acts, insurers might not be
willing to provide coverage for airlines for the damages and loss due to terrorism. In other
words, insurance coverage which before was only difficult or very expensive to obtain, will not
be available at all. This would also affect policies provided by or through the federal
government. Insurance available to flight crew and flight attendants would also become a
problem. The difficulty of insurance could also affect other types of insurance obtained by air
travel passengers, such as flight insurance or life insurance.
The Title requires DHS to develop and submit a report to Congress on availability and
cost of "commercial war risk insurance for air carriers and other aviation entities" for passengers
and third parties. The report would describe an alternative means of providing "aviation war
risk reinsurance covering passengers, crew, and third parties through the use of a risk-retention
group or by other means."

184
 Part IV-A: The Homeland Security Act of 2002 and The Department Of Homeland Security

Title XIII: Federal Workforce Improvement

(Not reviewed here.)

Title XIV: Arming Pilots Against Terrorism

The last major Title of the HSA, Title XIV, establishes a program controversial from the
time it was proposed: permitting commercial passenger airline pilots to carry or have exclusive access to
firearms to prevent or respond to a terrorist act committed on an airliner in flight. The Title is called the
"Arming Pilots Against Terrorism Act" and adds several sections to 49 U.S.C., beginning with
new 49 U.S.C. Section 44921.
The program is to be administered by the Department of Transportation. It would
"deputize" volunteer pilots of air carriers providing passenger air transportation or intrastate
passenger air transportation as "Federal law enforcement officers" authorized to "defend the
flight decks of aircraft of such air carriers against acts of criminal violence or air piracy." These
persons are to be called "federal flight deck officers."
The program is to begin within three months of the HSA (enacted November, 2002),
under procedures to be developed in that time. The procedures would address what types of
firearms would be used, selecting pilots to be trained (preference given to those with former
military or law enforcement experience), training standards and methods similar to air marshal
training, storing the firearm between flights, and where a firearm would be placed in an aircraft
"to ensure both its security and ease of retrieval in case of emergency."
Other procedures would consider respective responsibilities of "federal flight deck
officers" if only one of the two pilots on the airliner is such an officer, or if both are, interactions
between a federal flight deck officer and any air marshal aboard the aircraft, and "methods for
ensuring that security personnel will be able to identify whether a pilot is authorized to carry a
firearm" under the program. Still other procedures would study the risk of catastrophic failure
of an airliner in flight due to firearm discharge—information deemed classified although it is to
be provided to certain Congressional committees.
Training is to occur on the pilot's own time (which appears to mean that the airline is not
obligated to compensate the pilot for the training period) although the training will be at no
cost to the pilot. The pilot can purchase a personal firearm for use in the program (so long as it
is a firearm approved for that use). The training is to include classroom instruction as well as
demonstrations and field training.
The training also will include personal defense methods such as using available items on
an aircraft for self-defense, using protective devices given to crew members, deterring a
passenger who may present a problem, learning the "psychology of terrorists to cope with their
behavior and passenger responses to that behavior," and conducting airline cabin searches.
Additional training standards are described. The training program is to be developed in consul-
tation with law enforcement officials, security professionals, terrorism experts, air carrier
representatives, flight attendants, and labor organizations representing flight attendants.
In part to encourage airline participation, Title XIV states that air carriers will not be liable
for any damage or loss "due to a flight deck officer's use of or failure to use" a firearm. Instead, a federal flight
deck officer in situation where a firearm was or might have been used, is treated as a federal
employee. Any lawsuit which could be filed in connection with this sort of incident, would be
filed against the federal government under standard procedures for bringing such a lawsuit.
(However, an "accidental" firearm discharge resulting in injury or death of anyone aboard the

185
 No Greater Threat

airliner will result in the flight deck officer being removed from the program and possible
suspension of the program for reevaluation.)
Three other provisions of Title XIV are also of interest.
One provision requires that air careers provide flight attendants with "a discreet, hands-free,
wireless method of communicating with the pilots" while the plane is in flight (Section 1403(b),
amending 49 U.S.C. 114). Supposedly, this system would be designed to allow the flight
attendants to warn the pilot of a potential problem passenger without arousing any attention or
suspicion or concern in the cabin, and perhaps to coordinate any potential response. The HSA
does not detail precisely how this system will be developed and utilized. There is no deadline
stated for airline compliance with this directive. Supposedly, these systems either are in further
development or may already be in use. Developing and using this system could pose special
challenges. A wireless communication system aboard the aircraft in flight could possibly
interfere with aircraft navigation (a reason why cell phone use by passengers is not permitted
during flight). A system somehow wired throughout the plane for exclusive use by the flight
crew but could be hands-free, but might be too obtrusive. Further developments in the
potential implementation of such a system will be an interesting area of attention.
Another provision requires the Department of Transportation to study whether it would
be feasible to provide flight attendants with "nonlethal weapons to aide in combating air piracy and criminal
violence" on airlines. This rather striking provision would turn flight attendants, considered by
most of the air-travelling public as providing service and assistance to passengers, into potential
law enforcement officers in an aircraft cabin. The practical effect of implementing such a
program could also cause difficulties, raising the possibility that flight attendants could get
involved in a pitched in-flight struggle with a potential highjacker, with uncertain results.
The third provision allows pilots to carry nonlethal weapons, upon the request of the airliner. Again,
how these nonlethal weapons would be used, what type they would be, and the associated
training programs, will also change the relationship between airline flight deck crew and
passengers.
Finally, Title XIV commissions a Department of Transportation study on providing supple-
mental training for armed federal law enforcement officers who are not air marshals but frequently use airline
travel. The training would be similar to air marshal training and could be provided to new law
enforcement recruits at federal training centers. The study would determine of staggering
flights of these supplementally trained armed federal officers "to ensure the maximum amount
of flights" have a certified trained federal officer on board.
This new federal training is designed to meet an unstated but nevertheless evident
objective to put armed federally-trained individuals on nearly every commercial flight. A trained person
with a firearm, either a pilot, an air marshal, or a federal officer, supposedly could react to any
attempt to commit a terrorist act on an airplane in flight. Whether this program would meet its
intended objective is quite unclear.

Title XV: Transition

(Not reviewed here.)

Title XVI: Corrections to Existing Law Relating to Airline Transportation Security

There are only three Sections to this Title, involving nondisclosure of airline security
information, increasing penalties for certain violations of airline security programs, and

186
 Part IV-A: The Homeland Security Act of 2002 and The Department Of Homeland Security

allowing naturalized citizens as well as U.S. citizens to be TSA screeners. There is no further
comment on these Sections.

Title XVII: Conforming and Technical Amendments

This final Title of the HSA contains detailed amendments to existing federal law, to
reconcile those statutes to the HSA. Within these sections is a provision transferring to DHS
the Federal Protective Service, which guards and provides law enforcement at federal buildings
and other federal sites.
Of specific additional interest is a section establishing a National Bio-Weapons Defense
Analysis Center in the Department of Defense. The mission of this Center will be to "develop counter-
measures to potential attacks by terrorists using weapons of mass destruction." The functions
of this Center presumably would relate to the additional federal agency authorities and
activities established by the Public Health Security and Bioterrorism Preparedness and
Response Act of 2002 (42 U.S.C. §300hh-12).
This Title also includes provisions that created some debate in Congress and news
coverage of the statute while it was in Congress. These provisions limit the liability of vaccine companies
for vaccines containing substances which supposedly in some studies have been linked to the development of
autism in children, chiefly mercury-based additives. (Sections 1714 through 1717, amending 42
U.S.C. 300aa-33, bringing these issues within the scope of the existing Vaccine Act, which
funnels all cases or issues of vaccine-linked injuries or deaths to children into a government-
administered compensation system managed through an administrative law process and
subject to very little court review). Although there were efforts in Congress to remove these
provisions, they remained in the final version of the statute.
************************
The HSA gives DHS extremely wide authority to gather, analyze, share and store
information. Similar to PATRIOT Act provisions concerning information sharing, DHS will
have access to information, with no restrictions on its use, including possible use in a criminal
case. This could considerably blunt Fourth Amendment protections. Also, like the PATRIOT
Act, there is little if any court review of DHS gathering, analysis, use, sharing, and storage of
information beyond whatever privacy and civil liberty protections are in the statute.
DHS not only has prosecutorial powers of its own but also will function as an associated
agency with the FBI and CIA in investigating and prosecuting terrorist crimes. Given also
expanded definitions of those crimes in the PATRIOT Act including the new crime of "domestic
terrorism," DHS' role in these areas is yet to be fully appreciated. The potential for DHS to
expand its mission to look into the private lives of Americans is great. Also, the level of secrecy
with which this agency will operate is comparable other federal investigative agencies.
Corporate information involving critical infrastructure which does not need to be
supplied to any other State or federal agency under any other law, and yet which could be of use
to the public, is protected from any disclosure if it is voluntarily submitted to DHS. This and
other provisions concerning infrastructure protection set up a merger of DHS and corporate
America which could be antagonistic to the importance of public availability of information,
and could create a new informational battleground likely to be brought to the courts. The
extent of this secrecy and its effect on information availability will be a closely-watched
development.
DHS authorities to declare a health emergency and require smallpox vaccines for
designated portions of the population or even for entire localities and regions, includes the
potential that large stockpiles of smallpox vaccine will need to be developed and maintained.

187
 No Greater Threat

Government contracts to the private sector to do just that could be expected to be very
lucrative.
Although the INS was often criticized for its heavy-handed approaches and imperious
manner, there is no guarantee that the new Bureau of Citizenship and Immigration Services
(BCIS) or Bureau of Immigration and Customs Enforcement (BICE) will be any different,
despite strong language to the contrary in Title IV and the establishment of the Ombudsman
office. Much of the extreme authorities concerning immigration remain intact in previous
immigration statutes or regulations, some expanded by the PATRIOT Act. Without major
changes in those laws and regulations, which is unlikely, even a more empathetic by DHS
encouraged by HSA will not substantially change how immigration law is enforced, or how
immigration cases are decided by immigration hearing officers or by federal courts.
The government protection for designers or manufacturers of specially-important
terrorism protection technologies in Title VIII (the SAFETY Act) poses potential problems.
DHS designations can protect numerous technologies from private action. The HSA thus
provides for further corporate protections, as it does in Title II regarding information,
strengthening the public-private merger of many functions and duties and allowing government
to shelter corporate activity which may not necessarily be wise in the long term.
In arming pilots against terrorism, the HSA intends to maximize the possibility of trained
and potentially armed personnel aboard nearly any domestic flight, from air marshals to other
law enforcement officers to "federal flight deck officers." With the addition of trained flight
attendants possessing non-lethal weapons, the intent clearly is to provide a deterrent or a
means of response to any attempt at air piracy or air terrorism. How this would work in
practice, however, and whether it would improve airline safety in an incident, is another matter
entirely.
The HSA and DHS comprise another major leap forward in federal government policy and
procedure on domestic defense and security. The broad definitions of critical infrastructure,
massively re-coordinated federal agency authorities, technological research mandates,
information gathering abilities, information sharing requirements, new agency authorities,
myriad commissions or committees, considerable emergency powers, and mandated secrecy,
will make the DHS one of the most prominent federal agencies in domestic life. Most definitely,
this statute represents another further forward motion down the road toward a national
security state.

188
PART IV-B: DOMESTIC SECURITY ENHANCEMENT ACT OF 2003
(PROPOSED)

OVERVIEW OF STATUTE AND SUMMARY OF KEY SECTIONS

Note: As of mid-2004, the Domestic Security Enhancement Act (DSEA), often called
"PATRIOT Act II" is not an actual statute — and it is not likely ever to be submitted to Congress in
its original form. It has not yet been sent by the Administration to Congress for consideration as
a single package. It remains a proposed bill, apparently not complete.
In early February, 2003, the DSEA was leaked from within the Department of Justice, to a
Washington, DC advocacy group, the Center for Public Integrity. Also leaked at the same time,
was the Department of Justice's own internally-generated section-by-section analysis of the
proposed statute. The whos and whys of that leak are not clear.
The Center for Public Integrity, through its website, immediately sent out an alert about
the proposed statute, and directly notified several other advocacy groups. It also passed the
information about the statute to PBS' program "Now With Bill Moyers," which quickly did a
segment on the proposed bill around February 7, 2003. PBS and the Center made the proposed
statute and the Department of Justice analysis, available in full text on their respective
websites. Other advocacy groups soon followed.
Since then, the proposed statute has been the subject of considerable commentary and
analysis. It has made its way to numerous additional websites. Without a doubt, it would go
considerably beyond the USA PATRIOT Act. So the proposed DSEA quickly was called
"PATRIOT Act II."
The DOJ had countered the publicity with a statement that internal consideration of
potential new statutes, in many legal areas, is not unusual in the Department. Aside from that,
the Department has had little official comment. Attorney General John Ashcroft himself has had
little to say on the proposed DSEA. He has declared in later testimony to Congress that there is
no such thing as a "PATRIOT Act II."
However, a routing memo made part of the leaked proposed statute and analysis revealed
that it already had been sent to other offices within Administration — outside the DOJ — for
review. This indicated that the proposed bill was in final stages of revision and was being
readied for potential submission to Congress.
Although the statute was not proposed to Congress — likely due in large part to the
reaction by advocacy groups and the public once its provisions became more widely known —
there is cause for great concern over the DSEA. At the least, the statute is an indication of the
additional changes and authorities which the DOJ may seek from Congress in the Adminis-
tration's continuing escalation of the war on terrorism.
If the DSEA represents the approaches being considered by the DOJ after the PATRIOT
Act, a careful review of the proposed statute is of interest. The DSEA is an indication of the
potential further direction of anti-terrorism legislation contemplated from within the Adminis-
tration.
For those who wonder whether the current situation could be taken farther than the
PATRIOT Act, the DSEA provides a striking answer. To be considered as well is the possibility
that, even though at present the DSEA is unlikely ever to be sent to Congress, that situation
could change in the event of a dramatic shift in public opinion about anti- terrorism or another

189
 No Greater Threat

terrorist attack within the United States resulting in casualties comparable to the September 11
attacks.
Also, a review of this proposed statute is significant given that proposals the same or similar to
certain sections or provisions of the DSEA already have been submitted to Congress, and a few have been enacted.
These include expanding the definition of "domestic financial institution," greater adminis-
trative subpoena power for certain federal agencies such as the FBI, and increased penalties for
certain terrorist crimes. Expanding the definition of "domestic financial institution" already has
become law. So a look at "PATRIOT Act II" is not necessarily a look into the distant future.
There can be no doubt that if the entire DSEA were ever enacted by Congress and signed by the President,
the United States would become a national security state. Of note is that in the proposed statute, none of
the DSEA Sections has any sunset provision.
This review of the DSEA is taken in part from the Department of Justice analysis of the
proposed bill as well as from some Internet articles and commentary. There remain various
Internet resources or commentary on this proposed statute. Among them are the websites for:
ACLU, Center for Constitutional Rights, Friends Committee on National Legislation, Cato
Institute, and Center for National Security Studies.

TITLE I: ENHANCING NATIONAL SECURITY AUTHORITIES

Subtitle A: Foreign Intelligence Surveillance Act Amendments
The Foreign Intelligence Surveillance Act of 1978 (FISA) described methods of
government investigation of "agents of a foreign power" operating in the United States who may
be engaging in activities threatening national security, particularly "foreign intelligence"
activity. As detailed in Parts II through IV here, the USA PATRIOT Act considerably expands
previous FISA authorities and allows, among many other things, wide sharing between federal
government agencies of "foreign intelligence information," which in turn has a very broad
definition. DSEA Title I would go beyond in this several ways:
Section 101 would change the FISA definition of "foreign power" to include individuals, who
are not, at present, within of that definition. Under the current definition of "foreign power,"
investigations of individuals who are not "agents of a foreign power" must proceed on the
assumption or on reasonable belief that the person subjected to a FISA investigation is
operating for a foreign government or similar foreign entity. Section 101 would eliminate the
requirement to establish that circumstance as part of a FISA investigation. Individuals could
come under a FISA investigation without any showing that the person is connected to any
foreign power.
According to the DOJ, this change will allow FISA investigation of "sleeper cells" or of
"lone wolf" terrorists. But, in the process, it also would allow FISA investigative authority over
any individual, whether or not the person is an "agent" of a foreign power or affiliated with any
terrorist group. It is possible that the investigation could include US citizens, although in
general FISA investigations concentrate on foreign nationals.
Moving to Section 102, the DSEA would alter other FISA definitions. Under FISA, an
"agent of a foreign power" is defined as someone who "knowingly" engages in "clandestine
intelligence activity" that could involve a federal crime. (18 U.S.C. §1801(b)(2) — there are other
definitions of "agent of a foreign power," but the most prevalent definition in FISA connects
clandestine intelligence activity with potential commission of a federal crime or terrorist act).
This Section would eliminate the "federal crime" aspect of the definition. An "agent of a foreign
power" could be considered as engaging in "clandestine intelligence activity" even if no crime or
potential crime is involved.

190
 Part IV-B: Domestic Security Enhancement Act of 2003 (Proposed)

The definition changes represented by Section 101 and Section 102 could result in
unchecked FISA investigations into nearly any person for nearly any reason. Without linking a
suspect person to a foreign power, and without linking the suspect's activity to a potential
federal crime, there is virtually no limit to the reach of the full power of a FISA investigation.
Section 103 goes even farther than this. Under FISA, certain emergency surveillance
powers can be conducted by the Executive Branch through by federal investigative agencies for
15 days after Congress declares war. For this emergency period, these activities can be conducted
without approval from the FISA Court (although, as has been explained in discussing
PATRIOT Act Title II, obtaining approval by the FISA Court for nearly anything does not
appear to be a problem). These emergency powers include special surveillance, physical searches,
and telephone monitoring.
This Section would change the requirement for use of these emergency powers from
"declaration of war" to any time Congress authorizes the use of military force. According to the DOJ,
these emergency powers are particularly important in terrorism investigations and should not
be restrained by a supposedly unreasonable requirement of a declaration of war, since Congress
has not formally declared war in more than 50 years.
However, in the current state of conflict with terrorist groups or with other hostile
powers, the better approach would be to recognize that a Congressional authorization of the
use of military force better serves the intent of the statute. In any case, changing the definition
to allow the use of emergency powers under FISA whenever Congress authorizes the use of
military force naturally would greatly expand its use.
This means, of course, that in past three years alone, the emergency surveillance powers
allowed by FISA could have been put into use at least twice: when Congress authorized the
President to take military action in Afghanistan soon after the September 11 attacks, and when
Congress authorized the President to take all necessary action against Iraq to address the
potential threat posed by that country. It is also likely that for those times, the President also
would have asked Congress to expand the 15-day period for the use of these emergency
surveillance powers.
More expansion of emergency powers is contained in DSEA Section 104. This changes the
time frame an emergency Presidential authorization for electronic surveillance of foreign
powers for up to a year, and eliminates the restriction on spoken communications. Spoken communi-
cations would be part of the surveillance. This Section therefore would expand the wiretap
authority given to federal investigative agencies under FISA and might even include speeches or
comments given in public (although the FBI already investigates those).
DSEA Title I continues with its expansion of FISA, in Section 105. At present, certain
information obtained by FISA surveillance can be used in a criminal case only by approval of the
Attorney General. This Section would broaden the approval source to other Justice Department
officials in addition to the Attorney General. However, it would appear that Section 105 might
not be needed. A decision by the Foreign Intelligence Surveillance Act Court of Review, one of
the few ever issued, has declared that information obtained in a FISA investigation can be used
in a criminal case. That decision tore down a "wall" that existed in prior interpretations of FISA
by most federal courts. Those courts previously had ruled that because of the nature of FISA
investigations and the broader means of obtaining information, a FISA investigation could not
be used in a criminal case. With this FISA Court of Review decision in place, the objective of
Section 105 already has been met.
DSEA Section 106 would allow a "good faith" defense to be raised by the government for
certain unauthorized surveillance or searches in special situations where FISA Court approval
for the surveillance or search was not required, so long as the activity was approved by the

191
 No Greater Threat

President or Attorney General. Adding this defense to any challenge to the search would mean
that it would be more difficult to demonstrate to a court that the search was improper.
Further expansion of surveillance powers is found in Section 107, which would allow
telephone monitoring methods on American citizens to obtain "foreign intelligence information." This
appears to eliminate the current requirement that for American citizens, this type of
surveillance can only be used if there is a belief that the suspected person is engaged in interna-
tional terrorism or in actual clandestine intelligence activity. It must be kept in mind that under
current law, information obtained in a FISA investigation can now be used in a standard
criminal case, even if that was not the objective of the FISA investigation.
Section 108 would allow for appointment by the FISA Court of counsel on behalf of the
Court, to defend a FISA decision should that decision be appealed by the government. At
present, there is no such mechanism. Supposedly, this would permit the FISA Court to take
additional steps to clarify its decisions.
A troubling expansion of FISA Court power is in Section 109 of DSEA Title I. This would
allow the FISA Court — which is a secret court which issues secret surveillance or investi-
gation orders — to enforce those orders against anyone who does not cooperate with activity being
conducted under a FISA order. This enforcement would include a hearing and possibly use of the
court's contempt authority (an authority available to any court).
Because the FISA Court operates in secret (some FISA investigations are classified), it
could be assumed that activity by the FISA court to enforce its orders, also would be secret. It
also thus can be assumed that a FISA Court, if it utilizes the general contempt powers of a
court, could put someone in jail — for a period stated by the Court — if that person is found to
be in contempt of court for not cooperating with a FISA order. This sort of power with the
authority granted under DSEA Section 109 raises bizarre images which, nevertheless, might not
be so far-fetched: federal agents coming to a person's home or business, taking that person to
the FISA Court for a secret hearing over whether the person has obstructed a FISA investi-
gation, the Court finding that person to be in contempt of the FISA Court, and the person
ordered incarcerated for some period of time because of the contempt finding. All in secret.
What is more likely, however, is that federal agents want the ability to threaten a person
with this sort of scenario, to ensure that there is no difficulty, impediment, question or
hesitation for compliance with a FISA investigative order. In other words, the federal
government wants to move swiftly, without objection or obstruction by anyone, in conducting
FISA investigations.
A potential prediction of the fate of sunset provisions of PATRIOT Act Title II sections is
found in DSEA Section 110. That Section would take Section 204 of the PATRIOT Act out of
sunset provision. In PATRIOT Act Section 204, a federal statute was amended to add
"electronic communication" as an exception to restrictions imposed by that statute on certain
investigations (see 18 U.S.C. 2511(2)(f)). This was not an amendment to FISA. Under PATRIOT
Act Section 204, these investigations now can involve "electronic communication" — and a
wide variety of "communication" activity is included in those two words. Congress identified
Section 204 as one of the sections of PATRIOT Act Title II that will automatically sunset on
December 31, 2005. Under DSEA Section 110, PATRIOT Act Section 204 will not sunset. The
exception for "electronic communication" will be permanent. (The forward approach of this
provision is borne out by the Administration's statements that Congress should "renew" the
PATRIOT Act, which is intended to mean that Congress should eliminate the provisions in
Title II scheduled to sunset in December, 2005.)
Similar to the elimination of the "foreign power" connection in FISA investigations
proposed by the DSEA is DSEA Section 111, which would allow for FISA investigations to treat

192
 Part IV-B: Domestic Security Enhancement Act of 2003 (Proposed)

"terrorist organizations" as "foreign powers." The traditional definition of "foreign power" under
FISA, involves countries and governments, although groups engaged in "international terrorism"
are already included.
Currently, FISA expressly defines "foreign power" as: a foreign government or "any
component" of a foreign government, a "faction" of a foreign nation, any entity "openly
acknowledged" by a foreign government to be acting for it or to be controlled by it, a group
"engaged in international terrorism," a foreign-based "political organization" so long as it is not
"substantially composed" of United States citizens, and any entity directed or controlled by a
foreign government.
This definition already includes certain terrorist groups, particularly those involved in
"international terrorism" or part of a "foreign-based political organization." The DSEA change
would expand the definition to groups that do not have any "international terrorism" or
"foreign" characteristic. This would mean that any group determined by the government to be a
"terrorist organization," regardless of whether it has any international involvement, can come
under a FISA investigation. This, in turn, could mean domestic groups, perhaps even groups
composed of United States citizens.
Subtitle B: Enhancement of Law Enforcement Investigative Tools
DSEA continues with its expanded definitions in Subtitle B, beginning with Section 121.
This Section would clarify that "terrorist activities" can be treated as a "criminal activity" for
areas of federal law allowing for electronic surveillance. It is to be noted that, as in other areas of
criminal law, "attempt" to commit a terrorist crime and "conspiracy" to commit a terrorist crime,
are separate crimes themselves. Under Section 121, more surveillance even beyond FISA
surveillance could be conducted to investigate terrorist crimes (including attempts and
conspiracies), although these sorts of investigations already are being conducted.
Along the same lines, Section 122 adds certain activities to a list of crimes likely to be
committed by terrorists (amending 18 U.S.C. §930, §956). The resulting search authorization
would include electronic surveillance without a court order in emergency situations, which
would also include telephone monitoring methods.
Expanded warrant and investigative authority are included in DSEA Section 123. This
Section would make changes in electronic monitoring and other search methods, for domestic
terrorism or other similar terrorist activity. Effectively, this change would bypass or eliminate
requirements that this surveillance activity conform to federal wiretap laws that are potentially
more exacting than FISA warrants and orders. The changes also would give these warrants
longer time periods and would reduce the requirements of reporting to the court of surveillance
activity.
In another change confirming that the federal government is always tracking
developments in communications technology, DSEA Section 124 would allow government
investigations to reach into various aspects of a "multi-function" electronic devices. Many
devices, such as palm pilots, PDAs, and cell phones, have capacities to store information,
retrieve information, send data or images, and interact with other equipment. However, under
current federal law, investigation into communications occurring through these devices is
limited to actual conversations. Under Section 124, for multi-function electronic devices such as
a cell phone with various capabilities, a warrant for a particular cell phone can extend to
information available through any function of that device. That means a warrant could include a
search of, or could require the device owner to provide, information stored or communicated
through other functions of the device. This would, in some sense of the term, automatically
transform a wiretap warrant into a search warrant.

193
 No Greater Threat

Additional expansion of search warrant authority is contained in DSEA Section 125.

Nationwide search warrants or multi- jurisdiction search warrants are now permitted under
the PATRIOT Act, for investigating terrorist crimes. However, the current definition of
"terrorism" requires that the actual or planned activity be dangerous to human life. Certain
other activities that might be considered terrorism, such as terrorist financing, are not included
in that definition.
This Section would change the "terrorism" definition for search warrant or investigative
purposes to include actual or potential computer crimes, attacks on infrastructure, and
"providing material support" to terrorism. Investigations allowed for "terrorist" activities could
involve these activities, as well. That would be a substantial expansion of investigation into a
wide range of activities, especially because the existing definition of "providing material
support" to terrorism (found in statutes like the USA PATRIOT Act and the Anti-Terrorism
and Effective Death Penalty Act of 1996) is itself very broad.
Information gathering also is expanded in the DSEA, through Section 126. That Section
would allow access by government investigators to consumer credit reports, as quickly and
easily as such reports are available to credit agencies or banks. It effectively would eliminate
warrant requirements or subpoenas to obtain these reports. According to the DOJ, under
current processes for obtaining warrants or subpoenas, it take up to three months "to learn
where a terrorist keeps his accounts."
However, this statement seems unnecessary. Given the current cooperation of federal
courts (including FISA) when it comes to warrants and subpoenas in terrorism investigations,
and given PATRIOT Act provisions, it would uncommon that the government would need 90
days to learn anything. Also, there is no mention in this Section of other existing authorities,
such as the entire range of authorities allowed by USA PATRIOT Act Title, for federal investi-
gators to review of suspect bank accounts regarding terrorism (and without a court order),
other PATRIOT Act sections extending government investigation into credit reports, and the
use of "national security" letters to obtain consumer information. As is the case with PATRIOT
Act Sections involving information gathering, DSEA Section 126 would prohibit the consumer
credit agency from disclosing that law enforcement authorities have sought or obtained the
credit report.
In a rather unusual provision for information gathering, DSEA Section 127 concerns
government investigation of a terrorist act overseas that results in deaths of American citizens.
Section 127 would allow the federal government to order an autopsy immediately of a US citizen who
was the fatal victim of a terrorist crime, especially one occurring overseas. The autopsy would be
conducted by or at the direction of US agents, in the foreign country itself. Other offenses, as
well as acts of terrorism, would come under this new provision, since the Section mentions only
"criminal investigation" and is not specifically restricted to terrorism.
Supposedly, this provision would eliminate any difficulty of requiring that the victim's
body be transported to the US for autopsy, which according to the DOJ adds to investigative
delay (and perhaps also would eliminate any requirement of obtaining consent of the victim's
family). The Attorney General's authority to order such an autopsy could be delegated to other
federal officials. The autopsies would be conducted by local or private parties — but as the
Section indicates, under the direction of U.S. agents.
In a Section that has been under consideration by Congress if not already enacted in some
form, additional investigative authorities are granted to some government agencies, beyond
search warrants. Section 128 would expand the use of administrative subpoenas to include
terrorism investigations. An administrative subpoena is issued from the government agency
itself, eliminating the requirement that these subpoenas must be issued only by a grand jury or

194
 Part IV-B: Domestic Security Enhancement Act of 2003 (Proposed)

similar methods. This use of the administrative subpoena would extend to investigations of
domestic and international terrorism. These subpoenas can be enforced as with any other subpoena.
Section 128 would continue the trend in the PATRIOT Act and other statutes to reduce or
eliminate the role of the federal courts in the investigation process. Virtually no checks and
balances exist for issuing and enforcing administrative subpoenas.
These expanded authorities are continued in Section 129. In addition to the use of
administrative subpoenas is a "national security letter" issued by certain federal officials to
obtain information in a national security investigation, such as involving international
terrorism or espionage. The authority to issue a "national security letter" exists, but is
somewhat restricted. Currently, as the DOJ analysis notes, information to be obtained in this
way includes: 1) electronic transaction records by communication service providers (which
would include Internet ISPs), 2) consumer information, 3) consumer reports, 4) financial
records, and 5) information on persons with access to classified information.
The DSEA changes would: 1) provide a penalty for unlawful disclosure to anyone that the
information has been sought, 2) allow for court enforcement of national security letters, 3)
extend national security letters to all types of terrorist activity, and 4) allow for broader information
sharing of this material. Expansion of national security letters to include terrorism investi-
gations could place entire investigations outside of the search warrant or wiretap requirements,
and perhaps even eliminate the need for FISA warrants.
If this Section is enacted, there would be little need for any search warrants at all for a
terrorism investigation. And if the other DSEA sections expanding search warrant authorities
and the scope of investigations are enacted, any search warrant in a terrorism investigation
would be a carte blanche authority to conduct investigation of any type, involving anyone.
Section 129 completes Title I of the DSEA. Already, the DSEA would change the definition
of "agent of a foreign power" and "foreign power" under FISA, allow for secret contempt
hearings by a FISA court to enforce FISA search warrants, greatly expand terrorism investi-
gations, allow the government to direct or to conduct autopsies of U.S. citizens who are fatal
victims of an overseas terrorist attack, permit the government to obtain consumer records, and
potentially eliminate search warrants for terrorism investigations by expanding existing
authorities for administrative subpoenas and national security letters.

TITLE II: PROTECTING NATIONAL SECURITY INFORMATION

Additional expansions of federal authorities continue in DSEA Title II. Along with other
DSEA sections, these provisions, which might not be seriously be considered by Congress at
present, indeed could be enacted if the terrorism concern grows, or as part of a reaction by
Congress to another domestic terrorist attack.
Section 201 allows for, essentially, secret detentions or arrests. It states that the government
can decline to release information regarding an individual arrested for suspicion of terrorism.
Under this Section, according to the DOJ, "the government need not disclose information about
individuals detained in investigations of terrorism until disclosure occurs routinely upon the
initiation of criminal charges." So, even if the detained person is not criminally charged,
information concerning this detention — which would include, for example, where the person
is held — would be secret. The Section does not appear to be restricted to foreign nationals
detained on suspicion of terrorism.
According to the DOJ analysis, "the release of information about persons detained in
connection with terrorism investigations could have a substantial adverse impact on the United
States' security interests, as well as the detainee's privacy." The DOJ says that releasing such
information could allow co-conspirators to flee, hide, or destroy evidence.

195
 No Greater Threat

However, the effect of this Section is already in place, due to a decision by the United States
Court of Appeals for the District of Columbia Circuit. That Court decided — reversing a
contrary decision by the United States District Court which the government appealed — that
the government is not required to release information on detainees arrested or held in suspicion of terrorism,
through a request under the Freedom of Information Act. The United States Supreme Court declined to
review that decision, confirming the permanency and effect of the Court of Appeals ruling. The
decision already means, essentially, secret arrests.
Restrictions on other information would occur under DSEA Section 202. Under the Clean
Air Act, certain companies using dangerous chemicals are to submit to the Environmental
Protection Agency a "worst case scenario" report about the effect upon surrounding
communities from the release of that chemical (accidentally or as the result of sabotage or
terrorism). According to the DOJ, these reports are "a roadmap for terrorists." The Section,
therefore, would allow these reports to be shared among certain federal or state agencies but
would provide that otherwise, this information effectively is considered secret. Disseminating this
information to communities which could be affected by the chemical release — a main objective
of the report in the first place — would be restricted.
This provision shows just how far the government is willing to go, even into other areas of
law such as the environment, to restrict public access to information which the government
considers related to terrorism. Also, some of the results intended with this DSEA section seem
already to be in place in certain sections of the Homeland Security Act, which had been passed
by the time the DSEA was leaked, and which allows the Department of Homeland Security
(DHS) to restrict public access to information that is to be provided to DHS by companies
which are considered part of our critical infrastructure regarding response to terrorist threats
— although, if this information is to be provided by these same companies to other federal
agencies under other laws, the other agencies are not necessarily required to place the same
restrictions on that information. The DSEA would expand the scope of any such restrictions.
Under a similar provision, DSEA Section 203 makes information about government
buildings, such as blueprints and charts, essentially secret. This provision would exempt this
information from being obtained by the Freedom of Information Act. Again, the objective would
be to restrict access to information that the government considers could be used to assist in
planning or conducting terrorist acts.
More information restrictions are found in Section 204. Under the Classified Information
Procedures Act, if a court is reviewing an investigation that supposedly involves classified
material, the court can decide whether to grant a government request that the court's review of
the material be conducted only in closed court chambers (known by the Latin phrase "in
camera"). This means that the court could decide to review this material not in closed chambers,
but in open court. According to the DOJ, an open court review of sensitive material could mean
that the information might be compromised. This DSEA Section would close off that possibility
by requiring that if the government requests court review of classified information, that court
review must be in closed court chambers. The court no longer would have any discretion to
decide how its review of the material occurs.
DSEA Section 205 is not of concern here. It states that security which is provided to
certain officials would not be considered a value or income to be taxed.
Continuing with the DSEA Title II theme of further restrictions on information, DSEA
Section 206, extends grand jury secrecy requirements to a broader class of subpoenas.
Information concerning these subpoenas could be restricted if the situation involves danger to
the national security, flight of an individual, danger to life or safety of any person, destruction of

196
 Part IV-B: Domestic Security Enhancement Act of 2003 (Proposed)

evidence, witness intimidation, or jeopardy to the investigation. Secrecy can be imposed in all
these situations.
Of course, given the nature of terrorism investigations, one or more of these reasons
almost always could be imposed to increase the secrecy of grand jury information or subpoenas,
which generally are secret or restricted, in any event. Again, an overall DSEA theme would be to
close any gaps or loopholes which exist or could be considered to exist.

TITLE III: ENHANCING INVESTIGATIONS OF TERRORIST PLOTS

Another overall theme of both the USA PATRIOT Act and the Homeland Security Act, as
well as other related laws enacted after September 11, is expanding information available to the
government in terrorism investigations. The DSEA expands on this theme as well, in Title III.
Some of these provisions would be unprecedented in federal law.
Subtitle A: Terrorism Identification Database
The USA PATRIOT Act expanded the DNA criminal database, to include those convicted
of a long list of terrorist crimes. DSEA Section 301 would change the word "convicted" to
"suspected." This would allow DNA database information to be included for anyone suspected of
terrorist crimes. Specifically, under Section 301, these persons would be: 1) suspected of
engaging in terrorism, 2) enemy combatants, 3) persons suspected of being in a terrorist organi-
zation, and 4) aliens including those engaging in activity that endangers national security.
The Section surely would include the detainees at Guantanamo Bay, who have been
declared by the government to be "enemy combatants." It also would include anyone suspected
of engaging in any sort of terrorist crime, which could be "material support" for terrorism. By
using the term "suspected," DNA information could be obtained from any person arrested for
activity in any of the four categories described in the statute, even if later released. A conviction
no longer would be required.
This provision would represent a substantial change in federal government's authority to
obtain information on a person. The information can be obtained from anyone arrested or
detained under suspicion of committing a terrorist act.
Continuing with the expansion of DNA databanks, DSEA Section 303 would create what
appears to be a separate DNA databank for terrorism. All federal agencies would contribute to
this databank. The Justice Department could use the information to "detect, investigate,
prosecute, prevent, or respond to" terrorist activities. This information could be shared with
federal, state, local, or foreign agencies. The information clearly could be shared by the
Department of Homeland Security, which was specifically declared by the Homeland Security
Act as one of the federal agencies to receive information to be shared among federal agencies
that relates to terrorism or to foreign intelligence.
Under DSEA, Section 304, the definition of suspected terrorists is expanded, for
information gathering purposes. Other related definitions are also expanded. DSEA Section 305
allows federal government powers to be used in addition to any other authorities available.
Finally, Section 306 would expand the DNA databank to include persons under
conditional release, parole, or other form of federal custody besides incarceration. That is, at
present the DNA databank information was obtained of persons convicted of a crime and who
are under incarceration. It is not clear whether the Section is intended to require federal
agencies to seek out all such persons or to require them to report under court order to their
supervising federal officers or to federal agencies, to submit to DNA information gathering. If so,
it would be a massive federal undertaking.

197
 No Greater Threat

Subtitle B: Facilitating Information Sharing and Cooperation

Information sharing about foreign intelligence or terrorism investigations would also be
expanded under the DSEA. Under Section 311, information sharing under the PATRIOT Act
would be extended to state and local law enforcement and to other law enforcement agencies of
foreign governments. This is similar to provisions in the Homeland Security Act, which allows
information sharing, even sensitive information about terrorism investigations, to include State
and local law enforcement officials. The DSEA provision also includes visas, educational
records, and consumer credit information.
A dramatic, if not shocking, change in the investigation abilities of state and local law
enforcement agencies, as well federal agencies, is proposed in DSEA Section 312. Due to certain
excesses in the 1970s and 1980s of surveillance and investigation authorities by many state and
municipal law enforcement agencies as well as the FBI, including keeping secret files, many
"consent decrees" were entered to settle litigation by persons or advocacy groups over these
excesses. These consent decrees, which are still in place, limit police authority to conduct
investigations and to keep files on persons or groups.
The DOJ contends that these consent decrees "handicap" and "frustrate" law enforcement
activity especially for terrorism investigation. DSEA Section 312 would invalidate these consent decrees.
According to the DOJ, the Section "would discontinue most consent decrees that could impede
terrorism investigations conducted by federal, state or local law enforcement agencies. It would
immediately terminate most decrees that were enacted before September 11, 2001. All surviving
decrees would have to be reviewed and modified to correct a current and ongoing violation of a
Federal right, extend no further than necessary to correct the violation of the Federal right, and
be narrowly drawn and the least intrusive means to correct the violation."
This sweeping Section is modeled after the Prison Litigation Reform Act, which in
general did the same thing to prison related consent decrees. It would require court review of all
consent decrees and would permit the court to invalidate many of these consent decrees. If that
occurs, there would be little restriction on secret investigations of activists, advocacy groups, or
anyone else, by local, state, municipal, or federal law enforcement agencies. Secret investi-
gations and secret files no longer would be a thing of the past — assuming that the consent
decrees were followed (and in some cases it seems that they were not, given revelations about
secret files that have been kept on activists and certain advocacy groups by local law
enforcement agencies in Denver and in New York, and current revelations about law
enforcement infiltration of advocacy groups, in California and elsewhere.)
DSEA Section 313 would provide protection or immunity for businesses and personnel
who voluntarily provide information to a federal agent "to assist in the investigation and
prevention of terrorist activities." These protections already are in place in the USA PATRIOT
Act, the Homeland Security Act, and similar statutes (such as FISA). (The Homeland Security
Act, enacted in November, 2002, clearly was not yet passed by Congress when the DSEA was
being developed.) Again, DSEA would close any gaps or loopholes that might exist in current
law.
Subtitle C: Facilitating International Terrorism Investigations
Along the lines of greater information gathering, expanded information databases,
restricted public access to information, and increased information sharing among federal
agencies, the DSEA also would increase other investigative abilities of the federal government.
Some of these Sections have never been seriously proposed before.

198
 Part IV-B: Domestic Security Enhancement Act of 2003 (Proposed)

Section 321 would allow electronic surveillance of various kinds to be conducted in the
United States and possibly involving U.S. citizens, at the request of foreign governments. According
to the DOJ, "Doing so will enhance our ability to assist foreign law enforcement investigations,
as well as promote better cooperation from foreign allies when we seek evidence from within
their borders." The possibilities for abuse of this authority are endless. Again, however, the
DSEA (and, to be certain, the Department of Justice itself) is not concerned with long term
effects, only with results.
Section 322 changes certain extradition and treaty arrangements to "update" them and to
permit extradition, or other acts allowed by the treaty, for crimes that might not have been listed in the
treaty. According to the DOJ, many of these treaties have become old or outdated. The DSEA
would update these treaties, apparently automatically, without a review of the change either by
the other nations involved or by the Department of State. Under the DSEA, a terrorism investi-
gation is not going to be restricted by any existing treaty, law, regulation, or rule.

TITLE IV: ENHANCING PROSECUTION AND PREVENTION OF TERRORIST

CRIMES
The DSEA moves on to increasing penalties for terrorist crimes. Some of these proposed
expansions are further extensions of existing law — for example, the USA PATRIOT Act
expands penalties for terrorist crimes, to include potential life imprisonment for certain crimes.
If the objective of the DSEA is further to expand existing law, then expanded penalties for
terrorist crimes would have to be more severe than a life sentence.
Subtitle A: Increased Penalties and Protections Against Terrorist Acts
Section 401 creates a new prohibition or crime against "terrorism hoaxes," such as
deliberately false reports of a terrorist activity or deliberate attempt to fake a terrorist crime
(letter made to look like it contains powdered anthrax but does not). A civil action for such
hoaxes also is allowed. This might be considered an expansion of the new federal crime of
"domestic terrorism" that was enacted by the USA PATRIOT Act.
An expansion is found in Section 402, which increases the crime of "material support for
terrorism" to include international terrorism, and expressly does not require a showing of intent to be
suspected or arrested or convicted of "material support for terrorism," if the action involved is
sufficient by itself to suggest that the person intended to provide material support. This also
includes "training" or "instruction."
Numerous criminal laws allow intent to commit the crime to be presumed by the crime
itself (such as "intent to distribute" a certain narcotic to be presumed by the amount of narcotic
in the suspect's possession). However, many of these laws involve acts of violence or
conspiracies. Expanding the definition to include a broad term such as "material support for
terrorism" would be a significant step.
Section 402 expands federal court jurisdiction of terrorism involving a weapon of mass
destruction, to include: 1) use of the mails or other form of interstate commerce, 2) any property
used in interstate or foreign commerce, and 3) travel in interstate or foreign commerce. Also,
attacks on foreign government property in the US are included. And "chemical weapons," with
an expanded definition, are included, changing what the DOJ believes was too-restrictive
language in the United Nations' Chemical Weapons Convention of 1998. Expanded definitions
or jurisdiction for these crimes allows greater reach of the federal courts, even to international
situations.

199
 No Greater Threat

Use of a computer is part of the expanded definitions, as well. DSEA Section 404 makes it
a crime to use a computer with encryption technology in the furtherance of a federal felony or
"to conceal any incriminating communication or information relating to" that felony. This is not
restricted to a terrorist offense. Although the crime described in this provision may seem to be
very precise and restricted, the Section in fact would allow much more government investi-
gation into computer use. It must be noted that most terrorism offenses would be federal
felonies, and terrorism offenses are very broadly defined. There could be widespread
government investigation into computer use to detect the very precise crime described in this
Section.
The DSEA would make another substantial change system in the federal criminal justice
system with Section 405, which would involves pretrial release — or in the case of terrorism
crimes, the lack thereof. Under current federal criminal law, those charged with specified
crimes are not allowed pretrial release. At present, that list includes drug offenses with a
maximum prison term of 10 years or more. The Section would deny pretrial release to anyone charged
with terrorism offenses.
According to the DOJ, this change is necessary "because of the unparalleled magnitude of
the danger to the United States and its people posed by acts of terrorism, and because terrorism
is typically engaged in by groups — many with international connections — that are often in a
position to help their members flee or go into hiding." Not only can the government keep secret
information on individuals arrested for terrorism offenses, but also these persons would be
detained indefinitely while awaiting trial.
During that time, DNA information on the person would be obtained to add to the DNA
databank. Financial records and computer records would be searched. And the trial could
include the use of classified information which the defendant could not review or challenged
because the court would be required to review that information in chambers. This would be
followed by enhanced sentence and other government action.
DSEA Section 406 makes technical corrections in the definition of "mass transportation
vehicle" concerning terrorist crimes. It would be clear that mass transportation vehicle would
include any sort of vehicle that conceivably could come under that definition.
Another expansion of federal jurisdiction would take place through Section 407, which
expands federal jurisdiction over someone who travels in interstate or foreign commerce in
furtherance of a terrorism offense or criminal offense. This would seem unnecessary, because
terrorism investigation is already federal, but again the objective of the DSEA is to close any
gaps that might exist in the law.
Further enhanced penalties for terrorism offenses are noted in DSEA Section 408. The
PATRIOT Act permits "supervised release" (similar to parole) of a person convicted of a
terrorist crime in federal court to be up to life. This Section would expand certain classifications
as to post-supervision release and set a minimum of supervised release of 10 years for conviction of certain
terrorist offenses. This Section includes "all offenses in the standard list of crimes likely to be
committed by terrorists and supporters of terrorism."
This would be another unprecedented section. There are only a few types of crimes for
which a minimum time for supervised release is required. Given the long list of terrorist
offenses, the list of crimes to would come under this section is quite long.
Section 409 would allow for the denial, suspension, or revocation of civil aviation certif-
icates for national security reasons. This is at the discretion of the government and does not
require suspicion or conviction of any terrorist crime.
Section 410 would eliminate the statute of limitations for certain terrorist offenses. This
goes beyond the expansion of statutes of limitation in the USA PATRIOT Act. For example, it

200
 Part IV-B: Domestic Security Enhancement Act of 2003 (Proposed)

eliminates the "death or serious injury" requirement and includes computer crimes, which might
not result in injury but can cause disruption and economic damage. Again, the scope and reach
of federal courts would be as expanded in this proposed statute as is the scope of reach of
federal investigation, in the federal effort against terrorist activities.
Section 411 would impose the death penalty for terrorist murders or terrorist crimes that result
in fatalities. Under current law in the USA PATRIOT Act, penalties for terrorism offenses can
be up to life in prison, but not the death penalty. Section 411 would change that.
Subtitle B: Incapacitating Terrorism Financing
Continuing with expansions of existing federal law, including the USA PATRIOT Act,
the DSEA turns to certain provisions involving terrorist financing. There may not be much
expansion possible, given the breadth of Title III of the PATRIOT Act. Still, the DSEA describes
some areas where federal government authorities could be increased.
Section 421, increases penalties for violations of the International Emergency Economic
Powers Act. The penalty would grow five-fold, from $10,000 per violation to $50,000 per
violation.
DSEA Section 422 would expand investigation of terrorist financing to different sorts of
financial transactions. It would also extend federal investigative agency and court jurisdiction to
"all constituent parts" of a given transaction. This Section has in large part been enacted. Expanded
authority and broader definition of "domestic financial institution" was part of legislation
signed by President Bush in December, 2003.
Section 423 would eliminate tax-exempt status for a group classified as a "terrorist
organization." This may seem to be a logical result of characterizing a group as a terrorist
organization. Yet, it may not be clear whether the group could continue to claim tax- exempt
status. This Section would ensure that no such group could be a tax-exempt group. The scope
of this Section would include any group declared to be a terrorist organization and this might
include some advocacy groups. Loss of tax-exempt organization for groups that depend on
donations, memberships, gifts, and grants, could effectively cripple such groups — which,
supposedly, is the objective of the proposed provision, but which could have much farther and
wide-ranging effects.
Another similar result would occur under Section 424. The Section would extend the
denial of "federal benefits" (such as government contracts, loans, licenses) to those convicted of
terrorism. This could mean any terrorist crime, including material support, attempt, and
conspiracy.
Section 425 adds other amendments or technical corrections to USA PATRIOT Act
sections involving terrorist financing investigations. Again, this represent further expanded
powers of the federal government under the DSEA in nearly every aspect of terrorism investi-
gation and prosecution. Similar provisions are found in Section 426, which adds other aspects
of terrorist financing to government investigations.
Another further reach of the federal government and federal courts regarding terrorism
and terrorist financing is described in Section 427. This Section would expand the forfeiture
provisions of PATRIOT Act. Those forfeiture provisions, already quite broad, relate to crimes
committed against the US or within the US. DSEA Section 427 would extend that forfeiture
authority to crimes or acts of terrorism "against a foreign state or international organization," if
the crime occurs in US jurisdiction.
Also, Section 428 adds certain conspiracies and makes other technical corrections to USA
PATRIOT Act involving money laundering and forfeiture. This would also expand the reach of

201
 No Greater Threat

the government into financial institutions in the investigation and prosecution of terrorist
financing.
DSEA Title IV contains some of the most expansive provisions yet seen in federal law
involving terrorist crimes, regarding pre-trial release (would no longer be available), supervised
release after conviction (minimum 10 years), enhanced penalties (eliminating statutes of
limitations, allowing for death penalty), reach of federal courts (expanded jurisdiction), and the
reach of federal investigations (changes in definition of domestic financial institution). If these
provisions all were enacted, along with many provisions of other DSEA Titles, there would be
little if any checks or restraint for federal investigation into any terrorist offense.

TITLE V: ENHANCING IMMIGRATION AND BORDER SECURITY

This last DSEA Title contains some of the most extreme provisions of the proposed
statute. It is doubtful that these provisions would ever be enacted by Congress or would survive
a constitutional challenge in the courts. Yet, given the recent history of terrorism legislation
passed by Congress and the uneven response of the courts, those predictions might not hold.

Among the most shocking provisions in the entire DSEA is Section 501. It provides that a
United States citizen can be considered to have forfeited citizenship, by serving in a hostile terrorist
organization or by providing "material support" to terrorism. According to the DOJ, under this
Section, "Specifically, an American could be expatriated if, with the intent to relinquish
nationality, he becomes a member of, or provides material support to, a group that the United
States has designated as a `terrorist organization,' if that group is engaged in hostilities against
the United States." An actual showing of intent or spoken intent is not required. The act itself
will suffice to provide the necessary intent, that is this intent "can be inferred from conduct." So,
"service in a hostile army or terrorist group" would be sufficient evidence of "an intent to
renounce citizenship."
The rationale of this Section is that there are already some situations described in federal
law (although very limited) where a citizen can be considered to have renounced citizenship by
taking specified actions against the United States, such as serving in a foreign army at war with
the United States. The instances would be rare indeed where United States citizenship of
anyone actually has been "revoked" for any such conduct. This Section would greatly expand
the authority of the government or of the courts to do so, and would expand the types of
offenses that could invoke this authority.
Section 502 increases penalties for certain immigration crimes, including unlawful
entries, alien smuggling, fraud, and failures to depart. This is another example of the DSEA
theme of increased investigation, prosecution, and penalties.
Another unprecedented Section is Section 503. This would give the Justice Department
authority to deny admission into the United States or to remove from the United States any alien
"whom the Attorney General has reason to believe would pose a danger to the national security
of the United States, based on the statutory definition of `national security' under the Act in
connection with the designation of foreign terrorist organizations." This authority extends to
situations where (presumably in the judgment of DOJ or the Attorney General) the alien's
presence in the United States would have "potentially serious adverse foreign policy
consequences."
This Section could affect any foreign national in the United States, at any time. There
seems to be no opportunity in the provision for the person to challenge this action in any federal
court, although it is assumed that there would be a removal proceeding — which is an adminis-
trative proceeding.

202
 Part IV-B: Domestic Security Enhancement Act of 2003 (Proposed)

Along the same immigration theme, DSEA Section 504 allows for expedited removal of
criminal aliens, including all aliens, not just nonpermanent residents. It would expand the
offenses on which expedited removal could be based, including terrorist offenses. The provision
would eliminate any entitlement to a "contested judicial removal," in favor of expedited removal.
In other words, there would be almost no opportunity for an alien placed in expedited removal
to do anything but prepare for transport out of the United States.
DSEA Section 505 would eliminate the statute of limitation for "failure to depart," for
aliens under a deportation or departure order, making it a continuing offense. An alien must depart
90 days from a final order requiring departure. The authority of the court to suspend this
requirement for good cause is eliminated. This provision would affect thousands of foreign
nationals in the United States.
Finally, Section 506 adds to places where an alien can be sent who is being removed from
the United States if the alien cannot be removed to a country stated in the existing federal
statute. The Section allows the Justice Department to send the alien to "another country or
region," although the particulars of this are not specified.

Some DSEA provisions, or proposals similar to them, are under consideration in the
current Congress (see discussion of Congressional activity related to PATRIOT Act in
Comment at Close of 2004 to Part IV). This proposed statute, though never submitted intact to
Congress by the Administration, is likely to be enacted in large part, piecemeal. Of further
concern is the possibility that another major terrorist attack on U.S. soil could bring this statute
to Congress in its entirety, in which event it is likely to pass, given the wide vote margins
already seen for statutes such as the PATRIOT Act, Homeland Security Act, and Intelligence
Reform Act.

203
PART IV-C: THE INTELLIGENCE REFORM AND TERRORISM
PREVENTION ACT OF 2004

Certainly the most significant anti-terrorism statute enacted by Congress in 2004 was the
Intelligence Reform and Terrorism Prevention Act of 2004 (S. 2845, P.L. 108-408, 118 Stat. 3638,
3825-3832). The Intelligence Reform Act, dramatically reorganizing authorities among
intelligence agencies, contains some intelligence reorganization provisions that were debated
before the September 11 attacks, but which gained increasing Congressional attention
afterwards. An additional impetus came from recommendations of the 9/11 Commission
(National Commission on Terrorist Attacks Upon the United States, for a summary of key 9-11
Commission recommendations, see Appendix 6-C).
The legislation went through several versions in 2003 and 2004. The final bill (S. 2845)
was enacted on December 8, 2004, passing the House by a vote of 336 to 75 and the Senate by a
vote of 89 to 2. These large vote margins are similar to Congressional approval of the USA
PATRIOT Act. President George W. Bush signed the Intelligence Reform Act on December 17,
2004.
The Intelligence Reform Act is widely described as the most significant reorganization of
federal intelligence agencies since the National Security Act of 1947. The chief features of this
reorganization are the establishment of a Director of National Intelligence, Office of National
Intelligence, and new intelligence agency structures and responsibilities. The Act also contains
various, quite significant provisions beyond intelligence reorganization and new authori-
zations.
What the final statute does not contain are provisions which had appeared in previous
versions of the bill and which were criticized by civil liberties groups. Omitted provisions
involved a separate "domestic intelligence agency," broad new surveillance powers for the FBI,
and a "national identity card."
The Act does mandate new national standards for diver's licenses, birth certificates, and
Social Security cards, all designed to make these items more difficult to falsify. Note, however,
that a "Real ID Act" likely to be considered in the 109th Congress could bring a "national identity
card" again to the forefront, by setting different or more extensive standards for driver's
licenses.
Aside from new federal standards to be followed by States for birth certificates and
driver's licenses and new standards for Social Security cards, among the Intelligence Reform
Act's additional provisions are:
—elimination of the section in PATRIOT Act Title III which would have allowed
Congress to invalidate Title III in its entirely by joint resolution on (or after) October 1, 2005,
and therefore making Title III permanent,
—new programs and initiatives for airport security and passenger screening,
—screening for cruise ship passengers,
—new border security initiatives including a study for a means to patrol the southern
border by remotely-piloted aircraft,
—clarification of "material support for terrorism" provisions in other laws including the
PATRIOT Act,
—a "lone wolf" terrorist provision for the Foreign Intelligence Surveillance Act (and thus
also for the PATRIOT Act, which amends that statute) (a similar provision appears in the

205
 No Greater Threat

proposed Domestic Security Enhancement Act or "PATRIOT Act II," see discussion of that
proposed statute in Part IV-B),
—additional crimes to be included in the "federal crime of terrorism,"
—enhanced penalties or pretrial detention for certain terrorist crimes (another provision
similar to a section in the proposed Domestic Security Enhancement Act),
—homeland security initiatives, and
—"codification "of The 9/11 Commission's recommendations.
The Intelligence Reform Act has eight Titles with more than 220 Sections. Some Sections
concern federal personnel matters relating to the intelligence reorganization or describe
amendments conforming the statute's language to other federal laws. The Act is not a wholesale
expansion of government surveillance powers, as does the PATRIOT Act, and does not devote
huge federal resources to a newly created Cabinet-level agency, as does the Homeland Security
Act. Nonetheless, its establishment of new intelligence offices, intelligence administrative
oversight, and new federal intelligence entities, will have momentous effects upon intelligence
agencies and the scope of homeland security.
What follows is a summary of key provisions, with some notations. (This review has been
assisted by available reviews or analyses from the Congressional Research Service, as well as by
reports or analyses from organizations such as the Bill of Rights Defense Committee, ACLU,
and the Electronic Frontier Foundation).

TITLE I: REFORM OF THE INTELLIGENCE COMMUNITY

The centerpiece of the Intelligence Reform Act is Title I, which establishes a new
intelligence oversight office for the "intelligence community." (The U.S. "intelligence
community" comprises more than a dozen separate agencies or offices, including the Central
Intelligence Agency, National Security Agency, intelligence offices in federal law enforcement
agencies, specialized agencies in the Defense Department such as the Defense Intelligence
Agency, the Defense Mapping Agency, and intelligence agencies or offices of armed service
branches).
Subtitle A establishes the Director of National Intelligence (DNI) (§1011). The DNI will be
a Senate-confirmed position and cannot serve in a dual capacity as CIA Director (this formerly
was the case, with the CIA Director serving as the chief intelligence officer). The DNI is not to
be located within the Executive Office of the President.
The DNI will serve as head of the intelligence community, and act as the principal
intelligence adviser to the President, National Security Council, and Homeland Security
Council. Consistent with Section 1018 of the National Security Intelligence Reform Act of 2004,
the DNI will oversee and direct implementation of the National Intelligence Program.
The DNI is to ensure that national intelligence is provided to the President, executive
branch department heads, Chair of the Joint Chiefs of Staff and senior military commanders,
certain Senate and House committees, and to "such other persons" as the DNI deems
appropriate. National intelligence is to be "timely, objective, independent of political consider-
ations, and based upon all sources available to the intelligence community and other
appropriate entities." The DNI is to have access "to all national intelligence and intelligence
related to the national security" collected by "any federal department, agency, or other entity,"
under guidelines agreed upon by the Attorney General and the DNI.
Crucial to the Intelligence Reform Act is its definition of "national intelligence." (see
§1012). The Act defines the terms `national intelligence' and `intelligence related to national
security' as referring to all intelligence, regardless of source (whether gathered within or
outside the United States) that pertains, "as determined consistent with any guidance issued by

206
 Part IV-C: The Intelligence Reform and Terrorism Prevention Act of 2004

the President," to more than one federal agency and involves "threats to the United States, its
people, property, or interests," or to "the development, proliferation, or use of weapons of mass
destruction," or to "any other matter bearing on United States national or homeland security." The last part
of that definition is quite broad (as are similar definitions of "foreign intelligence" and "foreign
intelligence information" in the PATRIOT Act and in the Foreign Intelligence Surveillance Act).
The Act gives the DNI budget powers, which include developing the National
Intelligence Program budget, based on intelligence priorities set by the President and budget
proposals from intelligence agencies. This DNI submits the National Intelligence Program
budget to the President for eventual submission to Congress. Intelligence agencies are required
to provide the DNI information budget as requested.
The DNI will participate in the Defense Department's budget development for the Joint
Military Intelligence Program and for Tactical Intelligence and Related Activities. The DNI has
other general budget development authorities.
Under the Act, the DNI is authorized to manage intelligence agency appropriations,
within this budget, by "directing the allotment or allocation of such appropriations through the
heads of the departments containing agencies or organizations within the intelligence
community and the Director of the Central Intelligence Agency." The DNI will monitor
implementation of the National Intelligence Program through intelligence community elements
which managing projects and activities within the Program. This monitoring can include audits
and evaluations.
[Note: These and related DNI budget provisions represent the prevailing view that any
new director of Intelligence, to have actual authority, must have authority over the budgets of
affected agencies. These authorities most definitely place the DNI in a pivotal position in the
intelligence community.]
DNI budget authorities also include authority to transfer program funds from one
intelligence agency to another, so long as the transfer is less than $150 million or less than 5% of
the agency's budget, and does not terminate any existing agency programs. (There other limits,
see subsections of §1011). As for personnel, the DNI may transfer as many as 100 personnel to an
intelligence center or to another agency, for up to two years. (There are some requirements,
including proper notice and procedures).
Going further and quite far beyond mere intelligence reporting and budget authorities,
the Act gives the DNI a full range of other responsibilities. These include:
— ‘establish objectives, priorities, and guidance for the intelligence community’ for
collection, processing, analysis, and dissemination of national intelligence;
— ‘determine requirements and priorities for, and manage and direct the tasking of,’ the
intelligence gathering and analyzing process, including
- approving requirements for collection and analysis; and
- resolving conflicts in collection requirements and in tasking of national collection
assets of intelligence community; and
- ‘provide advisory tasking’ to intelligence agencies not within the National
Intelligence Program.

Also, the DNI is to:

— ‘encourage and facilitate’ personnel assignments to national intelligence centers and
between elements of the intelligence community;
—set standards for intelligence community education, training, and career development;
— ‘encourage and facilitate’ recruitment and retention of ‘highly qualified individuals,’
—ensure racial and gender diversity in intelligence community agencies;

207
 No Greater Threat

—make service in more than one ‘element of the intelligence community’ a condition of
promotion, and
—ensure effective management of personnel.

Continuing a consistent theme of post 9-11 anti-terrorism statutes—information

sharing—the Act sets out DNI information sharing responsibilities. The DNI is to have
"principal authority" to ensure "maximum availability of and access to intelligence information"
among the intelligence community (consistent with national security requirements). The DNI
is to develop: uniform security standards, common information technology standards,
information technology systems incorporating multi-level security and intelligence integration
aspects, procedures to "resolve conflicts" between "the need to share information" and "the need
to protect intelligence sources and methods," and an "enterprise architecture" for the
intelligence community (referred to later in the Act).
The DNI is to implement intelligence analysis procedures and ensure proper classification
methods. Along these lines, the DNI shall:
—set ‘uniform standards and procedures’ for access to ‘sensitive compartmented
information’ by agencies or by eligible employees of contractors of agencies or departments;
—ensure ‘consistent implementation’ of standards and procedures;
—ensure security clearances granted by one element or agency of the intelligence
community are recognized by all other agencies, and
—ensure the security clearance process is performed expeditiously.

The DNI can provide incentives for personnel to serve in newly created offices related to
the DNI such as the DNI staff, intelligence community support functions, national intelligence
centers, and the National Counterterrorism Center (NCTC, which will incorporate the current
Terrorist Threat Integration Center). Certain technical policy provisions and aspects involving
personnel, included in the description of these authorities, will not be related here. The DNI
also is given acquisition authority (see §1011(n) and (q)) and consolidation authority (that is, to
"coordinate the performance by the elements of the intelligence community within the National
Intelligence Program" of services of "common concern" to the intelligence community, which the
DNI determines "can be more efficiently accomplished in a consolidated manner").
The DNI directs a new Office of National Intelligence. (After October 1, 2008, this Office
of the Director of National Intelligence may not be co-located with any other element of the
intelligence community.) Other positions in this Office are: Principal Deputy Director of
National Intelligence, other Deputy Directors, National Intelligence Council, a General
Counsel, a Civil Liberties Protection Officer, a Director of Science and Technology, the
National Counterintelligence Executive, and "such other offices and officials as may be
established by law or the Director may establish or designate in the Office, including national
intelligence centers." In rather extensive provisions, the Act describes some of these offices or
entities, including duties of the Principal Deputy Director and other Deputy Directors.
Several provisions are devoted to the National Intelligence Council. This Council is to be
composed of "senior analysts within the intelligence community and substantive experts from
the public and private sector, who shall be appointed by, report to, and serve at the pleasure of,
the Director of National Intelligence." This Council is to "produce national intelligence
estimates" including "alternative views held by elements of the intelligence community." It will
also "evaluate community-wide collection and production of intelligence by the intelligence
community and the requirements and resources of such collection and production," and
"otherwise assist" the DNI. Within their areas of expertise, Council members are considered

208
 Part IV-C: The Intelligence Reform and Terrorism Prevention Act of 2004

"senior intelligence advisers of the intelligence community" for representing the views of the
intelligence community within the federal government. The Council is to have a staff.
Concerning the Civil Liberties Protection Officer at the Office of DNI, this office is to:
—ensure that protection of civil liberties and privacy is 'appropriately incorporated' in
policies and procedures developed and implemented by the DNI and agencies in the National
Intelligence Program;
—oversee compliance with the Constitution and federal laws, regulations, Executive
orders, and implementing guidelines relating to civil liberties and privacy;
—review and assess complaints and other information 'indicating possible abuses of civil
liberties and privacy' in DNI and Office of National Intelligence programs and operations and
investigate these complaints or information;
—ensure that the use of technologies 'sustain, and do not erode,' privacy protections
concerning use, collection, and disclosure of personal information;
—ensure compliance with all requirements of the Privacy Act (5 U.S.C. Sec. 552a)
including fair information practices; and
—conduct 'privacy impact assessments' when appropriate or if required.

The Act contains strong provisions for the CIA Director. The CIA Director is charged
with reassessing the CIA and its capabilities, and among other things, is to establish and
maintain "effective relationships" between human intelligence and signals intelligence within
the Agency, and achieve "a more effective balance" within the Agency between unilateral and
liaison operations. The CIA Director is to report to Congress on the progress of these new
duties.
In that area, the Act contains provisions to increase or improve the interaction between
the CIA and the Defense Department. These situations include cases "where the Department of
Defense and the Central Intelligence Agency are conducting separate missions in the same
geographical area," in which event a "mutual agreement" is to be arranged on the "tactical and
strategic objectives for the region" with a "clear delineation of operational responsibilities to
prevent conflict and duplication of effort." Overall, the Act encourages new approaches and new
levels of cooperation and integration among intelligence agencies, especially the new Office of
National Intelligence, the CIA, and the Defense Department.
Continuing with information sharing, the Act (§1016) establishes a new "Information
Sharing Environment" (ISE), which is to be a major information sharing technological platform
for intelligence agencies. This is particularly the case for "terrorism information." Consistent
with other statutes (the PATRIOT Act contains similar language for "foreign intelligence
information") the Act defines "terrorism information" to mean:
all information, whether collected, produced, or distributed by intelligence, law
enforcement, military, homeland security, or other activities relating to—
(A) the existence, organization, capabilities, plans, intentions, vulnerabilities, means of
finance or material support, or activities of foreign or international terrorist groups or
individuals, or of domestic groups or individuals involved in transnational terrorism;
(B) threats posed by such groups or individuals to the United States, United States
persons, or United States interests, or to those of other nations;
(C) communications of or by such groups or individuals; or
(D) groups or individuals reasonably believed to be assisting or associated with such
groups or individuals.

209
 No Greater Threat

Sharing this information through the Information Sharing Environment is intended to

facilitate increased information exchange among intelligence agencies. The ISE is to be
developed in part through the Information Sharing Council (see Executive Order 13356). Civil
liberties and privacy concerns are to be addressed. The Privacy and Civil Liberties Oversight
Board (established in §1061 of the Act) also is to have input. Other aspects of this ISE are
detailed in the Act.
A report on the ISE is to be made by the Information Sharing Council to the President and
to Congress within six months from the effective date of the Act (this part of the Act is not to
take effect for six months). One year after the effective date, the President is to submit to
Congress a detailed proposal for the ISE, including a Program Manager, with duties and respon-
sibilities detailed in the Act. Congress has appropriated $20 million for each of the next two
fiscal years for development of this ISE program.
[Note: This new ISE program has been called "Total Information Awareness II," because of
its potential to become a vast, secretive data mining and data collection system on U.S. citizens.
The network would link public and private databases, posing the same threat to privacy did the
proposed TIA program. Advocacy groups have expressed concern that the Act does not contain
sufficient safeguards for collection, use, and storage of this data, except that the President must
issue guidelines. Of particular concern is that, as noted, the definition of "terrorism
information," which is the basis for the system, is disturbingly broad.]
The Act then moves on to other intelligence entities. Along with the DNI, the Office of
National Intelligence, and associated duties, authorities, and responsibilities of these new
intelligence positions, the Intelligence Reform Act (in Subsection B of Title I), establishes new
intelligence "hubs." These are: a National Counterterrorism Center (NCTC), a National
Counter Proliferation Center, and potential "national intelligence centers." (See §§1021-1023). .
The National Counterterrorism Center, which will have its own Director and staff, has
the following duties:
—serve as the primary federal organization for analyzing and integrating all U.S.
intelligence on terrorism and counterterrorism, except intelligence exclusively involving
domestic terrorists and counterterrorism;
—conduct strategic operational planning for counterterrorism, integrating all federal
elements including diplomatic, financial, military, intelligence, homeland security, and law
enforcement;.
—assign roles and responsibilities as part of strategic counterterrorism planning, to lead
federal agencies, although not direct execution of any operations;
—ensure federal agencies have access to and receive intelligence support needed to
execute counterterrorism plans, accomplish activities, or perform independent analysis, and
—serve as the central and shared knowledge bank on known and suspected terrorists and
international terror groups, as well as goals, strategies, capabilities, and networks of contacts
and support.

The Counterterrorism Center is to receive information on counterterrrorism intelligence

pertaining "from any federal, State, or local government or other source" as necessary to fulfill its
responsibilities and to "retain and disseminate such intelligence." The Center is to develop a
strategy for combining "terrorist travel intelligence operations" and "law enforcement planning
and operations" into a "cohesive effort" to intercept terrorists, find terrorist travel facilitators,
and constrain terrorist mobility. Other duties include terror threat assessments and working
with intelligence agencies.

210
 Part IV-C: The Intelligence Reform and Terrorism Prevention Act of 2004

The National Counter Proliferation Center has similar duties and responsibilities,
devoted to halting proliferation of various weapons of mass destruction. They include:
—serving as the primary federal organization for analyzing and integrating all federal
intelligence pertaining to proliferation;
—ensuring that appropriate agencies have full access to and receive intelligence support
needed to execute counter proliferation plans or activities, and perform independent analyses;
—establishing a central repository on known and suspected proliferation activities,
including the goals, strategies, capabilities, networks, and any individuals, groups, or entities
engaged in proliferation;
—disseminating proliferation information, including proliferation threats and analyses,
to the President, appropriate agencies, and certain committees of Congress, and
—conducting net assessments and warnings, and coordinating and conducting strategic
planning to halt the proliferation of weapons of mass destruction, delivery systems, or related
materials and technologies.

The Act then establishes a Joint Intelligence Community Council. Headed by the DNI,
this Council is composed of department heads (or representatives from) of State, Treasury,
Defense, Justice, Energy, and Homeland Security. The Council will assist the DNI in
"developing and implementing a joint, unified national intelligence effort to protect national
security" by "advising the Director on establishing requirements, developing budgets, financial
management, and monitoring and evaluating the performance of the intelligence community,
and on such other matters as the Director may request" and "ensuring the timely execution of
programs, policies, and directives established or developed by the Director."
The Act mandates new educational efforts for the intelligence community and establishes
a new scholarship program for intelligence agencies (given a very detailed description, see
§§1041-1043). It addresses new initiatives for "open source intelligence" (see §1051-1052). It also
establishes a "National Intelligence Reserve Corps" for the "temporary reemployment on a
voluntary basis of former employees of elements of the intelligence community during periods
of emergency, as determined by the Director." (A similar reserve corps is established for the FBI,
as noted below).
As for the Privacy and Civil Liberties Oversight Board (§1061 and 1062) created by the Act,
this Board is to assist the intelligence community especially the DNI and the Office of National
Intelligence, in preserving civil liberties. The Board is to:
—review proposed regulations and executive branch policies related to federal anti-
terrorism activities, including developing and adopting information sharing guidelines (under
subsections (d) and (f) of section 1016);
—review implementation of federal anti-terrorism laws, regulations, and executive
branch policies (including information sharing guidelines);
—advise the President and the head of any federal agency to ensure that privacy and civil
liberties are appropriately considered in implementing regulations and policies; and
—provide advice on proposals on federal governmental authorities, including whether
the federal department or agency has addressed needs for adequate supervision to protect
privacy and civil liberties, adopted proper privacy guidelines and oversight, and balanced the
need for a particular federal power with the need to protect privacy and civil liberties.

The Board is to "continually review" federal laws, regulations, policies, procedures, and
practices, to ensure that concerns for privacy, civil liberties, and secure information sharing are
addressed.

211
 No Greater Threat

The Act then includes technical and conforming amendments. It re-designates the
National Foreign Intelligence Program as the National Intelligence Program. It establishes the
Inspector General for DNI, transfers the Terrorist Threat Integration Center to the National
Counter Terrorism Center (§1092), terminates certain positions of Assistant Director of CIA
(§1093), sets forth an implementation plan (§1094), and requires a DNI report to Congress on
implementing intelligence community reform (§1095).
As noted, Title I is not immediately effective. The effective date is six months from
enactment (the Act was signed December 17, 2004). After the DNI is appointed, within 60 days
the DNI is to make appropriate appointments within the DNI Office. Within the same six
months from the effective date, the President is to transmit the implementation plan required
by the Act, which includes an implementation plan for the DNI and related offices. One year
after enactment, the DNI is to issue certain regulations, policies, procedures, standards, and
guidelines (the Act refers to section 102A of the National Security Act of 1947, as amended by
section 1011(a)).

TITLE II: FEDERAL BUREAU OF INVESTIGATION

The Act turns briefly to the FBI and to intelligence capabilities of that agency. The Act
states that in developing and maintaining a "national intelligence workforce" the FBI "shall
develop and maintain a specialized and integrated national intelligence workforce consisting of
agents, analysts, linguists, and surveillance specialists" who are to be recruited, trained, and
compensated in a manner "which ensures the existence" within the FBI of "an institutional
culture with substantial expertise in, and commitment to, the intelligence mission of the
Bureau." The Act mandates that all FBI agents receive training and, if possible, assignments in,
national intelligence. The Act encourages development of additional career opportunities for
agents in intelligence matters and expresses the intention to improve and enhance the FBI's
intelligence capacities.
To that end, the FBI Office of Intelligence is redesignated as the "Directorate of
Intelligence of the FBI." The duties of that Office are described and clarified (§2002). The Act
establishes a new FBI Intelligence Career Service (§2003). There is a new Investigation Reserve
Service (§2004) (similar to the National Intelligence Reserve Corps, see §1053). And the Act
enhances the FBI's use of translators.

TITLE III: SECURITY CLEARANCES

This Title will not be extensively reviewed. It contains specific provisions for stream-
lining security clearances and for placing oversight of security clearances in a single agency. The
President is directed to designate a single agency to conduct "day-to-day oversight of investi-
gations and adjudications for personnel security clearances, including for highly sensitive
programs, throughout the United States Government," as well as "developing and implementing
uniform and consistent policies and procedures to ensure the effective, efficient, and timely
completion of security clearances and determinations for access to highly sensitive programs,"
including "standardization of security questionnaires, financial disclosure requirements for
security clearance applicants, and polygraph policies and procedures." The agency has other
authorities, as described in this Title. There is to be a single database for security clearances,
and other supposed improvements in security clearance processes. The Title contains only this
Section (§3001), although it is quite detailed.

212
 Part IV-C: The Intelligence Reform and Terrorism Prevention Act of 2004

TITLE IV: TRANSPORTATION SECURITY

Intelligence Reform Act Title IV contains provisions which might not have been
expected, given the Act's main purpose in reorganizing intelligence agencies. In various
Subtitles, the Act addresses security concerns and initiatives for certain transportation venues
including, and especially, air travel. Whether expected or not, these provisions are no less
significant than Title I.
Subtitle A contains the Act's directive that the Department of Homeland Security
prepare a "National Strategy on Transportation Security." Among other things, this National
Strategy identify and evaluate certain American transportation assets that, "in the interests of
national security and commerce," must be protected from terrorist attack or disruption, and
outline security plans. These transportation areas include aviation, bridge and tunnel,
commuter rail and ferry, highway, maritime, pipeline, rail, mass transit, over-the-road bus, and
"other public transportation infrastructure assets that could be at risk of such an attack or
disruption." The Strategy is to include a "forward-looking strategic plan" incorporating relevant
federal, State, and local agencies in implementing new transportation security proposals. The
Strategy will be the "governing document" for national transportation security planning. It is to
be ready by April 1, 2005 and is expected to be ready for implementation by the end of 2005.
Subtitle B contains a host of aviation security provisions. They include:
—Biometric and similar technology for aviation security measures such as for access to
secure areas and for verifying law enforcement officers for air travel, and a government "center of
excellence" to develop among other things, these biometric methods (which receives $1 million
in appropriation) (§4011);
—Developing an advanced airline passenger screening system with DHS as the chief
implementing agency or entity (currently in the format of DHS' "Secure Flight" program), to
compare passenger information to "the automatic selectee and no fly lists," and utilize all
appropriate federal records including "the consolidated and integrated terrorist watchlist" The
Act imposes restrictions, requirements, and procedures, such as an appeal process, a method to
minimize "false positives," a means of redress for those mistakenly barred from flights, an
oversight board, a means to reduce or minimize abuse of the system, and other operational and
privacy safeguards. The Act describes administrative appeal procedures, addresses privacy
concerns, and requires DHS to report to Congress within six months regarding the potential
use of the system (§4012).
[Note: As described elsewhere, under the "Secure Flight" (formerly CAPPS II program,
which was a further refinement of the CAPPS program (Computer Assisted Passenger
Prescreening System)) for prescreening airline passengers, the government through DHS and
TSA will require air carriers to present passenger names and lists for comparison against
government terrorist watch lists. Observers have predicted security concerns and other
problems for this system. A foreshadowing of some problems has occurred in recent false
positives and complications recently experienced with the use of terrorist watchlists. Notably,
it is uncertain how screening of millions of travelling airline passengers can catch the few
supposed terrorists supposedly making use of domestic air travel. Also, concerning information
systems themselves, it is unclear how long information will be stored, what other ways it will
be used, and how passengers who are inaccurately identified as terrorists can arrange for their
names to be permanently removed from the system or from the watchlists.]
—Additional or new detection equipment at airports, mandating DHS to give "a high
priority" to developing, testing, improving, and deploying, at airport screening checkpoints,
equipment that detects "nonmetallic, chemical, biological, and radiological weapons, and

213
 No Greater Threat

explosives, in all forms, on individuals and in their personal property." DHS is to ensure that the
equipment, operating alone or as part of an "integrated system," can detect under realistic
operating conditions "the types of weapons and explosives" that terrorists would likely smuggle
aboard a plane. DHS is also to report on these methods. The Act appropriates $250 million for
"research, development, and installation of detection systems and other devices for the
detection of biological, chemical, radiological, and explosive materials." (§4013)
—Advanced airport checkpoint screening devices. The Act provides $150 million to DHS
to "initiate a pilot program to deploy and test advanced airport checkpoint screening devices
and technology as an integrated system at not less than 5 airports in the United States." (§4014).
—Various provisions for federal air marshals, including air marshals on flights, additional
training including counterterrorism training, and international agreements for "maximum
deployment" of air marshals (§§4016-4018).
—New bomb detection equipment for airport luggage, replacing trace-detection
equipment with explosive detection equipment. Additional funds above prior authorizations,
reaching a level of $400 million per year for the next several fiscal years, is appropriated for
studies, reports, and eventual installation of this bomb detection equipment at airports. (§4019,
and this certainly relates to §4013)
—Measures to reduce incidents of theft of checked baggage from baggage-screening areas
at airports, especially where these areas are not within public view. That section reads, in part,
that DHS will assist airports with checked baggage screening areas not open to public view "in
the acquisition and installation of security monitoring cameras for surveillance of such areas in
order to deter theft from checked baggage and to aid in the speedy resolution of liability claims
against the Transportation Security Administration." (§4020).
—Carrying through provisions on aviation security appearing in the Homeland Security
Act, the Intelligence Reform Act also contains a provision for reviewing means to equip
commercial airliners with a "secure wireless system of communication" between pilots and
cabin crew. The TSA and FAA is to conduct a study to determine the viability of "providing
devices or methods, including wireless methods, to enable a flight crew to discreetly notify the
pilot in the case of a security breach or safety issue occurring in the cabin." As with other
provisions of this type, the Section mandates a report to Congress within six months on the
results of the study and the feasibility of such a system on airliners. (§4021).
—There are additional provisions for improved explosive detection systems (§4024) and
secondary flight deck barriers (§4028).
—In a section that may create some controversy, the TSA is directed to review and revise
the list of prohibited items for airline passengers, the revised list to include butane lighters
(apparently referring to ordinary cigarette lighters) (§4025). This is to occur within 60 days of
enactment. [Note: it appears the butane lighter prohibition is being suspended.]
Subtitle B of Title IV deals with another area noted by aviation security experts and
observers—air cargo. While much attention since the September 11 attacks has been devoted to
passenger airline security issues, relatively little attention has been devoted to air cargo. These
provisions begin what will prove to be an entire set of new government initiatives in air cargo
security. They include:
—A pilot program "to evaluate the use of blast-resistant containers for cargo and baggage
on passenger aircraft to minimize the potential effects of detonation of an explosive device."
This initiative also is to include exploring "alternative technologies for minimizing the potential
effects of detonation of an explosive device on cargo and passenger aircraft." (§4051).
—Substantial appropriations, of $200 million for each of the next three fiscal years, for
the TSA to improve "aviation security related to the transportation of cargo on both passenger

214
 Part IV-C: The Intelligence Reform and Terrorism Prevention Act of 2004

aircraft and all-cargo aircraft" and an additional $100 million for the next three fiscal years for
the TSA to conduct "research and development related to enhanced air cargo security
technology as well as for deployment and installation of enhanced air cargo security
technology." There is also an authorization for air cargo security grants for further study and
development. (§4052).
—Authorization for the TSA to issue regulations on air cargo security (§4053) and a
report required on the nature of international air cargo security threats, such as air cargo "that
intelligence sources indicate could carry explosive, incendiary, chemical, biological, or nuclear
devices." (§4054).
Subtitle C of Title IV includes bold new provisions for another sort of transportation
involving large numbers of passengers: cruise ships. It authorizes DHS to implement procedures
to compare information about passengers and crew who are to go aboard a cruise ship "with a
comprehensive, consolidated database containing information about known or suspected
terrorists and their associates," and to use the information to prevent "known or suspected
terrorists and their associates" from boarding cruise ships (or subject them to specific
additional security scrutiny), through "no transport" and "automatic selectee" lists or "other
means." The Act requires that the process minimize the possibilities of "false positives."

TITLE V: BORDER PROTECTION, IMMIGRATION, AND VISA MATTERS

The next Title moves into areas addressed briefly in the PATRIOT Act and to a greater
degree in the Homeland Security Act—border security. Some of the Intelligence Reform Act
provisions are, to say the least, "innovative."
Subtitle A includes a provision to employ new technologies for border security. The
Section (§5102), states that DHS is to design a pilot program to:
—Study use of advanced technological systems, including sensors, video, and unmanned
aerial vehicles, for border surveillance.
—Study use of advanced computing and decision integration software to—
evaluate data indicating border incursions, assess threat potential, and provide rapid real-
time communication, monitoring, intelligence gathering, deployment, and response.
—Test advanced technology systems and software to determine best and most cost-
effective uses of advanced technology to improve border security.
—Operate the program in remote stretches of border lands with long distances between
24-hour ports of entry with a relatively small presence of United States border patrol officers,
and
—"Expand" the program "upon a determination by the Secretary that expansion would be
an appropriate and cost-effective means of improving border security."

The DHS is required to report within one year of the enactment of the Act, on the pilot
program and results.
—In the same approach, Subtitle B includes a provision on border surveillance
authorizing development of a comprehensive plan for "systematic surveillance of the southwest
border of the United States by remotely piloted aircraft." (§5021). The study is to include cost
estimates and other aspects, as well as potential "missions" for these remotely piloted aircraft,
including:
—protecting people seeking illegal entry into the United States;
—interdicting illegal movement of people, weapons, and other contraband;
—providing investigative support in dismantling of smuggling and criminal networks
along the border;

215
 No Greater Threat

—gathering intelligence against smugglers and criminal networks along the border; and
—validating and testing remotely piloted aircraft for "airspace security missions."

[Note: Use of remote or drone aircraft for such purposes would be a first, and if put into
consistent use by the government regularly to "watch" people and activities in border areas,
would be a significant step toward a potential national security state. Once these surveillance
methods are in place and demonstrate their effectiveness in one region, they could well be
employed in other regions, perhaps for other purposes, and their use would be limited only by
the constantly-improving capabilities of these aircraft.]
This Subtitle increases full time Border Patrol agents and immigration and customs
enforcement investigators at both borders. (§5202-5203). Substantial personnel increases are
mandated. In addition, there is to be an increase in "detention bed space" for detaining aliens
seized for potential removal. DHS shall increase "by not less than 8,000," in each of the fiscal years
2006 through 2010, "the number of beds available for immigration detention and removal
operations." (§5204).
Subtitle C of Title V imposes new visa requirements, including personal interviews where
possible, for visa applicants between ages of 14 and 79, within certain categories. (§5301).
Among the conditions is if the applicant is a national of a country "officially designated" by the
State Department as "a state sponsor of terrorism." The Act allows a waiver of these
requirements, in certain circumstances. There also appears to be an elimination of, or limit to,
judicial review of an administrative decision to revoke a visa.
Subtitle D adds other immigration provisions of interest. There is a section addressing
alien smuggling, including bringing in aliens in groups of 10 or more in a manner that may
endanger their lives (§5401). Another section allows for deporting aliens who have received
"military-type training from terrorist organizations" (defined as "training in means or methods
that can cause death or serious bodily injury, destroy or damage property, or disrupt services to
critical infrastructure, or training on the use, storage, production, or assembly of any explosive,
firearm, or other weapon, including any weapon of mass destruction") (§5402). Another section
commissions a study on whether immigrants who pose a terrorist threat could abuse the
immigrant asylum system (§5402).
[Note: It has been observed that some persons who have received "military-type training"
by terrorist organizations might not have done so willingly. For example, there are well- known
situations of children, or others, seized or kidnapped by rebel groups or terrorist organizations
and forced to join these groups and to train with them. Under these Intelligence Reform Act
provisions, such people would be deported without any substantial way to show that they were
not willing participants in the organization and are not terrorist threats.]
Subtitle E concerns aliens who have committed "acts of torture, extrajudicial killings, or
other atrocities abroad." These are wide-ranging provisions. Some are enhancements of prior
immigration provisions against accepting such aliens. Not all of them involve terrorism. There
also is a bar to an alien claiming "good moral character," for immigration purposes, if found by
immigration authorities to have engaged in acts of torture, extrajudicial killings, or severe
violations of religious freedom. (see §§5501 to 5504). An Office of Special Investigations in the
FBI is established, with certain responsibilities, and a report on related investigations and
programs is mandated. (§§5505-5506).

TITLE VI: TERRORISM PREVENTION

The Intelligence Reform Act returns to terrorism concerns in Title VI. Some provisions
move even farther the investigation of aliens suspected of terrorism.

216
 Part IV-C: The Intelligence Reform and Terrorism Prevention Act of 2004

Subtitle A contains a provision which appears to be from "PATRIOT Act II" (proposed
Domestic Security Enhancement Act of 2003, again, reviewed in this 2004 update in Part IV-B),
and which has appeared in certain Congressional bills or proposals—the "lone wolf" terrorist.
The provision allows investigations under the Foreign Intelligence Surveillance Act (expanded
by the PATRIOT Act) of persons involved in international terrorism, but not affiliated with any
terrorist group or foreign authority. This authority is to sunset at the end of 2005. (§6001).
A following section requires semi-annual reports to Congress of the number of persons
who are targets of FISA warrants, permitting electronic surveillance, searches, or access to
certain records. The report is to include how often the information was used in criminal
proceedings (a procedure now allowed, by the decision of the FISA Court of Review) and
summaries of significant legal interpretations of the Act, including decisions of the FISA court.
Subtitle B of Title VI concerns terrorist financing and authorizes additional funds for
FinCEN (Financial Crimes Enforcement Network) (authorized or expanded in Title III of the
PATRIOT Act). The authorization is for technological improvements for a FinCEN secure
information network for financial institutions which would provide authorized law
enforcement and financial regulatory agencies with "Web-based access to FinCEN data."
The network is to expedite "the filing of, and reduce the filing costs for, financial
institution reports, including suspicious activity reports" collected by FinCEN and enable
FinCEN to "immediately alert financial institutions" about suspicious activities that warrant
"immediate and enhanced scrutiny," as well as provide and upgrade "advanced information-
sharing technologies" to improve FinCEN's analysis and use of data bank information. The
authorization allows other technological improvements concerning FinCEN and terrorist
financing investigations. (§6101 and §6102).
Subtitle C of Title VI has its own title: `International Money Laundering Abatement and
Financial Antiterrorism Technical Corrections Act of 2004'. Here, among other things, is the
provision that eliminates the opportunity provided in PATRIOT Act Title III (dealing with
terrorist financing, money laundering, and investigation in to certain bank records) for
Congress to invalidate Title III by joint resolution (or supposedly, anytime after) October 1,
2005. (See §6204—a short provision that simply declares that §303 of the PATRIOT Act has
been stricken). By this single stroke of §6204 of this Act, Title III is now permanent. Many other
Subtitle C provisions are technical amendments and clerical corrections in Title III of the
PATRIOT Act, although a few expand or clarify certain authorities and definitions
Subtitle D of Title VI includes other provisions, such as additional security for the Bureau
of Engraving and Printing, and reporting by FinCEN of certain cross-border transmittals of
funds, involving anti-terrorist financing and anti money laundering provisions. The Subtitle
restricts federal examiners or certain agents, with responsibility of reviewing financial
institutions, from taking employment or contracting with the same financial institutions which
were under their review, for one year after leaving government service. (§6303).
The Treasury Department is to report to Congress on "evaluating the current state of
United States efforts to curtail the international financing of terrorism." This report is to
include "the relationship between terrorist financing and money laundering, including how the
laundering of proceeds related to illegal narcotics or foreign political corruption may contribute
to terrorism or terrorist financing," the "nature, effectiveness, and efficiency" of efforts to
coordinate federal intelligence and agency operations to "detect, track, disrupt, and stop"
terrorist financing, including identifying primary responsibility for developing priorities,
assigning agency tasks, and monitoring implementation of policy and operations, and "ways to
improve multilateral and international governmental cooperation on terrorist financing,
including the adequacy of agency coordination within the United States related to participating

217
 No Greater Threat

in international cooperative efforts and implementing international treaties and compacts."

(§6303). The Intelligence Reform Act thus continues intense federal attention interest in
terrorist financing and other aspects of monetary support to terrorism.
Subtitle E contains provisions for criminal history background checks, including means
by which security guard services can arrange background checks using existing State identifi-
cation bureaus. The Department of Justice is to report to Congress on improving, standardizing,
and consolidating current DOJ background check programs. (§6401-§6403).
Subtitle F of Title VI contains a single but extremely significant section—further expansion
of the sharing of grand jury information (which was itself expanded by PATRIOT Act Title II, and
then the Homeland Security Act). The section allows for sharing of grand jury information with
State, local (and tribal), as well as foreign, government officials or law enforcement officials.
Apparently, this provision in the Homeland Security Act did not take effect due to certain
changes made to the grand jury rules by the Supreme Court.
[Note: Further expansions of grand jury information sharing are disturbing, given that the
Department of Justice in some cases has made unfounded terrorism allegations, since it does not
matter how well- founded the government's allegations are, so long as persons can be compelled
to testify before a grand jury and that testimony can be shared. With these additional
provisions, traditionally secret grand jury testimony now can be shared with almost any type of
federal, State, local, or foreign government or law enforcement official. In these cases, grand jury
testimony simply no longer has the important protections of secrecy which previously had long
existed.]
Subtitle G contains provisions clarifying the crime of "material support for terrorism" (in
the Antiterrorism and Effective Death Penalty Act of 1996, and in the USA PATRIOT Act Title
IV). This subtitle also has its own title: `Material Support to Terrorism Prohibition
Enhancement Act of 2004'. The sections make it illegal to knowingly receive "military-type
training" from a designated foreign terrorist organization (so long as the person knows that the
group is so designated).
In clarifying "material support" definitions, the term "material support or resources"
means "any property, tangible or intangible, or service," including "currency or monetary
instruments or financial securities, financial services," and "lodging, training, expert advice or
assistance, safehouses, false documentation or identification, communications equipment,
facilities, weapons, lethal substances, explosives, personnel (one or more persons including the
subject person), and transportation, except medicine or religious materials." The term "training"
means "instruction or teaching designed to impart a specific skill, as opposed to general
knowledge." And the term "expert advice and assistance" means "advice or assistance derived
from scientific, technical or other specialized knowledge."
The person who provides illegal material support to a terrorist group must have
knowledge that the group is a "designated terrorist organization," "has engaged or engages in
terrorist activity," or "has engaged or engages in terrorism" as defined by certain other federal
statutes. The Section further provides for extraterritorial jurisdiction by U.S. courts. The
section is to sunset on December 31, 2006.
[Note: Efforts to clarify these definitions of "material support for terrorism" are intended to
address court challenges to these terms, including a decision from the U.S. Court of Appeals for
the Ninth Circuit concerning the similar provision in the AEDPA. See Humanitarian Law Project v.
Reno, 205 F.3d 1130 (9th Cir. 2000). The Supreme Court has not yet taken up these issues
comprehensively. Nevertheless, these terms, which are necessarily vague, surely will be the
subject of further court consideration.]

218
 Part IV-C: The Intelligence Reform and Terrorism Prevention Act of 2004

Another section changes other statutes prohibiting terrorist financing. It provides that
prosecution can be for "concealment of proceeds of funds," as well as for concealment or use of
the funds themselves.
Subtitle H of Title VI contains "Stop Terrorist and Military Hoaxes Act of 2004." These
provisions make it a crime to conduct a hoax relating to terrorism or relating to the death or
disappearance of member of the armed forces during wartime. The offense is punishable by up
to five years in prison, or 20 years if serious injury results from the hoax. If death results, the
offender may be imprisoned for up to life. (This is a similar provision to a section in the
proposed Domestic Security Enhancement Act or "PATRIOT Act II.")
Another provision increases the penalty for obstruction of justice in a terrorism investi-
gation or prosecution, from 5 years to 8 years. A third section includes technical amendments
affecting federal court jurisdiction for terrorism actions and prosecutions. (§6701-§6704).
Subtitle I contains the "Weapons of Mass Destruction Prohibition Improvement Act of
2004." These sections expand federal jurisdiction over crimes involving weapons of mass
destruction and re-establish chemical weapons as weapons of mass destruction (a provisions
concerning chemical weapons appears in "PATRIOT Act II"). The sections also provide that
those who participate in or provide material support to activity of a foreign terrorist organi-
zation involving nuclear weapons or any weapons of mass destruction can be imprisoned for 20
years. Also, possession (including conspiracy or attempt to possess) of a radiological weapon
can result in imprisonment of up to life.
Subtitle J contains a similar enactment, the "Prevention of Terrorist Access to Destructive
Weapons Act of 2004." This is a series of provisions which either criminalizes or increases
imprisonment penalties for production, possession, or use of certain weapons or destructive
devices. They include missile systems designed to destroy aircraft (§6903), atomic weapons
(§6904), radiological dispersal devices (which supposedly would include so-called "dirty
bombs") (§6905), and the variola virus (§6906). Other Subtitle J sections add these offenses to
offenses for which wiretaps can be obtained (§6907) and adds them to the list of offenses
comprising the "federal crime of terrorism" (§6908) (modified and, in general, expanded by the
PATRIOT Act in Title VIII). There are other amendments involving money laundering and
material support for terrorism (§6909) and certain clerical amendments.
Subtitle K involves the "Pretrial Detention of Terrorists Act of 2004," another area
addressed in "PATRIOT Act II" and in certain Congressional proposals. Under these sections
(see §§6951 and 6952), a person charged with a terrorist crime which involves imprisonment of
10 years or more is now faced with a "rebuttable presumption" against release on bond pending
trial. The person could avoid pretrial detention only by showing he or she is not a flight risk and
is not a danger to the community. (A similar presumption exists for certain federal drug crimes.
This section extends that presumption to certain terrorist crimes).
[Note: It would be difficult, however, given the crime charged which would be a serious
terrorist crime and given the current political climate, for such an accused person to
demonstrate that he or she should be given pretrial release. These provisions could well mean,
as a practical matter, that in the majority of cases, persons accused of a terrorist crime will be
detained pending trial. And since it can take weeks if not months for such cases to come to trial,
this can mean pretrial incarceration for a considerable period.]
Title VII: Implementation of 9/11 Commission Recommendations
This Title (called the "9/11 Commission Implementation Act of 2004") contains
provisions which effectively codify into federal law recommendations of the National
Commission on Terrorist Attacks Upon the United States (9/11 Commission, see the

219
 No Greater Threat

Commission's Report, and see Appendix 6-C, following Part VI). These provisions will only be
listed here generally:
§7101. Findings
(to combat terrorism, U.S. must use "all elements of national power," including
diplomacy, military action, intelligence, covert action, law enforcement, economic policy,
foreign aid, diplomacy, and homeland defense).

§7102. Terrorist sanctuaries

(commitment to identify and eliminate terrorist sanctuaries, reporting on global
terrorism patterns).

§7103. United States commitment to the future of Pakistan

(commitment to ensure a promising, stable, and secure future for Pakistan).

§7104. Assistance for Afghanistan

(commitment to assist Afghanistan to improve quality of life, continue democracy, disarm
militias, curtail warlords, protect human rights, develop economy, and end narcotics cultivation
and trafficking, long term assistance (other provisions in this section and programs described
are quite detailed)).

§7105. The relationship between the United States and Saudi Arabia
(includes statement that "Saudi Arabia has not done all it can to prevent financial or other
support from being provided to, or reaching, extremist organizations in Saudi Arabia or other
countries" and noting commitment to work with Saudi Arabia in these and other areas).

§7106. Efforts to combat Islamist terrorism

(includes statements that U.S. "should offer an example of moral leadership in the world
that includes a commitment to treat all people humanely, abide by the rule of law, and be
generous to the people and governments of other countries" and "should encourage reform,
freedom, democracy, and opportunity for Muslims").

§7107. United States policy toward dictatorships

(includes the statement that "short-term gains enjoyed by the United States through
cooperation with repressive dictatorships have often been outweighed by long-term setbacks
for the stature and interests of the United States" and that U.S. policy "should promote the
importance of individual educational and economic opportunity, encourage widespread
political participation, condemn violence, and promote respect for the rule of law, openness in
discussing differences among people, and tolerance for opposing points of view")

§7108. Promotion of free media and other American values

(U.S. "must do more to defend and promote its values and ideals to the broadest possible
audience in countries with predominantly Muslim populations" and emphasizing encour-
agement of free and independent media networks in these countries, including U.S. assistance
through grants and other funds)

§7109. Public diplomacy responsibilities of the Department of State

(extensive provision, encourages further diplomacy to Muslim countries or populations,
especially through media outlets).

220
 Part IV-C: The Intelligence Reform and Terrorism Prevention Act of 2004

§7110. Public diplomacy training

(further approaches to diplomacy training).

§7111. Promoting democracy and human rights at international organizations

(includes statements such as U.S. should "strongly support and seek to expand"
democracy caucus at the UN General Assembly and UN Human Rights Commission).

§7112. Expansion of United States scholarship and exchange programs in the Islamic
world
(U.S. should "commit to a long-term and sustainable investment in promoting
engagement with people of all levels of society in countries with predominantly Muslim
populations, particularly with youth and those who influence youth," providing considerable
detail).

§7113. Pilot program to provide grants to American-sponsored schools in predominantly

Muslim countries to provide scholarships
(noting U.S.-sponsored elementary and secondary schools are in more than 20 countries
with predominantly Muslim populations and U.S. should increase attendance at these schools,
directs pilot program for grants for full or partial merit-based scholarships to students from
lower-income and middle-income families)

§7114. International Youth Opportunity Fund

(stating among other things that State Department is to establish through the UN
Educational, Science and Cultural Organization (UNESCO) or other similar body, an "Interna-
tional Youth Opportunity Fund" for financial assistance to improve public education in the
Middle East and "other countries of strategic interest with predominantly Muslim
populations")

§7115. The use of economic policies to combat terrorism

(reiterating economic support commitments or initiatives, stating "a comprehensive
United States strategy to counter terrorism should include economic policies that encourage
development, open societies, and opportunities for people to improve the lives of their families
and to enhance prospects for their children's future" and that "another element of such a
strategy should encompass United States efforts to promote economic reform in countries that
have a significant population of Muslim individuals, including efforts to integrate such
countries into the global trading system").

§7116. Middle East partnership initiative

(commitment toward efforts to promote "the rule of law" in Middle East).

§7117. Comprehensive coalition strategy for fighting terrorism

(detailed section stating U.S. should "seek to establish an international counterterrorism
policy contact group with the leaders of governments providing leadership in global counterter-
rorism efforts and governments of countries with sizable Muslim populations, to be used as a
ready and flexible international means for discussing and coordinating the development of
important counterterrorism policies by the participating governments").

221
 No Greater Threat

§7118. Financing of terrorism

(recommits efforts to track terrorist financing).

This Subtitle also contains another provision (§7119) on designations of terrorist groups.
Instead of the designation expiring after two years, groups designated as foreign terrorist
organizations may, after that time, petition for a review or revocation of that designation. This
appears to modify terrorist designation provisions in Title IV of the PATRIOT Act. The State
Department "may consider classified information in making a determination in response to a
petition for revocation. Classified information shall not be subject to disclosure for such time as
it remains classified, except that such information may be disclosed to a court ex parte and in
camera for purposes of judicial review." The Section appears to permit judicial review provision
for certain decisions concerning terrorist organization designations, including refusal of a
petition to modify or remove the designation. In any event, the Section requires mandatory
review by the State Department of a terrorist organization designation, if there has been no
review after six years. This provision shifts the responsibility to "designated" groups to petition
for a review of terrorist organization designation..
Subtitle B of Title VII contains several separate provisions. Many are new initiatives,
others technical amendments. All have significance to anti-terrorism measures.
The Act mandates the Director of the National Counter Terrorism Center to submit to
Congress a strategy for combining terrorist travel intelligence and law enforcement operations
to intercept terrorists, locate facilitators of terrorist travel, and restrict the ability of terrorists
to exploit travel loopholes and gain increased mobility. The section requires training
improvements and technical enhancements for border, consular and immigration officials.
(§7201).
The Act also establishes a human smuggling and trafficking center (§7202), which
includes an interagency program on countering terrorist travel. The DHS and NCTC are to
establish a program to oversee DHS responsibilities regarding terrorist travel. This would
include a visa and passport security program within the State Department's Bureau of
Diplomatic Security.
Another section increases the number of consular officers by 150 per year for each fiscal year
through 2009, and to at least one full time anti-fraud specialist at high-fraud diplomatic and
consular posts where visas are issued (unless there is a full time DHS employee assigned to that
post). Other provisions include encouraging international agreements (presumably this would
include Mutual Legal Assistance Treaties or MLATs) to track and curtail terrorist travel
especially in the use of fraudulent documents and international standards for transliteration of
names of aliens. (§7203 to §7205).
There are also sections establishing or reiterating programs for using biometric
technologies at entry-exit points in the U.S., including accelerated deployment of these
methods and systems. Persons entering the United States, including U.S. citizens and visitors
from Canada and other Western Hemisphere countries ("visa waiver" countries), must bear
passports or other documents sufficient to denote citizenship and identity. (therefore appears
that soon, as part of implementing PATRIOT Act Title IV authorities and similar provisions in
this Act and in other statutes, even citizens from "visa waiver" countries will be required to have
passports containing biometric information).
The section requires DHS to issue minimum standards for identification documents for
passengers boarding domestic flights, subject to Congressional approval (§7208 and 7209).
There are also provisions for pre-inspection of certain passengers at foreign airports, including

222
 Part IV-C: The Intelligence Reform and Terrorism Prevention Act of 2004

expanding a program placing U.S. immigration experts at foreign airports for expert advice to
airlines and foreign immigration officials. (§7210).
The next sections of Subtitle B of Title VII will gain more public attention— new minimum
federal standards for birth certificates, drivers' licenses, personal identification cards, and Social Security
numbers. (§§7211-7214). While not establishing a "national identification card" program managed
by the federal government, these Sections require new standards which all States are to meet.
These are to be phased in rather than go into effect immediately. (Again, some of these provisions may
be affected by the Real ID Act, under Congressional consideration for 109th Congress and likely to be passed in
2005.) As noted, these new standards are designed to prevent tampering, counterfeiting, or
duplicating of these documents for fraudulent purposes.
For birth certificates, the standards (through the Department of Health and Human
Services) are:
—certification of birth certificate by State or local government custodian of records, use
of "safety paper or alternative equally secure medium," seal of custodian of records, and other
anti-fraud features,
—proof and verification of identity to issue a birth certificate, with additional security
measures for issuing a birth certificate to a person who is not the applicant, and
—fraud preventing methods in processing birth certificate applications.

The new federal standard may not require a "single design" to which birth certificates
issued by all States must conform and shall accommodate differences between the States "in the
manner and form in which birth records are stored and birth certificates are produced from
such records." HHS is to assist State agencies in computerizing and matching birth and death
records. The Section provides other requirements for HHS consultation with the States.
For drivers' licenses and personal identification cards, the federal standards (through the
Department of Transportation) are to include:
—documentation as proof of identity of applicant for a driver's license or personal identi-
fication card, and verifiability of those documents,
—enhanced processing of applications for driver's licenses and personal identification
cards to prevent fraud, and
—information to be included on a driver's license or personal identification card,
including—full legal name, date of birth, gender, driver's license or identification card number,
digital photograph, address, and signature.

These standards also will include "common machine-readable identity information" on

each driver's license or identification card including "defined minimum data elements" and
procedures to ensure that licenses and personal identification cards are "resistant to tampering,
alteration, or counterfeiting" and are "capable of accommodating and ensuring the security of a
digital photograph or other unique identifier." These standards are to include additional
requirement that a State "confiscate a driver's license or personal identification card if any
component or security feature of the license or identification card is compromised." To address
privacy issues, the new federal standards are to include "procedures and requirements to
protect the privacy rights of individuals who apply for and hold driver's licenses and personal
identification cards."
Regulations and consultations are to occur as these new federal standards are developed.
The standards are not to interfere with a State's own requirements concerning drivers' licenses,
such as categories of persons eligible to receive a driver's license or personal identification card.

223
 No Greater Threat

The new federal standards for Social Security cards and Social Security numbers (issued by the
Commissioner of Social Security) will:
—restrict issuance of multiple replacement social security cards for any person to 3 per
year and 10 for life (there may be reasonable exceptions on a case-by-case basis, in compelling
circumstances);
—minimum standards to verify documents or records submitted for original or
replacement card, other than for purposes of enumeration at birth; and
—independent verification of any birth record submitted to establish eligibility for a
social security account number, other than enumeration at birth (also subject to reasonable
exceptions on a case by case basis, in compelling circumstances), and
—within 18 months after enactment of this Act (with respect to death indicators) and
within 36 months after enactment (with respect to fraud indicators), add "death and fraud
indicators" to social security number verification systems for employers, State agencies issuing
driver's licenses and identity cards, and other verification routines that the Commissioner
determines to be appropriate.

[Note: The effort required by the 50 States to meet these new federal standards, and to
administer this program through federal Departments (to the extent that federal administration
is necessary), which will involving millions of people on a continuous and indefinite basis, will
be massive. The actual cost is not yet known, but some nationwide estimates are in the billions.
Whether this is a cost-effective means of finding potential terrorists must be seriously
questioned. And while the federal mandate setting standards for birth certificates, drivers
licenses, personal identification cards, and Social Security numbers is not yet a "national identi-
fication card," it is close. Establishing such comprehensive national standards to catch a few
people who may be using a fake driver's license for terrorist purposes, is disproportionate, and
the costs will be extreme. If the system eventually develops into a national identification card
that all citizens must carry, this would be another serious step toward a national security state.]
Other Sections in Subtitle B of Title VII involve terrorist travel (§7215), increases in
penalties for fraud or related conduct concerning visas and passports (§7216), and a study of lost
and stolen passports for development of a visa and passport security program. (§§7217 and
7218). These sections contain extensive language on means, studies, plans, and programs to
intercept and prevent terrorists from using false, stolen, or modified passports and visas. This
includes a program to "randomly inspect visa and passport applications for accuracy, efficiency,
and fraud, especially at high terrorist threat posts, in order to prevent a recurrence of the
issuance of visas to those who submit incomplete, fraudulent, or otherwise irregular or
incomplete applications."
Subtitle C involves "national preparedness." It includes a unified incident command
system and enhancing communications connectivity between various federal and State
emergency response agencies (a recommendation of the 9-11 Commission) (§7301), special
attention to first responders in the national capital area (§7302), other communications
cooperation plans and procedures and strategic plan pilot programs (§7304), and private sector
preparedness recommendations (§7305).
Along the lines of the National Strategy for the Physical Protection of Critical
Infrastructures and Key Assets (see summary of the "National Strategy" documents in Appendix
6-B), the Act requires DHS to report to Congress on assessing critical infrastructure protection
needs and the readiness of the government and of State and local agencies to respond to threats
against the U.S. and certain infrastructures. (§7306). The Act also encourages the assessment of
the Northern Command and its plans and strategies for homeland protection. (§7307).

224
 Part IV-C: The Intelligence Reform and Terrorism Prevention Act of 2004

Subtitle D contains other homeland security provisions, such as first responder funding,
coordination of industry efforts on homeland security, a nationwide emergency notification
system (§7403), homeland security grants, and emergency preparedness arrangements. As for
the nationwide emergency notification system, this includes a study for a "cost-effective,
efficient, and feasible" means to establish and implement "an emergency telephonic alert notifi-
cation system" that will "alert persons in the United States of imminent or current hazardous
events caused by acts of terrorism" and "provide information to individuals regarding
appropriate measures that may be undertaken to alleviate or minimize threats to their safety
and welfare posed by such events."
Subtitle E contains a provision requiring studies for allocating additional broadcast
spectrum for first responder needs and to assess strategies to meet public safety telecommuni-
cations needs. (§7501). The provisions note conversion by major television broadcasters to
digital broadcasting, in order to return the analog broadcast spectrum for other uses (by
December 31, 2006).
Subtitle F is a single section, involving Presidential transitions. Among the requirements
is that the President-elect be provided with a classified summary of known threats to national
security. Also, each major party presidential nominee (assumed to be Democratic Party and
Republican Party) has the discretion, after the nomination conventions, to submit transition
team names immediately, to expedite security clearance processes. A President-elect will be
required to submit names for national security related positions as soon as possible, to expedite
clearance and Senate confirmation process (where applicable).
Subtitle G includes provisions on international standards for combating terrorist
financing. These include measures for international compacts, agreements and arrangements,
involvements of the Treasury Department and other related Departments, and the like. These
standards relate to Title III authorities of the PATRIOT Act.
Subtitle H allows among other things, the Securities and Exchange Commission, in the
event of catastrophic attack (or possibly, threat of such attack), to maintain or restore fair and
orderly securities markets and prevent disruption of markets. The SEC is empowered to take
these actions for 10 business days but they may be extended for 30 calendar days, should the
public interest so require. The Treasury Department is given comparable authority over
government securities. In addition, as part of another recommendation of the 9-11 Commission,
the Act provides that insurance and credit rating firms should consider a private firm's
compliance with private sector disaster and emergency preparedness procedures when
assessing that firm's insurability and credit worthiness.

TITLE VIII: OTHER MATTERS

This final Title in the Intelligence Reform Act contains certain unrelated provisions. They
include the National Infrastructure Simulation and Analysis Center, an Office of Geospatial
Management within DHS. (Subtitles A and B, see §§8101 and 8201).
Of particular importance are provisions in Subtitle C relating to Homeland Security Civil
Rights and Civil Liberties Protection. This subtitle contains the "Homeland Security Civil
Rights and Civil Liberties Protection Act of 2004." The provisions include requirement DHS to
develop, implement, and review policies and procedures to ensure civil rights and civil liberties.
This program, and DHS generally, are to oversee compliance with all constitutional, statutory,
and policy requirements on civil rights and civil liberties. DHS is to properly investigate
complaints. (§8301-§8303).
The DHS Office of Inspector General (DHS/OIG) is to designate a senior official in that
Office, with specific privacy and civil liberties duties. They are, to:

225
 No Greater Threat

—coordinate OIG activities in investigations of abuses of civil rights or civil liberties;

—receive and review complaints and information "from any source" alleging abuses of
civil rights and civil liberties by DHS or by independent contractors or grantees of DHS;
—initiate investigations of alleged abuses of civil rights or civil liberties;
—ensure OIG personnel receive sufficient training to conduct effective civil rights and
civil liberties investigations;
—consult with the Officer for Civil Rights and Civil Liberties regarding alleged abuses of
civil rights or civil liberties and any policy recommendations regarding civil rights and civil
liberties founded upon an OIG investigation;
—provide Officer for Civil Rights and Civil Liberties with information on the outcome of
investigations of alleged abuses of civil rights and civil liberties;
—refer civil rights and civil liberties matters that the Inspector General decides not to
investigate to the Officer for Civil Rights and Civil Liberties;
—ensure DHS/OIG publicizes and provides "convenient public access to information"
regarding the procedure to file complaints or comments concerning civil rights and civil
liberties matters and the status of corrective actions by DHS in response to OIG reports; and
—inform Officer for Civil Rights and Civil Liberties of any "weaknesses, problems, and
deficiencies" within DHS relating to civil rights or civil liberties.

The Section includes similar provisions for the DHS Privacy Officer. (See §8305). There
are provisions for protection of any human research subjects in DHS studies. (§8306).
There remain a few provisions in Subtitle D regarding information security for IT
processes and systems (§8401), developing an enterprise architecture at the FBI which agency is
to maintain and update systems for state of the art technology (§8402), financial disclosure
provisions for certain Executive Branch employees (§8403), and extension of requirement for
air carriers to honor tickets for suspended air passenger service (§8404).

***

Congress, through another comprehensive statute no less momentous and complex than
the PATRIOT Act, Homeland Security Act, and similar statutes, again has committed the
United States to an ongoing government program and policy of anti-terrorism. Besides the
considerable changes and reorganization of intelligence authorities, this statutes now moves
the government into areas of personal identification, extended security initiatives for air travel
and other means of travel, additional considerations of terrorist financing and other terrorist
crimes, and established a host of policy initiatives. This Act, in all its various parts, no doubt is
yet another step toward a potential national security state.

##

226
PART V: THE FIRST SIX ELEMENTS OF A NATIONAL SECURITY
STATE
Most of the attention devoted to the national response after the September 11 attacks has involved foreign
policy, military action, and the international situation. No less significant is the transformation of the
United States into a potential national security state, including the effects of the USA PATRIOT Act.

So far, consideration has been given to some influences over the past 20 years on the
development of a possible national security state, including historical examples stretching back
almost to the founding of the nation. Following that was a detailed review of the myriad
provisions of the exhaustive, expansive USA PATRIOT Act. Reviewed in detail as part of this
edition is a statute nearly equal to the PATRIOT Act in significance regarding federal policy in
the “war on terrorism” — the Homeland Security Act of 2003 — which among other things
created the Department of Homeland Security. Reviewed in detail as well, as part of this
edition, is the proposed Domestic Security Enhancement Act of 2003 (so-called “PATRIOT Act
II”), a statute containing provisions which go far beyond the PATRIOT Act, several of which are
patently unconstitutional. In addition, a significant statute of late 2004 is summarized — the
Intelligence Reform and Terrorism Prevention Act of 2004. Along with those reviews has been a
further review of numerous PATRIOT Act developments since mid- 2002, such as Congres-
sional proposals, some of which would greatly expand existing PATRIOT Act authorities. Past
and present legislation directly affecting American life and civil liberties having been discussed,
the stage is set for considering the specific aspects of a national security state.
There are at least 12 common characteristics to a national security state. There may be
more, but considering national security states of various types especially after World War II,
these characteristics are the most common. It should be noted that to become a national
security state, especially the less overt form which is the most likely prospect for America, all of
these characteristics need not be completely fulfilled. Rather, the stronger these characteristics
become, the more likely it is that a possibly permanent national security state will emerge.
The twelve characteristics are:
1. Visible increase in uniformed security personnel
2. Limited accountability of law enforcement and security officers
3. Reduced role of the judiciary and executive treatment of suspects
4. Secrecy of ruling authority and continued momentum of threat
5. Media in the service of the state
6. Public and national resources called to service against security threat
7. Patriotism moving to nationalism
8. Lack of critical response by religious denominations
9. National wartime or security mentality and permanent war economy
10. Targeted individuals or groups
11. Direct attack against dissent
12. Increased surveillance of citizenry

227
 No Greater Threat

Other characteristics could be mentioned: merging of corporate and government powers,

enlistment of youth in service of the state, how the state is portrayed in schools, restrictions
upon outside travel by citizens, and restrictions upon access to information. But the 12 aspects
described surely would appear in any description of a national security state.
As the year 2002 continues to year 2003 and beyond, America is poised precariously close
to fulfilling nearly all of these characteristics. The brightly-painted red, white, and blue bus,
sitting at the flashing yellow road sign that reads, “Now Entering National Security State,” is
ready to move forward.
As has been noted, America has a long history of government restrictions of political
expression and intrusions and investigations into private lives. These national actions have
been the response to political threats to national security, either real or imagined.
The development of “national security” as a primary concern of the federal government, in
recent expression from 1993 to the present all-encompassing status of that theme, has come
about through several influences. They included the slow collapse of the Soviet Union in the
1980s with attendant consequences to United States policies, the continued or emerging role of
other nations in sponsoring terrorism, the ongoing unrest in the Middle East, and the persistent
presence on the world stage of states known to be sympathetic to the cause of terrorists, like
Afghanistan, Libya, and Syria. Combined with these influences were numerous terrorist or
presumed terrorist events occurring both within United States borders and elsewhere. Chief
among those were the:

— December 21, 1988 bombing of Pan American Flight 103 over Lockerbie, Scotland,
resulting in the deaths of all 259 passengers and crew aboard the plane and 11 deaths on the
ground,
— February 26, 1993 bombing of the World Trade Center that resulted in six deaths,
— April 19, 1995 bombing of the Alfred P. Murrah Federal building in Oklahoma City,
resulting in 168 deaths,
— November 13, 1995 bombing at a military post in Riyadh, Saudi Arabia that killed 5
Americans,
— June 25, 1996 bombing at a military base near Dhahran in Saudi Arabia that killed 19
American servicemen (Khobar Towers),
— July 27, 1996 bomb incident at the Summer Olympics in Atlanta, which killed one
person,
— July 24, 1998 attack by a gunman at the Capitol in which two Capitol guards were
killed,
— August 7, 1998 bombings of the American embassies in Kenya and Tanzania, which
caused the deaths of more than 200,
— October 12, 2000 attack on the destroyer U.S.S. Cole when it was docked in Aden,
Yemen for refueling, resulting in 17 servicemen dead, and
— Cybertattacks such as the May, 2000 computer virus as well as overall issues
generated by the “Y2K” computer security concerns.

With this combination of influences and events, prior to September 11 and over a
relatively short time recent period “national security” was transmuted from a generalized
objective to an operative theme of federal investigative and law enforcement agencies, as well as
of Congress and the White House. Task forces and reports were devoted to the subject.
Legislation began to wend its way through Congress.1 Without a doubt terrorism, especially
domestic terrorism and the importance of a coordinated federal response in investigation and

228
 Part V: The First Six Elements of a National Security State

prosecution, has been a central government concern for at least seven years. Among the
legislation passed by Congress during this time was the Anti-Terrorism and Effective Death
Penalty Act of 1996 and further expansion of the federal crime of terrorism.
Arrest and prosecution of those who commit terrorist crimes and the groups which
support them are imperative, as with the investigation of any crime. Yet a nation cannot become
so single-minded that this cause becomes the defining characteristic of both domestic and
foreign policy. Wholesale movement in that direction, with increased investigative and
surveillance powers of the federal government, appeals to the national will, and comparing the
September 11 attacks to Pearl Harbor generates the real possibility that a national security state
will arise.

1. VISIBLE INCREASE IN UNIFORMED SECURITY PERSONNEL

Since September 11, in public places, public or government buildings, and centers of
travel, security personnel of various types are more numerous and more visible. They include
private security guards, off-duty police officers, state and local police forces, specialized police
forces (such as at airports and travel areas from bus stations to toll booths), National Guard
troops, armed forces reservists, and active duty military personnel. All are in uniform and
armed, some with automatic weapons.
The armed forces have become more visible as more uniformed troops are seen at some
public buildings. The armed forces have a name for their “homeland defense” operations: Noble
Eagle.1 The title includes homeland defense actions by the armed services as well as support to
federal, state, and local agencies. For some time, there were regular military aircraft overflights
over some airports and military bases, although this has now been either reduced or suspended.
For weeks after the September 11 attacks, there were fighter jets almost continually in the sky
over Manhattan and Washington, D.C.
The Air Force public information on Noble Eagle says that the Air Force can employ a
minimum of 40 C-130 airlift support aircraft and other forces “capable of reacting to terrorist
threats within a few hours of notification.”2 Several thousand Air National Guard and Reserves
have been called up or put on standby “to provide combat air patrols in the skies and increased
security at airports and at other key infrastructures on the ground.” Nearly as many total Air
Force members “defend American skies in operation Noble Eagle” as were deployed for
Operation Enduring Freedom, the operation name for the war in Afghanistan.
The Air Force says that “Over the skies of America, more than 11,000 airmen from the Air
National Guard, Air Force Reserve and active Air Force have flown more than 13,400 fighter,

1. For example, there are at least 20 GAO Reports on the subject of terrorism, going back to the time
frame of the Oklahoma City bombing. Among the early GAO reports are: Combating Terrorism, Federal
Agencies’ Efforts to Implement National Policy and Strategy (GAO/NSIAD-97-254, Sept. 26, 1997);
Combating Terrorism: Spending on Government wide Programs Requires Better Management and Coordi-
nation (GAO/NSIAD-98-39, Dec. 1, 1997), and Combating Terrorism: Threat and Risk Assessments Can
Help Prioritize and Target Program Investments (GAO/NSIAD-98-74, Apr. 9, 1998). A listing of GAO
report titles on various topics related to emergency preparedness, combating terrorism, weapons of mass
destruction, addressing bioterrorism, government coordination of emergency response, military options
and approaches, state and local strategies, risk management, insurance, aviation, and other concerns, runs
for ten pages. The titles listed go back to 1980, but the number of reports, studies, and statements increase
after 1994.
1. Information available to the general public on Noble Eagle is posted on the Internet, through the
Air Force website; or go to “www.af.mil/news/noble.”
2. This information is from the Air Force Noble Eagle website at www.af.mil/news/noble/. The infor-
mation is current as of mid-April, 2002.

229
 No Greater Threat

tanker and airborne early warning sorties.” Approximately 20 airborne early warning aircraft
“monitor the skies and coordinate operations.” Forces from the North Atlantic Treaty Organi-
zation are deployed on this side of the Atlantic for the first time in NATO history.
Anyone who has been in any airport in the United States since September 11 knows that
these areas have become the most obvious for increased security presence. Some were turned
into virtual armed camps almost immediately after September 11. Uniformed, armed troops
patrolled common areas or stood post at security screens. Some of these patrols remain at some
airports at times of increased security either at that airport or following an increase in the
national “threat level.” So far, as of late 2004, no major airport attack has occurred since
September 11, and hopefully none will occur. While the continued appearance of these troops,
although less frequent than in the days immediately following September 11, may be a sign of
security for some airport patrons, it is unnerving and in the long run unnecessary.
The situation goes beyond this. Airports have become security conscious to the point
where entire terminals are evacuated at the sign of a suspicious package or a passenger who did
not properly go through checkpoints.1 Flights are canceled or diverted at the slightest sign of
trouble.2 Congress in its new airport security act has authorized unheard- of measures to
increase airport security.3 Airport workers at every level are being examined and their
backgrounds re-checked.4 Federal employees will replace security screeners at airports, as part
of the new and huge Transportation Security Administration.5 All this will come at a price
beyond the incredible escapade that air travel has become.6 What is also ironic, and perhaps
disturbing, about this enormous and mind- boggling increase in airport security is that experts

1. Just one such incident occurred in Denver in early January, 2002, where a man bypassed a metal
detector and airport security workers began arguing over the situation. Eventually, an entire concourse was
cleared and 2,500 passengers were re-screened, resulting in delays of 27 flights. One of the screeners was
fired and the other suspended. Nation Digest, “Denver Airport Screeners Argued After Breach Alarm,” The
Baltimore Sun, January 5, 2002.
2. For example, see the report in World Digest, “Bomb Threat In Bathroom Diverts Plane To Iceland,”
The Baltimore Sun, January 20, 2002. The passenger jet, flying from Britain to Florida with 340 people on
board, was diverted to Iceland after the crew found a bomb threat and anti-American messages (“All Amer-
icans Must Die” and other slogans) scrawled on a bathroom mirror. The 747 landed safely, about six hours
after taking off from London. The threat seemed to be a fake or a hoax. No bombs were found on the plane.
3. This legislation, the Aviation and Transportation Security Act, P.L. 107-71 (S. 1447), enacted
November 19, 2001, approximately 60 days from the September 11 tragedies, covers more than 50 pages of
provisions. It adds major new sections to existing law (especially Act Section 101 adding §114 to 49 U.S.C.
and establishing the Transportation Security Administration). It address subjects such as improved airport
perimeter security, crew training, new enhanced security measures, flight deck security, deployment of
federal air marshals (required deployment of federal air marshals on every flight determined to present high
security risks and allowing retired police or military to serve as air marshals), vast new security screening,
new directions in research and development for security screening and checkpoint screening, chemical and
biological weapons detection, more detailed passenger manifests, increased penalties for interfering with
airport security personnel, less than lethal weaponry for flight deck crews and additional training, employ-
ment screening and background checks for airline and airport employees, and encouraging airline
employees to report suspicious activities.
4. Rona Kobell, “More Than 100 Workers Arrested At Area Airports,” The Baltimore Sun, April 24, 2002, p. 1B.
The federal probe into the workers’ backgrounds revealed that some did not disclose criminal convictions
or violated immigration laws in applying for airport security badges. The arrests were made at three
airports: Baltimore-Washington International, Washington Dulles International Airport, and Ronald
Reagan Washington National Airport. The review covered 15,000 employment applications and was
conducted for four months. However, most of these employees were in custodial jobs, worked at airport
restaurants, in other services, or in construction. Only two of the 100 arrested were security screeners. Also,
some of the infractions were minor, like an improper name or birth date on an application. 100 possible
employment application problems out of 15,000 is 0.6%.

230
 Part V: The First Six Elements of a National Security State

have said that until these massive new scanning systems are in place, interim measures will not
be much more effective than airport screening procedures before September 11 at detecting
bombs in packages. The “trace detections” protocols, systems, or methods for determining if
there is an explosive device in a suitcase, will not provide additional security.1 Even with full
deployment of airport security protocols and mechanisms, including ever-increasing authorities
for the Transportation Security Administration at airport security lines, and now even more-
intrusive personal searches at airport security checkpoints, there will remain flaws and gaps in
the system, both human and mechanical. (See Expanded Commentary on Characteristic No. 1 at end of
this Part.)
Public libraries in rural towns are reviewing their security apparatus. In some states one
cannot even enter any state office building, however innocuous or removed from security
concerns, without showing an ID and signing in at a guard station. Guards at these stations
have authority to search anyone who may be suspicious. Some are armed. This security presence
did not exist and certainly would have been unheard-of prior to September 11.
In Washington, DC, a visitor cannot enter any Smithsonian museum without being
subject to possible search of a package, bag, or purse. Guards with small sticks probe every bag
or purse large enough to contain anything suspicious. In truth, little will come of this. What
could be the object of searching a handbag the size of a tissue box held by a patron to a history
museum? Weapons? Explosives? The necessity for such intrusions is not explained. Nor is it
explained whether there actually is any credible threat of someone causing massive damage to,
say, the Freer Gallery of Art. Objections to these new purely reactive, overbearing, and barely
justifiable policies go unheeded. In fact, as if to prove how far things have gone, objecting to
such unnecessary searches is regarded as suspicious.
Such shows of force have very narrow limits of effectiveness in terms of encouraging
public confidence. Eventually, they will be ignored or increased shows of force will become
counter productive. What effect these shows of force or searches at every opportunity may have
in preventing terrorism is another question — at a certain level, it becomes a “tiger stick”
argument that is in the mind of the beholder.2
It is distressing to learn that most Americans have not objected vociferously to this
alarming and oppressive increase in airport security. The assumption from the halls of Congress

5. Greg Schneider, “Federal Airport Workers to Debut At BWI,” The Washington Post, April 25, 2002,
1A. The new Transportation Security Administration had a deadline of November 19, 2002 to get federal
baggage screeners into all 429 airports in the country. Officials state that the total new federal workforce
managed by this agency might number as many as 65,000. This would make the TSA larger than the FBI,
Customs, and the Drug Enforcement Administration combined. It also would be larger than the FAA, the
INS, and the Coast Guard.
6. The cost of a round trip ticket was expected to increase as much as $10 by February, 2002, as
airline passengers begin paying for security improvements. The fee is $2.50 per flight, or $10 if a passenger
has to make a connection each way on a round trip flight. The new fee is expected to raise $900 million in
2002. The money will be spent on new technology, passenger screeners, law enforcement officers, and other
security measures. See National Digest, “Airline Passengers To Begin Paying Security Fee In Feb.,” The Balti-
more Sun, January 1, 2002.
1. New York Times News Service, “Experts Question Accuracy of Airport Bomb Searches,” reported
in Baltimore Sun, June, 2002. The original plan was to have the large machines installed by 2014, but they are
expected to be installed this year. Meanwhile, a “40-40-20” system of looking at baggage with varying
degrees of inspection, outside inspection, inside inspection, or thorough inspection, is deemed by experts
not to be much more effective than prior methods.
2. As the well-known story goes, a person is walking down a city street, swinging a stick in the air.
He is asked what the stick is for, and responds that it keeps away tigers. When he is informed that there are
no tigers in the city, he says, “See how well it works?”

231
 No Greater Threat

to the offices of the White House to the security checkpoint employee is that such measures
will prevent further terrorist attacks involving or making use of airlines or airports. Yet that
strikes at the paradox of terrorism, especially suicide attacks: predictions are always uncertain,
the same tactic is rarely tried in the same way, and no amount of security could ever hope to
stop a person who intends to die in the commission of a terrorist crime. Most of these airport
security measures serve only to turn daily airline travel, which had already become grossly
inconvenient, intrusive, and difficult, into a nightmare. New security measures are also in place
for train and bus travel. Americans have been far too placid as their right to travel increasingly
becomes the property of the federal government.
On top of this increased visibility and the use of such forces, to the extent they continue
to be used, are not without a greater risk. Troops or armed security guards standing around all
day at airport security checkpoints become bored. Any situation, no matter how small, is likely
to generate a too-quick response. Lines of communication can become blurred in the heat or
panic of any incident especially if occurring at a public place — if there is an immediate problem
at a security screening point in an airport, who gives orders to a soldier or police officer
standing there? It is unclear to any airport patron whether this armed individual can act on his
or her own, or takes direction from security personnel operating the security screen, airport
management, airport security, or an on- site or off-site military officer. A security presence this
intense at airports, with thousands of stressed and nervous passengers subjected to incredible
humiliation, simply to board an airplane, are an invitation to overreaction by security or
military forces, that is to say, an invitation to disaster.
This element of a national security state has been completely fulfilled, at least at airports,
travel centers, and government buildings. The prospect remains of an even greater expansion of
security presence to other locales. As this security presence expands, and the public becomes
more accustomed, this element becomes even more cemented in place.

***
Comment at Close of 2004
Since mid-2002, there have been dramatic increases in this characteristic of visible increase
in security personnel, which now necessarily includes increases in security measures of one type or
another involving significant numbers of security personnel. These developments have occurred at
almost every point along the scale of possible government action. To name a few:
— A Terrorist Threat Integration Center at the CIA (soon to be incorporated into a new
National Counterterrorism Center through the Intelligence Reform Act).
— Local, regional, or national security initiatives involving security personnel at every
governmental level.
— Increased airport security measures proposed or in place, such as increasing the air
marshal program.
— Airline passenger screening systems such as CAPPS II, now to become “Secure Flight”
(described elsewhere, and see also Comment at Close of 2004, at the end of Part III).
— Increased security attention for other passenger mass transportation modes such as
trains and cruise ships, and for cargo transport including air cargo and sea cargo.
— Cross-agency postings between FBI and CIA (also noted elsewhere, regarding to other
national security state characteristics).
New or enhanced anti-bioterrorism programs.
— Increased campus police at colleges and universities, and
— Increased security initiatives at northern and southern borders.

232
 Part V: The First Six Elements of a National Security State

(These and related developments are reviewed in the Expanded Commentary for Characteristic
No. 1 at the end of this Part)

***

2. LIMITED ACCOUNTABILITY OF LAW ENFORCEMENT AND SECURITY

OFFICERS
Linked to the increase in visibility of security, law enforcement, and military personnel is
a significant decrease in the level of civil accountability for the actions of these same individuals.
This meets another important criterion: a national security state must be able to utilize its law
enforcement personnel at any level, with total impunity. That is fast becoming the case.
It has been made painfully evident not only by a few notorious incidents (Ruby Ridge,
Waco, Rodney King in Los Angeles, police errors Cincinnati, overzealous actions in New York
City, etc.) but also by the frequent incidents of police misconduct in major American cities, that
police, security and military agencies cannot always police themselves. Ironically, some of the
more historically significant incidents have shown that many segments of American public
support any action by any police or security force, no matter how ill-conceived or tragic.
In the last decade, despite such incidents, there was hope that this country would make
progress from the shameful days when the most prevalent public image of police were fire
hoses, dogs, and nightsticks used against civil rights marchers and antiwar protesters. No
professional police force that cares about its relationship to the community, its public image,
and its ability to be an effective crime fighting operation would want to return to those days.
Yet there continues to be a level of police misconduct which has never disappeared. These less
desirable trends, mixed with an increasing public attitude of total support and sympathy for
police units after September 11, and given the immense new priority to law enforcement and
surveillance declared throughout the PATRIOT Act, can have the disturbing counter-effect of
moving police conduct to a new level of near- untouchability.
Rare is a successful criminal prosecution of, or substantial civil liability imposed upon,
instances of police misconduct. That includes a police officer fatally shooting an unarmed
suspect in a street incident. Most state laws make it virtually impossible to bring a civil action
against a police officer for excessive force, often requiring a showing of “malice” by the officer —
extremely difficult to prove. Other state laws make it similarly unlikely to successfully advance
a civil action against a police officer for injuries resulting to others, such as in that officer’s use of
an emergency vehicle.
The federal statute authorizing civil actions in federal court against municipal, state or
federal police officers1 once was a hallmark of redress in the federal court system against police
overreaching but the statute has been so curtailed in the past 20 years by Supreme Court
decisions2 that bringing such a claim often becomes overly burdensome and ultimately
unsuccessful. Consequently, the impact of the threat of civil action as a check against improper
police conduct has faded greatly. With the acceleration of the prominence of law enforcement
and security personnel, and if present trends continue, that check is likely to fade even more
seriously in just another two to five years. The net result is that impunity with which law
enforcement officials have acted for years will be multiplied.

1. 42 U.S.C. §1983

233
 No Greater Threat

Police are just one aspect of this accountability concern. The difficulties of holding police
officers or a police force responsible for police conduct causing unnecessary injury or invasion of
privacy pale in comparison to any effort to impose similar liability against National Guard
troops or against military forces acting in a civilian context. Given the likelihood that such
troops could be pressed into service to provide security in extreme domestic situations, that is
not a far-fetched concern. It is nearly impossible to bring a soldier or National Guard member to
task, on a civil or criminal basis, for any overreaching of authority in a domestic situation.
Extremely rare indeed in the past 25 years is the case of any successful or substantial claim in
federal or state court asserted against an American soldier or a National Guard trooper for the
use of excessive force in a domestic, civil context.1
The way the government is investigating terrorism after September 11 and implementing
the PATRIOT Act, beginning just months from its enactment, is indicative. Responding to a
Freedom of Information Act lawsuit, the Justice Department revealed that more than 700 aliens
were detained by the Justice Department on immigration violations and similar charges. The
actual number was more than 1,000. As many as 460 of these were still in custody in early
January, 2002. The Justice Department admitted to at least 880 being detained as part of this
initial round of arrests following September 11 and said in June of 2002 that more than 100 were
still being held, with 74 being processed on immigration-related charges and 73 being held on
federal criminal charges. However, the Justice Department and the INS still will not release the
names of those charged or held. Also, the government prosecutors did not file charges in 60 of
98 anti-terrorism cases that were referred by the FBI from September to March, despite the fact
that cases sent for prosecution have risen from 10 per month prior to September 11 to 59 per
month.2 Two Pakistani immigrants were not charged with overstaying their visas until nearly
50 days after their arrest. An Israeli national was held for 66 days before being charged with
having illegally entered the country.3 Yet, for all of this movement by the federal government, as
of late January, 2002, only one person, the French national Zacarias Moussaoui, actually had
been charged in connection with the September 11 attacks. The swiftness of federal government
action, the breadth of the discretion which the government is exercising, and the clear
indication that there is little need to be concerned with justifying or accounting for these

2.Most recently Saucier v. Katz, 531 U.S. ___, 121 S.Ct. 2151 (2001). And see Anderson v. Creighton, 483 U.S.
635 (1987) and Harlow v. Fitzgerald, 457 U.S. 800 (1982)), describing the qualified immunity which police
officers have in any action under 42 U.S.C. §1983. There is an entire body of federal case law on the qualified
immunity for police officers in a civil action under §1983. To be placed outside of this immunity, government
officials must be performing a discretionary function and their conduct must violate “clearly established”
statutory or constitutional rights of the victim, of which a reasonable person would have known. The
Supreme Court has stated that a decision by a trial court on whether to grant summary judgment for the
police officer on qualified immunity in a civil action for police misconduct should come at an early stage of
litigation. These summary judgment motions by the police officers are, therefore, inevitable and threshold
obstacles for a plaintiff in keeping the litigation viable. These motions frequently succeed and are generally
affirmed on appeal.
1. A clear example of this rather unique legal situation is the attempt to hold accountable the
National Guard troops involved in the tragic shooting incident at Kent State University in May of 1970. For
a description of the convoluted legal aftermath of that event, which after many years ended fairly quietly
with a relatively small settlement in favor of the plaintiffs, see Appendix 5-A.
2. Associated Press, “Prosecutors Decline Charges in 60 of 98 FBI Terrorism Cases,” June 16, 2002, in
The Baltimore Sun, June 17, 2002, p. 3A. The article says, “Despite assurances by [Attorney General John]
Ashcroft and [FBI Director Robert S.] Mueller that the FBI was focusing more on terrorism prevention, the
records show that bank robberies, drug violations and bank frauds accounted for more than a third of all
FBI referrals in the first six months after September 11. That’s roughly the same level as in the previous five
years.”
3. The Washington Post, January 15, 2002, page A1.

234
 Part V: The First Six Elements of a National Security State

actions, a trend likely to continue and increase, will be among the most dangerous legacies of
the PATRIOT Act.
The result is a massively increased security system which now answers virtually to no
one. This second element of a national security state is quickly moving forward.

***
Comment at Close of 2004
Limited civil accountability of law enforcement and security officers continues to be a concern.
There is little or no civil accountability for security forces involved in anti-terrorism measures,
including the Transportation Security Administration (TSA) (or private airport security
contracted by airports). Conduct by federal, State, and local law enforcement officers, including
DHS, is protected by statutes reducing or eliminating civil accountability, or by courts
reluctant fully to enforce whatever civil accountability statutes do exist.
There have been reports of police departments, such as in New York, seeking to modify or
eliminate “consent orders” many of which are two decades old. These consent orders were
arranged in the 1960s and 1970s the wake of increased concern that police were engaged in
inappropriate record keeping or surveillance of peace activists or similar groups. They prohibit
or impose strict requirements upon such activity. (A provision in the proposed Domestic
Security Enhancement Act or “PATRIOT Act II” would invalidate these consent orders.)
Limited accountability also is implicit in the increased information sharing between
government agencies, expanded by information sharing authorities of the PATRIOT Act and of
the Homeland Security Act. There is no public accountability for how information is shared,
with whom or how often it is shared, how it is stored, or for how long. Also, by statutes such as
the PATRIOT Act, there is little if any civil accountability for any source providing "terrorism
information" or "foreign intelligence information" voluntarily or otherwise, to any federal or
state agency related to a terrorism investigation.
There surely is limited accountability for actions of military personnel, government
agents, or employees of firms contracting with the federal government in places like Iraq,
Afghanistan, other overseas locales, or Guantanamo Bay/Camp Delta. Despite some
prosecutions of military personnel for abuses of detainees of Iraq, as of late 2004 little or no
similar action has been taken for officers and commanders farther up the chain of command or
within the civil leadership of the Defense Department. Nor have there been any prosecutions
for alleged abuses of detainees at Guantanamo Bay.
Yet accountability of police and investigative agencies is an essential element of the
checks and balances necessary to a democratic society, if freedoms and privacy are to be
protected. The decline in this accountability combined with continued growth in surveillance,
investigative, and detention powers, do not bode well for a society wishing to avoid transfor-
mation into a form of national security state.
(There is no Expanded Commentary for Characteristic No. 2.)

***

3. REDUCED ROLE OF THE JUDICIARY AND EXECUTIVE TREATMENT OF

SUSPECTS
One of the most serious threats to a national security state is an independent judiciary
with the authority to review government actions and the power to enforce its rulings. The

235
 No Greater Threat

presence of a judiciary as a means of redress by the citizenry against government excess and as a
guarantor of due process for persons accused of actions against the government severely
hampers the ruling authority of a national security state in moving quickly and without
impediment against perceived threats, real or imagined. Typically, a national security state will
reduce, bypass, or eliminate the role of the judiciary in national civil life. The judiciary will be
made to serve the state’s interests, or be ignored.
This is where the most information already is available and where the most damage
already has been done. Substantial momentum has developed due to three major steps taken
after September 11: the announcement by the Bush administration that, by Executive Order
(Military Order), trials of certain suspected terrorists may be conducted in secret by military
tribunals where due process guarantees are fewer than in general civil courts; the increased
powers given by Congress in the PATRIOT Act to a specialized court overseeing covert
electronic investigations under federal law, and the PATRIOT Act’s authorization of
government officials to request, investigate into, or demand the release of a list of information
(financial, consumer, education, business other records) without the need for a court order and
without a showing of probable cause. Ironically, it is often the legislature or judiciary which
first provides the authority that is later abused. Congress passed the PATRIOT Act giving the
Bush Administration and the Justice Department sweeping investigatory and enforcement
powers. There should be no doubt that these new investigative powers will be used.
Declarations of Government Approach. Attorney General John Ashcroft has not wavered from
the overarching language employed in an October, 2001 speech to the U.S. Conference of
Mayors.1 In that speech, just before the PATRIOT Act was passed by Congress, he pledged to
direct U.S. attorneys and FBI field offices in all 50 states to start seeking court orders for various
covert surveillance, as soon as the Act was signed by President Bush. These include “roving
wiretaps,” nationwide search warrants, and Internet monitoring, designed to conduct “airtight
surveillance” of terrorist networks. All of those authorities are now given to federal investi-
gators by the Act.
Ashcroft said in his speech, “Let the terrorists be warned. If you overstay your visas even
by one day, we will arrest you. If you violate a local law, we will...work to make sure that you are
put in jail and kept in custody as long as possible. We will use every available statute. We will
seek every prosecutorial advantage. We will use all our weapons within the law and under the
Constitution to protect life and enhance security for America.” He said, “Some will ask whether
a civilized nation, a nation of laws and not of men, can use the law to defend itself from
barbarians and remain civilized. Our answer unequivocally is yes. Yes, we will defend civili-
zation. And, yes, we will preserve the rule of law, because it is that which makes us civilized.”
Thus has the Justice Department thrown down the gauntlet.
FBI Director Robert S. Mueller III made similar remarks in a speech to the same group the
day before Ashcroft’s pronouncements. There is no doubt at all that the FBI will use every single
authority given to it in the PATRIOT Act to conduct whatever investigations it deems
necessary.
Assurances by the Justice Department that all this does not run afoul of traditional
notions of constitutional due process must be viewed with suspicion. Those who believe that
officials of the Justice Department, sworn to uphold the Constitution, are unlikely to act

1. Dan Eggen, “Ashcroft Signals Strong New Tactics in Terrorism Fight,” The Washington Post, October
25, 2001. The article reported that by that date, 1,000 people nationwide had been arrested and detained in
connection with federal investigation of the September 11 attack, even though officials had acknowledged
even then that fewer than 10 of the detainees appear to have any connection to the attacks.

236
 Part V: The First Six Elements of a National Security State

improperly, need only recall the dozens of Justice Department and White House officials
indicted and convicted in the Watergate scandal in Richard Nixon’s administration. They
included the White House Chief of Staff, members of the White House counsel’s office, and the
Attorney General himself. Now, again, the foxes are watching the hen house. Yet even in
Congress, there are voices of full support for the use of these powers, such as military tribunals,
lest America appear to be soft on “terrorism.”
Interviews, Arrests, and Detentions. Soon after these new powers were given to federal investi-
gators came the reports that more than 1,000 persons had been seized by federal authorities as
part of their investigation into terrorism.1 As mentioned, the Justice Department has not and
still will not release the names of most of these individuals, or say where they are held, on what
charge they are held, or where they will be tried. It may get worse. Civil liberties organizations
have sued the Justice Department for this information because the Justice Department refuses
to release it. Those legal actions are essential to minimizing governmental secrecy, but their
success is likely to be mixed. Even the six- month reports to Congress by the Justice
Department required by the PATRIOT Act about detentions of aliens suspected of terrorism are
not required to include the names of the detainees, their charges, when they were arrested, or even where they are
being held. The PATRIOT Act does not require any such information.
Nevertheless, scattered reports indicate the abuses by federal officials of the tremen-
dously wide authority granted to them under the PATRIOT Act already have occurred, and are
likely to continue or even to worsen.2 A 28 year-old Pakistani gas station attendant was held
virtually incommunicado in Florida by federal authorities because he got his driver’s license
renewed at the same time and place that suspected terrorist plot leader Mohammed Atta
obtained his license.3 An Egyptian-born airline mechanic in St. Louis was arrested and charged
with violating his visa and held in a Missouri jail even though there is no direct evidence linking
him to terrorist activities and even though he passed a polygraph test. An Egyptian-born U.S.
citizen in Indiana was rousted from his house by federal agents along with seven other Muslim
men and flown in shackles to Chicago on a U.S. Marshall’s service jet.4 They were held for a
week before being released. Attention is being focused upon certain detention facilities,
including the Metropolitan Detention Center in New York, where according to reports some
aliens who were arrested but eventually released were held for weeks or months under extreme
conditions, sometimes including periods of solitary confinement, and without contact with
friends, family, or counsel. (For a more detailed review of the two reports from the Office of
Inspector General of the Justice Department on the treatment of terror suspect detainees at the
Metropolitan Detention Center, revealing serious administrative delays, violations of

1. The Washington Post, November 4, 2001.

2. For the following information, see Amy Goldstein (with others contributing), “A Deliberate
Strategy Of Disruption: Massive, Secretive Detention Effort Aimed Mainly At Preventing More Terror,” The
Washington Post, November 4, 2001. Other instances of investigative abuses by federal officials concerning
foreign nations, both before and after the PATRIOT Act, are described in James X. Dempsey and David
Cole, Terrorism and the Constitution: Sacrificing Civil Liberties in the Name of National Security (First Amendment
Foundation, Second Ed. January 2002).
3. The Washington Post, November 4, 2001.
4. See description of this incident in more detail in later discussion of national security state charac-
teristic 10: “Targeted Individuals or Groups.” The man was at his restaurant, the Crazy Tomato, making
spaghetti, when he was approached and arrested. For more on this, also see Part VI, fn. 57. Special Note: In
April 2003, the FBI issued a rare public apology for this investigation, admitting there was no credible
evidence to indicate the persons seized in the incident, including Crazy Tomato restaurant owner Tarek
Albasti, had any links to terrorism. See discussion at Part VI.

237
 No Greater Threat

regulations, and severe conditions of confinement, see Expanded Commentary for Characteristic No. 3
at the end of this Part.)
Muslims have been pulled out of line in airports while waiting to board planes and
charged by federal agents with terrorist activity. This includes a Palestinian and his son, both
U.S. citizens, who were detained in Houston on their way home from Florida, returning from a
trip to Mexico.1 An Egyptian antiques dealer in Arkansas made a plane reservation from the
same computer at a Kinko’s store in Florida as was used by one of the hijackers; he was picked
up and detained on immigration charges.
A Palestinian activist whose name appeared in an address book of a former personal
secretary to Osama bin Laden (and this former secretary later was convicted in the 1998
bombings of two U.S. embassies in Africa) was arrested in his home in Texas. He already was on
bond as part of a criminal investigation against him and was fighting deportation. Although he
agreed to be deported, law enforcement officials did not want to let him go and had held him in
detention.2
Even a non-Muslim, non-Arab American was accused of lying to a federal grand jury after
he tried to enter Israel with a friend who was carrying a letter that authorities claimed
described plans for a suicide attack. They were denied entry to Israel and forced to return to
New York. The letter was written by the younger brother of the friend. The brother is a student
at the University of Virginia in Charlottesville. Both brothers were held in jail for six weeks in
Alexandria as material witnesses until investigators were satisfied that the letter, although it
seemed to contain dangerous language, was benign and there was no plot and no ties to
terrorists.3
A seven-page confidential document filed by the Justice Department supposedly naming
the gas station attendant as a suspect and providing information justifying his arrest and
detention has not been disclosed. The same document is being used by federal prosecutors in
similar detention hearings across the country.
Under new PATRIOT Act provisions (see Title IV, §411 and §412) the Attorney General
can incarcerate or detain certain “certified” aliens suspected of terrorism nearly indefinitely, and
based upon mere suspicion. Detentions originally are limited to seven days but can continue for
much longer if deportation (“removal”) proceedings are initiated. Certain aliens deemed too
dangerous even for removal from the country can be held for six month periods at a time. The
Act limits review of these activities and also reduces judicial supervision of telephone and
Internet surveillance by law enforcement authorities not only in anti-terrorism investigations,
but also in certain other criminal investigations not directly related to terrorism. In a story that
made national headlines, the FBI attempted to round up and question thousands of Muslim
residents in Oregon, to “learn more” about “terrorist” activities. To their credit, Portland,
Oregon legal and law enforcement authorities refused to cooperate with this dragnet. Federal

1. See Washington Post article. Fathi Mustafa, 65, a Palestinian who had become a U.S. citizen, and his
son, Nacer, 29, who is a U.S. citizen, were accused of having altered passports. They were detained in
Houston for four days while on their way home to Florida from a trip to Mexico to buy leather goods. At the
Houston airport, they were pulled out of line by officials who said their passports were altered. The father
was released and allowed to return to Florida, but with a leg monitor to track his movements. The son has
an arrest record and was denied bail.
2. See Washington Post article describing situation of Palestinian activist Ghassan Dahduli, 41 years old,
who had lived in the United States for 23 years.
3. Associated Press, “American Lied to Grand Jury About Israel Trip, FBI Says,” The Baltimore Sun,
March 27, 2002. The one brother said that the problem was due to mistranslation of the letter. Once the
situation was finally cleared up, they were released — but after six weeks.

238
 Part V: The First Six Elements of a National Security State

authorities are seeking to detain or question thousands of Muslim college students, many here
on student visas. No doubt, they will be threatened with deportation if they do not talk.
Electronic Surveillance. The outcry previously heard when it was revealed that the FBI was
making use of a powerful “Carnivore” program to read private e-mails soon may be virtually
silenced. The use of such surveillance techniques will now go into high gear. The PATRIOT Act
specifically provides for limited judicial review of surveillance activity such as “trap and trace”
records revealing substantial information about private e-mail. There is virtually no judicial
supervision for such activity. As the sense of the threat continues, the activity will continue.
The PATRIOT Act also greatly increases the use to be made by federal law enforcement
agencies of intelligence information obtained or generated by other sources outside the United
States. What Americans do not often keep in mind is that information obtained by law enforcement officials
from outside sources is not subject to the “exclusionary rule” which renders inadmissible at a criminal trial
evidence improperly obtained by law enforcement officers through illegal search and seizure. Foreign evidence
therefore can be used at a trial of a suspected terrorist without concern for the effect of this
important rule.
This approach continues with the broadened investigations authorized by the PATRIOT
Act to be conducted under the Foreign Intelligence Surveillance Act, including broader powers
for the FISA court. Wiretap requests can be approved on a broader standard than before.
There may not have been a need for the PATRIOT Act to give greater powers to the FISA
Court. According to reports, available records indicate that since 1979 of 12,179 warrants
sought, 12,178 were granted and 1 denied. Between 1996 and 2000, out of 4,275 applications for
FISA warrants, 4,275 were granted. This includes 1,005 warrants for eavesdropping or covert
entries in 2000, which was double the figure for 1993. By comparison, last year only 480
warrants were issued by federal judges across the country in all criminal cases. The secrecy and
obscurity with which this Court operates also are factors in the increased secrecy of govern-
mental activity — another characteristic of the national security state.
Military Tribunals. By Military Order issued by President Bush on November 13, 2001, it was
declared that special military tribunals would be used to try certain persons who are not United
States citizens and who are charged with terrorist crimes, especially those who were members
of al-Qaida, or have planned, assisted, or engaged in, acts of international terrorism.1 In such
tribunals, access to counsel is limited, hearsay evidence is allowed. Evidence need only be
considered to have “probative value to a reasonable person”
to be admitted and considered. There is no “exclusionary rule” for evidence improperly seized
(assuming evidence even can be “improperly seized” anymore).2
Under the original military order, proceedings would be closed. Procedures limit a
defendant’s ability to confront evidence presented by the prosecution. Under the original order,
those tried by the tribunal could be convicted and sentenced to death by a two- thirds vote of

1. President Bush, Military Order, November 13, 2001. The military order refers to the necessity of
trying those suspected of “violations of the laws of war and other applicable laws,” suggesting that more
than just terrorist crimes could be subject to military tribunal if the charges involved non-U.S. citizens.
Military Order, 1(e).
2. Some precedent for this military tribunal process is claimed from the trial during World War II of
eight German saboteurs who reached United States shores in a U-boat. An attorney for the charged defen-
dants challenged the secret tribunal’s legality and said it amounted to martial law which could not be
imposed while federal courts were available. The Supreme Court unanimously acknowledged the extrajudi-
cial power of a President (in this case F.D.R.) who had a Congressional declaration of war. The military
tribunal convictions of the saboteurs were not disturbed. Ex parte Quirin, 317 U.S. 1 (1942). Six of the eight
were executed by electric chair. However, President Bush has no declaration of war similar to that which
Congress issued following Pearl Harbor.

239
 No Greater Threat

the panel. The tribunals do not even have to be held on U.S. soil.1 In the original government
descriptions of these tribunals, there was no appeal.
In a separate Justice Department rule also applicable to military tribunals and consti-
tuting an extreme violation of attorney-client privilege, conversations between the accused and
counsel can be used (and there need only be only “reasonable suspicion” that the conversation
between the attorney and client involves an act of terrorism or future act of terrorism for the
conversation to be monitored).2 It must be noted that this Justice Department rule applies to all
trials of suspected terrorists, even in federal courts.
After criticism of the military tribunal process, new rules were announced in April, 2002.
Under these new tribunal rules, conviction requires proof by reasonable doubt. The panel will
include three to seven officers (but these can be specially appointed by the President). The
defendant will have a right to counsel of his or her choice, and a military counsel will be
provided, free, although the defendant can employ private counsel. Secret evidence can be used,
but the defendant and counsel will be able to examine and challenge all evidence. Proceedings
are to be open to the press, although cameras would be barred. The proceedings will be closed if
classified information is presented.
Conviction could still be by a two-thirds vote, as would be any punishment aside from a
death sentence. A death sentence will require unanimous vote of the ruling panel. There will be
an opportunity for appeal, but to an internal three-judge panel, not to a federal court or to the
Supreme Court. One of the appeal panel members would be a military judge; the others could be
lawyers or experts specially appointed. There would be no further appeal. The President would
have the final word on what happened to the convicted person.
However, the other provisions of the Military Order for the tribunals would still apply.
The individual charged is to be detained by the Defense Department prior to and during the trial. The
detention is to be “at an appropriate location” (although that does not necessarily have to be
U.S. soil), treated humanely, afforded adequate facilities including food and water, and allowed
“free exercise of religion.” Yet the detention otherwise can be under conditions imposed by the
Defense Department. That could mean restrictions on visitors and all outside contact, including
restrictions on visits by counsel, restrictions as to reading material, and restrictions as to
interaction with any persons or fellow prisoners at the detention facility.
Also, this detention could be for any length of time. There is no legal challenge available
regarding it. By comparison, the PATRIOT Act in its severe Title IV provisions for mandatory
detentions of non-US citizens certified as terrorists, detention can only be for seven days before
criminal charges must be filed or other procedures begun. Also, the detention can be challenged

1. The situation also raised concern about how the detainees in Camp X-Ray at Guantanamo Bay
will be treated. Some may be brought to trial before the tribunals, some may be deported, and some might
be detained indefinitely. The Bush Administration continues to insist that standard Geneva Convention
rules for prisoners of war do not apply to the detainees. Rather, they are being held as illegal combatants in
a continuing conflict. Some standards of decency appear to prevail at Camp X-Ray, but there can only be
speculation over the interrogations methods being used against the prisoners, the length of confinement,
their ultimate fate, and other Government intentions regarding them. As of April, 2002, there were about
320 prisoners at Camp X-Ray and 244 in custody in Afghanistan. Detainees continue to be sent to the camp
from overseas in groups of as large as 34, on a consistent basis. As of late June 2002, the number of detainees
at Camp X-Ray had risen to 536.
2. This was part of a separate regulation issued by the Attorney General authorizing commu-
nications between some detainees and their attorneys 1, especially 501.3, issued October 30, 2001. It permits
the Attorney General, without a court order, to use communications with attorneys or their agents when it
may involve acts of terrorism. The rule applies to persons in federal custody, citizens and non-citizens. The
monitoring may be conducted in order to deter future acts of terrorism. (See discussion at Part VI, Fn. 54.)

240
 Part V: The First Six Elements of a National Security State

by habeas corpus or by administrative challenge to the State Department (every six months if the
detainee is held that long, on a belief that deportation (“removal”) procedures would be
inappropriate because the individual is considered too dangerous). Even these limited
procedures are nowhere found in the Military Order.1
There is no means of challenging the presidential determination to declare a person
subject to the military order, or the terms of the Defense Department detention. There is no
means to challenge the Defense Department’s decision as to the place, time, terms, and
conditions of the detention. The place of detention, for example, could be anywhere. The
PATRIOT Act may have done an end run around constitutional protections. The Military Order
avoids them altogether. Current procedures for military tribunals (miliary commissions) as
announced by the Defense Department, made some changes in prior procedures, such as
expressly incorporating the reasonable doubt standard and assigning defense counsel for
detainees — although that counsel will be a military officer — and allowing detainees to have
additional private counsel (although at the detainee’s own expense and subject to strict
restrictions). And recent court cases, including those from the Supreme Court, have given
detainees the opportunity to challenge their detention in a federal court, which, it would seem,
necessarily could include challenging the presidential determination making detainees subject
to the Military Order or declaring a detainee an “enemy combatant.” It not yet fully known how
willing federal courts will be to take up these challenges. This situation is still unfolding. For
additional discussion on military tribunals and the tribunal process, see Appendix 5-E, as part of this
Commentary
Critics of the tribunal had pointed out that even under military law, the Uniform Code of
Military Justice, trials are to be public, proof beyond a reasonable doubt is the standard for
conviction, and the accused can have an input in jury selection. There must also be unanimity
among the jurors for a death sentence to be imposed, and there is a right to appeal. The original
military tribunal process was so extreme that even other nations holding possible September 11
suspects declined to turn them over to the military tribunal process.2 Other critics have called it
administrative overkill that will not provide additional security.3
Especially cogent and sharp criticism of military tribunals has come from civil liberties
organizations such as Amnesty International, the American Civil Liberties Union, and the
Center for Constitutional Rights.4 An analysis of the tribunals by the CCR has called the
military tribunal order “unprecedented” and a “radical departure” from key constitutional
guarantees.5 The CCR analysis calls military tribunal order “only a small piece of what is
quickly becoming the most sweeping and sustained governmental efforts to investigate” people
living in this country since the McCarthy era.

1. It already has been noted that habeas corpus is not what it used to be in the federal court system.
However, it is a means of challenging detention which plainly is not available for military tribunals.
2. Opinion, William Safire, “Bush Brings Back Dark Ages of Military Justice” November 28, 2001.
3. Opinion, William Safire, “Seizing Dictatorial Power,” November 15, 2001 (calling the military
tribunals, “military kangaroo courts”).
4. One critic said that the original military tribunal order releases the tribunal “from any duty to
follow the Constitution, the Federal Rules of Evidence or the Uniform Code of Military Justice.” The critic
also questioned whether the President has the constitutional authority to create any court, since establish-
ment of any court aside from the Supreme Court, and a federal judicial system, is placed in Congress alone
by Article III of the Constitution (and under Article I for courts governing military forces). Christopher H.
Pyle, “Tribunal Myths Debunked” (December 16, 2001).
5. Barbara Olshansky, Esq., American Justice on Trial: Who Loses in the Case of Military Tribunals? Posted on
CCR website: www.ccr-ny.org.

241
 Although the tribunal can try only non-United States citizens, there is no accounting for
whether it can apply to someone whose citizenship is in doubt or is in legal transition.
Government officials may even be attempting to bring an American citizen into the scope of a
military tribunal by declaring the person an “enemy combatant”.1 Already these situations are
occurring. Of particular note, on commentator has observed that “this country has never
accepted the principle that only citizens are entitled to the benefits of our constitutional
guarantees” when facing criminal prosecution. The Supreme Court has applied due process
guarantees to immigrants in several decisions.2
It would also appear that a range of charges could be subject to tribunal trial. Non-
citizens charged not with terrorist acts themselves but with harboring or supporting a terrorist
could be tried by the tribunal. Those charged with “international terrorism” can also be tried,
but that term is not well defined in the tribunal order. Using the PATRIOT Act definitions of
the federal crime of terrorism, this could be a wide range of acts.3 The definition in the Anti
Terrorism and Effective Death Penalty Act of 1996 is also very broad.
At a trial, with a wide range of evidence allowed, a confession could be admitted even if it
were obtained under conditions of duress, which is a violation of the Fourth and Fifth Amendment.
Nowhere in recent American jurisprudence have coerced confessions knowingly been
permitted to provide the evidence for conviction.
Another Fifth Amendment question is whether double jeopardy principles will apply to
military tribunals — in either direction. If a suspected terrorist is tried in federal court but
acquitted, it is possible that the same person can be tried before a tribunal on the same charges.
The reverse situation could occur, as well. There is also the Sixth Amendment requirement of
speedy trial. The Military Order does not mention how long a person can be detained before
being tried.

1. In a telling story, as of April, 2002, the United States was considering how to handle the case of a
prisoner captured in the war in Afghanistan, especially as to the military tribunal, because the prisoner was
born in the United States. Laura Sullivan, “U.S. At Loss On How To Handle Detainee,” The Baltimore Sun,
April 22, 2002, p. A1.
2. Wong Wing v. United States, 163 U.S. 228 (1896) and Zadvydas v. Davis, 121 S.Ct. 2491 (2001). The Court
in Zadvydas noted that once an alien enters the United States, “the legal circumstance changes, for the Due
Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence
here is lawful, unlawful, temporary, or permanent.” 121 S.Ct. at 2500, citing, e.g., Plyler v. Doe, 457 U.S. 202
(1982); Matthews v. Diaz, 426 U.S. 67 (1976), and Yick Wo v. Hopkins, 118 U.S. 356 (1886). The Court also noted
that even the “plenary power” of Congress to establish immigration law is subject to “important constitu-
tional limitations.” 121 S.Ct. at 2501, citing INS v. Chada, 462 U.S. 919 (1983). The Court did indicate,
however, that a different situation might be presented as to “terrorism or other special circumstances where
special arguments might be made for forms of preventive detention and for heightened deference to the
judgments of the political branches with respect to matters of national security.”
3. See New York Times News Service, “New Policy On Tribunals Considered,” The Baltimore Sun,
April 21, 2002, at 11A. The story quotes United States officials as considering modifying the basis for trial
before the tribunal, and not requiring evidence of war crimes. “The new approach would make it an offense
to have been a senior member of an al-Qaida unit that was involved in any of the regular crimes of war, such
as mistreatment of civilians.” The shift has been brought about by lack of information being obtained in the
interrogation of prisoners at Camp X-Ray. However, there were indications that recently-captured Abu
Zubaydah, believed to be the director of operations for al-Qaida which would make him the highest ranking
al-Qaida official in United States custody, would be an classic candidate for tribunal trial. (As of this
writing, there are yet to be reports of a proceeding conducted under the presently-declared military
tribunal.) [This continues to be the case, as of late 2004. Although detainees now have been at Guantanamo
Bay/Camp Delta since early 2002, not one military commission proceeding of a detainee there has yet been
conducted from start to finish.]
 Part V: The First Six Elements of a National Security State

An additional complication to a fair trial is that the panel members are not independent,
but will be comprised of military officers, who also report to the Secretary of their respective
armed services and ultimately to the Secretary of Defense. In addition, the Military Order
specifically states that the President has the final decision in tribunal cases, which indicates
that the President could reverse a decision of the tribunal as to conviction or sentence. One
analysis says, “The vesting of such authority in the President is so utterly inconsistent with the
bedrock principles of American democracy that no argument can be made in support of such a
grant of power.”1 And, military tribunals, if they validly existed in any point in American legal
history, ordinarily were not used to try offenses committed by civilians.All in all, the Military
Order makes no express reference to any of the classic Fourth, Fifth, and Sixth Amendment
protections afforded to any criminal defendant anywhere in the American criminal justice
system.2 The Military Order says that a person before the tribunal is to receive a “full and fair”
trial. But what a full and fair trial is, in these conditions, remains to be seen. “With the overt
goal of expediency, and the covert objective of vengeance, the Military Order deliberately
sacrifices those constitutional protections that are intended to prevent the conviction and
punishment of the innocent.”
There is no sufficient explanation for this dramatic departure from long-established
standards of criminal justice or why immigrants would be denied basic rights of due process
and fairness in criminal trials that the Supreme Court has stated applies to all individuals
within the United States. One analysis says, “Our legal system has never sanctioned the vesting
of such unfettered discretion in any single branch of government, let alone in a single official.”
Further, there is some question as to the legal precedent for a military tribunal or the
constitutional authority of the President even to appoint a military tribunal where there is no
declaration of war or articles of war. The President’s role as Commander in Chief does not
extend to establishing any courts of any kind — the Constitution grants that power solely to
Congress. The Congressional Joint Resolution Authorizing the Use of Military Force for the
war in Afghanistan3 grants the President the power to use “all necessary and appropriate force”
against nations, organizations or persons involved in the September 11 attacks and to prevent
future acts of terrorism against the United States, but grants no authority to establish any
court. The Uniform Code of Military Justice also cannot create such constitutional authority.4
Finally, the World War II Supreme Court opinion consistently invoked by federal officials as
precedent for this military tribunal was decided under vastly different circumstances, including
the existence of a Congressional declaration of war.5

1. Barbara Olshansky, Center for Constitutional Rights, analysis of military tribunal, at Part II.1.
2. See Barbara Olshansky, Center for Constitutional Rights analysis and also, Opinion, Jonathan
Turley, “Military Tribunal Rules Put Our Values To Test,” The Baltimore Sun, March 25, 2002. Mr. Turley
said, criticizing the revised tribunal rules, “Mr. Bush is certainly correct that these individuals do not share
our values. The question, however, is whether we agree on those values. As a people, we are defined by our
Constitution and its values. The most important principle is the separation of powers that creates checks
and balances between the branches. Yet the president is claiming the right to create not only his own court
system but his own prison system outside our borders.” He continued, “The legitimacy of the tribunals
cannot rest on either our faith in Mr. Bush or our hatred of these men. In the end, it is, as the president
correctly noted, all about our values.” Mr. Turley is a constitutional law scholar at George Washington
University and has served as counsel in national security cases.
3. P.L. 107-40.
4. See CCR analysis, noting, “Neither Section 821 nor Section 836 of the Uniform Code of Military
Justice authorizes the use of secret military tribunals by any agency or branch of government.” And the
analysis notes that the form, extent of power, and conditions of trial and evidence that will apply to the
tribunal are “entirely inconsistent with the due process requirements” in the Uniform Code of Military
Justice.

243
 No Greater Threat

The military tribunal also represents a potential breach of international law. If the al-
Qaida members are not combatants in a war, as the Defense Department insists (regarding their
treatment at Camp X-Ray), then they are not subject to military jurisdiction. If they are
combatants in a war between nations or sovereign groups, then they are prisoners of war and
are entitled to the protections of the Geneva Convention.
The Military Order contravenes several provisions of the International Covenant on Civil
and Political Rights (ratified by the United States in 1992 and therefore a treaty having the
status as the supreme law of the land under the Constitution). The ICCPR requires that proper
treatment and due process be given to anyone detained by a state. If a state is going to depart
from those rights, it must inform the United Nations, explain the reasons, and declare when the
departure will end — none of which has been done by the United States. The Military Order
contravenes ICCPR Article 9 (guarantee of liberty and security of the person) and Article 14
(guarantees of due process and fair and public hearing by an impartial tribunal).
In addition, the Military Order places the United States in a difficult foreign policy
provision given that the United States has criticized other nations utilizing this sort of
tribunals, like China, Egypt, and Peru. The State Department consistently has criticized other
nations for their use of military tribunals, so “none of the justifications it asserts now” can
support the need for “such a dramatic departure from constitutional guarantees.”
Congressional hearings in late November and early December 2001 by the Senate
Judiciary Committee into the Bush’s Administration’s announcement of secret military
tribunals to try suspected “terrorists” made it clear that Justice Department officials intend to
move forward with these tribunals and to make no apologies about it. Many members of the
Senate Judiciary Committee were outraged at the Military Tribunal Order, especially in its
original form.1 Yet there is little which Congress can do to invalidate the tribunal. Hopefully,
the matter will soon come before the Supreme Court.
The Administration’s insistence on keeping the prosecution of terrorist suspects to itself
is also manifest in the treatment in May and June of 2002 of Jose Padilla (also known as
Abdullah al Muhajir), the “terrorist” arrested in Chicago and who was suspected of attempting
to explode a “dirty bomb” which would spread radioactive material. Although he is a U.S.
citizen, he had been locked away in a Navy brig in South Carolina since his arrest, to date not
charged with a crime (and it is now unclear if there is actual evidence that he had access to
material to make a “dirty bomb”), and not allowed to speak with his attorney. Government
authorities seem have no immediate plans to make a case against him but no plans to let him go.
Another individual supposedly linked to the “dirty bomb” plot was arrested in Florida and also
is being held in the Navy brig in South Carolina.2 Mr. Padilla has been deemed an “enemy
combatant” and government officials now contend that, therefore, he can be held without
charge or trial, until the “conflict” is over — which could mean until “war on terrorism” is over.
Yet, especially because Mr. Padilla is a U.S. citizen, there is no statute or constitutional
provision allowing the government to take that action, even in Title IV of the PATRIOT Act,

5. See the discussion of the Nazi saboteurs and the Supreme Court case of Ex parte Quirin. The Barbara
Olshansky/Center for Constitutional Rights analysis also notes that this Supreme Court decision has since
come under strong criticism and is “widely recognized as an abysmal model of fairness and justice.” Histo-
rians have reached a consensus that 1942 tribunals were flawed and the fates of those tried “were sealed
long before” the trials were held. These tribunals “should not be the model” for how any person is to be tried
for any offenses.
1. The supposedly relaxed regulations modifying the Military Order have come under criticism,
including statements from Cong. John Conyers, Jr. (of the Congressional Black Caucus and ranking Demo-
crat on the House Judiciary Committee).

244
 Part V: The First Six Elements of a National Security State

regardless of any accusation against him no matter how extreme. This kind of government
conduct underscores the extreme and immediate concern that well- established constitutional
protections are being cast aside to make progress in the war on terrorism.1 (Of course, the
Supreme Court has taken up this matter and has ruled that while the United States
government, through the Executive as Commander-in-Chief, indeed can hold a United States
citizen as an “enemy combatant” under certain circumstances, the government’s decision to do
so is subject to court review. See discussion of the Supreme Court anti-terrorism cases, issued
in June, 2004, in appendices following this Part.)
Not since the days of the Star Chamber in England 350 years ago (especially 1515- 1529,
until it was abolished by Parliament in 1641) has a government exercised such singular,
sweeping, unchallenged, and overwhelming authority, even unto a sentence of death. Justice
Department officials such as Assistant Attorney General Michael Chertoff contended at
congressional hearings that these courts meet constitutional guarantees of due process.
Attorney General John Ashcroft has been saying the same thing in his testimony.
Any person in the United States accused of “terrorism,” especially if that person is not
born in this country and most especially if that person is Middle Eastern, is under serious threat
of being arrested, charged, and tried in this manner. Given the PATRIOT Act’s broad definition
of both domestic terrorism and the federal crime of terrorism, and given also that support of
terrorism or harboring a terrorist are additional crimes relating to terrorism itself, any range or
number of charges is possible. If arrested, such a person might not be seen for quite a long time.
A foreign national residing in the United States, even on a valid visa, understandably would
have grave cause for concern. In fact, there was a reference by one government figure to bringing
back the detention policy of the 1940s and there have been other statements about government
authority to hold indefinitely an “enemy combatant.” These comments have not been publicly
disavowed by the Justice Department or by the White House.
On the international scene, in a distressing development, in August, 2004, the Court of
Appeals in England decided that under British law, evidence such as a confession obtained by
coercion, or even torture, could be admitted at a trial against that person, in a terrorism case.
This appears to be the first time that a British court has so ruled. In modern times, not even in
the darkest days of the conflict in Northern Ireland have British courts been so willing to curtail
civil liberties in this manner, at least not quite so publicly.

2. See Manuel Roig-Franzia, “Muslim Linked to ‘Dirty Bomb’ Suspect is Held,” The Washington Post,
June 15, 2002, and “U.S. Arrests A Friend of Bomb Suspect,” The Baltimore Sun, June 15, 2002. The suspect,
Adham Hassoun, was one of the leaders of a mosque in Broward County, Florida. He had lived in the United
States for 13 years. He also is supposedly linked to a Muslim charity, Benevolence International Foundation,
which according to government authorities is connected to al-Qaida. Hassoun was arrested by the South
Florida Joint Terrorism Task Force, which includes local FBI, INS, and other law enforcement. According to
the articles, Hassoun’s sister said the family has no idea why he was arrested, has been given no information,
and he has been allowed no visitors. The sister said, “Isn’t this America where you’re innocent until proven
guilty? Now it seems that you’re guilty until proven innocent.”
1. See Bob Herbert, “Isn’t Democracy Worth It?” New York Times, June 17, 2002, Opinion. According to
other reports, Padilla lived in Broward County from 1991 to 1998, converted to Islam there and left his wife
for Egypt in 1998. He then re-entered the United States. See, articles in June 11, 2002 papers, including Balti-
more Sun, “‘Dirty Bomb’ Plot Exposed,” p. 1A. The government declared Padilla to be an “enemy combatant”
who may be held indefinitely even though he is a United States citizen. And see article on same page, “U.S.
Faces Dilemma: How To Try Suspect — Military Tribunal Possible for `Enemy Combatant.’” Padilla was
arrested in Chicago, flown to New York, and was then handed over to military control. Although no charges
had yet been filed against Padilla, an unnamed Pentagon official said at the time of Padilla’s arrest that “We
can detain someone until an end of a conflict if he’s considered an enemy combatant.”

245
 No Greater Threat

As already indicated, there have been more developments in the situations of “enemy
combatants” (“unprivileged combatants” or “unlawful combatants”). Among them is the United
States Supreme Court case on “enemy combatants” which, although insisting on federal court
review of such designations especially if they involve United States citizens, yet did not declare
that it was improper or illegal for the Executive Branch (that is, the President acting as
Commander-in-Chief and utilizing the nation’s military forces) to seize and detain individuals,
even United States citizens, designated as “enemy combatants.” Nor did the Supreme Court
place any strict limit on the potential length of any such detention. (For more on “enemy
combatants” and the Supreme Court case on the issue, see Appendix 5- D).
A clear illustration of the increasing importance of the judiciary in these crucial times —
which certainly will include federal court interpretation and implementation of the PATRIOT
Act — was provided in August, 2002 when a federal district court ruled on legal actions
concerning September 11 detainees and declared that the government must release names and
other information of all detainees, including those still held by the Justice Department and INS.
The 47-page decision issued in early August by United States District Judge Gladys Kessler was
a stinging critique of government stonewalling on this issue, and was praised by advocacy
groups and the press. As of that time, nearly 150 of the more than 1,000 arrested and detained by
the government following September 11 were still being held. Some had been released, some
deported. The government was given 15 days to comply and to release all names, or show why a
name cannot be released because the individual is a material witness in an ongoing investi-
gation. Nevertheless, as of the end of August, the Justice Department had declared that it
cannot comply with the order in the interests of national security, and requested a stay of the
order pending appeal. However, that decision was reversed, on the government’s appeal, by the
United States Court of Appeals for the District of Columbia Circuit. For a brief discussion about
that decision, see the Expanded Commentary for this Characteristic, appearing at the end of this Part
Two other decisions at about this same time represent further encouraging developments
in this critical area of judicial review, while also indicating the extent to which the government
intends to proceed as it wishes, regardless of court rulings. Clearly, battle lines are being drawn.
The United States Court of Appeals for the Sixth Circuit declared in a decision in late
August, 2002, that deportation hearings cannot be held in secret. The situation was a
deportation proceeding against Rabih Haddad, who was arrested on December 14, 2001 on a
visa violation as part of a government crackdown on his 10 year-old Global Relief Foundation,
which supposedly is now suspected of sending money to terrorists (a further discussion of this
and related government action appears elsewhere). No criminal charges were filed against
Haddad or the Foundation, and both have denied any involvement with terrorists. Still, Haddad
was subjected to several hearings held in Michigan regarding his visa violation and possible
deportation, all of which were closed. Haddad is challenging the deportation and seeking
political asylum. He was in detention pending the outcome of the hearings.
Civil liberties groups and local newspapers, as well as Rep. John Conyers (D-Mich) sued
to demand that the INS proceedings be open to the public. A United States district judge
(Nancy Edmunds) in April, 2002, sided with these groups and ruled the INS proceedings must
be public, stating that the INS and Justice Department could not constitutionally hold closed
hearings. Affirming that decision on the government’s appeal, the Sixth Circuit court said, “A
government operating in secrecy stands in complete opposition to the society envisioned by the
framers of our Constitution.” The decision also said, “Democracies die behind closed doors.”
The civil liberties groups praised the decision, saying it reaffirms the importance of
keeping the government in check. However, the Justice Department issued a statement
criticizing the decision. It said, “The Justice Department has an obligation to exercise all

246
 Part V: The First Six Elements of a National Security State

available options to disrupt and prevent terrorism within the bounds of the Constitution, and
we will review today’s opinion in light of our duty to protect the American people.” This means
that the Justice Department may seek to take the case to the Supreme Court. (Reported by the
Associated Press and appearing in ABCNews.com, August 27, 2002). That decision must be
compared with a decision from the United States Court of Appeals for the Third Circuit, on
appeal from a federal court decision in New Jersey, which allowed for closed immigration
hearings. For a brief discussion of that decision, see the Expanded Commentary for this Characteristic, at the
end of this Part.
The other decision came from the Foreign Intelligence Surveillance Act Court (FISA
Court). The opinion was part of FISA Court documentation released by the Senate Judiciary
Committee in August, 2002, a rare event. The decision indicates that the FISA court has had
misgivings for years about information it has received from federal agencies seeking FISA
surveillance orders. The decision noted the FBI has given false or incomplete information in 75
previous requests for such orders. The problem became so severe that the court convened a
special session in November 2000 to consider the “troubling number” of inaccurate FBI
affidavits, and one FBI agent was barred from submitting further warrant requests.
That opinion also appears to represent a rejection by the FISA Court of more recent
Justice Department’s statements that since the PATRIOT Act, FISA can be used for “primarily
for a law enforcement purpose.” That approach would fundamentally change how FISA and its
relaxed standards for surveillance and searches are to be used, which supposedly is only for
surveillance of suspect foreign nationals rather than for prosecution — that is, “law
enforcement.” As already described, the PATRIOT Act now allows FISA search orders to be
issued if foreign intelligence is merely “a significant purpose” of the investigation, which in itself
is a major shift. If the Justice Department wants to take the issue farther — it would seem to be
an end-run around the Fourth Amendment, since stricter Fourth Amendment requirements do
not apply to FISA warrants solely due to FISA’s unique status restricted to surveillance of
foreign national — standard criminal prosecutions supposedly not being the ultimate objective
of this surveillance.
The FISA court opinion makes it clear that the court itself is the final “arbiter” of how
FISA is to be used. It stated that FISA investigations cannot be “primarily for a law enforcement
purpose.” While not expressly overruling the PATRIOT Act’s amendments to FISA, the opinion
reasserts the line between FISA’s use for surveillance versus law enforcement.
However, the Justice Department also issued a statement criticizing this decision, saying
the ruling “limits our ability” to conduct surveillance to “protect national security.” The Justice
Department indicated it may appeal, which would mark the first time it has appealed a FISA
court ruling. It said reforms have been initiated to correct any problems of incomplete or false
information in FISA warrant requests. (From reports, including story by Eric Lichtblau and
Josh Meyer in the Los Angeles Times, August 23, 2002, and article by Jennifer Van Bergen in
truthout.org, August 25, 2002). This decision was reversed on appeal. In a rare opinion from a
review court called the Foreign Intelligence Surveillance Act Court of Review, the initial FISA
Court decision was overruled. Not only are the FBI guidelines and expected authorities
appropriate, but also the FISA Review Court found that these authorities in the PATRIOT Act
are constitutional. The Court, in addition, decided that information obtained from these kinds
of investigations can be used in standard criminal cases. This is a substantial change in the
potential for use to be made of this surveillance information. Because civil liberties groups were
not “parties” to these FISA Court decisions, these groups could not seek further review by the
Supreme Court and so the decision was not further appealed. (For a brief discussion of that decision,
see the Expanded Commentary for this Characteristic, at the end of this Part).

247
 No Greater Threat

It is now very evident that the usual bantering in the legal system between the courts and
the government over particular statutes or policies, not unusual in such situations, may move
ominously toward open conflict and defiance. The time has passed for the judiciary to approve
and uphold questionable practices and statutes wholesale, under time-worn banners of judicial
deference to legislative action and judicial regard for government agency conduct. To the extent
the judiciary can be involved in the unfolding events of the next several years, it must be
involved, and it must stand firm.

***
Comment at Close of 2004
On this characteristic of the role of judiciary and executive treatment of suspects, except for
Characteristic No. 6 (resources called to service against security threat) and Characteristic No.
9 (wartime mentality and permanent war economy), for no single characteristic have “war on
terrorism” developments since mid- 2002 been more frequent, far-ranging, varied, and dramatic.
Yet, unfortunately, "standing firm" does not describe the overall approach of federal courts
when reviewing government activity in the "war on terrorism." Many judicial decisions still
favor the government, with certain notable standouts such as recent federal district court
rulings finding unconstitutional certain portions of the PATRIOT Act ,and the Supreme Court’s
anti-terrorism decisions of June, 2004 although those rulings did not go as far as civil liberties
groups would have wished. (See Appendix 5-C and 5-D at the end of this Part.)
The Supreme Court, in its "war on terrorism" decisions:
ruled that federal courts have jurisdiction to consider legal challenges by or on behalf of
Guantanamo Bay/ Camp Delta detainees,
decided that although the Executive Branch can declare persons, even U.S. citizens, as
“enemy combatants,” courts can review challenges to the government’s evidence, concerning
any U.S. citizens so treated, in a proceeding which must meet basic due process standards (but
government evidence is entitled to a presumption of correctness and the court’s review could be
similar to a military tribunal), and
decided that a legal challenge to “enemy combatant” status should be filed in the federal
district court where that person is held.
So far, the Supreme Court has not considered a case on the constitutionality of the
PATRIOT Act.
Further reviewing the role of the judiciary, decisions of federal appeals courts which have
considered other aspects of the “war on terrorism” have often favored the government. These
include:
— the Third Circuit allowed for closed immigration hearings (although a Sixth Circuit
decision came to the opposite conclusion). This means secret immigration or deportation hearings.
— the District of Columbia Circuit ruled that the government can refuse a Freedom of
Information Act request for names or other information of detainees, chiefly foreign nationals,
seized on suspicion of terrorist activities. This means secret arrests. (The Supreme Court declined
to review that decision).
— the Seventh Circuit permitted use of classified evidence in a proceeding involving
terrorist financing. This means secret evidence.
— the Foreign Intelligence Surveillance Act Court of Review affirmed new Justice
Department guidelines under expanded authorities of PATRIOT Act Title II, declared the
PATRIOT Act constitutional, and in an unprecedented determination contrary to prior rulings
from many federal courts, declared that information obtained through FISA investigations can

248
 Part V: The First Six Elements of a National Security State

be used in standard criminal cases. This means secret information. (See also Comment for 2004 at
the end of Part II and Part III).
By contrast, federal district courts, in separate decisions in 2004 by courts on different
sides of the country, struck at two different portions of the PATRIOT Act. A January, 2004
decision by a federal court in California found “material support” provisions of Title IV
unconstitutional. An October, 2004 decision by a federal court in New York struck down a
provision in Title II authorizing “national security letters” (allowing the FBI to obtain
information without search warrant requirements) which had been served upon an Internet
service provider to obtain information about Internet customers. (More on this in the Expanded
Commentary).
In executive treatment of suspects, there is an entire list of developments:
— Continued detentions at Guantanamo Bay, military “status hearings” for detainees,
possible beginning of military commission trials, and revelations over abuse of Camp Delta
prisoners. (For a treatment of the Guantanamo Bay situation, and of military tribunals and Administration
regulations on the tribunal process, see new Appendix 5-E and Appendix 5-F ).
(Prisoner abuse concerns certainly also include ongoing scandals of mistreatment by
American forces or by American contract security personnel, of detainees in Afghanistan and
Iraqi especially at the Abu Ghraib prison. The impact of these revelations cannot be ignored.
However, because these stories are still developing, widely reported, and have been the subject
of extensive commentary in broadcast news, newspapers, periodicals, books, and Internet
postings, and since the present focus is on domestic developments, that situation is mentioned
here in general.1)
— Further “enemy combatants” activities.
— Increased use of material witness warrants.
— Increase use of national security letters.
— Reports on treatment of detainees held at the Metropolitan Detention Center in New
York during the “roundups” of late 2001 and early 2002, chiefly described in two revealing
reports from the Office of Inspector General of the Justice Department.
— “Extraordinary rendition” or "rendition" where U.S. authorities deport or transport
terrorism suspects to countries where they likely will be tortured or mistreated by authorities,
then make use of information obtained.
— CIA detention facilities concealed not only from general public knowledge but also
from international agencies such as the Red Cross.
— Aa memorandum circulated within the Administration suggesting that for terrorism
suspects, the U.S. government need not strictly abide by international standards on torture and
treatment of prisoners.
— General increased detention secrecy.
(For a review of these and other developments see Expanded Commentary for Charac-
teristic No. 3, at the end of this Part).

1. For some of these reports, see, e.g., Jackson Diehl, “Officers’ Unheroic Example,” The Washington
Post, July 19, 2004, and Sumara Chatterjee, “Republicans Aren’t Pushing to Conduct Hearings on Iraqi Pris-
oner Abuse,” Knight Ridder, July 15, 2004. The Knight Ridder story quoted Sen. John McCain (R- AZ), a
former Navy pilot in Vietnam who was held captive and tortured for five years as a prisoner of war, saying,
“I have a hundred questions. Starting with, where does this go in the chain of command?” One report noted
that a class action racketeering lawsuit had been filed against two contract security and interrogation firms,
Titan Corporation of San Diego, California and CACI International of Arlington, Virginia, who allegedly are
involved in the abuse scandals. Both companies have said the allegations are false. See, Associated Press,
“Torture Memos Exempted al-Qaida,” June 10, 2004.

249
 No Greater Threat

***

4. SECRECY OF RULING AUTHORITY AND MOMENTUM OF THREAT

A national security state cannot long survive in the light of public scrutiny. The inner
workings of government agencies which curtail civil liberties or issue extraordinary directives
cannot be subject to general review if the national security state is to maintain its claim to
legitimacy and its hold on public concentration. The ruling authority must reserve to itself to
decide what is a threat and how to respond, without interference. It must also find ways to
increase or maintain the sense of danger and threat to security felt by the public, while at the
same time seeming to address it.
The result is increased secrecy within the ruling authority. Few are privy to its inner
workings. Its documentation is quickly classified. Use or dissemination of this documentation
by non-authorized personnel is a crime. In circular fashion, this secrecy is justified as itself
being in the interest of national security.
It is a self-fulfilling prophecy. If a threat to national security demands governmental
secrecy, but the government in secret must determine threats to national security before they
are announced to the public, the situation becomes a never-ending loop. The secrecy also allows
the government to maintain the image of continued terrorist threats both at home and abroad,
thus continuing to maintain the level of public anxiety and therefore further bolstering the
perceived need for government to take action against the threats. Already the government had
placed as many as 150 selected officials in bunkers in Maryland, Pennsylvania, Virginia and
elsewhere in three-month shifts “to make sure the government would keep1 operating in the
event of a terrorist attack on the capital.” Vice President Richard Cheney has often been in
undisclosed and secure locations since September 11 and is rarely in the same place as President
Bush at the same time. Members of the Joint Chiefs of Staff avoid appearing as a group. These
bunker plans also include the Supreme Court. Secure military command centers have been
placed at a higher state of
readiness. Locations of some of the emergency facilities and the names of those working at them
are not disclosed.
Secrecy is also being used at trials in federal courts of suspected terrorists or those
assisting them. The Seventh Circuit Court of Appeals recently approved the use of secret
evidence against an Islamic charity whose assets were frozen during terrorism investigations.
The Global Relief Foundation filed suit to regain control of its assets and an estimated 500,000
pages of records seized in a government raid.2
Secrecy Surrounding the Rationale for Afghanistan War and Further Military Actions. If
truth is the first casualty of war, truth fell quickly and fell hard as the U.S. initiated its war
against Afghanistan. Soon after the September 11 attacks, Bush issued an Executive Order
further restricting procedures for obtaining presidential records.3 The Bush administration also
said it would classify any presidential documentation having to do with investigation into

1. See Knight-Ridder News Service, “Bush Confirms Order To Activate ‘Shadow’ Government As
Safety,” The Baltimore Sun, March 2, 2002, p. 4A. The story confirmed that United States government officials
were reviewing older plans to put government officials in bunkers in the event of high terrorist threat. Cold
War facilities were being reexamined and upgraded. Stories of this shadow government also appeared in
The Plain Dealer in Cleveland, U.S. News and World Report, and The Washington Post.
2. National Digest, “Secret Evidence OK’d In Islamic Charity Case,” The Baltimore Sun, April 13, 2002.
3. Executive Order 13233, November 1, 2001, clarifying Presidential Records Act, 44 U.S.C. 2201-2207
and see 36 C.F.R. Part 1270.

250
 Part V: The First Six Elements of a National Security State

terrorism and its determination that Osama bin Laden, with the aid or assistance of the Taliban
government in Afghanistan, was behind the September 11 attacks. In statements about the
September 11 attacks, President Bush, Secretary of Defense Donald Rumsfeld, and Secretary of
State Colin Powell consistently have refused to make public the actual evidence placing bin
Laden at the helm of the September 11 tragedies (although all outward appearances appear to
support the claim and bin Laden’s support of terrorist activity against the United States is well
known).
There is also secrecy as to the purpose and objectives of the war, besides “finding” bin
Laden and “holding accountable” the Taliban. Even on this score, neither objective has been
met. Surely, these Muslim Taliban extremists have been removed as an effective political force
in Afghanistan and their government has fallen. Hundreds of Taliban are dead, hundreds more
are in hiding, and scores have been arrested — many detained at the new detention facility set
up at the United States Marine base in Guantanamo Bay, Cuba (“Camp X-Ray,” over the strong
objections of Cuba itself). But it is not over. The Taliban will be heard from again, if they
manage to survive the mountain-by-mountain scouring campaign now being undertaken by
United States forces. Hiding in the hills and biding their time is nothing new to these battle-
hardened and totally committed cadres, who see themselves as freedom fighters. As of August
2002, Osama bin Laden was still at large.
After weeks of war leaving an already devastated country in an even more desperate
situation (causing the new government, itself on the brink of financial collapse, to tour the
world seeking billions in reconstruction aid and to face numerous internal threats including, so
far, attempted coups and belligerent warlords), the Taliban have not been brought to justice or
held accountable, merely militarily defeated — something which no one except perhaps the
Taliban expected to be a difficult task for the most powerful military might on the planet. There
is the persistent military view that more is always needed. So, more is yet to come. In fact,
although the combat situation in Afghanistan has improved by late 2004, and major battles are
rare, the situation is by no means stable and the conflict is by no means over. Almost daily
reports describe a near-continuous state of terrorist incidents, countryside battles, attacks
upon United States soldiers and upon Afghan soldiers or militia allied with the United States,
military incursions into mountainous regions, and constant disputes between warlords many of
whom remain firmly in place. These are occurring even where the United States military has
claimed control, such as the capital of Kabul. Recently-held elections in Afghanistan have
provided some optimism, but it must be kept in mind that elections do not themselves create
democracy— Iran, for example, recently held elections and it cannot seriously be contended
that Iran is a democracy. Elections, instead, are the result of democracy.
Predictably, Secretary of Defense Donald Rumsfeld repeatedly has said that the war in
Afghanistan is not over, even though all major cities have been taken from the Taliban. Unfortu-
nately, he is more right than most people realize, given the history of armed resistance groups in
that country. The Taliban’s retreat from major cities does not mean the Taliban will cease to be
a political or military force to be reckoned with. The Soviets in their invasion of that country
seized all major cities and still had to withdraw after thousands of Soviet troops died trying to
keep those cities in Soviet control. The Taliban — when they were called the mujihadeen by the
West and supposedly were freedom fighters — have learned well from their Western trainers
and allies, from their own traditions, and from years of fighting in the hills. They may be gone
from the cities, but they are not gone from the conflict. The United States military indeed may
need to maintain momentum, but this also raises the question of how one brings the military
operation to a close and begins the social, political and economic rebuilding of that country.

251
 No Greater Threat

Now, the United States government must maintain momentum and continue the war-
fighting rhetoric. And so, the war must continue and even expand. The policy concepts behind
“low intensity conflict” are becoming more visible and direct.
President Bush has said unequivocally, in a White House speech on the six-month
anniversary of the September 11 attacks, that the war on terrorism will continue. He said, “The
terrorists despise other religions and have defiled their own, and they are determined to expand
the scale and scope of their murder.”1 Even before that six-month date, the Bush administration
was talking about widening the war, identifying nations as the “axis
of evil” (Iraq, Iran, and North Korea) and making direct military threats to other nations such as
Iraq.2
What Iraq has to do with the September 11 attacks supposedly also is a secret. European
allies in the Afghanistan war have stated they can find no hard evidence linking Saddam
Hussein to September 11.3 The CIA issued a report questioning whether Iraq had any
involvement in the attacks. It will matter little. Congress, once again, appears ready to comply
with Administration wishes. In December, 2001, the House voted 392-12 in favor of a resolution
(HJRes 75), which could open the way for expanded United States military activity in Iraq.4
Administration officials have made public statements that as many as 40 nations could face
United States military action for harboring terrorists.
There are various scenarios for a United States coordinated military assault upon Iraq.
One plan calls for a strategy of 50,000 troops attacking from Kurdish enclaves in northern Iraq
while another 50,000 advance from Kuwait and possibly Saudi Arabia under cover of heavy air
support. Another approach calls for commitment of 500,000 troops, similar in scale to the Gulf
War, but that plan has less support due to likely objections from populations in Saudi Arabia,
Jordan, and Egypt. At least one assessment for the Joint Chiefs was that 150,000 to 200,000
combat troops would be needed to guarantee success, and possibly twice that number in
support and logistical roles. The operational headquarters of the Third Army was moved to
Kuwait in mid-December 2001 to prepare for a possible Iraq military mission.5 While this much
is known about the plans to invade Iraq, the whys and wherefores of the plan, and the real
objectives, no doubt will be secret.6
Naturally, the war in Iraq did occur, with an invasion by United States-led “Coalition
Forces” on March 20, 2003, despite the fact that the United Nations declined to give Security

1. David L. Greene, “Terrorism Not At End, Bush Warns,” The Baltimore Sun, March 12, 2002, p. A1.
Bush also pledged training, aid, troops, and other assistance to other countries seeking to eliminate poten-
tial terrorists or terrorist groups within their borders.
2. Among the many stories, see New York Times News Service, “Powell Says U.S. Weighing Ouster
Of Iraq’s Hussein,” February 13, 2002.
3. Also, Wire Reports, “CIA Believes No Recent Iraqi Terrorism,” The Baltimore Sun, February 6, 2002.
The story states, “The Central Intelligence Agency has no evidence that Iraq has engaged in terrorist opera-
tions against the United States in nearly a decade, and the agency is also convinced that Saddam Hussein
has not provided chemical or biological weapons to al-Qaida or related terrorist groups, according to
several U.S. intelligence officials.” The last Iraqi terrorist attempt was an assassination plot against Presi-
dent George Bush during a visit to Kuwait in 1993, which was disrupted before it could be attempted. The
reports discounted the significance of a meeting in Prague between one of the central figures in the
September 11 attacks, Mohammed Atta, and an Iraqi official.
4. According to reports, the House International Relations Committee drafted a resolution to autho-
rize attacks on Iraq. Although there was some debate, the resolution did not face stiff opposition. See the
collection of March 20, 2003, “First Strike” press reports appearing in national newspapers, on the initial
cruise missile and other attacks launched against targets in Iraq, as a prelude to the “invasion” on March 21
by thousands of US-led coalition forces.
5. Ian Bruce, “Pentagon Draws Up Plans for Invasion of Iraq,” The Herald (Scotland), January 31, 2002.

252
 Part V: The First Six Elements of a National Security State

Council approval to the military action by the United States and other “Coalition” forces. (See
in general, comment on the “Operation Iraqi Freedom” and aftermath in other aspects of this
2004 Commentary). The huge invasion action was marked by precision bombings and massive
troop movements. It was also marked by unprecedented worldwide protests.
Moving forward with quickly-dispatched resistance from an outmatched Iraqi military
and Republican Guard that commanded little or no air power, Coalition troops reached military
objectives in a matter of days. Baghdad fell in short order, on April 10, 2003, less than a month
from when the troop invasion began. Yet there was a severe price to be paid, not only in the lives
of American troops (nearly 150) but also in the lives of thousands of Iraqi soldiers and Iraqi
citizens.
The dictator Saddam Hussein and his Ba’ath party supporters were forced from power
(Hussein was captured in December, 2003). The Coalition forces declared military victory. But
the country remains in a ruin: cultural museums looted, infrastructure in shambles, oil wells at a
fraction of their previous capacity when they do function, highway and transportation systems
damaged, health and water systems on the brink, joblessness rampant, civil order shattered.
Efforts to establish a civil authority and rebuild Iraqi society are hampered by resistance from
various quarters and by continual deadly acts of sabotage, guerrilla fighting, and dramatic
actions designed to spread fear throughout the country such as the kidnapping and brutal
murders of hostages from various nationalities. American troops as well as those who
“cooperate” with them are targets of constant insurgent attacks. Whether and to what extent
the rebuilding effort can succeed, regardless of the Bush Administration’s determination,
remains a very open question.
The Bush Administration’s rationale for the Iraq war, and how “secret” that rationale is,
has become flashpoint of national debate. The “weapons of mass destruction” of nuclear,
chemical, or biological form, which the Administration insisted was an active and threatening
situation in Iraq in manufacture, storage, or capability (despite the absence of clear evidence
following a return to the country by UN inspectors), have not materialized. Iraqi interest or
effort to acquire nuclear weapons-grade material, as claimed by the Administration, has been
revealed as — to put it kindly — an exaggeration. Iraq’s military and security capabilities, while
fearsome enough to have kept dictator Hussein in power, were greatly reduced after the first
Gulf War and could not have dominated the Middle East. There never was any significant
connection between Saddam Hussein and Osama bin Laden, which would be evident from the
fact alone that the two figures do not share political, religious, or ideological views. Aside from
whatever value can be declared in deposing Hussein (a value that would be an argument for
invading a dozen other countries), the rationales posed by the Administration for the war are
finding little actual support in the record.

More has been mentioned about the Iraq situations, which seems to grow worse by the
day, in other 2004 commentary sections. Undoubtedly, the war was a primary focus of the 2004
Presidential campaign. Still, in all of the campaign war rhetoric, the United States has yet to
fully acknowledge that it is not the Coalition forces which must “win” the war in Iraq, but the

6. The United States is doing serious planning for an invasion of Iraq. Leaders of the two main
Kurdish parties in northern Iraq met in Cairo, Egypt with United States officials in April, 2002 to discuss
attempts to overthrow Saddam Hussein. Wire Reports, “Top 2 Kurdish Factions In Iraq Met With U.S. On
Hussein Ouster,” The Baltimore Sun, April 23, 2003, p. 9A. The story states that a London Arab language
newspaper reported that Kurdish representatives also met in Germany, near Berlin, the week before with
officials from the Pentagon, State Department, and the CIA. Further Administration moves in this direction
continue to occur.

253
 No Greater Threat

Iraqi people. On that score, regardless of the installation of a governing council and the
completion of a draft constitution, and upcoming elections scheduled for January 30, 2005, the
country does not appear anywhere near to declaring an end to internal conflict, so that
attention by all parties can turn to critical concerns of rebuilding a society torn since the 1950s
by a brutal dictatorship, three wars, minimal spending on social needs, religious infighting, and
a decade of economic sanctions. A country cannot be transformed overnight simply by placing a
constitution in one box and a collection of ballots in another.
The Defense Department itself is attempting to achieve its own foreign aid power, with
authority to spend millions of dollars on military assistance to foreign countries or to
“indigenous forces.” The program would involve $130 million, and was made part of President
Bush’s request for $14 billion in supplemental spending for the Department of Defense for FY
2002. Taking authority from the State Department, the Defense Department would have its
own parallel foreign security assistance or foreign aid program that it could manage as it wishes.
This authority would not be subject to the spending limits or other administrative restrictions
which are imposed on State Department foreign aid spending.
The Defense Department claims that the program is necessary as part of the global war on
terrorism. But the details of the spending would not be widely known. The proposal does not
require that the Defense Department get the approval of Congress before spending the money or
even notify Congress of expenditure details.1 In addition, U.S. troops are in specialized anti-
terrorist training missions in other countries, including the Philippines.2
There are consistent statements now of al-Qaida links to other nations, from the
Philippines where American troops are already in place, to Bosnia. Certainly other terrorist
groups will be identified by the Bush Administration as worthy of action.
The Bush administration and the newly-revived intelligence and military apparatus
which now is in firm control of the Administration’s image are out to rid the world of
“terrorism.” Again, information linking these nations, or groups operating in them, to Bin
Laden’s organization, will be deemed secret. But military activity will continue. Soon, Libya and
Syria will be on the hit list — they surely are among the 40 nations considered for further
United States military action.3 The extent of the involvement of the “axis of evil” nations in
September 11 will be a secret as well, but as mentioned, so far there is no hard evidence.
It is unknown whether Americans would give full support to a deliberate invasion of yet
another country on such a massive scale. Yet this continued momentum of the terrorist threat,
and continued statements by Bush Administration officials is definitive showing that the
Administration intends to continue the momentum of the terrorist threat. While there was
strong overall support by the American public for the Iraq invasion, and a surge of praise for the
victory over Hussein’s forces when Baghdad fell, more recent polls have revealed weariness
among the public over the continued occupation and the increasing difficulty in bringing the
country to a semblance of civil order. The “mission accomplished” announcement in May, 2003
by President George Bush on the deck of the USS Abraham Lincoln appears to have been

1. Bradley Graham, “Pentagon Seeks Own Foreign Aid Power,” The Washington Post. As of the time of
the story, Administration officials were consulting with committees in Congress on the proposal, but were
receiving resistance.
2. World Digest, “U.S. Anti-Terror Training in Philippines Ruled Legal,” The Baltimore Sun, April 12,
2002. The Philippine Supreme Court in a 10 to 3 decision found that the operations are legal but stated that
American troops cannot engage in combat. The exercises are directed against a Muslim extremist group
that the United States says has ties to al-Qaida.
3. At least as to Libya and its leader Muammar Gaddafi, the situation might be turning in another
direction. See Peter Slevin, “Bush White House Reconsidering Reagan’s ‘Evil Man’” March 11, 2002, p. A14

254
 Part V: The First Six Elements of a National Security State

premature. The insurgency has not abated even after the capture of Saddam Hussein in
December, 2003— when the United States was contending he was the impetus behind the
insurgency campaign and that his capture would mark the beginning of the end to it. Casualties
of United States and of other Coalition forces after President Bush’s “mission accomplished”
announcement, have surpassed those which occurred before it (and have now exceeded 1,000
American troop deaths and tens of thousands wounded), and casualty rates among Iraqis,
already in the tens of thousands, continue to climb (see www.iraqbodycount.org). Recent polls
indicate that the majority of Americans do not believe that removal of Saddam Hussein was
“worth it” in terms of commitment of American resources, funds, and lives in the ongoing
conflict. While this is not quite Vietnam, in current American political terms it is coming very
close.
Secret Surveillance Orders by Expanded FISA Court. Secrecy also is well protected in the FISA
Court, sitting in the sixth floor of the Department of Justice Building in DC.1 For years, in
obscurity, the FISA court has provided the judicial authority under that Act for special federal
investigative activity such as tapping phones, bugging rooms, and breaking into houses and
offices of suspected foreign terrorists. Now, as has been mentioned earlier and also in a review
of the PATRIOT Act, FISA surveillance warrants can be issued on less evidence than traditional
criminal wiretap warrants. A FISA surveillance warrant can be issued when foreign intelligence
is just “a significant” purpose and not “the” purpose of the investigation. A warrant can
continue for 120 days. Warrants can target a person, using any telephone number, instead of
being restricted to particular numbers named in the warrant itself.
With the PATRIOT Act and new government surveillance powers in action, FISA court
warrant activity is likely to escalate enormously. This may be why the PATRIOT Act increases
the number of FISA Court judges from seven to eleven, permanently. (Appointment of those
judges is by the Chief Justice of the Supreme Court, namely Chief Justice William Rehnquist,
not universally known for his liberal views.) Yet the FISA court was created as a means to rein
in the unfettered surveillance, electronic and otherwise, which had been conducted on
American citizens by the NSA and FBI. It has now come full circle.
The PATRIOT Act has other secrecy provisions. It gives the federal government to ability
to conduct secret searches, in anti-terrorism investigations and in routine criminal investi-
gations not related to terrorism. The definition of “terrorism” or “terrorist organization” in the
PATRIOT Act is so broad that the Government’s interpretation of that definition will have to
be accepted as fact by any reviewing court.
To complete the secrecy scenario, in a memo circulated to federal agencies, Attorney
General Ashcroft is urging government agencies to resist most Freedom of Information Act
requests.2 The memo asks the agencies to consider whether “institutional, commercial and
personal privacy interests could be implicated by disclosure of the information.” The memo
promises that the Justice Department will defend agency decisions to withhold information or
fail to response to an FOIA request, so long as the decision has a “sound legal basis.” There was a

1. Scott Shane, “Secret U.S. Court Handed New Power to Fight Terror,” Baltimore Sun, October 29,
2001. The story quotes David Cole, a law professor at Georgetown University, who said that since 1979, the
FISA considered 12,179 surveillance or warrant requests: 12,178 were approved and 1 denied. Last year alone,
the FISA court approved a record 1,005 warrants for eavesdropping and covert entries, twice the number
from 1993. This figure was more than double of all of the wiretap warrants issued by federal judges nation-
wide in all criminal cases in that year. The story also notes David L. Sobel, general counsel for the Electronic
Privacy Information Center, who said, “We’re likely to see an explosion in the number of foreign intelli-
gence surveillance authorizations.”
2. San Francisco Chronicle, January 6, editorial. This memorandum from Attorney General Ashcroft,
dated October 12, 2001, was circulated to the heads of all federal departments and agencies.

255
 No Greater Threat

similar report that President Bush invoked executive privilege to block a Congressional
subpoena exploring abuses in the Boston FBI office, resulting in uncharacteristic outbursts by
even Republican members of the committee.1
Continued Domestic Threat Assessments and Warnings.. The momentum continues on the
domestic front as well. The White House Office of Homeland Security, followed in turn by the
Department of Homeland Security, has issued a five-scale “warning system” for domestic
terrorist threat or attack assessment. The levels are: Low (green), Guarded (blue), Elevated
(yellow), High (orange), and Severe (red).2 The United States supposedly is in the “yellow”
stage of alert (which is “Elevated”).3 The country has been rated as being at that threat level
since the warning system was issued. To date, the national threat level has never fallen below
“yellow” and has been raised several times to “orange” including a recent period between
December, 2003 and January 2004. New York City, at “orange” since the color-coded threat
system has been in place, recently was the focus (along with Washington, DC) of further
security alerts in July and August, 2004 not to mention the extreme security measures
employed for the Republican National Convention there. (See also Expanded Commentary for this
characteristic at the end of this Part.)
Since September 11, there have been consistent statements from the Bush Administration
and OHS about terror threats within the United States: bridges, power supplies, transpor-
tation. On February 11 and 12, 2002, the Attorney General urged Americans to adopt “the
highest state of alert” in the search for those responsible for the attacks or those who may have
supported the attackers.4 Threat indications have even been made for banks and shopping
malls.5 There have been more recent announcements of potential attacks against federal
monuments, especially on national holidays. There have been other warnings about sea-based
attacks using underwater dive equipment which caused federal attention to be paid to some
scuba shops on the West Coast, a possible attack against water facilities, rail lines, synagogues,
and the potential use of small planes to carry out suicide attacks.6 Government officials

1. Glen Johnson, “Bush Halts Inquiry Of FBI And Stirs Up A Firestorm,” Boston Globe, December 14,
2001. The situation involves unrelated matters but indicated the Bush administration’s propensity to make
an end run around legal procedures or requirements. The House Government Reform Committee is looking
into the FBI’s use of confidential informants in an organized crime investigation, especially as to what the
FBI knew of the innocence of someone with supposed organized crime connections who was convicted and
spent 30 years in prison for a 1965 murder, and whose conviction was overturned after a judge concluded
that FBI agents failed to or deliberately did not reveal crucial information related to the case, in order to
protect an informant. In the Committee investigation, the Administration has invoked executive privilege
by refusing to hand over prosecutors’ memos in the criminal cases, which included an investigation of
campaign finance abuses. The article notes that Dan Burton (R-Ind.) chair of the Committee, reacted to the
Bush declaration of executive privilege at the beginning of a committee hearing on the investigation, by
telling a Justice Department official appearing before the Committee, “You tell the president there’s going
to be war between the president and this committee.” Rep. Burton added, “We’ve got a dictatorial president
and a Justice Department that does not want Congress involved” and said, “Your guy’s acting like he’s king.”
2. See Office of Homeland Security website, at www.whitehouse.gov/ homeland/. This is part of the
extensive Presidential Directive on Homeland Security - Homeland Security Presidential Directive-3. Under
the current “elevated” threat condition, there is to be increased surveillance of critical locations, coordina-
tion of emergency plans to be implemented when needed, assessments of the nature of any specific threat,
and implementation of any contingency plans. Under a “Severe” (red) threat condition, more serious action
is to be taken, including possible indefinite closing of selected public and government facilities deemed to
be particularly at risk.
3. See Dan Eggen and Bill Miller, “U.S. Told of More Possible Attacks,” The Washington Post, April 25,
2002, at A12.
4. Associated Press, “Ashcroft Urges `Highest State of Alert,” The Baltimore Sun, February 13, 2002, p.
3A.

256
 Part V: The First Six Elements of a National Security State

especially from the FBI continue to maintain that a terror attack is imminent, and the
Homeland Security terror threat assessment remains at “elevated.”1 The federal government will
be requiring terrorist attack assessment of other facilities such as chemical plants.2
While these warnings and assessments may have their purpose, so far no such terror
attack has occurred and it is unclear how to make a particular facility totally terror-proof
without encasing it in concrete. Eventually these messages may have effects not desired by the
agencies issuing them: the public may become too complacent to act on the real threat, or the
information may become confused and lost. Soon after the September 11 attacks, the
government issued threat warnings on October 12 and on October 29, placing security forces
and other personnel on the highest state of alert. The government claimed each time there was a
“credible threat” of a possible terrorist attack, although that evidence was not revealed.
***
Comment at Close of 2004
Even aside from the obvious events of military actions in Afghanistan and Iraq, the
characteristic of secrecy of the ruling authority and momentum of the threat has seen marked activity
indicating a continuum of advancement of this characteristic. Increased security and threat
momentum have been a constant focus, not only in Washington, DC and in New York which
are prime areas for greater security measures, but also due to heightened "alerts" such as alerts
between June and August, 2004 during the major political party national conventions — which
briefly added Boston, Massachusetts to the list of cities employing greatly heightened security.
A June 2004 security alert — prompted by information obtained from a supposed
terrorist hideout in Afghanistan (although how long the material was there was not known,
apparently it reflected alleged terrorist “surveillance” activity occurring years before of possible
terrorist targets in the United States) — resulted in visible police patrols and closed streets or
subway stops in New York and Washington, DC. In New York, some traffic was prohibited in
tunnels and identification was required before entering office buildings in the Wall Street area.
In DC, the Capitol building was under intense security, with 14 checkpoints set up around it,
and checkpoints for nearby government offices or sites. Federal officials reportedly were

5. Dan Eggen and Bill Muller, “U.S. Told of More Possible Attacks,” The Washington Post, April 25,
2002, at A.12. U.S. officials issued a warning in mid-April that banks and financial institutions could come
under attack. U.S. officials acknowledged in late April that shopping malls could be terrorist targets, but
did not issue an official warning. These actions supposedly were based on information supplied by Abu
Zubaida, a captured al-Qaida member and former military field director for bin Laden. Apparently, the
information about banks was specific and included an area of the country and sector of the economy, but
the information about shopping malls was too general to justify a warning. However, any information
supplied by this informant was being criticized by other officials as too vague and general and not credible.
6. See Associated Press, “FBI Warns of Attacks by Small Planes,” May 26, 2002. The small plane alert
was not specific, but the FBI said that its information indicated that “terrorists may still be interested in
using small general aviation aircraft for suicide attacks in the United States.” And see Associated Press,
“Jewish Community in Ottawa Warned,” May 25, 2002, that synagogue could be a terror target.
1. Associated Press, “Terror Attack Certain, Says FBI Director,” May 21, 2002. The article said that
FBI Director Robert S. Mueller III has remarked that “It is inevitable that suicide bombers like those who
have attacked Israeli restaurants and buses will strike the United States.” In a speech before the National
Association of District Attorneys, Mueller said that “There will be another terror attack” and “We will not
be able to stop it.” The article notes that Vice President Dick Cheney said the day before that “it was almost
a certainty that the United States would be attacked again by terrorists.”
2. Associated Press, “Assessment of Terror Risk to be Required of Facilities.” Administration plans
to step up assessment programs for chemical and water plants. June 7, 2002, reported June 8, 2002.

257
 No Greater Threat

considering even further security measures such as limiting commercial truck traffic and
fencing off sidewalks.
Another prime example was the extreme measures against protest activity at the 2004
Republican National Convention in New York City, in August. During that Convention, the
area around the Madison Square Garden convention site became a virtual armed camp.
Protestors, who in the main were non-violent and had permits, often were dealt with severely. A
protest bike rally down Broadway, on the weekend of the convention, eventually was broken up
by police, with hundreds arrested. Many protestors were rounded up and herded into holding
areas, in conditions so extreme that a federal district court soon ordered their immediate release
lest the City face escalating fines. Obviously, security officials worried less about those matters
than about any security threat posed by these protestors—which in itself reveals disturbing
government and police attitudes towards legitimate protest activity, not the least of which are
reacting without just basis and assigning guilt by association.
Secrecy also is rising, with continuing exception to the Freedom of Information Act by
statute or court ruling and with other secrecy measures. This characteristic must be carefully
watched.
(For a review of these and other developments, see Expanded Commentary for Charac-
teristic No. 4, at the end of this Part.)

***

5. MEDIA IN SERVICE OF THE STATE

Besides an independent judiciary, the other clear and crucial social impediment to a
national security state is an independent press. This is another aspect of avoiding scrutiny —
for a national security state to function freely, it cannot be expected to constantly and publicly
justify itself or its actions. It justification must come from its own claim to legitimacy and its
hold on the public attention by continually recapitulating the national security threat.
Americans might point with pride at the constant barrage of information spewing from
its 24-hour broadcast media, as if to show how dynamic the American press is. Unfortunately,
the fact that something is coming in a steady stream does not determine its quality. That is,
quantity is not quality, particularly in journalism. Despite the breadth of reporting, there is not
enough depth. Far from avoiding this characteristic of a national security state, notwith-
standing the size of the Fourth Estate in this country, America is perilously close to hosting a
fully supportive national television broadcast press, in near- total service to the state. A national
security state, if it arrived, would have little to fear from major network media.
More needs to be said of this. Network commercial television, cable news channels, and
newspaper chains have not been “independent,” in the best sense, for some time, for several
reasons. Reviewing the loss of independent national broadcast press in America since 19501
would run afield of the present subject. Just a few developments will be noted.Concentrated
National Broadcast and Print Media Ownership. Large corporations now own or control major
news and media outlets in this country: NBC is owned by General Electric, CBS is owned by
Westinghouse, and ABC is owned by Disney. Time Magazine and its other periodicals and news
services, covering People, Life, Sports Illustrated, Teen People, Fortune, Entertainment Weekly, Money and
others, are now owned by the enormous AOL/Time/ Warner media conglomerate, which also
owns CNN (which is to say, CNN, CNN- Headline News, CNN-International, and other spin-

1. For just such an authoritative analysis, see Roger P. Smith, The Other Face of Public TV: Censoring the
American Dream, Algora Publishing, 2002.

258
 Part V: The First Six Elements of a National Security State

off channels such as CNN specialty networks like those showing on televisions at airports).
Newsweek is owned by other corporate entities and produces programming linked to or shown
on, for example, MSNBC. USAToday is owned by Gannett. Fox News is owned by the 20th
Century Fox media conglomerate, which in turn is owned by Rupert Murdock’s mega-group,
News Corporation. Add to this the Hearst/Argyle, Knight-Ridder, Sinclair, and other national
chains of newspaper, television and radio.
Ownership of “basic” cable television (50 to 75 basic channels appearing in most cable
television lineups across the country), particularly the news channels, is similarly concentrated.
Perhaps 10 ownership entities manage or control a substantial percentage of the 50-channel
standard lineup of cable television channel content — not to mention the four major cable news
channels (CNN, CNN-Headline News, MS-NBC, FoxNews). Noting those already mentioned,
these entities include AOL/Time/Warner, News Corporation, Viacom, TCI/AT&T, HBO,
Discovery/TLC, A&E/History, CBS- Westinghouse, and Disney. Thus, a great amount of cable
content is coming from relatively few ownership sources. The vast bulk of commercial and cable
television content relevant to news and public affairs is the product of corporate conglom-
erates.1
Other cable channels, whether or not owned outright by these entities, do not produce
content relevant to news or public affairs. Some examples would be: American Movie Classics,
Outdoor Life, Animal Planet, Comedy Central, Cartoon, Nickelodeon/TV Land, Food Network,
HGTV, Lifetime, Style, Sci-Fi, Golf, E!, and ESPN and the shopping channels (HSN, QVC).
Then there are the religious-content channels, such as Trinity, Eternal Word Television
Network, and so on. Little more need be said of that content. Whatever exceptions exist
(Sundance, Odyssey, Oxygen, and even C-SPAN) are notable for their minority.
It is no better in the world of digital cable, which at the moment is overwhelmed by
sports and movie channels, many of them various versions of a given channel title (HBO1,
HBO2, HBO Family, HBO Comedy, etc.). Digital cable may offer more, but in terms of critical
social content, it is merely more of the same.
Consequently, with a few notable exceptions of specific reports presented from time to
time on some of the commercial network “info-tainment” or “documentary” programs (e.g.,
“Dateline,” “Nightline,” and “60 Minutes”), little consistent and informative content will come
from any of these sources to seriously criticize the government. There will be almost no
coverage which comprehensively and respectfully addresses the activities of dissenting organi-
zations and groups. That has been proven time and time again, as legitimate protest efforts are
mounted across the country, both small and large, only to be portrayed by national television
(when they are portrayed at all), as a collection of dreamers, kooks, or wild-eyed rock throwers.
Sameness of Content, No Consistent United Nations Reporting. An even deeper concern is the fact
that, given present trends in U.S. television news media over the past 20 years, there will
continue to be a vast desert of emptiness when it comes to coverage reflecting a comprehensive
understanding of international affairs, emphasizing the role of the United Nations and its
organizations, or placing America squarely in its place as a member of the community of
nations. For example, there is no consistent or intelligent coverage by American television
media of the United Nations. For all Americans know, little goes on at the UN except a Security

1. For a general description of some of the ownership or interest holdings in commercial and cable
television channels by large corporations and media conglomerates, see Appendix 5-B. The basic point to be
made is that most of the “independent” national broadcast commercial and cable television, not to mention
a good deal of the national radio and print press, is not as “independent” as it looks. Note: due to the swift-
ness by which some of these corporate changes, mergers, and shifts in holdings can occur, this information
is correct only as to general reference information accurate to Year 2000.

259
 No Greater Threat

Council meeting when the United States wants to pass a resolution, when the UN sends
peacekeeping troops somewhere, or when the President speaks to the UN General Assembly.
Yet the UN is a far-reaching organization with major offices in New York, London, Geneva,
Nairobi, and elsewhere. It has several large constituent bodies, numerous standing adminis-
trative committees, more than 120 nation members, and a permanent administration.
The UN does impressive work, given that it has a budget of about $1 billion (the UN basic
budget for the two years of 2000-2001 is $2.535 billion). This represents a tiny fraction of the
funds spent by its host nation, the United States, on its military alone (generally hovering
around $300 billion, not counting associated military-related spending elsewhere in the budget
such as the Veterans Administration). Even this is not the total of global military spending.
Also conspicuously absent from any regular coverage of world events by national
American commercial networks’ so-called “world news” is the World Court (International
Court of Justice). Sitting in the Netherlands, the World Court decides cases representing a
tremendous range of international matters, from fisheries controversies and border disputes
between nations to armed conflicts, human rights, and the legality of the use of weapons of
mass destruction.1 Yet, one could watch a whole year of national news from major American
commercial television networks and not know that the World Court exists.
In an increasingly global world, as nation states continue as they did in the 18th century
to struggle among themselves for position, influence, and dominance, the UN must play an
increased role. To encourage that development, a new age of information about the UN should
dawn for the citizenry of its host nation, the United States. So far, even with the interest in
global humanity that has come with the arrival of the millennium, that has not occurred.
Instead of congratulating itself for its comprehensive (and largely repetitious) war
coverage, the American media should hang its head in shame over the near-total blackout of
consistent information to the American public about the United Nations and its related
agencies. Even less information is available through American broadcast media on similar
agencies such as the Organization of American States, although the United States is the host
nation of that organization. Rather, America and its interests are paramount. Nothing else
really matters.
Given this distressing state of media affairs, the American press is already in lock step
with the U.S. government in a portrayal of the U.S. as the pre-eminent political, cultural,
economic, and moral force in the world. To the extent the portrayal is not true — and it is not
true to many extents — the American press will shy away from it.
Moving News Content “Toward the Middle.” For national “news” organizations dominated by
corporate giants, which did not get their start in, and therefore have no corporate history of or
commitment to, dynamic and critical journalism, as well as for major metro newspapers not
already controlled by a media chain, the struggle for advertising dollars has forced national
commercial media and commercial cable to produce news palatable to the middle range of
viewers and readers, geared to the most common denominator of reading and viewing skills.
Since the average American consumer of mass media news has an education no greater than
high school, the news will be designed for that level of consumption. (More than 80 per cent of

1. Some of the current cases before the International Court of Justice (as of May, 2002) are: a dispute
between the United States and Iran over oil platforms, several cases brought by Yugoslavia against different
Western European nations regarding the use of force there, the conflict between the Democratic Republic
of the Congo and Uganda, and two maritime disputes involving Nicaragua and Honduras, and Nicaragua
and Colombia. The Court’s decision regarding the legality of the threat or the use of nuclear weapons (and
the World Court found in the negative) was issued in 1994. That decision received either little or no
national broadcast media coverage in the United States.

260
 Part V: The First Six Elements of a National Security State

Americans have a high school education, and more than 68 per cent of American high school
students graduate. However, from 1979 to the present, about 1 million Americans received
college degrees each year, compared to a total population during that time of between 226 and
281 million. This is a much smaller overall percentage of college degrees to general population,
even adjusting for individuals who are college-aged or older.) In such an environment, there is
little room for critical thinking.
The American television media still can do a better job in this regard. Even public
television (PBS), which is expected to be bolder and unconcerned with advertising pressures,
has far to go. Certainly, flashes of depth, analysis, and perspective can occur during the “News
Hour with Jim Lehrer,” the “Charlie Rose” interviews, “Frontline,” “P.O.V” and “Now With Bill
Moyers.” But only occasionally, with a “Frontline” installment, a current affairs documentary, or
related programs, will PBS in its other programming content come close to current or critical
material about American military or government policy. And still there are problems with airing
such programming. One recent PBS offering, called “The Good War,” about conscientious
objectors in World War II, created a stir and was shunned or relegated to unwatchable time
slots by some PBS stations (including Maryland’s MPT), despite the fact that it is about a war
that has been over for more than 50 years.
Generally Uncritical Approach of Major Network News to Government Activity. The American press
has long fed off information supplied by the government, and not just the United States
government. “Ground level” reporting is rare, despite the worldwide reach of these news
organizations. Truly, there are reporters on the ground and on the scene in Afghanistan, but
hardly anyone in Afghanistan is being interviewed. There is no man on the street reporting. No
sit-down extended interviews with a farmer, a merchant, a doctor, a teacher. Interviews are
reserved for the high ranking dignitaries, whose comments are already well rehearsed. There are
the standard scenes of a devastated country, mournful camera shots of bombed-out buildings,
footage of the new Afghanistan leadership, and pronouncements from American political or
military officials. The reporting has become embarrassingly predictable. Information is still
coming from the top down and is reported that way: the press room, the briefing room, the
board room. This is despite often bold and courageous reporting by courageous reports, whose
stories seldom make it to the American TV screen. Press conferences, controlled media leaks,
carefully orchestrated tours, and teaser material from government agencies are thrown daily
into the trough at which media outlets feed.
An increasingly pervasive attitude has crept into media reporting — showing an even less
critical approach than reporting of the 1960s and 1970s: if the President says it, it must be right.
Not willing to jeopardize their access, increasingly impassive about engaging in the reflective,
significant, profound reporting which brought them to the status they now enjoy, and wishing
to do their part for America, major media newspaper and television networks are simply
parroting government directives. Critics of U.S. broadcast media have made this point consis-
tently, including Mark Crispin Miller in his insightful book Boxed In: The Culture of TV1 and Danny
Schechter in his revealing work, The More You Watch, The Less You Know.2 Without realizing the

1. Mark Crispin Miller, Boxed In: The Culture of TV, Northwestern University Press (1988). Of special
interest are the sections on “Patriotism Without Tears” and “How TV Covers War.”
2. Danny Schechter, The More You Watch, The Less You Know (Seven Stories Press, 1997). Of interest are
the chapters, “CNN: The World’s Most (Self) Important Network” and “Media Worlds In Collision.” For
other similar works exploring one-dimensional network television media, see Danny Schechter, Media Wars:
News at a Time of Terror/ Dissecting News Since 9/11 (Rowman & Littlefield, 2002) and Danny Schechter, News
Dissector: Passions, Pieces, and Polemics: 1960-2002 (Akashic Books, 2002).

261
 No Greater Threat

danger to themselves or to journalistic responsibilities, the so-called “independent” commercial

national network mass media is right where the government wants it.
Given that context, any further necessary pacification of the “independent” national
broadcast press by the government, especially in the wake of a national tragedy, is child’s play.
Very little time or space will be devoted to where we are going and how we are getting there.
Just a few more executive orders which would, say, limit press access to government documents
or reduce the number or type of press personnel at press conferences, and it will be a few easy
steps to make it a crime for unauthorized press representatives to report unflattering or critical
information about the government. Sadly, the broadcast media is very nearly already in “the
service of the state.”
In this discussion of media, the print press, that is, major metro newspapers and
periodicals, cannot be overlooked. Unfortunately, most of the American print press is owned or
controlled by the same or similar large conglomerates or media chains as is the broadcast press
(Life, People, Time, Newsweek, USA Today, etc.). What has been said about the broadcast press
generally would apply to this print press as well. Naturally, there are very notable exceptions,
such as The New York Times and The Washington Post on the East Coast. But the exceptions are few
among many. It is enough to make one wonder whether the most interesting and truly
independent and informative national-level reporting today is The Daily Show on the cable tv
channel Comedy Central and the satire magazine The Onion.
Some Notable Exceptions in Print, Broadcast and Internet. To be sure, there is a vigorous
independent print press, in magazines, circulars, articles, newsletters, and periodicals. Some are
regional, many national. It would be foolish to attempt to name them all. Most have been
around for years. Many are circulars or periodicals issued by various organizations critical of the
government (liberal or progressive organizations, that is). In many respects, these independent
print press examples and periodicals remain as bold as they were before September 11.
Broadcast media includes radio. But the story is all too similar. There is also some
independent radio, that is, aside from National Public Radio (Pacifica, National Radio Project
— NRP, not NPR; see the NRP website — , selected other programs, and local or regional
radio). Yet, most of the FM band, aside from NPR, is music, more music, really loud music, talk,
sports, and old-time religion. And turning to AM radio only proves the point already being
made — talk shows and call-in shows that are notoriously supportive of the government,
religious programming almost completely from the Right side of the spectrum, along with the
expected music and sports.
It should not go without notice that in cable television, there are some ground-level, independent
cable production operations such as “Free Speech TV” and “Deep Dish TV.” Some of these are
available on shared access or leased access cable channels in some major metropolitan areas.
Very significantly, there are important community-based and well- organized cable or cable
access channels or networks, in places like New York City (“Manhattan Neighborhood
Network”), Chicago, and San Francisco. These channels produce and air a whole bushel of
programs offering alternative information — although not one of these programs is a daily or weekly,
standard, live or live-to-tape full-fledged alternative news program with full time reporters, camera crews,
newsgathering staff, sound studio, and network-quality production.
Finally, there is a notable, publicly available media outlet full of alternative or progressive
information sources: the Internet. Among the dizzyingly vast amounts of information on the
Internet — too broad even to describe here, with much of it utterly useless like websites for
actors, beer, and porn stars — are substantial and significant places for bold reporting and
alternative information. Not only are there websites for progressive organizations and UN-
NGOs far too numerous to mention (the UN itself has a very good website), but specialty

262
 Part V: The First Six Elements of a National Security State

information sites, vigorously independent, presenting a continually surprising array of virtually

unpublicized material. They include IGC’s “PeaceNet” [with “EcoNet”/”LaborNet”] (one of the
first), “Common Dreams,” “Indymedia,” “NetAid,” “Yes Magazine,” “TruthOut” (“truthout.org”),
“Move On” and “Salon.com”.
There are other media or journalistic Internet outlets (no, not the ABC, CNN, or FoxNews
websites, which, again, are simply more of the same). Important to note among these is
Interpress Service News (IPS), with news reports from around the world, concentrating on
Third World areas. It is not based in the United States, although it has an office in New York.
“The Media Channel,” a non-profit project of the New York-based media production firm
Globalvision, is a comprehensive media/web super-site with many other links, reviewing the
media, press freedom, press coverage, and current events. It also launched its own news project,
Globalvision News Network.
These Internet and independent radio and ground-level cable news sources offer some
meaningful counterbalance to the unsettling sameness of commercial and cable broadcast news
coverage and reporting. However, although their visibility is growing, they have yet to generate
the consistent numbers of users, listeners, or viewers to match the tens of millions who watch
commercial and cable television broadcast news every day. But they are growing. So,
alternatives do exist, although they are still seeking a larger public impact. A stand-alone,
independent national cable television channel devoted to a variety of content including national
daily news coverage has yet to appear and would go even farther in closing this gap.
As was mentioned at the beginning of this review of this media factor, much more can be
said about national broadcast media, the need for alternatives, and prospects for alternative
national information in radio and television. Certainly the Internet holds much promise and
potential; however, already it is clear that these sites need to explore means of marketing
outside the Internet itself to inform potential users of their existence or risk being lost in the
fast-flurry of Internet information overload. In addition, not one of the groups, organizations,
publishing entities, specialty radio, independent cable, or Internet information sources is in
control of a single major metropolitan newspaper, television station, national radio network, or
broadcast-quality national cable channel. The mega- information sources still remain in the
province of the mega-corporations.
The national security characteristic of media in the service of the state is still moving
forward, certainly in terms of national broadcast television network reporting. By the standards
and scope of this aspect of broad mass media, consistent dissenting or critical voices and fresh
international perspectives remain few and far between.
***
Comment at Close of 2004
Of particular concern in this characteristic of media in the service of the state is continuing
movement of the American mass television broadcast media toward a less critical view
government activity. Among the examples (besides the unabashedly patriotic Fox News
Channel) was the use of “embedded reporters” in “Operation Iraqi Freedom,” with specially-
designated reporters and crews making field reports while combat operations were underway,
traveling with or being directly connected to troop movements and activities. The use of these
reporters, a new level of characteristic in-the-field combat journalism, was criticized on several
fronts, including the effect upon independent commentary and journalistic objectivity, and the
effect upon viewers and readers of direct and often graphic reporting of battlefield activity.
Considerably less criticism appears to have been aired on major commercial or cable
television news sources about the rationales for the Iraq military operation itself, as the war

263
 No Greater Threat

began, although now reports are much more frequent about the dearth of evidence of weapons
of mass destruction, the absence of chemical weapons, the uncertainty regarding any
connection with training of outside terror groups, and lack of any indication that Iraq or its
officials had any actual involvement in the September 11 attacks.
More questions must be asked about the state of journalism when it comes to government
activity, particularly as to the Iraq and Afghanistan conflicts. Surely, unwavering reporting has
been responsible for revelations of prisoner abuse, causalty counts incertitude, the effects of the
insurgency on troops and readiness, and lack of accountability for vast sums arranged with
private contractors. Yet there still is very little to be found in U.S. television broadcasts about
continuing protests over the war domestically and internationally, civilian casualties and their
effect on the population, infrastructure difficulties, slowness of political control, uneven
progress in constructing crucial support elements such as schools and hospitals, and vast
unemployment. If reporting on the ground situation is to be comprehensive, informative, and
revelatory, it cannot concentrate solely on the activities and condition of U.S. troops.
(There is no Expanded Commentary for Characteristic No. 5.)

6. Public and National Resources Enlisted in Service Against Security Threat

The next element of the national security state is to bring national political and economic
resources to bear upon the task of national security. This element has been fulfilled, beyond any
doubt.1
Special Appropriations, Budget. One of the first acts of Congress after the September 11
tragedies was to appropriate $40 billion for assistance following the attacks. That
appropriation has come and gone in the minds of the American public and has not been
carefully examined by America media. A review of the appropriation language reveals that there
were five purposes to this emergency appropriation:
1) federal, state, and local preparedness for mitigating and responding to the attacks,
2) support to counter, investigate, or prosecute domestic or international terrorism,
3) increased transportation security,
4) repairing public facilities and transportation systems damaged by the attacks, and
5) supporting national security.

Not so well known, then, is the fact that three of the five purposes of this $40 billion in
emergency appropriations involve security and investigation. One lists “national security”
expressly. This open-ended appropriation would allow funds to be transferred to any
authorized federal government activity. One half of the funds is slated for disaster recovery
activities, which means the other half, or $20 billion, will go to the other purposes.
The President was to submit a budget request for these funds; but very little congres-
sional oversight has occurred. This emergency appropriation amounts to a blank check of up to
$20 billion for a range of activities including national security activities such as domestic and
international surveillance. Even if only a small portion of the available funds are so used, that
allows any figure, perhaps $5 to $10 billion, for such purposes. Thus, the CIA, NSA, or FBI, given
new and broad powers under the PATRIOT Act, also have been given a free hand with, say, $1
billion of unrestricted and unchallenged new funding.

1. Not discussed in this characteristic are the federal funds for disaster relief and the special fund to
compensate victims of the terror attacks and their families. These appropriate measures are a charitable
response to the attacks and are not a long term indication of a national security state.

264
 Part V: The First Six Elements of a National Security State

Congressional Appropriations Under PATRIOT Act. Also to be noted in considering the

commitment of national resources in the “fight against terrorism” are the appropriations under
the PATRIOT Act. The Act itself specifically appropriates, among its ten Titles, approximately
$2.6 billion. That does not include the various “such funds as may be necessary” authorizations,
which could total any amount within the reasonable imagination. And “reasonable imagination”
for the United States government would well run into additional billions.
Office of Homeland Security, Proposed Homeland Security Budget Items. Not to be missed in this
category, one of President Bush’s first acts was to create a new Office of Homeland Security
(which was soon followed by the Department of Homeland Security), headed by former
Pennsylvania Governor Tom Ridge.1 This unprecedented Executive Office appointment is to
coordinate the antiterrorism and investigative tasks of various federal government agencies,
supposedly to minimize duplication of effort, increase sharing of information, and reduce “turf”
battles between agencies. For example, the OHS is to “coordinate and prioritize the
requirements for foreign intelligence relating to terrorism within the United States of executive
departments and agencies responsible for homeland security.” Among various other things, its
role also is to “coordinate domestic exercises and simulations designed to assess and practice
systems that would be called upon to respond to a terrorist threat or attack within the United
States.” In other words, national or regional “fire drills.”2
The Bush Administration FY 2003 budget sent to Congress, amounting to $2.12 trillion,
also includes $4.8 billion in federal spending to improve aviation security by hiring 30,000 new
government employees to screen passengers and baggage. Much of this money will be managed
by the new Transportation Security Administration. This represents a 210 per cent increase in
aviation security spending.3
The Federal Emergency Management Agency (FEMA) is to receive $3.5 billion for new
grants to states and local governments to improve first respondents’ capabilities, including
training, equipment, and overtime costs (another item authorized by the PATRIOT Act). This
is a 1,000 per cent increase.
Hospitals would receive $600 million for decontamination facilities and new communi-
cations equipment relating to bioterrorism. Another $2.4 billion would go to hospitals to
conduct research on bioterrorism along with $1.7 billion for the National Institutes of Health
for research on bioterrorism vaccines, in part following on the sense of the Congress statement
concerning bioterrorism in the PATRIOT Act. Total spending to defend against bioterrorist
attack will be $6 billion. Some of this spending was included in the recently-passed bioter-
rorism bill. (See Part VI, Fn. 37.)

1. Established by Executive Order 13228, October 8, 2001. More will be said of the Office of Home-
land Security and some of its antecedents in Congressional studies and Government Accounting Office
Reports, in a discussion of other national security state characteristics. (Naturally, the Homeland Security
Act of 2002, already reviewed here in detail, has established the Department of Homeland Security. See that
review and discussion for a comprehensive treatment of HSA and DHS. It must be emphasized that despite
the creation of this new Department, the White House Office of Homeland Security will continue to func-
tion).
2. Of interest, even after the Office of Homeland Security was established by President Bush, Sen.
Joseph Lieberman (D-Conn), introduced a bill to establish an entire separate Department of Homeland
Security. The bill is co-sponsored by Sen. Arlen Specter (R-Pa). Among other Congressional supporters are
Rep. Mac Thornberry (R-Texas) and Rep. Ellen Tauscher (D-Calif).
3. Mark Benjamin, “Budget First Priority: Homeland Security,” UPI, February 4, 2002. Also see the
story on the Office of Homeland Security website, www. whitehouse.gov/homeland/, “The President’s Plan
to Strengthen Our Homeland Security.”

265
 No Greater Threat

There would be additional millions for the added border guards in Mexico and Canada,
authorized by Title IV of the Act.1 Total proposed spending for border security will be $11
billion, a $2 billion increase. Of that, $380 million would be devoted to developing a sophis-
ticated entry and exit system at all customs checkpoints.2
Aside from the OHS’ considerable list of official duties, the prospects for even greater
power for the Office of Homeland Security, with a staff and budget not reviewed by Congress,
are much more of a concern. For example, the same Executive Order also established the
“Homeland Security Council” consisting of representatives from numerous federal departments
and agencies. The Council is to be “the mechanism for ensuring coordination of homeland
security-related activities of executive departments and agencies and effective development and
implementation of homeland security policies.” Most assuredly, the Office of Homeland
Security and this Council soon could be pressed into service to maintain the national will to
fight terrorism, to achieve total national commitment to and compliance with national security
efforts. The Office of Homeland Security and related offices or groups, within the Executive
Branch as well as in the non- profit and private sectors, will be reviewed later in more detail
under another national security state characteristic.
To follow the PATRIOT Act’s mandate for information sharing and linking information
systems, the Bush administration has proposed massive spending for high- tech computer
systems linking government departments and investigative agencies, even with availability to
state and local law enforcement. This figure is $722 million. The Administration calls this an
“Expanded Electronic Government” management initiative, to link systems, do systems
improvements, and conduct training so that federal, state, and local governments, as well as the
private sector, can work “seamlessly” to fight terrorism. This project also targets the Internet,
claiming that it is the key to the overall effort.
Of note as well, for 2001 and 2002, the Bush administration did not wait for Congres-
sional approval of the FY 2003 budget. Immediately after the September 11 attacks, and aside
from the $40 billion then approved by Congress, the administration devoted $10.6 billion from
the FY 2002 Emergency Budget Supplement to homeland security. The FY 2002 total homeland
security budget amounted to $19.5 billion.3
Existing Grants to State and Localities, Other Security Spending. It should not be overlooked that
federal funds for anti-terrorism programs have been available to states and localities since 1997.4
These grants are provided through the Office of Domestic Preparedness in the Justice
Department. Since 1998, the total funds available have been $243 million, although $141 million

1. For another story on the Canada situation and new border security mentality, see Bill Miller,
“Plugging A Very Porous Northern Border,” The Washington Post, April 8, 2002, p. A3. The story notes that by
the end of 2002, there will be more than 600 Border Patrol agents on the Canadian border and the Bush
Administration wants to add 285 more in FY 2003. About 700 National Guard troops are aiding inspections
at 124 northern ports of entry and are also involved in intelligence analysis and helicopter patrols. Border
Patrol officials are still not satisfied with the number of agents. But a $5 million camera system capable of
scanning 40 miles of border had been installed on 32 towers. Technicians at the command center can zoom
in on objects four miles away. If there is anything suspicious, agents can respond in four wheel drive vehi-
cles some equipped with infrared cameras.
2. According to the Office of Homeland Security, the Administration wishes to achieve “the border
of the future.” The OHS states that every year 500 million people are admitted into the United States, many
millions of whom are not citizens. Annually, 11.2 million trucks and 2.2 million rail cars cross U.S. borders
and 7,500 foreign flag ships make 51,000 calls in U.S. ports. Additional funding is proposed for the Coast
Guard, increasing funding by $282 million to $2.9 billion.
3. The source for this is no less than the OHS’s own website. See www.whitehouse.gov/ homeland/.
4. Associated Press report, “$141 Million for Anti-Terror Programs Never Awarded.”

266
 Part V: The First Six Elements of a National Security State

of that figure still has not been spent.1 The PATRIOT Act continues or increases these grants,
and creates other grant or funding avenues.
The economic aspect of this commitment to national resources is far from over. Beyond
the $40 billion Congressional appropriation and the PATRIOT Act appropriations or authori-
zations is the already estimated cost of national security. An estimate of the total cost for
increased airline security goes as high as $41 billion.2 A recent report calculates that $1.5 billion
will be spent by major American cities on increased security.3 An estimated $300 million was
spent on increased security at the Winter Olympics in Utah, something which the television
reporting on the Olympics almost never failed to mention. More than $150 million is expected
to be spent to enhance security for major U.S. water systems. For a period of time after
September 11, Coast Guard and other armed services were brought into security details at a
spending rate of $1 million per day.
Infrastructure Security and Related Spending. The pervasive federal concern about
infrastructure security will not be a passing thing. By an Executive Order issued in October,
2001. President Bush established the “President’s Critical Infrastructure Protection Board.”4
This Board is to consult with and conduct outreach to federal and state authorities on
developing emergency protection measures for information systems, telecommunications,
transportation, energy, water, health care, and financial services, arrange for information
sharing networks, seek ways to increase security of computer networks and prevent cyber
crime including recommending legislation, and coordinate with the Office of Homeland
Security.
What amount of resources will be brought to bear to meet this board’s proposals is yet to
be fully known. However, the Bush administration has proposed in its FY 2003 budget, $125
million to fund the National Infrastructure Protection Center (NIPC), to make it a “premiere
cyberthreat response” office — located in the FBI. This is an increase of $50 million.5 There is
another $20 million proposed for a National Infrastructure Simulation and Analysis Center in
the Department of Energy. This center is to collaborate between federal and private research
efforts “to better understand the dependencies between the Internet, our critical infrastructure,
and the economy.”
Board membership comprises representatives from no fewer than 20 federal offices or
agencies, including the Departments of Justice, state, Treasury, Defense, Commerce, Transpor-
tation, and Energy, the General Services Administration, the Office of Management and Budget,
the federal Emergency Management Agency, and of course, the CIA. The Board will have
various standing committees and interact also with several other presidential advisory panels.
The Board’s Chair also will be the Special Advisor to the President for Cyber Space Security.

1. The article says that these funds are available to the fire and emergency services departments of
state and local governments to purchase equipment. The article reported on a study by the Justice Depart-
ment Office of Inspector General that some of the grants have not been spent, or are caught in local red tape
including delays by States in meeting the federal grant requirement that States develop a “comprehensive
domestic preparedness plan.” According to the I.G. report, only about $3 million of the $75.7 million avail-
able in fiscal 2001 was assigned.
2. AP Report, November 11, 2001. See story already noted.
3. CBS News Evening News report.
4. Executive Order 13231, October 16, 2001. This Executive Order also is discussed in reviewing other
national security state characteristics. See also the additional discussion and treatment of a related Admin-
istration policy document, The National Strategy for Physical Protection of Critical Infrastructure and Key
Assets, summarized along with other similar “National Strategy” anti-terrorism policy documents, in
Appendix 7-A.
5. OHS website, story on infrastructure protection.

267
 No Greater Threat

This infrastructure emphasis is also found in the PATRIOT Act at Section 1016, which, among
other things, establishes a National Infrastructure Simulation and Analysis Center.
Beyond this, the administration proposes $30 million for a Cyberspace Warning
Intelligence Network (CWIN). With this is $60 million to develop a “wireless priority access
program” so that authorized users will have first access to wireless phones and systems in an
emergency, to prevent these systems from becoming clogged with calls.
War in Afghanistan and Related Costs. To all of this must be added the economic cost of the
war in Afghanistan so far — and remember, the President and his Secretaries of State and
Defense are saying the war is not over and might have to be expanded to other locales.
According to one report, the Afghanistan war at its height may have cost $500 million to $1
billion a month.1
The daily costs of United States military activities in Afghanistan mounted quickly. It
costs $5,000 per hour to fly an FA-18 attack plane. Regular 500-pound bombs cost $300 each.
The 15,000 pound BLU-82 “daisy-cutter” fuel-air weapons cost $27,000 each. The huge GBU-37
bombs cost $231,000. A single helicopter lost in Afghanistan in bad weather, a Pave Lowe
model, cost $40 million. One type of cruise missile costs $25,600. Other cruise missiles can cost
$600,000 to $1 million each. In the opening assault, 50 cruise missiles were launched. By
comparison, the 1991 Persian Gulf War cost an estimated $61 billion. All but $7 billion was
reimbursed by allies.2 That is not likely to happen in this situation.
Department of Defense Budget. This is an enormous commitment of national economic and
political resources to fighting terrorism at home and abroad. New executive departments,
increased law enforcement activity, increased security at every level, massive congressional
appropriations, and the Afghanistan War total nearly $100 billion so far. This does not take into
account an annual budget in excess of $300 billion for the Department of Defense (discussed in
more detail in Characteristic 9).
Citizen Preparedness and Citizen Corps. In addition, there is Executive Order 13234 (November
9, 2001), creating a Presidential Task Force on Citizen Preparedness in the War on Terrorism.
The Task Force will have representatives from various Cabinet-level Departments and White
House Offices, including Homeland Security. The objectives of the task force is to recommend
ways in which the American public can prepare in their homes, neighborhoods, and public
places for any possible terrorist attack, and how citizens can volunteer or otherwise support state and
local public and health officials engaged in the effort to “prevent, prepare for, and respond to” terrorist attacks. A
report from that Task Force was to have been made by mid-December, 2001.
FEMA also will manage the new Homeland Security Corps volunteers. This new organi-
zation is to focus on domestic security issues. The Bush administration proposed to fund this
organization at $230 million. The Corps will develop various programs “to engage ordinary
Americans in specific homeland security efforts in their own communities.”3 These programs
include a Medical Reserve Corps, Volunteers in Police Service (VIPS), doubling the

1. Calvin Woodward, Associated Press, November 11, 2001 quoting Federation of American Scien-
tists. In another article in the Boston Globe of February 19, 2002, Lawrence J. Korb, of the Council on Foreign
Relations and Business Leaders for Sensible Priorities, estimated that the Afghanistan war has cost $6
billion.
2. For these figures, see Calvin Woodward, “War May Be Costing $500 Million to $1 Billion A
Month,” Associated Press (November 13, 2001). The story quotes estimates by the Center for Strategic and
Budgetary Assessments, a private research group that reviews the cost of war, by Steven M. Kosiak, the
Center’s director of budget studies. The group calculated that the first 25 days of the Afghanistan war cost
between $400 million and $800 million. Note: These are not necessarily Pentagon figures. Accuracy of these
figures has not been independently verified, but they nevertheless show how quickly war costs can accu-
mulate.)

268
 Part V: The First Six Elements of a National Security State

neighborhood watch program, and tripling the Community Emergency Response Team
program. Also part of this overall enlistment of “ordinary Americans” in homeland security will
be a program called the Terrorist Information and Prevention System — that is, TIPS. Exactly how a
program like that will operate and what its goals will be must be carefully observed.
Another government effort to be carefully watched is a National Neighborhood Watch
program announced by the Justice Department in March, 2002, which is to be part of the
Citizen Corps. The program will be funded by a $1.9 million grant to the National Sheriff’s
Association to double the number of Neighborhood Watch programs over the next two years. It
is uncertain how this program, which has its own extremely important value in preventing and
reporting street crime, will become associated with the war on terrorism. The Justice
Department announcement said the program is part of a “national challenge” to “enhance local
homeland security efforts and make preparedness a part of our daily lives.”
Insurance and Airline Bail-Outs. Congress is being asked by insurance companies for a bail-
out provision for future terrorist attacks against insured property. That is, major insurance
carriers have served notice that they intend to “write out” terrorism from their policies in the
future, making economic losses due to terrorism uninsured. In the fall of 2001 the House passed
legislation allowing the federal government to cover some of the cost of catastrophic losses to
life and property due to terrorist attack, while private insurance would cover only part of that
cost. In June 2002, the Senate had yet to vote on the bill. The White House noted that the
legislation is important because “right now hospitals, office building, malls, stadiums, and
museums — among many other facilities — are all having difficulty finding terrorism coverage.”
Without such coverage, there could be bankruptcies and loan defaults which would “intensify
the blow of the attack.” Estimates are that the September 11 attack will cost the insurance
industry $36 to $45 billion. Reinsurance policies have stopped terrorism coverage and 45 states
have allowed primary insurers to exclude acts of terrorism from property and casualty coverage,
while premiums for policies even with these exclusions have risen by as much as 50 per cent.
Congress also is about to create a “super fund” for victims of terrorism to be administered by an
appointed person or panel. The airlines already have obtained billionsin bail-out aid from
Congress. The grand total is many billions of dollars.
Without question, the national security state apparatus has inspired national will to use
major national resources and has called the public into service for its cause. Not surprisingly, at
the state level, State governors from Maine to California, as well as the President, have said that
such use of economic resources will mean less funding for social programs. So we being to travel
down that road, as well. A national security state typically has little interest in addressing
internal social needs. Now, the Bush administration will not need to make apologies for reduced
spending on social programs. By this point, we need to start asking what “national security”
actually is. But that will come later. Six more characteristics need to be considered.
***
Comment at Close of 2004
Activities involving Characteristic No. 6 of public and national resources called into service
against the security threat represent pivotal developments among the various national security
state characteristics. The diversion of national resources and attention, and development of
government policy, toward the increasingly-multiplying aspects of the “war on terrorism” are
almost as varied as the developments on the executive treatment of suspects. Among these:

3. See OHS website information and story, “The President’s Plan to Strengthen Our Homeland Secu-
rity.”

269
 No Greater Threat

— White House policy documents on terrorism (see Appendix 6-B).

— The Homeland Security Act of 2002 with the creation of the Department of Homeland
Security.
— The budget for DHS and increased budgets for other law enforcement agencies.
— Continued military activities, with accompanying demands upon federal funds,
including the Afghanistan and Iraq conflicts, running into the billions per month, with a $87
billion supplemental appropriation obtained by the White House from Congress for the Iraq
war and reconstruction alone.
— Effects upon domestic economy of thousands of active and reserve service personnel
and National Guard called to the wars in Iraq and Afghanistan.
— Increased anti-terrorism funding such as for joint terrorism task forces and training
and new duties for “first responders.”
— Increased government spending regarding bioterrorism (see also notation of these
developments in the Expanded Commentary for Characteristic No. 1).
— New spending on protecting critical infrastructure (which unfortunately has not been
matched by spending on repairing and improving critical infrastructures, as evidenced by the
amazing Northeast blackout in August, 2003).
— Increased local spending on other war on terrorism activity including intelligence
offices in local or State law enforcement bureaus.
— Investigation and prosecution of terrorism suspects and terrorism crimes.
— Resources and attention devoted to activiities of Congressional committess and of the
9/11 Commission. (Note: due to the timing of 9/11 Commission's Report and space limitations,
unfortunately the Report cannot be extensively reviewed in this Edition.)
— Resources for new intelligence offices established by the Intelligence Reform and
Terrorism Prevention Act of 2004..
(For a revew of these and other developments, see Expanded Commentary for Characteristic No. 6, at the
end of this Part).
***

EXPANDED COMMENTARY FOR 2004 ON CHARACTERISTIC NO. 1

Visible Increase in Uniformed Security Personnel

As mentioned, along with visible increase in uniformed security personnel, what must be
mentioned as part of this characteristic is an array of national security measures with nationwide
impact involving significant increase in security personnel. In this context, especially since the first
September 11 anniversary in 2002, there are a seemingly endless collection of enhanced security
proposals and actions, including threat responses Among the most significant:
A Terrorist Threat Integration Center at the CIA, interacting with similar terrorism
information centers and Joint Terrorism Task Forces throughout the U.S. (mentioned in
original text), including a quick response team with chemical weapons specialists,
sharpshooters, and paramedics.1 (The TTIC soon will be part of the National Counterterrorism
Center, established by the Intelligence Reform and Terrorism Prevention Act of 2004
(summarized in this 2004 update)).
— Plans to physically integrate counterterrorism operations of the FBI and CIA. Units of
both agencies will be housed together in Washington, DC.2 These proposals are similar to some
proposals in Congress for a new “domestic intelligence” agency, headed by a Cabinet-level
officer. So far, no such agency has been established, but a major reorganization of intelligence
agencies was accomplished in the 2004 Intelligence Reform Act.3

270
 Part V: The First Six Elements of a National Security State

— Increase in airport security and installation of large x-ray type explosives detectors for
checked luggage, at every major airport. There are escalating passenger search procedures
including passengers required to remove shoes, being “wanded,” subjected to extremely
personal searches, or subjected to random searches of luggage. Photo identification with
boarding pass are still required before entering the security line and, at some airports, before
boarding. Yet there still are occasional stories of fake ids being used for entry, either in a
controlled test or in actuality, or weapons slipping through security checks.1
Airport security issues are turning to cargo planes.2 As may be expected, air marshals do
not fly aboard cargo planes, cockpit doors are not always secured, air cargo employees are not
subject to background checks, air cargo areas at airports do not have the same levels of security
as passenger areas, and only a small percentage of air cargo is subjected to security screening.
More security activity is occurring in this area.
One of the more celebrated recent incidents revealing gaps in airline security systems was
a college student who deliberated sneaked box cutters, bleach, and other items onto Southwest
Airlines planes and left them in lavatories on the planes with a note about the inadequacy of

1. See “Chief Defends FBI Anti-Terror Ability,” December 20, 2002, and “New Center Won’t Replace
FBI Work On Terror, Chief Says,” from press reports, January 31, 2003. The report quotes FBI Director
Robert S. Mueller II on the FBI becoming a more responsive and agile agency concerning terrorism investiga-
tion and that it will follow all terrorism leads. And see, “Reports Find Much Progress But New Flaws in
Revised FBI,” New York Times News Service, June 19, 2003 (discussing reports by Government Accounting Office
and by National Academy of Public Administration on how the FBI has adjusted to its role in terrorism
investigations). See also, “Task Forces On Front Lines in Fighting Terrorism,” The Baltimore Sun and other
reports, April 23, 2003, and “Government to Open Terror Threat Center,” The Baltimore Sun, May 1, 2003, p. 6A.
The TTIC was launched in early May, and among other things is charged with preparing the Daily Threat
Matrix used by the White House and the Department of Homeland Security in deciding whether to issue
terrorist alerts. The Center, which will include more than 50 agents from CIA, FBI, NSA and other agencies,
will be housed at the CIA until May, 2004, when it will be relocated to a “neutral” site. The Joint Terrorism
Task Forces combine federal, state, and local law enforcement agencies in the same office, to share informa-
tion and cooperate in terrorism investigation. There have been 66 task forces formed since September 11.
2. “Bush Shifts CIA, FBI Anti-Terror Operations,” The Baltimore Sun, February 15, 2003, p. 1A. This
joined unit would include all CIA and FBI counterterrorism operations and would represent more than
2,000 employees.
3. For other proposals, see, e.g., “Ex-CIA Chief Urges Reform of U.S. Intelligence System,” Associated
Press, October 15, 2003, reporting on comments by John M. Deutch, CIA Director from 1995 to 1996, before
the September 11 Commission (National Commission on Terrorist Attacks Upon the United States). Deutch
also recommended a “domestic intelligence service” that would take over some intelligence duties of the FBI
and endorsed the proposal of a “director of central intelligence” as an independent oversight office with
budget authority over the more than one dozen intelligence agencies throughout the federal government.
1."Undercover Investigators Use Fake IDs to Enter United States," New York Times News Service,
January 31, 2003; "Security Setback at L.A. Airport," The Baltimore Sun, and "Airports Still Have Problems
Screening Foreigners," Associated Press, January 24, 2003.
2. November, 2003: Associated Press, “Federal Officials Warn of Plot to Hijack Foreign Cargo Planes.”
The report quotes DHS sources as saying “We also remain concerned about threats to the aviation industry
and the use of cargo planes to carry out attacks on critical infrastructure.” The reports said that security
experts have complained that the TSA has not paid enough attention to cargo plane risks.

271
 No Greater Threat

airline security.1 Another rather unusual incident involved a man who shipped himself from
New York to Dallas in a cargo crate without being detected.2
— Proposals to equip some commercial airliners with anti-missile technology (mentioned
in the Homeland Security Act and similar statutes), to protect against shoulder-fired weapons
which could be used by terrorist groups against passenger airliners (there are reports of prior
attempts to bring down a commercial airliner with a shoulder-fired missile). Any program to
outfit all passenger airliners with on-board missile defense could cost an estimated $10 billion.3
— An “Airport Watch” program to encourage private airline pilot to use a national hot
line to report suspicious activities to government authorities. The program is being sponsored
by the Transportation Security Administration.4
— A “Northern Command” (NorthCom) at the Pentagon to coordinate military aspects of
anti-terror activity and terror response.5 The initiative provides “military support” for security
activities including heightened alerts.
— Increased security for the restricted airspace over the White House and the Capitol,
and increased patrols of that airspace. Several times since September 11, private planes straying
into the airspace have been alerted, forced to land at an airstrip, or subject to notification by
government agencies. In many instances, the pilots were questioned or detained.6
— Launch by DHS of "Secure Flight" (formerly Computer Assisted Passenger
Prescreening System (CAPPS II)) to screen airport passengers before they arrive at the airport,
using personal information checked against government databases to determine if the
passenger poses a security risk.7 A related version of this program, to be called “Registered

1. Laura Sullivan, “Box Cutters and Taunting Notes Found on Two South West Planes,” The Baltimore
Sun, October 18, 2003. The notes resulted in orders for immediate searches of all 7,000 commercial airplanes
in the United States. He was later identified as Nathaniel T. Heatwole. He had also sent an e-mail on
September 15, 2003 to the Department of Homeland Security warning about the box cutters and said that he
had done so on previous occasions. However, the e-mail was not tracked and Heatwole was able to repeat
the act. The reports indicated that TSA has revised its procedures for handling tips and complaints as a result
of the incident. Heatwole said that he wanted to expose gaps in the security system. He was charged with
several violations but eventually was not given jail time.
2. Associated Press, “Man Ships Self to Texas in Cargo Crate,” September 10, 2003. The man, Charles D.
McKinley, said that he wanted to save on air fare costs (but the air freight cost for the size and weight of the
box he was in was $550, much higher than a coach seat). The flight by Kitty Hawk Cargo began in Newark
and went to Niagara Falls and then Ft. Wayne, Indiana before going to Dalls. McKinley was facing several
charges including airline stowaway. The report noted that while his cargo box was placed in a pressurized
and heated cargo area, it could have been placed in unpressurized holds which might have resulted in his
death from exposure. The main issue is the security breaches that permitted this to happen, including lack of
screening of air cargo. And see, Associated Press, “Man Who Shipped Self Exposes Gaps in Air Security,”
September 11, 2003.
3. “Anti-Missile Devices Sought for Jetliners,” Associated Press, March 21, 2003.
4. “Antiterrorism Hot Line Program for Pilots Begins,” March 5, 2003.
5.“Pentagon Establishes US Northern Command,” May 8, 2003, The Baltimore Sun and other press
reports. And see article by Robert Dreyfuss, “Bringing the War Home,” in The Nation, May 8, 2003. The
article warns that these developments further weaken the important separation between military activities
and domestic law enforcement. The article quotes Gene Healy of the Cato Institute commenting on the
presence of armed troops at airports during increased alerts, “It does weird things to our political culture
when we start getting used to armed troops on the streets, that we find that comforting.” He said, “It makes
the United States start looking like we’re not a democracy.”
6.“Stray Pilots Cloud Efforts to Secure Skies Over DC,” The Baltimore Sun, October 18, 2002. In one
instance, a Goodyear blimp was cited. The restricted air space extends for 18,000 feet over the Capital area
in a radius 15 miles from the Washington Monument. If the terror threat level increases, the size of the
restricted airspace also increases, with the radius doubling from 15 miles to 30 miles.
7. “New Air Security System Unveiled,” press reports, August 1, 2003. Despite criticism, TSA and DHS
officials remain committed to the program, which will go into effect in late 2003 or early 2004.

272
 Part V: The First Six Elements of a National Security State

Traveler,” and encouraged by DHS/TSA for use by frequent travelers such as business travelers,
also is in development — and apparently has broad support among business travelers.
— Programs to conduct radiation checks on all travelers entering the United States, as
part of increased activity to be aware of potential terror threats. The radiation check is done by
small devices, used to a limited degree by customs inspectors, but now available to all border
inspectors.1
— Increased use of campus police at American colleges and universities to help federal
agents track terrorists (connected in some degree to the SEVIS program — see discussion of
SEVIS elsewhere and at end of Part IV), and increased government scrutiny of some professors,
especially if foreign-born. In at least one situation, the FBI interviewed a Iraqi-born professor at
a Northeast university. In another, the visa of a professor at the University of Notre Dame, Tariq
Ramadan, was canceled. Concerns have been voiced about this practice although so far the
matter has not received great public attention. (See also discussion in Expanded Discussion for
2004 of Characteristic No. 11).
— Increased security at shopping malls, synagogues, schools (sometimes canceling school
trips to areas perceived as under terror threat such as New York City or Washington, DC)
— An agreement between the U.S. and Canada to allow troops from either country to
cross the border in the event such a response is required due to a terrorist attack. Officials have
initiated a Planning Group to work on contingency scenarios for cross-border use of troops in
the event of a terrorist strike, based at the North American Air Defense Command (NORAD)
facility in Colorado.
— Involvement of the Forest Service in heightened border security, especially at the
Canadian border. There are concerns about increasing Forest Service security of stored
explosives or access to planes used to fight forest fires, lest the planes be stolen and fire-
retardant chemicals be put to improper use.2
— Increased regional security actions such as homeland security patrols on the Mississippi
River involving security and law enforcement agencies, from the Missouri Transportation
Department to the Coast Guard and the Army Corps of Engineers. The river stretches for 2,200
miles, 1,900 of which are navigable, and is crossed by 271 bridges which are traversed daily by
more than 250,000 people. St. Louis is the second largest inland port behind Pittsburgh. These
ports conceivably could be vulnerable to terrorist attack using a barge or other river vessel.
These increased patrols check on ports, communities on or near waterways, river traffic, and
bridge activity, looking for anything suspicious or following terrorism leads. One Coast Guard
officer said it is “kind of like the shore patrols in World War II, looking for U boats.”
— Regional security include security attention at 361 seaports, a prime objective of DHS.
This follows further related Congressional legislation beyond the PATRIOT Act, such as the
Maritime Protection Security Act of 2002.3 Already studies are underway on enhancing seaport
security. Private agencies and government insiders agree that increased airport security has not
been matched by comparable efforts at seaports, which can be prime entry points for smuggling
terrorists or terrorist devices. The costs can be great, given the size, scale, and amount of
activity at any major seaport and the need to involve various shipping firms, many of them
international.

1. “Radiation Checks Stepped Up at Borders,” Associated Press, March 2, 2003.

2. Associated Press, “Forest Service Gaps in Security Reported,” May 1, 2003.
3. Press reports indicate that security plans are being developed for 361 seaports in the United States,
involving 3,500 facilities. Already $424 million in grants have been awarded, but total security costs are
estimated at $7 billion.

273
 No Greater Threat

The U.S.Customs Service (transferred to DHS), is increasing installation and use of x-ray
and other detectors to search cargo coming into seaports. The project is daunting, since more
than 16 million cargo containers enter the nation every year. Shipping manifest requirements
have become stricter, yet keeping track of this documentation has become more difficult as
warehouse storage practices are become outmoded. Nevertheless, shippers are now required to
submit manifests and shipping paperwork 24 hours before a vessel leaves, and the identification
of cargo container contents cannot be as general as before.
To enlist the aid of private shipping firms, the Coast Guard and DHS have initiated a
voluntary program allowing companies a swifter review of cargo if security at their own port
facilities is improved to Coast Guard and DHS satisfaction, including employee background
checks. In addition to this, American customs agents are being stationed at 20 overseas ports in
countries like Canada, the Netherlands, Belgium, Germany, Italy, Japan, and China.1
Studies show that a weeks-long disruption of major seaports and border crossings, due to
a terrorist incident, would create a 90-day backlog of cargo and would cost the United States economy
$58 billion in spoiled goods, lost sales, missed deliveries, and manufacturing plant effects. (Available figures
indicate that a 2003 labor dispute in California, which temporarily shut down seaports at Los
Angeles and Long Beach, cost an estimated $20 billion.)
There are also long-term effects of increased seaport security. Among these are added
difficulties for foreign nationals on merchant vessels crews docking in U.S. ports, who wish to
take shore leave (which can be for days or weeks depending on cargo to be loaded or unloaded
and other circumstances). Shore leave often is essential for crew members to contact family
members or obtain personal supplies. Due to increased security, crew members without visas
cannot come ashore regardless of their point of origin (the U.S. appears to be the only country
imposing, or enforcing, this requirement). Visas are becoming more difficult to obtain, with fees
rising and background checks often taking weeks. Waiving the visa requirement, which was
routine, is now rare. It is doubtful, however, given requirements and training involved in joining
a merchant vessel crew, long hours at sea, and time before a merchant vessel from a foreign port
reaches an American port, that terrorists would find it practical to infiltrate such a crew to
attempt to sneak into the U.S., once a vessel is docked at an American port, or utilize the ship as
a cover for, or site of, a terrorist act.2 The more immediate concern should remain the shipping
containers themselves.

— Increased attention to other transportation methods, with particular focus upon rail
traffic, especially in the wake of the devastating train bombings in Madrid, Spain in March of
2004. Additional Congressional interest, government funding, and pilot programs are
underway for rail security and for searching passengers and luggage. These plans include use of
canine units to sniff luggage and searching or screening of rail passengers.3 A pilot program
involves use of a “phone-booth” type security screening system designed to detect any
explosives that a person might be carrying. A proposed bill to devote an additional $1 billion to

1.“Customs Goes High Tech in Its War on Terrorism,” The Baltimore Sun, December 1, 2002, p. 1C. There
are also 200 vans equipped with gamma ray machines that act like giant x-ray equipment for checking cargo
containers. See “Radiation Checks Stepped Up at Borders,” March 2, 2003, reported in The Baltimore Sun, p.
5A. Also see, Meredith Cohn, “As World’s Ships Arrive in Port, New Security for Smooth Sailing,” The Balti-
more Sun, July 1, 2004, p. 1A. The article is subtitled, “Experts are uncertain about global compliance as tight-
ened maritime security rules go into effect.” The article mentioned that under proposed United States
seaport security plans, international vessels not certified as secure by 147 participating nations and not
reinspected by U.S. customs officials could be prevented from docking at American ports.
2. See, “Shore Leave Isn’t a Sure Thing for Seafarers in a Post-9/11 World,” The Baltimore Sun, May 11,
2002, p. 1A.

274
 Part V: The First Six Elements of a National Security State

train security was approved in April, 2004 by the Senate Commerce Committee and is very
likely to be approved by Congress.
— Increased domestic security initiatives of other types are now cross-agency, and
nationwide, and would qualify under this characteristic, even though, admittedly, such activity
is not very “visible.” Cross-agency training and information sharing is mandated by the
PATRIOT Act and by the Homeland Security Act. Cross agency field postings are occurring
between the FBI and CIA. Each of the FBI’s 56 field offices has a contingent devoted to
intelligence, some as part of the local Joint Terrorism Task Force.1 There are concerns that the
FBI should not become too involved in CIA counter-terrorism activities, because some CIA
methods and approaches could render the information obtained not usable in a U.S. court.2 The
FBI continues a previous practice of posting agents to overseas locations. The CIA often is
involved in interviewing Americans returning from extended business or research trips
overseas.3
— There initiatives at the National Security Agency for additional means to make the
agency less vulnerable to power outages and similar events. NSA posts at locations besides its
headquarters at Ft. Meade, Maryland have been struck by power outages, although agency
officials said there was no loss of data. A power difficulty in January, 2000 disabled an NSA
computer network for three days, cost $1.5 million and thousands of hours to repair. Additional
measures are being studied to reduce or eliminate difficulties at NSA operations from power
outages or disruption.
— Enhanced federal intelligence agency authorities include specific authority granted by
the President to the CIA to eliminate certain terrorists, on an international basis. This followed
the well-publicized and certainly “visible” event in November, 2002 when a pilotless remote-
controlled Predator drone aircraft fired a Hellfire antitank missile with uncanny precision at a
car in Yemen, killing several, including terrorists who were sought by international and
American law enforcement agencies.4

3. See press reports of March 16, 2004, “Security Bolstered on Area Trains;” March 23, 2004, “New
Security for US Rails Announced;” March 24, 2004, “Antiterrorist Funds for Railroads Suggested;” April 4,
2004, “Terror Warning on Trains, Buses,” and May 5, 2004, “Rail Security Pilot Program Gets Test Run.”
(This was a 30-day pilot program for commuter rail service in the DC area. Some reports showed photo of
DHS official Asa Hutchinson giving a demonstration on the use of the phone-booth security screening
device, and quotes from other officials that the pilot program is receiving a “mostly receptive audience.”)
1. See Associated Press, “New Intelligence Service is Suggested by Researchers,” April 8, 2004. The
story notes, “every morning at headquarters top FBI officials who oversee all of its programs meet to discuss
intelligence arising from the day’s threats, investigations, events and other activities.”
2.Laura Sullivan, “Some in FBI Balked at CIA Ties,” Sun Journal, The Baltimore Sun, May 25, 2004,
discussing the legal difficulties that result when FBI is involved or participates in CIA interrogations or
interrogation alliances overseas. Any FBI link to the prisoner abuse scandals in Afghanistan, Iraq, Guan-
tanamo Bay, or elsewhere could also harm public perception of the agency when FBI agents testify in non-
terrorism criminal cases.
3. “CIA Assigning Officers to Anti-Terrorism Teams at FBI Offices in the United States,” Associated
Press.
4. These remote controlled aircraft, about half the size of a fighter plane, are armed with precision
Hellfire missiles. It was first used in 1995 and can fly over an area for 16 hours at 15,000 feet, transmitting
live video, infrared or radar pictures to remote commanders, with the video sharp enough to spot a person
five miles away from the drone. The 125-pound missiles can travel at supersonic speeds and deliver about 20
pounds of explosives. The Air Force has about 50 of these remote weapons. The Pentagon has ordered
another 22 Predators and their ground stations at a cost of $160 million. They are made by General Atomics
Aeronautical Systems in San Diego. “CIA Drone Kills Leader of Al-Qaida in Yemen,” Press Reports,
November 5, 2002; “Drone a Vital Tool in Anti-Terror Fight,” Associated Press, November 6, 2002. “Bush
Expands CIA’s Authority to Hunt, Kill Terrorist Leaders,” New York Times News Service, December 15, 2002.

275
 No Greater Threat

— As also noted elsewhere , other developments include increased governmental interest

in bioterrorism response, brought to the forefront in the wake of the startling and fatal anthrax
incidents of 2001.1 The anthrax mail incidents in September and October of 2001 created an
almost nationwide panic, shut down post offices and Congressional offices, and became a
continuing issue. There are now anthrax detectors in Post Offices for mail going through the
system — a system that processes 202 billion pieces of mail each year. Similar precautions were
taken at post offices after the September 11 attacks and anthrax scare.2 Another bioterrorism
incident occurred in November, 2003 and February, 2004 when mail contaminated by ricin, a
toxic substance derived from castor beans and which can cause cell and organ failure, was sent
to some government offices, including the White House. While the situation was serious and
generated a bioterrorism security response, according to officials, indications were that the
incident was the act of a “homegrown criminal” rather than a terrorist attack.3
Several bioterror plans are underway, such as a smallpox vaccination program, increased
use of biological research facilities, and major expansions of existing high-security government
bioterrorism research facilities to put greater effort into this research.4 The budget for
biodefense research at the National Institutes of Health has increased six-fold since 2001, with
more scientists and researchers involved in the effort. (This bioterrorism response also qualifies
under Characteristic No. 6, of resources devoted to the security threat. A further discussion of

1. As of Fall of 2004, there have been no arrests in that incident and the FBI investigation is
continuing. The FBI has said that it has 27 agents and 15 postal inspectors on the case. Also continuing is
the lawsuit brought against the government by Dr. Steven J. Hatfill, a researcher and former US Army
bioweapons expert who claims he was falsely and publicly connected by law enforcement agencies to the
incident and who claims that he has lost research positions, grants, and employment as a result of the
scandal. See, e.g., Scott Shane, “Anthrax Case Lawsuit To Go On, Judge Rules,” The Baltimore Sun, February 8,
2004.
2. “Post Office Unveils Anthrax Detector,” The Baltimore Sun, July 23, 2003, P. 1B. Clean up costs at just
one of the post offices affected by the anthrax mail incident is expected to be $100 million. The machinery
tests for anthrax by using a stream of air sent over mail as it passes through the detectors, which is
constantly analyzed. And see, “U.S. Postal Workers to Get Masks, Gloves,” October 26, 2001, p. 9A. And
see, Scott Shane, “DNA Tests Negative for Anthrax,” The Baltimore Sun, November 8, 2003, p. 3A, noting that
11 DC-area post offices were closed after an anthrax scare at a Navy mail facility turned out to be a false
alarm, and stating, “experts said the handling of the episode revealed serious flaws in biodefense procedures
devised after anthrax-laced letters killed five people and sickened at least 17 more in 2001.” The story also
noted, “air samplers to detect bioterror attacks are being set up in scores of locations around the country,
including post offices, airports, military bases and large office buildings.” However, training is required for
those who will be responsible for reading and responding to sample results.
3. Knight Ridder, “A Criminal Native to U.S. Said to Be Sender of Ricin,” February 5, 2004. The
November, 2003 letters were signed “Fallen Angel,” and supposedly were from a business owner protesting
a Department of Transportation rule increasing the amount of sleep required for commercial truck drivers.
Letters were sent to a Senate office, the White House, and the Department of Transportation. And see
Laura Sullivan, “Ricin in Senate Also Suspected in White House Mail,” February 4, 2004. The story notes
that there is no antidote and little effective treatment for a serious case of ricin exposure or contamination,
which can cause death. One expert called the poison, “one of the most toxic substances that exist.”
However, it is a one- to-one toxin and does not pose the same threat of wide exposure for a group or popu-
lation as a biological agent such as anthrax. See Scott Shane, “Ricin Called Lethal Toxin, But Poor Terror
Weapon,” The Baltimore Sun, February 4, 2004, p. 6A. And see New York Times News Service, “Senate Office
Buildings Reopening After Ricin Scare,” February 6, 2004.
4. See, Scott Shane, “Building a Stronger Mousepox to Guard Nation Against Terror,” The Baltimore
Sun, November 1, 2003. The story describes how researchers are trying to grow “tougher” biological agents
in order to develop tougher antidotes or responses, such as a response to an engineered version of smallpox
that might resist current vaccines. The story notes one researcher saying, “The basic problem is that it’s very
easy to identify vulnerabilities and far harder to protect against them.”

276
 Part V: The First Six Elements of a National Security State

the multi-faceted response to bioterrorism is found in the 2004 Commentary and the Expanded
Discussion for that Characteristic).
— Activity is underway to review safety and security of the food supply and perhaps the
water supply. Food supply is an aspect of critical infrastructure. The situation is made more
difficult by a worldwide trade in food and food products.1
— There are new levels of reviews concerning ways to increase security at nuclear power
plants. This emcompasses certain Congressional proposals to increase security review, heighten
security measures, and intensify responses at nuclear plants in the event of a threatened or
actual terrorist incident.2
State and local governments and law enforcement agencies are under increasing strain to
maintain required involvement in these security measures at a time when local budgets are in
crisis and law enforcement agencies are already fully committed to crime fighting tasks. (At the
same time, the Transportation Security Administration has been accused of wasting federal
funds.)3
These enhanced security developments do not include special situations such as the
greatly increased security at international venues or events. For example, at the 2002 Winter
Olympics in Salt Lake City, at least $300 million was spent on security measures involving state
and federal agencies including 5,000 soldiers. The units flew air patrols above the city and
utilized high-tech surveillance devices. Along these lines, an unprecedented sum was spent on
security for the 2004 Summer Olympics in Athens, including using U.S. Navy vessels in the
Mediterranean.
This characteristic of visible increase in security and security personnel has undergone
major development since mid-2002. Whether all of these activities will actually result in
making Americans safer, is yet another discussion.

EXPANDED COMMENTARY FOR 2004 ON CHARACTERISTIC NO. 2

Lack of Accountability of Law Enforcement and Security Personnel
[no expanded discussion]

EXPANDED COMMENTARY FOR 2004 ON CHARACTERISTIC NO. 3

Reduced Role of Judiciary and Executive Treatment of Suspects

This national security state characteristic continues to be among the most serious,
encompassing substantial activity. As mentioned in the Comment at Close of 2004, the range of
activity related to this Characteristic is startling.

1. Dennis O’Brien, “Threat to Food Supply On Rise,” The Baltimore Sun, March 22, 2004. Aside from the
potential threat of deliberate contamination of the food supply, experts are concerned about its vulnera-
bility both from within the United States and regarding food imported from overseas. The “mad cow”
disease scare was only one part of the problem.
2. “Democrats Seek to Raise Security at Nuclear Plants,” New York Times News Service, January 10, 2003.
There are 104 nuclear plants in 31 States. Estimated cost for increased security measures would be $120
million. A survey commissioned by the Nuclear Regulatory Commission and conducted by International
Survey Research, reported that one third of the NRC’s 3,000 employees doubt the agency’s commitment to
safety and security at nuclear plants, all of which come under NRC regulations.
3. “Governors Seek Cash for Security Measures,” Associated Press, November 24, 2002, and see “Bush
Seeks Changes in Security Aid System,” Associated Press, April 9, 2003. And “Airport Security Agency
Accused of Waste,” The Baltimore Sun, April 9, 2003.

277
 No Greater Threat

Concerning the role of the judiciary, especially since mid-2002, there have been opinions on
the war on terrorism from the Supreme Court, from nearly every Federal Circuit appeals court,
and from federal district courts. The overall impact of these decisions, although some opinions
are critical of the government’s war on terrorism activities, clearly moves this national security
state characteristic in a disturbing direction. (And see notation of these decisions in 2004
Commentary at end of Part IV).
The Supreme Court made it clear that the judiciary would not be a passive participant in
the “war on terrorism.” It plainly declared the importance of judicial review of government “war
on terror” actions. Still, these decisions have disturbing flaws, particularly since they did not
conclude that the Executive Branch was acting improperly or illegally by detaining terrorism suspects in
Guantanamo Bay or by designating persons, even U.S. citizens, as “enemy combatants.” The
decisions did not require that any detainees immediately be released nor did they set any strict
limits for the length or conditions of confinement.1 (For a review of these decisions see
Appendix 5-C and Appendix 5-D).
Additional law enforcement authority regarding suspects has been granted by the
Supreme Court, in other decisions announced in 2003 and 2004. Among these is a decision
allowing law enforcement agencies to set up “fact gathering” roadblocks, such as those designed
to identify potentially intoxicated drivers. The court said a “brief, information-seeking highway
stop” is constitutional.2 It is a short step to allow random roadblock checks of drivers in search
for possible terrorist devices or bombs, at a time of high security alert. Another decision
determined a police officer can require a person to provide identification when asked, if the
officer has reason to suspect the person is likely to commit a crime.
Decisions by other federal courts generally reflect a limited court review for investigative
and intelligence activities under the PATRIOT Act or of government anti-terror activity.
Notable exceptions are outnumbered by decisions favoring the government in federal criminal
trials, court rulings, and appeals court decisions.
The U.S. Court of Appeals for the Third Circuit (located in Philadelphia) allowed for
closed immigration hearings.3 Rulings from the Fourth Circuit appeals court (located in
Richmond, Virginia) declined to review “enemy combatant” status of a detainee (Yaser Hamdi)
seized in combat operations in a foreign country (although these decisions were basically
overruled by the Supreme Court).4

1. The decisions are: Rasul v. Bush, 124 S.Ct. 2686 (2004) (Guantanamo Bay detainee case declaring that
federal courts have jurisdiction to consider legal challenges by or on behalf of detainees involving legality or
conditions of confinement); Hamdi v. Rumsfeld, 124 S.Ct. 2711 (2004) (“enemy combatant” case and due
process standards to be applied to court review of government’s evidence in detainee’s challenge of that
designation), and Rumsfeld v. Padilla, 124 S.Ct. 2711 (2004) (the other “enemy combatant” case but court
decides that legal challenge was filed in incorrect federal district court and so the matter was returned for
filing in correct federal court).
2. The ruling said that if the roadblock is an effort to obtain information and police come across an
intoxicated driver in that process, it is constitutional to arrest the driver. Press reports, “Split High Court
Upholds Fact-Gathering Roadblocks,” January 14, 2004. The report quoted one critic of the ruling saying
that, “We are seeing a steady encroachment into what citizens can expect with respect to the right to be
left alone.”
3. New Jersey Media Group v. Ashcroft, 308 F.3d 198 (3rd Circuit 2002), cert.den., No. 02-1289. The court
said that it was “quite hesitant” to criticize security concerns stated by the government and that “national
security is an area where courts have traditionally extended great deference to Executive expertise.” To the
extent that national security concerns “seem credible” the court will not “second-guess” them.
4. See Fourth Circuit decisions noted in discussion of Hamdi “enemy combatant” matter, and gener-
ally Hamdi v. Rumsfeld, 316 F.3d 450 (4th Cir. 2003) and 296 F.3d 278 (4th Cir. 2002).

278
 Part V: The First Six Elements of a National Security State

There is the decision from the Foreign Intelligence Surveillance Court of Review (in
Washington, DC), noted elsewhere, that the government could use information obtained
through FISA investigations in standard criminal prosecutions, a ruling contrary to the
accepted judicial view until that time.1 This decision overruled a rare published decision from
the Foreign Intelligence Surveillance Act Court, which also criticized the FBI for acknowl-
edging that agents had “misled” that Court in information provided for search warrant requests
in more than 70 cases. The Foreign Intelligence Surveillance Act Court of Review made little
mention of that disturbing revelation, in its own opinion.
The Seventh Circuit (located in Chicago), found that the PATRIOT Act was not subject
to constitutional challenge. It also found valid certain provisions allowing use by the
government of classified evidence to freeze assets of a terrorist organization.2
The Second Circuit (located in New York), determined the government can use “material
witness” warrants in detaining terror suspects.3 Of comparable if not greater importance is the
decision from the District of Columbia Circuit that the government need not release names or
other information of those detained on suspicion of terrorism, when faced with a Freedom of
Information Act request, including those foreign nationals seized in "roundups" immediately
after September 11.4 The government, then, can keep secret names, charges, and even
whereabouts of such detainees. This decision conceivably could apply if citizens are seized and
detained under suspicion of terrorism, although it did not expressly do so. The Supreme Court
declined to review that decision.5
Of contrast are five federal appeals court decisions on terrorism- related issues since
September 11, which have favored defendants or have been critical of government action. One is
the Sixth Circuit (located in Cincinnati) opinion which ruled that the government cannot

1. See 310 F.3d 717 (2002). And see “Eroding Wall Between Foreign, Domestic Spying,” New York Times
News Service, December 1, 2002; “Court Lifts Limits on Intelligence Wiretaps,” New York Times New Service,
November 19, 2002, and “Court Ruling Raises Red Flag Over Privacy,” Associated Press, November 20, 2002.
2. Global Relief Foundation v. O’Neill, 315 F.3d 748 (7th Cir. 2002). Federal agents had raised offices of the
Global Relief Foundation and arrested or detained several of its corporate managers or members, claiming
that the Foundation was not a charity but actually was a front to funnel financial assistance to terrorist
organizations in the Middle East. The ex parte use of classified evidence, approved by the Court, allows the
court to present this evidence without opportunity by the defendant to review it or challenge it.
3. United States v. Awadallah, 349 F.3d 42 (2nd Cir. 2003). The Court reversed District Court rulings that
ultimately dismissed an indictment against the defendant due to the District Court’s finding that the
government abused the material witness warrant and conducted an improper search and seizure including
improperly obtaining statements by the defendant. For those rulings, see 173 F.Supp.2d 186, 202 F.Supp.2d
17, 202 F.Supp.2d 55, and 202 F.Supp.2d 96 (all S.D.N.Y. 2001 or 2002) and see related case of In re Material
Witness Warrant, 213 F.Supp.2d 287 (S.D.N.Y. 2002). The appeals court found that the material witness
warrant statutes allow for arrest and detention of witnesses, although the court said that it would be
“improper” for the government to use the statute for “other ends” such as “detention of persons suspected of
criminal activity for which probable cause has not yet been established.” On the search and seizure issue,
the appeal court decided that the warrant and warrant application were valid, despite supposed threats and
harassment by the FBI against the defendant to obtain the warrant or to obtain the defendant’s consent to
searches.
4. Center for National Security Studies v. Department of Justice, 331 F.3d 918, 356 U.S. App. D.C. 333, 189
A.L.R.Fed. 541 (D.C.Cir. 2003).
5. See Press reports, “Terror Suspect IDs Stay Hidden,” January 13, 2004. The report noted two
disturbing trends represented by the case: “First, immigrants who violate the law have few rights. They may
be deported for a minor, technical violation of their immigration status, and they do not have a right to a
lawyer to fight the charge.” And second, “the media and the public do not have a right to know who has
been arrested for questioning during a government investigation, at least until the individuals are officially
charged with crime.” The story noted that none of the Supreme Court justices dissented from the decision
not to review the case.

279
 No Greater Threat

arbitrarily hold closed immigration hearings.1 The Ninth Circuit (located in San Francisco)
ruled that federal courts have jurisdiction to consider legal challenges by Guantanamo Bay
detainees.2 This decision was not directly reviewed by the Supreme Court decision on that
subject, but effectively was affirmed by that decision.
A third ruling, from the District of Columbia Circuit, decided due process requirements
must be followed when a government designates a group as a “terrorist organization.”3
The fourth notable federal appeals court decision critical of the government (issued in
October, 2004) was from the Eleventh Circuit, located in Atlanta. The case was not directly
related to the PATRIOT Act but has a bearing on anti-terrorism matters and government
action. It involved an annual protest each November at the "School of the Americas" located at
Ft. Benning, Georgia (now called the Western Hemisphere Institute for Security Cooperation),
a training academy for security personnel in Central and Latin America. The academy has long
been criticized as providing training for, or encouraging, extreme measures to respond to
dissident groups or to activities challenging governments in those countries. There have been
efforts in Congress to de-fund or to reorganize the academy, in response to these reports. The
annual protest draws more than 15,000 demonstrators, some of whom choose to be arrested by
attempting to enter the facility.
Protestors, including an organizing group, "SOA Watch," filed a lawsuit challenging a
practice employed by authorities, chiefly the City of Columbus, Georgia which had required all
protestors to pass through metal detectors at a "check point" near the site, and perhaps be
searched, before proceeding to the protest site. Protestors criticized these procedures calling it
a "nightmare" especially for a protest of that size and suggesting the procedure was designed to
delay or disrupt the demonstration.
The Eleventh Circuit struck down the search requirement, declaring the procedure
violated the protestor's rights under the First and Fourth Amendments. The Court rejected the
City's arguments that after September 11, these heightened security procedures are acceptable
and necessary. Reviewing many Supreme Court cases, the Court said imposing a search
requirement for large gatherings was "untenable," would "eviscerate" Fourth Amendment
protections, and would directly violate the First Amendment in several ways, including being a
"burden" on the right of free association and a restriction on the right of free speech. The Court

1. Detroit Free Press v. Ashcroft, 303 F.3d 681 (6th Cir. 2002). The case noted, “Democracies die behind
closed doors.” See also, “Bush Administration Faulted for Secret Hearings,” New York Times News Service,
August 27, 2002.
2. Gherebi v. Rumsfeld, 352 F.3d 1278 (9th Cir. 2003). The appeals court modified a District Court deci-
sion that ruled otherwise (Coalition of Clergy v. Bush, 189 F.Supp.2d 1036 (C.D. Cal. 2002). The appeals court
said, “we simply cannot accept the government’s position that the Executive Branch possesses the
unchecked authority to imprison indefinitely any persons, foreign citizens included, without permitting
such prisoners recourse of any kind to any judicial forum, or even access to counsel, regardless of the length
or manner of their confinement.” The appeals court said that “no lawful policy or precedent supports such a
counter-intuitive and undemocratic procedure” and continued, “In our view, the government’s position is
inconsistent with fundamental tenets of American jurisprudence and raises more serious concerns under
international law.” Compare the previous appeals court decision at 310 F.3d 1153 (9th Cir. 2002), which
seems to be in conflict with this ruling. Any internal Ninth Circuit conflict was resolved by the Supreme
Court decision that federal courts have jurisdiction to hear these challenges.
3. National Council of Resistance of Iran v. Department of State, 251 F.3d 192 (D.C. Cir. 2001). The decision
confirms that a group that could be designated by the State Department as a “terrorist organization” which
would affect the group’s property interests in bank accounts, assets, and so on, is entitled to due process.
The Department must give the group reasonable notice that the designation is pending and allow the group
the opportunity to present evidence in any challenge to the designation. It is not certain how this decision
will affect what appears to be wide-ranging provisions in PATRIOT Act Title IV for designating groups as
“terrorist organizations” and which do not expressly allow for court review.

280
 Part V: The First Six Elements of a National Security State

remarked, "We cannot simply suspend restrictions on civil liberties until the War on Terrorism
is over, because the War on Terrorism is unlikely ever to be truly over. The Court declared that
September 11, "already a day of immeasurable tragedy, cannot be the day liberty perished in this country."
The fifth appeals court ruling critical of the government was issued from the Second
Circuit (New York) on the “enemy combatant” case (Padilla). That decision, in particular, was
extremely critical of detaining an American citizen as an “enemy combatant,” and essentially
ordered that person’s release.1 Unfortunately, the Supreme Court’s direct review on appeal of
that decision did not affirm or reverse it, but instead ruled that the legal challenge was brought
in the incorrect court and must be re- filed.
(For other selected federal trial court rulings or federal prosecutions, see 2004
Commentary elsewhere or for other national security state characteristics.)
Of significance to executive treatment of suspects, beyond executive information gathering
permitted under the PATRIOT Act (such as in Title II and Title III2), and broader authorities
for administrative detention of suspect aliens (allowed in Title IV) are twelve developments which
have begun or which have increased since mid-2002:

1. “Enemy combatant” (that is, “unlawful combatant” or “unprivileged combatant”)

designations, including United States citizens.
2. Military tribunals especially for detainees at Guantanamo Bay/Camp Delta.
3. Expanded use of national security letters.
4. Expanded use of administrative subpoenas.
5. Expanded use of material witness warrants.
6. Use of emergency foreign intelligence warrants.
7. A recent Department of Justice ruling on possible indefinite detention of aliens to address
national security concerns.
8. Treatment of detainees held in the “roundups” of late 2001 and early 2002, detailed in two
reports from the Justice Department Office of Inspector General regarding the conditions for
these detainees at the Metropolitan Detention Center.
9. Recent revelations about the CIA's “rendition" practices.
10. CIA detention facilities concealed from public knowledge.

1. Padilla v. Rumsfeld, 352 F.3d 695 (2nd Cir. 2003). The Court found that there was no existing authori-
zation for the President or the Executive Branch to seize or hold a person indefinitely and without access to
counsel, as an “enemy combatant.” The court said, “We find that the Present lacks inherent constitutional
authority as Commander-in-Chief to detain American citizens on American soil outside a zone of combat.”
The Court said that the President cannot “lay claim” to authorities that belong to Congress to grant and
that the Executive Branch has not specifically defined how a person becomes an “enemy combatant” or how
long the detention can be.
2. As mentioned in other sections, Title III’s reach was expanded in December of 2003 when President
Bush signed legislative language expanding the definition of “domestic financial institution.” For purposes
of national security letters to be issued by the FBI (and it would seem, also the “special measures order”
allowed by Title III) a domestic financial institution now includes not only a standard bank or savings and
loan in addition to other definitions already in federal banking law and the original Title III provisions. The
definition also includes: a securities broker or dealer, a currency exchange, any entity that issues or redeems
cashier checks or travelers checks or money orders, an insurance company, dealers of precious metals and
precious stones, a pawnbroker, a travel agency, a telegraph company, any business selling cars or planes or
boats, real estate brokers, casinos with annual revenue exceeding $1 million, the Post Office, AND any other
business designated by the Treasury Department “whose cash transactions have a high degree of usefulness
in criminal, tax, or regulatory matters.”

281
 No Greater Threat

11. A memorandum within the Administration suggesting that in terrorism situations the
government need not strictly abide by international and Geneva Convention standards on torture and treatment
of prisoners or by United States criminal laws prohibiting torture.
12. Policy approaches on detention and treatment of aliens or terrorism suspects.

More specifically,
1. The “enemy combatant” status is being used by the federal government at its sole
discretion. The government defends this policy despite public concern.1 The Supreme Court
decision on “enemy combatants” did not declare this practice illegal. The Court concluded that
Congress' authorization for use of military force in the Afghanistan conflict (and later for the
Iraq conflict) provides any necessary Congressional permission for Executive Branch use of
these authorities under the President’s powers as Commander-in-Chief. (See Appendix 5-D).
The most recent instance of “enemy combatant” designation (aside from Yaser Hamdi,
Jose Padilla, and Guantanamo Bay detainees) has been Ali Saleh Kahlah al-Marri. Al-Marri, a
citizen of Qatar. He arrived in the U.S. on September 10, 2001 on a student visa to pursue
graduate studies at Bradley University in Peoria, Illinois, where some family members reside.
Arrested in December, 2001, he was in custody at a federal facility in Illinois, first as a material
witness in connection with the September 11 attacks — although never used as a grand jury
witness or charged with connection to those attacks — and later on charges of misleading the
FBI and credit card fraud. He was declared an "enemy combatant" in June, 2003, and moved to a
military facility in South Carolina. The government said national security interests required
enemy combatant status for Al-Marri, but critics, including the attorney representing him in
the criminal charges, claimed the action was taken to avoid a possible government loss in the
trial scheduled for a few weeks before the enemy combatant designation, or to avoid possible
revelations that might have occurred at the trial.2 Al-Marri challenged his detention in a federal

1. “United States Defends Imprisoning of Enemies,” Associated Press, reported in The Baltimore Sun, August
11, 2002, p. 3A, noting that the American Bar Association had issued a report critical of the enemy combatant
status and recommending legal rights for those so detained. To once again note, under the Geneva Conven-
tion, a person seized by the opposing force under battlefield conditions can be declared as a “prisoner of war”
under four conditions — the enemy soldier: 1) carried weapons openly, 2) was part of a recognized army from
a recognized state and wore distinctive military uniform or insignia, 3) operated under a military style chain of
command, and 4) followed the standard rules of engagement for wartime actions. If those conditions are not
met, then supposedly the captured person need not be declared a “prisoner of war” and instead is an “unprivi-
leged combatant” or “unlawful combatant” who might not have to be granted the same treatment under the
Convention as for a prisoner of war.
2. See “Bush Declares Student an Enemy Combatant,” New York Times, June 24, 2003. Officials said that
al-Marri had visited an al Qaida training camp in Afghanistan, met with Osama bin Laden and pledged
support for the al Qaida cause, and has links to terrorist groups. However, his attorney Lawrence S. Lustberg
said that those allegations had not before been brought against al-Marri. Observers, including Elisa C.
Massimino of the Lawyers Committee for Human Rights, criticized the action. It considerably broadens the
government’s ability to declare as an enemy combatant almost anyone suspected of terrorist activity or links
to terrorism. And see “Qatari Man Is Designated `Enemy Combatant,” New York Times News Service, June 24,
2003. And see Internet information, “The Ali Saleh Kahlah al-Marri Case.” al-Marri was facing a July 21 trial
date about credit card fraud and lying to FBI agents about phone calls he supposedly made to a phone number
in the United Arab Emirates used by Mustafa Ahmed Al Hawsawi, a suspected financier of the September 11
attacks. There was also a motion to suppress certain evidence pending in the court relating to lack of Miranda
warnings and no search warrant for a search of his apartment and computer. All of this change when the
government declared him an enemy combatant on June 23, 2003. For the District Court opinion denying al
Marri's search and seizure challenge, see 230 F.Supp.2d 535 (S.D.N.Y. 2002). For the dismissal of al Marri's
habeas corpus petition in the US District Court in Illinois, see 274 F.Supp.2d 1003 (C.D.Ill. 2003). For the
Seventh Circuit decision affirming that ruling on appeal and ruling the Illinois courts lacked jurisdiction for
habeas corpus, see 360 F.3d 707 (7th Cir. 2004). The Supreme Court's short ruling affirming that decision can
be found at 73 U.S.L.W. 3060, 73 U.S.L.W. 3193 and 73 U.S.L.W. 3205 (No. 03-1424, October 4, 2004).

282
 Part V: The First Six Elements of a National Security State

court, and the matter went to the U.S. Supreme Court, which ruled on October 4, 2004, that al-
Marri's petition was filed in the incorrect court and should be filed in a federal court in South
Carolina (a ruling similar to its decision in the Padilla matter). As of the close of 2004, al Marri
will need to file a renewed habeas corpus petition in a South Carolina federal court, after the
Supreme Court confirmed in a one-sentence assessment of a federal appeals court decision that
his petition could not be filed in Illinois where he was incarcerated, or in New York from where
detention orders were issued. A previous effort by al Marri to challenge an FBI search of his
computer files and records was denied by a District Court. At the close of 2004, it appears that,
like Padilla, al Marri remains in custody, although neither person was seized under conditions
that the Supreme Court indicated were sufficient to declare someone an "enemy combatant." It
might take another Supreme Court decision before either is released.
The other two individuals so designated, Jose Padilla and Yasser Esam Hamdi, both U.S.
citizens, had been detained in Navy brigs.1 Their access to counsel and to family members had
been restricted. They were in detention under this status for more than nearly two years.
Neither has been criminally charged. Hamdi was released in late October, 2004 under an
arrangement by which he gave up his status as a United States citizen. As of the end of 2004,
however, Padilla remained in federal custody even though his circumstances presented the
weakest legal basis for "enemy combatant" status.
As noted elsewhere, Padilla was arrested at Chicago O’Hare Airport on May 8, 2002.
Apparently, he had been under surveillance. He was detained as a material witness for grand
jury proceedings in New York investigating the September 11 attacks, and was taken to a high
security federal prison in Manhattan and placed in solitary confinement. Soon before a federal
judge was to consider whether Padilla should be released, the government declared him an
“enemy combatant” and transferred him to a military facility in South Carolina, where he has
remained, under charges that he was part of a plot to explode a "dirty bomb" in the U.S. (an
explosive device laced with radioactive material to increase potential long-term lethality and
sow public panic). Yet there were doubts about the strength and credibility of supposed
evidence that Padilla was part of any "dirty bomb" plot. The government dropped these
contentions. Padilla has never been charged in any such plot. It semes he is viewed not so much
as a criminal defendant but as someone to be interrogated for information about terrorist cells
groups in the U.S. How long that detention would be necessary is not known,2 and there are
concerns about the conditions of his detention.3
Because Padilla originally was detained in New York, federal courts in New York
reviewed his case and his appeal was to the U.S. Court of Appeals for the Second Circuit. As
noted, a petition filed in New York federal court for Padilla's release resulted in a ruling for the
government4 but the Second Circuit issued an opinion sharply criticizing the government,
denouncing the “enemy combatant” designation, and essentially declaring Padilla be released.

1. Hamdi was released in October, 2004, rather than the government face a court proceeding involving
evidence used to designate him an enemy combatant, as part of an arrangement in which he was to return to
Saudi Arabia and renounce his US citizenship. He maintains he was innocent of any connection to
terrorism. Padilla remains in custody.
2. According to available information and government audits, of the 288 terrorism related prosecu-
tions reported by federal prosecutors since September 11, 132 of them did not directly involve terrorist activ-
ities. Of the more than 1,000 aliens detained by the government for either short or long periods immediately
after September 11, not one was charged with involvement in the September 11 attacks.
3. According to reports, some of these detainees, including the “American Taliban” John Walker
Lindh, have been kept blindfolded, bound to a stretcher with duct tape, fed only a daily minimum of calo-
ries, and deprived of sleep. Similar conditions are being reported regarding the Guantanamo Bay detainees.
It can be speculated but not confirmed that the other “enemy combatants” such as Padilla are subjected
some of this treatment.

283
 No Greater Threat

The Supreme Court's review was confined to procedural matters. Still, the Supreme Court
decision on the Hamdi case, suggested the “enemy combatant” designation might not be
available to someone not seized in active conflict — and so would not apply to Padilla. The
Padilla situation is still developing. As of the close of 2004, he still had not been released.
Hamdi was born in Louisiana of Saudi parents. He was captured in late 2001 — some
reports say April, 2002 — in Afghanistan. He originally was detained at Guantanamo Bay, but
was transferred to a Navy facility in Norfolk, Virginia once his status as a U.S. citizen was
confirmed. The Fourth Circuit issued several reviews of his situation. The court indicated
Hamdi might have access to counsel in challenging his enemy combatant status, but did not
strike down the “enemy combatant” designation.1 In January, 2003, the court said Hamdi could
not challenge the government’s information on the “enemy combatant” designation and the
judiciary must defer to Executive Branch decisions in such matters. It also indicated protections
of federal law, the Bill of Rights, or the Geneva Convention might not apply, saying, “the
safeguards that all Americans have come to expect in criminal prosecutions do not translate
neatly to the arena of armed conflict” and any effort “to ascertain the facts concerning the
petitioner’s conduct while amongst the nation’s enemies would entail an unacceptable risk of
obstructing war efforts authorized by Congress and undertaken by the executive branch.” The
Supreme Court reversed these rulings, but did not declare the “enemy combatant” designation
illegal, or order Hamdi's release. (See Appendix 5-D).
From these court decisions, the "enemy combatant” designation is alive and well. There is
nothing preventing the government from designating other individuals as “enemy combatants,”
including U.S. citizens.
2. Use of military tribunals (military commissions) concerning detainees at Camp Delta in
Guantanamo Bay, is expected to begin soon, although as of the end of 2004, no commission
proceeding had even begun. Notwithstanding revised procedures for these trials, there
continues to be criticism over due process and fairness. Britain and other countries have sought
release of their respective nationals at Camp Delta, due to concerns about detainee treatment,
tribunal fairness, and the potential for death penalty. Some released detainees have related
stories of severe prisoner abuse.2 (See also notatiion at Appendix 5- E). Some are suing the
federal government over their treatment.
Under the tribunal process, detainees could face one or more of 18 possible military
charges, each carrying a possible death sentence.3 By Fall of 2004, press reports indicated the
Defense Department had selected between 6 and 10 detainees as the first to to be tried by the

4. See “Padilla Allowed to Talk to Lawyers,” New York Times News Service, reported in The Baltimore Sun,
December 5, 2002, p. 3A.
1. See Hamdi v. Rumsfeld at 316 F.3d 450 (4th Cir. 2003) and 296 F.3d 278 (4th Cir. 2002).
2. Some prisoners released include 32 Afghans, five Saudis, and three Pakistanis. “Pentagon Releases
22 Prisoners from Guantanamo Base,” Sun Foreign Digest, May 6, 2003, p. 9A. See also, Amnesty International
Report of July 2003, “The Threat of a Bad Example: Undermining International Standards as `War on
Terror’ Detentions Continue.” Available through the Amnesty International website. For stories of prisoner
abuse by released detainees, see report “Detention at Guantanamo” discussed at Appendix 5-F and informa-
tion from the Guantanamo Human Rights Commission (located in England) at that website.
3. For further description of the prospect of military tribunals for others arrested internationally with
suspected ties to terrorism or to the September 11 attacks, including arrests made in Afghanistan and Paki-
stan, see “Tribunal Weighed for 9/11 Suspect,” Associated Press, reported in The Baltimore Sun, September 17,
2002, p. 1A, regarding Ramzi Binalshibh, arrested in Pakistan, who allegedly had ties to the September 11
plot and may have intended to be one of the hijackers. And, “200 Foreign Fighters in Iraq Could Face Tribu-
nals,” New York Times News Service, May 9, 2003. A military tribunal had been considered in the ongoing case
of Zacarias Moussaoui, although eventually he was tried in federal court on charges of connection to the
September 11 plot and other potential terror plots. See “White House Weighing Idea of a Tribunal for
Moussaoui,” New York Times News Service, November 10, 2002.

284
 Part V: The First Six Elements of a National Security State

military commissions. A permanent detention facility is being built to house prisoners under
sentence (it might include a death chamber for those sentenced to death, although the
government has denied those reports). (See Appendix 5-F). The tribunal process limits review
to an administrative panel and possible further review within DOD or within the Office of the
President,1 but the Supreme Court decisions make federal court review possible.
As of December, 2004, there are approximately 500 detainees from more than 40
countries at Camp Delta, mostly with nationalities from Afghanistan and Saudi Arabia. There
are some elderly prisoners and some under 18 (supposedly juveniles are being separately
confined, but many have been released).2 The prisoners have little outside contact except for
occasional visits by the Red Cross. They have not been yet charged with any criminal offense.
There are also reports of poor treatment and several suicide attempts.3 Many detainees, namely
those brought to the facility following capture during the height of U.S. military activity in
Afghanistan in early 2002, have been held for nearly three years. Approximately 100 have been
released as of December, 2004.
Families of two Australian citizens held at Camp Delta have organized public events to
urge the Australian government to seek release of those individuals. So far, the Australian
government has rejected those entreaties.4 As noted elsewhere, advocacy groups involved in

1. The Pentagon Office of Military Commissions has made preparations for the military commissions.
Col. Frederic L. Borch II, a career Army lawyer, has been named chief prosecutor. Col. William A. Gunn, a
graduate of the Air Force Academy and Harvard Law School, has been named chief defense counsel. Civil
liberties groups have criticized the commission procedures as inadequate, and those in the National Associa-
tion of Criminal Defense Attorneys have suggested it would be unethical for a defense attorney to operate
under DOD military commission procedures due to problems such as certain waivers of attorney-client priv-
ilege. In addition, under the procedures any defense attorney would need to obtain or be eligible for a “secret”
grade security clearance, sign affidavits agreeing not to enter into joint defense agreements, would be barred
from press contact, and will be required to remain on the base as long as the particular commission
proceeding is underway. Further, civilian lawyers might not be allowed to be involved in some proceedings,
although a military attorney to be appointed by DOD for each person to be tried will have that access. See
also earlier report, “United States Readies Tribunals for Terrorism Trials,” Knight Ridder News Service,
December 27, 2002, “Pentagon Announced Details on Tribunals,” The Baltimore Sun, May 3, 2003, and “Top
Defender Named for Terrorism Trials,” Associated press, reported in The Baltimore Sun, May 23, 2003, p. 5A.
2. It appears that the youngest juveniles have been released. (See “Three Afghan Boys at Guantanamo
Bay Soon to Be Released, Sent Home,” press reports, August 22, 2003. And see Appendix 5-F for discus-
sion.) For any juveniles who were or are held, apparently the name of the facility for juvenile detainees is
Camp Iguana, a small separate enclosure surrounded by a high fence. The juveniles had received some
schooling, social interaction, and visits from counselors and social workers (all monitored or supervised by
military police). See “U.S. Defends Three Youths’ Detention in Cuba,” Associated Press, April 27, 2003. Human
rights groups such as Amnesty International have said the detentions of the juveniles is a violation of the
United Nations Convention on the Rights of the Child, which the United States has signed but not ratified.
3. According to reports, there have been as many as 27 suicide attempts involving up to 18 prisoners.
See, “Guantanamo Detainee Tries to Kill Himself for Third Time,” The Baltimore Sun, June 4, 2003, p. 13A.
Reports of conditions from those who have been released include statements that detentions amount to
solitary confinement, with only 15 minutes of exercise outside the cell each day and only 15 minutes for a
shower, each week.
4. These two Australian citizens held in Guantanamo Bay are David Hicks and Mamdouh Habib.
Hicks, 28 years old and a convert to Islam, was seized in Afghanistan by forces of the pro-United States
Northern Alliance in early December, 2001 and shortly thereafter was transferred to custody of the United
States military and then taken to Guantanamo Bay. The reports are that he has been held in solitary confine-
ment and subject to regular interrogations. Habib, 47 and a father of four, was seized by Pakistani police on
October 5, 2001 and despite his Australian citizenship, was sent to Egypt where he was held for five months
and then transferred to United States military custody where he was then taken to Guantanamo Bay.
Family members of the detainees have investigated and doubted the scenarios or government rationale
under which the detentions occurred, criticized the Australian government’s reluctance to pressure the
United States for their release, questioned the legal status of the “enemy combatant” label applied to the
detainees, and emphasized the hardship that has resulted from the detentions. Also see, “U.S. Military
Tribunals Anger Families,” New York Times News Service, July 5, 2003.

285
 No Greater Threat

these Guantanamo Bay cases or monitoring or tracking the situation, including the Center for
Constitutional Rights, Amnesty International, ACLU, Human Rights First, the Project to
Enforce the Genevan Convention (PEGC), and the Guantanamo Human Rights Commission
(based in England). Following the Supreme Court decision that federal courts do have
jurisdiction to consider petitions on behalf of detainees challenging their status or confinement,
several petitions have been filed in federal courts. The legal process continues on those
petitions.
The tribunals and their constitutionality continue to provoke sharp debate between
commentators, civil rights groups, human rights advocacy groups, defense analysts, law
professors, political observers, Administration figures, and Defense Department officials.1 Also
as noted elsewhere, the legality of the military commissions has not yet been decided by the
Supreme Court.
Until any such Supreme Court ruling is made, the debate over the legality of these
tribunals will continue.2 Previous military tribunals, and prior Supreme Court decisions which
have affirmed their use, occurred during times of declared war. This present military commission
process is not in that context.
3. National security letters are authorized by federal statutes in specific situations. At
present, national security letters are limited to: 1) electronic transaction records by communi-
cation service providers, 2) consumer information, 3) consumer reports, 4) financial records,
and 5) persons with access to classified materials. DOJ is increasing national security letter
activity (and indicated an interest in expanded authorities for them in the proposed Domestic
Security Enhancement Act, so-called “PATRIOT Act II,” summarized in this Edition).
Expansions of national security letters are among proposals in Congress to increase investi-
gation and search authorities in terrorism cases.
4. DOJ also extensively has been using administrative subpoenas. These subpoenas are issued
directly by the agency, and not by any court. Therefore, there is no court review or other
showing required, such as probable cause, for a subpoena to be issued. Yet administrative
subpoenas can be enforced as any other subpoena. Continued and even more widespread use of
these subpoenas could greatly affect Fourth Amendment protections, for they permit the
government to obtain information which, in general, should be obtainable only through a search
warrant process. Greater authority to use these subpoenas also appears in a provision in the

1. For recent reporting on the development of the military tribunal process, detailing the internal
concerns within the Administration on the process and how it is to be used, and noting delays in moving
the process to actual trials (yet to commence although the Military Order establishing the tribunals was
issued shortly after the September 11 attacks) see articles in New York Times of October 24, 2004 and
October 25, 2004.
2. Citation of all commentary on military tribunals since they were first announced would be too
extensive for present purposes. Useful commentary of various approaches can be found on the website
FindLaw.com, particularly from commentators such as John Dean, Edward Lazarus, and Joanne Mariner.
Other commentary has been posted on other websites such as truthout.org, from commentators such as
Jennifer Van Bergen. Human rights and advocacy groups such as the Center for Constitutional Rights and
the ACLU have included similar analysis. The commentary by Barbara Olshansky of the CCR is particularly
useful. Further analyses have been presented in law reviews, law societies, or law associations. Law profes-
sors who have commented critically on the military tribunal situation include Francis A. Boyle (University
of Illinois), Jordan J. Paust (University of Houston), Michael J. Kelly (Creighton University), Michael
Greenberger (University of Maryland), James Willets (Nova Southeastern University), and Judge Evan
Wallach (New York Law School). Among the human rights organizations critical of the detention process
and the tribunals are Amnesty International, Human Rights Watch, Fair Trials Abroad, American-Arab
Antidiscrimination Committee, the American Civil Liberties Union, and the Guantanamo Human Rights
Commission. Again, for further discussion see Appendix 5-F and 5-E.

286
 Part V: The First Six Elements of a National Security State

proposed “PATRIOT Act II” (Domestic Security Enhancement Act of 2003, see summary in this
Edition).1
5. The government can detain a person as a material witness if that person has information
crucial to an ongoing grand jury nvestigation. A material witness could detained for any length
of time while the grand jury investigation is underway. The detention can occur if a federal
judge grants a government request by deciding that detention criteria are met including that the
person’s testimony is important to a criminal proceeding and it may be impractical to enforce
the person’s attendance by a subpoena. The material witness has a status hearing in a court and
can request release on bond. Material witnesses have been detained for long periods without
charge and often have limited access to family members or counsel.2 Release on bond is rare, and
an appeal to challenge the material witness detention is also rare.3
The DOJ has defended the use of material witness warrants in terrorism investigations,
which of late has occurred at least 50 times.4 The DOJ said material witnesses are represented
by counsel or counsel can be made available. The Department has declined to provide any
details about material witness detentions, such as time or place, saying the information could
compromise terrorism investigations. However, it has said that 50 per cent of those detained
were detained for less than 30 days, an additional 30 per cent were detained for less than 60
days, and another 10 per cent were detained for less than 90 days (leaving some who were
detained for "more than" 90 days, the actual time periods not known). In some instances,
charges brought against these individuals included misleading information to federal agents,
conspiracy to commit mail fraud, or conspiracy to support terrorism.
Continued use of material witness warrants will permit the Justice Department to detain
for various periods (the Department has admitted to detentions as long as three months) those
supposedly connected to terrorism but not criminally charged. Even if the use of material
witness warrants is legal, expansion by DOJ in terrorism investigations to at least 50 cases since
September 11, 2001, is disturbing and stretches the limit of the purpose of these detentions.
6. Further along in the development of executive treatment of suspects is increased use by
the DOJ of emergency foreign intelligence warrants. The Attorney General can use these warrants for
emergency surveillance under the Foreign Intelligence Surveillance Act for 72 hours, before the

1. According to reports, the government made use of administrative subpoenas more than 3,900 times
in a variety of cases in 2001. These subpoenas are already authorities in 300 kinds of investigations. See
“Bush Seeks To Expand Access to Private Data,” The New York Times, September 14, 2003.
2. One of these cases is Maher (Mike) Hawash, an Intel software engineer in Portland, Oregon, seized
March 20, 2003, by armed FBI agents and jailed in solitary confinement for two weeks without charges,
supposedly as part of an investigation of a $10,000 contribution he made to the Global Relief Foundation,
an Islamic charity suspected by the government of funnelling money to terrorist groups. According to
reports he was in 23 hour lockdown and is strip searched whenever he re-enters his cell. See “Arab-Amer-
ican Held Two Weeks Without Charges, Friends Say,” Associated Press, April 4, 2003 (The Baltimore Sun,
April 4, 2003, p. 6A). Hawash was indicted on terrorism charges in May, 2003 and has been suspected of
being linked to others arrested in Portland and charged with terrorist activity. Family members, supporters,
and observers have protested his detention. A web site has been set up on his case: www.freemikeha-
wash.org.
3. One such case, however, is United States v. Awadallah, 202 F.Supp. 55 and 202 F.Supp. 82 (S.D.N.Y.
2002), where the District Court ruled a person held as a material witness as part of a terrorism investigation
cannot be held indefinitely. The Court also suppressed grand jury testimony by the person, finding that the
material witness statute and the Fourth Amendment were violated in various aspects of government
activity in the case, including obtaining defendant’s supposed consent to a search of apartment and vehi-
cles. However, that decision was reversed by the US Court of Appeals for the Second Circuit. See discussion
elsewhere on this Characteristic.
4. See Justice Department response to letter of inquiry from Chair and Ranking Member of House
Judiciary Committee, discussed in detail elsewhere.

287
 No Greater Threat

FISA Court reviews the warrant application. Since September 11, this authority has been used more
than 170 times. Yet, in the 25 years since the enactment of the Foreign Intelligence Surveillance
Act in 1978, it had been used only 47 times.
7. The potentia for indefinite detention of aliens for national security concerns was
underscored in an administrative determination from the Department of Justice (through
Attorney General Ashcroft) in April, 2003. The ruling involved a Haitian immigrant released on
bail while awaiting disposition of his asylum claim. The DOJ determined that release on bail
should not be granted if the government provides evidence that extended detention is needed to
protect national security. This ruling is similar to an earlier DOJ directive that people from Iraq
and 32 other countries who arrive in the U.S. seeking asylum as to be detained while their
asylum claims are under review. Immigrants in these circumstances now can potentially be
detained without bail indefinitely. The Attorney General has ordered FBI agents and US
marshals to detain immigrants for alleged immigration violations even if there is insufficient
evidence of any criminal activity.
There are also reports that the government is increasing its denial of asylum requests.
These include requests from individuals with no terrorist involvements or coming from nations
that have no ties to terrorism.1
8. The treatment of the “September 11 detainees” especially at the Metropolitan Detention
Center was described in an extremely extensive and detailed report from the DOJ Office of
Inspector General, released in April, 2003. These detentions were part of the arrest of more than
1,000 aliens by the Justice Department immediately after the September 11 attacks.2 The often
extremely critical report, nearly 200 pages long complete with charts and a review of the
detention process, revealed lack of coordination, staffing issues, analysis delays, differing legal
approaches, and conflicts between the FBI, the INS, other areas of the DOJ, the CIA, and the
Bureau of Prisons in dealing with detention problems. The result was detentions which at times
lasted more than 90 days, failure to follow immigration provisions such as the time period for
notifications of immigration hearings, and other government miscues in the process.
During all this time, detainees were held in conditions that in many cases and for various
periods included: physical and mental abuses, harassment, constant lighting in cells, constant
videotaping in cells, 23- hour lockdown, exercise offered only outside in cold conditions
without warm clothing provided, segregation from other prisoners, shackling when let out of
cells for any other purpose other than exercise, communications blackouts (no visits, no
telephone calls in or out, no mail in or out), refusal in some cases to provide detainees with
essential needs including toiletries, little or inadequate medical attention, and lack of contact
with family members or with counsel.3 Some detainees continued to be held despite a stated
willingness to leave the country.
The OIG’s initial April, 2003 Report noted serious problems of coordination, approach,
and delays caused by information or staff overloads in New York offices of the FBI and related

1. “Cautious INS Policy Draws Criticism,” Associated Press, September 16, 2002. The story notes that for
the first nine months of fiscal 2002, asylum rejections have increased nearly 25 per cent, from 9,318 to 11,509
compared to the same period last year. Approvals were down three percent from 15,213 to 14,701. Total
asylum applications increased three percent, from 49,346 to 51,060.
2. “The September 11 Detainees: A Review of the Treatment of Aliens Held on Immigration Charges in
Connection With the Investigation of the September 11 Attacks.” Office of Inspector General, April, 2003.
The report was the subject of widely press attention and discussion on Internet sites especially from civil
rights and human rights advocacy groups. See “Report Faults Sweep of Illegal Immigrants,” June 3, 2003.
3. The Report noted that investigation into abuses of these prisoners which may have occurred in cells
where videotaping was taking place, was hampered by the fact that in order to solve “storage” problems of
the videotapes, Bureau of Prison officials destroyed the tapes after 30 days.

288
 Part V: The First Six Elements of a National Security State

agencies. There were confusions over classification status of detainees, including a decision that
no detainee would be released on bond (over concerns that release might be of someone with
serious ties to terrorism or who could commit other terrorist acts). The OIG Report made
numerous recommendations including better coordination, clearer policy on designation and
status of detainees arrested on suspicion of terrorist activities, better approaches to detention
procedures, and stricter adherence to existing regulations on time limits for notifying a foreign
national taken into custody of immigration hearings.
Even more critical was the OIG’s Supplemental Report of December of 2003.1 That report,
after further investigation, provided even more disturbing details about detainee treatment at
the Metropolitan Detention Center. Some details were revealed from video tapes obtained by
the Inspector General, as well as from dozens of interviews with staff, guards, and even
detainees. It must be emphasized that none of these detainees was ever charged with any crime involving
the September 11 attacks.
The OIG Supplemental Report again faulted confusing information provided to the
Bureau of Prisons (BOP) about detainee status and whether they posed an actual terror threat,
combined with a greatly heightened and emotionally charged atmosphere at the FBI, INS, and
BOP of overworked staff, and the general secrecy surrounding activities within the facility, as
factors in instances of detainee abuse. The report related a consistent pattern of abuse of
detainees which cannot be explained by any appropriate government policy.
The Supplemental Report found basis for numerous detainee allegations of abuse. They
included: slamming detainees into walls, bending or twisting detainees’ arms or hands, lifting
detainees off the ground by arms or handcuffs, stepping on leg restraint chains, improper use of
restraints, and other rough treatment including verbal abuse. It also found basis for allegations
of other unwarranted, improper, or even illegal actions by staff or guards against detainees
designed to inflict pain, to punish supposedly non-compliant detainees, and to “establish
control” over detainees. The report notes that all of these activities violate Bureau of Prisons
policies.
The report was particularly explicit about allegations of verbal abuse. According to
detainees, staff and guards called them names like “fucking Muslims,” “scumbags,” “dirtbags.”
Detainees said they were threatened with statements such as, “Whatever you did at the World
Trade Center, we will do to you,” “You’re never going to leave here,” and “If you question us, we
will break your neck.” The Supplemental Report could not verify each statemen but concluded
detainees had been subjected to verbal abuse of this sort.
The Supplemental Report expressed concern about a Detention Center practice of
videotaping meetings between detainees and counsel without knowledge or consent of
detainee or counsel (and without a court order), eavesdropping on conversations with counsel,
and strip searches of detainees which also occasionally were videotaped — even when a female
staff member was present or nearby. Other matters in the Supplemental Report (some were
noted in the original Report), included banging on cell doors by guards at all hours of the day or
night, 24-hour illumination of cells, or other forms of sleep deprivation.
The Supplemental Report recommendations include: guidance on proper detention
procedures, strict policies on videotaping detainees including prohibiting videotaping strip
searches, educational efforts to curtail verbal abuse of detainees, appropriate attention to

1. See, Supplemental Report on September 11 Detainees’ Allegations of Abuse at the Metropolitan Detention Center in
Brooklyn, New York, released in December, 2003 by the Office of Inspector General of the Department of
Justice.

289
 No Greater Threat

detainee complaints of mistreatment, and proper response to requests of or necessity for

medical treatment.1
It is most interesting how many of these abuses, occurring in September 2001, to January,
2002, mirror many of the later abuse allegations from Iraq detention facilities and from Camp
Delta/Guantanamo Bay (see discussion here and in other sections), of months or years later.
Clearly, the potential for such abuse mixed with additional anxieties, pressures, and attitudes
in wartime scenarios, have produced shameful episodes of rampant prisoner abuse.
9. The CIA's policy of "redition" or "extraordinary rendition," which recently has been the
subject of ever more consistent reporting, is an even more disturbing development. The
government deliberately “deports” terrorism suspects to their countries of origin, where U.S.
agents are aware that these persons are likely to be tortured or mistreated by authorities, with
the U.S. then making use of information obtained by those methods.2 According to reports, this
practice of extraordinary rendition, used on occasion in previous Administrations, now has
been greatly expanded.3
Among the more publicized instances of this practice involves Maher Arar, a Syrian- born
Canadian, detained while changing planes in New York in 2002 although his name was not on
any terrorist watch list. Arar was not charged in the U.S., or returned to Canada, but sent to
Syria, where he was seized and tortured — for the supposed crime of having a family member
who had joined an alleged terrorist organization (Muslim Brotherhood) after Arar moved to
Canada. According to Arar, in Syria he was held for 10 months in a tiny cell and repeatedly
tortured until he was released after the evidence against him was found not valid by a Syrian
court. Now returned to Canada, he is suing the United States government.4
Another instance was Mamdouh Habib, seized in Pakistan by United States forces and
first sent to Egypt interrogation for before being taken to Camp Delta at Guantanamo Bay.
There is no official word on what sort of interrogation Habib was subjected to while in the
hands of Egyptian authorities.
10. There are reports that CIA detention facilities are being concealed not only from public
knowledge but also from international agencies such as the Red Cross.5 Reports are that at
these facilities, CIA interrogators used graduated levels of force, including “water boarding,”

1. Among the report’s concluding statements: “In sum, we believe that the evidence developed in our
investigation shows physical and verbal abuse of some detainees by some MDC staff members. We believe
that the BOP should take administrative action against those employees who committed these abuses.
Further, we believe the BOP should take steps to prevent these types of abuse of occurring in the future,
including implementing the recommendations we made in this report.”
2. According to one story, legal memorandum had advised United States government officials that if
they are considering using interrogation methods that could violate United States anti-torture statutes, the
United States officials might avoid responsibility by claiming that the detainees were formally in the
custody of another country.
3. See Isabel Hilton, “The 800lb Gorilla in American Foreign Policy,” The Guardian, July 28, 2004. The
report notes that Rep. Edward Markey (D-MA) has introduced legislation to make the extraordinary rendi-
tion practice illegal, calling the practice “the 800lb gorilla in our foreign and military policy-making that
nobody wants to talk about.” The report states according to Rep. Markey, George Tenet when he was CIA
director admitted that in the year since the September 11 attacks, the CIA has used the practice on 70 people
who were all suspected terrorists.
4. As of June, 2004, a public inquiry also was underway in Canada over the circumstances of the Arar
incident. The inquiry, presided over by Judge Dennis R. O’Connor, may implicate the Canadian government
and the Canadian Security and Intelligence Service (CSIS). Critics have protested that even though the
inquiry is to be public, the judge has permitted a series of closed hearings with government representatives
to review supposedly classified information.

290
 Part V: The First Six Elements of a National Security State

which simulates drowning, as interrogation techniques. This is similar to a policy of “stress and
duress” tactics on terrorism suspects in other overseas facilities.1
These techniques were authorized by a set of interrogation rules for high level al-Qaida
suspects supposedly approved by the Bush Administration and employed at these concealed
CIA facilities.2 The reports indicate that there may be as many as 70 to 100 “ghost detainees”
held by the CIA or under military control at undisclosed international facilities.3 Reports
suggest that these “high-level” detainees might never be released and might be moved from
international detention locations to Camp Delta for indefinite confinement.4
11. There was immediate reaction to revelations that a memorandum was circulated
within the Administration suggesting that for terrorism detainees the U.S. government need not
strictly abide by federal laws or international standards prohibiting torture prisoners. The Geneva
Conventions prohibit “violence to life and person” especially “cruel treatment and torture” and
prohibit “outrages upon personal dignity” such as “humiliating and degrading treatment.” The
U.S. has signed international conventions or policies against torture, including the UN
Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or
Punishment, which prohibits a country from claiming any “exception” to its prohibitions, even
under a state of war. United States’ own anti-torture statutes prohibit the use of torture5 by any

5. See Naomi Koppel, “Red Cross Fears U.S. is Hiding Detainees,” Associated Press, July 13, 2004. Red
Cross officials such as Antonella Notari have said that some people who have been reported as arrested by
United States forces or agencies “never showed up” at any of the places controlled by the United States that
have been visited by the Red Cross.
1. These include keeping a person standing or kneeling for long periods, sleep deprivation, kept in
awkward or uncomfortable positions for long periods, constant noise, constant lighting, or in some
instances withholding food. Long periods of confinement without release from the cell for any exercise are
also used. See “`Stress and Duress’ Tactics Used on Terrorism Suspects Held in Some Overseas Facilities,”
The Washington Post, December 26, 2002, p. A1. The story detailed tactics used on detainees held at a military
facility in Afghanistan, now operated by US military. The extensive article is a useful review of this new
phase of American government treatment of detainees, and in the words of one official quoted in the article,
“after September 11 the gloves came off.”
2. James Risen, David Johnston, and Neil A. Lewis, “Harsh C.I.A. Methods Cited in Top al Qaeda
Interrogations,” The New York Times, May 13, 2004. The story says that the CIA has used “coercive interroga-
tion methods against a select group of high-level leaders and operatives of Al Qaeda” and that these
methods “have produced growing concerns inside the agency about abuses.” The story notes that the deten-
tion facilities are not in Iraq. The interrogation rules “were among the first adopted by the Bush administra-
tion after the Sept. 11 attacks for handling detainees and may have helped establish a new understanding
throughout the government that officials would have greater freedom to deal harshly with detainees.” FBI
officials learning of the methods have warned CIA officials that information obtained through these
methods could not be used in criminal trials in the United States and could compromise FBI investigations.
The story states, “So far, the agency has refused to grant any independent observer or human rights group
access to the high-level detainees, who have been held in strict secrecy. Their whereabouts are such closely
guarded secrets that one official said he had been told that Mr. Bush had informed the C.I.A. that he did not
want to know where they were.”
3.Some of these revelations also are made by investigative journalist Seymour Hersh in his recent
book, Chain of Command.
4.Some reports suggest among these CIA detention centers are military bases just outside Iraq, a
prison at Kohat in Pakistan which is under United States military control, the al-Jafr prison in the southern
part of Jordan, military facilities in Egypt, a British-held facility in the Indian Ocean called Diego Garcia,
and even some United States Navy vessels or British navy vessels. See Isabel Hilton, “The 800lb Gorilla in
American Foreign Policy,” The Guardian, July 28, 2004.
5. See 18 U.S.C. §2340-2340A, which defines torture as an act intended “to inflict severe physical or
mental pain or suffering” such as prolonged mental harm by physical pain, use of mind-altering substances,
threat of death, or threat of death or severe treatment of another. The statute also makes it a crime for a
United States citizen to engage in torture even outside the United States.

291
 No Greater Threat

U.S. agent or law enforcement officer, even if it does not occur within U.S. borders. The memo
suggested that the actual prohibition against torture would include only actions against a
person that would produce such physical stress, pain, or mental stress as to produce the
potential of imminent organ failure or immediate risk of death. This would mean that a wide
range of conduct against a person, that would not reach that threshold, would not necessarily
be prohibited.
Human rights groups including Amnesty International, Human Rights First, the
Guantanamo Human Rights Commission, ACLU, and the Center for Constitutional Rights, as
well as various advocacy groups such as A.N.S.W.E.R. and several religious advocacy organi-
zations, consistently have criticized these practices. (See also discussion at Appendix 5-F).
12. The general policy approaches on detention and treatment of aliens or terrorism suspects, revealed
in reports concerning Camp Delta, Iraq, and Afghanistan, combined with Administration
policies on terrorism suspects or detainees, demonstrate a crystallization of government
attitudes since September 11 involving anyone suspected of any terrorist connection or terrorist
act. Not all of this policy has been revealed, but enough is known to conclude that the
government is blurring lines and limits regarding terrorist detainees or arrestees, whether or
not they are foreign nationals.
On the whole, this characteristic of a national security state, regarding role of the
judiciary and executive treatment of suspects, has increased — and substantially — since the
first anniversary of the PATRIOT Act and of the September 11 attacks. If present trends
continue, by the close of 2005 this Characteristic could be fully met.

EXPANDED COMMENTARY FOR 2004 ON CHARACTERISTIC NO. 4

Secrecy of Ruling Authority and Momentum of Threat

Increases in government secrecy are a rising trend. The Homeland Security Act provides for
secrecy and confidentiality concerning information gathering by, or provided to, the
Department of Homeland Security (DHS) from any source, exempting much if not all of this
information from the Freedom of Information Act — that is: information goes in, but does not
come out.1 At the same time, supposedly confidential information sharing between DHS and
federal or State law enforcement agencies is authorized. Information sharing provisions allow,
when necessary, for certain sensitive homeland security information to be shared with local law
enforcement or with other personnel.2
DHS' research and development in homeland security planning, methodologies,
approaches, technologies, and responses, generally would be secret. DHS has an “Advanced
Research Projects Agency” a research arm that certainly will be conducting highly sensitive
research in homeland security developments and technologies.
Continued secrecy is maintained by most federal intelligence agencies, including the
multi-agency “intelligence community” for terrorism investigations. This includes government

1. For a discussion of the Department of Homeland Security and the Homeland Security Act, see the
review and analysis of that statute. And see also discussion of lawsuit by the Electronic Privacy Information
Center on the extent and scope of the DHS secrecy and seeking information on DHS plans such as for a
national driver’s license. “Homeland Security Office Loses Lawsuit,” Associated Press, January 2, 2003.
2.See also, “Intelligence Sharing Plan Unveiled,” New York Times News Service, May 15, 2004, p. 4A. The
intelligence sharing would continue the information loop among various government agencies, although,
once again, that information sharing is secret and persons who may be the target of such information
sharing are not informed of it.

292
 Part V: The First Six Elements of a National Security State

authority for the National Security Agency to reject a large number of Freedom of Information
Act requests.1
As already mentioned, increased secrecy is now allowed by a federal court decision
(Court of Appeals for the District of Columbia Circuit) that the government need not release
names of persons arrested or detained on suspicion of terrorism, under an exception to the
Freedom of Information Act. The decision declared that the terrorist threat must be compared
to the threat of the Cold War, and that the judiciary is in “an extremely poor position” to
“second guess” Executive Branch judgments as to potential national security threats posed by
releasing this information.2 As also noted, the Court of Appeals for the Third Circuit ruled that
the government close certain immigration hearings.
Increases in secrecy are part of the increased use of the Foreign Intelligence Surveillance
Act authorities, expanded by the PATRIOT Act. In 2002, a record number of warrants were
obtained from the FISA Court.3
Further secrecy will come from a recent Executive Order suspending, for three years, a
prior 1995 Executive Order (in the Clinton Administration) allowing automatic declassification
of most government documents more than 25 years old. (The effective date of that Order was
changed to December 31, 2006.) The Executive Order also, for the first time, gives the Vice
President the authority to classify information.
Secrecy also is found in the Administration's overall approach to the Freedom of
Information Act, as well as in court cases supporting the Administration’s positions on FOIA.
Since 2001, FOIA has been found not to apply to government information on terror suspect
detainees, to NSA records, and to broad information sources of DHS. The reach of the FOIA has
been restricted by agency response to FOIA requests and increased obstacles.4 The Adminis-
tration has expanded authorities of the President and Vice President to restrict access to
records under the Presidential Records Act.
The Administration has sought restrictions on prohibitions against overreaching by
outside lobbyists under the Federal Advisory Committee Act. The Administration also has
altered expanded Presidential authority to designate Sensitive Security Information (giving
DHS the authority to apply this designation to information related to any type of transportation
instead of just civil aviation).

1. “NSA Can Summarily Reject Requests for Information,” The Baltimore Sun, December 11, 2003. The
article describes government or Congressional action confirming that the NSA can immediately reject an
FOIA request for anything which the NSA considers to be “sensitive records.” For similar article see, “Bill
Would Tighten Cloak of NSA Secrecy, Critics Say,” The Baltimore Sun, May 16, 2003. Critics says that essen-
tially removing the agency from FOIA requests is too sweeping and poses the danger “that the NSA is
reverting to the old Soviet Union here, where everything is per se secret and you don’t have any means to get
around it.”
2. The decision is Center for National Security Studies v. Department of Justice, 331 F.3d 918, 356
U.S.App.D.C. 333, 189 A.L.R.Fed. 541 (June 17, 2003). It was a 2 to 1 decision, with the dissent by Circuit
Judge David S. Tatel.
3. “Agencies’ Reliance on Secret Spy Court Disturbing to Some,” May 3, 2003, p. 2A, noting that in
2002, 1,228 warrant applications were made, an increase of 31 per cent over 2001. All were approved. The
requests were almost the same as the combined total search or surveillance warrant requests across the
country in other criminal investigations. In 2000, the FISA court approved 1,012 such warrants. See “Memo
Details Illegal Acts, Serious Lapses at FBI,” Associated Press, October 10, 2002, noting that these warrants
“are among the most powerful tools in the U.S. antiterrorism arsenal, permitting secret searches and wire-
taps for up to one year without ever notifying the target of the investigation.”
4. Some of this information can be found in an article about a report by Rep. Henry A. Waxman,
“Secrecy in the Bush Administration,” September 18, 2004. It notes Administration activity to restrict
access to information in each of the three areas of open government: public access to federal records, restric-
tions to access to federal information, and congressional access to federal records.

293
 No Greater Threat

There are further restrictions to access by Congress and by the General Accounting Office
(GAO) to government records. There was a challenge by the Administration to the authority of
a member of the House Government Reform Committee to obtain records which, under current
law, are to be provided on request. The Administration has resisted information sought from
Congress for congressional reviews of current or pending legislation. In the early months of the
9/ 11 Commission, the Administration refused to provide the Commission with all White House
records requested.
In general, secrecy has become an Executive Branch and a cultural theme. Most certainly,
it is increasing in the private sector as well.
The momentum of the threat is also an aspect of this characteristic subject to multi- aspect
development since mid-2002. Among the many responses to the government perception of
threat momentum is the placement of CIA officers in FBI offices, and the FBI opening of 10
additional overseas field offices in places such as Indonesia, Afghanistan, Yugoslavia, Malaysia,
and Morocco. But there are numerous other examples of threat momentum:
Celebrity Foreigners Refused Entry. The momentum of the threat is evident in the use of
authorities to detain or to refuse foreign nationals seeking entry into the U.S. In one celebrated
recent instance, Bernadette Devlin (Bernadette Devlin McAliskey), a former Member of
Parliament (at 21, the youngest person ever elected to Parliament) and supporter of the Irish
resistance in Northern Ireland in the 1970s and 1980s, was refused entry to the U.S. as a
supposed security threat, although she is now 56 years old and the civil strife in Northern
Ireland has been quelled to a great degree.1 Another well-publicized incident in the Fall of 2004
involved former pop singer and songwriter Cat Stevens (Yosef Islam), detained while
attempting to enter the U.S. (he had been permitted entry several other times, even after
September 11) and returned to England. Although in his Cat Stevens days he was known for
many uplifting songs, including “Peace Train,” he apparently is now a security threat.
Threat Warnings. Surely another example of the momentum is the almost continual issuance
of threat warnings from the federal government since September 11. These announcements
particularly include the September 11 anniversary in 2002, 2003, 2004, or national holidays (see
box). In 2003, this increased response included New Year’s Eve in New York City, due to the
heightened terror alert at that time.2 Threat statements and announcements, often involving
vague warnings, have continued on a regular basis.3 Threat concerns also include areas outside
big cities — which means that there are terror concerns inside and outside big cities.4 Specific
threat announcements include schools, nuclear plants, ferries, hospitals, and shopping malls.5
New homeland security plans being considered or in place affect everything from agriculture,

1. Devlin was travelling with her daughter Dierdre to the United States, which she had done
numerous times, to visit family. She was cleared by authorities in Ireland to make her trip but was
approached by agents when she got off a plane in Chicago. She was photographed, fingerprinted, and
required to board a return flight to Ireland. According to some reports, U.S. border guards were belligerent
and insistent with speaking with the former MP.
2. See New York Times News Service, “Cities Boosting Security for `Orange’ New Year’s,” December 31,
2003.
3. February, 2003: “United States Warns of Possible New al-Qaida Attacks,” New York Times News
Service, reported in The Baltimore Sun, February 6, 2003, p. 15A; “U.S. Increases Terrorist Alert to `High Risk,’”
February 8, 2003, p. 1A; “Al-Qaida May Strike By Week’s End,” February 12, 2003, p. 3A; “Al-Qaida Activity
Indicates Two Major Attacks, U.S. Says,” February 14, 2003, p. 10A (threat level raised after investigations
showed possible strikes); “U.S. Authorities Warn of `Lone Wolf’ Terrorists,” February 23, 2003, p. 12A
(government individuals noting threat from “single individuals sympathetic or affiliated with al Qaida,
acting without external support or surrounding conspiracies”); “FBI Plan Prepares for Possible Attacks,”
February 28, 2003, p. 5A (FBI notes that even though threat level was lowered again to yellow, Americans
“must continue to be defiant and alert”).

294
 Part V: The First Six Elements of a National Security State

subways, government buildings, banks, bridges, trucks, and the Internet.1 Security concerns
kept the Statue of Liberty closed until the summer of 2004.2 However, security concerns
regarding national monuments — including the Liberty Bell and Independence Hall in
Philadelphia — remain high, as detailed also by a special White House policy paper and other
internal government reports.3
Following variable threats and various changes in the terror alert level, some members of
Congress have suggested that the system itself may need to be changed, to focus on specific
regions, cities, or industries.4 There have also been concerns about the costs to industries
especially airlines, due to the terror alert changes.5
Airport Alerts, Scrambles (and Problems). Yet, additional security proposals are advanced, such
as gathering and collating information about “odd” situations or incidents at airports.6 That
effort may result in other problems, compounded by the fact that the aircraft terrorism reports
have caused more than 1,500 fighter jet scrambles on terror warnings but have turned out to be

4. Associated Press, “Terrorists May Attempt Strikes Outside Big Cities,” December 24, 2003. The story
notes, “Intelligence gathered by the U.S. government indicates al-Qaida terrorists have a keen interest in
striking targets that are far from major cities, such as power plants, dams and even oil facilities in Alaska.
The Pentagon said yesterday that it is broadening air patrols throughout the country.” The government was
also deploying surface-to-air missile systems in the DC area and perhaps locating similar systems in New
York City. The terror alert also involved “holiday events that draw large crowds, such as college and profes-
sional football games and New Year’s celebrations and parades.”
5. “Schools Vulnerable to Terror, Police Say,” October 7, 2002, p. 3A; “A Year After September 11,
Cargo Trucks Still Vulnerable,” September, 2002; “Hospitals on Alert for Possible Terrorism,” November 15,
2002, p. 4A (hospitals in various cities including San Francisco and Houston responded to terrorist alert
issued by FBI); “FBI Warns of Possible Attack on Railways, Other Transit Systems,” Fall, 2002; “Arizona
Nuclear Plant Called Possible Terrorist Target,” March 21, 2003, p. 5A; “U.S. Ferries Called Attractive
Terrorist Targets,” August 12, 2003, p. 7A (Coast Guard and DHS stating that large passenger ferries
present greatest terrorist risk in maritime transportation because they confine several thousand people in
one space far from land and have little or no passenger screening, noting that 62,000 people per day use the
Staten Island ferries in New York); “Jewish Schools, Synagogues Warned,” Associated Press, and “Air Cargo
Remains `Hole’ In Security,” July 10, 2002, page 7A. A particular interesting element to this is: “Capitol Hill
Getting 20,000 Gas Masks.”
1. See “Homeland Security Plan Aims Far Beyond Previous Responses,” Associated Press, March 19, 2003,
and “New York, Washington Boost Security, Fearing Revenge for War,” Associated Press, March 19, 2003.
And press reports in July of 2004 of trains as possible targets.
2. See, Chicago Tribune, “Security Fears Keep Lady Liberty Off Limits,” December 12, 2003. Changes in
the design of the tourist visiting areas for the monument and other security enhancements were directed by
government officials after the statute was closed following the September 11 attacks.
3.See, The National Strategy for the Physical Protection of Critical Infrastructures and Key Assets, a special White
House policy paper on new security initiatives for these areas including national monuments. Also, press
reports such as Associated Press, “Security of National Monuments Criticized,” September 6, 2003,
detailing a report from the Interior Department Inspector General concluding that the National Park
Service has failed to protect some of the country’s most prominent national monuments. The report recom-
mended trained security managers at significant national monuments, three year review of security assess-
ments, and some private security guards, perhaps armed, at sensitive locations.
4. Associated Press, “House Lawmakers Want Changes in Terror Alert System,” December 29, 2003.
The story notes that Rep. Christopher Cox (R-CA), chair of the House Select Committee on Homeland
Security, said “I think we always have to worry about scaring people to death.”
5. See “Concerns on Flights May Cost Airlines,” The Baltimore Sun, January 3, 2004. The story notes
that airline passenger traffic is still sluggish and that the industry lost $11.3 billion due to a poor economy
and terrorism fears. Losses from canceled flights “add up quickly.”
6. Associated Press, “`Piles of Information’ On Odd Incidents on Planes,” January 1, 2004. The story
reported on comments by airline security consultants and from a report by the Markle Foundation Task
Force on National Security in the Information Age, which calls for better information gathering and review
methods in these and other sectors.

295
 No Greater Threat

false alarms chiefly succeeding in raising apprehension and confusion about air flight terror
warnings.1 Since September 11, FAA air traffic controllers have been assisting at NORAD (North
American Air Defense command), and military air traffic controllers have been monitoring
civilian radar and communications. The result have been problems with coordination and
communication, hampering efficient operation of a national warning system.
In addition, at airports, screening systems for passenger luggage for commercial flights
continues to be complicated by gaps and problems, due to the sheer volume involved.2
Attention is being paid to trains and transit, especially after the March 11, 2004 train bombings
in Madird.3 Americans take more than 11 million trips a day by bus, train, and subway,
compared to 1.8 million trips per day by air. However, the U.S. has spent about one half-cent per
ground transit passenger on security since September 11 compared to $9 per airline passenger.
In April, 2004, a Senate Committee approved a measure for $1 billion to protect railroads and
mass transit systems from terror attacks.4
Regional Alerts and Special Event Response. Regional terror threat alerts have included threat
announcements in the Summer of 2004, focusing on possible attacks in New York or the
District of Columbia in June and July, 2004 (which added even more security to the transfor-
mation of midtown Manhattan and Wall Street into an armed camp during the Republican
National Convention).5
Terror alert and security measures often are accompanied by extreme reactions. As
already indicated, government actions connected to the 2004 Republican and Democratic party
conventions included many questionable arrests and detentions. Some reports indicated that
Joint Terrorism Task Forces in Massachusetts (for the Democratic National Convention in
Boston) and in New York (for the Republican National Convention in New York City) were

1. Los Angeles Times, “Glitches Cause False Aircraft Terrorism Alerts,” June 30, 2004. The report states
that “the sense of reassurance that should come from such aggressive responses has been punctured by
recent communications breakdowns in which officials frantically tried to determine whether another
airplane attack could be imminent.” Among the examples: a false hijacking alarm at Los Angeles Interna-
tional Airport in May caused by a malfunctioning transponder on a Singapore Airlines flight, an incident in
June involving a photo flight over New York, “an episode that led to the evacuation of the U.S. Capitol amid
preparations for former President Ronald Reagan’s funeral” also caused by a transponder problem in a plane
with a State Governor as a passenger and that had clearance to land at the Ronald Reagan Airport, and
several incidents involving inadvertent invasions of restricted airspace by small private planes. The commu-
nications difficulties have resulted in more complications in dealing with potential air terror alerts.
2. See “Thousands of Bags Reportedly Missed by N.J. Airport Screeners,” The Baltimore Sun, May 10,
2004, p. 5A. The report notes a story in the Newark Sunday Star-Ledger that inadequate staffing and pressure
to keep lines moving have affected security at the airport — where one of the four planes involved in the
September 11 attacks originated. The airport is among the nation’s busiest, handling 29.4 millions passen-
gers every year.
3. See Stephen Kiehl and Johnathon Briggs, “Security Bolstered on Area Trains,” The Baltimore Sun,
March 16, 2004. And March 23, 2004, “New Security for U.S. Rails Announced” which would involve
selected luggage searches and use of bomb-sniffing dogs. DHS said that pilot program “is a way to take a
look at what people will tolerate and make it as convenient as possible.” Also March 24, 2004, “Antiter-
rorist Funds for Railroads Suggested” which would be not just for quick response to terror alerts but “long-
term structural changes” concerning rail security.
4. Associated Press, “Senate Panel OKs Anti-Terror Bill,” May 9, 2004, passed by the Senate Commerce
Committee.
5. Press reports of May, 2004 about supposed tip about major terrorist attack on US cities in Summer,
and August, 2004 about “very specific” terror threats to New York, Washington, D.C., and New Jersey, with
additional stories about New York preparing for possible “unthinkable” attack. The security measures
included closing the Holland Tunnel either to all traffic or to truck traffic, heightened security at airports in
these areas, and visible armed security details at commercial buildings or centers including offices in New
York and DC for the International Monetary Fund and the World Bank.

296
 Part V: The First Six Elements of a National Security State

targeting activists, and conducting intense surveillance and in some cases, harassment, in areas
even beyond the host States of the two conventions.
This incidents included FBI agents following young students in Missouri who were
planning to drive to Boston with a St. Louis-based activist group for the Democratic
convention, but were prevented from doing so when they were subpoenaed to testify before a
grand jury on July 29. In another incident, FBI agents approached a 21 year old intern with the
American Friends Service Committee office in Denver, Colorado at her home inquiring about
information about anyone who may have plans to commit “criminal acts” at the conventions.
This is despite FBI acknowledgements that there was no solid evidence of any terrorist actions
being planned for either convention.
According to some reports, a legal opinion by the Office of Legal Counsel of the Justice
Department suggested that surveillance and investigation of protestors does not violate First
Amendment free speech rights, because actual or even intended “criminal behavior” which
could result in personal injuries to citizens or police is not covered by the First Amendment.
The memo said any “chilling effect” is “substantially outweighed” by the “public interest in
maintaining safety and order during large-scale demonstrations.” This suggests that the
declared prohibitions in the PATRIOT Act, against surveillance and investigation of U.S.
citizens engaged in First Amendment activities, may be in jeopardy. A further indication is that
those opposed to government policy, rather than those posing substantial threat of criminal
terrorist actions, will be targets of government attention, surveillance, investigation, and
possible arrest.
Threat announcements or changes in threat level are based in part on twice-daily video
conferences held confidentially with officials at the White House, FBI, CIA, DHS, and other
agencies.1 The results have been threats of all sorts both vague and not which, to date, have not
materialized.2 Threat level changes, such as a change from yellow to orange in December, 2003
to early-January, 2004, also can be expensive, with one estimate that the cost of a change from
yellow to orange, due to extra security personnel, overtime, and costs associated with other
responses, is $1 billion per week.3
Terrorist Conduct Warnings (Almanacs). The momentum of the threat further is seen by other
sometimes extreme reactions by government agencies. One prime example is the announcement
by the FBI in December, of 2003, that law enforcement agencies should be watchful of potentially
suspicious persons with world almanacs. Supposedly, almanacs could be an additional indication of a
potential terrorist because of the information they contain in of location and details of possible
terrorist targets such as bridges, notable sites, buildings, and government centers.4 Another

1. “Nation’s Terror Alert System Often More Art Than Science,” New York Times News Service, February
16, 2003, and “FBI’s Terror Warning Draws Conflicting Interpretations.”
2. See, various press reports: “Terror Alert Raised to `High,’” May 21, 2003, p. 1A (alert raised to orange,
for the fourth time since color-coded system was in place, after recent bombings in Saudi Arabia and
Morocco, and included additional security measures at airports and federal and State government build-
ings, banning of flights over stadiums, and increase in the security airspace over the Capital); “Terror Alert
Lowered to Yellow,” May 31, 2003, p. 3A.
3. “Ridge Lowers Terror Alert,” Baltimore Sun, January 10, 2004, p. 1A. The shift to orange alert
resulted, among other things, in 16 international flights canceled, F-16 fighter jet escorts for six other flights,
numerous airflight delays for additional screening, missed flights for passengers undergoing additional
screening or due to longer screening lines, and airscans for radioactivity in major metro areas such as New
York, DC, Los Angeles, and Las Vegas. The heightened atmosphere also results in numerous false alarms,
such as an incident in October, 2003 when the House of Representatives’ Cannon Office Building was
closed over an incident that wound up to be a toy gun that had been noticed by a security guard. See Nick
Anderson and Faye Fiore, “House Office Building Shut Down After Apparent Breach of Security,” Los
Angeles Times, October 31, 2003.

297
 No Greater Threat

similar effort by the FBI involved checking crop duster planes and pilots for potential use of
crop dusters by terrorists to spread hazardous chemicals or biological agents or contaminate
the food supply.1
At the same time, there is concern that some critical potential terror targets lack
sufficient response capabilities. These concerns include, for example, health systems, either
with regard to an attack on a health care facility or the ability of the health care system to
respond to a major terrorist incident. There does not seem to be a reliable or coordinated system
among health care providers for response to a major attack.2
Along with these threats is increased overall public terror threat anxiety especially on the
East Coast, leading to purchases of flashlights, blankets, can openers, sterno, battery radios, gas
masks, duct tape, and plastic sheeting to try to secure homes against a bioterror attack,
refurbishing existing bomb shelters, and constructing “safe rooms.”3 There can be no doubt that
this Characteristic has seen dramatic activity since mid-2002.

EXPANDED COMMENTARY FOR 2004 ON CHARACTERISTIC NO. 5

Media in the Service of the State
(No Expanded Commentary for this Characteristic)

Expanded Commentary For 2004 On Characteristic No. 6

Public and National Resources Devoted to Security Threat

Developments in this national security state characteristic of public and national resources
devoted to the security threat relate to seven major areas:
1. White House “national strategy” documents on the war on terrorism.
2. Increased activity of, or transformations in, agencies and projects, including the
Department of Homeland Security (see also some comment in Expanded Commentary for
Characteristic No. 1 and in the review of the Homeland Security Act).
3. Attention to security readiness in nearly all major areas of national life.
4. New levels of information sharing and coordination between federal, State, and local
agencies.
5. Continued and escalating overseas military and investigative operations.
6. Investigation and prosecution of various anti-terrorism cases. (Because many of these
activities overlap with other national security state characteristics, descriptions of these
developments topics may appear in 2004 Commentary on other characteristics).
7. New or expanded government initiatives on “bioterrorism.”
1. Numerous “national strategy” documents have been developed and issued from the
Administration since September 11. The topics range from fighting the war on terrorism, to
protecting critical infrastructure, to securing cyberspace. These documents describe a further

4. Associated Press, “FBI Warns Police: Watch for Almanacs,” December 30, 2003. The story was widely
reported in other news media and received much commentary in Internet articles.
1. Press reports of April 23, 2004, “FBI Checking Crop Dusting Planes and Pilots.” The report noted
that as part of the investigation, the FBI questioned 3,000 planes, pilots, and owners, and checked identifi-
cation.
2. Press reports of March, 2003 on a statement by the Joint Commission on Accreditation of Health
Organizations that hospitals are not sufficiently equipped or trained to effectively handle or respond to
major terror incidents.
3. “Attack Alert Sends Some Scrambling to the Store,” February 13, 2003, The Baltimore Sun, p. 3A. “Air
Out Fallout Shelter, Tape Up the Safe Room,” February 14, 2002, p. 1A.

298
 Part V: The First Six Elements of a National Security State

commitment of national resources and national policy attention to the war on terrorism on
many fronts. (See Expanded Commentary for Characteristic No. 9, at the end of Part VI, and a sketch of these
national strategy documents in Appendix 6-B).
2. Certainly, since the Fall of 2002 and the first anniversary of the 2001 September 11
attacks and the USA PATRIOT Act, a fundamental development is the creation of the
Department of Homeland Security, in the Homeland Security Act. The DHS is the first new
government department in 50 years and represents a massive shift of federal agency responsi-
bilities affecting several Cabinet Departments. The authorities of this Department are wide
ranging (see review and discussion of the Homeland Security Act). The Department will require
a multi-billion dollar budget.1
DHS will interact with numerous federal investigative agencies as well with State and
local law enforcement and similar personnel and even with foreign governments or law
enforcement agencies. Programs and planning from this Department, not to mention research
and development of terrorism response options and security technologies, will affect the lives of
every American. Much of this planning and development, as well as information gathering and
information sharing, will occur in secret. Undoubtedly, the DHS is a major leap along the
continuum of this national security state characteristic.
One example of the sheer multiplicity of agencies, programs, and projects in the DHS, is
the statement issued in April of 2003 describing the First 100 Days of Homeland Security. To some,
the list may be comforting, and to others, chilling:
— The new US-VISIT program (Visitor and Immigrant Status Indication Technology),
using biometrics and advanced technology at entry-exit points in the U.S.. As the DHS
describes it, “Drawing heavily on technologies and scientific capabilities, the system will utilize
a minimum of two biometric identifiers, such as photographs, fingerprints or iris scans, to build
an electronic check in / check out system for people coming to the U.S. to work, study, or visit.”
All foreigners with visas entering the U.S. will be photographed and fingerprinted upon arrival
at any air and sea port of entry, with identification checked against terrorist watch lists and
maintained. Equipment will be required at more than 150 land ports of entry. A visa visitor will
be required to provide information on immigrant and citizenship status, nationality, country of
residence, and an address while in the U.S.. Part of these biometric system requirements were
established in the PATRIOT Act. In 2002, visa travelers made up 60 per cent or 23 million, of
foreign visitors to the U.S. Congress has appropriated $380 for the new program for this year.2
Soon, citizens from “visa waiver” countries will need biometric passports to enter the U.S.3 (See
discussion of US-VISIT also at end of Part IV).

1. For example, see “Ridge Takes Reins of New Agency,” The Baltimore Sun, January 25, 2003, noting the
22 existing federal agencies transferred to the new DHS, and noting that it will have an “intelligence arm,”
which its the Information Analysis and Infrastructure Protection division, and that as a total agency, only
the Department of Defense and the Department of Veterans Affairs will have more employees. The story
notes that the Department’s budget for its first year is expected to be $33 billion. The DHS headquarters
building has yet to be constructed, until then the DHS headquarters offices will be located at the Naval
District of Washington’s Nebraska Avenue Complex. And see “29.4 Billion OK’d for Domestic Security,”
September 25, 2003, an authorization bill that include $4.2 billion for first responders, $9 billion for border
protection, and $5.2 billion for the Transportation Security Agency and air marshals. The bill was passed by
417 to 8 in the House and by voice vote in the Senate.
2. A GAO report has pointed out potential flaws in implementing such a wide-ranging program, indi-
cating it could be unmanageable. Associated Press, “GAO Says Program to Track Foreign Visitors is
Flawed,” September 24, 2003. But the government and DHS have continued to press on with the system and
called the start of the program a “success.” See “Added Security at U.S. Airports,” The Baltimore Sun, January
6, 2004.

299
 No Greater Threat

— Operation Liberty Shield, a comprehensive national plan to review critical

infrastructure and develop protection programs and response strategies.
— The Homeland Security Command Center, a national twenty four hour watch program
designed to be an information and program exchange and analysis operation for homeland
security.
— The Ready Campaign, which encourages citizen preparedness regarding various
threats and emergencies, and maintains a “ready.gov” website that also offers an emergency
guide to be downloaded and printed from the website.
Much more can be said about DHS and its central role in the war on terrorism. (See other
aspects of this 2004 Commentary, including at the end of Part IV, and the review of the
Homeland Security Act). DHS is fast becoming one of the most substantial federal agencies in
American life, so long as the war on terrorism and national security matters remain central
features of government policy.
3. There are also continual training and drills about terror threats, either coordinated or
initiated by DHS and involving federal, state, or local government agencies.1 Yet, these drills are
resulting in concern about “readiness.” A report after a five- day multi-city agency exercise said
the drill revealed communications problems, serious shortages of medical supplies and hospital
rooms, and response confusion.2 Another situation involving a drill made some headlines when
it was learned that security guards at a sensitive facility, the Y-12 nuclear weapons plant at Oak
Ridge, Tennessee, were given advance warning of the terrorist-attack drill, affecting the ability
of the exercise to determine security readiness in the event of an actual incident.3
4. In another indication of linking anti-drug and anti-terrorism policies, DOJ is seeking
funding for an informational sharing system to co-ordinate investigation information between the
Organized Crime Drug Enforcement Task Force (OCDETF) and the Foreign Terrorist Tracking
Task Force (FTTTF). According to DOJ, this coordinated information would enable OCDETF
“to leverage FTTTF’s existing technology and analytical tools” but also would allow FTTTF “to
extract relevant drug investigative information.” If this information was also “foreign
intelligence information,” it would be shared according to DOJ guidelines issued in September,
2002 for disclosing or sharing information from a criminal investigation with intelligence and
homeland security officials.4 The Department also has said that the proposed system will utilize

3. See discussion elsewhere and at end of Part IV, and e.g., New York Times News Service, “Passports to
Hold Computer-Read Body-Part IDs,” discussing biometric passports that will have information such as
from an iris scan or fingerprint.
1. Press reports of December 19, 2003, on terror threat exercise in May, 2003 in Chicago and Seattle
called “Topoff2” which revealed weaknesses in terror incident readiness.
2. New York Times News Service, “Test Showed U.S. Unready for Terrorists,” December 19, 2003. The exer-
cise cost $16 million to stage. The story stated that Administration officials expressed great concern over
the suggestion in the exercise report that “a continuing lack of preparedness by federal and local govern-
ments would result in unnecessary deaths in the event of a major terrorist attack.” The drill focused on
radiologic and bioterror attacks.
3. “Guards Tipped to Mock Terror Attacks,” Associated Press, January 27, 2004. The plant produces
parts for nuclear weapons and holds stockpiles of weapons-grade uranium. A review of the assault drill
found that guards defending the plant were allowed to view computer simulations of the attack, the day
before it was scheduled. The Department of Energy expressed dismay at the situation and noted that the
mock attacks cost $85,000 to stage. The plant had paid its private security service, arranged by Wackenhut,
an award fee of $2.2 million and rated its work “outstanding” in that same period as the “tainted” mock
attack. According to the news report, over the past two decades there have been problems with “tainted”
attack drills at nuclear facilities, such as precise advance information about the mock drill.
4.Also see discussion of the FTTTF information systems in a review of information-gathering
programs or projects conducted by government agencies, in 2004 Commentary on Characteristic No. 12.

300
 Part V: The First Six Elements of a National Security State

the Special Operations Division (SOD) as “a clearinghouse for distribution of tips and leads to
the field.”
Information sharing also would be enhanced by planned advancements in the Regional
Information Sharing System (or RISSNET), a system managed by the Bureau of Justice
Assistance in the Office of Justice Programs. This system is used by the 84 offices of U.S.
Attorneys General around the country and by State and local law enforcement. The AG offices
comprise more than 600 authorized users of the system, such as anti-terrorism task force
coordinators, counterterrorism attorneys, drug enforcement investigators, and intelligence
analysts. Enhancements would expand and upgrade the system (to be called RISS-ATIX),
permit easier two-way communication, and allow additional access by DHS, as permitted by
the HSA.
There was a training for FBI and US Attorney Office personnel by the FBI Office of
Intelligence Policy and Review, involving FBI agents and federal prosecutors from cities such as
San Diego, Portland, Denver, Houston, Detroit, Chicago, New York, Washington, and Boston,
and in Quantico. Approximately 100 FBI agents and prosecutors were expected to attend, given
at the National Advocacy Center in Glynco, South Carolina or in Washington, DC. The training
sessions will involve foreign intelligence information, information sharing and coordination
between intelligence communities and law enforcement agencies, and investigative methods.
This training is mandated by Section 908 of the PATRIOT Act.
In other activity, the Justice Department, in June, 2002, formed “flying squads” of agents
for the FBI’s Counterterrorism Division. Two squads have been created, for a total of 24 agents.
Each unit is managed by a Unit Chief and lead by a Team Leader and an Assistant Team Leader.
The purpose of these squads is to be deployed or utilized on short notice in terrorism investi-
gations.
This linking and expanding of information gathering and sharing eventually will create a
continuity of information systems and confidential information sharing methods between and
among various federal, State, and local law enforcement agencies and investigators. This
expansion of these information sharing systems and methods, as an expression of response to
the terror threat and utilization of public and national resources, is expected only to continue.1
The sharing of information and anti-terrorism enforcement activity have created or
expanded their own intelligence offices or homeland security units, are engaged in intelligence
analysis, and have become more involved in tracking anti-government activity.2
5. Any mention of use of public and national resources to respond to the security threat
must include the continuing military operations including the ongoing conflicts in Iraq and Afghanistan.
Already mentioned on several occasions in this 2004 update, these conflicts continue to demand
vast resources, on the order of billions of dollars per day. These conflicts have already been
noted frequently elsewhere in this edition, and are the subject of daily press reports, such that
only brief additional mention need be made here.
In Afghanistan, major conflict has come to a close with the capture by American forces of
Kabul and other major cities, the withdrawal of the Taliban as an effective governing influence

1. See, Associated Press, “Homeland Security Announces Plans for Antiterrorism Moves,” April 20, 2004.
The story noted that DHS Secretary Tom Ridge announced the expansion of DHS counter-terrorism
computer network that “delivers secure, real-time information.” The network will be expanded to all 50
states, five territories, DC, and 50 other major urban areas.
2. Del Quentin Wilber, “Local Police Take Wider Role Against Terrorism,” The Baltimore Sun,
September 2, 2003, p. 1A. The report notes that many of the local or State law enforcement officers working
with federal agencies or units have federal security clearances, allowing access to or review of sensitive
information.

301
 No Greater Threat

in the country, and the development of a new civilian government (with recent elections).
Nevertheless, American forces are still committed there, the countryside continues to be
hazardous as sporadic fighting continues, and warlords or other regional figures have
maintained their considerable control over sectors of that countryside. The elections in Fall of
2004 surely will not mark the end of violence.
In Iraq, the situation is demanding maor commitments of U.S. forces and funds and yet
remains mired in insurgency. At the close of 2004, there is no end in sight for withdrawal of U.S.
or Coalition forces from Iraq, or for reduction in commitment of U.S. funds and materiel.
Billions more will be steadily needed for support, assistance, and reconstruction.1 Current
expenditures in Iraq amount to $1 billion per day, spending in Afghanistan is also high. The
Administration has obtained an additional $87 billion to “rebuild” Iraq, while the U.S. faces a
deficit estimated to reach more than $420 billion.
Another government initiative to devote public resources to respond to the security
threat is a government pledge to cover up to $90 billion annually in insurance claims from any
future terrorist attacks (90 per cent of insured losses).
6. Naturally, national resources devoted to the terrorist threat domestically include consid-
erable efforts by the federal law enforcement agencies to indict, charge, arrest, detain, deport, or prosecute those in
the United States suspected of terrorist activity. Often, the charges include “material support” to
terrorism which frequently involve supposed financial support.
As mentioned, some of these prosecutions as well as other similar development are noted
elsewhere in the 2004 Commentary. They include:
—North Carolina (different charges),
—Illinois (Chicago) (charges against Muslim-oriented charity groups, although a perjury
indictment against one organization, Benevolence International Foundation, was dismissed),
—Maryland (Baltimore, arrests, one immigrant investigated for possible terrorist ties),
— New York (Buffalo and Lackawana, six charged, with relatives of one of those, later
charged with illegal money transfers followed by money confiscated from bank accounts),
— Michigan (Detroit, five charged),
—New York (Syracuse, four charged with illegally sending funds to Iraq through a
charity organization),2
—Virginia (Alexandria, numerous defendants charged in the “paint ball jihad” case, see
2004 Commentary elsewhere),
— Utah (Salt Lake City, immigrant deported),
—Texas (Dallas, seven charged), and
—Washington and Oregon (six charged with assisting al-Qaida, linked also to Oregon,
supposedly suspicious neighbors made reports to authorities, including alleged incidents such
as a child of one defendant making what was perceived as a pro-terrorist remark at school).
Other examples involve:
—A Pakistani man held in New York as a material witness as part of a terrorism investi-
gation and charged with agreeing to help an al-Qaida operative enter the U.S. (apparently the
entry did not occur and the man contends he had no knowledge that this other individual was
involved in any criminal activity).3

1. See, October, 2002 Fact Sheet by Arms Trade Resource Center, noting that, to that date, the Bush
Administration had sought $150 billion in new military spending and national defense spending overall is
approaching $400 billion. This was before the Iraq war and the additional $87 billion sought by the Admin-
istration, and before the Department of Homeland Security and its overall budget exceeding $30 billion.
2.See report on this case in “4 Charged With Illegally Sending $4 Million to Iraq Vida Charity,” Associ-
ated Press, reported in The Baltimore Sun, February 27, 2003, p. 14A.

302
 Part V: The First Six Elements of a National Security State

— A student and Saudi citizen charged with a visa violation for allegedly failing to
disclose on his application that he had a “relationship” with an organization which supposedly
operated a website praising suicide bombings.1 This prosecution resulted in an acquittal. (See
discussion in 2004 Commentary for Part IV concerning acquittal in June, 2004 of Sami Omar al-
Hussayen.)
Throughout the trial process of many of these cases, government authorities have argued
against any release on bail of any of the defendants, have appealed trial judge decisions to order
any release on bail, proceeded by sealed indictments or information, or resisted providing
certain information sought by the defense. Some of those charged were convicted, pled guilty or
agreed to cooperate with prosecutors.2 In one other case, two of four defendants in a federal
trial in Detroit were convicted of material support to terrorism, while two were acquitted.3
Many individuals, even if the charges are later reduced or dismissed, have lost jobs or been
subjected to intense media scrutiny.4
Some cases were concluded with sentences following guilty pleas.5 These included a
truck driver arrested in Ohio who supposedly was part of a terrorist plot to target the Brooklyn

3. “Man Alleged to Aid Al-Qaida Member’s U.S. Entry,” Associated Press, August 9, 2002.
1. The student who was at the University of Idaho was charged with supporting the Michigan- based
Islamic Assembly of North America, by way of supplying computer expertise and funds from overseas
sources. The government said that web sites operated by the group praise suicide bombing and support the
use of airplanes as terror weapons.
2. One guilty plea came from the head of an Islamic charity in Chicago, the Benevolence Interna-
tional Foundation, charged with providing financial support to Muslim rebels in Chechnya and Bosnia,
who pled guilty to one count of racketeering conspiracy. Although he said he had no involvement with
Osama bin Laden or al Qaida, federal prosecutors maintain that links between the group and al Qaida
existed. “Director of Islamic United States Charity Admits Guilt,” Associated Press, reported in The Balti-
more Sun, February 11, 2003, p. 3A.
3. The four defendants were Ahmed Hannan, 34, Karim Koubriti, 24, and Abel Ilah Elmardoudi, 37,
all from Morocco, and Farouk Ali-Haimoud, 22, an Algerian immigrant. Three of them had shared an apart-
ment that was raided by federal agents six days after September 11 as part of a search for another immigrant.
The case, a 10-week trial in June, 2003, was the first trial since September 11 involving terrorism charges and
was the first acquittal by a jury of individuals charged with terrorism (after a week of deliberation). The
government charged that the men were part of a “sleeper cell.” However, there was criticism of the quality
of the government’s evidence including the testimony of an individual who had received favorable treat-
ment of his own sentence in exchange for testifying, and observations made that the government had intim-
idated defense witnesses. Among the supposed terrorist evidence was a video tape of a trip to Disneyland.
Ali-Haimoud and Hannan were acquitted of terrorism charges, although all still were facing potential
immigration action. See various press reports, including “Two Arab Immigrants Convicted of Being
Members of Terror Cell,” The Baltimore Sun, June 4, 2003, p. 3A.
4. See “Information On Hijackers Is Sought From Jordanian,” The Baltimore Sun, June 27, 2002, p. 3A.
The article details the investigation of a Jordanian, Rasmi al-Shannaq, into possible terrorist ties or involve-
ment with the September 11 hijackers (he had briefly lived with two of the hijackers of the plane that was
crashed into the Pentagon) and also notes that he had been fired from his job at a pizza parlor. As of late
July, 2002, it appeared that charges would be filed against him for alleged involved in a visa scheme, and
was facing possible deportation proceedings. “Man With Ties to Hijackers Will Remain in Custody,” The
Baltimore Sun, July 20, 2002, p. 5A. And see, “Attorney Denies Client Has 9-11 Ties,” The Baltimore Sun, July 9,
2002, p. 1A.
5. These included the “shoebomber” Richard Reid who pled guilty and was sentence to life terms,
and John Walker Lindh, who was sentenced to 20 years after his guilty plea to aiding a terrorist organiza-
tion. Lindh also agreed to cooperate with federal prosecutors in terrorism investigations. See various news
stories of October 4 through 6, 2002 and January 30 and 31, 2003. In an interesting development following
the Reid sentencing, the federal judge in the case refused to release Reid’s jailhouse letters, sought by some
news entities, after prosecutors said that the letters may contain coded messages to terrorists. “Fearing
Code, U.S. Judge Refuses to Release Shoe Bomber’s Letters,” Associated Press, January 29, 2003. These cases
also have been mentioned elsewhere either in the original text of this book or in the update material.

303
 No Greater Threat

Bridge. He was apprehended in March or April of 2003 and agreed to plead guilty in May, in
closed federal proceedings, to providing material support for terrorism. In 2000, he had
travelled in Pakistan and Afghanistan, met with Osama bin Laden in 2000, and upon return to
the United States was reviewing ways to collapse the Brooklyn Bridge, allegedly communi-
cating some plan details through coded messages with al Qaida operatives overseas.
According to the government, at the time of the arrest, the plot was in planning stages
(apparently, one approach was to use blow torches to sever suspension lines, although just how
this could be carried out at all, and moreover, without anyone noticing, is quite unclear). Justice
Department officials would not discuss surveillance methods used to track the plot and make
the arrest. However, the Department revealed an extensive list of the truck driver’s involvement
with, links to, and support for al-Qaida.1
Other federal agency investigative programs representing public resources devoted to the
security threat include Operation Green Quest, which reviews financial transactions and has
led to charges and arrests against nearly 100 people (some already noted) with seizure of more
than $11 million in bank accounts and $24 million more in smuggled cash. The Green Quest task
force involves the IRS, the FBI, the Secret Service, Naval Intelligence Service, the Coast Guard,
and the Postal Inspection Service.2
A similar program in DHS called Operation Cornerstone from DHS Bureau of
Immigration and Custom Enforcement/ Office of Intelligence (see discussion of this program in
other 2004 Commentary). There is a related program in the Department of the Treasury, OFAC
(Office of Foreign Assets Control). As part of these and other investigations, there is increased
surveillance and investigation of financial transactions and communications, including pay
phones and cell phones, going out of the country.3
The cultural climate created by these investigative activities can lead to disturbing
results. There is follow up on nearly any lead, even those which prove to be false or a hoax, or
where the lead is flimsy, one example being major police response to a report by a woman in a
restaurant who said she overheard Arab-looking persons making what to her were “alarming”
comments, and another example being a similar police response to a report by a jogger who saw
men climbing up the Williamsburg Bridge in New York.4 This especially includes anything
suspicious occurring in airports or on commercial airliners.5
7. In addition to these developments, are vastly expanded government programs on bioterrorism.
Federal bioterrorism programs have become the subject of substantially increased attention in
Congress and in the Administration, especially DHS.
Plans are underway for a National Biodefense Analysis and Countermeasures Center at
Ft. Detrick, Maryland, which will operate from a $200 million laboratory, and be part of a
“Biodefense Campus” at the Ft. Detrick site, at a projected total cost of over $1 billion.6 All told,
these labs would be: a new facility for the US Army’s USAMRIID research center ($1 billion),
the new laboratory for the National Institute of Allergy and Infectious Diseases Integrated
Research Facility ($105 million), the DHS National Biodefense Analysis and Countermeasures
Center ($120 million), additional research on animal pathogens that can be passed to human
(similar to research conducted at Plum Island), potential expansion of the National Cancer

1. “Terror Plot on U.S. Soil Exposed,” New York Times News Service, June 20, 2003.
2. Aside from other discussions and notes here, see, for example, “Nine Arrested in Alleged Schemes to
Smuggle Money Overseas,” Associated Press. The report notes several investigations by this task force,
including one in Minnesota involving a network of tobacco stores that allegedly smuggled cash to Lebanon
and Jordan.
3. “Agents Track Down Calls From U.S. to al-Qaida Locations Overseas,” Associated Press, September
16, 2002.

304
 Part V: The First Six Elements of a National Security State

Institute’s research facility, and a new Gateway Center that would contain a library, offices, and
other shared facilities. The budget for biodefense research at the National Institutes of Health
has increased six-fold since 2001, with more scientists and researchers involved in the effort.
Overall spending on bioterrorism and research is expected to be $6 billion in 2003, more
than 17 times the sum spent before the anthrax scare of 2001. By some accounts, over the next
few years, biodefense spending is expected to quadruple to $6 billion per year.1
Some programs are mandated by recent statutes such as the PATRIOT Act, the Public
Health Security and Bioterrorism Preparedness and Response Act of 2002, and the Homeland
Security Act of 2003. Various biodefense research programs are underway despite concerns that
these expansions might unintentionally serve as a greater means for knowledge of and access to
bioterrorism weapons.2

4. “Anti-Terror Probe Ignites Nationwide FBI Manhunt” Associated Press, December 31, 2002
(involving FBI search for five foreigners from Mideast who may have entered the United States from Canada
and could be terrorists, the story included names and photos of the five men), followed by “FBI Tip On Five
Foreign Men Proves False; Search Halts,” Associated Press, January 8, 2003. And see “Three Men Detained in
Florida, Let Go,” and “Three Held in Terror Scare Lose Medical Posts,” from press reports, reported in The
Baltimore Sun, September 14, 2002 and September 15, 2002, p. 3A, involving three medical students detained
for 17 hours and then cleared of terrorist charges, who then lost student positions at South Miami hospital.
The hospital reported it had received 100 hostile e-mails and only one e-mail suggesting the hospital look at
all the facts before making a decision. The three students were tracked and detained by sheriffs after a
woman at a Shoney’s restaurant in Calhoun, Georgia (Eunice Stone, who later gave interviews to Fox News
Network and the Associated Press) reported to police that she overheard them making “alarming”
comments that sounded like threats. The three were detained, interrogated, and bomb sniffing dogs and a
robot searched their cars for explosives. The men were released with no charges filed. Neighbors still said
they were proud of the woman for alerting police. As for the Williamsburg Bridge incident, see “Task Forces
on Front Lines in Fighting Terrorism,” April 23, 2003, p. 12A, noting that incident of March, 2003. Police
responded with helicopters and bomb squads, although it turned out to be a drunken prank.
5. “British Jets Escort Flight from BWI in Terror Scare,” press reports, October 4, 2002. The situation
began when a female passenger on the flight, bound for London, overheard two male passengers talking and
became suspicious, alerting the flight crew. The flight attendants notified the pilot, who in turn called the
Royal Air Force. Fighters were scrambled and the plane escorted to Heathrow Airport, where it landed but
did not yet taxi to the gate. Police boarded the aircraft, took the two men from the plane, and questioned
them. They were promptly released when it was soon discovered that nothing was going on. And, “Man
Held for Burning Cash on Swedish Flight,” involving an American passenger on a flight from the United
States to Sweden, apparently intoxicated, who set fire to some dollar bills he had. Although the aircraft was
not diverted, authorities were alerted and he was arrested when the flight landed, and later released. The
situation is mirrored by the far greater security issue posed when a disturbed and rather heavily armed
Egyptian immigrant entered the Los Angeles airport in July, 2002 and fatally shot two agents at the El Al
ticket counter (he was killed in the incident by armed security for El Al) and when another disturbed man
with a shotgun killed a woman and wounded another person at an airport in New Orleans in May, 2002,
because he said people were ridiculing his turban. After the Los Angeles airport shooting, federal agents
raided the gunman’s house, impounded his vehicle, and took away computers, books, and records. A
bumper sticker on the front door that said “Read the Koran” was removed.
6. See Scott Shane, “U.S. Organizing Network to Track Bioterror Attacks,” The Baltimore Sun,
September 26, 2003, p. 5A. The core of this network will be at Fort Detrick in Frederick, Maryland, where a
National Bioforensics Analysis Center will maintain databases of viruses, bacteria and other pathogens for
comparison with microbes used in crimes. The story notes that Fort Detrick houses the chief military
biodefense research center, the U.S. Army Medical Research Institute of Infectious Diseases. Nearby, the
National Institute of Allergy and Infectious Diseases is building a $105 million laboratory “equipped to
handle the deadliest organisms on earth.” And see “Biodefense Lab in U.S. Is Questioned.” And see, for an
overall discussion of these bioterrorism research developments, Scott Shane, “U.S. Biodefense Campus Set
for Fort Detrick,” The Baltimore Sun, February 11, 2004.
1. See also, “U.S. Funds Biodefense Lab Building Boom,” Associated Press, March 29, 2003.

305
 No Greater Threat

The smallpox vaccination program, announced in December, 2002 to anticipate any

possible serious smallpox terror threat, involves vaccinating nearly 1,000,000 Americans in two
phases, mostly military personnel and certain civilian workers including state response teams
and medical personnel. An even broader part of the program could involve another nearly 10
million people, including other health care workers, emergency responders, and police, fire, and
emergency medical technicians. The public will have access to the vaccine.1 The core concern is
that although smallpox vaccinations are now routine, for many adults the immunity may no
longer be strong, with the result that people could succumb to more virulent, engineered strains
of the highly contagious disease, rendering smallpox a possible bioterrorism agent.
The level of bioterrorism concern even includes installing sensors to detect the release of
dangerous chemical or biological agents, to be attached to or modified from sensors used by the
Environmental Protection Agency to monitor air quality in several major cities. This monitoring
system supposedly would provide an alert of any release of anthrax, smallpox, or similar
biological weapons.2
Encompassing this bioterror security field are continuing concerns that U.S. military
personnel are not sufficiently trained or equipped to deal with chemical or biological attacks, or
that key government agencies are not sufficiently prepared to respond to a domestic bioterror
attack.3 There are similar concerns about whether the health care system either regionally or
nationally can truly handle a response to a significant or coordinated bioterror attack.4 These
concerns extend to whether States can effectively and promptly to respond to a bioterrorism

2. “Research Facilities Unveil Plans for Fort Detrick Lab Expansion,” The Baltimore Sun, October 16,
2002. These facilities already include or would include Fort Detrick in Maryland, the National Institutes of
Health, the US Army Medical Research Institute of Infectious Diseases, the research centers at the US Army
Aberdeen Proving Ground in Maryland, the Rocky Mountain Laboratory in Montana, and a planned
“Regional Center of Excellence for Biodefense” in Maryland that would include Johns Hopkins University
and the University of Maryland School of Medicine’s Center for Vaccine Development, and might also be a
Biosafety Level 4 research facility. Similar projects are planned by the Department of Agriculture and the
Department of Energy (and this may also include projects under authorities granted to the Department of
Homeland Security under the Homeland Security Act). Also see, “Residents, Officials Split Over Boom in
Biolab Construction,” The Baltimore Sun, July 8, 2003, on the various plans for construction and risks of acci-
dent release of research material, and “Terror Threat Casts Chill Over World of Bio Research,” The Baltimore
Sun, January 26, 2003.
1. “Bush Expected to Order 1 Million Smallpox Vaccines,” Associated Press, November 28, 2002.
Concern over smallpox being used as a terrorist weapon include the debilitating and often fatal results of
the disease, its highly contagious nature, and the fact that due to the worldwide efforts against smallpox,
vaccinations ceased in the United States in 1972 resulting in nearly half of the United States population
without any protection from the disease. However, the vaccination has side effects or complications that in
some cases may led to death. Estimates are that 15 out of every 1 million persons vaccinated for the first time
could develop complications, with 1 or 2 deaths from that figure. Also, “Smallpox Plan Include 6,000 Mary-
land Health Workers,” The Baltimore Sun, December 14, 2002, and “Public May Receive Smallpox Vaccine in
‘04,” New York Times News Service, December 15, 2002. Public acceptance of the smallpox vaccine
program is dubious, given that when a test group was informed of potential complications of the vaccine,
only 15 to 20 per cent said they would participate in the program.
2. “Sensors Deployed to Detect Bioterror,” New York Times News Service, January 22, 2003. “CDC
Building System to Warn of Bioterror,” New York Times News Service, January 28, 2003. The system would
provide an earlier alert than otherwise available so that medical and other personnel could respond more
quickly to the site of potential bioterror outbreak.
3. “U.S. Troops Lack Equipment for Chem-Bio War, Experts Say.” Knight Ridder/Tribune News Service,
October 15, 2002. And “Five Key Agencies Understaffed for Bioterrorism, Study Finds,” New York Times News
Service, July 6, 2003, reporting on a study by the Partnership for Public Service that serious staffing and
funding issues affect the ability to respond of agencies such as the National Institute of Allergy and Infec-
tious Diseases, the Food and Drug Administration, the Animal and Plant Health Inspection Service, and the
Food Safety and Inspection Service.

306
 Part V: The First Six Elements of a National Security State

attack or incident, which would require quickly coordinating vaccination and other health
activities.1
The situation underscores the difficulty of preparing for the range of chemical or
biological agents which could be part of any attack, either in the military context or against a
population. Security concerns about bioterrorism also extend to the security and safety at many
college laboratories, where in some cases the potential exists to launch a bioterror attack even if
research at these laboratories does not involve dangerous bio- agents.2
Along with increased government and public attention to these bioterrorism issues are
increased attention of law enforcement agencies to any potential bioterrorism situation or
incident. That was made clear in late 2003 when an internationally respected biology researcher
was charged with several federal crimes for supposedly “misplacing” sample of plague bacteria
from his lab. The trial resulted in a prison sentence on related charges.3 It is doubtful that a
prosecution so extensive would even have been considered five years ago.
Clearly, the “war on terrorism” is moving quickly into all aspects of domestic life,
including federal spending. In the Fall of 2003, Congress approved $29.4 billion for domestic
security.4 This characteristic of commitment of national resources, at all levels, has moved
greatly since mid-2002.

4. Eria Niedowski, “U.S. Hospitals Can’t Handle Terror or Disaster, Report Says,” The Baltimore Sun,
March 12, 2004, p. 7A. The story detailed findings of a report from the Joint Commission on Accreditation of
Healthcare Organizations (JCAHO), based on input from 29-member roundtable of experts that called for
increased efforts by health care providers to prepare for terrorist attack or other public emergency.
1. “States Not Ready for Bioterrorism,” Associated Press, November 2, 2002. The report noted
concerns expressed by Department of Health and Human Services officials regarding the progress of State
bioterrorism response plans at the time of a deadline for States to submit their plans or reports. All 50
States, several large cities, and all United States territories are expected to have bioterrorism readiness
plans in place. The level of State readiness is rated on a color-coded basis — green, amber, red — with
numerous State readiness programs in “amber” category as of the date of the article. See also, “Tests Aim to
Prepare for Bioterrorism Attack,” Associated Press, March 2, 2003.
2. Associated Press, “Security Abysmal at Many College Labs, Report Says,” November 21, 2003, noting a
report describing security laxes at some college laboratories and mentioning that in one lab, there was “an
unlocked freezer supervised only by a college lecturer and containing a biological agent for a plague more
severe than the Black Death.” At another college lab for research with high-risk biological agents, the lab,
near to a football stadium, was often unlocked and its bathroom was used during night football games.
Other labs lacked complete inventory, defined security procedures, chain of security responsibility, or
quick-response plans in the event of a release incident. And see Associated Press, “U.S. Cites Lax Security at
School Research Labs.”
3. The world-renowned plague researcher, Dr. Thomas Bulter, of Texas Tech University, eventually
was convicted by a jury in a three-week trial of 47 charges, although cleared of 22 charges including some of
the more serious charges such as smuggling and illegally transporting the substances. The prosecution drew
criticism from scientists, including prominent researchers, Nobel laureates, and others who said the situa-
tion was an overblown innocent paperwork oversight. The charges stemmed from his own report to police
in January, 2003 that 30 vials of the potentially deadly plague bacteria were missing from his lab. In March,
2004, he was sentenced to two years in federal prison, $15,000 fine, and restitution of $38,000. He also lost
his Texas medical license. See Associated Press, “Researcher Cleared of Plague Scare Charges,” December 2,
2003; “Doctor Loses License After Bioterror Scare,” February 8, 2004, and Scott Shane, “Plague Scientist
Sentenced to 2 Years,” The Baltimore Sun, March 11, 2004.
4. The bill passed 417-8 in the House and by voice in the Senate and was the first for the new DHS
department that resulted from a combination of 22 security-related agencies. The funding was $1 billion
greater than the Administration requested and includes $4.2 billion for first responders, $9 billion for
border protection, and $5.2 billion for TSA and air marshal programs.

307
 No Greater Threat

APPENDIX 5-A
Among the most celebrated cases where civil liability was sought against members of a
National Guard for injuries or deaths of civilians when the Guard was performing a protection
function, was the notorious Kent State shootings of May 4, 1970. In that well- known incident,
four students were fatally shot and nine wounded when National Guard troops fired into a
crowd while the troops were on the Kent State University campus to quell the student
disturbance there, which was part of a nationwide wave of student protest involving the
Vietnam war, following President Richard Nixon’s announcement that American troops were
undertaking missions in Cambodia.
The convoluted tale of an attempt to impose civil liability on the National Guard troops
involved is a case study all to itself. When a special Ohio grand jury in Portage County indicted
25 people, mostly students, on various charges stemming from the incident, no guardsmen were
indicted. The grand jury declined to indict any guard troops because it found the troops had
fired “in an honest and sincere belief...that they would suffer serious bodily injury had they not
done so.” In January, 1971, a U.S. District Court judge found the grand jury report deficient,
overreaching, and infringing on the defendants’ rights, and ordered it destroyed, although the 25
indictments were allowed to stand. A federal appeals court for the Sixth Circuit later upheld
that ruling. Eventually, one of the defendants is convicted, two pled guilty to riot charges, and
other defendants either were found not guilty or saw their charges dropped.
Later commissions and reports would question the grand jury’s conclusion concerning
the guardsmen. These reports included the 227-page Peter Davies report released July 22, 1971,
which concluded that “a monumental accumulation of testimony and photographs” support the
theory that the shootings were “planned and carried out with the intent to kill, maim or injure
students.” The report identified some guardsmen, perhaps 8 to 10, from Troop G of the 107th
Armored Calvary who, before the shots were fired, deliberately had decided to shoot students
“at an opportune moment.”
That report generated much controversy, especially when Attorney General John N.
Mitchell announced one month later that no federal grand jury would be called to investigate
the incident. That decision would be overturned in 1973 when Attorney General Elliot
Richardson announced that the Justice Department would reopen an investigation into the
Kent State incident. In 1973, a federal grand jury began meeting on the case, and on March 28,
1974, indicted eight former national guardsmen for violating the civil rights of the student
shooting victims. Five of those guardsmen were charged with actually firing the fatal shots. At
the subsequent criminal trial before a federal court judge, all eight plead not guilty. The criminal
trial began on October 21, 1974 and involved 33 witnesses and 130 exhibits. On November 4,
1974, the judge, ruling on a motion by the defense, ruled that all eight guardsmen would be
acquitted on all charges.
On May 4, 1972, the ACLU filed a $12.1 million damage suit against the State of Ohio and
the Ohio National Guard. Yet that suit was dismissed on the ground that the state and the
Guard had immunity. That ruling was eventually was appealed by parents of three of the
fatally-shot students. The appeal reached the U.S. Supreme Court. On April 17, 1974, the
Supreme Court, in an 8-0 decision (Scheur v. Rhodes, 416 U.S.232(1974)) reversed the lower courts
and found that state officials and the Guard are not necessarily immune from civil suits
charging federal civil rights violations, if certain other conditions are shown.
Civil actions then continued through lawsuits filed by the parents of the killed and
wounded students. The civil suits sought $46 million in total damages from the Governor, the
President of Kent State, and 27 former and current guardsmen. All individual suits are consol-

308
 Part V: The First Six Elements of a National Security State

idated into one case. This civil trial lasted 15 weeks. The 12-person jury heard from 100
witnesses and considered numerous exhibits. On August 27, 1975, the jury, by a vote of 9 to 3,
exonerated all defendants. The jury found that the plaintiffs, including those representing the
four students who were fatally shot, were not denied their civil rights in the National Guard
shootings.
The case and the jury’s ruling were appealed to the Sixth Circuit Court of Appeals in
Cincinnati. On September 12, 1977, the Sixth Circuit ordered a retrial of the case. The court
determined that at least one jury member had been “threatened and assaulted” during the case,
and therefore the jury verdict was compromised. The ruling meant that the trial could begin
again. Finally, a year later, in December, 1978, a new trial was to begin before a different judge.
Within a month of that ruling, on January 4, 1979, a settlement was reached, which involved a
statement read in court by the defendants declaring the incident should not have occurred and
even if some guardsmen believed they were in danger, “better ways” should have been found to
resolve the confrontation. The plaintiffs, who asked for $46 million, received a total of $675,000.
The distribution was:
Dean Kahler Wounded $350,000
Joseph Lewis “ $42,500
Thomas Grace “ $37,500
Donald MacKenzie “ $27,500
John Cleary “ $22,500
Alan Canfora “ $15,000
Douglas Wrentmore “ $15,000
Robert Stamps “ $15,000
James Russell “ $15,000

Families of:
Alison Krause Killed $15,000
Jeffrey Glen Miller “ $15,000
Sandra Lee Scheuer “ $15,000
William Knox Schroeder “ $15,000
Attorneys’ fees and expenses $75,000

The story of the Kent State legal aftermath is an interesting tale for today. After litigation
which stretched on for nearly nine years from the date of the incident and went on appeal twice,
including one opinion from the United States Supreme Court, a legal action seeking $46 million
ended in a settlement of $675,000. Of that settlement, as the above listing relates, parents of the
students killed received $15,000 each.

APPENDIX 5-B
What must also be noted is the media conglomerates mentioned have whole or part
ownership of many of these other cable channels. Time Warner (now AOL/Time/ Warner) has
an interest in Home Box Office (HBO) and Cinemax, which also is part owner of cable channels
such as Cinemax and Comedy Central. Time Warner also holds or did hold an interest in the E!
channel, Court TV, and BET. Time Warner’s 1996 acquisition of Turner Broadcasting System

309
 No Greater Threat

(TBS), a $7.6 billion deal, brought into its ownership group additional cable channels including
CNN, Turner Network Television (TNT), TBS Superstation, Cartoon Network, and Turner
Classic Movies (TCM). Along with that deal came motion picture studies New Line Cinema
and Castle Rock (and the Atlanta Braves major league baseball team). It also owns the recently-
launched WB independent commercial network. The Warner Music Group is one of the
world’s largest, with record labels including Warner Brothers, Atlantic, and Elektra. The later
formation of AOL/Time/ Warner has created a company with a pervasive presence on the
Internet, cable television, publications, periodicals, music, books, and film.
Viacom, another media conglomerate, owns Paramount Studios and Blockbuster
Entertainment. Viacom also owns or controls several cable channels such as the MTV
Networks, which in turn include MTV, MTV2, VH1, Nickelodeon/Nick at Nite, and the
Showtime Networks, which also include The Movie Channel and FLIX. Viacom interests or
holdings in other cable channels have extended to the USA Networks, Sci-Fi Network, Comedy
Central, and TV Land. It owns the recently-launched United Paramount Network (UPN), and
independent commercial network. It also owns the Simon & Schuster publishing firm.
Tele-Communications, Inc. (TCI) and its related company Liberty Media Corporation,
also helped initiate, held or still hold an interest in, or own outright several cable channels
including BET, the Discovery Channel networks, American Movie Classics (AMC), Home
Shopping Network (HSN), and QVC. Ownership also extends to movies channels like Starz!. In
1999 TCI was acquired by the communications giant AT&T in a deal valued at $55 billion,
forming another huge, multi-faceted, media, entertainment, and communications conglomerate.
The ownership of commercial television giant CBS by Westinghouse occurred in 1995, in a deal
worth $5.4 billion. Westinghouse later secured Infinity Broadcasting Corporation, a large
owner of radio stations across the country. It then moved to acquire or hold an interest in two
cable channels, The Nashville Network (TNN) and Country Music Television (CMT). In 1997
Westinghouse changed its name to CBS Corporation. It continued its efforts to reshape its
overall image as a media corporation. In the next year, it bought American Radio Systems
Corporation, which owns dozens of radio stations across the country, in a deal valued at $2.6
billion. It also owns Infinity Broadcasting radio network.
NBC was bought by General Electric in 1986 when GE acquired NBC’s own parent
company, RCA. NBC then branched out into some cable television with channels such as
CNBC, NBC Super Channel (in Europe), and MS-NBC, a venture with Microsoft. It also has
holdings or interests in other cable channels.
Capital Cities/ABC was purchased by the Walt Disney Company in 1996. This
acquisition continued to place Disney among the country’s major media and entertainment
corporations, with ownership or interests in entertainment, amusement parks, film, radio, and
television. ABC also had interests in ESPN, ESPN2, Lifetime, and A&E Network. Disney and
ABC, Inc. own the Disney Channel and other Disney television or cable ventures.
Home Box Office (HBO), was a subsidiary of Time, Inc. at its start up. HBO held interests
in Cinemax, Comedy Central, and Black Entertainment Television.
Rupert Murdoch’s News Corporation, Ltd., which owns 20th Century Fox, also owns
Fox Television (Fox Network, Fox Network News, and FX) as well as briefly owning The
Family Channel. It also owns New World Communications and Heritage Media. The company
owns or has interests in radio, magazine and book publishing, various newspapers, and other
communications ventures such as satellite television.
With this collection of corporate ownership of media, just 10 or less major corporate
entities own, control, or have an interest in the majority of national television broadcast
properties, including major commercial television networks as well as basic and digital cable

310
 Part V: The First Six Elements of a National Security State

channels, not to mention substantial national commercial radio and national print media:
Viacom, TCI-Liberty Media/AT&T, AOL/Time/Warner, NewsCorp., Disney, General Electric
(NBC), and CBS/Westinghouse. To this must be added certain channels or networks which are
independent or operate independently such as Discovery/TLC and A&E/History. This unprece-
dented concentration of media ownership is not expected to change anytime soon.
This concentration of media ownership will be the theme of American broadcast media,
indefinitely. New regulations adopted by the Federal Communications Commission, after must
debate and enormous public comment and concern, allow for increased ownership of radio or
television stations by a single entity, reaching 45% of a given market. The rules sparked further
controversy and were the subject of action in the US Senate. Nevertheless, media conglomerates
continue to consolidate their ownership of radio (including Clear Channel, not discussed
extensively here but is a radio ownership entity of considerable significance, as is Cox
Communications), television, print, and even Internet sources. The result will be that
“alternative” sources of information may eventually, if not soon, be relegated to certain local
radio stations, digital access cable channels, other print media such as periodicals, books
available in bookstores or online, and certain Internet website (a few of those are listed in the
bibliography). These sources, while certainly available, are almost by definition less accessible
or less widely distributed than mass-marketed radio, commercial television, basic cable
channels, satellite or digital television, or metropolitan newspapers — and therefore will be less
utilized by the public as an information source.

APPENDIX 5-C
RASUL V. BUSH
Supreme Court Decision on Guantanamo Bay detainees.

In late June, 2004, the Supreme Court issued its greatly anticipated decision in two cases
involving the detainees at Guantanamo Bay (Camp Delta).1 Both were from the U.S. Court of
Appeals for the District of Columbia Circuit.2 (A related appeals court ruling on detainees had
been made by the Ninth Circuit (California), although that decision was not expressly
considered or discussed.)
The detainees case (124 S.Ct. 2686 (2004)) is promising for those concerned about the
state of civil liberties in this country. The Court confirmed that federal courts have jurisdiction
to consider claims by the Camp Delta detainees. The Court, then, did not abandon the
judiciary's role in reviewing government action in the “war on terrorism.” Civil liberties groups
applauded the decision. Although commendable, the Court's ruling is hardly a “blow” to the
Administration and not necessarily a civil liberties victory. It leaves many questions
unanswered and leaves uncertain the ultimate fate of the detainees.
As has been noted, the approximately 500 detainees at Camp Delta have been held
incommunicado since their arrival, which for some has been nearly three years. They have not
had access to counsel or much access to the outside world.
The federal government claims the detainees do not qualify as prisoners of war and so are
not entitled to treatment under the Geneva Convention. Military tribunals (military
commissions) are expected to bring detainees to trial on military charges. The tribunals can
issue sentences of death, with no appeal to federal courts. (See discussion about Camp Delta,

1. Rasul v. Bush, 124 S.Ct. 2686 (2004)

2. See Al Odah v. United States, 321 F.3d 1134 (D.C. Cir. 2003)

311
 No Greater Threat

military tribunals, and the Guantanamo situation in Expanded Commentary for Characteristic
No. 2, and Appendix 5-E and 5-D).
The Supreme Court did not address the legality of detention of the detainees or the
conditions of their confinement. The decision involved only whether a legal claim by or on
behalf of the detainees (habeas corpus petition), raising these issues, could be considered by a
federal court.
The petitions were filed on behalf of certain detainees — including those who said they
were not from Afghanistan or were not involved in combat against the U.S., such as several
Kuwaitis and two Australians (Mamdouh Habib and David Hicks). The petitions asserted the
detainees were not engaged in any war with the U.S., were illegally seized, and are being
illegally detained. They sought release, or alternatively access to counsel and freedom from
interrogations, as well as other relief.
The claims were brought under the Constitution and under the federal habeas corpus
statute (28 U.S.C. §2241). That statute allows a petition by any person who claims to be in
custody "in violation of the Constitution or laws or treaties of the United States.” The claims
were also brought under the Alien Tort Statute (28 U.S.C. §1350) and the Administrative
Procedure Act.
The Administration said the petitions should be dismissed because, for numerous
asserted reasons, the federal court did not have jurisdiction to consider them. The trial court
agreed with the government and dismissed the petitions. That decision was affirmed by the
D.C. Circuit Court of Appeals.
The Administration had many reasons for claiming the federal courts do not have
jurisdiction over the detainees. One was that the Guantanamo Bay military base is not U.S.
sovereign territory because the land does not belong to the U.S., but to Cuba. The base exists
under a special lease arranged in 1903 after the Spanish American War. Another claim was that
the right to petition federal courts does not extend to foreigners, especially those held by the
military in combat situations.
The Supreme Court observed, however, that although the base is leased, the U.S. has
“complete jurisdiction and control” over activities there. The U.S. can continue to use the base
until it “abandons” the base. The Court said habeas corpus can reach persons held in territories
where the U.S. has control and authority, even if it does not exercise actual “sovereignty.”
The Court noted that persons involved in the petition have not yet been formally charged,
have not had the benefit of a status hearing, and have been imprisoned for more than two years
in territory over which the U.S. exercises exclusive jurisdiction and control. (Shortly after the
decision, the Pentagon announced it would conduct “status hearings” for all detainees.)
The Court stated if an American citizen were held at Guantanamo, the federal courts
could consider a habeas corpus by that person. “Considering that the statute draws no distinction
between Americans and aliens held in federal custody, there is little reason to think that
Congress intended the geographical coverage of the statute to vary depending on the detainee’s
citizenship. Aliens held at the base, no less than American citizens, are entitled to invoke the
federal courts’ authority under §2241.” The court have jurisdiction of the “custodians” — that is
the President, and Secretary of Defense, and base commanders. The Court said the statute
“requires nothing more.”
A concurring opinion by Justice Anthony Kennedy agreed with the Court’s conclusion
but said the Court could have confined its decision to Guantanamo Bay. A strong dissent by
Justice Antonin Scalia (joined by Chief Justice William Rehnquist and Justice Clarence
Thomas) said flatly that habeas corpus was not intended to reach this far and no prior Supreme

312
 Part V: The First Six Elements of a National Security State

Court precedent supported the decision. The dissent criticized improper judicial involvement
in areas of defense and military activity that is confined to the President.
Although Guantanamo Bay detainees now can petition federal courts challenging their
detention, the Supreme Court did not declare that the detention was illegal. The Court did not
specify where and when petitions could be filed. (Subsequently, petitions later filed on behalf of
the Camp Delta detainees have been consolidated in the U.S. District Court for the District of
Columbia..1) Another concern is that the Supreme Court did not declare if a petition could be
filed to challenge detention only, or a military tribunal ruling.
While there is much to commend the Guantanamo Bay decision, there is much left to the
federal courts. The decision will generate petitions, decisions, appeals, and likely another
Supreme Court decision on the legality of the Camp Delta detentions and the military
commission process. As noted, the eventual fate of the detainees remains unanswered.

APPENDIX 5-D
HAMDI, ET AL. V. RUMSFELD
Supreme Court Decision on “enemy combatants.”

Another major Supreme Court anti-terrorism case was the “enemy combatant” case
involving U.S. citizens. Although at that time more than one U.S. citizen was held by the federal
government as an “enemy combatant,” the case involved one person: Yaser Hamdi.
The Supreme Court decision, (124 S.Ct. 2633 (2004)) like its decision on the Camp Delta
detainees, is not a complete victory for freedom and justice. The Court said the government
must be required to show reasons for holding a person as an “enemy combatant.” But it did not
condemn the use of the “enemy combatant” designation, even for U.S. citizens. It limit use of
this designation to times when Congress has declared war. It did not order Hamdi immediately
released.2
As noted elsewhere in this 2004 Commentary, Hamdi was born in Louisiana, his parents
were from Saudi Arabia. The family later returned to Saudi Arabia, and Hamdi eventually
became involved with the Taliban in Afghanistan. He was seized there in late 2001, when U.S.
troops began their military action after the September 11 attacks, by “Northern Alliance” forces
aligned with the U.S. At first he was transferred to Camp Delta in January of 2002, but when his
citizenship status was confirmed, was designated as an “enemy combatant” and taken to a Navy
brig in the U.S. Since that point, was not allowed contact with other prisoners, have regular
contact with counsel (until recently), and has not been allowed visitors. The government
claimed Hamdi was involved with forces (mostly Taliban forces) engaged in hostilities against
the U.S., and so he can be held as an “enemy combatant.” His family claims he was in
Afghanistan doing humanitarian work.
A habeas corpus petition was filed in federal court for Hamdi, demanding his release and
demanding the government produce evidence to support the "enemy combatant” designaton.

1. From press reports, by August, 2004, at least 13 cases have been filed in federal district court in
Washington, DC, on behalf of 60 detainees. Those cases have not yet come to a hearing. Toni Locy, “US: `No
Legal Rights’ For Detainees,” USA Today, August 13, 2004.
2. Some months after the Supreme Court decision, in October of 2004, Yaser Hamdi was released
under an arrangement with the United States government in which he agreed to return to Saudi Arabia and
to renounce his United States citizenship. Apparently, the government, after insisting during the entire
time of Hamdi’s “enemy combatant” confinement that he was a dangerous threat to the United States,
suddenly was willing to release him rather than be put in a position of having to present in a courtroom the
“evidence” that supposedly supported the government’s declaring him an “enemy combatant.”

313
 No Greater Threat

The petition demanded: 1) counsel be appointed, 2) interrogations be halted, 3) the court

declare detention violated due process, 4) the court allow a meaningful challenge to
government evidence, or 5) release. As a U.S. citizen, Hamdi can claim the same Due Process
rights as any citizen.
This petition generated a series of motions and appeals. The appeals went to the U.S.
Court of Appeals for the Fourth Circuit (in Richmond), which often sides with the government
in criminal cases. The Fourth Circuit ruled for the government.
A chief issue is a federal law called the “Anti-Detention Statute" (18 U.S.C. §4001) passed
in 1971 as part of the repeal of the Emergency Detention Act of 1950. It says, “no citizen shall be
imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.”
Under the statute, aside from criminal or immigration matters, federal detention of a person
must be under some Congressional authority. A central question is whether the Congressional
resolution authorizing use of military force in Afghanistan can be considered to be that
authority for "enemy combatant" detentions of U.S. citizens, even though that authorization
does not mention federal government seizing and holding U.S. citizens or anyone else as “enemy
combatants.”
Another central issue is what evidence the government should produce, if required, to
justify seizure of a person as an “enemy combatant,” and what examination a federal court can
make of that evidence. At one federal district court hearing on his petition, the government
submitted a “declaration” by Michael Mobbs, a Special Advisor to the Under Secretary of
Defense for Policy. This became known as the “Mobbs Declaration.” According to the
government, that Declaration, charging Hamdi with actions against U.S. forces in Afghanistan,
was enough to justify his detention as enemy combatant. No further action by the court was
required.
The Fourth Circuit agreed this view, deciding the Anti-Detention Act was satisfied by the
Congressional authorization of use of military force in Afghanistan, that the "Mobbs
Declaration" was sufficient by itself to justify Hamdi’s detention as an “enemy combatant,” and
that no further court review was required — or could be required, since courts should not
interfere in current military activity.1
The Supreme Court, in a rather fractured decision, ruled both for and against the
government. The Court agreed with the government that the Congressional authorization for
use of military force in Afghanistan DOES allow the Executive Branch (such as the Defense
Department) to hold someone as an “enemy combatant,” even a United States citizen. The Court
said although this authorization does not mention seizing and holding “enemy combatants,” it
is an assumed authority of the Executive, as Commander-in-Chief. “We conclude that
detention of individuals falling into the limited category we are considering, for the duration of
the particular conflict in which they were captured, is so fundamental and accepted an incident
to war as to be an exercise of the `necessary and appropriate force’ Congress has authorized the
President to use.”
More disturbing, the Court had no trouble with the government holding a citizen as an
“enemy combatant,” even when Congress has not formally declared war. It said, “There is no bar
to this Nation’s holding one of its own citizens as an enemy combatant.” Citizens who
“associate themselves with the military arm of an enemy government” can be held by the
President as part of general powers as Commander in Chief.

1. There were several Fourth Circuit decisions in the Hamdi case. For one of them, see Hamdi v. Rums-
feld, 316 F.3d 450 (4th Cir. 2003).

314
 Part V: The First Six Elements of a National Security State

Yet, the Court said the government should be required to submit evidence, subject to
more court review than the Fourth Circuit found necessary. The Supreme Court stated, “We
hold that although Congress authorized the detention of combatants in the narrow circum-
stances alleged here, due process demands that a citizen held in the United States as an enemy
combatant be given a meaningful opportunity to contest the factual basis for that detention
before a neutral decisionmaker.”
The Court also was concerned about just how far the “enemy combatant” designation can
go. It was distressed with the lengths to which the government wanted to take that term. The
Court decided it would consider the “enemy combatant” designation to apply only in the
situation it was considering: someone taken supposedly in battlefield circumstances in a foreign
country where hostilities were directed against US forces.
(Note: This means that Jose Padilla, one of the other “enemy combatants” could not really
be an “enemy combatant,” since he was arrested at Chicago O’Hare airport, nowhere near any
battlefield. Taken to New York on a material witness warrant, he soon after was declared an
“enemy combatant,” transferred to the Department of Defense, and taken to a Navy brig in
South Carolina, where he has been held incommunicado. At this writing, Padilla remains in
custody. Although the Supreme Court reviewed his appeal from his habeas corpus petition, filed
in New York, the Court said the petition was filed in the incorrect court and should have been
filed in the federal district court where he is being held.)
The Supreme Court did not describe just what additional evidence the government
should produce, or what hearing the federal court should conduct. It decided only that there
should be a “meaningful opportunity to contest the factual basis for that detention before a
neutral decisionmaker.” The government’s evidence can be presumed correct, and the hearing
could be very brief like a military tribunal. That is, constitutional standards for court review of
the government’s evidence “could be met by an appropriately authorized and properly
constituted military tribunal.” All that is required is that “minimum requirements” of due
process be “achieved.”
Even so, a person's “enemy combatant” designation should not be permitted to last indefi-
nitely. The Court rejected the government’s view otherwise and said, “If the Government does
not consider this unconventional war won for two generations, and if it maintains during that
time that Hamdi might, if released, join forces fighting against the United States, then the
position it has taken throughout the litigation of this case suggests that Hamdi’s detention
could last for the rest of his life.”
The Court was concerned about potential abuse of this “enemy combatant” designation.
It said, “As critical as the Government’s interest may be in detaining those who actually pose an
immediate threat to the national security of the United States during ongoing international
conflict, history and common sense teach us that an unchecked system of detention carries the
potential to become a means for oppression and abuse of others who do not present that sort of
threat.”
That is, “Striking the proper constitutional balance here is of great importance to the
Nation during this period of ongoing combat. But it is equally vital that our calculus not give
short shrift to the values that this country holds dear or to the privilege that is American
citizenship. It is during our most challenging and uncertain moments that our Nation’s
commitment to due process is most severely tested; and it is in those times that we must
preserve our commitment at home to the principles for which we fight abroad.”
Yet, the Court did not declare the “enemy combatant” designation improper, did not say
U.S. citizens cannot be held as “enemy combatants,” and did not order Hamdi released. The

315
 No Greater Threat

Court did not explain what evidence will be sufficient to justify “enemy combatant” detention,
or require a full-scale court review of it.
What this ultimately will mean was left to the vagueness of the future. It is a future not
entirely bright for anyone whom the government declares as a security risk, claiming for itself
the right to confine that person to indefinite detention.
(As noted, in the third anti-terrorism decision involving Jose Padilla, the Court did not
address actual "enemy combatant" issues raised, but instead determined Padilla's petition was
filed in the incorrect federal district court (New York).)

APPENDIX 5-E
Executive Treatment Of Suspects / Military Tribunals
(Military Commissions)

As indicated in the 2004 Commentary and Expanded Discussion for Characteristic No. 3,
of various developments for this national security state characteristic, one with serious long
term potential for transformation into a national security state is the intended extensive
utilization of military tribunals (military commissions). There is continued movement toward
using these commissions, even though by the close of 2004, no commission proceeding has yet
occurred.1 When these proceedings do begin, they will represent the first formal military
tribunals conducted on this scale by the U.S. since World War II.
Military Commissions, Charges, and Procedures. It is not anticipated that all of the approx-
imately 500 current Camp Delta detainees will be subject to a military commissions. It is not
known how many proceedings will occur. Even if only one third of detainees receives a full
commission trial and even if each proceeding lasts less than a week, it could be years before all
proceedings and their administrative reviews are concluded. (One official said the tribunals
could hear four cases per day, six days per week. That is extremely unlikely, under the
procedure described in government regulations.)
In April, 2003, DOD issued revised procedures for the commissions. Although expected to
take place at Camp Delta at Guantanamo Bay, there is no requirement in the President's
November 15, 2003 Military Order establishing the tribunals, that they must occur only there,
in fact no location for military commissions was mentioned in the Military Order. A tribunal
could be conducted at another place, such as an overseas military base or even naval vessel.
Under the Military Order, a person is subject to the order and so potentially subject to a
military tribunal if: not a U.S. citizen, has committed or assisted in committing “acts of interna-
tional terrorism” against the U.S. or harbored any person who has done so, and “it is in the
interests" of the U.S. to subject that person to the Military Order and to a tribunal trial.
The government has listed 18 war crimes and eight other offenses which could be tried by
the tribunals. Possible charges are: willful killing, pillaging, denying quarter, use of chemical
agents or poisons, using civilians as shields, torture, and other means (aside from direct military
involvement) of aiding the enemy. Some charges apply to non-battlefield conditions. Most if not
all of the charges carry the death penalty.
Under the DOD procedures, an “Appointing Authority” in the Department will approve
charges and appoint the tribunal commissioners. It appears that one of the “Appointing

1. According to press reports, a trial of Salim Admed Salim Hamdan, who is accused of being an assis-
tant to Osama bin Laden, is scheduled to begin December 7, 2004. The trial of David Hicks, an Australian
national who has become a focal point for criticism of the tribunal process amid demands from his family
that the Australian government obtain his release, was to begin January 11, 2005. See Andrew Buncombe,
“Three Guantanamo `Judges’ Removed Due to Pentagon Bias,” The Independent, October 23, 2004.

316
 Part V: The First Six Elements of a National Security State

Authority” officers for bringing charges against a detainee and referring that person to a
tribunal (as named by Deputy Secretary of Defense Paul Wolfowitz) is Navy Secretary Gordon
England, with Navy Reserve Rear Admiral James McGarrah as the “convening authority” to
appoint the tribunals.
As noted elsewhere in the 2004 Commentary or Expanded Discussion, in May, 2003, the
Defense Department named Army Col. Frederic Borch III as the chief prosecutor for all
detainees, and Air Force Col. Will Gunn as the chief defense attorney. The Defense Department
also has issued detailed guidelines for the prosecutor and defense counsel.
The Defense Department also has designated retired two-star General John D. Altenburg,
Jr. as an “appointing authority” for certain tribunals. Air Force Brigadier General Thomas L.
Hemmingway was named Gen. Altenburg’s legal advisor. Retired Army Col. Peter Brownback
III, a judge advocate for 22 years and military judge for 10 years, will be in charge of tribunals
and could be a member of some tribunal panels. His legal advisor is Col. Keith Hodges, who also
has been a legal instructor at the Department of Homeland Security. Other members of an
original seven-member panel have been named.1 The Department also has named the “review
panel” which will consider each tribunal decision.2
Tribunal Process, Counsel, and Review. Tribunals (military commissions) would consist of a
panel of three to seven military officers, who are both judge and jury. Convictions and sentence
would be by two-thirds vote, but a death sentence must be by only a unanimous vote of only a
seven-member panel. The DOD process does not provide for an appeal from a tribunal
conviction to any federal court. (As noted, it is not yet known how this process will be affected
by the Supreme Court decision allowing Guantanamo detainees to file habeas corpus petitions in
federal courts, which could be a way to challenge military commission convictions in a federal
court.)3
A detainee is to be provided with a military-appointed defense attorney, but the DOD
guidelines allow an accused also to hire an additional, separate civilian defense attorney, at the
accused’s expense. The government-appointed defense counsel will continue as counsel, even if
a separate civilian defense counsel is hired. The civilian attorney must be a United States citizen

1. However, in a development occurring in late Fall, 2004, three members of the six member panel
were removed over concerns about their probable lack of partiality. According to press reports, one of the
removed panel members had overseen an operation that sent suspected terrorists from Afghanistan to
Camp Delta, another was an intelligence officer in Iraq, and a third allegedly stated some months earlier
that he was unfamiliar with details of the Geneva Convention. The Defense Department stated that the
removal of these three panel members will not delay proceedings because the tribunal can comprise only
three members. See, Andrew Buncombe, “Three Guantanamo `Judges’ Removed Due to Pentagon Bias,” The
Independent, October 23, 2004.
2. The review panel is Griffin Bell, former Attorney General in the Carter Administration and federal
appeals judge; Edward G. Biester, former Congressman and now a State court judge; William T. Coleman,
Jr., Secretary of Transportation in the Ford Administration, and Frank Williams, former Army captain and
Chief Judge of the Rhode Island Supreme Court. Each will serve two years and be temporarily commis-
sioned as Army major generals. Others may be named later. The panel members will decide which three will
hear specific tribunal appeals. See Esther Schrader, “Retired General to Oversee Military Tribunals,” Los
Angeles Times, December 31, 2003.
3. For a good general report on the problems posed by the military tribunal/ military commission
process, see ACLU Report, “Conduct Unbecoming: Pitfalls in the President’s Military Commissions,”
March, 2004. The report reviews the difficulties of an internally-developed and conducted “trial,” the
restrictions in the trial procedures, the constraints on contact or involvement with an independent counsel,
and the lack of independent judicial oversight or review. The report states, “The rules for military commis-
sions do not meet the president’s requirement of providing `full and fair’ trials. They do not guarantee
fundamental rights protected by the American Constitution and international law.” Among the report’s
most cogent criticisms is that “There is no precedent for establishing such a second-class system of justice.”

317
 No Greater Threat

and eligible for a security clearance of “secret” or better (if a background check is required to
obtain this clearance, the attorney must reimburse any costs involved). The civilian attorney
must sign a statement agreeing to, among other things, abiding by tribunal regulations,
allowing conversations with the accused to be monitored, pledging no contact with the media,
and ensuring no postponements. The civilian attorney must reside at the Guantanamo Bay base
for the length of that particular tribunal proceeding, unless granted permission to leave.1
There are reports that civilian lawyers for some detainees are or would be subject to
search before and after any meeting with the detainee, and that all conversations would be
monitored. According to other reports, even military attorneys defending Camp Delta detainees
have not had sufficient access to research assistants and interpreters and have not been able to
interview other detainees who could be possible defense witnesses. There have been challenges
to these proceedings by Defense Department attorneys assigned as defense counsel.2
Standards for Conviction, Administrative Review. According to DOD procedures, at commission
proceedings there will be a presumption of innocence, requirement of proof of guilt beyond a
reasonable doubt, and right of the defendant to call and examine witnesses — but only if the
witness request is considered by the commission to be “reasonable.” A potential witness who is
in the military need not be called from current duty to testify. The accused can present
statements from witnesses. The accused will have an interpreter.
The Department may withhold from the defense sensitive or classified information, but
the tribunal still can consider this information. A civilian attorney, and perhaps even the
accused, can be excluded from the proceedings if they are closed to consider sensitive evidence.
The assigned defense attorney from the Department of Defense can remain.
Nothing said by the accused to an attorney can be used at trial (although conversations
may be monitored, including conversations with any civilian defense attorney). If the accused
refuses to testify, the tribunal cannot consider that decision against the accused.
The tribunal can consider any evidence with “probative value,” including evidence
obtained during military operations. Hearsay can be considered.
Critics claims that the DOD procedures allow for the possibility that the tribunal can
consider coerced statements or confessions. This means evidence which would be viewed in a
standard criminal trial as “illegally obtained” could be considered by the tribunal. Plea negoti-
ations are available.
Once the trial is concluded and sentence issued (upon any guilty finding), the trial record
is automatically reviewed and confirmed by the Appointing Authority within DOD. A second
review, within the Department, is conducted by a three-member panel which makes
recommendations to the Office of the Secretary of Defense. The case can be returned for another
trial if a majority of the review panel believes a “material error” occurred. A final internal DOD
review will be at the Office of the Secretary of Defense. Ultimately, the fourth and final review is
available in the Office of the President. Again, thre is no appeal to a federal court.
Possible First Trials and Charges. DOD announced it will file at least three military criminal
charges against detainee David Hicks, 28, an Australian national and convert to Islam who has
been held since December, 2001. The charges will include conspiracy to commit war crimes,

1. See other sources noted and also, Briefing Paper, “Trials Under Military Order: A Guide to the Final
Rules for Military Commissions,” Human Rights First (formerly Lawyers Committee for Human Rights),
August, 2004.
2. See two-part article on Guantanamo Bay and military tribunals in New York Times, especially Part
Two: A Policy Unravels. Tim Golden, “Administration Officials Split Over Stalled Military Tribunals,” The
New York Times, October 25, 2004. The article details differences in approaches and opinions within key
Administration officials over the military tribunals, including rules to be utilized for them.

318
 Part V: The First Six Elements of a National Security State

attempted murder, and aiding the enemy. Two other detainees, Ali Hamza Ahmed Sulaman al
Bahlul of Yemen and Ibrahim Ahmed Mahmoud al Qosi of Sudan, suspected of being high al-
Qaida operatives also are expected to formally face similar military criminal charges.1
Status Review Proceedings. Shortly after the Supreme Court issued its decision on the
Guantanamo Bay detainees (see Appendix 5-C), which criticized the lack of a “status hearing”
for detainees, in the nearly three years since detentions at Guantanamo began, DOD announced
it would conduct brief “status hearings” for each detainee. These initial hearings are an initial
review which, under the Geneva Convention, persons seized by an opposing military force are
entitled to receive, to confirm their detention and their status. These are separate from military
commission trials.
The Department issued guidelines for these status hearings in July, 2004, just a month
after the Supreme Court decision. If the status hearing determines there is a reason to hold the
detainee, the detainee can still be considered an “enemy combatant,” and remains at Camp Delta
(until any tribunal proceeding or release). If not, the detainee is released. (For more on the
“status hearings,” see Appendix 5-F).
However, a decision by a federal district court in late 2004 determined these “status
hearings” might not meet Geneva Convention requirements and therefore, no military
commission proceeding can be held against any detainee until Geneva Convention
requirements are met. This is yet another judicial decision further complicating Adminis-
tration’s efforts to bring detainees to trial by military commission.
In any case, these military commissions pose a severe potential for movement toward a
national security state. If scores of these detainees are tried, if the commissions regularly hand
out long sentences, likely to be served on site, or if the commission issues death sentences, also
likely to be carried out on site, many of these detainees will never leave Guantanamo Bay. If
habeas corpus petitions are denied or overturned on appeal if granted, leaving internal adminis-
trative review in place, these detainees will be sentenced or perhaps executed by a U.S. agency,
after extended periods of confinement, without ever having seen the inside of an actual federal
trial courtroom or of a court martial hearing room.

APPENDIX 5-F
Executive Treatment Of Suspects And
Guantanamo Bay/Camp Delta

Along with developments in military tribunals are continuing developments of “Camp

Delta” at the Guantanamo Bay naval base in Cuba. The initial discussion did not include many
details about Camp Delta because in mid-2002, the detainee facility was only a few months old
and extensive information was not available. By late 2004, the situation has moved rapidly.

1. According to some reports, the government claims that Hicks, who has held a variety of odd jobs,
trained in Albania in 1999 with the Kosovo Liberation Army and fought for Albanian Muslims. In early
2000, he joined an Islamic extremist group in Pakistan, Lashkar e Tayyiba (Army of the Righteous) and was
active with them there. He traveled to Afghanistan in January, 2001 to train at al-Qaida training camps
where he had many aspects of formal military and guerilla training and during this time had personal
contact with Osama bin Laden and other high-ranking al-Qaida members. After the September 11 attacks,
he joined with Taliban and other fighters against United States forces and he was captured there. Reports
state that even if Hicks is convicted, he will not be given the death penalty because the United States had
negotiated with the Australian government not to seek the death penalty in his case. The Australian govern-
ment has not responded to demands from Hicks’ family to seek his release and has stated that it believes the
tribunal process will be fair. See, Bradley Graham, “Three Charges Placed Against Detainee,” The Washington
Post, June 11, 2004, p. A3.

319
 No Greater Threat

Even amid recent rumors that the Defense Department could release large numbers of the nearly
600 detainees there (contrasting with other reports that the Administration may hold as many
as 1,000 detainees there), the Camp Delta situation remains a dramatic indication of the
potential rise of a national security state. There are five developments to note:
1) overall situation of Camp Delta,
2) revelations about conditions and abuse of detainees at Camp Delta and advocacy
around that situation,
3) the revised process for military tribunals (military commissions),
4) the effect of the Supreme Court decision on the Guantanamo Bay detainees and the
recently-announced “military status review panels,” and
5) other Guantanamo Bay developments including charges involving alleged breaches of
security by some staff or officers, and some notes on the base environment.
Overall Situation. By now, it is clear Camp Delta is not a mere temporary holding facility for
a few suspect terrorists. (For a review of the Supreme Court case declaring federal courts can
consider habeas corpus petitions from Guantanamo Bay detainees, see Appendix 5-C).
Originally designated as “Camp X-Ray” and initially comprised of apparently temporary
(even chicken wire) enclosures for detainees when it got underway in January, 2003, the
portion of the Guantanamo Bay naval base devoted to terrorist detainees has become, for all
intents and purposes, a permanent offshore holding facility for suspected foreign terrorists of all
sorts. By April of 2003, more permanent structures were built.1 The facility is called “Camp
Delta” (a related and, apparently more extreme, holding area is called “Camp Echo”). There is
also a medium-security area called Camp Four, housing approximately 125 of the detainees,
placed there for “good behavior.”
Camp Delta now houses approximately 500 detainees from more than 44 countries. Many
were seized in Afghanistan during the initial weeks of US military action there, shortly after the
September 11 attacks. That means many detainees have been held for nearly three years. These
prisoners are held without personal contact by family, personal visits, charges brought against
them, and generally with little or no opportunity to communicate with counsel.
Intense secrecy has surrounded the detainees, including government refusal to release
specific figures, or a complete list of names and nationalities. The base is heavily guarded. Mock
drills are conducted to defend it from potential terrorist assault.2
Since January, 2003, approximately 100 detainees have been released, many to countries
such as England, Russia, and some nations in the Middle East including Saudi Arabia. Most of
those released were not charged in their own countries upon their return there. Some children
were held, but it seems that by January, 2004, nearly all of the youngest children have been
released.3 There were reports that more releases would occur.4
The U.S. does not consider the detainees as prisoners of war under the Geneva
Convention but as “unlawful combatants.” To be considered a prisoner of war when seized in

1. Reportedly this construction was at a cost of nearly $10 million by Brown and Root Services, a divi-
sion of Haliburton (the company formerly headed by Vice President Dick Cheney). Using international
shipping containers, each container houses five prisoners in separate 6.8 by 8 foot cells, with steel mesh on
three sides of the container. A metal bed is welded to the cell wall.
2. “Soldiers Defend Guantanamo Base in Simulated Attack,” The Baltimore Sun, February 1, 2004. The
exercise included firing at a floating target that to be considered an assault boat, using tracer rounds and
mortars.
3. Press reports, “Three Youngest Boys Released from Guantanamo,” January 30, 2004 The ages of
the three boys were not definitely known but were believed to be between 13 and 15. And see Associated
Press, “U.S. Frees 3 Youngest Prisoners at Guantanamo,” January 30, 2004.
4. Associated Press, “100 To Be Transferred from Guantanamo,” December 1, 2003.

320
 Part V: The First Six Elements of a National Security State

battlefield conditions, a person must have worn a military uniform, carried weapons openly,
been part of a recognized chain of command under a recognized flag, and followed rules of
engagement. The detainees are considered part of an irregular armed militia rather than
soldiers, and in the case of al-Qaida or Taliban fighters, not part of any recognized country or
state. Supposedly, this means the government can do what it wishes with them.
The detainess are viewed as interrogation subjects on terrorist training, organization, and
planning, and potential future targets.1 There are 70 translators assisting approximately 200
interrogators — which is one interrogator for every three detainees.2
According to reports, a permanent prison is being constructed at Camp Delta for
detainees to be sentenced by military tribunals, once these tribunals begin (renovations on a
building on the base to be used as a courtroom were completed in mid-2003). Some reports
indicate an execution chamber is being constructed, although the government has denied such
plans (nevertheless, tribunals can issue death sentences).3
Camp Delta Conditions and Reports of Abuse of Detainees. Beyond the extreme conditions of
detainees’ confinement — which according to some reports apparently includes being kept in
their cells for 23 hours and allowed only occasional showers (according to some reports,
detainees are allowed to leave their cells only twice per week for 15 minutes each time, for
shower and exercise sessions, with exercise taking place in a 25 by 18 foot cage) — the
detainees’ status as “enemy combatants” rather than prisoners of war supposedly allows use of
more intense interrogation methods, some of which could be considered torture. Interrogations
can occur any time, day or night.4 This seems to contradict the November 15, 2003 Military
Order by President Bush that detainees would receive full and fair trials and would be accorded
all appropriate treatment including proper food and shelter and the ability to follow religious
practices.
It was revealed in June of 2004 that a legal opinion letter was circulated within the
Administration concluding that United States government did not have to strictly abide by
Geneva Convention prohibitions against torture when dealing with enemy combatants or
suspected terrorists. (See discussion at Expanded Commentary for 2004 for Characteristic No. 3).

1. For a good general report on the Guantanamo Bay situation and military tribunals, see ACLU
Report, “Conduct Unbecoming: Pitfalls in the President’s Military Commissions,” March 2004.
2. For another general review of the Guantanamo Bay conditions, see Dan Fesperman, “Camp Delta
Inmates Will Talk for Burgers,” The Baltimore Sun, September 7, 2003, about how some interrogators are
offering snack food or McDonald’s “Happy Meals” to cooperative detainees. The story notes that the
“captor-to-captive ratio” is greater than 4-to-1.
3. ABC News and other press reports, “Guantanamo Team Preparing for Possibility of Execution
Chamber and Permanent Prison,” June 10, 2003. Some stories, including this one, attributed plans for a
permanent prison with an execution chamber to statements by then-commander of Camp Delta at Guan-
tanamo, Army Maj. Gen. Geoffrey Miller. See also other articles such as Matthew Hay Brown, “Death Row
Mulled for Guantanamo,” Charlotte Observer, June 6, 2003. The Pentagon appears to have softened that
approach and has not made a point of confirming whether an execution chamber is part of any new prison
facility being constructed there. One report quotes Eugene Fidell, president of the National Institute of
Military Justice, that “It certainly shouldn’t surprise anyone that the necessary steps might be taken, since
the death penalty is provided for in the order establishing the commissions.”
4. This is also suggested in a story by the New York Times News Service, “Guantanamo Bay Prisoners
Prove Valuable, U.S. Says,” noting that interrogation teams operate 24 hours a day. Officials say that inter-
rogations have revealed information about “active cells” the nature of the al-Qaida underground network.
However, no terrorist threat information obtained by these interrogations has materialized, and the infor-
mation has not let to any arrests in the United States of any individual suspected of terrorism. Officials also
maintain that at least 50 of the detainees are “ardent jihadists” and would try to kill more Americans if
released.

321
 No Greater Threat

Among interrogation methods allegedly used are: change of scenery up, change of scenery
down, dietary “manipulation,” environmental “manipulation,” “sleep adjustment,” isolation (for
up to 30 days), “false flag” or deceiving a detainee into believing the interrogator is from another
country, incentives, direct questioning, emotional “manipulation,” increasing or reducing fear
(fear up/harsh), isolation, “pride and ego up and down,” futility, repetition, good cop/bad cop,
rapid fire, and silence.1 Other techniques include exposure to heat or cold, use of loud music or
bright lights, removal of clothing, shackling, sensory deprivation including keeping prisoners
hooded for extended times, and solitary confinement.2 The Camp Delta conditions are
becoming well enough known internationally, that detainees or terrorist suspects in other areas
are being threatened with transfer there unless they cooperate.3
International agencies such as Amnesty International, Human Rights Watch, and Human
Rights First, have severely criticized these methods calling them a “pattern of abuse and
disregard for fundamental human rights.” Revelations about abuse of detainees at Guantanamo
continue to reach press reports. Other advocacy groups such as the Center for Constitutional
Rights have released their own reports. Still other groups, including the Red Cross and the
Guantanamo Human Rights Commission, have issued statements or expressed concerns about
conditions there.4 A delegation of attorneys for detainees, family members of detainees, and
human rights groups representatives went to Washington, DC in March of 2004 to seek
interest in Congress over Camp Delta and detainee conditions. Yet officially, the U.S. contends
it does not engage in torture.5

1. See Dana Priest and Bradley Graham, “Guantanamo List Details Approved Interrogation Methods,”
The Washington Post, June 10, 2004, p. A13. The article says that the list of interrogation methods was
approved on April 16, 2003 and “also allows interrogators to give uncooperative prisoners food that is cold
or less palatable and to isolate them from their peers.” However, the list “does not include some of the more
severe methods available to interrogators in Iraq if they got proper approval, including forcing detainees to
sit or stand in stressful positions, using sleep or sensory deprivation, and using military dogs to intimidate.
Nor do the Guantanamo methods approach the definition of torture contains in recently revealed Justice
Department and Pentagon legal reviews that argued such measures might be justified in certain circum-
stances.” However, reports from detainees or those recently released from Guantanamo indicate that some
more extreme methods have been used, such as intimidation by dogs.
2. For a general discussion of some of these techniques which reflects the military’s objective to
stretch to the limit the permissible uses of interrogation to obtain any information possible from the
detainees — although much of this seems to be in the nature of reprisal because it is quite unlikely that even
a majority of the 600-plus detainees are terrorist cell leaders with information on future plans for terrorist
attacks.
3. Associated Press, “Malaysia Detainees Face Guantanamo Threats, Report Says,” May 25, 2004, noting
a 57-page report from Human Rights Watch. The story notes that according to officials for the group, “U.S.
abuse of detainees in Iraq, Afghanistan and Guantanamo Bay shows what can happen behind closed doors.”
The report states that interrogation methods in these places are being used as a model by other countries,
even escalating to beatings and to threats of arrest of family members unless the detainee cooperates.
4. Among these advocacy groups is the Guantanamo Human Rights Commission, based in London.
Commission members include well-known actress Lynne Redgrave. The organization has a website, issues
reports and statements, and conducts programs or events concerning the Guantanmo situation. Several of
the Camp Delta detainees are British nationals. The Red Cross has denounced the conditions at Camp Delta
and the psychological interrogation methods that have been used on detainees.
5. Yet the information is that the original commander of Camp Delta, Brigadier General Rick Baccus,
was removed from his post in October, 2002 because of his resistance to the military’s interest in using more
extreme interrogation methods. His successor, Maj. Gen. Geoffrey Miller, who was later put in charge of the
military prisons in Iraq, put into place a 72-point matrix for stress and duress methods, which could even
include threatening by dogs. See Suzanne Goldenberg, “General’s Sacking Cleared Way for Pentagon to
Rewrite Rules,” The Guardian, May 17, 2004. The current (acting) commander of Camp Delta is Brigadier
Gen. Martin Lucenti.

322
 Part V: The First Six Elements of a National Security State

Recently released detainees have related personal accounts of extreme interrogation

tactics.1 Some of these actions are taken by a special squad at Camp Delta called the Extreme
Reaction Force.2 Other reports from detainees, including statements in some letters received by
family members, have detailed “vindictive” torture, death threats and psychological tactics.3
There have been at least 35 suicide attempts by more than 27 detainees. Other reports are that
as many of 10 per cent of detainees are now suffering from mental health problems.
Military Tribunal Process, Separate "Status Review" Hearings. The revised process for military
tribunals (military commissions) was announced by DOD in early 2003. (For a more detailed
discussion of the military tribunal process, see Appendix 5-E). As noted, in July, 2003 after the
Supreme Court decision on detainees, the Department announced “status hearings” for the
detainees.4 These are not tribunal trials, but the review required by the Geneva Convention of a
seized person’s “status” and intended to decide only whether each detainee should continue to
remain at Camp Delta.
As to these status hearing, the DOD July, 2004 procedures state that a detainee is to be
notified of the opportunity “to contest designation as an enemy combatant.” A military officer
appointed as the detainee’s “representative” and may have access to “reasonably available
evidence” concerning the detainee. After that, in 30 days a three-person review panel is
convened “to review the detainee’s status as an enemy combatant.” The detainee is permitted to
attend the proceedings except for panel deliberation and vote, can testify and address the panel,
and is to be provided an interpreter. The detainee can call witnesses if the witness is
“reasonably available” (as decided by the panel).

1. Three British nationals released from Camp Delta — Asef Iqbal, Ruhal Ahmed and Shafiq Rasul —
released a 115-page report, Detention in Afghanistan and Guantanamo detailing several instances of detainees
subjected to torture and indignities. According to stories about the report, the United States government
and the Defense Department has denied the use of torture methods described in them. the See also recent
publication on Guantanamo and Camp Delta, by Michael Ratner of the Center for Constitutional Rights
and Ellen May, Guantanamo: What the World Should Know (Chelsea Green Publishing 2004).
2. A shocking story about the tactics of the Extreme Reaction Force came about due to severe injuries
suffered by an American soldier, Specialist First Class Sean Baker (an Air Force veteran), 37, who was part
of a training exercise for the Extreme Reaction Force, where it seems that ERF members were not aware
that the soldier was not an actual detainee. He was taken to a hospital in Virginia and treated, but
continues to suffer after-effects from the ERF beating he received including possible brain damage, and was
treated also at Walter Reed Army Medical Center. He was transferred to light duty and was later
discharged. Baker has detailed his story to press in his local area in Kentucky and to ABC News. A military
investigation concluded that there was no misconduct involved in the incident and the military has said
that it cannot find any videotape of the incident although a video supposedly was made (other reports indi-
cate that the Army has re-opened the investigation). Baker is seeking disability retirement from the Army.
The case is pending. See Nicholas Kristof, “Beaten Soldier Still Suffering,” New York Times, June 5, 2004.
3. Among these reports are statements made in a letter by Moazzam Begg, a British citizen brought to
the base in February, 2003 and still held at Camp Delta. He claims he has been stripped, has been held in
solitary confinement, was harassed by death threats from guards and interrogators, and that he still has not
been given information about any charges against him. His letter also claims that at the United States mili-
tary’s Bagram base in Afghanistan, detainees have been subjected to severe torture and that two have died.
Three Afghans have died in US custody in Afghanistan: two in December, 2002 at the Bagram base — and
both of those deaths have been determined by the military to be homicides — and one in June, 2003 at
another detention site.
4. See “Order Establishing Combatant Status Review Tribunal,” issued by Defense Department on
July 7, 2004 by Deputy Secretary of Defense Paul Wolfowitz. This came after the Defense Department
announced a general policy of an annual review of status of detainees who have not been before a military
tribunal. Associated Press, “Pentagon to Review Status of Guantanamo Detainees,” February 14, 2004.
However, Defense Secretary Rumsfeld continued to state that the detainees were “enemy combatants” and
are not being held because they stole a car or robbed a bank.

323
 No Greater Threat

The status review panel can consider “any reasonably available information” regarding the
detainee’s status. It is not bound by the rules of evidence and can consider “any information it
deems relevant.” That would include, it would seem, any statement obtained by the detainee
even under duress. There is a presumption in favor of the correctness of the government’s
evidence.
After the proceeding is conducted and the vote taken, the record of the proceedings
(including a transcript and all material considered by the tribunal) is to be sent promptly to the
Judge Advocate General, for a review for “legal sufficiency.” If the record the proceeding is
deemed “sufficient,” the decision stands. If not, the case is returned.
If the decision is that a detainee is not an enemy combatant, a report is forwarded to the
Secretary of Defense (or designee). The Secretary of Defense is to coordinate with the
Department of State for “release to the detainee’s country of citizenship” or other appropriate
“disposition.”
It is not expected that the “status hearings” will result in large numbers of releases,
although some press reports indicate that many of the detainees are low-level operatives or
persons who were not engaged in combat activity. There have been numerous press reports that
many detainees, ranging from 10 to 50 per cent, are not dangerous terrorists but were seized in a
variety of situations such as taxi drivers or street vendors, have no connection to any terrorist
groups, and have not engaged in any conduct subject to military criminal charges. The results of
the status hearings will be of particular interest.
Charges Against Some Officers and Staff. The secrecy and intensity of Camp Delta is being
furiously enforced. Much reporting surrounded instances of charges brought in mid-2003
against four staff persons: Army Captain Yousef Yee (a chaplain), Senior Airman Ahmad Al-
Halabi who was working as a translator, another translator Ahmed Fathy Mehalba, and Army
Reserve Colonel Jackie Farr. Various charges brought included espionage, conspiracy, breach
base security, and possession of classified documents.
Yet, none of these prosecutions ever truly proceeded. Perhaps to avoid the possibility of
revealing details of Camp Delta operations, prosecutions against all were dropped or halted. In
March, 2004, all charges against Captain Yee were dropped.1 In August, 2004, the case against
Reserve Colonel Farr was abandoned. Prosecution against Mehlaba (who speaks four Arabic
dialects) has not proceeded, but it is unlikely to result in conviction on any major charge.
And, in September, 2004, Al-Halabi was allowed to plead guilty to four lesser charges
involving mishandling information, with a dishonorable discharge and potential jail term, in
return for the Defense Department dropping the espionage charge (which carried a potential
death sentence). Reportedly, Al-Halabi, while at the base as a translator, became concerned
about abuse of detainees. He had collected 180 letters from prisoners to families, a list of
prisoners’ names, two photos of the camp, and a sketch of the camp.
He was arrested on a trip to his home country of Syria to get married, but the government
contended another purpose of the trip was to provide information he had about the base to
contacts in Syria. Although the government agreed to drop the espionage charge, the lead
prosecutor claimed Al-Halabi would have provided information he had to contacts in Syria had
he not been arrested (a statement which drew strong criticism from defense attorneys). The
case also was marred by prosecution missteps, such as a prosecutor’s failure inform the defense
that another translator had made a crucial error in translating a letter from Al-Halabi. When

1. New York Times News Service, “Pentagon Dropping Charges Against Muslim Chaplain,” March 20,
2004.

324
 Part V: The First Six Elements of a National Security State

that failure was revealed after the translator went to the defense herself, the prosecutor quit his
position and resigned from the military.
General Guantanamo Bay Base Environment. The base, with a 100 year-old history, continues to
be a presence in Cuba from its time of the Spanish American war. It is “leased” from the Cuban
government for $2,000 per year (although reportedly Cuban President Fidel Castro does not
cash the check, and has always maintained the base is illegal, although he has never canceled the
lease). An American-style community of about 6,000 people is at the base, with a movie theater,
fastfood restaurants, schools, diving shop, sailing center, single-family housing, nine-hole golf
course, and a Little League. There is an air-conditioned mess hall.1 The Camp Delta facilities are
in a restricted area away from most of the other base activity. It can be assumed that most of the
base personnel and residents have little or no direct contact with the Camp Delta detainee
situation.

See, "Ashcroft Warns of Terror Attacks Soon Against United States," New York Times, October 30, 2001,
p. A1; and "America to Celebrate With Pride, Security," Associated Press, July 4, 2002, about additional
security procedures for the July 4 holiday observances.
Summer and Fall, 2002: "Attack on U.S. Almost Certain, Cheney Says," The Baltimore Sun, May 20, 2002,
p. 12A. "Sept. 11 Hijackers Eyed Navy Ships in California, Official Says," Associated Press, August 21, 2002;
"Al-Qaida `Alive, Well, Poised to Strike," August 30, 2002, p. 10A, "FBI Warns Police, Industries of Threats
Mentioning Sept. 11," September 10, 2002, p. 3A, "High Alert Declared Because of Threats to Overseas
Targets," September 11, 2002, p. 1A; "Anti-Aircraft Missiles Set Up Near Capital," September 11, 2002, p. 11A,
"U.S. on High Alert; Nine Embassies Stay Closed," September 12, 2002, p. 19A, and "Reports Hinted of Plans
to Strike at U.S.," September 19, 2002, p. 5A, "Al-Qaida Will Hit U.S., Tenet Says," October 18, 2002, p. 3A
(describing testimony before Congress by CIA chief George J. Tenet, warning that al-Qaida is in "execution
phase" of plots against United States); and "Voice Likely bin Laden's, Threats Real, Officials Say" Fall, 2002;
and "FBI Warns of Bombs Hidden in Shoes, Coats," December 25, 2002, p. 3A.
Fall, 2003: See, various press reports: October 8, 2003, "U.S. Envoy Warns of `Spectacular' Attacks by
Taliban" to occur in Afghanistan and neighboring areas; "Government Issues Warnings of Increased Risk of
Terrorism," November 22, 2003, concerning threats to cargo planes, bridges, dams, and liquid natural gas
facilities and transports; "Bin Laden Tape Warns of More Attacks;" December 22, 2003, and intelligence
reports that terrorists might strike outside large cities, such as Valdez, Alaska where oil is loaded from the
Alaska pipeline, December 24, 2003; and "Tape Warns of Attacks on U.S. Soil," December 20, 2003, p. 15A
(tape supposedly by Ayman al- Zawahri).
November, 2003: Associated Press, "Federal Officials Warn of Plot to Hijack Foreign Cargo Planes."
The report quotes DHS sources as saying "We also remain concerned about threats to the aviation industry
and the use of cargo planes to carry out attacks on critical infrastructure." The reports said that security
experts have complained that the TSA has not paid enough attention to cargo plane risks.
December 2003-January, 2004: The terror alert was raised to orange on December 21, 2003 and
lowered to yellow on January 10, 2004. See press reports, "U.S. Raises Terror Alert," December 22, 2003.
Officials then said that the threat may be greater than at any time before the September 11 attacks. The
change to the "orange" terror alert level met increased security at airports, random vehicle searches, greater
security at seaports and border crossings, security measures for bridges and transportation, military
activity in support of the terror response, sweeping air over some major cities for any signs of heightened
radiation, and heightened security in public buildings.
During the December, 2003-January 2004 alert, 16 international flights were canceled or delayed
including flights from France or Mexico to Los Angeles, fighter jet escorts were ordered for other flights,
and increased security caused numerous transit delays. Some international flights were delayed for hours
while security checks were conducted. See Los Angeles Times or Associated Press: "U.S. Still Alert for
Terror in Skies," December 26, 2003; "Terror Threats Cancel Flights," January 2, 2004; "More Flights
Canceled After Warnings," January 3, 2004; "Terror Fears Delay British-US Flight; Stadiums Watched,"
January 4, 2004; "Flight Again Delayed as U.S. Continues Its Scrutiny of Airlines," January 5, 2004, and

1. Dan Fesperman, “Camp Delta Inmates Will Talk for Burgers,” The Baltimore Sun, September 7, 2003.
And see, Knight Ridder/Tribune, “At Guantanamo, the Feel of Small-Town America,” December 26, 2003.

325
 No Greater Threat

"Afghan Linked to Canceled Flight is Sought," January 8, 2004. See, Laura Sullivan, "Ridge Lowers Terror
Threat Alert," The Baltimore Sun, January 10, 2004.
Even after the terror alert was lowered, security interest remained high. Associated Press, "Fight to
Washington Diverted After Bomb Threat," January 11, 2004 (American Airlines commuter flight was
diverted to Dulles airport after a passenger passed a note to the crew demanding to be taken to Australia,
the FBI arrived, detained the passenger and questioned the other 19 passengers and crew); Associated Press,
"Flights ID's As Possible Terror Targets," January 31, 2004, and "Warning of al-Qaida Attack Cancels Seven
Foreign Flights," February 1, 2004.

Also see Associated Press, "High Terrorist Alert Triggers Activation of Federal Response Teams,"
December 26, 2003. These range from air monitoring teams to increased security at government buildings
including Camp David if the President is staying there.
May, 2004: Press reports, May 26, 2004, "Intelligence Officials Get Tip on Terrorism Attack in U.S."
However, the tip is called "vague" and the terror alert level is not raised. Officials express concern about the
G-8 Summit in Georgia, dedication of the World War II National Memorial in DC in May, and the major
party political conventions in July and August. Also see Laura Sullivan, "Ashcroft, FBI Seek Help to Stop al-
Qaida Attack," The Baltimore Sun, May 27, 2004, p. 3A. The story noted FBI information of seven potential
terrorists who are of particular interest to the agency. Photos of the individuals were widely circulated.
However, since then, there have been no reports that any of them have been apprehended or that any of
them were planning a specific terror act. Some critics said that the announcement was timed to draw atten-
tion away from the Democratic Party National Convention.
And see New York Times News Service, "New York Officials Prepare for An `Unthinkable' Attack"
concerning terror attack readiness even for the use of biological weapons.
July and August, 2004: Increased security in Boston for the 2004 Democratic Party National Conven-
tion and in New York for the Republican Party National Convention.
August, 2004: Special security alert for New York and Washington, DC, causing restrictions on
traffic, travel, access to buildings, and streets. See Laura Sullivan and Tom Bowman, "`Very Specific' Terror
Threats to N.Y., D.C.," The Baltimore Sun, August 2, 2004. The alert extended to specific buildings including
the headquarters of the International Monetary Fund and the World Bank in addition to commercial build-
ings in New York. The D.C. alert level was raised to "orange."

326
PART VI: THE NEXT SIX ELEMENTS OF A NATIONAL SECURITY
STATE
The next six elements of a national security state include two elements crucial to the extent and longevity
of any national security state development: critical response from religious denominations and direct
silencing of dissent. Formation of a national security is far less likely to occur and, if formed, it is less likely
to continue when churches or major religious organizations refuse to cooperate and when there is outcry
over the silencing of dissent. The next few years will be pivotal for the interaction of these elements with the
state, and thus will be critical as to how, and in what form, a national security state will develop in America.

The first six elements of a national security state already have been identified. Movement
is also underway to put in place the second group of elements, although not equally strongly for
all of them. Some of these remaining elements are more subtle. Nevertheless, in combination
with the previous six, which the country is coming close to fulfilling, the overall result places
America at the gateway of a potentially permanent national security environment. Circum-
stances since mid-2002 have done nothing to change that situation — if anything, the general
situation has become more dire.
Once again, a reminder: examining the 12 aspects of a national security state is not
intended to mean the United States must become a severe national security state. America is in
no danger of transforming into a classic dictatorship. Instead, no less troublesome, is the
transformation into a national security state the effects of which will be less overt and, for that
very reason, more likely to be lasting. This more subtle form of national security state still poses
the very real risk that political freedoms and civil liberties could be compromised or lost. The
corresponding and more immediate risk is that too many national resources will be diverted to
national security matters, passing over other fundamental national commitments including
addressing critical problems of poverty, reviving the economy, improving health care, and
maintaining the environment.
The objective of this assessment is to bring these concerns to the forefront. There should
be a national debate on the extent to which this country is likely to be a national security state,
the extent to which these 12 characteristics are being fulfilled, and the consequences for
American political and social life.

7. PATRIOTISM MOVING TO NATIONALISM

There is a troubling feature to the recent increase in American patriotic fervor. Fealty to
the nation-state is not without its hazards. The nation-state does not provide rights — for
those who have forgotten their high school civics. Our Declaration of Independence and the
Enlightenment ideals it reflects proclaim that an individual’s rights are inherent, are not granted
by the state, and cannot be destroyed by any state. An individual’s rights belong to the person,
alone. Consequently, as the Declaration announced, the state’s primary duty is to ensure that
these “inalienable” rights are guaranteed and protected. A government or State which does not do
so has lost its legitimacy. The primacy of the State over the individual is totally contrary to the
ideals expressed in the Declaration and in the Bill of Rights.
There is also the fact that patriotism, linked as it necessarily is to the primacy of the
nation-state concept, has a limited overall utility in a world finally recognizing the undeniable
fact of global humanity. In the modern era, our most fundamental and evident “citizenship” is as
a member of the global community. Our issues and our future — from economics to environment

327
 No Greater Threat

to health — are now and forever global in scope. The environment itself never held any regard
for national boundaries. Migration routes of species from birds to fish to caribou do not concern
themselves with artificial lines on a map. Weather and ocean patterns including the patterns
which move environmental effects from one region to another do not respect national
boundaries. Even the distribution or spread of a disease has no regard for artificial lines on a
map.
Global population and health issues certainly are not issues of mere national boundaries.
The situation of the billions of poor and desperate people around the world must be a concern
for all. That includes the concern about the nature of political upheavals in other nations, often
with roots in dismal social conditions. John Kennedy once said it: “Those who make peaceful
revolution impossible make violent revolution inevitable.” That is a global statement about
human rights which America should more fully build upon as a cornerstone of foreign policy.
The ultimate question is not just human rights here or there, but human rights worldwide.
Truly, the interests of any one nation state, and the continued 19th century-style
movements of diplomats and economic summits between nation states, must soon give way to
the global realities of life. That encompasses global imperatives of ensuring human rights, not
just political rights, for global citizens. To that extent, America must move beyond our limited
notions of human rights. The tremendous legacy of Thomas Jefferson and James Madison was a
momentous beginning, but it is a legacy now more than two centuries old. As human
understanding in other fields of endeavor has advanced in that time, so also has our
understanding of a more varied collection of human rights. These were expressed by the United
Nations Declaration of Human Rights — already more than 50 years old. Human rights
recognized in that document include the traditionally- understood civil and political rights, but
also include other rights essential to human life and dignity such as the right to food, the right
to a livable wage, the right to health care, and the right to education. These are globally
understood rights to be globally advanced. In that context, patriotism and allegiance to any
nation state are of considerably limited utility.
Added to these points is a greater concern — that patriotism may grow into nationalism,
a situation where the interests of the state become the only legitimate interests and dissent is
considered dangerous. At that point, even those who endorse patriotism must join in the
concern.
In that respect, there is cause for concern already. Many Americans are pleased with this
new wave of patriotism. American flags are everywhere: cars, trucks, lawns, office buildings,
lampposts, windows, businesses, websites, trees, restaurants, highway overpasses, shopping
malls. It is an explosion of the national symbol not seen in two generations. But there is another
side to this coin. It does not take much more impetus for patriotism to reach the brink of a
deeper and more ominous nationalism which could sweep all before it. What is likely soon to
come along with this unprecedented visibility of the national symbol is a sense that only
America matters, or worse, that only the pronouncements of the national government are
legitimate. This makes it easy to label any objection to the will of the national government as
imprudent and then, soon, as non- legitimate. With such trends in motion, nationalism begins
to grow.
In Washington, D.C. and other tourist spots, vendors who sell t-shirts and hats are doing
a brisk business in selling wares bearing American flags, eagles, “FBI,” or “CIA.” Such
paraphernalia would hardly have been considered marketable items two or three years ago.
ROTC (Reserve Officers’ Training Corps) enrollment in high schools and colleges is on
the increase. This follows a long 30 years when ROTC enrollment was considered bad taste.
Nationwide, interest in the military has increased. Advertisements about the military likewise

328
 Part VI: The Next Six Elements of a National Security State

are increasing on the in television, and the Air Force and Navy are adding their campaigns to
those of the Army and the Marines, in nearly any prime time slot. Advertising for the military
now shows up even in commercials preceding the “coming attractions” previews in movie
theaters. There may be no end to this. Interest in the military need not be dangerous by itself.
But the military is not the saving grace of the nation. The nation’s own vision of itself and its
own commitment to larger ideals are its best hope for the future.
In the same vein, resumes are flowing into agencies like the FBI and CIA, and recruitment
offices are busy. Defense Secretary Donald Rumsfeld has said that the armed forces need to be
expanded by another 50,000, above the 1.4 million soldiers, sailors, air force personnel and
Marines. The Pentagon has also activated 80,000 National Guard and reserve troops.1
To this must be added the unprecedented approval rating for President Bush, poll after
poll supporting the American war in Afghanistan. An ABCNews.com poll released on January
15, 2002 indicated that 68% of those answering said that they trusted the government to handle
national security issues. That figure was strong across the board: 62% of those who said they
were Democrat, 80% of those who said they were Republican, and 72% of those who said they
were independent, answered positively to the question.2 In that same report, ABC News said
that prior to September 11, 30% responding to another poll said that they trusted the
government in Washington to do “what’s right.” After September 11, that figure jumped to 64%.
Increased ratings supporting President Bush also followed his State of the Union address.
Popularity in a Presidency is not an evil, alone. But care must be taken that this does not result
in total lack of criticism by the public when lines are crossed.
There was a certain increase in national patriotic pride between March, 2003 at the
beginning of the Iraq war until the fall of Baghdad in April, 2003, shortly after the United States
(with other Coalition troops) initiated the Iraq war (“Operation Iraqi Freedom”). There were
similar poll figures supporting the war effort, and President Bush benefitted from high public
opinion ratings. President Bush’s 2004 State of the Union address, like the 2003 State of the
Union address, produced similar strong poll results. And Congress did approve President
Bush’s request for the additional $87 billion for “Iraq reconstruction.” However, as mentioned
elsewhere in 2004 commentary, with the exception of the 2004 State of the Union, poll results
since the Fall of 2003 show public uncertainty moving to opposition over whether the Iraq war
was justified, appropriate, or has made the country “safer” (as President Bush claims). There
also is great uncertainty over long term prospects for Iraq and for the United States presence
there, as the insurgency mounts daily attacks. These results may have an effect on public
acceptance of any emerging national security state, although it is ironic that public resistance to
that possibility must come at the great cost and expense of the Iraq war in resources and
material not to mention the lives of more than a thousand troops and many thousands of Iraqi
civilians. Even more recent polls have indicated that a majority of those responding do not
believe that removing Saddam Hussein was “worth it” in the cost of American casualties and
commitment of resources.

Patriotic bills or resolutions, following on the PATRIOT Act, have been either introduced
or approved in some state legislatures.3 Many of the resolutions include special attention to be
paid to the service of war veterans. Many of these war-remembrance resolutions have in

1. New York Times New Service, “Military Officials Ask To Add 50,000 Recruits,” The Baltimore Sun,
April 19, 2002, p. 7A.
2. The poll was conducted in mid-January, 2002 in a random sampling of 1,023 adults, and had a
three point margin of error.

329
 No Greater Threat

common the theme of honoring veterans who have “defended the nation” or “fought for our
freedom.” The causes and circumstances which have brought about these wars are hardly
mentioned in such legislation. To honor the veterans of war who have sacrificed themselves for
war is not to honor war. War is never a legitimate objective of a nation state.
Media have also been part of this effort. In a story typical of local press particularly in
areas with a strong military presence, The Virginian-Pilot ran a front-page story in its Sunday
edition of March 17, 2002 called “The Protector.” It focused on the pilot of an F-15 fighter jet
from Langley Air Force base who is part of regular air-patrol sorties which were being run over
the Washington, D.C. area. The story proclaims, “Capt. Robert Noonan might seem like a
typical 9-to-5er. He kisses his family before heading to work. He’s home in time for dinner. But
in between, he’s at war, guarding the skies over Washington, D.C.” The story notes that the
pilot keeps his “eyes peeled” for “bad guys” as he circles in his fighter jet “over all the things he
would have gone to the ends of the Earth to protect — the house in suburban Maryland where
he grew up, the high school where he met his wife, and the other places where hundreds of
thousands live and work and wonder if Osama bin Laden’s forces will ever strike again.” The
story not only was the central feature of the front page with two color photos, but also
continued to a full page inside with more photos. Similar news coverage has been devoted to
members of the United States armed forces returning after duty in Iraq. Another example was
the substantial coverage devoted to Pvt. Jessica Lynch of West Virginia, severely wounded in an
assault on her unit, and who returned home to much fanfare. In stark contrast is the negative
coverage of Pvt. Lynndie England, implicated in the prisoner abuse scandal at Iraq’s notorious
Abu Ghraib prison. The polar opposites of these personalities and the respective news coverage
mirrors the internal contradictions of the Iraq war itself.
News articles of this sort, interesting as they might be, are more in keeping with war
coverage of the 1940s. They would have been rare indeed prior to September 11. Step by step,
appreciation turns to support, support turns to loyalty, and loyalty turns to acceptance of total
rule. Then, it is too late.
The ubiquity of the national symbol, the mass media presence of the military, the almost
total support for the President, and lack of critical thinking about what may have motivated the
brutal suicide attacks, are moving the country from patriotism to nationalism. Once that
occurs, with the combination of other factors, a national security state will be almost complete.

***
Comment at Close of 2004
The national security state characteristic of patriotism moving to nationalism has not
advanced as it might have, if the Afghanistan and Iraq conflicts were marked by complete and
widespread positive response in those countries, accompanied by universally favorable interna-
tional reaction, and if there had been a spectacular capture of Osama bin Laden. Instead, nation-
alistic fervor has waned as these conflicts continue. Not even the capture of Saddam Hussein in
December, 2003, sparked overwhelming nationwide patriotic reaction in the United States. It is
extreme to suggest that a rise in nationalism need be a concern only in the event of a terrorist
attack on U.S. soil comparable to September 11, which no one wishes (despite the experts'

3. A resolution was introduced and passed in the Maryland General Assembly in 2002, calling for
patriotism to be taught in schools, especially the service and sacrifice of World War II veterans. Senate
Joint Resolution 2 (General Assembly, 2002). AFSC Note, January 9, 2002. See also theme of “PATRIOT
Act Progeny” discussed later.

330
 Part VI: The Next Six Elements of a National Security State

warnings that it is likely to occur within five years of September 11). It is rather more apt to note
that this characteristic is votalite and must be carefully observed.
Currently, then, there is lack of substantial movement on patriotism moving to
nationalism. Among the indicators are the extremely close 2004 Presidential campaign, in
which the Iraq war was a central issue.
Although Democratic Party candidate Sen. John Kerry presented himself as a better anti-
terrorist than Bush and voted for the Congressional Iraq war authorization, his criticism of the
Bush Administration’s rationales for the war and handling of the military aftermath resonated
with the American public to the point of creating a virtual dead heat in poll figures. Also, public
response ranged from interest in, to support of, other pointed criticism of the Administration’s
“war on terrorism” policy and the Iraq war, by significant former government figures such as
former White House anti- terrorism advisor and national security official Richard Clarke (in his
book Against All Enemies) and Gen. Wesley K. Clark, who campaigned for the Democratic Party
presidential nomination on a platform of sharp criticism of the Iraq war. Major Administration
officials such as Secretary of State Colin Powell, the senior Administration person on foreign
policy, were not plainly visible supporters of the Administration’s ongoing Iraq situation, even
in the midst of a close Presidential campaign.
A “support our troops” atmosphere is plain in current American culture, evidenced by
flags, bumper stickers, and decals, but that atmosphere has not been materially different than
similar response to the first Gulf War (“Operation Desert Storm”) or for less recent military
incursions. Even some veterans’ groups are critical of the war, something not so evident in the
Gulf War or even for the incursion into Afghanistan. After a patriotic response to the
September 11 attacks, patriotic periods have been more limited: immediately after the 2003
State of the Union address, between March, 2003 and May, 2003 (from the beginning of
"Operation Iraqi Freedom" to President Bush’s “mission accomplished” announcement), and
after the 2004 State of the Union address. Overall, since early 2004, the public has not lined up
unquestioningly behind overseas conflicts, instead becoming more concerned about
surrounding issues, notably long term prospects for American troops and for foreign policy, and
domestic effects of rising budget commitments.
(For a review of these and other developments, see Expanded Commentary for Charac-
teristic No. 7 at the end of this Part.)

***

8. LACK OF CRITICAL RESPONSE BY RELIGIOUS DENOMINATIONS/RELIGION IN

SERVICE TO STATE
A national security state cannot survive long in the wake of sustained critique and
disapproval on a national basis. Thus the state’s need for a reduced role of the judiciary, a firm
grip on the national will, and an uncritical press. A decisive source of difficulty for the national
security state is the churches or religious denominations (which includes all faiths, churches,
worship centers, meeting halls, synagogues, temples, mosques). To maintain a national security
state, either religion will be suppressed, or the state will ensure that religion operates in service
to the state.
To list this characteristic of a national security state is not to say that there has been no
critical response by religious denominations in America, following the September 11 attacks, of
the military response of the United States government, the war in Afghanistan, a possible
widening global conflict, the prominence of a national security mentality, or civil rights
concerns following the PATRIOT Act and White House Executive Orders. Listing this charac-

331
 No Greater Threat

teristic emphasizes that without a sustained and effective critical response by from religious
aspects of society, a primary impediment to the formation of a national security state is absent.
So, what becomes of this characteristic in the next one to five years will be a crucial factor shaping the
extent to which America is transformed into some form of national security state. It already was mentioned
that the issue is not so much “state v. religion” but “religion v. state.” Outright suppression of
religion itself by the state, which is a common theme in national security states, is simply not a
possibility in America. Religious freedom is too dearly held, and there are far too many religions
for the state to act effectively to suppress religion as a whole — they are far too numerous in
style and function and form.
Aside from that, religion consistently is being put to use by the state itself. There is the
effort by the Bush administration to enlist religion in service of social needs (the “faith- based
initiative”). The President attended and spoke at a national prayer service at the National
Cathedral after September 11. The President has persistently invoked God. “God Bless America”
has become almost a national slogan. While these developments add to the certainty that the
United States government is very unlikely to undertake any effort to suppress religion, they
present their own perils. For as dangerous as a state which actively suppresses religion is a state
which has blended religion and national policy into a cohesive whole, resulting in little
distinction between religion and state, rendering the state the sole claimant to political
authority and religious legitimacy. Such a state was, in fact, the situation in Afghanistan under
the rule of the Taliban and an extreme form of Muslim-based theocracy.
Regardless, the United States government has another, more distressing reason for not
even bothering to effectuate any form of suppression of religion: with a few notable exceptions,
religious denominations have not posed any serious political or social threat to the ruling
authority. Religion in this country is simply not thought of, by and large, as openly critical of
state conduct. This may well be a popular misimpression, since for more than 25 years there
have been consistent official statements and position papers from a range of Christian denomi-
nations in the United States calling the government to task on issues ranging from housing to
welfare to medical care to military spending. However, these statements either are not widely
disseminated to, or are quickly set aside by, an American public preoccupied with the pressures
and responsibilities of daily life.
This is the other side of the First Amendment coin. The Constitution grants the absolute
right of citizens to worship when and how they please, or to not worship at all. By the same
token, the Constitution grants each and every religious denomination the right to speak plainly
to American social life and policy, or the right to be politically irrelevant.
An overt, consistent, and critical approach from America’s religious denominations
becomes important for several reasons: this approach can impede the development of a national
security state, it ensures that religious authority does not merge with state authority, it
emphasizes the different perspective and spiritual reflection which must accompany significant
political decisions, it cautions the national government against acting contrary to the standards
of human freedom and human rights, and it encourages denomination members to call upon
their religious principles when responding to crucial State issues. Church response to a national
political and social crisis becomes an indispensable part of the overall societal response and can
be instrumental in modifying the actions of those who claim to proceed on behalf of the
citizenry from the corridors of governmental power.
The enormous potential for influence and response by religious denominations to
political crises in America is one of the overriding themes of American political life.1 There is an

1. The 10 most populous religious denominations in the United States are:

332
 Part VI: The Next Six Elements of a National Security State

ongoing debate among social policy theorists over the role that religion can play in social
transformation and whether religion has any long-term significance. It may seem to some that
religion in America always has been relatively unconcerned with larger social issues on a
persistent and prominent basis. However, that position ignores three trends: the consistent
positions and actions by traditional peace and abolitionist denominations, some of which have
existed since Colonial days (among denominations consistently critical of the national
government are the Friends, Church of the Brethren, Mennonites, and United Church of
Christ), the development (although slow) of a cohesive theology of public policy in major
Christian denominations in America, especially since the turn of the 1900s, including significant
support among major Christian denominations for labor struggles in America especially post
World War I, and the striking development since the 1960s of a progressively-minded social
teaching in the Catholic Church, the major religious denomination by far in the United States.1
Still and all, the churches can assert a hold on the national conscience. Millions of
Americans turned to the churches for comfort after September 11. The National Cathedral
service at which President Bush spoke was studded with dignitaries, featured prelates from
Judaism and Islam, and bore the message, even spoken by legendary evangelist Billy Graham,
that the country must not turn away from its historic commitment to civil liberties even as it
responds to terror. A prayer service in New York for the September 11 victims, held on
September 23 at Yankee Stadium, featured major clerics and celebrities including the Catholic
cardinal, Edward Cardinal Egan, and called upon the nation for healing and patience.
In these services were themes more lasting than any political act, executive order, or
single piece of national legislation: that national security is a more complex concept drawing
upon deeper sources such as the state of the national soul, the quality of relationships at all
levels, the caliber of the national spirit, and the willingness to live harmoniously with all the
complications of an egalitarian multi-racial social fabric with its gloriously infinite number of
faces, views, hopes, and voices. It remains to be seen whether the religious denominations,
including the major Christian denominations, can bring to bear the considerable weight of their
social teaching upon the national mood and direction as this country inches ever forward
toward a national security state.
Because it did not occur within the United States, it does not directly apply to this
discussion, but it should be noted that on January 24, 2002, Pope John Paul II convened a totally
unparalleled inter-religious gathering for peace of world religious and other leaders in Assisi,
Italy (the birthplace of St. Francis, a universal figure for peace and a revered Catholic saint).2
More than 200 leaders of the world’s religions demanded an end to war and terrorism. Never
before had Christian leaders of all denominations participated in the same meeting. Even the
Orthodox Patriarchate of Moscow was represented, which previously had rejected Papal
invitations. The Day of Prayer ended by Sikhs, Confucians, Buddhists, Hindus, Jews, Muslims,
animists, Christians of all denominations, and believers of other creeds uniting in declaring a
“Joint Commitment to Peace.” The statement included the affirmation that “security, freedom
and peace will never be guaranteed by force, but by mutual trust.”

1. The entire history of the modern social teaching of the Catholic Church and other religious
denominations, including Christian denominations, obviously cannot be reviewed with any compre-
hensiveness here. A general summary or review of this development, along with some observations for
present purposes, appears in Appendix 6-A.
2. The rather exceptional if not historic gathering was covered by some European press but received
absolutely no attention in the American media.

333
 No Greater Threat

Selected Statements of Christian Denominations in the United States After

September 11.
The statements and position papers issued by major Christian denominations following
the attacks are some indication of the potential for action and response by religions in the
United States in a post-September 11 America. Yet, when it comes to the role of religion in
stemming the formation of a national security state, more important than the statements are the
efforts within each denomination to disseminate the statements among their membership and
to utilize them consistently as expressions of a total, prophetic response. It might be asked how
well known are these statements of denomination conferences, councils, boards or offices
within each congregation.
The United States Catholic Bishops, at their annual November meeting (November 14,
2001), issued a statement cautioning against excessive acts by the national government when it
comes to civil liberties, and warning that war will not be the ultimate answer in the quest for
security.1 First, the statement said that “No grievance, no matter what the claim, can legitimate
what happened on September 11.” It warned against the use of religion as a “cover” for extreme
political acts, saying that the “dreadful deeds of September 11 cannot go unanswered”; but it
urged “resolve, restraint and greater attention to the roots of terrorism” to protect against
further attacks. The statement supported “diplomacy, economic measures, effective
intelligence, more focus on security at home, and the legitimate use of force.”
Moving to the other shore, the statement warned that as America responds, it must not
lose sight “of the basic ideals of justice, freedom, fairness, and openness that are hallmarks of our
society.” America “must not trade freedom for security. We must not allow ourselves to be
captured by fear.” The statement urged caution regarding the extent of the use of military force,
emphasized the need to address the long-standing humanitarian crisis in Afghanistan, and
underscored the importance of working with the United Nations in an international effort to
respond to terrorism and its causes. The statement indicated that the “just war theory” should
not be used as a justification for any sort of military response. The statement then turned to
overall themes.
It noted, “Our nation, as a principal force for economic globalization, must do more to
spread the benefits of globalization to all, especially to the world’s poorest. The injustice and
instability in far away lands about which we know too little can have a direct impact on our
own sense of peace and security.” The statement continued, “Maintaining a strong military is
only one component of our national security. A much broader, long-term understanding of
security is needed. In a world where one-fifth of the population survives on less than $1 per day,
where some twenty countries are involved in major armed conflict, and where poverty,
corruption, and repressive regimes bring untold suffering to millions of people, we simply
cannot remain indifferent.” It warned, “We should also recognize how the export of some
negative aspects of our culture can help undermine other societies as well as our own.”
The statement also mentioned the well-known exhortation of Pope Paul VI, “If you want
peace, work for justice.” The statement noted that a “just world will be a more peaceful world.”
It then commented on the Israeli-Palestinian conflict, the situations in Iraq and Sudan, and “the
scandal of poverty.”2 The statement called for commitment to promoting human rights around
the world, concrete actions to halt the spread of weapons of mass destruction, and playing a

1. A Pastoral Message: Living With Faith and Hope After September 11 (United States Conference of Catholic
Bishops, November 14, 2001).
2. On the issue of global poverty concerns, the Catholic Bishops’ Statement said:

334
 Part VI: The Next Six Elements of a National Security State

constructive role in the United Nations. It then called for prayer, fasting, teaching, witness,
service, and hope. “Above all, we need to turn to God and to one another in hope. Hope assures
us that, with God’s grace, we will see our way through what now seems such a daunting
challenge. For believers, hope is not a matter of optimism, but a source for strength and action
in demanding times.”
Statements from other Christian denominations consistently expressed themes of grief
mixed with caution, sorrow and restraint, mourning and care. These statements also reveal how
essential it will be over the next two to three years for religious denominations to follow
current political developments and the potential of a national security state.
The Lutheran Evangelical Church in America has issued statements of its own and has
joined in statements or letters by the Churches for Middle East Peace to the Bush Adminis-
tration on the conduct of the war in Afghanistan and the situation in the Middle East.1 These
statements also have reflected the need for prudence in dealing with national security matters.
The General Board of Church and Society of the United Methodist Church, in a statement
issued in October of 2001, reiterated the church position against the “use of indiscriminate
military force to combat terrorism, especially where the use of such force results in casualties
among noncombatant citizens who are not themselves perpetrators of terrorist acts.” The
statement urged attention to issues of peace, becoming bridge-builders in communities with
other faiths and religions, offering hospitality to Muslims and Arabs who may be targets of
prejudice, and let young people know that military service or refusal to enter military service on
the basis of conscientious objection are both supported in the Church.
The statement also called for study of the root causes of terrorism and the history of
Western involvement in the Middle East. It said members should “Call and visit your
government officials to urge an end to all violence and war and to use the United Nations as a
primary venue for multilateral action.” It supported the establishment of an International
Criminal Court. The statement added, “Military actions will not end terrorism. We continue to
say no to war and encourage our leaders to respond cautiously.” While not a statement from the
full General Conference of the United Methodist Church, the statement from its public policy
and social action agency is a strong indication of its overall approach.
The Executive Council of the Episcopal Church adopted a resolution on October 17, 2001.
It called for interfaith dialogues between Christianity, Islam, and Judaism, in an effort to
condemn “all actions by any groups that pervert the core values” of these faiths, especially “the
core belief of non-violence.” It cautioned that the United States “need not be at war while
pursuing the full force of justice against those who committed this crime against humanity.” It
urged the United States to pursue “the eradication of terrorism through justice and reconcil-
iation.”2 It supported Palestinian statehood and better efforts for peace in the Middle East. It
also supported members of the armed services.
Of special interest, the Executive Council resolution urged “the protection of consti-
tutional rights and civil liberties which are founding principles of our democracy, so that the
rights of certain persons will not be wrongfully jeopardized because of their ethnicity or race.”
It emphasized the continuation of the American tradition of offering “safe haven” to refugees
and those seeking asylum. The statement indicated that the Episcopal Church Executive

1. Among the members of Churches for Middle East Peace are the American Friends Service
Committee, the Christian Church (Disciples of Christ), Episcopal Church, Evangelical Lutheran Church in
America, National Council of Churches of Christ in the United States, Presbyterian Church, Unitarian
Universalist Association, United Church of Christ, and United Methodist Church.
2. The statement noted as well, as did the Catholic Bishops’ statement, that the United States should
commit itself to a foreign aid level amounting to .7% of GNP.

335
 No Greater Threat

Council will examine “appropriate principles for creation of a Department of Peace in order that
our government can engage in peace building and conflict resolution around the world and at
home.”1
Other denominations historically committed to peace issues released statements about
the September 11 attacks. An April 21, 2002 statement from the United Church of Christ (Joint
Statement of Covenanted Boards) was directly critical of the PATRIOT Act. The statement
warned, “Many of us began to seek security through the abrogation of the rights that we have
proudly claimed to be the hallmark of a democratic society.” The statement said that the Act
give “virtually unchecked power” to the Executive Branch, imposes “new limitations on our
freedoms of speech and association,” and allows, without judicial approval, “surveillance of
political activists and organizations deemed to opposed U.S. policies.” The UCC Statement also
declared that the Act circumvents the Fourth Amendment in permitting government
monitoring of communications, and permits military detentions, without trial, “of non-citizens
in our midst.”
The UCC Statement encourages social and political responses to rebuilding Afghanistan
and support for the new provisional government, while denouncing the extent of the war
fought in that country. It said, “We question whether war can truly eradicate the root causes of
terrorism, and we lament the proposed military expenditures to sustain such a war and the
temptation to restore a first-strike nuclear policy.” It reiterated a call to remove economic
sanctions against Iraq, as part of the Christian call to feed the hungry and clothe the naked. It
also called for more dramatic efforts for peace in the Middle East and condemns “the violence
used by all parties to the conflict” although affirming Israel’s right to exist in secure borders and
in peace with its neighbors. In the wake of September 11, “we choose the way of peace, having
experienced the horror of terror and death. We would resist the temptation to solve the world’s
problems by the use of the implements of war. In a world in which the United States functions
as sole superpower, we in the church are called to witness to the interdependence of all people,
that in God’s eyes the life of every human being is precious.”
The Mennonite Central Committee issued an Action Alert in September 2001 in the wake
of the attacks. The Alert urged adherence to principles of nonviolence and questioned the use of
military force by the United States in Afghanistan that will result in deaths of other innocent
civilians. It stated that the event could be invoked to encourage policymakers “as an
opportunity to express greater, not less, empathy with those who are suffering around the
world.”
The American Friends Service Committee has issued consistent statements since
September 11 condemning not only the attacks but also the use of military force in Afghanistan.
These statements also urged respect for civil liberties.
As well, the President of the Unitarian Universalist Association2 put forward a series of
commitments to action immediately after the attacks. The commitments urged an end to
increased arms development and deployment, mandated that resources be directed to human
needs and alleviating poverty, affirmed the right of conscientious objection as well as the right
to serve in the military, and protection of civil liberties. It said that Constitutional protections
“are meaningless if they can be tossed aside during the times they are most needed, when
innocent people are put at risk because they fit a certain profile, or express (or are thought to

1. It also referred to the Episcopal Church’s 1958 Lambeth Conference which declared that “nothing
less than the abolition of war itself should be the goal of the nations, their leaders, and all citizens.”
2. Rev. William G. Sinkford.

336
 Part VI: The Next Six Elements of a National Security State

have) a certain political view.” Even if surveillance laws need to be rewritten, “there is great
potential for abuse if the update occurs under extreme pressure during a national crisis.”
The PATRIOT Act also came under criticism in a joint letter to Attorney General
Ashcroft on November 20, 2001 from a coalition of religious groups.1 The letter said that under
the Act, immigration and law enforcement agencies “have unprecedented power to arrest,
detain, search, and monitor. We urge you to use this authority with care, in order to minimize
the disruption of innocent lives and prevent racial profiling.” It also called for release of
information as to detainees. The letter said, “We are concerned that such a wide net is being
cast that many more people than necessary will be forced to endure the significant disruption in
job and family life that can result from such detention.” It emphasized the importance of basic
civil rights for detainees and expressed concern for the fate of those held because they may have
“run astray of the law at some time in their lives.”
By some contrast, a statement by the Southern Baptist Conference on September 17- 18,
2001 was far less critical. The Executive Committee of the SBC issued a resolution condemning
the terrorist acts and supporting action by the United States government against those who
may have supported the terrorists or assisted in planning the carrying out the attacks. It
pledged prayer and “unreserved support” for the President, his advisors, Congress, and the
armed forces as they “fulfill their God-given duties in responding to this attack.” It urged
Southern Baptists to reach out to fellow citizens. While the SBC resolution did not yet express
concern for civil liberties, coming as it did soon after the terrorist attacks and before the
PATRIOT Act became law, an expression by the SBC of some concern for civil liberties and
unchecked government power after the PATRIOT Act need not be ruled out entirely.
On the one hand, the fact that these religious denomination statements are issued at all
shows that religion in America is not totally willing to lend unquestioned support to
government policy, especially military action. On the other hand, these pronouncements and
statements are of little value unless consistent attention is paid to them within the religious
organization. Statements by the Catholic Bishops, for example, the largest religious denomi-
nation in the country, should be made known far and wide among Catholic parishes, either
through educational programs or in weekly services. These statements must be reflected in
what is taught in parish schools.
The concerns raised in these statements about the “root causes” of terrorism being
poverty and neglect were reaffirmed in a two-day United Nations conference in Monterrey,
Mexico in March of 2002. The conference was attended by President Bush and more than 50
world leaders, and focused on global poverty.2

1. These were: American Baptist Churches USA, American Muslim Council, Center of Concern,
Church Women United, Church World Service Immigration and Refugee Program, Council on American-
Islamic Relations, Episcopal Church USA, General Board of Church and Society of the United Methodist
Church, the Interfaith Alliance, the Mennonite Central Committee (Washington D.C. office), National
Council of Churches of Christ in the USA, Presbyterian Church (USA) (Washington D.C. office), Unitarian
Universalist Association of Congregations, and United Church of Christ, Justice and Witness Ministries.
2. Echoing these observations was another declaration from the Vatican, presented by the Vatican’s
representative to the United Nations, in October, 2001. Among its remarks are, “Though poverty is not by
itself the cause of terrorism, we cannot successfully combat terrorism if we do not address the worsening
disparities between the rich and poor. We must recognize that global disparity is fundamentally incompat-
ible with global security.” Terrorists exploit not only poverty but “other situations of marginalization that
engulf the lives of so many of the world’s people, including the denial of human dignity, the lack of respect
for human rights and fundamental freedoms, social exclusion, intolerable refugee situations, internal and
external displacement and physical or psychological oppression.”

337
 No Greater Threat

Many world leaders at the conference said that global security is closely tied to the health
of the world economy. One world leader, Fidel Castro, called the existing “world order” a
“system of plundering and exploitation like no other in history.” He said, “Poor countries should
not be blamed” for the September 11 attacks. Venezuelan President Huge Chavez commented
about “development” themes, asking “What kind of development are we talking about?” He
criticized austerity measures and structural adjustment programs imposed by the World Bank
and International Monetary Fund as a condition of loans or loan guarantees, saying that these
conditions have wreaked havoc in some poor countries by causing social unrest.1 Continued
attention to the broader issues of terrorism and global conditions is a critical element in the
voice of religious denominations against the rising national security mentality.
Statements from Religious-Based Organizations Devoted to Peace Advocacy. Major religious organi-
zations (faith-based organizations or groups) known for critical stances to government activity
— Sojourners in D.C., the American Friends, the Catholic-based group Pax Christi USA, and
many others — have issued even stronger statements criticizing the national government and
calling for an end to the war in Afghanistan. The American Friends statement was extremely
critical of America’s rush into war in Afghanistan and called on the American people and
national leadership to look to the history of American involvement in the Middle East as we
look for reason for the September 11 attacks. Other national religious groups or organizations
issued similar statements or letters. These range from representatives of religious conferences to
elements of the Catholic Worker movement across the country. It would not be possible to list
or describe all of the statements, letters, petitions, resolutions, and declarations. It can well be
said, however, that none of these received any national media attention. These statements have
reminded us that security is not just a national question and not just a military question — true
security comes with peace and peace begins with meeting the basic needs of all people,
especially the poorest.
Need for Further Direction and Response, Prophetic Religious Voice. As good as these statements
are, they are not enough. They are too soon lost in the cacophony of 24-hour one-dimensional
television broadcast news, the press of personal commitments of work and family, and the rush
of daily life in fast-paced culture. These critical voices from religious quarters must continue.
Encouragement of a critical, careful approach to national security must come from every pulpit
and from every national religious body. Religions across the country, of every denomination,
must emphasize consistently that national security is not found ultimately in military might, in
the investigation and trial of suspects, or even in the use of military force. This task of
proclaiming a message that no other voices will speak is a particular duty for religions; it is part
of the ancient duty of being a prophetic presence in society. This task has been no more urgent
in recent times than it is in America today.
Religions above all are uniquely qualified to emphasize that true security is not found in
things. True security, be it personal or collective, also is found in each other, in our commitment
to the future, in our desire for a better world, in our actions toward our neighbors, and in a
positive and energetic relationship with forces greater than ourselves.
If the state cannot count on national religions to march behind the national authority in
service to the latest national security proclamation, the national security state can never be
complete. It may exist in a lower form and still may exert powerful influence over other aspects
of national life (the courts, the media, and so on). But it cannot be fully achieved.

1. Cox News Service, “Poverty Breeds Terrorism, Leaders Warn,” March 22, 2002.

338
 Part VI: The Next Six Elements of a National Security State

The dissenters among the major religions, as well as dissenting religious-based groups
and ethical organizations, cannot be silent. Continual vigilance is necessary to avoid a total
slide into the national security state. Indeed, there is more at stake than just civil liberties.

***
Comment at Close of 2004
This national security state characteristic of the role of religious denominations is
difficult to assess. As the impending invasion of Iraq gathered momentum in January, 2003 and
the invasion occurred in March, 2003, there was consistent criticism by religious denomi-
nations including the Vatican, the United States Catholic Conference, the National Council of
Churches, religiously affiliated coalitions and organizations, and liberal faith-based groups.
Some denominations including the U.S. Catholic Bishops and the Vatican openly questioned
Operation Iraqi Freedom and its rationales.1 In the weeks prior to the invasion, there were a
flurry of statements, appeals for peace, critiques of war rationales, insistence on respect for
international perspectives, and emphasis on the UN Security Council's reluctance to adopt a
resolution endorsing the war. These statements were more vocal and thorough than similar
statements prior to the U.S. military action in Afghanistan. Indeed, while the prospect of a war
in Iraq was becoming more probable, the Pope announced that such a war would be “unjust.”2
As the Iraq war has developed into an action with little actual support for its rationale, a
dangerous situation for American troops, and a horrifying daily spectacle for Iraqi citizens,
many denominations have persisted in their reproach of the Administration. Denominations or
organizations, including traditional peace organizations such as the American Friends Service
Committee, the Mennonite Central Committee, and Pax Christi USA have continued issuing
statements about the war ranging from disapproval to condemnation. Some of these denomi-
nations and groups have conducted or endorsed prayer services, demonstrations, media
advertisements, conferences and forums. However, the problem persists of the need for these
statements and actions to be more visible to the congregations of these denominations, and for
the congregations in turn to be more responsive. In any case, religious congregations of all types,
at least as reflected in the statements of national leaders and offices, have declined to be totally
supportive of the national authority’s military activity abroad and legal activity at home, in
response to the “war on terrorism.”
There are steps beyond simply making local congregations more aware of statements and
actions of national denominational offices. There has not yet been continued pressure upon the
Administration from these denominations to implement a broader strategy for bringing peace
and security to Iraq and the region, with a timetable for withdrawal of American troops. There
has not been actual denomination-wide efforts to directly challenge public attitudes about Iraq,
about war, and about assumptions of the war on terrorism, and about addressing a global policy
recognizing the full range of human rights everywhere.
Overall, there has been no major movement for this Characteristic in the direction of a
national security state. Religious denominations have not, on a wholesale basis, silently

1. See United States Conference of Catholic Bishops, Statement of November 13, 2002, and State-
ments from Religious Leaders on Iraq, October and November, 2002, with statements coming from figures
or offices of numerous national religious denominations, including Catholic, Episcopal, Lutheran, Jewish,
Methodist, Presbyterian, Unitarian, United Church of Christ, and Mennonite.
2. “Vatican Calls for Peace, Says Iraq War Not Just,” Associated Press and other press reports,
December, 2002. In a now oft-quoted phrase, Pope John Paul II characterized the impending Iraq war, like
all wars, as a "a defeat for humanity.”

339
 No Greater Threat

approved or quietly abstained from action or response to the government’s war on terrorism
activities, be it the PATRIOT Act, the Homeland Security Act, or Afghanistan and Iraq.
Although much more could be done by denominations and congregations openly to challenge
government action and assumptions, since September 11 and all that has followed, it cannot be
said that religious denominations have been content to remain on the sidelines.
Nevertheless, the potential and obligation of religious denominations is to be more than
just a critical voice, but a prophetic voice on these issues. Official statements are of value in
ensuring religious denominations seriously approach their responsibility to challenge
questionable government action, but are only a first step, if the actual goal is social transfor-
mation and new, morally-based atttitudes toward security in a changing world. There must be
genuine and steady efforts to make these statements known, to encourage debate from a faith
perspective, and to encourage response.
(There is no Expanded Discussion of Characteristic No. 8 at the end of this Part.)

9. NATIONAL SECURITY MENTALITY AND PERMANENT WAR ECONOMY

A national security state is constantly dealing with threats from without and within. The
result is often a permanent wartime economy, and a war-fighting mentality. Military and
security activity becomes paramount and spending on the military and on security agencies
rises to high levels in comparison to spending on other national priorities.
Homeland Security Authority and Spending, Background of Federal Concern Over
Homeland Security. The Office of Homeland Security (OHS) — soon to become the Cabinet-
level Department, as part of an unparalleled Executive Branch reorganization — is a substantial
presence in this national security state characteristic. The Bush Administration actual or
proposed budget to be managed by this office or otherwise devoted to homeland security is
$37.7 billion.1 Within this budget figure are plans for doubling money for homeland security
activities, freshly equipped firefighters and other first responders,2 a well-coordinated network
of hospitals and laboratories ready for a biological attack, new agents on the Canadian border
(although some funds for this already were authorized by PATRIOT Act Title IV), and a
government computer network to share vital threat data. (See discussion for Characteristic No.
6). Note: the Department of Homeland Security established through the Homeland Security Act
of 2003, is now a fact of government life. A comprehensive review of the Homeland Security Act
is contained elsewhere in the 2004 update and commentary material, as a separate discussion.
Of special interest is that even though the Department of Homeland Security now exists, the
White Office of Homeland Security will continue.
The White House computer network plan for homeland security follows PATRIOT Act
mandates for increased technological capabilities. As will be noted, it also follows a several-year
history of legislation and Executive Orders concerning computer network security, increased
computer capabilities, and network protection, which also will permit further surveillance. A
major policy initiative on cybersecurity was outlined by an Administration strategy document,
the National Strategy for Combatting Cyberterrorism, which was expanded to the National Strategy to
Secure Cyberspace. For further discussion of these and other Administration “strategy” documents
on the war on terrorism, see Appendix 6-B.

1. Mark Benjamin, “Budget First Priority: Homeland Security,” UPI, February 4, 2002.
2. According to the Office of Homeland Security, there are more than 1 million firefighters in the
United States, 750,000 being volunteers. Local police departments across the country have 556,000 full time
employees and about 436,000 sworn law enforcement personnel. Sheriffs’ offices have 291,000 employees
and about 186,000 sworn officers. There are more than 155,000 medical technicians.

340
 Part VI: The Next Six Elements of a National Security State

The OHS has broad powers, some of which already have been mentioned.1 Among them
are to assist in collecting information from state and local governments and private entities on
information pertaining to terrorist threats, coordinate and prioritize foreign intelligence
concerning terrorism within the United States, coordinate efforts to ensure that all executive
departments with intelligence collection duties “have sufficient technological capabilities and
resources to collect intelligence and data relating to terrorist activities or possible terrorist acts
within the United States,” and ensure that to the extent permitted by law, appropriate
information sharing occurs between executive departments concerned with homeland security
(which information sharing also can include, if warranted, state and local governments and
private entities).
The OHS also is to coordinate investigation into terrorist threats and attacks in the
United States, to protect critical infrastructures, protect public and private information
systems, “develop criteria for reviewing whether appropriate security measures are in place at
major public and privately owned facilities” in the United States, coordinate efforts to protect
special events in the United States from terror attacks,2 address protection issues for transpor-
tation systems, and “coordinate efforts to protect United States livestock, agriculture, and
systems for the provision of water and food for human use and consumption from terrorist
attack.” The Office is also to develop procedures for recovery and response, incident
management, and continuity of government. The Director has authority to classify certain
documents as Top Secret.
Of special interest, OHS has the task of reviewing legal authorities to be sure that
executive departments and agencies can perform the duties stated in the OHS Executive Order.
If OHS decides these legal authorities are not adequate, it is directed to “develop, in consul-
tation with executive departments and agencies, proposals for presidential action and
legislative proposals or submission to the Office of Management and Budget to enhance the
ability of executive departments and agencies to perform these functions.” OHS “shall work
with state and local governments in assessing the adequacy of their legal authorities to permit
them to detect, prepare for, prevent, protect against, and recover from terrorist threats and
attacks.” That is, if the does not stretch far enough so that OHS can carry out the extremely
broad powers given to it, OHS is to recommend how the law should be changed accordingly.
Of course, the OHS will continue to have substantial authority in the Executive Branch
even following establishment of the separate Cabinet-level Department of Homeland Security,
following the dramatic plan announced by President Bush on June 6, 2002. Declared to be one of
the most substantial reorganizations of American government since World War II, this new
Cabinet Agency would encompass at least eight existing federal offices or agencies from
Cabinet departments such as Treasury, Justice, Energy, Transportation, and Health and Human
Services.3
The new Department of Homeland Security is to include the Coast Guard, the new
Transportation Security Administration, the Immigration and Naturalization Service, the

1. Again, see Executive Order 13228, October 8, 2001. 66 Fed.Reg. 51812.

2. The 2002 Winter Olympics in Salt Lake City was one celebrated occasion, with press reports
consistently describing the unprecedented security efforts and noting that more than $300 million (that is,
nearly 1/3 of a billion dollars) was spent on security, including checkpoints and searches for both fans and
athletes. The Super Bowl is another, with increased security on all fronts. All major national-level events,
including sports, will be subject to increased security attention.
3. See various articles in The New York Times and The Washington Post, after President Bush’s national
television address of June 6, including: Mike Allen and Bill Miller, “Bush Seeks Security Department,” The
Washington Post, June 7, 2002, p. A1.

341
 No Greater Threat

Customs Service, the Animal and Plant Health Inspection Service, the Secret Service, the
Federal Emergency Management Agency, the Federal Protective Service, the Lawrence
Livermore National Laboratory, the Critical Infrastructure Assurance Office, the Federal
Computer Incident Response Center, the National Communications System, the National
Infrastructure Protection Center, and other offices. The INS, Coast Guard, and TSA are by far
the largest agencies involved in the Department of Homeland Security reorganization. Total
personnel represented by all these offices or agencies to be part of the new Department are
nearly 170,000, with a total budget represented of $37.4 billion. This would make the
Department of Homeland Security one of the largest Cabinet Departments.
Along with the Department of Homeland Security will be a new Domestic Security
Advisory Council, comprised of 21 members from business, government, state and local officials,
and special organizations. The new Department’s mission and purposes will bring intelligence
gathering, analysis, and preparedness to a level unseen in the United States since World War II,
and moves beyond even what was declared in the PATRIOT Act.
In President Bush’s announcement of the new Department, he said it would have four
primary objectives: controlling the borders to prevent terrorists and explosives from entering
the country, working with state and local authorities to respond to emergencies and events,
developing technologies to detect for weapons of mass destruction and to be ready to respond
to bioterrorism, and “review[ing] intelligence and law enforcement information from all
agencies of government” to produce a “single daily picture of threats against our homeland.” He
called it not an increase in government but an elimination of overlap and duplication, noting
that more than 100 federal offices or agencies have responsibility of one form or another for the
wide concept of national or homeland security.
Some Congressional critics were concerned that the time and logistics involved in
shifting these agencies and creating the Department would mean critical delays in agency
activity and effectiveness, especially the massive new Transportation Security Agency, already
struggling with deadlines for installing sophisticated baggage screening machines at airports
and training operators for them. Others were concerned that the FBI and CIA were left out of
the plan for the new Department. But most Congressional observers expected that approval for
the plan would come by September 11, 2002.
This new Department of Homeland Security would mark another step in the move
toward a potential national security state as significant as the PATRIOT Act and the Military
Tribunal Order. This new Department will be of considerable size and elevates homeland
security to a status in the federal government which did not even exist on September 10.
Coordination and elimination of government agency duplication are valuable objectives, but the
consolidation and coordination of authority and power provide easier avenues for its abuse.
Intelligence sharing and analysis has its own value. Yet the larger issue is what intelligence is
being shared, its source, and its purpose.
This Department represents more than just moving agencies and offices around on an
organizational chart. It is a fundamental new direction in government not seen in 50 years.
Americans would be wise to hold their applause. Americans also would be wise to look very
carefully at the Homeland Security Act, for the Department that it establishes, the powers
granted to that Department, and its overarching purpose and mission, go far beyond the mere
question of federal bureaucratic consolidation and efficiency.
These developments did not occur in a vacuum. It was not the case that a dramatic event
occurred on September 11 and then, less than 30 days later, the White House announced, out of
nowhere, the Office of Homeland Security, with complex powers, extensive authority, billions
of dollars to manage, and a separate Advisory Council with membership comprising the highest

342
 Part VI: The Next Six Elements of a National Security State

levels of government. Various executive and legislative proposals had been made in recent years
for a separate domestic security council or office, especially after the 1995 Oklahoma City
bombing.
Almost immediately after the Oklahoma City bombing, President Bill Clinton issued
Presidential Decision Directive 39, which reaffirmed the Department of Justice and the FBI as
the legal agency for crisis management and investigating terrorist threats. Yet a subsequent
GAO report of December 1997 pointed out the continued lack of a centralized office or focal
point to manage funding and to coordinate a government-wide approach for combating
terrorism.1
By the end of the following year, 1998, the Attorney General had issued a classified Five-
Year Interagency Counterterrorism and Technology Crime Plan. The Justice Department also
had established a National Domestic Preparedness Office managed by the FBI to serve as a
contact point for state and local authorities. However, the office faced some effectiveness issues
due in part to inadequate funding and lack of expertise. In May of 1998, President Clinton
through Presidential Decision Directive 62 had established the Office of the National
Coordinator for Security, Infrastructure Protection and Counterterrorism, which was placed in
the National Security Council (NSC). The functions of that office were never sufficiently
detailed either in a later executive order or through legislation.
Following that was Presidential Decision Directive 63 (also issued in May, 1998), which
addressed cyber security, information management, infrastructures, and computer matters. It
set May, 2003 as a goal to achieve a higher and coordinated level of protection for critical
infrastructures. A National Infrastructure Protection Center in the FBI was established to be a
national analysis and warning center for threats and attacks. In 1999, the National Security
Council and the Office of Management and Budget began a process of interagency working
groups to review proposals on national security matters and recommend whether they should
be funded.
A GAO Report summarizing and commenting on federal government anti-terrorism
efforts was released in May, 2001.2 GAO comments a year prior to that, in May of 2000, had
criticized the lack of management of counterterrorism programs, which the GAO described as
overlapping and uncoordinated.3 However, the May, 2001 GAO document stated that, as of July
of 2000, there still was no comprehensive national strategy on “domestic preparedness.”
Another GAO document in July of 2000 pointed out the need for greater information sharing
between agencies on counterterrorism.4 As has been consistently noted, “information sharing”
has become a federal directive with the arrival of the PATRIOT Act.

1. Combating Terrorism: Spending on Governmentwide Programs Requires Better Management and Coordination.
(GAO/NSAID-98-39, December 1, 1997).
2. See Combating Terrorism: Comments on H.R. 525, to Create a President’s Council on Domestic Terrorism
Preparedness (GAO-01-555T, May 8, 2001) [presented as testimony by Raymond J. Decker, Director, GAO
Defense Capabilities and Management, before the House Subcommittee on Economic Development, Public
Buildings, and Emergency Management of the Committee on Transportation and Infrastructure]. This
report came a year after similar testimony or comments of May 4, 2000 on another legislative proposal, H.R.
4210, on federal management of counterterrorist programs (GAO/T-NSIAD-00-172, May 4, 2000).
3. Combating Terrorism: Issues in Managing Counterterrorist Programs (GAO/T-NSIAD-00-145, April 6,
2000).
4. See Critical Infrastructure Protection: Challenges to Building a Comprehensive Strategy for Information Sharing
and Coordination (GAO/T-AIMD-00-268, July 26, 2000). (Presented as testimony by Jack L. Brock, Jr.,
Director, Governmentwide and Defense Information Systems in GAO Accounting and Information
Management Division, to the Subcommittee on Government Management, Information and Technology of
the House Committee on Government Reform.)

343
 No Greater Threat

The May, 2001 GAO Report said there still was a “multitude of federal programs”
concerning terrorism, often unconnected, and resulting in confusion among state and local first
responders. By that time, the President had given the Vice President the responsibility to
oversee development of a coordinated effort to improve national preparedness and also
established a new National Domestic Preparedness Office to that effect in the Federal
Emergency Management Agency. However, as the GAO report indicated, this action only
served to confound the already overlapping activities and programs dealing in one way or
another with counterterrorism among 40 federal agencies.
In addition, specially-mandated commissions or reports had produced other studies or
analyses of domestic terrorism threats and what shape a coordinated national response should
take. The reports generally were presented in late 2000 and early 2001. These included a report
by the Center for Strategic and International Studies (Executive Summary of Four CSIS
Working Group Reports on Homeland Defense), a report by the Gilmore Panel (Advisory Panel
to Assess Domestic Response Capabilities for Terrorism Involving Weapons of Mass
Destruction, Chaired by Governor James S. Gilmore), and an exhaustive examination of the
topic by the Hart-Rudman Commission (the U.S. Commission on National Security/21st
Century, chaired by Senators Gary Hart and Warren B. Rudman).
As of May, 2001, just months before the September 11 attacks, further momentum on
Capitol Hill on the question of some type of Executive Branch office to deal in a coordinated
way with terrorism had resulted in several legislative and other proposals. These included (as
described in the GAO report, Comments on H.R. 525…):
— a President’s Council on Domestic Terrorism Preparedness (H.R. 525),
— a Cabinet-level National Homeland Security Agency (H.R. 1158 - the National
Homeland Security Act - and one of the recommendations of the Hart-Rudman Commission),
— appointment by the President of a single official in the White House to coordinate
counterterrorism efforts (H.R. 1292 - Homeland Security Strategy Act of 2001),
— a Deputy Attorney General for Combating Counterterrorism (Senate Report 106-
404),
— a National Office for Combating Terrorism (a recommendation by the Gilmore Panel
report),
— a Cabinet-level National Homeland Security Agency (a recommendation of the Hart-
Rudman Commission), and
— a special assistant to the President or to the Vice President for combating terrorism
(proposed by the Center for Strategic and International Studies report).
Except for the proposed Cabinet-level agency, the various proposed counterterrorism
offices would be within the Executive Office of the President. The matter of a single office in the
Executive Branch to coordinate counterterrorism efforts had been the subject of study, consid-
eration, commission recommendation, and legislative proposals in the federal government for
several years. GAO reports indicate that federal policy to combat terrorism has been evolving in
one way or another for more than 30 years, although as indicated the issue began its move to the
political forefront in Washington, D.C. after the 1995 Oklahoma City bombings.
Following the September 11 attacks, the GAO issued a detailed report to Congressional
committees: Combating Terrorism: Selected Challenges and Related Recommendations.1 The various
proposals for a single federal counterterrorism office and national approach had been given a
dramatic shift forward. The comprehensive GAO report of more than 130 pages reviewed
federal response capabilities, national counterterrorism strategy, federal assistance to state and

1. GAO-01-822 (September, 2001).

344
 Part VI: The Next Six Elements of a National Security State

local governments, and computer-based threats. The GAO report emphasized the need for a
central office, agency coordination, information sharing, involvement of state and local
governments and a single federal liaison for those entities, and goals and priorities to track
progress. The report also specifically mentioned computer issues, noting “persistent, significant
information security weaknesses that place federal operations at high risk of tampering and
disruption.”1
In a telling statement, the GAO’s September 2001 report stated, “National efforts to
combat illegal drugs offer potential lessons in addressing the overall leadership and coordi-
nation of interagency efforts to combat terrorism.”2 This statement revealed the federal
government view that drug enforcement policy not only could be a model for antiterrorism
policy but also that the two broad federal efforts could be linked. And so it is that the PATRIOT
Act, for example, allows for sharing between federal agencies of “foreign intelligence”
information that might be obtained in any criminal investigation where surveillance and search
and seizure are involved — which typically would be narcotics investigations.
This was followed by a GAO statement on developing a strategy for homeland security,
given before the Senate Committee on Governmental Affairs on September 21, 2001.3 The GAO
testimony outlined a national strategy based on: risk assessment, vulnerability analysis, and
infrastructure criticality analysis. This involves determining the threats posed by nations,
groups, or individuals and taking steps to eliminate or reduce the threat, identifying vulnera-
bilities in infrastructure operations and planning and seek to reduce those problems, and
improving response abilities to reduce the consequences of an attack. The testimony
recommended using intelligence assets to stop attacks before they occur. The testimony said,
“Congress needs to take an active, ongoing, and crosscutting approach to oversight in
connection with the design and implementation of the homeland security strategy.”
The GAO statement emphasized the recommendation of the September 20 GAO report,
that the President “designate a single focal point with responsibility and authority for all
critical functions necessary to provide overall leadership and coordination of federal programs
to combat terrorism.” This “focal point,” according to the GAO statement, “should oversee a
national-level threat assessment on likely weapons of mass destruction that might be used by
terrorists and lead the development of a national strategy to combat terrorism and oversee its
implementation.” Special mention was made of problem areas: aviation security, cyber attacks
on critical infrastructure, international crime control, and public health. The GAO statement
declared that homeland security is “now at the top of the national agenda.”
Shortly after those reports, on October 8, 2001, President Bush issued the Executive Order
creating the Office of Homeland Security (EO 13328, 66 Fed.Reg. 51812). The OHS is given
powers and authorities as least as broad as any of the legislative proposals, commission
suggestions, and GAO recommendations. This list of powers, duties, and responsibilities of the
OHS contained in the Executive Order is a synthesis of years of commission reports, studies,
agency documentation, and legislative recommendations on a domestic preparedness office.
Still, despite this considerable history, even as a new Department of Homeland Security
(DHS) is about to be created, there is more yet to come concerning its full effect, its ability to
truly coordinate and mold a nationwide homeland security strategy which has been scattered

1. GAO September, 2001 Report (GAO-01-822), p. 9.

2. GAO September, 2001 Report (GAO-01-822), at p. 10.
3. See GAO Testimony, Homeland Security: A Framework for Addressing the Nation’s Efforts
(GAO-01-1158T), testimony by David M. Walker, Comptroller General of the United States.

345
 No Greater Threat

among various federal offices, and the long range consequences of the remarkable amount of
federal spending devoted to these missions.
Intelligence Community and New Spending. Not to be left out of this dramatic increase in budget
and policy priorities is the Intelligence Community. These 13 agencies form a coordinated front
in both domestic and foreign intelligence activities. They are: the CIA (which also coordinates
the Directorate of Central Intelligence), intelligence subagencies or offices in the Departments
of State, Energy, Treasury, and Justice (namely the FBI), intelligence subagencies or offices for
the Army, Navy, Air Force and Marines, the Defense Intelligence Agency, the National Security
Agency, the National Reconnaissance Office, and the National Imaging and Mapping Center.1
Although the PATRIOT Act did not expressly mention less visible surveillance agencies
such as the National Security Agency and the Defense Intelligence Agency, there is no doubt
whatever that funds being appropriated or authorized by the Act to expand surveillance and
other investigation into terrorism will find their way to these agencies.2 The information
sharing mandated throughout the Act also would include these members of the intelligence
community.
Defense Department Budget, Administration Requests for Increases. As for a permanent war
economy, annual spending for the Department of the Defense now exceeds $300 billion. This
funding comes at the expense of many other programs that are receiving deep cuts in current
White House budgets.3
The effect of the September 11 attacks on a federal spending picture already featuring a
bloated military budget was confirmed in early December. The Pentagon spending bill
exceeding $300 billion was approved by the Senate by a voice vote at one minute before
midnight on December 7, 2001.4 Notably, the bill excluded $15 billion sought by Democrats for
border security, public health, food safety and other needs. President Bush had threatened a
veto if the additional $15 billion was part of the package. The White House called it
“unnecessary spending.” The additional $15 billion was deleted despite strong support for it by

1. In a revealing indication of the links between these offices and high-tech programs in the military,
the director of the National Reconnaissance Office is Peter Teets, Undersecretary of the Air Force. He also
has directorate authority for the Department of Defense space programs. At a space programs convention in
Colorado Springs, Colorado in February, 2002, Teets noted that there is “a change in the air” favoring
increased federal effort and funds for space program and missile defense technology. He said, “It’s an
exciting time to be involved in our nation’s national security space program.” Thus mingling program
responsibilities, concept, and executive personnel, the missile defense program is now being termed the
“national security space program.” Teets is retired President and Chief Operating Officer of Lockheed
Martin. Among the space-based or missile defense programs under development is a Space-Based Infrared
System (SBIRS), Global Positioning III system (GPS III), and reusable launch vehicles for the Air Force. See
article by Leonard Davis, Senior Space Writer, “U.S. Security Depends on Space Assets, Says Air Force
Undersecretary.” February 20, 2002.
2. Ariel Sabar, “General Goes A Little Public To Enhance Image Of NSA,” The Baltimore Sun, April 19,
2002, at 7A. The article notes that NSA Director Lt. Gen. Michael V. Hayden finds that the NSA is experi-
encing a resurgence, after the agency was being written off as a Cold War curiosity and its budget and work
force were cut. The article states that NSA and other intelligence agencies “are looking forward to proposed
large budget increases and enjoying a surge in resumes from people passing up higher-paying jobs for what
they see as a patriotic role in the war on terrorism.”
3. For example, as detailed by the National Priorities Project, in FY 2003, state and local govern-
ments would lose funding for several federal formula grant programs. Some of the largest cuts are in
highway planning and construction, the Environmental Protection Agency, programs for elementary and
secondary education, and a federal program in the Department of Energy further to explore energy effi-
ciency and renewable energy. Contact www.nationalpriorities.org.
4. Baltimore Sun, Washington Post, New York Times, December 8, 2001.

346
 Part VI: The Next Six Elements of a National Security State

moderate Democrats such as Sen. Robert C. Byrd of West Virginia. And Congress approved $17
billion in reserve funds to help defray the cost of the Afghanistan war.
Nevertheless, just about a month later, President Bush asked Congress for $48 billion
additional funds for defense.1 This would be on top of the more than $300 billion already approved
by Congress for the current fiscal year. The $48 billion additional figure was larger than some
Pentagon officials expected and the largest since the Reagan administration. The additional
figure is expected to go for purchasing warships, tanks, and fighter jets, elevating the quality of
military readiness, increasing military pay, and improving military housing. President Bush
already has stated that his budget package will require cuts in social programs — this is amid
estimates that the federal budget deficit this year will be $106 billion and next year will be $80
billion. The federal budget surplus, once projected to be quite high (last year’s estimate was
$5.6 trillion over 10 years) is shrinking. Now that projection is $1.6 trillion.
President Bush’s military spending proposals have reached new heights, representing a
30% increase over the previous fiscal year. It also would be the largest increase in military
spending since the Vietnam War and would exceed the total defense outlays of the next 15
countries in the world, combined. The increase of $48 billion alone is more than the total
military budget of any given nation in the world.2 This includes $10 billion allocated for the
ongoing war on terrorism.3
Since World War II, this country has never been without standing armed forces, massive
military budgets, new military weaponry, and increased military presence and action around
the world. In America, as is already obvious in looking at the characteristic of use of national
resources, a permanent wartime economy has long been the norm.
Americans have shown little overall discontent with this level of military spending, even
though it demands a huge commitment of economic resources and drains federal funds from
other priorities. Both candidates of the major political parties in the last election pledged a
strong military and increased military spending. The difference in opinion was only on how
much of an increase there should be and what should be the overall goal of the US military in
the future (two-front war, for example).
Various well-respected independent groups and organizations have for years questioned
the mammoth size of the United States military budget, not only in terms of effectiveness as to
national mission but also as to size, management, direction, and efficiency. These include the
National Priorities Project, the Center for Budget Priorities, the Center for Defense Information,
Business Leaders for Sensible Priorities and Business Executives for National Security. Many
other such groups can be mentioned. Americans have long been faced with the struggle over the

1. NYT News Service, January 24, 2002.

2. Boston Globe, February 19, 2002, p. A11, quoting testimony to House Budget Committee by
Lawrence J. Korb of Business Leaders for Sensible Priorities. Korb served as assistant secretary of defense
under Ronald Reagan. This organization, committed to developing the national will to shift certain
Pentagon spending to domestic social needs, has an impressive list of advisory committee members. They
include (not all are listed): Ted Turner of CNN and Time Warner, Robert L. Johnson of BET, Paul Newman,
Adlai E. Stevenson III, George Zimmer of Men’s Wearhouse, Richard Foos of Rhino Records, and former
CIA Director Adm. Stansfield Turner. The president is Ben Cohen of Ben & Jerry’s. The group claims a
membership of more than 600 business leaders.
3. Curiously, it has been suggested that the Administration need not request additional funds to
fight the war on terrorism because massive funds are available in the current defense budget if only better
management practices were followed. According to William A. Owens and Stanley A. Weiss of Business
Executives for National Security, 70% of the defense budget is spent on overhead and infrastructure, while
only 30% actually reaches combat forces. Parts are not replaced on time. Information flow is too sluggish.
The Pentagon’s $7 billion travel budget includes $2 billion in administrative overhead.

347
 No Greater Threat

military budget and the wider national vision, yet this dilemma has not been squarely addressed
in national politics of late and was not raised at all between the two major party candidates in
the last presidential election (compare Ralph Nader’s presidential campaign in 2002 on behalf
of the Green Party). Indeed, neither major party candidate campaigned on a pledge to reduce
military spending by even 20%. This is a debate involving more than guns vs. butter. It also has
to do with the nation we wish to be and the amount of political and economic power we wish
to hand over to the military establishment. President Dwight D. Eisenhower, who surely knew
whereof he spoke, was one of the first to raise this concern about the military- industrial
complex. It is no less a concern today, when the military budget has mushroomed from its level
in the 1950s. This country needs such a national debate, and soon. To these figures must be
added, as has already been mentioned elsewhere, the continuing costs for the war in
Afghanistan, the $4 billion per day being spent in the Iraq occupation, the $87 billion additional
sought by the Administration for Iraq reconstruction and related uses, a near-record military
budget exceeding $300 billion, and further sums sought for special defense programs, homeland
security, the Department of Homeland Security, and other related departments. This is despite
forecasts that the federal budget deficit will grow to $480 billion in 2004 and budget shortfalls
over the next 10 years, at present trends, could total $1.4 trillion.
Infrastructure Protection. Just prior to the PATRIOT Act came another Executive Order from
President Bush, called “Critical Infrastructure Protection in the Information Age.”1 This Order
creates the “Critical Infrastructure Protection Board.” (The Board also was mentioned in a
discussion of Characteristic No. 6). This Board will assist a government wide program managed
by the Office of Management and Budget to develop and implement policies and guidelines for
“the security of information systems” for executive branch departments and agencies. The
Defense Department and the Director of Central Intelligence will undertake similar efforts for
their departments or agencies, including operations of other executive branch departments and
agencies with “national security information.” The Executive Order includes a mandate for the
Board to do “outreach to the private sector” on critical infrastructure protection issues.
Other Infrastructure Protection Board objectives are incident coordination and crisis
response, recruitment and training of security professionals, research and development, law
enforcement coordination, international matters, legislation, and coordination with the Office
of Homeland Security. The Chair of this Board will also be Special Advisor to the President for
Cyberspace Security and has the authority to declare certain Board information or documents
Top Secret. In the law enforcement area, the Board will help promote programs against cyber
crime, including “law enforcement agencies’ investigation of illegal activities involving
information systems for critical infrastructure” and support “coordination by these agencies
with other departments and agencies with responsibilities to defend the Nation’s security.”
The Board is to work with the National Infrastructure Protection Center (NIPC) in the
Department of Justice, the Secret Service, and other departments and agencies such as the
Office of the Counter-intelligence Executive. The Board is to have various standing committees,
including committees on private sector and state and local government outreach, national
security systems, research and development, and financial and banking information
infrastructure. The Executive Order also creates a National Infrastructure Advisory Council.2
These new authorities are simply the next phase of an overriding federal government interest in
computer security, including investigating and tracking Internet activity.
A common statement regarding infrastructure protection is that 85 per cent of critical
infrastructure in the United States, is privately held. This includes communication systems,

1. Executive Order No. 13231, October 16, 2001. 66 Fed. Reg. 53063.

348
 Part VI: The Next Six Elements of a National Security State

power generation (generally the activity of private or quasi-private firms), private transpor-
tation systems such as buses and some trains, health care facilities, transportation, and food
supply. Therefore any infrastructure protection program must be a public- private
development. A further policy outline to infrastructure protection is described in another
Administration strategy document recently issued: The National Strategy for the Physical Protection
of Critical Infrastructures and Key Assets. A review of that strategy reveals a commitment of national
resources, public-private initiatives or partnerships, response plan development for key
infrastructure sites both public and private, and funding to make critical infrastructure sites
more resistant or responsive in the event of a terrorist attack.
Homeland Security Firms and Foundations. Also experiencing noticeable growth or prolif-
eration since September 11, which should continue over the next several years, are homeland
security groups and companies. Two examples of non-profit organizations recently formed on
homeland security issues are the Homeland Security Foundation and the ANSER Institute for
Homeland Security.1
The Homeland Security Foundation is designed to help promote private and public
partnerships to assist local and state efforts to prepare for a terrorist attack, establish a
scholarship fund to grant degrees and training to public health officials and first responders,
assist in information exchange over bio-chemical warfare and environment, offer educational
seminars to school teachers and administrators on how to respond to terrorist threat and
attack, and promote artistic works “that reflect the impact of domestic and international
terrorism on American society” and promote “values of freedom, free enterprise, respect for
human life, respect for gender, and respect for individual faith and religion.” The Foundation
also will promote community works to help homebound, sick, homeless and others who are
unprotected and help the community “to be safer from the presence of crime and terror.”2
The ANSER (Advancing National Strategies and Enabling Results) Institute for
Homeland Security, is another significant example.3 The Institute sponsors high-level
conferences, issues strategy documents, presented Congressional testimony on homeland
security, publishes a newsletter, and has published a Journal of Homeland Security. Among the
conference and seminar themes are computer network security, cyber terrorism, war and
virtual war, and long term security concerns.

2. Just how far this goes is indicated by Section 11 of this Executive Order, referring to the National
Communications System: “Changes in technology are causing the convergence of much of telephony, data
relay, and internet communications networks into an interconnected network or networks. The NCS and
its National Coordinating Center shall support use of telephony, converged information, voice networks,
and next generation networks for emergency preparedness and national security communications functions
assigned to them by Executive Order 12472.”
1. These various organizations and groups often have Internet websites or can be identified through
Internet searches. Homeland security will become a larger presence among these groups and foundations.
2. The Foundation states that its text materials may be used, provided that mention is made — as it
is, here — that all materials and information from its website are copyrighted by the Homeland Security
Foundation. See www.homelandsecurity-foundation.org.
3. The ANSER Institute for Homeland Security’s impressive website can be found at www.home-
landsecurity.org. The website information states that the Institute was initiated in October, 1999 and estab-
lished in April, 2001 — well before the September 11 attacks. According to the website, the weekly
newsletter has 12,000 subscribers. The Institute has available some reports done after September 11 on
homeland security and papers from the various conferences and seminars conducted so far. The ANSER
Institute also has available the various reports on national security issues from several commissions and
studies, including the Hart/Rudman Commission, the Gilmore Commission, the Center for Strategic and
International Studies, and the Defense Science Board, all prepared well before the September 11 attacks.
Among the Board members are educators, corporate executives, and former government sector officials.

349
 No Greater Threat

Another organization, the Nuclear Control Institute (established in 1981), since

September 11 has produced a new collection of reports and statements about nuclear terrorism
and the threat of this terrorism especially in the United States. An NCI review of the situation
notes, “There is now intense national and international attention to the risks of nuclear
terrorism.” NCI has pointed out the importance of upgrading security at nuclear power plants,
achieving better worldwide control and monitoring of nuclear material especially when in
transport, and improving security and control of nuclear weapons especially in countries of the
former Soviet Union.
Some of these foundations and groups — no doubt there are more forming and more yet
to come — take no specific policy or advocacy position and see themselves taking up technical,
educational, and training roles. Others will be more plain about their national security views.
However much effort and interest in national security already was presented among
government and private-public commissions and studies, regardless of the other groups and
organizations which existed on national security and defense issues,1 and whatever other
studies had been done on the subject by federal agencies and offices, September 11 will serve as a
watershed. A new series of these well funded and well connected boards, foundations, and
commissions will be on the American scene for many years ahead.
Homeland security planning, security technologies,2 and computer technology and
information security will be a growth industry in America for a long time to come.3 Companies
with connections to the White House or to government agencies (especially the Defense, State,
and Justice Departments) will be in line for the inevitable contracts or grants which the Federal
Government will be awarding as it doles out the enormous sums appropriated or authorized
under the PATRIOT Act, additional spending sought by President Bush, and the enormous
homeland security budget proposed to Congress.4

1. Some of those existing organizations, representing a variety of perspectives, would be: the Amer-
ican Enterprise Institute, the Carnegie Endowment for International Peace, the Cato Institute, the Center
for Defense Information, the Center for International Policy, the Center for Strategic and International
Studies, the Federation of American Scientists, the Heritage Foundation, the Institute for the Advanced
Study of Information Warfare, the Oklahoma Memorial Institute for the Prevention of Terrorism, and the
World Policy Institute.
2. See Associated Press, “Heat Sensor Detects Liars, Scientists Say,” Baltimore Sun, January 3, 2002.
The story describes experiments at the Mayo Clinic with a prototype heat sensing camera that supposedly
can be directed at a person’s face and can detect whether the person is lying. “In six of eight people who
lied, this high-resolution thermal imaging camera detected a faint blushing around their eyes that
researchers said is evidence of deception.” The experiment involved 20 Army recruits. They were assigned
either to stab a mannequin, take $20 from its clothing, or not commit any crime. The recruits then were
filmed with the special camera as they were asked questions of their actions, with the mannequin-robbers
instructed in advance to lie about their theft. The results of the study were to appear in the journal Nature.
3. See Associated Press, “Terrorism Fear Sparks Boom In `Protection,’” The Baltimore Sun, January 3,
2002. The article addresses the other side of the coin: false claims being made by firms or individuals in
Internet ads about security devices for bioterrorism protection, including gas masks that might not work
and ultraviolet lights that are claimed to kill anthrax but would not do so. According to the story, the
Federal Trade Commission has scoured the Internet in 30 States and found 200 sites selling bioterrorism
related products.
4. For example, corporations like Northrup, IBM, General Electric, and a host of others surely will be
part of this new security apparatus being constructed as part of the Act. Major defense contractors also will
be involved in this enhanced funding stream. In Year 2000 the top defense contractors were Lockheed
Martin ($15.1 billion), Boeing ($12 billion), Raytheon ($6.3 billion), General Dynamics ($4.2 billion),
Northrup Grumman ($3 billion), Litton Industries ($2.7 billion), United Technologies ($2 billion), TRW
($2 billion), General Electric ($1.6 billion), Science Applications ($1.5 billion), and the Carlyle Group ($1.19
billion).

350
 Part VI: The Next Six Elements of a National Security State

All of this is part of a national security mentality and a permanent wartime economy.
Unfortunately, it must be said that this criterion of a national security state is totally met.

***
Comment at Close of 2004
Government activities regarding the characteristic of national security mentality and permanent
war economy, although occurring in a mixed environment of public reaction, surely have not
receded since September 11. Initiatives in this area continue to be generated by the Adminis-
tration.
A national security mentality is assuredly is being maintained by the actions, policies,
programs, agencies, departments, and reports, encompased in the first six national security
state characteristics already reviewed. (See Commentary at Close of 2004 and Expanded
Discussion for each of those characteristics.) Major White House “National Strategy”
documents on various anti-terrorism subjects are a profound indication of this protracted
mentality. (See Appendix 6-B). A national security mentality also continues through constant
Administration references and public statements of the war on terrorism as a persistent context
for Administration conduct, especially in foreign policy.
As for a permanent war economy, that is now manifest, even if it was not so before
September 11 and Operation Iraqi Freedom. The question now is whether the public will
recognize the long term effects of this wartime economy on so many other economic and
cultural segments, and respond accordingly.
(For a review of these and other developments, see Expanded Commentary for Charac-
teristic No. 9 at the end of this Part.)

10. TARGETED INDIVIDUALS OR GROUPS

Another aspect of a national security state is targeted individuals or groups. A national
security state exists in response to a threat. That threat must be identified, declared, and made
real. The national government must be seen as responding to this threat on a daily basis. The
threat may be not only a concept or idea, but also a person or a group of people. This need not be
a racial group, although often that is the case. More likely, the targets are those who are
perceived, on any particular basis, to be threats to the continued existence of the country — as
defined by the terms of the national security state. This is part of what some social observers
have called “the image of the enemy,” which is proclaimed by the national government as a
means of continually maintaining its claim to legitimacy in striking against the enemy.
Now, the targeted groups are of Middle Eastern descent. Anyone who looks like an Arab
may be suspect. The incidents of violence against Arabs immediately after September 11 were
some indication of the forces that can be brought into this characteristic. To its credit, the
national government disavowed such actions and the Justice Department declared that so-
called “hate crimes” against Arab Americans would be dealt with severely. These condem-
nations even made their way into the PARTRIOT Act (§102, §1002). That does not mean the
targeting of suspect groups has ceased.1
Interviews and Interrogations of Students and Foreign Nationals.

1. There have been several comments on this disturbing trend, which has yielded nothing substantial
or tangible in terms of actual progress in counterterrorism investigations. See, e.g., James X. Dempsey and
David Cole, Terrorism and the Constitution: Sacrificing Civil Liberties in the Name of National Security (First Amend-
ment Foundation, 2nd Ed., January, 2002), at pp. 168-175.

351
 No Greater Threat

At the same time the Justice Department condemned violence against Arabs, it is seeking to
round up Middle Eastern residents in Oregon, question Middle Eastern or Muslim college
students around the country, and failing to apologize for the dragnet of more than 1,000
individuals, generally of Middle Eastern background (whether or not U.S. citizens), seized and
held in the investigation of the September 11 attacks — some on very flimsy evidence.1
By late 2001, federal and local police agents had begun a program of interviewing 5,000
persons, mostly of Arab nationality, asking questions about employment, salary, phone use,
associates, and activities. Many are men between 18 and 40 years old who came to the United
States after January 1, 2000 and from countries deemed by federal officials to be harboring
terrorists.2
The FBI says the interviews are voluntary. But persons from countries where there is no
such thing as a “voluntary” interview with a police authority or government official might not
view it that way. Some colleges where FBI activity has increased, including several colleges in
Michigan, have refused to assist agents in contacting or interviewing students. These include
Eastern Michigan University, Michigan State University, the University of Michigan at Ann
Arbor, as well as the University of Wisconsin at Madison.
In a surprising turn of events (already noted briefly in discussion of Characteristic No. 3),
the Portland, Oregon Police Bureau declined to cooperate with a request by federal authorities
to question 23 men of Middle Eastern origin there, and to ask these individuals a list of 33
questions. The Portland mayor, Vera Katz, explained in published statements that the city is
not being unpatriotic and that “We can aggressively fight terrorism and follow the law.” The
mayor noted that federal authorities did not say if any of the 23 men to be questioned were
suspected of any crime or involved in the September 11 attacks. The information sought
included past travel in the United States and elsewhere, reasons for this travel, future travel
plans in the United States including what cities and landmarks might be visited, and the status
of each person’s visa or passport.
The mayor said that the interview activities would be an infraction of two state laws. One
makes it unlawful for police to “collect or maintain information about the political, religious, or
social views, associations, or activities” of any person unless that information “directly relates”
to investigation of criminal activities and there are reasonable grounds to believe the person is
or may be involved in criminal conduct. The other statute makes it unlawful for police to detect
or apprehend foreign persons if their only violation of the law is that their United States
residence is not in keeping with immigration laws.3 The Portland mayor said that other cities

1. Several legal actions had been brought by groups like the ACLU, Center for Constitutional Rights,
and others seeking the names of the detainees from the FBI and INS, but so far without ultimate success (a
recent favorable federal district court decision is the subject of a government request for stay pending
appeal). Similar legal actions have challenged the extent and condition of the detentions and the treatment
of the detainees. There have been numerous press reports tracking these legal actions. See Hanna Rosin,
“Groups Find Way To Get Names Of INS Detainees,” The Washington Post, January 30, 2002. The article
noted that the ACLU had filed an action on December 5, 2001 seeking information about the detainees.
2. Todd Richissin, “Critics Seek Limit To Terror Inquiries,” Baltimore Sun, December 22, 2001.
3. The mayor’s statement also said that the Portland city attorney had taken the same view of the
Oregon statutes, and that six former Justice Department officials and other legal scholars agreed that the
interview requests raised legal issues. The mayor had asked if five of the 33 questions to be posed in the
interviews could be modified, but federal authorities declined. This meant that the city could not partic-
ipate in or assist in the interviews. The City Attorney, Jeff Rogers, stated that Oregon law “prevents Port-
land police from gathering certain personal information about innocent witnesses themselves.” Because
“there is no reason to believe these 23 people are or may be involved in a crime, the law prohibits the Port-
land police from asking these people certain personal questions that are unrelated to crime.” The City
Attorney’s statement added, “The law does not allow Oregon law enforcement to say these people are not
suspects, but create files about them as if they were.”

352
 Part VI: The Next Six Elements of a National Security State

had declined to participate in requests by federal authorities for assistance in conducting

similar interviews, including Seattle, San Francisco, San Jose, Denver, and Detroit.
Following September 11, the INS has made visa rules more strict for foreign students.
Student must now obtain a visa before beginning classes in the United States, instead of
entering the United States conditionally and starting classes while the application is reviewed
or processed. The INS is proposing to make it more difficult for a visitor to switch to a student
visa. The INS also proposes to reduce from six months to 30 days the time a business traveler
can stay in the United States and to make it more difficult to extend the stay. In deportation
cases, the INS says that it wants those who get final deportation orders to surrender themselves
in 30 days. Those who do not will not be able to appeal or seek asylum.1
According to reports, the American Civil Liberties Union claims that since September 11
there have been more than 100 cases of harassment or poor treatment of Arabs or Arab-
Americans at airports in the United States, with airport or airline personnel playing a part in
some of these incidents. And FBI agents accompanied by local or state police officers are going
to homes, businesses, or schools of Arab Americans to ask questions. Most of those approached
are too intimidated to refuse and are not well aware of their rights, even if they are American
citizens. In June of 2002, the ACLU filed lawsuits accusing airlines of illegally removing
passengers who appeared Middle Eastern. The lawsuits were filed in California, Maryland, and
New Jersey, focusing on five incidents, including one in which two passengers, a permanent
United States resident born in the Philippines and an American citizen from New York, of Arab
descent, were taken off a Continental Flight from Newark to Tampa on December 31, 2001
because another passenger said they were acting suspiciously. The ACLU said that the
incidents were examples of violations of civil rights of airline passengers and demanded the
court order that further discrimination be stopped.2
An Egyptian student who was staying in a hotel overlooking the World Trade Center on
September 11 was arrested and charged with lying to investigators about a pilot’s radio that was
found. He was denied bail and held on a federal charge of making false statements. The charges
were dropped after it was discovered that the radio belonged to someone else and that a
security guard had lied. Whether or not the student had lied to federal investigations (never a
good thing to do) is of less concern than the roundups which have taken place in so many of
these Arab nationals and the government’s willingness to believe anything suspicious about
them.3 A Saudi man who was rounded up with others of Arab descent after September 11 was
charged with making a false statement on his visa application, given a four month sentence, and
deported.4 A Jordanian student, Osama Awadallah, was charged with being one of the

1. Associated Press, “INS Tightens Visa Rules For Foreign Students,” Baltimore Sun, April 9, 2002. As
of September, 2002, there were 600,000 foreign students enrolled in United States colleges and universities,
but the INS cannot account for the whereabouts of many of them. About 10 million people received tourist
visas in 2000 (the last year with available data) and three-quarters of them stayed less than a month. About
2.5 million came to the United States for business purposes and stayed an average of 13 days.
2. See Associated Press, “ACLU Sues Four Airlines, Claiming Bias Based on Color,” The Baltimore Sun,
June 5, 2002, p. 8A.
3. Associated Press, “Egyptian Student Accused Of Obstructing Sept. 11 Probe,” The Baltimore Sun,
January 12, 2002, p. 7A. Prosecutors said that the student, Abdallah Higazy, 30, falsely told them he had no
knowledge of a hand-held radio found in his room which investigators claim could be used to communicate
with pilots. Although the student is in a graduate program in computer engineering and had served in the
Egyptian Air Corps, he had been placed at the hotel (the Millennium Hilton) for a month while he found
more permanent housing. The judge in the case said that “this may not be ultimately a terrorism case.”
However, the student reportedly had told investigators conflicting stories about the radio.
4. Nation Digest, “Man Arrested After Attacks Of September 11 Is Deported,” The Baltimore Sun,
January 5, 2002. The Saudi, Khalid al-Draibi, apologized for making a false statement on his application. He
was also charged with terrorism crimes but was cleared of those charges.

353
 No Greater Threat

September 11 terrorists after he failed a lie detector test about having advance knowledge of the
attacks. The larger issue is not whether Mr. Awadallah lied to federal prosecutors, but the
methods used to track him, detain him, and interrogate him. Mr. Awadallah, held as a material
witness in a grand jury investigation, spent 83 days in prison before being released on bail. In
May, 2002, a federal district judge in New York threw out the perjury charges against
Awadallah and called the imprisonment of him and other “witnesses” in the government’s
September 11 investigation unconstitutional and a violation of the Fourth Amendment.1
The arrests have even extended to an attorney who was charged with helping a Muslim
cleric to manage a terrorism group from jail.2 The arrest followed an investigation that included
court-approved monitoring of conversations at the prison between the attorney and her client.
Thus, the historic and well-recognized privilege between a lawyer and client was violated
because the supposed activity involved “terrorism.” This opens a door that should never be
opened, taking investigation down a very dangerous path of eroding the historic and essential
lawyer-client privilege. If these trends continue, our investigative and judicial system will no
longer honor or even recognize bedrock Constitutional protections and long-established
privileges, becoming a system where the ends justify the means.
A former Boston cab driver once identified by authorities as a major terrorism suspect
was kept in solitary confinement for more than eight months in New York without seeing a
judge or being assigned a lawyer. He was taken into custody on September 18, 2001 but was not
brought before a federal magistrate until May 22, 2002. The case has received attention as one of
the many violations of due process in the federal detention sweeps after September 11.3
And all this is aside from the roundups, arrests, and detentions of individuals across the
country, by the FBI and other law enforcement agencies. Shortly after September 11, there have
been raids on Arab homes and business in Virginia, Georgia and elsewhere as part of the
Treasury Department probe into terrorist funding, but no arrests were made. The Council on
American-Islamic Relations, an Islamic advocacy group, received more than 1,800 complaints
from Arab and Muslim Americans of discrimination and backlash (far higher than the 300
complaints usually received in a year).4 The Council has now formed a legal defense fund to
help Muslims and Arabs who are facing violations of civil rights. As has been mentioned, soon
after the September 11 attacks, and before the PATRIOT Act became effective, there were

1. Mr. Osama Awadallah, 21, attends Grossmont College in California. He was freed on $500,000
bail. He claimed he has always been truthful with investigators, although he has also been charged with
lying to a grand jury about his supposed association with two of the alleged hijackers. The judge said, “Since
1789, no Congress has granted the government the authority to imprison an innocent person in order to
guarantee that he will testify before a grand jury conducting a criminal investigation.” Civil liberties attor-
neys such as Rachel Ward, an attorney with Amnesty International, praised the action. Attorney General
Ashcroft called the decision an “anomaly.” Government attorneys say they may appeal.
2. Associated Press, “Privilege Fight Seen In Lawyer’s Arrest,” The Baltimore Sun, April 11, 2002. The
attorney, Lynne F. Stewart, 62, of New York, was indicted on federal charges of helping her client, Sheik
Omar Abel-Rahman, send messages from prison. The sheik is serving a life term following conviction on
terrorism charges. The indictment was based on court-approved monitoring of Stewart’s conversations
with Rahman from 1999 to 2001. She was arrested on April 9, 2002, arraigned, and released on $500,000
bail. The arrest had been called by others a government attempt to send a warning to defense lawyers and to
harass Stewart, who is an anti-government activist, and an attack on attorney-client privilege. Bill Goldman
of the Center for Constitutional Rights said that the case is “a full scale attack on the Bill of Rights.”
3. The cab driver is Nabil Almarabh, 35, a Syrian citizen born in Kuwait. He supposedly is an asso-
ciate of another Syrian who was arrested for an alleged plot to blow up the Radisson Hotel in Jordan on the
millennium eve. But there is no known evidence linking Almarabh to that or any other similar crime. While
in detention, he was allowed out of his cell for a half hour per day and moved about with leg irons and hand-
cuffs. He went on a hunger strike more than once to protest his conditions.

354
 Part VI: The Next Six Elements of a National Security State

arrests of approximately 1,000 persons.1 An attorney for some of those arrested and detained
said that the federal government was “arresting Arabs all over the country to make the public
think they are doing something.”
Once again, investigations and government activity that may have legitimate purposes in
preventing, investigating, or prosecuting terrorism are accompanied by overreaching, by
disregard of basic rights and privileges, and a new political atmosphere where it seems that
anything goes. It is possible to meet the legitimate objective, and sufficiently, without damaging
important safeguards in the process. Soon, no action may be private, no privilege sacred, no
personal information unknown.
If this activity continues, a dangerous characteristic of a national security state will be put
into place. American citizens must be very watchful of the manner in which the Justice
Department and other law enforcement agencies conduct themselves on the domestic “front” in
investigating the September 11 tragedies and in dealing with the threat of terrorism. Criticism of
extremist tactics cannot be muted.

***
Comment at Close of 2004
The national security state characteristic of targeted individuals and groups has by no
means subsided since the months following the September 11 attacks. Government policies, the
PATRIOT Act, federal investigations, programs such as SEVIS, NSEERS, and Special
Registration, not to mention attitudes and actions of State and local law enforcement, have
placed ethnic matters at the forefront of the war on terrorism. Persons who have been rounded
up, questioned, jailed, charged, or deported over war on terrorism government reaction
universally have been of Arabic origin and of a certain religion — Islam. The government
maintains that it is not engaging in ethnic profiling, but clearly is doing so.
There have been some fiercely anti-immigrant proposals in Congress, increasing attention
of federal investigative authorities to Muslim communities, and detention of Muslims as
suspects. This seems to have no end.
There is further targeting of antiwar demonstrations or groups, political rallies, and even
certain figures within these organizations. (More on this also can be found in 2004 commentary
and discussion for Characteristic No. 11). While it cannot be said that major movement towards
a national security state has occurred in these developments, overall activity on this Charac-
teristic has moved it closer to a national security state daily reality.
(For a review of these and other developments, see Expanded Commentary for Charac-
teristic No. 10 at the end of this Part.)

11. DIRECT ATTACK AGAINST DISSENT

A national security state cannot survive long in the wake of dissent, of criticism. It must
meet a constant need to justify its existence to its population. Direct targeting of dissenters,
whether individuals or groups, has yet to occur on a large scale and might not occur. Yet, some

4. Associated Press, “Group Starts Defense Fund for U.S. Arabs and Muslims,” The Baltimore Sun,
March 31, 2002. At the time of the story, the group hoped to raise $1 million. The executive director, Nihad
Awad, said that the rights of these people “were thrown away because they didn’t have money. It’s our duty
to provide legal services and representation to these people.” The fund has the support of other Muslim
political organizations.
1.See page 343.

355
 No Greater Threat

disturbing trends can be noted already, some based on what appears to be a return to old habits
on the part of federal investigators.
The absence so far of coordinated federal government action against dissent does not
mean the national government lacks the ability or could not summon the national will to
support such activity. There would be less public resistance to this government action than
would have occurred 20 or 30 years ago. Now, attacks by the government or governmental
agencies against dissenters can be made to seem part of the national response to terrorism. That
and government manipulation of the media would make the activity quite plausible.
This characteristic has not been fulfilled at present. Dissent is still active, whether from
individuals or from organizations. But this must also be watched carefully. Marginalization of
dissent, silencing or threatening of dissent, and legal action against dissenters by the
government are classic features of a national security state.
This does not mean that people would be dragged from their homes in the middle of the
night or that Congress would pass a new Sedition Act. It does mean that government will begin
to promote the notion that dissent should become increasingly unpopular. It does mean that
there will be state and federal initiatives to make “patriotism” a greater priority, which in turn
will mean that anyone who challenges government policy will be “unpatriotic.” From there, it is
just a few steps to making it appear that dissent and protest, cherished rights of American
citizens, is affront to society itself.
Police Secret Investigations and Files. In an incident which either is an indication of things to
come or an isolated situation, it was revealed that the police department in Denver had, at one
time, classified the American Friends Service Committee group there as “criminally extremist.”
The AFSC, a policy and program outreach of the American Friends (Quakers), is an 85-year-old
organization well known for its persistent, careful, and insightful responses to issues of peace
and justice and criticism of government foreign policies and military actions, and which was
awarded the Nobel Peace Prize (1947). The Denver police kept files on hundreds of peace and
activist organizations in its surveillance efforts on these groups.1 There were reports that the
Denver police had kept many of these files active, and had not discarded them.2 The reports said
that Denver police had 3,200 files on individuals and about 208 records on organizations.3 The
ACLU brought a legal action in connection with the revelations.4
These revelations come at a time when United States investigative and enforcement
agencies are recommitting themselves to fighting terrorism and to redoubling their investi-
gative efforts. The NSA is in the midst of a new advertising campaign; the CIA is not at all
concerned about being portrayed as “bigger and nastier”; and the FBI is declaring itself better

1. See AFSC Press Release, “AFSC Upholds Constitutional Right to Free Speech and Dissent”
(March 15, 2002). The press release was issued along with a press conference by the local American Civil
Liberties Union (ACLU) on the surveillance issue. The announcement was connected to freedom of infor-
mation act legal actions that resulted in a review of hundreds of files detailing government surveillance
projects and intelligence documents targeting US peace groups in the early 1970s. The mayor of Denver crit-
icized the surveillance activity.
2. Robert Weller, “Denver Police Keeping Illegal Files on Peaceful Protest Groups,” Associated Press,
March 12, 2002. The story states that Colorado’s ACLU legal director, Mark Silverstein, has asked the
Denver Mayor to stop all monitoring, make all files available to their subjects, and have police disclose who
has been given file information. If the mayor so directs, a spokesperson for the Denver police said that the
police would comply. Among the files are not only groups but also individuals, like Stephen B. Nash, an
event organizer for Amnesty International, whose file goes back to 2000. Another individual who had a
police file was a Franciscan nun. Files were also kept on local protest events such as a protest of a fatal
shooting by a police SWAT team that went to the wrong house, and local public protest activities against
the World Bank and the International Monetary Fund.
3. From an article in The Progressive, posted on the Internet on March 27, 2002.

356
 Part VI: The Next Six Elements of a National Security State

prepared to investigate and prevent terror attacks.1 Some of these announcements are
worthwhile; others raise the question of what is coming next.
Consequences for Dissent by College Faculty. Already, there are instances of college faculty
members who have spoken out being shunned or criticized. After the September 11 attacks,
there were teach-ins, seminars, and other events to help explore the issues of the terrorist
attacks and why they happened, and to consider the United States response by the war in
Afghanistan. However, faculty members at the Massachusetts Institute of Technology,
University of Massachusetts at Amherst, City University of New York, University of North
Carolina at Chapel Hill, and University of Texas at Austin, have been criticized by other faculty,
or have even faced denunciation by the trustees at these colleges.2
The American Council of Trustees and Alumni issued a report criticizing college campus
opposition to the Afghanistan war.3 The report cites 115 examples of what it denounced as a
“blame America first” attitude, in terms of comments or statements by college professors. The
Council, founded in 1995, decried a “moral cleavage” between “intellectual elites and
mainstream America,” according to reports quoting a Council official. The quote continued, “At
a time when we are defending our civilization — and that’s what this war on terrorism is about
— we wanted to alert university trustees that it is incumbent upon them to make sure U.S.
history and the heritage of Western civilization is fairly transmitted on their campuses.”
Leaving aside what indeed might be a truly “fair” transmittal of the heritage of Western
civilization (warts and all), is the thinly veiled attitude that criticism of the U.S. government’s
war in Afghanistan is criticism of America itself. Among the Council’s activities are to
encourage states to adopt a Council-approved curriculum on American history and civics. Some
college professors have said that the Council’s report and the official’s comments about it will
build further pressure for self-censorship by professors in the classroom. And so it begins.
This new beginning is in a way coming full circle, for there have been revelations of FBI
spying on and disrupting the activities of university professors thought to be subversive or
undesirable, in the 1960s. This included University of California at Berkeley President Clark
Karl and many other faculty members and administrators, who were the target of an intense FBI
campaign in the mid- to late 1960s.4

4. Julie Cart, “Denver Police Spied on Activists, ACLU Says,” Los Angeles Times, March 22, 2002.
According to the story, the ACLU legal complaint charges that on December 14, 2000, officers from Denver
and Golden police departments raided the offices of a peace group active on Latin America issues. Suppos-
edly, the purpose of the raid was to obtain evidence about the vandalism of a department store. Among the
items seized were membership phone numbers, e-mail lists, phone tree names, and other lists containing
the names of 984 people.
1. See Ariel Sabar, “Super-Shy Spy Agency Sheds Silence to Secure U.S. Secrets,” The Baltimore Sun,
June 18, 2002, p. A1; Tom Bowman, “CIA Digs In To Get Bigger and Nastier,” The Baltimore Sun, June 4, 2002,
p. A1 (indicating that the CIA will be less concerned about the personal backgrounds of some persons
recruited in foreign countries as agents or informants, that its Directorate of Operations will increase by
25%, and noting that since September 11 the agency has been “inundated” with requests for job applications,
receiving 100,000 to June, 2002, compared to only 36,000 the year before), and Laura Sullivan, “FBI Admits
September Failures, Reorganizes to Fight Terror,” The Baltimore Sun, May 30, 2002, p. A1.
2. From “Academic Freedom Ad,” a statement issued by a non profit group, Center for Economic and
Social Change, in Chicago, posted on the Internet on November 5, 2001. The Statement said that some
professors at those colleges have been “threatened and attacked for speaking out.”
3. Article appeared in Seattle Times, December 26, 2001, “Association Advocates Pro-America Curric-
ulum: College Professors Call Report a Prelude to Blacklist, Stifling Academic Freedom.” Also appeared in
Baltimore Sun, December 26, 2001.

357
 No Greater Threat

There are more tales of “patriotism enforcers” in various schools around the country.1 In
one elementary school, the school’s response to the September 11 attacks was to instruct
students to get out red, white, and blue crayons and draw an American flag.
And while it is understood that freedom of speech is not as broad for members of the
armed forces, it is unusual that a mere critical comment can result in disciplinary action. In June
of 2002, an Air Force officer, at the Defense Language Institute in California, Lt. Col. Steve
Butler was suspended from duty after he wrote a letter to a local paper accusing President Bush
of seizing upon the September 11 attacks to boost his presidency. Lt. Col. Butler is a 24-year
veteran who served as a combat pilot in the Persian Gulf War.2
In an interesting report from overseas, political cartoonists in America are indicating that
they are being pressured to produce cartoons less critical of the government. Material produced
by some “progressive” cartoonists is no longer appearing in some newspapers. One cartoonist
has mentioned receiving death threats. Some cartoons making explicit reference to the
September 11 attacks to criticize or lampoon government policies have been pulled from
newspapers or have been the subject of newspaper retractions after reader reaction.
The dangers of these developments need hardly be explained. Further movement down
this road will come to no good end.
Possible Increased Surveillance of Political Groups. Attorney General John Ashcroft is relaxing
restrictions on the FBI’s spying on religious and political organizations in the United States.3
This calls to mind the FBI’s widely criticized COINTELPRO campaign of the 1960s, in which
the FBI spied on prominent figures and groups. After the revelation of the COINTELPRO
scandals, the old habits supposedly were discontinued. Guidelines were imposed so that the
FBI was not to send undercover agents to investigate groups that gather in religious settings
without probable cause or other evidence indicating that a crime was committed by one of their
members. Full investigations required the Attorney General’s consent.
However, later revelations confirmed that surveillance, search, and interrogation of
suspect groups did not entirely abate. In the 1980s, certain groups critical of United States
policy in Central America were investigated. In the 1990s, investigations also included those
who opposed United States foreign policy in other areas such as the Middle East. These
activities were connected to wide ranging government surveillance on “international terrorism”
under the government agency contention that these groups were serving as an “agent of a
foreign power,” a convenient legal predicate for covert investigation.4 Information about these

4. See Associated Press, “FBI, CIA, Reagan Illegally Subverted Dissent at Berkeley” and San Francisco
Chronicle, “Reagan, Hoover, and the UC Red Scare,” June 7 and 8, 2002. The revelations came as a result of a
Freedom of Information Act suit brought by the Chronicle which produced more than 200,000 pages of
confidential records from FBI and other files covering the 1940s to 1960s. The investigation, which also
involved then CIA Director John McCone, came after the Free Speech Movement began in Berkeley. The
article states that when Kerr, who was held in low esteem by FBI Director J. Edgar Hoover, was named by
President Lyndon Johnson to be Secretary of Health, Education, and Welfare, the FBI background dossier
included damaging information that the agency knew to be false, resulting in the nomination being with-
drawn.
1. Village Voice, note of January 3, 2002.
2. Reuters, “Air Force Officer Suspended for Criticizing Bush,” June 4, 2002. The letter, printed in
the Monterey County Herald, stated that before September 11 the Bush presidency was “going nowhere” and
that Bush “was not elected by the American people, but placed into the Oval Office by a conservative
Supreme Court.” The suspension was based on Article 88 of the Uniform Code of Military Justice, which
prohibits any commissioned officer from using “contemptuous words” against the president or other senior
government officials.
3. David Johnston and Don Van Natta, Jr., “Ashcroft Seeking to Free F.B.I. To Spy On Groups,” The
New York Times, December 1, 2001.

358
 Part VI: The Next Six Elements of a National Security State

activities makes it painfully evident that the FBI continues to conduct this sort of investigation,
and many of them do not become publicly known. However, more reports are surfacing of
overzealous investigative conduct, as attention again turns to the scope and breadth of federal
investigative and surveillance power, especially given that the PATRIOT Act brings those
powers to entirely new levels.
With these rules lifted, the FBI can conduct wider surveillance of those groups without
the necessary prior cause or evidence and without full chain of command approvals. Relaxation
of these rules now allows the FBI to move freely into almost any public area of American life.
This would add even wider authority to the already extreme potential for abuse that exists with
the authority already granted all federal investigative agencies in the PATRIOT Act.
It would be an immense blow to civil liberties and personal rights for these government
agency secretive surveillance and investigatory powers to continue unchecked. This is a country
founded on the right to dissent and disagree with the government.
It is not a sign of a lack of patriotism to question government activity. If dissent becomes a
dangerous activity, a national security state is around the corner.

***
Comment at Close of 2004
Although perhaps not quite as dramatic as the movements in other Characteristics (such
as Characteristics No. 3, No. 6, and No. 9), there has been increased government activity to
target dissent. These activities include federal actions or programs to put under surveillance
antiwar or other groups disparaging of the government, infiltrate certain organizations, and
promote an atmosphere hostile to government criticism. These have included questioning
antiwar group members, interfering with Internet communications, disrupting meetings and
events, confining demonstrators at public appearances of the President or other Administration
officials to small and tucked away venues, and rounding up demonstrators or activists at public
events (such as the demonstrations in Miami against globalization meetings, actions in Boston
against the Democratic Party national convention, and broader protests in New York City
against the Republican Party national convention). Among these activities were investigations
of individuals, interviews and other surveillance, and some conduct bordering on harassment.1
In addition, as noted elsewhere, FBI and other law enforcement agencies are increasing
their activity concerning anti-government protestors or organizations. Even the ability to
demonstrate itself has been under assault, typified by the denial by New York City authorities,

4. For more on this, see James X. Dempsey and David Cole, Terrorism and the Constitution: Sacrificing
Civil Liberties in the Name of National Security (First Amendment Foundation, 2nd Ed. 2002).
1. See AFSC alerts about FBI and Denver police invading homes of AFSC interns and other activists,
and New York Times, “FBI Goes Knocking for Political Troublemakers,” August 16, 2004, describing FBI activ-
ities and investigations by other law enforcement of protestors or anti-government groups in Boston, New
York, and Florida. This involved the FBI bulletin authorizing such activity and contending that it was not a
First Amendment violation. That bulletin is discussed in other sections. The story noted, “In the last few
weeks, beginning before the Democratic convention, FBI counterterrorism agents and federal and local
officers have sought to interview dozens of people in at least six states.” FBI dismissed civil liberties
concerns saying that “no one was dragged from their homes and put under a bright light” and that those
interviewed were “free to slam the door in our faces.” One wonders just how extensively that “freedom”
could be used. Of course, if it gets to the point of people being dragged from their homes and put under
bright lights and interrogated as possible troublemakers, the situation will have gone completely out of
control.

359
 No Greater Threat

and upheld by a federal judge, of a permit for a large scale rally and march against the Iraq war in
February, 2004.
Along with this atmosphere has been rough treatment by State and local police of
demonstrators at forums or public rallies. The roundups and jailing of hundreds of non-violent
protestors at the Republican Party Convention in New York was a prime example. Other
examples were the Miami incidents, treatment of demonstrators at the New York rally and
march in February, 2004, and treatment of activists across the country in nearly every type of
event large or small. There has been significant movement of this Characteristic in the direction
of a national security state.
(For a review of these and other developments see Expanded Commentary for Charac-
teristic No. 11 at the end of this Part.)
***

12. INCREASED SURVEILLANCE OF CITIZENRY

Going hand in hand with the characteristic of taking action against dissenters is
increased government surveillance against the citizenry. This “1984” environment is, unfortu-
nately, closer than many people believe. New electronic surveillance powers have been granted
by the PATRIOT Act and the surveillance already underway (the Carnivore program was one
example); FBI and NSA surveillance activity clearly will increase. It will include e-mail, other
Internet traffic, and the telephone (landlines and cell phones). There will be less explanation
needed to obtain wiretaps and there will be more of them. Given the history of the FISA court,
obtaining a surveillance, search, or sneak and peek order is as certain as the moment the
application is signed.
New technologies are being developed to allow private surveillance of computer systems
and Internet use. There are firms developing monitoring software to be used in employment
settings, where computers are often linked together in networks. These programs enable an
employee manager not only to detect unauthorized computer activity by employees (personal e-
mail, Internet shopping) but also will reveal actual keystrokes, down to credit card information
posted to an Internet shopping site. Monitoring programs installed in the network or on the
various computers can reveal all computer activity at any given terminal. According to an
industry survey in 2001, nearly 47% of large corporations store and review e-mail messages,
three times more than in 1997.1
Surveillance in Public Areas, Sporting Events. Direct surveillance of crowds and individuals is
also on the rise. Over the past five to ten years, this sort of surveillance has increased substan-
tially. Video cameras or other security monitors are trained on individuals in a wide range of
areas of public life. There are cameras monitoring highways and intersections, cameras in
convenience stores and grocery stores, cameras in shopping areas, cameras at every automatic
teller machine, cameras at airports and train stations, and even cameras in public areas in
downtown areas of most cities.2 There are even cameras taking pictures of drivers running red
lights. There are efforts to link police cameras with other public agency video networks, partic-

1. See James Hatori, CNN, “Workplace E-Mail is Not Your Own,” June 8, 2002. Monitoring
programs can scan for keywords, record keystrokes, look for potential viruses, and review employee
computer activity.
2. The Bush Administration has asked for $23 million in FY 2003 to add vehicle barriers and lighting
around the Washington Monument and Lincoln and Jefferson Memorials, and another $6 million to secure
sites like the Statute of Liberty in New York, Independence Hall in Philadelphia, Mount Rushmore near
Rapid City, South Dakota, and the Gateway Arch in St. Louis.

360
 Part VI: The Next Six Elements of a National Security State

ularly traffic camera systems.1 The camera monitor has become so commonplace that Americans
accept this as normal. It does not have to be quite so normal.
There are proposals to put security cameras on the National Mall in Washington, D.C.2
At this rate, going about your business or visiting the city in Washington, D.C., you could be
caught on camera more than 200 times per day. Surveillance already is so routinely conducted in
so many places Americans frequent that the public seems not to notice anymore. That
complacency is an invitation to a near-total loss of privacy and freedom from personal intrusion
or from unconsented observation, even when walking down a city street.
It seems that new announcements of public surveillance are coming on a monthly basis. In
May of 2002, new facial recognition cameras and monitoring equipment were installed at, of all
places, the Statue of Liberty. Several cameras at varying heights snap tourist photos as they walk
through a security checkpoint. The cameras are positioned so that it would be difficult for
people to turn away or hide their faces. The system was in put place after the FBI received
warnings of possible attacks on American landmarks.3
There was the report, which should not be forgotten, that at the 2001 Super Bowl, law
enforcement agencies were permitted to scan the crowds in attendance, take photos of
suspicious individuals, and run them through face-recognition software. Direct surveillance is
likely to occur more often as law enforcement authorities realize the extent of their new
powers, the American passiveness about surveillance, the reduced role of the courts to challenge
this activity, and the lack of any real civil check against law enforcement excess.
The FBI certainly will play a role here. As mentioned, the FBI’s surveillance powers have
been substantially increased by the PATRIOT Act; there are concerns that the FBI will make
use of the “Carnivore” program and systems like it; there is information sharing between the FBI
and CIA and other government agencies; and the FBI has been conducting interviews and
roundups of hundreds of individuals (some United States citizens or others who are here
legally).
There already are signs that the increased spending on surveillance in public areas and on
infrastructure protection is not buying more security. For example, school groups or tours that
used to descend on Washington, D.C. in the spring and summer have cancelled trips, citing
lingering safety concerns following September 11.4 New York City is still reeling from a
precipitous drop in travel and tourism, which went on even when the city pointing to
heightened security and fighter jets were patrolling the skies. Another reason may be the

1. See same story about surveillance cameras.

2. Associated Press, “Surveillance Cameras Planned For D.C. Mall,” The Baltimore Sun, March 24, 2002,
p. 5A. The story stated that within six months there will be video cameras inside the Lincoln Memorial and
around other monuments on the National Mall because of fear of terrorist attacks. The cameras would be
monitored around the clock at various sites on the Mall, including the Jefferson Memorial, the Vietnam
Veterans Memorial, the Korean War Veterans Memorial, and the Washington Monument. The closed
circuit system will cost between $2 million and $3 million and would be installed in places “where there is
no expectation of privacy.” Images recorded would be stored, but supposedly for a limited time and used
only for law enforcement purposes.
3. See Associated Press, “Surveillance Installed at N.Y. Harbor,” reported in The Baltimore Sun, May 26,
2002, p. 3A. The system can search through 1 million images per second. Tourists said they were not both-
ered by the system and received it with enthusiasm.
4. Ellen Gamerman, “Long After Attacks, Schools Avoiding D.C.,” The Baltimore Sun, April 29, 2002, p.
1A. The article notes that the school district in Bucks County, Pennsylvania, one of the country’s largest,
still will not authorize air travel or trips to major cities, even including Philadelphia, due to the apprehen-
sions of parents and administrators after September 11. The article also notes that 180 tour group companies
have applied to the Small Business Administration for disaster loans.

361
 No Greater Threat

combined effect of the additional time, inconvenience, and aggravation of air travel in America
after September 11.
Increased Government Involvement With and Study Of Internet As Part of Cyber Security. Part of this
surveillance, especially electronic surveillance, means government involvement in the Internet.
Some of these concerns have been mentioned, but there is more to it. On July 15, 1996, President
Bill Clinton issued an Executive Order describing long-held governmental concerns about the
security of critical computer systems.1 Related to that Executive Order was a report by the
Defense Science Board Task Force on “information warfare defense.” The Department of
Defense Task Force report, similar to later Government Account Office Reports exploring this
topic,2 considered means to prepare for, prevent, and counter cyber attacks on computer
systems that control critical areas such as transportation, power generation and supply, defense
capabilities, and finance (banks, money transfers, stock and stock trading). Some of these
concerns are warranted, for it is evident that computer hacking is a worldwide problem and
computer security has developed in the past five to ten years as a lead security frontier.
However, the Task Force report also recommended modifying legal barriers to activities
by government agencies such as the Department of Defense in seeking out potential hackers and
responding to cyber attack. This is, no doubt,concern to the Department of Defense due to the
fact that DOD alone has at least 2 million computers and 10,000 local area networks, not all of
them classified, connected differently and protected differently, and subject to various types of
computer attack. The Report urged guidance or legislation to lower the requirements for
seeking wiretaps and urged “assistance from the private sector” in responding to cyber assaults.
This would assist government agencies in tracing attackers, tracking them through multiple
systems, and obtaining reports of computer related incidents from the private sector. Better-
defined authority for seeking wiretaps and conditions or restrictions on wiretaps, according to
the Report, would assist the Defense Department and other government agencies in conducting
“information warfare.” This would include an “information warfare center” and authority to
monitor and even record suspect data and to respond to computer crime attempts.
The Task Force further recommended lowering the barriers to information sharing. It
said, “In some cases, the military, law enforcement and intelligence communities are restricted
by law, executive order, or regulation from sharing certain information.” It also indicated that
these communities have not done well in the past in sharing information. The PATRIOT Act
has changed all that. Intelligence, law enforcement, and investigative areas of the federal
government not only are encouraged to share information, but also are mandated to do so in
Title II when the information involves “foreign intelligence.”
Connected to this effort on cyber security, which is linked to surveillance authority, are
three programs proposed by the Bush Administration for the FY 2003 budget: a feasibility study
for a secure “GovNet,” the development of advanced encryption standards, and several million
dollars in funding for “Cybercops.” This Cybercops program would offer scholarship funds to
colleges across America to train students to become high tech computer security professionals
who would then work for the government. The program would be managed by the National
Science Foundation and by the Office of Personnel Management.3

1. Executive Order 13010, concerning electronic, radio-frequency, and computer based attacks on
information and communications components that control critical infrastructures.
2. For example, see GAO Report Critical Infrastructure Protection: Comprehensive Strategy Can Draw on Year
2000 Experience (GAO/AIMD-00-1, October 1, 1999).
3. See OHS Website information on computer security and high tech programs by the Bush Admin-
istration for FY 2003.

362
 Part VI: The Next Six Elements of a National Security State

The arrival of the PATRIOT Act has greatly advanced the Task Force’s goals. The broad
authority provided by Titles II, IV, and VII of the Act for government investigation into
terrorism, much of which can be conducted without a court order, certainly will be interpreted
by government agencies as carte blanche to conduct Internet sleuthing. The Act’s authority goes
far beyond the interest by the Department of Defense to investigate and respond computer
hacking attempts on its systems. This authority specifically includes “wire, oral, or electronic”
communications.
The “federal crime of terrorism” in Title VIII has been expanded to include computer
crimes. The crime of “domestic terrorism” in Title VIII is described as an act dangerous to
human life, intended to influence government policy, and a crime under state or federal law.
While this definition has not yet been interpreted to include political advocacy groups or
political protest, there is potential for government abuse or very broad interpretation of that
definition. A computer crime directed at, say, a critical transportation system such as an airport,
surely would be considered dangerous to human life and is already been defined not only as a
federal crime but now also as “terrorism.” If the crime also can be considered an act to influence
government policy — and that intent need not be overtly expressed — then the act qualifies as
domestic or even international terrorism. All of the broad government authorities granted by
the PATRIOT Act can be brought to bear.
It must also be noted that these crimes also include an attempt to commit the crime or
conspiracy to commit the crime. This means that “potential terrorists” who are known to use
computers can be subject to surveillance, even if no crime has yet been committed.
Yet, the scope of this authority need not be limited to investigating and responding to
computer crime itself. Linking up the long-standing government concern in computer crime
and computer systems protection, the interest in investigating and responding to computer
crime, the broadened ability of federal agencies to investigate “terrorism,” and the inclusion of
computer crimes as a terrorist act, also means that specifically targeted groups or even
individuals suspected of being terrorists could be investigated. Anyone suspected of planning,
conspiring in, attempting, or committing a “terrorist” act, even if it is not an act committed over
a computer system, can be investigated.
Since the PATRIOT Act took effect, the CIA has sought to broaden its powers for
eavesdropping and surveillance and to reduce judicial review of these activities. The CIA has
supported legislation that would give it power, without first seeking a warrant, to intercept e-
mail messages sent through the United States from overseas.1 The CIA has increased activities
in its domestic offices, moving personnel from overseas and recruiting foreigners in the United
States, especially Arabs or those who speak Arab languages and dialects.2
Additional Surveillance Powers. The FBI has been seeking powers even beyond the far reaches
granted by the PATRIOT Act. Increasing wire, oral, and electronic surveillance is the beginning.
Investigations into wire transfers and bank accounts have also gotten underway, in accord with
the PATRIOT Act Title III’s authority for investigation into international financial accounts. In

1. Tim Weiner, “The C.I.A.’s Domestic Reach,” The New York Times, Week in Review, January 20,
2002. The story notes that a CIA official said the agency does not seek domestic law enforcement powers
(which would violate statutory restrictions) but only access to information. He official also said that
keeping the FBI and CIA in different rooms and locking the door will hamper terrorism investigations. The
article quotes Morton H. Halperin, former White House official in the Nixon Administration, that “Most of
the new authorities are directed as much at American citizens as foreigners.”
2. The New York Times article noted another article in The Los Angeles Times that a CIA office in
Germany that monitored Iranians was shut down and some of its staff relocated to Los Angeles, which
supposedly has the largest Iranian population of any city outside Iran.

363
 No Greater Threat

February 2002, money transfer agents in 14 states were raided in an effort to stop the purported
illegal wiring of millions of dollars to Iraq. More than 20 search warrants were served on
businesses and individuals, resulting in the seizure of documents. The identities of the agents
raided were not disclosed. No one was arrested.1
The wire-transfer employees were from a single company which has been suspected by
federal investigators of illegally allowing funds to go to Iraq (in violation of a 1990 Executive
Order by George Bush forbidding Americans from transferring money to the Iraqi government,
and of the International Emergency Economic Powers Act). However, most of these wire
transfers were from Iraqi immigrants sending money back home. In fact, an Iraqi national who
fled the country for the United States seven years ago said that he is no longer going to assist
Iraqis residing here who wish to send money to families there, and had filed a suit to keep his
bank from closing his accounts.2 There already have been other investigations of wire transfers
which have led to supposed suspects in the United States and elsewhere.3 In a similar investi-
gation, the Justice Department suspended funding for a leading Iraqi opposition group,
claiming that the group had kept poor bookkeeping records. An audit by the Inspector General
supposedly revealed irregularities in records of spending accounts.4
In the Bush Administration’s FY 2003 budget, $50 billion is proposed for information
technology across the entire federal government.5 The Administration states that the spending
will present an “opportunity to improve the performance of billions of dollars of federal
spending by increasing the effectiveness and efficiency of government.” The efforts will include
maximizing productivity, eliminating redundant systems, and upgrading systems.
Attorney General Ashcroft has said that to oppose these new investigation and
surveillance powers is to side with the terrorists.6 But there are many critics who point out that
CIA and FBI investigative powers have been abused in the recent past, and that more investi-
gation is not more security. Also, the sheer scope and size of the information which can be
obtained and reviewed may be more than can be effectively and timely analyzed.7
As if to demonstrate that increased surveillance will continue to be an objective of federal
investigators, Attorney General Ashcroft announced on May 31, 2002 that the Department of
Justice has adopted a “comprehensive revision” of its investigative guidelines, especially for the

1. Jeannine Aversa, Associated Press, “Money-Transfer Agents Raided,” February 20, 2002.
According to the article, the searches occurred in Buffalo, Chicago, Louisville, Dallas, Detroit, Memphis,
Minneapolis, Norfolk, Erie (Pennsylvania), Portland (Oregon), Lincoln (Nebraska), St. Louis, Tucson, and
Seattle. The raid was assisted by a list of offices of the wire transfer company obtained by federal agents in a
raid on a company office a month before.
2. Howie Padilla and David Peterson, “Brooklyn Park Man Says He Won’t Send Money To Iraq Any
More,” Minneapolis Star Tribune, February 22, 2002. The man, Ail Al-Hashimi, whose house and business were
caught up in the raid, said, “I feel bad for all the families over there who need help, especially mine.” The
story quoted an unnamed Customs Official as saying, “On a human level, we’re sympathetic. Those are
admirable things to want to help with. But as law-enforcers, we’re charged with enforcing the law, not
making the policies.” The story said that the Iraqi immigrants who send money back to their families were
not aware that it was illegal in the United States to do so. They say there is widespread hardship in Iraq,
many deaths due to the economic sanctions, and 70% unemployment. Another article described the
searches in the area: Pam Louwagie, Greg Gordon and Howie Padilla, “Searches Seek Data On Cash Links
Between Twin Cities, Iraq,” Minneapolis Star Tribune, February 21, 2002.
3. Foreign Digest, “U.S. Wants Canadian Man Extradited In Terror Probe,” The Baltimore Sun, January
15, 2002. The man, Liban Hussein, 31, born in Somalia, faces charges of illegally running a money transfer
service in Massachusetts.
4. Associated Press, “U.S. Suspends Funding To Top Iraqi Opposition Group,” The Baltimore Sun,
January 6, 2002, p. 17A.
5. See OHS Website story on information technology. Figures accurate only as of date of story.
6. See same New York Times article.

364
 Part VI: The Next Six Elements of a National Security State

FBI. Ashcroft said the changes were designed to “free field agents to counter terrorist threats
freely and quickly.” Under the new guidelines, FBI agents may visit any place and attend any
event that is open to the public, so long as this FBI activity involves a terrorism investigation.
This “public forum” concept includes any physical public gathering place, even a church or a
mosque or sporting event, and any virtual public gathering place like an Internet chat room.
There is no need for a court order. There is not even a requirement that the agents make any
showing to anyone of probable cause to suspect that the persons being observed have
committed a terrorist crime or are about to commit one.
These new rules give the FBI and other Justice Department agents totally free rein to seek
out and observe the movements of anyone, so long as that person is in a “public place.” No
mention was made by Ashcroft or by FBI Director Robert Mueller of the already- broadened
investigative and surveillance powers provided by the PATRIOT Act. Apparently, that is not
enough. It is likely that very soon these revised rules will not be enough, either. Absent any
report that the new rules have an expiration date, it must be assumed they are permanent. In
this way, the Justice Department already has circumvented the sunset effect for some of the
Act’s more extreme investigation and surveillance provisions.
Curiously, the Ashcroft announcement of the greatly relaxed FBI investigative guidelines
came on the same day that crews working on Ground Zero announced completion of the
months-long project of removing debris, remains of victims, and surviving sections of the World
Trade Center. The announcement was followed by a brief, silent memorial service for the World
Trade Center victims and for police and fire rescuers who also lost their lives in the September
11 attacks. Now attention is expected to turn to a suitable memorial for the site.
The PATRIOT Act could even be viewed as encouraging citizens to turn in their
neighbors. It is a crime to harbor or assist a terrorist, and individuals are encouraged to be on
the watch for such activity. This raises dangerous possibilities that could make for a true
national security state. There are already one or two examples. An Arab-looking Boy Scout
troop leader in Michigan dressed in camouflage for a Boy Scout outing, riding a ferry in to
Mackinaw Island near the Mackinaw Bridge, was detained and questioned by law enforcement
after an alarmed member of the ferry crew called to report suspected “terrorists.” Soon, it could
be neighbor calling the police on neighbor. In circular fashion, this activity only adds to the fear
and isolation of individuals and neighborhoods. That fear and isolation further supports the
national security apparatus, so the process continues to perpetuate itself.
There are other stories of government agency inquiry of ordinary citizens following
comments or statements made in a workplace, gym, or other locale.1 If this trend continues,

7. The New York Times article quotes Thomas Powers, author of “The Man Who Kept Secrets:
Richard Helms and the CIA.” He said that investigative agencies are “now proposing to add e-mail commu-
nications in God know how many difficult languages to these cubic acres of untranslated, unread, unana-
lyzed, unabsorbed information.” As quoted in the article, Mr. Powers continued, “The request for broader
powers is the excuse of first resort of anyone who’s failed at national security or law-enforcement tasks.
This notion — that if we could only read every e-mail message in the universe, then no one could cause us
trouble — is a big mistake.” He also said that intelligence failures regarding September 11 could be discov-
ered: “Somewhere in the oceans of intelligence collected over the past years they will eventually find
hundreds of pieces of information that would have predicted September 11. Everybody’s afraid. They know
they screwed up and if you have an investigation, people will find out how.” The article also quotes Robert
D. Steele, a former CIA officer and now a consultant, who said the new laws will not be effective in the long
run and cannot conceal a “decrepit and dysfunctional” clandestine service, unable to penetrate hostile
foreign governments, much less terrorist groups.
1. CBS Evening News presented reports on this disturbing development in mid-May, 2002, in its
“Eye on America” segment.

365
 No Greater Threat

then what a person writes, says, or does, in any number of venues or situations, can be a matter
of government interest.
To the extent that this category can be watched, it must be watched extremely carefully.
Surveillance of citizenry by its own government is not acceptable. This is a free country of free
citizens. Surveillance by government or law enforcement authorities of anyone believed to be
suspicious, for any reason, must be carefully and consistently justified.
A national security state is not the America most Americans want. But is an America
likely to happen, if its citizens do not realize that it is up to them, no less than the government
itself, to ensure that individual liberties are safeguarded. It is also incumbent on Americans to
recognize that national security does not come from the government itself, or the military, or
new weapons, or armed guards at courthouses. It is a collective security beyond the state itself,
beyond personal needs, beyond the concept of a nation. An America interested in exploring
those concepts, rather than increasing surveillance and law enforcement, is an America that will
come to terms with itself and will realize the much more complex response, at home and
abroad, that is needed to reduce the threat of terror.

***
Comment at Close of 2004
Surveillance of the citizenry and developments or revelations about these activities in
government and private sectors continue to increase since mid-2002. The surveillance includes
programs underway, increased surveillance or investigation accompanying expanded
government authorities in the PATRIOT Act and Homeland Security Act, use by the FBI of
computer-search technologies directed to the Internet such as Carnivore (DCS 1000) and Magic
Lantern, new surveillance research, and ever-newer tracking technologies likely to become so
pervasive as to alter the very cultural concept of privacy.
There is much more to this than warnings of conspiracy theorists. Increased surveillance,
expanded authorities, information sharing, government cross-agency activities, new investi-
gative programs, new surveillance methods, new legislative mandates for Homeland Security,
inclusion of passenger and luggage search programs to other forms of transportation such as
bus and rail, and the growth of dramatically new technologies, will alter the notion of private
spaces and private actions. These technologies will be increasigly used by the private sector as
well as by government. These actions will reach into every aspect of life, including information
traditionally considered private, such as financial transactions, credit card purchases, and
telephone, education, employment, and health records. With surveillance and investigative
abilities and authorities already in the hands of federal agents prior to the PATRIOT Act, this
new combination of abilities and authorities may create a cultural reality where in another five
to ten years it might not be possible to remember what American life was like prior to
September 11.
(For a review of these and other developments, see Expanded Commentary for Charac-
teristic No. 12 at the end of this Part.)

***

366
 Part VI: The Next Six Elements of a National Security State

EXPANDED COMMENTARY ON CHARACTERISTIC NO. 7

Patriotism Moving to Nationalism
As explained, the “patriotism” that quickly appeared after the September 11 attacks and
continued throughout 2002 and into some of 2003, appears to have quelled somewhat.
However, a few incidents provide a disturbing glimpse of how strong and deep can be the
effects of such nationalism.
An example of how this “patriotism” has a discouraging effect on opposing views was the
controversy surrounding the 2003 Oscar ceremonies scheduled for March 23, soon after
Operation Iraqi Freedom began. It was well understood that Hollywood celebrities outspoken
against the war would not be welcome on the stage to announce awards.1 Indeed, boos and
hisses came from the audience when Michael Moore, receiving the Oscar for Best Documentary
Feature for his hard-hitting anti-gun feature, Bowling for Columbine, made comments against
President Bush and against the war. (Moore would make even bigger headlines with his
subsequent documentary, Fahrenheit 911, about the Bush Administration and the problems
behind the Iraq war, which became a must-see film in the Summer of 2004, and which
generated tremendous controversy including the controversy over its distribution when
Miramax, a film company owned by Disney, dropped the film from distribution requiring
Moore to seek out new distribution avenues, on top of the hundreds of invectives and insults
posted on Moore’s website by opponents of the film’s message once it was released.)
One of the more interesting minor controversies was the concern generated when a
member of the popular country music singing group, The Dixie Chicks, made a negative
comment about President Bush in March, 2003, just prior to the Iraq war, when the group was
in London.2 Some country music stations in America refused to play Dixie Chicks songs, there
were negative phone calls about the group to radio stations, and there was commentary from
newspaper and television columnists. Disc jockeys at a Colorado radio station were suspended
by the station when they locked the studio doors and played back- to-back Dixie Chicks songs
and took listener requests, as a show of support for the group and to protest the station’s
(short-lived) decision to ban the group from the station’s playlist.
Activists and media observers pointed to the influence of the radio conglomerate Clear
Channel, along with Cox Radio (Cox Communications) and Cumulus Broadcasting, in
pressuring stations to ban Dixie Chicks following the Bush comment. However, the situation
appeared to have subsided by the time the group played its first American concert after the
controversy, in Greenville, South Carolina, where the group was enthusiastically welcomed by
the audience at a sold-out event. There was also support from recording celebrities such as
Bruce Springsteen, who posted supporting statements on his official web site. The statement
included the comment: “Right now, we are supposedly fighting to create freedom in Iraq, at the
same time that some are trying to intimidate and punish people for using that same freedom
here at home.” Although the Dixie Chicks seem to have weathered the storm, that was chiefly
due to their enormous pre-existing popularity and successive chart-topping albums. The career
of a recording artist or group of lesser public stature might not have fared as well.

1. Among the celebrities supposedly blacklisted were: Susan Sarandon, Tim Robbins, Meryl Streep,
Sean Penn, Vanessa Redgrave, George Clooney, Dustin Hoffman, Spike Lee, and Edward Norton. The
program was broadcast under especially tight security measures. A 30-second advertisement on the
program, broadcast by ABC Network which is owned by Walt Disney Co., cost between $1.3 million and
$1.45 million.
2. The comment was, “Just so you know, we’re ashamed the president of the United States is from
Texas.” The group itself hails from Texas.

367
 No Greater Threat

In any case, to date this characteristic has not experienced major movement toward
nationalism. A further indication of that, is the tremendous growth across the country of the
anti-PATRIOT Act resolutions movement. That movement has to date generated more than 300
resolutions, ordinances, or similar actions in towns, counties, municipalities, and large cities in
every sector of the nation, including three State legislatures — with resolutions pending in
more State legislatures. The Administration has had to respond by extolling the PATRIOT Act
with a DOJ website, a multi-city tour by Attorney General John Ashcroft, and consistent
Congressional testimony proclaiming the PATRIOT Act from Ashcroft and other Adminis-
tration officials. Even with that, the anti-PATRIOT Act campaign continues.
Still another indication are various proposals in Congress to modify the PATRIOT Act,
restrict its scope, or include sunset clauses in additional provisions of the statute. Now that the
Bush Administration is returned to the White House, no such effort even if passed by Congress
would be approved by the President. Yet the presence of more than a dozen such proposals
manifests considerable divisions in Congress over the statute, reflecting public misgivings
(although this may not translate into actual reduction of PATRIOT Act authorities).
A few more cultural indications of a suspension of nationalist fervor are the success of the
film “Fahrenheit 911,” public trepidation over the situation at Guantanamo Bay, at least one
acquittal in a government terrorism case (al-Hussayen), the rather muted observance of the
third anniversary of September 11, and the lack of public outrage at the Supreme Court's anti-
terrorism decisions which carefully and critically examined limits of Executive Branch
authorities in the “war on terrorism.”
In general, after an immediate surge of about six to nine months following the September
11 attacks, and some patriotic periods in early 2003 and after the 2004 State of the Union
address, the country as a whole has not moved briskly from patriotism to nationalism. That
offers some positive observation in the concern over the emergence of a potential national
security state, but this is among the more changeable of national security state characteristics.
One shift, one event, could result in further movement in this area.

EXPANDED COMMENTARY ON CHARACTERISTIC NO. 8

Lack of Critical Response by Religions Denominations/
Religion in the Service of the State
(No Expanded Commentary)

EXPANDED COMMENTARY ON CHARACTERISTIC NO. 9

National Security Mentality and Permanent War Economy

Aspects of the growing national security mentality since the first anniversary of
September 11 have been noted in the discussion of Characteristic No. 1. The combination of
these developments along with additional statutes passed since the PATRIOT Act, new agency
regulations, and executive orders, bring the characteristic of national security mentality and
permanent war economy even beyond 100 per cent fulfillment, if that is possible.
There continues to be considerable public anxiety over the possible presence in the
United States of terrorists, lone wolf operators, members of terrorist groups, or “sleeper cells.”1
This anxiety, in part a legacy of September 11 and in part fueled by continuing government

1. “Terror Suspects With Denied Visas Could Be in U.S.,” New York Times News Service, June 19, 2003.
And “Illegal Immigration On The Rise As Sept. 11 Crackdown Relaxes,” New York Times News Service,
December 24, 2002.

368
 Part VI: The Next Six Elements of a National Security State

threat levels, agency warnings, and constant news of terrorist arrests and trials, is a major factor
in what seems to be an ongoing cycle of terrorist concern followed by terror investigation. The
homeland security mentality continues in several ways, in nearly every aspect of American life
even beyond establishment of the Department of Homeland Security. (See discussion under
Characteristic No. 1).
The government arranged new US-EUROPOL agreements in December 2001 and
December 2002, enabling the exchange between law enforcement agencies of trend data on
terrorism and personal data on terrorists. It is coordinating closely with designating terrorist
groups and freezing their assets.
Increased attention to seaports and cargo ships through a Container Security Initiative, is
underway through the Customs Service (now an independent division of the DHS) and other
DHS agencies. There are new search procedures in place to prevent containerized cargo from
being “exploited by terrorists.” The government is undertaking international efforts to
implement this program.
The government is permitting if not requiring State and local law enforcement to enforce
immigration laws and investigate and pursue illegal immigrants. The program is already
drawing controversy and criticism.1
In the No Child Left Behind Act, there are requirements that all public high schools
provide military recruiters with contact information on students, or risk losing federal funding.
Supposedly this was to respond to complaints by recruiters that up to 15 per cent of the nation’s
high schools are “problem” schools that do not allow access by recruiters. Students have a right
to withhold their information or records from being released to recruiters, but students are not
well informed of this exception.2
As indicated in the Comment at Close of 2004 for this Characteristic, any discussion of
developments since first the September 11 anniversary in the characteristic of national security
mentality and permanent war economy must include the Iraq conflict With a huge
commitment of troops, air support, and material, the U.S. (along with some allies, mostly
Britain), invaded Iraq to depose Saddam Hussein and put an end to supposed threats posed by
his regime, including potential development of nuclear and chemical weapons. The invasion
was preceded by literally worldwide protests and entreaties from numerous religious organi-
zations, as well as by the Pope, who said the war would be a “defeat for humanity.” Although
the time period of major engagement was only a matter of weeks, the situation is far from over.
Billions of dollars have been spent, and lives lost on all sides. Iraqi infrastructure was destroyed
or looted, including priceless artifacts from art and cultural museums.
What remains is a massive commitment of troops, billions per week being spent on the
occupation, difficult efforts to build a political structure, constant attacks by guerrilla forces,
and a still-destroyed infrastructure. By April, 2003, Congress had approved $79 billion for the
Iraq war effort, including $2.5 billion for Iraq reconstruction.3 Yet President Bush subsequently
requested another $87 billion to rebuild Iraq, in addition to a military budget of greater than
$360 billion. The Pentagon is seeking additional funds for special forces, including Army Green
Berets and Navy SEALS, for use in anti-terrorism operations.4 All of this spending is adding to a
federal budget deficit estimated at more than $300 billion for 2002 alone.

1. “Groups Fight Arrests of Illegal Immigrants by Municipal Police,” New York Times News Service,
April 14, 2003. According to government sources quoted in the report, there are an estimated eight million
illegal immigrants in the United States, of all nationalities.
2. “No Child Unrecruited,” David Goodman, Mother Jones, November / December 2002. From Internet
articles on truthout.org website, November, 2002.
3. “Congress OKs $79 Billion for War Expenses,” The Baltimore Sun, April 13, 2003, p. 23A.

369
 No Greater Threat

As also noted, the conflict in Afghanistan also continues, with further difficulties for
American troops. Reports depict a situation quite similar to Iraq, with a shaky civilian
government struggling to exert control over a dangerous and conflict-riddled countryside, with
even the capital city marked by occasional attacks or by assassination attempts on political
leaders. While rebuilding efforts are underway and it appears popular support for the new
Afghan regime is less volatile than at present in Iraq, the country presents another situation of a
long term commitment of American troops, supplies, funds, and material, also with no clear end
in sight.
The Pentagon has proposed a terrorism response force for NATO, comprising 21,000
fighters who could be deployed in a trouble zone within a week and sustain themselves for up
to a month. This “quick and agile” force would be comprised of various defense forces.1
To this must be added military spending, impending military tribunals, and U.S. conduct
that reduces the United Nations to a secondary role. The result is a national security mentality
and permanent war economy which, by all current indications, will continue indefinitely.
Also significant are seven major “National Strategy” policy documents issued since
September 11. The topics range from homeland security to infrastructures, to cyberspace and
money laundering. Adding the National Drug Control Strategy, which mentions terrorism, and
the annual Defense Strategy, brings the grand total of national strategy policy documents to
nine. A transportation security strategy commissioned by the Intelligence Reform Act will
bring the number to ten. Together they comprise an exhaustive exploration of what is
undeniably an intense attention by the central government to national security concerns. (Again,
for a brief review of these documents, see Appendix 6-B).

EXPANDED COMMENTARY ON CHARACTERISTIC NO. 10

Targeted Individuals and Groups
By far the clearest example of targeted individuals or groups domestically since the first
September 11 anniversary has been immigrants from Muslim countries, especially males. There
are numerous examples, from government activity and otherwise.
There was a roundup by the FBI of more than 1,000 suspected aliens immediately after September
11, mostly males of Arab descent. Some remain detained. The rest eventually were released,
criminally charged on some violation, or administratively processed for immigration violations
(some quite minor). A detailed review of the conditions of their confinement was the subject of
a much-publicized report by the Inspector General of the Department of Justice. That report,
noted elsewhere, sharply criticized poor or difficult communications between the various
agencies involved (such as Bureau of Prisons, INS, FBI, and CIA) and described the often
extreme conditions of confinement of these detainees.
There is the detention of males from Muslim countries, approximately 600, in Guantanamo Bay as
“enemy combatants.” They are facing military tribunals which are expected to begin before the end

4. “Big Increases Are Proposed in Budget for Special Forces,” The Baltimore Sun, January 8, 2003, p. 3A.
The Special Operations Command, established in 1987, helps control or oversee the Army Green Berets and
Delta Force, Navy SEALS, Air Force commandos, and some elite Marine units. The command has authority
to plan and execute its own operations, including surveillance and raids of various types. Another aspect of
this use by the Pentagon of elite squadrons with little civilian control is the increasing use of “private mili-
tary contractors,” arranged through private firms such as DynCorp, Vinnell, and MPRI (formerly known as
Military Professionals Resources, Inc., which for a time ran the military’s ROTC program at more than 200
universities). See Leslie Wayne, “America’s For-Profit Secret Army,” New York Times, October 13, 2002.
1. “Rumsfield Proposes Force to Respond to Terrorism,” Knight Ridder/Tribune News Service.

370
 Part VI: The Next Six Elements of a National Security State

of 2003. Amnesty International and other groups have issued reports critical of the conditions
of confinement of these detainees and the use of coercive interrogation practices which could
come under the definition of torture.
There is the Special Registration Program (also known as “Domestic Call-in Registration”),
put into effect by the Department of Justice and the INS in November, 2002. Special
Registration is part of the NSEERS program (National Security Entry-Exit Registration System
— another component of the system, port-of-entry registration, was being implemented at
entry-exit points and especially applies to visitors or immigrants from Iran, Iraq, Libya, Sudan,
and Syria). (Also see description of this program elsewhere in this 2004 update).
That program required male non-citizens aged 16 or older from more than 20 specified
countries to report to a local INS office between December 2002 and April, 2003.1 Their
immigration status was checked, they were required to answer questionnaires, and they were
fingerprinted and photographed.2 Immigrants from the named countries had various deadlines
to present themselves to INS offices. The program faced delays and confusion, and some
overreaching and mass arrests at some INS offices such as in Southern California, as thousands
of immigrants (totalling more than 80,000) sought to comply. Many of those facing legal
problems had already submitted paperwork on their immigration status, still pending at the
INS. The program was criticized for bias, lack of community outreach, and staffing problems
that contributed to delays.
Failure to participate in the registration program was a criminal offense. In addition to
the registration, all those who were part of the Special Registration program are required to
report to an immigration office within 10 days of the time of their initial registration, and if they
are to leave the country, must undergo a departure check at one of 100 designated sites on the
day of departure. As a result of the Special Registration program, more than 13,000 of the 82,000
Arab and Muslim men who were required to register with immigration authorities may face
deportation, due to visa violations or other problems.
There are new visa screening procedures in which males 16 to 25 from Arab states and other
Muslim nations will be required to answer a special, additional visa questionnaire and wait an
additional 20 days for processing. Further, many Arabs and Muslims, especially young men, are
having difficulty obtaining or extending visas.
There is an “Absconder Apprehension Initiative” which has targeted an estimated 314,000
foreign nationals who are still in the United States even though they have received deportation
orders (mostly for overstaying visa periods). There are “apprehension teams” of agents from the
FBI, INS (DHS), and other agencies are seeking out these “absconders” for arrest and
deportation.3 (See also mention of this program in Comment for 2004 at end of Part III).

1. The identified countries were: Iraq, Iran, Lybia, Sudan, Syria (First Group); Afghanistan, Algeria,
Bahrain, Eritrea, Lebanon, Morocco, North Korea, Oman, Qata, Somalia, Tunisia, the United Arab Emirates,
and Yemen (Second Group); Saudi Arabia and Pakistan (Third Group), and Bangladesh, Indonesia, Egypt,
Jordan, and Kuwait (Fourth Group).
2. New York Times, June, 2002. According to the story, deportations of immigrants from Asian and
African countries have risen by nearly 27 per cent in the last two years. In that same time period, the
numbers of deportations of immigrants from Pakistan, Jordan, Lebanon, and Morocco have doubled, while
deportations of immigrants from Egypt have tripled.
3. The problem especially was noted when officials had trouble finding or tracking some immigrants
to be interviewed or even interrogated following the September 11 attacks. A GAO report of November,
2002 revealed that the government could not find nearly half of the 4,112 registered immigrants being
sought for either general questioning or further investigation. See, Associated Press, “Government Loses Track
of Registered Immigrants,” November 22, 2003.

371
 No Greater Threat

There is the requirement that all post secondary schools in the nation must now track foreign
students under the SEVIS program (Student and Exchange Visitor Information System). The
information to be put into this database will include the student’s name, age, address, major
course of study, and student standing.1 Foreign students returning to the United States are
subjected to additional screening and delays.2
In June, 2002, DOJ issued a directive (apparently for a limited period) that the INS and
Customs should seek out and search all individuals of Yemeni origin passing through entry-exit points in the
United States. Many of these persons were removed from planes before departure even after
passing through security checks, or items were removed from luggage without explanation, or
they were subjected to other indignities.
Some American citizens who are Muslims, upon re-entering the U.S. from religious
pilgrimages, including holy sites in Saudi Arabia, being faced with difficult or hostile treatment
at immigration checkpoints. There were several reports of delays and other problems.3
There is the poor treatment of young aliens entering the United States, often from Muslim
countries, who are subjected to strip searches, jail cells, and possible solitary confinement while
processed. Some changes in this widely-criticized situation were mandated by the Homeland
Security Act, which shifts responsibility for unaccompanied children to a new Office of Refugee
Resettlement in the Department of Health and Human Services.4 Congress is considering a bill
to require that unaccompanied children be transferred to this Office of Refugee Resettlement
within 72 hours of arrival and receive legal representation.
There is the surveillance or interviews by the FBI of Iraqis living in the United States, during the Iraq
war, either for intelligence purposes or to determine if there would be any domestic
repercussions from these persons to Operation Iraqi Freedom. The interviews, involving more
than 10,000 Iraqis, were conducted almost around the clock by FBI agents.5 By this activity, a
given ethnic group or persons with a particular nationality were singled out for government
questioning. It is possible that the interviews were a means to establish a national database on
individuals of Arab nationality.
Further surveillance is being conducted by the FBI of hundreds of Arab nationals
supposedly suspected of terrorist ties. The campaign involves every major FBI office in the
country and often includes monitoring of telephone calls, e-mail messages, and Internet use, in
addition to scrutiny of credit card transactions, travel, and visits to gathering places such as
mosques.6
Then there is the long series of hate crimes, hostility, reactions, conduct, as well as government action,
against persons of Arab or Muslim nationality, occurring nationwide since September 11, and which

1. “New Database Tracks Foreign Students,” Associated Press, February 15, 2003, describing the SEVIS
program, which was initiated in 1996 but received additional expansion, attention, and funding in the USA
PATRIOT Act.
2. “Foreign Students’ Return Stalled by U.S. Screening,” Associated Press, September 1, 2002. The
report said that the Bush Administration is implementing a program to check foreign students closely if
their expertise could possibly be used in an attack against the United States, such as students studying
biochemistry, nuclear physics, and missile telemetry and who are travelling from suspect countries.
3. “Muslim Ritual Pilgrimages End With Nervous Returns to U.S.,” New York Times News Service,
February 16, 2003.
4. “Young Aliens Said To Be Ill-Treated,” New York Times News Service, June 19, 2003.
5. “FBI Ends Interviewing of U.S. Iraqis; No Spies Found,” Associated Press, April 18, 2003. The inter-
views began March 20 and continued for nearly a month, concentrated on Iraqis who had ties to the
Saddam Hussein regime or who had recently travelled to that country. According to the FBI, the interviews
resulted in “important information” for the war effort. And see, “Iraqis Under Surveillance As Potential
Threats,” New York Times News Service.

372
 Part VI: The Next Six Elements of a National Security State

resonate through uneasy public attitudes of suspicion and mistrust. A painstaking report
describing such incidents (between September 11, 2001 and October 11, 2002) published by the
American-Arab Anti-Discrimination Committee, comprises nearly 150 pages of two-column,
single spaced detail of these incidents, of all kinds and descriptions.1 They include: racial
profiling and discrimination at airports resulting in interrogations or missed flights (including
an Arab-American member of the Secret Service assigned to the President), absurd arrest or
temporary detention circumstances, denials of service at stores and restaurants, anonymous
telephone harassments and threats, educational discrimination against students of Arab
nationality or Islamic schools, employment discrimination and summary firings, police
misconduct toward Arab nationals, at least one hate crime murder of an Arab national, and
property damage, defacement, or arson against homes, businesses, or worship sites owned or
operated by Arab nationals.2
Some of the threats and graffiti were extreme, such as “We are going to kill you all,”
“You’re going to die,” “Let’s kill all the ragtops,” “Kill all towel heads,” and “Rot in hell forever.”
Many incidents were underreported or not reported. Granted, the vast majority of these
incidents occurred in the three months between September 11, 2001 and December 11, 2001, and
by and large there has not been any widespread ethnic backlash against Arab Americans. But
the persistence of a negative atmosphere in some attitudes towards persons of Arab descent is a
disturbing trend which must be addressed.
It also has not helped that a few Administration officials have utilized the term “terrorist
organization” in ways not intended. A controversy was sparked in early 2004 when Secretary of
Education Rod Paige called the National Education Association, with 2.7 million members, a
“terrorist organization.” The comment was supposedly an expression of frustration with the
reluctance of the NEA to support some of the Administration’s efforts in the education field,
and it was quickly followed by an apology and a White House retraction.3 Yet it is an indication
of the serious effects of the use of that term in a post September-11 world.
There was the additional story of the woman who took photos of coffins of soldiers killed
in Iraq and was fired from her employment with an American air transport company that
employed her to work at the Kuwait International Airport. The photograph showed more than
20 flag draped coffins in a cargo plane about to depart from Kuwait. Since 1991, the Pentagon
has banned the media from taking pictures of caskets being returned to the United States.4

6. “FBI Tracks Hundreds Suspected of Links to al-Qaida, Terrorism,” New York Times News Service,
October 6, 2002. This surveillance is being conducted even though the FBI state there is no evidence of any
immediate terrorist threat posed by these individuals. One unnamed official was quoted as saying, “The
terrorists don’t know it, but we’re listening in all the time.”
1. “Report on Hate Crimes and Discrimination Against Arab Americans: The Post September 11
Backlash” (September 11, 2001 to October 11, 2002). American-Arab Anti-Discrimination Committee
Research Institute. (see also www.adc.org).
2. According to the report, in the month of September, 2001 alone, total incidents of all types
exceeded reported incidents for the two year period prior to the September 11 attacks (see report, p. 47).
Interestingly, many of these incidents were directed against Sikhs, who although they have beards and wear
turbans, are not Arabs but are of Indian descent, and are not Muslims. Other incidents were directed at
Palestinians, who are often not Muslims. Still other incidents were directed against Iraqis, although even
the United States government has stated that there was no connection between the Iraq government of
Saddam Hussein and the September 11 attacks.
3. Associated Press, “U.S. Education Chief Says Teachers Union Is `Terrorist’ Group,” February 24, 2004.
The Education Secretary said that the comment, made to the nation’s governors at a private White House
meeting, was an “inappropriate choice of words” and a “bad joke.” NEA reaction was swift and extremely
critical.

373
 No Greater Threat

Further movement along this Characteristic of individuals being singled out and groups
being profiled and watched, will surely be an indication of a national security state.

EXPANDED COMMENTARY ON CHARACTERISTIC NO. 11

Direct Attack on Dissent
Some individuals or groups also being brought to task by the United States government
for their supposed anti-government opinions or activities include Americans who have travelled
to Iraq in the period between the Gulf War and the current conflict or who have attempted to
visit the current situation. An organization known as Voices in the Wilderness, begun by Kathy
Kelly and others, conducted numerous visits to Iraq when Saddam Hussein was still ruling the
country and while its population was enduring the economic sanctions (vigorously supported
by the United States government). The visits were intended to offer support and assistance to
Iraq population regarding the effects of the sanctions and to make first hand reports of those
effects once returning to America. The group is facing stiff government fines, amounting to
$20,000, for making these trips which were prohibited or restricted by the United States.
Other visits by U.S. citizens, even during the current conflict, were intended to offer
similar support to the Iraqi citizenry, and received similar government response. One notable
instance is Faith Fippinger of Florida, a 62 year-old retired schoolteacher who traveled to Iraq
in the Spring of 2003. She was notified by the Treasury Department that her actions were
illegal, and now faces possible high fines or jail time.1 Another incident involves Judith Karpova,
58 years old, who was with Faith Fippinger in Iraq and is also the subject of a Treasury
Department inquiry. Still another incident involves Ryan Clancy, 26, of Milwaukee, who spent
three weeks in a rural area northwest of Baghdad and upon return to the U.S. is facing huge
fines and penalties for his supposedly illegal activities. The activists note that their trips were
not in any way intended as a support for the Hussein regime in Iraq.
Various incidents continue to occur of individuals questioned or detained on even the
flimsiest suspicion of "terrorism." There are even reports of library patrons, college students or
college professors placed under suspicion for saying or doing something that seemed
suspicious.2
Among the concerns of a direct attack on dissent is the presence of names of activists or
peace movement figures or organizers, on a “no fly list” which is maintained by government
authorities. Numerous stories are developing of the use of the “no fly” list, especially in the San
Francisco area airport, to deny boarding to individuals who are connected to anti-government

4. The woman, Tami Silicio, said that she was totally surprised by her firing. The company, Maytag
Aircraft, also fired Tami’s co-worker and recent spouse, David Landry. Silicio, 50, is from Washington State
and previously worked as an events decorator and as a truck driver. She said that she intended the photos to
“help families of fallen soldiers understand the care and devotion that civilians and military crews dedicate
to the task of returning the soldiers home.”
1. See “Fear As Human Shield Faces Jail,” found on the Common Dreams web site and presenting a
report of September 21, 2003 by the BBC.
2. According to some reports concerning incidents in early 2003, which at this writing have not been
independently confirmed, a student at a college in New Mexico was removed from the college library and
later questioned by police and Secret Service, but released without charge, after he supposedly made nega-
tive comments about President Bush in an online chat room, which police or Secret Service agents somehow
learned about almost immediately. A library patron in New Jersey was questioned because someone
reported to police that he was looking at a foreign-language web page. A California student was questioned
by the FBI, soon after she had a telephone conversation about a video game which featured bomb icons. See,
“For Those Who Wish to Dissent: Speech, Silence and Patriotism,” Sara Paretsky, Chicago Tribune,
September 21, 2003.

374
 Part VI: The Next Six Elements of a National Security State

activity. Two particular organization, Global Exchange in California and Peace Action in
Wisconsin, appear to have been specifically identified for the “no fly” list, and those involved
with the organizations or events have been stopped at airports and in some instances denied
boarding.1 According to reports, an official at TSA has said there was no way of ensuring that
persons on the list were not placed there solely because of their statements or associations, and
could not describe any procedure for being removed from the list. The ACLU has filed a lawsuit
challenging the “no fly” list, seeking records under the California and federal freedom of
information acts, and demanding that with no ties to terrorism and engaged in purely First
Amendment activity be removed from the list.
According to some reports, similar lists are being compiled internationally, in countries
like Mexico and Britain. Members of groups opposed to the World Trade Organization and the
World Bank are supposedly placed on this list.
Some police and government agencies have engaged in overzealous behavior concerning
protest activity, including hostile conduct, arrests without cause, and long detentions. Some
reports have come from incidents in California by police based on supposed information from
the California Anti-Terrorism Information Center. The Center is also building files on “non-
traditional criminal extremist groups” such as the Earth Liberation Front, Earth First!, and the
Animal Liberation Front, both linked to violent incidents in advancement of their cause. There
were reports of police conduct against protesters during the February, 2003 march in New York
against the impending Iraq war (with a federal appeals court upholding a denial of a permit to
march near the United Nations), and in Washington, D.C.
In one incident, a 65 year-old arrested at a local appearance of President Bush was
acquitted of all charges and his protest sign was returned. The judge criticized the police for the
arrest and disorderly conduct charge for refusing to go to a fenced area reserved for protestors.2
A photographer was arrested in Denver for taking pictures of a building where Vice President
Dick Cheney was residing. He was accosted by Denver police and told to give up his camera and
film, but later released after three hours, although his camera was not returned.
There are situations of college campuses, even Harvard Law School, considering a ban on
“offensive speech” and other campus imposing “free speech zones” to which any political
protest activity would be restricted.3 A dispute was touched off at the University of North
Carolina over a course assignment that included readings from the Quran. Interest in “peace
courses” in high schools and colleges continues to be controversial.4

1. See A.C. Thompson, “They Spy: How Law Enforcement is Keeping Tabs on the New Peace Move-
ment,” November 21, 2002, about six members of a Global Exchange program en route to Afghanistan,
approached by six FBI agents and taken off a plane about to depart from Newark airport, and questioned
for six hours about their travel plans and about the group. And see “More Anti-War Activists Snagged by
`No-Fly’ List,” The Progressive, October 16, 2002; “US Anti-War Activists Hit By Secret Airport Ban,” Andrew
Gumbel, The Independent, August 3, 2003 (from Internet sources). The story noted travel difficulties of two
persons, Rebecca Gordon and Jan Adams, who work for a small pacifist magazine called War Times, an
activist attorney who was strip-searched at airports, and a 71 year-old nun from Milwaukee who was
denied boarding for a flight to join an anti-war protest in New York. The problem appears to also affect
right-wing groups, such as members of the Eagle Forum.
2. “Police Scolded As Bush Protestor Acquitted,” Post-Gazette, October 31, 2002.
3. “Harvard Law Considers Ban on Offensive Speech,” Associated Press, November 22, 2002. And
“Students Take Universities to Court Over Free Speech,” Associated Press, May 30, 2003. These free speech
zones have been imposed at several colleges including the University of Texas at El Paso and University of
Houston. Some colleges have modified or abandoned the program. Others are considering speech-related
campus regulations.
4. See “Peace Courses Stir Controversy,” Los Angeles Times, July 18, 2003, and “College Argues Study of
Quran Free-Speech Right,” Associated Press.

375
 No Greater Threat

In another incident, the government canceled the visa of a professor who was to begin
teaching at the University of Notre Dame. He was a Muslim scholar who had been teaching in
Switzerland. Supposedly, he was singled out for alleged links to Muslim militants and alleged
anti-Jewish remarks.1

EXPANDED COMMENTARY ON CHARACTERISTIC NO. 12

Increased Surveillance of Citizenry
One of the more troublesome developments in foreshadowing even further surveillance of
the citizenry is the establishment in the Intelligence Reform Act of a new intelligence and
surveillance agency, the National Counterterrorism Center. This agency, if given further
authorities, could be a focus of domestic surveillance, comparable to the FBI. An expanded
version of the NCTC was among nearly 60 recommendations made by a federal commission
making a fourth annual report to Congress on security concerns.2 Some of these proposals were
reflected in recommendations included in the Report of the 9/11 Commission. These trends
resulted in the overhaul of intelligence agencies through the Intelligence Reform and Terrorism
Prevention Act of 2004 (summarized in this 2004 edition). As indicated, the National Counter
Terrorism Center established in the Intelligence Reform Act does not have the features of a
domestic intelligence agency, but those proposals continue to be made or considered in
Congress.
Other similar proposals include a new separate domestic intelligence agency, to take over
certain intelligence and surveillance activities conducted by the FBI.3 FBI and Administration
officials initially resisted the idea, stating that the FBI can conduct this activity effectively.4 But
that view may be changing.
This is already in addition to increased funding and activities of other intelligence
agencies such as the CIA, the National Security Agency, the National Reconnaissance Office,
the Defense Intelligence Agency, and related programs within the armed services. The Senate
intelligence committee has approved a measure to increase funding for these agencies and to
compile a government-wide “watch list” of terrorist suspects, which would have broad
parameters.
According to a report issued by one advocacy group, there are no less than 14 government
data surveillance programs underway, including the re-named “Terrorism Information
Awareness” program (originally the widely-criticized “Total Information Awareness” program)
of the Department of Defense Advanced Research Projects Agency.5 The group noted that these

1. Associated Press, “U.S. Denies Visa for Notre Dame Scholar,” August 23, 2004. The story concerned
Tariq Ramadan, who had been teaching at the College of Geneva and the University of Fribourg and who
“has gained a popular following among European Muslims in showing how Islamic values such as freedom
and tolerance are compatible with those of secular European society.” He had been called a “bridge builder”
for these views. Ramadan had been named as the Henry B. Luce Professor of Religion, Conflict and Peace-
building at the Kroc Institute for International Peace Studies at Notre Dame. Some other circles such as
persons affiliated with the American Jewish Committee criticized comments he made in an article posted
on a Muslim web site suggesting that the views of certain French intellectuals on Israel and the war in Iraq
were swayed by the concerns of Jews. His visa was revoked on the request of the Department of Homeland
Security.
2. “Panel Proposes New Surveillance, Intelligence Agency,” Associated Press, December 17, 2002.
Among the other recommendations are a separate commission to study ways to improve infrastructure
security, and security attention given to American farms and food supply.
3. See, “Someone to Watch Over You,” August 3, 2003, special section.
4. “Domestic Intelligence Agency Gains Support,” The Baltimore Sun, December 10, 2002, p. 3A.

376
 Part VI: The Next Six Elements of a National Security State

programs as well as other concerns about post September 11 privacy can be organized in eight
categories: FBI infiltration of political and religious groups, Internet and e-mail monitoring,
greater wiretapping authorities, FBI access to library and bookstore records (as well as other
business records under Title II of the PATRIOT Act) sneak and peek warrants (another Title II
authority), video surveillance, data surveillance, and monitoring of attorney-client communi-
cation. According to the report, a GAO study revealed nearly 200 data mining projects among
52 executive branch agencies, with 122 that collect and store personal information, 54 that
“mine” private sector data, and 14 that involve collecting and analyzing intelligence information
and detecting suspected terrorists — seven of these mine personal information. There are seven
other projects not in the GAO report which also involve data mining.
The 14 information-gathering government programs described by the report (some of
which have been mentioned elsewhere) are:
1. Terrorism Information Awareness: believed now to be conducted “underground” by the
Pentagon after Congress in September, 2003 cut the funding following public criticism of the
original Total Information Awareness project.
2. CAPPS II (now to become “Secure Flight”): An airline passenger screening system. Also
discussed elsewhere in the 2004 Commentary material.
3. Multistate Anti-terrorism Information Exchange System (MATRIX): A database
system involving participating State agencies to share information such as criminal history,
vehicle registration, driver’s license, and photos. The program goal is to operate in all 50 states,
but only five State currently participate.
4. Student Exchange Visitor Information System (SEVIS): Obtains and monitors
information about foreign students and exchange students in the United States for educational
purposes. As many as 230 different pieces of information on any one person can be collected by
the system, and the system supposedly is used to identify potential patterns of criminal
activity.1
5. US Visitor and Immigrant Status Indicator Technology (US-VISIT): Already been
implemented is soon coming into full swing. Civil liberties groups have criticized it and the
extent to which information can be stored and use.2
6. National Security Entry-Exit Registration System (NSEERS): This involves registering
for non-immigrant visitors who are male, 18 years or older, and from a country identified as a
high risk for terrorism. The “Special Registration” program was part of NSEERS, although some
requirements of this program continue. It is expected that NSEERS in turn will become part of
US-VISIT. So far, no person identified by this system has been charged with any terrorist crime.
7. Verity K2 Enterprise: This program, operated by the Defense Intelligence Agency, uses
data from intelligence agencies and internet searches to “identify foreign terrorists or US

5. See “Total Information Awareness & Beyond: Threats to Privacy in a Post 9-11 America,” from the
Bill of Rights Defense Committee, www.bordc.org. This BORDC paper, by Shannon Anderson, details the
14 programs or government efforts. The report mentions the GAO study, “Data Mining: Federal Efforts
Cover a Wide Range of Uses,” GAO-04-548, submitted to the Ranking Minority Member of the Senate
Subcommittee on Financial Management, the Budget, and International Security of the Committee on
Governmental Affairs.
1. According to the BORDC report, the SEVIS program cost $28.2 million in FY 2002 and 2003, with
DHS planning to spend an additional $9.6 million by October 1, 2004. The report mentions the user fees to
be imposed by the system, which is noted elsewhere in the 2004 Commentary on SEVIS.
2. The BORDC report notes that the US-VISIT program cost $380 million in 2003, with $330 million
allocated for FY 2004, and DHS is seeking $340 for FY 2005. The report also notes the Accenture contract
to expand and operate the system over the next decade, which can be worth $10 billion at current yearly
budget figures. See also discussion of US-VISIT in the Commentary for 2004 at end of Part IV.

377
 No Greater Threat

citizens connected to foreign terrorism activities.” The extent of the program or budget figures
are not available.
8. Analyst Notebook 12: A database software program developed by a British firm and
used in public and private sectors, supposedly as a crime fighting system
9. Pathfinder: Another database software program used by the U.S. Army, and by 18
government agencies, analyzing personal information. Both Analyst Notebook 12 and
Pathfinder were in use before September 11.
10. Project Strikeback: A program in use by the Department of Education but connected
to the FBI, supposedly to investigate financial aid fraud and skips.
11. Case Management Data Mart: Used by DHS Directorate of Border and Transportation
Security to review law enforcement cases and status of cases. However, the necessity for and
extent of this program are not clear.
12. FBI Project — Secure Collaborative Operational Prototype Environment (SCOPE):
This program mines personal information and data from government agencies and other sources
as a crimefighting system. The system can search multiple information sources including
surveillance videos, forensic reports, case files, terrorist watch lists, wiretaps, local police arrest
reports, credit card transactions, and bank records. In January, 2004, the program was replaced
by the Investigative Data Warehouse (IDW).
13. FBI Project — Foreign Terrorist Tracking Task Force (FTTTF): Designed to deny
entry to the United States of aliens associated with, or suspected of being engaged in or
supporting terrorist activity, and locate and detain any terrorism suspect already in the United
States. The system utilizes date from over 40 sources including files from DHS, FBI, and private
sector.
14. Joint Regional Information Exchange System (JRIES): An initiative to increase
information sharing among federal, state, and local law enforcement. Originally utilized by DIA,
it was transferred to DHS in February, 2004 (although a DOD employee remains the system
manager). There is no mandatory duty by an agency to provide information, but information
requests can be made from one agency to another. [RISSNET is another system of similar type.]
In addition to all of this, as has been noted elsewhere, is the FBI’s “Carnivore” program,
now called DCS 1000, which can search Internet e-mails when attached to an ISP’s servers. The
FBI continues to make use of “Carnivore” or programs like it, which continues to be criticized,
including indicates that it is not functioning quite as well as the FBI represents.1
Another related program is “Magic Lantern,” a type of “keylogging software” which can
break or bypass computer encryption codes and can read data encrypted or scrambled, which is
an obstacle to search programs like Carnivore. The program can reach into a computer with a
virus-type search-and-record program that creates a hidden record in the computer of every
keystroke made on that computer’s keyboard. Such a program could even be “planted” on a
computer during a “sneak and peek” visit by government authorities to a home or business.2 Or
it could be sent to a computer through an e-mail attachment.

1. See Electronic Privacy Information Center release, “FBI’s Carnivore System Disrupted Anti- Terror
Investigation” subtitled, “Internal Memo Calls Over-Collection of Data Part of `Pattern’ Showing `Inability
of the FBI to Manage’ Foreign Intelligence Wiretaps,” May 28, 2002. The release noted, “Since its existence
became public in 2000, the Carnivore system has been criticized by EPIC and other privacy groups, as well
as members of Congress, because it gives the FBI unprecedented, direct access to the data networks of
Internet service providers. The FBI has publicly downplayed the system’s potential for over- collection of
private communications, although internal documents released earlier to EPIC confirmed such a risk. An
independent review of Carnivore commissioned by the Justice Department also found that the system is
capable of `broad sweeps’ and recommended technical changes to address the problem. Neither DOJ nor
FBI has indicated publicly whether those recommendations were ever implemented.”

378
 Part VI: The Next Six Elements of a National Security State

The program or its keystroke information can later be downloaded or accessed by agents
for analysis. The information would contain passwords or other encryptions keys utilized by
the computer user. The FBI can then get into password-protected or encrypted computer files.
The ACLU reviewed the current situation of domestic spying and increased surveillance
in a report “Bigger Monster, Weaker Chains: The Growth of an American Surveillance Society,”
in 2002.1 The report details numerous situations where surveillance society is increasing,
including video surveillance, central or integrated surveillance linking surveillance systems
which could even include department stores and ATMs into an integrated government
network, not to mention surveillance cameras at other locations such as airports, banks, and
government buildings.
The ACLU report notes eavesdropping programs used by government agencies such as
“Carnivore” (DCS 1000) and “Echelon.” Of equal concern, and noted in the report — although
generally outside the scope of the present discussion — is the erosion privacy in health records,
consumer credit information, and financial records and transactions.
The FBI also has launched a $600 million computer system called Trilogy to create a
massive database on American citizens, according to reports. The system has massive capability
and may be used to compile more than 20 million agency records. The Justice Department
recently exempted the National Crime Information Center database from the Privacy Act,
which will make the database more secret.
Further than these developments, airline security in both pre-flight activity and
passenger screening, is reaching new levels. The DHS Bureau of Customs and Border Protection
and the Transportation Security Administration may allow commercial airlines access to sensitive
criminal background data maintained by the federal government.
The DHS’ CAPPSII (Computer Assisted Passenger Prescreening System) program, soon
to become “Secure Flight” (formerly CAPPS II), will examine passenger identification and
airline passenger name records, to be checked against government databases such as criminal
databases like the NCIC and the Violent Gang Terrorist Organization File (VGTOF) (an FBI
list of suspected terrorists).2 As has been noted, the passenger is given a color code: “green
indicating no additional airport screening, “yellow” for additional screening, and “red” barring
the person from boarding and possibly referring the person to law enforcement.
As advocacy groups have pointed out, this color-coding system, poses serious civil
liberties and practical problems. Among them is uncertainty over what can be done by someone
coded “yellow” or “red” who wishes to challenge that code or the information used to determine
the code. There are also problems that the system could infringe on First Amendment activities
and on the well-established constitutional right to travel.3 (And see 2004 Commentary
following Part IV).
Also as noted elsewhere, the Administration continues to seek broader authorities,
similar to in “PATRIOT Act II.” These include administrative subpoenas, swift detentions,

2. See Nat Hentoff, “The FBI’s Magic Lantern,” The Village Voice, May 24, 2002. And also see Bob
Sullivan, MSNBC, “FBI Software Cracks Encryption Wall,” November 20, 2001. The MSNBC article noted
that some of the information related to Magic Lantern was obtained by the Electronic Privacy Information
Center through documents made available in a Freedom of Information Act lawsuit.
1. See “Bigger Monster, Weaker Chains: The Growth of an American Surveillance Society,” Jay
Stanley and Barry Steinhardt, ACLU Technology and Liberty Program, December, 2002.
2. According to the Justice Department, a person’s name may be entered into the VGTOF if there is an
open terrorism case or if the FBI Terrorism Watch and Warning Unit has determined the person to be of
“special interest” to the FBI Counterterrorism Division. Information concerning that decision may come
from terrorism investigations, particular leads, informants, electronic surveillance, and information shared
with other federal, State, and local law enforcement agencies.

379
 No Greater Threat

holding without bail those arrested for terrorism charges and awaiting trial, and death penalty
for certain terrorist crimes.1
This increased intensity toward terrorist crimes along with increased administrative
information gathering powers, will surely result in increased citizen surveillance. Covert
searches of all kinds are steadily increasing. In an annual report to Congress from the Justice
Department itself, the Department said that it obtained authorization for electronic
surveillance and physical searches in more than 1,700 intelligence cases, compared to 1,200 in
2002 and 900 in 2001. The increase from the 2001 figures is nearly 100 per cent. There is
increasing concern that use of these authorities under the Foreign Intelligence Surveillance Act,
as expanded by the PATRIOT Act, allows the government to bypass stricter requirements for
searches in standard criminal cases such as the requirement of a showing of probable cause, and
erode Fourth Amendment protections against illegal searches.2
As noted in other sections, information sharing between law enforcement agencies has
become a byword of the “war on terrorism.” New systems are being put into place to allow
greater information sharing among these agencies and access by local law enforcement to
federal agency information databases.3 Yet, Administration officials have not noted an instance
in which any delays or problems in obtaining information through existing law, including the
expanded powers granted by the PATRIOT Act, has slowed or impeded a terrorism investi-
gation.
There are reports that beyond the problem of Denver police keeping files on protestors
and activists,4 there may be other surveillance programs in other municipal police agencies,

3. Similarly, the BORDC report points out Fourth Amendment problems in the extent of these private
information searches, lack of coverage by current statutes such as the Privacy Act over use of data by or
among private agencies and use of privacy agency data by the government, the problem of “false positives”
(noting one instance in which the MATRIX program “flagged” 120,000 people in Florida as being likely
terrorists even though law enforcement agencies claimed that numerous arrests were based on this infor-
mation), and the absence of statutory privacy protections for non-citizens. The report notes, “current laws
and regulations, and even the Constitution, do not adequately protect citizens against the dangers of these
projects.” It notes, “If a mistake is made, the ramifications for personal liberty and privacy may be enor-
mous” resulting in surveillance or possible life-altering arrest, detention, or prosecution. Thus, “Without
clear guidelines for agency action, many of these programs pose a real threat to our privacy and liberty.” The
project notes concerns raised by several advocacy organizations or other groups, such as the Electronic
Privacy Information Center (EPIC), the Center for Democracy and Technology, ACLU, and Technology and
Privacy Advisory Committee (TAPAC). The recommends more extensive public information, pressure on
Congress to oversee these activities, public insistence on open government, reporting to Congress by
government agencies of the uses of these systems and their purposes, and better internal agency regulation
and management of the systems.
1. While the PATRIOT Act imposes stricter sentences of up to life for some terrorist crimes, it does
not impose the death penalty.
2. Los Angeles Times, “Covert Searches Up 85% Since ‘01,” May 2, 2004. The story noted that “The burst
of activity is a direct result of the easing of standards for intelligence gathering that was authorized by the
Patriot Act, the terror-fighting law enacted by Congress weeks after the attacks on the Pentagon and the
World Trade Center.” The story added, after noting that this information can be used in criminal cases and
is less subject to challenge, “if the intelligence searches do not lead to criminal prosecutions, the targets are
never told that they were under surveillance: in criminal cases, suspects must receive notice of any surveil-
lance even if they are never charged.”
3.Associated Press, “U.S. Sharing of Databases Raises Issues of Civil Liberties,” June 1, 2004, discussing a
new first-in-the-nation system to give local police in New York and Vermont “instant access to federal files
on terrorism.” The system will allow state and local police to check 12 databases maintained by federal
agencies and provide officers with a “direct line” to federal agents to report suspicious activities. The story
notes an ACLU comment that “In the drive to collect data and share it, there has been a neglect of the safe-
guards that are absolutely essential to protect us from the misuse of information.”

380
 Part VI: The Next Six Elements of a National Security State

such as Los Angeles. According to reports, a police official in Los Angeles said that files are kept
on anti-war or protest organizations if police have a “reasonable suspicion to believe that there
may be a potential for significant disruption of the public order.”1 In 2001, in an ominous
development in this direction, the Court of Appeals for the Seventh Circuit (located in Chicago)
overturned a consent decree that had been in place for years, which had restricted political
spying by police, and a similar action was taken in New York. There is Congressional action to
allow increased government surveillance on so-called “lone wolf” terrorists, who are not United
States citizens, under an even more expanded authority in the Foreign Intelligence Surveillance
Act.2
All of this is occurring in the wake of serious deficiencies in government agencies pointed
out by the Inspector General Report on the September 11 detainees, the joint House-Senate
intelligence committee report on supposed September 11 intelligence failures, and an internal
memorandum made available to the press that describes improper actions and lapses at the FBI.
The memorandum listed 15 improper actions in the FBI over the first three months of 2000,
where the agency illegally videotaped suspects, intercepted e-mails without court permission,
wrote warrants with wrong addresses, allowed surveillance to continue beyond deadlines, and
recorded the wrong telephone conversations during sensitive terrorism or espionage investi-
gations.
While the national TIPS program announced by President Bush has been abolished (by
the Homeland Security Act) in the wake of criticism, and the Total Information Awareness
Program was defunded by Congress due to similar criticism, there are similar programs
occurring statewide.3 Additional surveillance will be conducted by the re- named Terrorism
Information Awareness program4 and by programs yet to be developed by the advanced
research arm of the Department of Homeland Security, HSARPA (Homeland Security
Advanced Research Projects Agency).
Operation Liberty Shield, initiated by the Department of Homeland Security, involves
stopping cars at airports, checking identification of truckers who transport hazardous
materials, and monitoring the Internet and financial transactions. Some of this monitoring is
permitted or authorized by the PATRIOT Act and by the Homeland Security Act, as well as
other legislation, and Justice Department guidelines. The Department of Homeland Security is

4. see “Hundreds Seek `Spy Files’ in Denver,” The Baltimore Sun, September 12, 2002, p. 4A. The
computer database was created when Denver police reviewed about 100,000 rolodex files and transferred
the information to a computer system. City officials have demanded that the file system be shut down, but
it is unclear whether the surveillance will continue. For a more detailed review of the Denver situation, see
“Critics of Police Spying Sue Denver,” The Baltimore Sun, January 29, 2003, p. 3A. And, “Going Electronic,
Denver Reveals Long-Term Surveillance,” New York Times, December 21, 2002.
1. “Government Easing Restrictions on Police Surveillance of Citizens,” The Associated Press, April 8,
2003. Similar files and surveillance by police may be underway in San Francisco, Chicago, New York, and
Washington, DC, due in part to the changes in previous “consent orders” affecting political spying by police
in these jurisdictions. Similar efforts may be made in Seattle and Portland. Use of undercover officers
attending meetings of protest organizations may also be on the increase. See “Domestic Spying Pressed: Big-
City Police Seek to Ease Limits Imposed After Abuses Decades Ago,” The Washington Post, November 29,
2002, p. A1.
2.A Senate measure permitting such further surveillance was approved by a vote of 90 to 4 (sponsored
by Sens. John Kyl (R-Ariz) and Charles E. Schumer (D-NY). Senator Schumer said that no liberty rights are
given up by the measure.
3. “Ashcroft’s Shadowy Disciple: Someone to Watch Over Us,” Nat Hentoff, The Village Voice,
November 15, 2002, describing a similar TIPS program underway in New York initiated by Governor
George Pataki, and commenting on other potential programs nationwide.
4. See “Anti-Terror Surveillance System Gets New Name,” Press Reports.

381
 No Greater Threat

maintaining that Operation Liberty Shield, which is an ongoing and apparently indefinite
operation, is essential to terrorism prevention. But it involves a wide range of information and
random checks of vehicles with no particular explanation given of the need for the information
or the necessity for a particular stop and check.
Random vehicle checks had come under Fourth Amendment suspicion in Supreme Court
cases involving law enforcement programs to identify intoxicated drivers. That concern does
not appear to be evident when the program involves preventing terrorism.
There also is the increasing use of surveillance technology in other areas, such as in
schools. Three New Jersey schools already testing an eye-scan device for entry to the school.
The technology would be used to identify employees and persons authorized to pick up
children.1 A surveillance system is available that can track every motor vehicle by size, color,
shape, and license tags, or by the face of the driver or passengers.2 Tracking technology in
vehicles available as an assistance to drivers, using Global Positioning System (GPS)
technology, can be used to track the movements or location of vehicles (and have been so used
in instances of carjackings or vehicle theft). Another system proposed by DARPA, called
Lifelog, would be a digital diary of a person’s activities, including a wide range of personal
activities and transactions. The agency claims that the system would not be used for domestic
spying.3
Further surveillance technology is available through the development of RFID (Radio
Frequency ID) (also known as Auto ID) devices or “tags.” Although some of this technology is
familiar with the use of “EZ Pass” lanes on toll highways and tracking chips inserted under the
skin of household pets to allow tracking or identification of a lost or stolen pet, the technology
is rapidly entering a new phase. These RFID “tags,” can be smaller than a grain of rice but carry
complete information on the identity, source and other characteristics of any given item. They
are part of an entire new wave of identification and tracking technologies soon to be in
widespread use not only by retailers and others in the commercial sector but also by the
government, especially the Department of Defense. There already are commercial uses of RFID
by Wal- Mart and Delta airlines, as a tracking system. Similar uses are being employed for
children in schools or at amusement parks.
This means of tracking all sorts of items from consumer goods to currency, utilized micro-
id tags that emit a signal which can be read by special tracking devices. The signal is so unique
to each tag, that each particular item can be separately tracked. These specialized and miniature
electronic tracking tags can be included in all types of goods and items. They are expected to
provide improvements and precision for stores and consumer goods manufacturers to track
supply routes and inventory. Supposedly, there are other consumer benefits.
However, such tracking technology has its dark side. According to some reports,
technology of this sort also could be used in such a way that if a police officer had a scanning
device, the officer could identify “tagged” items in a briefcase or luggage, without opening it.
These technologies can track and identify people, not just things. They could shift the cultural

1. “Eye -Scan Security Tested at Three New Jersey Schools,” Associated Press, April 22, 2003. The report
noted that the airport at Charlotte, North Carolina recently installed eye scan systems to identify pilots,
employess, and flight attendants.
2. This is a program called “Combat Zones That See,” a new technology program being developed by
the Defense Advanced Research Projects Agency. Officials there said that it is intended for military uses not
for civilian surveillance. However, the technology can be so adapted. See “Surveillance System to Trace
Every Car,” July 2, 2003, p. 5A. The article also confirms that face recognition software was used at the
Super Bowl and other public events.
3.“Pentagon Seeks to Create Digital Diaries,” Associated Press, June 3, 2003. Contracts for developing
the program were expected to be awarded in the Summer of 2003.

382
 Part VI: The Next Six Elements of a National Security State

concept of “privacy” and therefore shift how that concept is applied for Fourth Amendment
purposes of what is a “reasonable expectation of privacy” regarding permissible searches and
seizures. Increased attention must be paid to RFID technology, which is expected to be widely
used in various commercial, private, and government sectors and applications in the next five to
ten years.
There are other means of tracking individuals including cell phone use, intersection
cameras, and implantable global positioning system chips. The growth and the scope of these
technologies is dynamic, and the long term privacy and related implications have so far
generally not been subject to sufficient public concern and debate.
Certainly, the growth of these programs and the tremendous growth of “smart” security
and tracking technologies are likely to substantially advance this Characteristic of a national
security state. Informed and prompt public debate is urgently needed on the uses and potential
abuses of these various surveillance, identification, and tracking technologies, in their various
forms — whether used by government or private sectors — not only in terms of the potential
development of a surveillance and security state but also in terms of the potential serious
impact on the very cultural values of privacy and intimacy.

APPENDIX 6-A
It would bring the discussion too far afield to describe in any detail the development of
this Catholic Church social teaching. The Church issued some social documents even as early as
1891 (Condition of Labor) and Reconstruction of the Social Order (1931). But the notable movement in
the development of Catholic Church social teaching came about 30 years later. Very briefly, the
Catholic Church since its momentous Vatican II ecumenical council in the early 1960s began to
produce numerous public policy statements and documents. These include the Constitution on
the Church in the Modern World and Pope John XXIII’s groundbreaking Encyclical Pacem in
Terris (1963). Pope Paul VI followed with several papal documents on social matters: The
Development of Peoples (1967), A Call to Action (1971), and Evangelization in the Modern World (1975).
Pope John Paul II has issued major statements including On Human Work (1981), The Social
Concerns of the Church (1988), One Hundred Years (1991), and The Gospel of Life (1995).
In addition to these, there have been social statements and documents from Catholic
bishops’ national organizations or from bishops’ conventions around the world, including Justice
in the World (1967). In the United States, Catholic bishops’ statements have been issued for more
than 40 years, but especially since the 1960s, in political and social matters. Two significant
documents were in the form of “Pastoral Letters”: the 1983 Pastoral Letter on War and Peace,
The Challenge of Peace: God’s Promise and Our Response (directed to just war theory, peace, and
nuclear weapons policy and criticized continued military spending, nuclear deterrence as a
central feature of foreign policy, and nuclear weapons development) and the 1986 Pastoral
Letter on the Economy (dramatically criticized the state of the United States economy,
especially the condition of the nation’s poor and unemployed). Other Catholic bishops’
statements include Confronting a Culture of Violence (on the issues of violence in society), Brothers
and Sisters to Us (racism), To the Ends of the Earth (missions), The Harvest of Justice is Sown in Peace
(10th anniversary of the “Peace Pastoral”) and Let the Earth Bless the Lord (the environment).
Along with the development of this social teaching (whether collective or from national
conferences) is the unfolding, again particularly since the 1960s, of “liberation theology.” This
approach takes the concern for the poor and dispossessed in scripture as well as in modern
Catholic Church social teaching and identifies it with the struggle of the poor for voice, political
presence, and direct social change. Although the Vatican has criticized this development, it

383
 No Greater Threat

remains a profound synthesis of political theory and Church social teaching. Among the
documents reflecting this overall approach are two from Latin American bishops: the Medellin
Conference (1968) and the Puebla Conference (1979). Just a few of the many authors of
liberation theology to be mentioned are Ernesto Cardenal, Jon Sobrino, Leonardo Boff, and
Gustavo Gutierrez.
Other Christian religious denominations have declared their voice with their own
statements and social teaching developments during this same period. These denominations
continue to speak to political issues and social matters. There have been similar developments
in other denominations and religious traditions.
The growth of major Christian church social teaching, concern for social status of the
poor, liberation theology, a new concept of mission, the importance of social change, and the
political upheavals of Central and Latin America since the 1950s, brought a new form of Church
response, mission, and action in those countries. It again would go too far afield of the present
discussion to review that history, except to note that it has been most significant in developing
countries with the most serious political crises. This more direct and consistent social
involvement and social teaching has brought church workers to the forefront of social
development and challenge to ruling authorities and political structures.
Thus it has been no accident that among the most notorious acts of violence (known in
the United States) in such countries has been against church workers, priests, or nuns. Those
include the March 1980 assassination in El Salvador of Bishop Oscar Romero, the December
1980 murders of three nuns and a laywoman church worker in that country, the assassinations
in November 1989 in that same country of six Jesuit priests and a house worker and her
daughter, and the April 1998 murder in Guatemala of a Catholic bishop, Juan Jose Girardi.
Violence has also been done to church workers from other religious denominations taking
up causes directed to the poor and advocating for new political structures or social
improvements. This legacy of church involvement in social change from religious and
theological perspectives also exists in the United States, although it has not been felt nearly as
prominently.

APPENDIX 6-B
The “National Strategy” Documents
A more comprehensive perspective on the government’s “war on terrorism” emerges from
a series of “National Strategy” policy documents issued by the White House after the
September 11 events. There are seven major documents in this series, issued mainly between
July, 2002 and February, 2003. They provide crucial insights into the length and breadth of the
"war on terrorism" and its rationale. Combined with statutes, executive orders, agency
guidance, regulations, and administration actions, these “National Strategy” documents are an
essential aspect of the overall context for the potential emergence of a national security state.
A point-by-point description of each "national strategy" document is not feasible for
present purposes. A summary of each will suffice to indicate their place in the “war on
terrorism” outlook. The documents are:
The National Strategy for Homeland Security
(July, 2002)

The National Security Strategy of the United States

(September, 2002)

384
 Part VI: The Next Six Elements of a National Security State

The National Strategy to Combat Weapons of Mass Destruction

(December, 2002)

The National Strategy for Combating Terrorism

(February, 2003)

The National Strategy for Physical Protection of

Critical Infrastructures and Key Assets
(February, 2003)

The National Strategy to Secure Cyberspace

(February, 2003)

The National Money Laundering Strategy

(February, 2003)

Additional national strategy document of general interest:

The National Drug Control Strategy

[approximately February, 2003]

The National Defense Strategy

(various statements or documents)

***
The first document, National Strategy for Homeland Security, is the broadest in scope.
Appearing approximately nine months from the September 11 attacks, it sets a committed,
aggressive and sweeping tone echoed in strategy documents to follow. It reveals, without
expressly stating, numerous themes of the domestic anti-terrorism campaign: redirected
government attention to anti-terrorism, new commitments of resources, expanded executive
powers, restructured agencies, increased information gathering, greater information sharing,
continued internal secrecy, wider cooperation between federal-state-local law enforcement and
agencies, new levels of preparedness, constant review of anti- terrorism readiness, and a
national call to citizen response.
Internationally, there are additional themes: unrelenting efforts to track down terrorists,
unilateral action when deemed necessary to respond to terror threats, and commitment to
spread U.S.-style democracy and market-based economies throughout the developing world as
an antidote to social conditions contributing to terrorism or exploited by terrorists.
This strategy states three objectives: prevention, addressing vulnerabilities, and minimizing
effects. It defines "homeland security" as: “a concerted national effort to prevent terrorist attacks
within the United States, reduce America’s vulnerability to terrorism, and minimize the damage
and recover from attacks that do occur.” The Executive Summary declares:
Unless we act to prevent it, a new wave of terrorism, potentially involving the world’s
most destructive weapons, looms in America’s future. It is a challenge as formidable as
any ever faced by our Nation. But we are not daunted. We possess the determination and
the resources to defeat our enemies and secure our homeland against the threats they
pose.

385
 No Greater Threat

The Strategy defines terrorism as: “any premeditated, unlawful act dangerous to human
life or public welfare that is intended to intimidate or coerce civilian populations or
governments.” This covers kidnappings, hijackings, shootings, bombings, attacks with chemical
or biological or radiological weapons, cyber attacks, and other forms of violence. This Strategy
describes terrorists as determined enemies seeking to discover weaknesses, “lurking in the
shadows,” and ready to strike anywhere at any time.
The Homeland Security Strategy notes that the federal government cannot be the sole
source of anti-terrorism activity, and mentions there are 87,000 separate local jurisdictions in
the U.S., aside from the 50 States themselves (a theme and a figure repeated in other "national
strategy" documents). The Strategy notes extensive immigration and visitor figures — each year
500 million people, including 330 million non-citizens, cross United States borders.
Adjustments for all jurisdictions are required for an effective defense against terrorism.
The Strategy requires the country set new standards of responsibility and accountability,
mobilize society, allocate resources in new ways, and “seek opportunity from adversity.” The
strategy declares:
For more than six decades, America has sought to protect its own sovereignty and
independence through a strategy of global presence and engagement. In so doing, America
has helped many other countries and peoples advance along the path of democracy, open
markets, individual liberty, and peace with their neighbors. Yet there are those who
oppose America’s role in the world, and who are willing to use violence against us and our
friends. Our great power leaves these enemies with few conventional options for doing us
harm. One such option is to take advantage of our freedom and openness by secretly
inserting terrorists into our country to attack our homeland. Homeland security seeks to
deny this avenue of attack to our enemies and thus to provide a secure foundation for
America’s ongoing global engagement.
The Strategy identifies six “mission areas:” 1) intelligence and warning, 2) border and transpor-
tation security, 3) domestic counterterrorism, 4) protecting critical infrastructure, 5) defending against
catastrophic terrorism, and 6) emergency preparedness and response. Each mission area has its own
"goals."
For “intelligence and warning,” the goals include FBI anti-terrorism analysis, the
Homeland Security Advisory System, and “red team” techniques to test vulnerabilities.
For “border and transportation security,” the goals include accountability, “smart
borders,” seaport security, implementing the Aviation and Transportation Security Act of 2001,
enhancing Coast Guard capabilities, and more attention to immigration. The goals for
“domestic counterterrorism” include intergovernmental law enforcement coordination, investi-
gation and apprehension of suspected terrorists, restructuring the FBI, terrorist financing, and
tracking foreign terrorists.
For “protecting critical infrastructure,” the goals are establishing the Department of
Homeland Security (not yet established when this Strategy was issued), cataloging and
assessing critical infrastructures and key assets, establishing security partnerships with local
governments and private sector, developing a national infrastructure protection plan,
increasing internal security at critical infrastructure sites, and international partnerships. There
are at least 12 "critical infrastructure" areas: agriculture, food, water, public health, emergency
services, government, defense industrial base, information, telecommunications, energy,
transportation, banking and finance, chemical industries, and postal and shipping. The Strategy
lists government lead agencies in these areas, for anti-terrorism planning and response. The
Strategy notes, as do other National Strategy documents, that 85 per cent of critical
infrastructure is in the private sector and thus government-private partnerships are essential to
protect critical infrastructure.

386
 Part VI: The Next Six Elements of a National Security State

For defending “against catastrophic terrorism” the goals include preventing terrorist use
of nuclear weapons, improving detection of chemical and biological attack, developing broad-
spectrum vaccines, and utilizing scientific expertise. Finally, for the sixth "mission area" of
“emergency preparedness and response,” the goals are more numerous: a single all-discipline
incident management plan at the federal level, improving tactical counterterrorist capabilities,
more effective communication between first responders in crisis situations, preparedness of
health care providers, increasing pharmaceutical and vaccine stockpiles, building the Citizen
Corps, developing a national training and evaluation system, and planning for military support
for civilian authorities in terrorist response situations.
The Strategy states the Department of Homeland Security (when established) will
“sponsor and establish national priorities for research, development, and testing to develop new
vaccines, antidotes, diagnostics, therapies, and other technologies against chemical, biological,
radiological, and nuclear terrorism.” The scope of these approaches would be truly unprece-
dented. Overall, the National Strategy declares the country must “strive to create a fully
integrated national emergency response system that is adaptable enough to deal with any
terrorist attack, no matter how unlikely or catastrophic, as well as all manner of natural
disasters.” Much detail is devoted to that discussion, including involvement of national medical
agencies and of the national health care system.
Beyond these six “mission areas” and their goals, are four “foundations of homeland
security”: law, science and technology, information sharing and systems, and international cooperation. Each
"foundation" has its own set of “initiatives.”
For “law,” there are twelve initiatives: critical infrastructure information sharing,
streamlined information sharing in law enforcement, extradition authorities, military assistance
for domestic security, executive reorganization authority for federal departments, DHS
management flexibility, new minimum standards for state driver’s licenses, terrorism insurance,
cyber attack readiness, increased money laundering investigation, continuity of the judiciary,
and enhanced quarantine authorities.
For “science and technology,” the Strategy states eleven initiatives: developing counter-
measures for chemical, biological, and radiological attacks, new systems for detecting hostile
intent, biometric technologies, improved first responder abilities, new homeland security
methods, a national laboratory for homeland security, increased research and development from
the private sector, new prototypes for homeland security technologies, demonstrations and
experimental deployments, homeland security technology standards, and a system for high-risk
research. The Strategy states, “Our enemies are adaptive, constantly searching for new ways to
strike us." We must "use our great strength in science and technology to triumph in the war on
terrorism.”
For “information sharing and systems,” there are five initiatives: wider involvement in
information sharing among federal agencies, increased information sharing among local
governments and private sector areas, new “meta-data” standards for electronic information
relevant to homeland security, improved public safety emergency communications, and reliable
public health information.
For the fourth national security "foundation" of “international cooperation,” there are nine
initiatives, which include: smart borders, addressing fraudulent travel documents, seaport
security, international law enforcement cooperation, assistance to foreign nations in anti-
terrorism, protecting transnational critical infrastructure, increased international communi-
cation on anti-terrorism activity, greater international cooperation in terrorist incidents, and
reviewing treaties and international law.

387
 No Greater Threat

The National Homeland Security Strategy describes a substantial long term national
campaign for homeland security going well into the next decade. Significantly, the Strategy
recognizes that terrorism is not an ideology in and of itself, but “a strategy and a tactic — a
means of attack.” Yet, leaving ideology aside and turning to tactical aspects, the Strategy
discusses weapons of mass destruction, conventional weapons, cyber attacks, and unexpected
approaches. It notes known terrorist groups, international and domestic, and describes the
importance of dealing with both types.
Recognizing the importance of multi-agecy cooperation, the Strategy declares that “the
federal government needs to do a better job of utilizing the distinct capabilities of state and
local law enforcement to prevent terrorism by giving them access, where appropriate, to the
information in our federal databases, and by utilizing state and local information at the federal
level.” It mentions the FBI's NCIC (National Crime Information Center) database, new
cooperation initiatives, cross- agency approaches, Joint Terrorism Task Forces, the national
Joint Terrorism Task Force, the international Foreign Terrorist Tracking Task Force, the FBI
“Penttbom” investigation following the September 11 attacks, and activities such as FBI “Flying
Squads.”
The Strategy acknowledges the considerable costs of homeland security. It notes that the
homeland security budget alone for Fiscal 2003 was $38 billion. Further state and local
homeland security costs are expected to reach $6 bilion, not to mention considerably more
spent by the private sector.
As made more clear in other National Strategy documents, every sector of area of
American life will be affected by these anti-terrorism efforts.

***
The National Security Strategy of the United States is more steeped in policy language, taking
national security and homeland security to new levels. While the initial Homeland Security
strategy takes a domestic perspective, this National Security strategy adopts a broader and
more global perspective, although centered in Americanism and unapologetic in its
commitment to root out terrorism around the globe.
This National Security Strategy begins, in just a few paragraphs, with some of the boldest
statements of any National Strategy document, setting the tone for the foreign perspective of
the federal government’s anti-terrorism approach:

The United States possesses unprecedented — and unequalled — strength and

influence in the world. Sustained by faith in the principles of liberty, and the value of a
free society, this position comes with unparalleled responsibilities, obligations, and
opportunity. The great strength of this nation must be used to promote a balance of
power that favors freedom.
For most of the twentieth century, the world was divided by a great struggle over
ideas: destructive totalitarian visions versus freedom and equality.
That great struggle is now over. The militant visions of class, nation, and race which
promised utopia and delivered misery have been defeated and discredited. America is now
threatened less by conquering states than we are by failing ones. We are menaced less by
fleets and armies than by catastrophic technologies in the hands of the embittered few.
We must defeat these threats to our Nations, allies, and friends.

388
 Part VI: The Next Six Elements of a National Security State

This is also a time of opportunity for America. We will work to translate this moment
of influence into decades of peace, prosperity, and liberty. The U.S. national security
strategy will be based on a distinctly American internationalism that reflects the union of
our values and our national interests. The aim of this strategy is to help make the world
not just safer but better. Our goals on the path to progress are clear: political and eco-
nomic freedom, peaceful relations with other states, and respect for human dignity.
This striking approach addresses new international agendas and security initiatives and
emphasizes the spread of market economies and American-style democratic systems. The
Strategy states it in another way: “America must stand firmly for the nonnegotiable demands of
human dignity: the rule of law, limits on the absolute power of the state, free speech, freedom of
worship, equal justice, respect for women, religious and ethnic tolerance, and respect for
private property.”
The National Security Strategy mentions that terrorism is often the result of “grievances”
among peoples or within nations, but emphasizes “no cause justifies terror.” Among approaches
to disrupting foreign terrorist operations are: continuous campaigns, direct action “to exercise
our right of self-defense by acting preemptively against such terrorists,” denying sponsorship
and sanctuary, working for a global attitude of denying legitimacy to terrorist action,
supporting modern and moderate governments, diplomatic engagement, and “diminishing the
underlying conditions that spawn terrorism by enlisting the international community to focus
its efforts and resources on areas most at risk.”
Commenting on the Middle East, the Strategy reiterates U.S. policy of supporting in
principle a Palestinian state while announcing unwavering support for Israel (the the exception
of Israeli settlements in the occupied territories):
The Israeli-Palestinian conflict is critical because of the toll of human suffering,
because of America’s close relationship with the state of Israel and key Arab states, and
because of that region’s importance to other global priorities of the United States. There
can be no peace for either side without freedom for both sides. America stands committed
to an independent and democratic Palestine, living beside Israel in peace and security.
Like all other people, Palestinians deserve a government that serves their interests and lis-
tens to their voices. The United States will continue to encourage all parties to step up to
their responsibilities as we seek a just and comprehensive settlement to the conflict.
The United States, the international donor community, and the World Bank stand
ready to work with a reformed Palestinian government on economic development,
increased humanitarian assistance, and a program to establish, finance, and monitor a
truly independent judiciary. If Palestinians embrace democracy, and the rule of law, con-
front corruption, and firmly reject terror, they can count on American support for the cre-
ation of a Palestinian state.
Israel also has a large stake in the success of a democratic Palestine. Permanent occu-
pation threatens Israel’s identity and democracy. So the United States continues to chal-
lenge Israeli leaders to take concrete steps to support the emergence of a viable, credible
Palestinian state. As there is progress toward security, Israel forces need to withdraw
fully to positions they held prior to September 28, 2000. And consistent with the recom-
mendations of the Mitchell Committee, Israeli settlement activity in the occupied territo-
ries must stop. As violence subsides, freedom of movement should be restored, permitting
innocent Palestinians to resume work and normal life. The United States can play a cru-
cial role but, ultimately, lasting peace can only come when Israelis and Palestinians
resolve the issues and end the conflict between them.
There are also comments on other global areas including South Asia (especially India and
Pakistan) and Indonesia, and the Western Hemisphere, where the National Strategy declares
American assistance with new democracies., and Africa. Concerning Africa, the document
comments:

389
 No Greater Threat

In Africa, promise and opportunity sit side by side with disease, war, and desperate
poverty. This threatens both a core value of the United States — preserving human dig-
nity — and our strategic priority — combating global terror. American interests and
American principles, therefore, lead in the same direction: we will work with others for
an African continent that lives in liberty, peace, and growing prosperity. Together with
our European allies, we must help strengthen Africa’s fragile states, help build indigenous
capability to secure porous borders, and help build up the law enforcement and intelli-
gence infrastructure to deny havens for terrorists.
The National Security Strategy emphasizes the importance of continued international
cooperation on dealing with weapons of mass destruction. There is an ominous warning that if
the U.S. detects a potential credible threat of use by a terrorist organization of a weapon of mass
destruction against it, there will be no wait for international action. The Strategy states, "in an
age where the enemies of civilization openly and actively seek the world’s most destructive
technologies, the United States cannot remain idle while dangers gather." The Strategy is clear
that the U.S. is committed to pre-emptive action. It says that in any pre-emptive action, "The
reasons for our actions will be clear, the force measured, and the cause just.”
The National Security Strategy also notes a goal of reducing greenhouse gas emissions and
discusses clear coal technologies and encouraging renewable energy production. But it offers no
specifics.
Of some interest is the Strategy’s acknowledgement of the role of weak employment
markets, struggling economies, and global poverty in contributing to terrorism. The discussion
opens with a frank observation:
A world where some live in comfort and plenty, while half of the human race lives on
less than $2 a day, is neither just nor stable. Including all of the world’s poor in an
expanding circle of development — and opportunity — is a moral imperative and one of
the top priorities of U.S. international policy.
The Strategy pledges U.S. assistance to countries committed to enhancing market strategies,
reducing governmental involvement, improving public health, building infrastructure,
emphasizing education, and stabilizing agriculture.
The National Security Strategy discusses regional cooperation such as in Europe,
with the European Union and NATO. There are further comments about involvement
with Russia, and further development of bilateral relations with China. The National
Strategy reviews the significance of deterrence and global power to address terrorism. It
proclaims: "We will maintain the force sufficient to support our obligations, and to
defend freedom. Our forces will be strong enough to dissuade potential adversaries from
pursuing a military build-up in hopes of surpassing, or equalling, the power of the United
States."
This Strategy addresses terrorism in much broader strokes than the initial National
Strategy documents. It clearly places an American perspective on the global challenge of
terrorism.
[While acknowledging the role of global poverty and economic depression in
contributing to terrorism, the Strategy offers no specifics except for more free trade zones,
which so far have not lifted struggling or developing nations out of poverty. While there is a
discussion of internationalism and cooperation, there is the barest mention of the UN. Many of
the document’s comments on the status of global regions are revealing in terms of what is not
stated, than what is. The strongest comments are reserved for declarations of readiness, pre-
emptive strikes, military preparedness, and increasing intelligence. As a commitment to anti-
terrorism around the world, this National Security Strategy has much to commend it. But as a
comprehensive and unbiased assessment of the status of world regions, the sources of regional

390
 Part VI: The Next Six Elements of a National Security State

problems, and the nature of the solutions to them, the Strategy is a disconcerting proclamation
of foreign policy platitudes.]

***
Some similarity to the anti-terrorism commitment of these two previous Strategy
documents is found in the National Strategy to Combat Weapons of Mass Destruction. The shortest by
far, it is also the most general, perhaps because many actual approaches to controlling and
interdicting weapons of mass destruction (especially nuclear weapons) cannot be described in
a public document.. Consequently, this Strategy contains much obtuse, policy-heavy language
offering no real description of specific activities. A typical statement is found in just the second
paragraph:
As with the war on terrorism, our strategy for homeland security, and our new con-
cept of deterrence, the U.S. approach to combat WMD represents a fundamental change
from the past. To succeed, we must take full advantage of today’s opportunities, including
the application of new technologies, increased emphasis on intelligence collection and
analysis, the strengthening of alliance relationships, and the establishment of new part-
nerships with former adversaries.
This statement may intend to say everything but in fact says nothing.

The WMD Strategy notes three principal objectives: counter-proliferation to combat WMD use,
strengthened nonproliferation to combat WMD proliferation, and consequence management. Areas of activity
for the first objective include interdiction, deterrence, and defense and mitigation. For the
second objective, the activity areas involve nonproliferation diplomacy, dealing with
multilateral projects, international cooperation, controls on nuclear materials, and non-prolif-
eration sanctions. As for “consequence management,” the effort would be to attempt to react
however possible to the actual use of a WMD against the United States.

The WMD Strategy reveals a “US- centric” approach to anti-terrorism, including U.S.
reluctance to truly embrace the concept of nuclear disarmament.

[There is no mention of the need for the U.S. to take a lead role in non-proliferation by
further reducing its own nuclear arsenal, engaging in new international agreements, abiding by
current treaties, reducing threats to use nuclear weapons, removing nuclear weapons that are
internatiionally deployed, halting all testing, and ceasing plans for “usable” nuclear weapons.
There appears to be no recognition of any U.N. initiatives for nuclear weapons reduction, or
efforts or recommendations by international agencies or organizations concerned about nuclear
weapons, and no mention of the World Court decision declaring the use of nuclear weapons
illegal (and possibly, by implication, the continued development and deployment of these
weapons).]

***
The next "national strategy" document is the National Strategy for Combating Terrorism.
Reflecting the most balanced approach, this document takes an overall view of the terrorist
threat and U.S. approaches to addressing it.
This National Strategy again emphasizes commitment to the war on terrorism,
persistence in tracking down terrorists, and determination in utilizing all available national
resources to protect the country against terrorist attack. Revealing a wider perspective than
other Strategy documents, it notes that the first major “terrorist attack” on U.S. soil actually

391
 No Greater Threat

occurred on September 16, 1920, in a bomb attack by anarchists in New York that claimed 40
lives injured 300 others. It notes that for the U.S., the 20th Century in fact began with a terrorist
act, the assassination of President William McKinley in 1901. The document underscores, as
other Strategy documents mention, that terrorism is a tactic rather than an ideology and has
been utilized throughout history and throughout the world — a recognition which, unfortu-
nately, often is not reflected in Administration anti-terrorism rhetoric.
The Strategy observes that long-term terrorist groups with persistent methods and
objectives are more structured than random terrorist actions. It identifies several current
terrorist groups operating around the world but notes a reminder that until September 11, the
most significant terror attack within the U.S. was the bombing of the Murrah Building in
Oklahoma City. The document charts the “structure of terror” as: underlying conditions,
international environment, supportive states, terror group organization, and organization
leadership. Of some note is the Terrorism Strategy’s comment on “underlying conditions":
At the base, underlying conditions such as poverty, corruption, religious conflict and
ethic strife create opportunities for terrorists to exploit. Some of these conditions are real
and some manufactured. Terrorists use these conditions to justify their actions and
expand their support. The belief that terror is a legitimate means to address such condi-
tions and effect political change is a fundamental problem enabling terrorism to develop
and grow.
The Strategy comments in detail on al-Qaida and notes how the organization has
conducted operations by utilizing the relative ease of international travel, current technologies
including wireless communication and video pronouncements, dispersed organizational
networks, underground financing and other funding structures that achieve virtual self-
sufficiency, and supportive states. It notes that "the terrorist threat today is mutating into
something quite different from its predecessors. Terrorists can now use the advantage of
technology to disperse leadership, training, and logistics not just regionally but globally." This
creates new challenges of response.
The Strategy categorizes three types of terrorist groups: single country, regional, and
global. The Strategy describes an overall approach to all groups: defeat, deny, diminish, and defend.
Once again, as in other documents, the Strategy declares that the U.S. will take pre- emptive
action when warranted: "We cannot wait for terrorists to attack, and then respond."
The Strategy calls for an end to state sponsorship of terrorism or of terrorist group
training and sanctuaries, and for an international standard of accountability for terrorist
response (noting UN Security Council Resolution 1373 and other international counterter-
rorism conventions and protocols).
The Strategy emphasizes working with "weak states" to identify and prosecute terrorists
and persuading or compelling "unwilling or reluctant states" to do the same. There is further
discussion on improvements to interdict weapons of mass destruction, including nuclear and
chemical weapons.
The Strategy again comments on underlying conditions contributing to terrorism, while
noting this struggle is not solely an American struggle and cannot be address by the U.S. alone:
These efforts to diminish underlying conditions have material as well as intangible
dimensions. Ongoing U.S. efforts to resolve regional disputes, foster economic, social, and
political development, and market-based economies, good governance, and the rule of
law, while not necessarily focused on combating terrorism, contribute to the campaign by
addressing underlying conditions that terrorists often seek to manipulate for their own
advantage. Additionally, diminishing these conditions requires the United States, with its
friends and allies, to win the `war of ideas,’ to support democratic values, and to promote
economic freedom.

392
 Part VI: The Next Six Elements of a National Security State

There is a discussion about the “war of ideas” and deligitamizing terrorism as an

acceptable form of political statement. That discussion also includes a statement on the Israeli-
Palestine situation echoing statements in the previous document mention, the National
Security Strategy of the United States.
The Strategy then turns to homeland security, cyberspace, infrastructures, American
citizens abroad, and an “integrated incident management capability.” Concluding, the
Terrorism Strategy re-states the four goals of defeat, deny, diminish, and defend, stressing the
necessity of being resourceful and resolute. It includes a typical rallying cry for citizen partici-
pation and global commitment:
This strategy relies upon the ingenuity, innovation, and strength of the American peo-
ple. We will rally others to this common cause. We will not only forge a diverse and pow-
erful coalition to combat terrorism today, but work with our international partners to
build lasting mechanisms for combating terrorism and for coordination and cooperation.
Working with states that are both willing and able to be full partners in the campaign, we
will attack terrorist groups directly and indirectly, help the weak but willing states build
their capabilities to fight terrorism, and persuade reluctant states to meet their obliga-
tions to the international community in this fight. We will use all our resources and
resourcefulness to compel the unwilling states to cease support for terrorism.
Echoing also the other National Strategy documents, it ends with:
We strive to build an international order where more countries and peoples are inte-
grated into a world consistent with the interests and values we share with our partners
— values such as human dignity, rule of law, respect for individual liberties, open and free
economies, and religious tolerance. We understand that a world in which these values are
embraced as standards, not exceptions, will be the best antidote to the spread of terror-
ism. This is the world we must build today.
[While this Strategy reiterates a U.S.-centric view of global threats and of responses to
terrorism, it recognizes six realities not often found in the Administration's standard anti-
terrorism statements: terrorism has occurred throughout history, terrorism is a tactic and not
an ideology, there are different kinds of terrorist groups operating at different levels with
different goals and not all interested in the U.S., underlying conditions contribute to the rise of
terrorist groups, no nation has ever been immune to terrorist attack, and effective responses to
terrorist groups operating globally must be global and must be characterized by international
cooperation. The Administration would do well more often to reflect the perspectives of its
own strategy document, as opposed to transforming the entire country into a national security
state using anti-terrorism as a rationale.]

***
The next National Strategy document returns to a chiefly domestic approach: The National
Strategy for The Physical Protection of Critical Infrastructures and Key Assets. Less doctrinaire than the
previous documents, more bureaucratic in approach and terminology (“stakeholders,” “human
capital,” “key node vigilance”), and much longer, it presents a useful review of national
infrastructure while desscribing an ambitious and daunting task of preparing and protecting the
entire nation's critical infrastructure from nearly any type of terrorist attack at any time.
Unique among the "national strategy" documents so far described, this document
recognizes substantial comment from sources outside the federal government, including private
sector, state government, agencies, professional associations, education, research institutes, and
citizens. More than the other national strategy documents, the Critical Infrastructures Strategy
emphasizes citizen commitment, private sector involvement, and cooperation with state and
local governments. Consistent with the other national strategy documents are persistent

393
 No Greater Threat

themes: readiness, use of federal resources, collective involvement, commitment to protecting

the country against terror attacks, and unwavering commitment.
As mentioned in other national strategy documents, the Critical Infrastructures Strategy
defines “critical infrastructure” as: agriculture and food, water, public health, emergency services, defense
industrial base, telecommunications, energy, transportation, banking and finance, chemicals and hazardous
waste, postal and shipping. The “key assets” are nuclear power plants or dams, government
buildings especially major federal government sites, national icons or monuments such as the
Statute of Liberty, and commercial sites such as major commercial centers.
The Strategy lists eight “guiding principles:” public safety and confidence, responsibility
and accountability, inter-governmental involvement, market solutions for infrastructure
protection, information sharing, international cooperation, new technologies, and privacy and
constitutional freedoms. Much discussion is devoted to organizing and partnering with other
governmental agencies, state and local governments, private sector, institutes, education, and
citizenry. The strategy reviews lead federal agencies for infrastructure sectors and account-
ability of those agencies for coordinating infrastructure protection.
Providing far more detail than other strategy documents, this Strategy identifies
numerous “cross-sector priorities," each with several "initiatives." The priorities are: planning and
resource allocation, information sharing and warning indications, human capital and awareness, research and
development for new technologies, and simulation and analysis. Many of the "initiatives" for these
priorities can be anticipated, while others may be striking.
For “planning and resource allocation,” the initiatives include: increased sharing of risk-
management expertise, incentives for private organizations, consolidating federal and state
protection plans, and task forces to review recovery options in the event of a terrorist attack.
The initiatives for “technology and research and development” include: exploring methods to
authenticate and verify personnel identity, and improving technical surveillance, monitoring,
and detection capabilities. Initiatives for other priorities can be anticipated as linked with the
priority title or term.
These themes are placed in three broad objectives: identify and assure protection of
critical assets and systems, assure protection of infrastructures and assets facing specific and
imminent threat that can be identified, and pursue collaborative measures to protect areas that
may become future terrorist targets. The Strategy notes that often, one critical infrastructure
sector depends on another: telecommunications depends upon energy, food and agriculture
depend on transportation, emergency services depend on public health. Protection of one sector
requires by protection of another.
The Strategy's comments on terrorism are reflected in the previous policy documents. As
with the previous documents, that threat is broadly defined as posed by terrorists who "exploit
vulnerabilities wherever they exist, with any means at their disposal at times and locations of
their choosing." The Strategy states that terrorists "are attempting to acquire a broad range of
weapons, from high- yield conventional explosives and firearms to weapons of mass
destruction." The place and nature of terrorist attacks are "limited only by the creativity and
resources of the terrorists; the only constant is their desire to inflict maximum destruction,
injury, and shock in pursuit of their strategic objectives." With the threat so broadly defined,
infrastructure becomes inextricably linked to nearly any terrorist activity and terrorist threat.
The Strategy notes the size of the national infrastructure protection mission: nearly 2
million farms, 1,800 water reservoirs, 5,800 hospitals, 2,800 power plants, 5,800 public airports,
300 coastal ports, 120,000 miles of major railway, 500 major urban public transportation
operators, 66,000 chemical plants, 104 commercial nuclear power plants, and 80,000 dams.
There are 460 skyscrapers and 5,800 historic buildings. Efforts to create protection programs

394
 Part VI: The Next Six Elements of a National Security State

for this infrastructure would be a long term, extensive, and expensive, involving federal, state,
and local government sectors, private industry, educational institutions, affecting nearly every
aspect of American life.
The Strategy emphasizes, as other Strategy documents have mentioned, that there are
87,000 local jurisdictions in the country and that 85 per cent of critical infrastructure is owned
or managed by the private sector. Protecting national infrastructure also will require major
involvement of local agencies and local private sector entities:
Local governments present the front lines of protection and the fact of public services
to the American people. * * * Communities look to local leadership to assure safety, eco-
nomic opportunities, and quality of life. Public confidence, therefore, starts locally and is
dependent upon how well communities plan and are able to protect their citizens,
respond to emergencies, and establish order from chaos.
The federal government will support the private sector, but a good deal of initiative must
come from this area. However, the Strategy acknowledges the difficult economic conditions for
most state and local governments and for many private sector areas.
Additional discussion is directed to the other initiatives such as information sharing and
warning, personnel surety and building human capital and awareness, technology and research
and development, and modeling, simulation, and analysis.
The Strategy implores all involved in each priority and initiative, to recognize
impediments to progress toward effective protection methods and responses, and to commit to
overcoming these impediments, be they structural, physical, or differences in attitudes and
approaches. There Strategy emphasizes the need for a change in modes of operation, communi-
cation, and involvement between federal, state, and local governments and agencies, toward
infrastructure protection goals.
Among the areas of concern in personnel surety and human capital are preventing any
terrorist attack or disruption from employees of a given facility (“insider action”), by boosting
awareness, and creating and testing protection programs. To approach the “insider” problem,
the Strategy states that DHS will study options for "creating or enabling access to databases" in
order to clear persons to be employed in "critical positions" and "other potential hires, contract
workers, and key service supplier personnel." The Strategy pledges at the same time to protect
"individual constitutional freedoms" in this process.
In areas of technology and research and development, the Strategy notes several
challenges including interoperable communications between personnel or agencies responding
to a terrorist incident, secure communications that would not be affected by disruption in the
electrical supply, and improving surveillance and monitoring capabilities.
The Strategy then moves to each critical infrastructure area, discussing vulnerabilities,
security needs, protection options, and response requirements.
For agriculture and food, any protection efforts must be international because much food
is imported. Information sharing within the food industry is not common due to competition or
regulations, beyond the fact that any announcements about a threat to or attack upon the food
supply must be carefully managed. For water, the needs include more focused threat
information and improving protection of the energy sector since water purity and delivery
through at water treatment plants depend on electricity.
The Strategy lists protection concerns for other critical infrastructure sectors. Protecting
telecommunications, for example, involves a range of activity, including physical facilities,
transmission, remote accessing, Internet and its effect on these systems, and numerous private
sector actors from Internet service providers to multi-national communications firms. The

395
 No Greater Threat

Strategy notes a major systemic change occurring in this sector, as digital and cellular networks
expand and as communication avenues continue to multiply.
The discussion of energy mentions electricity (from coal, nuclear, hydro, or wind), and oil
and natural gas, the major components of national energy generation and delivery. Protection
methods for oil and natural gas notes that many facilities need upgrading and the industry's
security approaches must be enhanced along with better methods of repairing system damage.
The discussion of transportation is perhaps the most detailed, since much is involved
in this sector, and disruption produces more immediate and perhaps more severe effects
than any other infrastructure sector, except perhaps energy. This sector includes aviation
(passenger and cargo), commercial rail (passenger and freight which also involves danger-
ous or hazardous materials), commuter rail such as metropolitan rail transit systems,
trucking, buses, highways, bridges, and maritime commerce, especially seaports and con-
tainer shipping, and the national pipeline network for oil and gas. There are security
needs in all areas of this transportation overview.
As the Strategy completes its review of each critical infrastructure sector, the clear
impression is that critical infrastructure protection at this scale and involving all sectors will be
an immense effort of study, long term programs, new cooperations, and substantial
commitments of resources and personnel. Whether the protection objectives for all critical
infrastructures described are even achievable, is quite uncertain.

The Strategy's discussion of “key assets” involve various types: national monuments and
symbols, public parks and sites, special power generation areas, commercial centers (even
shopping malls), special structures such as sports stadiums, and government centers. Strategies
and initiatives are mentioned for each area. Many of these note public outreach and awareness,
citizen involvement and cooperation, and additional security. Making note of nuclear power
plants, the Strategy acknowledges potential catastrophic health consequences and
infrastructure effects of an attack on a nuclear power plant. Among proposed protection
initiatives are criminalizing the carrying of an unauthorized weapon into a nuclear power
facility, enhancing the capabilities of plant security forces, and legislation to apply sabotage
laws to nuclear facilities.
The concluding comments of this National Strategy document are mixed with
expectation, warning, and confidence. For example:
[G]iven the creative and adaptive nature of our terrorist adversaries, we can expect
future strikes to be even more sophisticated in terms of capability and synchronization.
Ironically, the very nature of our free society greatly enables terrorist operations and tac-
tics, while, at the same time, hinders our ability to predict or prevent terrorist acts or mit-
igate their effects. Given these realities, the imperative to implement the comprehensive
national physical protection strategy outlined in this document is most pressing.
Much more can be noted for this quite extensive National Strategy document. There
can be no question of its significance in outlining an unprecedented national effort for
protecting nearly every possible critical infrastructure.
[The Critical Infrastructures Strategy's comprehensive protection program is ambi-
tious indeed. Much more will develop in the coming years as the federal government
attempts to implement these initiatives across all critical infrastructure areas. There are
two ironies in this: security in critical infrastructures starts with functioning systems,
and critical infrastructures of all types in this country are in great need of repair and
enhancement, and that for all of the effort, expense, commitment, and programs, there no
critical infrastructure sector can be immunized from being the means of or the target of a
future terrorist attack.]

396
 Part VI: The Next Six Elements of a National Security State

***
The next National Strategy document, the National Strategy to Secure Cyberspace, perhaps
would generate the most public attention given the pervasive presence of the Internet, the
growing significance of cyberspace in mobile communications, new developments in
cyberspace use, global involvement and reach of cyberspace, and significant public concerns
about privacy and over information access by government investigative agencies. While this
National Strategy recognizes some concerns about privacy and information access, it is overall a
highly technical assessment of cyberspace security, reviewing the scope and breadth of the
Internet and various security challenges and difficulties.
This Strategy also reflects input from various sources outside the government, as well as
from several “town meeting” sessions. Nevertheless, the Cyberspace Strategy will face
challenges to full implementation, despite the broad agreement that exists in the value of
additional cyber security, especially for the Internet.
This National Strategy is not so much directed to Internet security in terms of
transmission errors or viruses, although those are mentioned, as it is directed to detecting and
preventing attacks from “malicious actors” using computer networks or the Internet to damage
critical systems or to disrupt communications. The National Cyberspace Strategy reflects a
public and government concern that a major cyber attack using computer networks or the
Internet is probable and that depending on the system targeted, the effects could be
widespread. After noting the crucial importance of computer networks in this high-tech
society, which involves everything from communications to transportation to stock markets,
this National Strategy notes:
A spectrum of malicious actors can and do conduct attacks against our critical infor-
mation infrastructures. Of primary concern is the threat of organized cyber attacks capa-
ble of causing debilitating disruption to our Nation’s critical infrastructures, economy, or
national security. The required technical sophistication to carry out such an attack is high
— and partially explains the lack of a debilitating attack to date. We should not, how-
ever, be too sanguine. There have been instances where organized attackers have
exploited vulnerabilities that may be indicative of more destructive capabilities.
The Cyberspace Strategy emphasizes that the federal government has a limited role of
protection, identifying threats, and responding to incidents. The public-private partnership
required is perhaps less difficult to achieve than for other infrastructure sectors, since there is
high motivation for Internet service providers to secure their networks and to detect viruses
and attacks, and since most networks are connected to or a part of telephone communications
systems or cable networks which not only are already partnered with the government in
security and investigative areas but also have similar motivations for security, protection, and
threat identification and response.
The National Strategy lists five national priorities for cyberspace security: warning and
response, threat and vulnerability reduction, awareness and training, government computer security, and
national and international cooperation. Each of these priorities has its own actions and initiatives.

For the “warning and response” priority, initiatives are: public-private “architecture” to
respond to national incidents, tactical and strategic analysis of cyber attacks and vulnerability
assessments, private sector capability for a broad-scope view of cyberspace health and status,
expanding the cyber warning and information network, participation in national public-private
plans for cyberspace continuity, cyberspace continuity in the federal system, and information
sharing across all levels regarding attacks, threats and vulnerabilities.

397
 No Greater Threat

For “threat and vulnerability reduction,” the initiatives are: enhancing law enforcement
capability to prevent and prosecute attacks (a priority which must be approached carefully),
national vulnerability assessment process, improved Internet protocols and routing, use of
trusted systems for digital control and data acquisition, reduce software vulnerabilities,
understand infrastructure independencies, prioritize federal cybersecurity research and
development, and assess and secure emerging systems.
For “security awareness and training,” the initiatives are: comprehensive national
awareness program for securing cyberspace at all levels even at the level of small business or
home users, access to adequate training and information for improving cyberspace security at
these levels, increased efficiency for federal agency cyber security training programs, and
coordinated and recognized professional cybersecurity certifications.
For “government cyberspace,” the initiatives are: continuously assess threats and vulnera-
bilities, authenticate and maintain authorized system users, secure federal wireless local area
office networks, improved security in outsourcing and procurement, and information and
security exchanges with state and local governments.
For the final priority of “national and international cooperation,” the initiatives are:
strengthen counter-intelligence efforts, improve attack attribution and response, improved
coordination for cyber attacks in the security community, working with international organi-
zations and agencies for a global culture of security, a national and international watch-and-
warning networks, and increased international involvement with the Council of Europe
Convention on Cybercrime.
The need for security is critical since cyber attacks are unique in their potential scope, the
speed at which the attack operates, the capacity to infect various systems, and the multipli-
cation of effects.
The Strategy notes five levels to reducing cyber threats and vulnerabilities: home user or
small business, large enterprises, critical sectors or infrastructures, national level security, and
global concerns. While protection software and firewalls can be installed, installers may not
always have the expertise to utilize them properly or update them, the result being that cyber
attacks upon those very supposedly- protected systems can continue. Also, vulnerabilities still
exist in computer software, with results that cyber incidents are increasing tremendously as
availability, ownership, and use of computers and of the Internet increases. The collective result
of vulnerabilities, weaknesses, security gaps, exponentially increasing usage, virus sophisti-
cation, and other matters, is startling: from almost no cyber incidents in 1997 to more than
80,000 just five years later.
The Cyberspace Strategy then identifies overall organizing principles for addressing the
five priorities: national effort, protecting privacy and civil liberties, use of regulation and market forces,
accountability and responsibility, flexible responses and approaches to cyber security and management, and
multi-year planning. The federal role also involves coordination with lead federal agencies in
certain critical infrastructure sectors that depend on computer systems for operation, the
overall lead agency being the Department of Homeland Security.
The Cyberspace Strategy makes several "action or recommendation" statements. For a
national “warning and response” system, it mentions coordinated efforts of the National
Communications System, the National Infrastructure Protection Center, the Office of Energy
Assurance, and the Critical Infrastructure Assurance Office. It discusses the use and expansion
of information sharing and analysis centers (ISACs). DHS would serve as a single and
continuous point of contact for interaction with private industry and others to create a broad-
view analysis of the health and status of cyberspace.

398
 Part VI: The Next Six Elements of a National Security State

Another initiative would be an out-of-band Cyber Warning and Information Network

(CWIN) for government and industry to include voice conferencing and data collaboration in
the event of an imminent warning of a cyber attack. All of this would be directed to a national
information management and incident response network.
For “threat and vulnerability,” the Strategy discusses improved methods of threat
assessment, and strikes an ominous tone about the importance of immediate threat response
and strong vulnerability controls:
Waiting to act until we learn that a malicious actor is about to exploit a particular
vulnerability is risky. Such warning information may not always be available. Even when
warning data is available, remediation of some vulnerabilities may take days, weeks, or
even years. As a result, vulnerabilities must be identified and corrected in critical net-
works before threats surface. The most dangerous vulnerabilities must be prioritized and
reduced in a systematic fashion.
The Strategy mentions the investigative roles of existing law enforcement agencies such
as the Department of Justice’s Computer Crime and Intellectual Property Section, the FBI’s
Cyber Division, and the Secret Service.
Continuing with themes of better threat detection and vulnerability reduction, the
Strategy mentions addressing special problems in Internet mechanisms, digital control systems,
software vulnerabilities, and physical infrastructures. Internet mechanisms, for example,
include moving to IPv6 protocols at use or soon to be used throughout Europe and Japan, rather
than IPv4 generally used in the U.S., a more secure domain name system for Internet message
routing, improved border gateway protocols for Internet messages, and out-of-band
management. There is further discussion of software vulnerabilities which create security
breaches, including disclosing and remediating vulnerabilities. The Strategy notes long-term
technologies, new communications methods, the necessity of addressing vulnerabilities, and
emerging research:
Emerging areas of research also can produce unforeseen consequences for security.
The emergence of optical computing and intelligent agents, as well as in the longer term,
developments in areas such as nanotechnology and quantum computing, among other
things, will likely reshape cyberspace and its security. The Nation must be at the leading
edge in understanding these technologies and their implications for security.
The Strategy emphasizes a comprehensive national awareness program, including the
need to make networks secure at the level of basic vulnerability problems such as pass-
word access and structure. This includes home users and small businesses who often are
not well informed or do not have the expertise to attend to cybersecurity, as well as large
enterprises where the problem may be too many individuals with too much access to sys-
tems and passwords, and larger networks which may not have engaged in security
updates due to inertia or cost factors. There are other areas where cybersecurity needs
upgrading including education, such as college campuses, and state and local agencies.
Each of these areas involves actions and recommendations.
The Cyberspace Strategy notes priorities of “government computer security,” and
“national and international cooperation.” Government issues include information gaps,
performance, management, and lack of system connection or information sharing
between agencies and departments. For national and international cooperation, the Strat-
egy notes the need to promote a global “culture of security” by coordinating with interna-
tional governmental and law enforcement organizations, a possible North American safe
cyberzone to include certain critical infrastructures areas, and a centralized point of con-
tact as a liaison for government and private efforts on a global level. This includes the
European Union and Organization of American States.

399
 No Greater Threat

The Strategy concludes with an emphasis on the importance of an aware, active, com-
prehensive, and coordinated cybersecurity strategy. It clear that there are numerous areas
of network vulnerability requiring careful attention.
[While this Cyberspace Strategy mentions protection of information, privacy, access, and
constitutional rights, there is little actual discussion of direct efforts to do so. And while there is
discussion of federal efforts to secure cyberspace and encourage private- government
partnerships as well as efforts by state and local governments, there is no discussion of related
concerns. These issues include: effects of federal law enforcement scanning the Internet,
increased scope of those investigations due to the PATRIOT Act, expanded use of computers in
identification and tracking programs such as SEVIS, US- VISIT, and Secure Flight, information
sharing abilities throughout the federal system, data-mining programs such as Terrorism
Information Awareness (discussed elsewhere), and information use, access, and storage /
retention. The lack of extensive discussion in this Strategy of these concerns, especially privacy
issues and potential abuses of investigative authorities, are serious gaps in the cyberspace
discussion.]
***
The next anti-terrorism national strategy document to note is the National Money
Laundering Strategy (2003). The 2003 version of this Strategy is the second such document issued
since September 11, although federal money laundering investigations and prosecutions
naturally have been in effect for some time, in many areas. The 2003 Money Laundering Strategy
is noteworthy for its expanded discussion of anti-terrorism, commentary on the PATRIOT Act,
and emphasis on wide-ranging approaches to investigating and prosecuting money laundering
or financing of terrorism. Similar to the Cybersecurity Strategy in its use of technical language,
it is also nearly as extensive as the Critical Infrastructures Strategy. Much more action-directed
and result- oriented, it includes numerous appendices such as significant cases, terrorist
financing outlines, and international efforts.
The Money Laundering Strategy, as do other Strategy documents, outlines the terrorist
threat and declares several goals and approaches for response. Of course, continued identifi-
cation, investigation, prosecution, and interdiction are among these. The Strategy notes:
Enhanced coordination and information sharing are essential. The USA PATRIOT
Act provided authority to enhance the flow of financial information relevant to money
laundering and terrorist financing (1) within the Federal government; (2) between the
government and financial institutions; and (3) among the financial institutions them-
selves. Under the 2003 Strategy, we are utilizing these new authorities to forge dynamic
new partnerships across all relevant government agencies and the financial sector to com-
bat terrorist financing and money laundering.
The Strategy notes the establishment in March, 2003 of a new office: the Executive Office
of Terrorist Financing and Financial Crimes (EOTF/FC) (which would work with FinCEN
(Financial Crimes Enforcement Network) a Treasury office expanded by the PATRIOT Act).
The Strategy mentions several high-profile cases and prosecutions concerning terrorist
financing, including a cigarette smuggling and tax evasion scheme involving terrorist group
supporters or members operating in North Carolina and using the proceeds to send funds to a
terrorist group in Lebanon.
The Strategy also mentions new regulations implemented by Treasury and FinCEN,
following authorities granted by the PATRIOT Act:

400
 Part VI: The Next Six Elements of a National Security State

These implementing regulations make financial transactions more transparent, pro-

vide the government with more information about financial activity in new sectors, and
deter misuse of the U.S. financial system by money launderers and terrorists. They also
promote closer cooperation between the public and private sector. By requiring financial
institutions to concentrate enhanced due diligence and suspicious activity monitoring on
terrorist financing and money laundering schemes or typologies, they enable financial
institutions to provide a much more effective first line of defense against money launder-
ing, terrorist financing, and other financial crime. The information provided by financial
institutions under the PATRIOT Act not only helps prevent money laundering and other
financial crime, but also plays an important role in creating the type of audit trail that law
enforcement can use to investigate money laundering and terrorism financing.
The Strategy states three overall goals: safeguard international financial systems, enhance federal
government investigation and prosecution authorities in money laundering and terrorist financing, and effective
regulation.
For the first goal, the Strategy notes several items:
— 315 terrorist related entities and individuals designated under Executive Order 13224,
with $136 million in assets frozen.
— 170 countries issued blocking orders against terrorist assets and 52 have submitted
names for designation by the UN Sanctions Committee.
— Estimated worldwide total of terrorist assets seized has risen to over $60 million.
—The DHS Bureau of Immigration and Customs Enforcement (BICE) has seized more
than $28 million in bulk cash smuggling due to increased investigation of money transfers. The
Strategy notes that more than 45 individuals have been prosecuted for terrorist financing,
money laundering, or material support for terrorism, including in Florida, Texas, Illinois, and
New York.
In international activity, the Strategy mentions UN Security Council Resolution 1373
(obligating member states immediately to freeze terrorist assets) and Resolution 1455
(requiring international investigation and prosecution of al Qaida and supporting groups or
individuals). There is mention of further activity with the Financial Action Task Force based in
Paris (mentioned elsewhere), including the FATF’s Forty Recommendations on Money
Laundering (revised in 2003) and Eight Special Recommendations on Terrorist Financing.
These and the PATRIOT Act have established tighter controls on foreign correspondent
banking and transactions with foreign political officials.
The FATF Eight Special Recommendations involve: UN International Convention for
Financing of Terrorism and related UN Resolutions, criminalizing terrorist financing and
support, freezing or confiscating terrorism assets, require suspicious activity reports by
financial institutions, assistance to law enforcement, attention to alternative remittance
systems, originator information in money transfers, and activities of non-profit organizations
which might be used to assist terrorists.
The Money Laundering Strategy also mentions involvement with other international
bodies including the International Monetary Fund (IMF), World Bank, FATF regional bodies
such as the Asia/Pacific Group (APG), Caribbean Action Task Force (CFATF), and Inter-
Governmental Action Group (covering West Africa). The Strategy notes the Egmont Group,
which represents 84 Financial Intelligence Units (FIUs) from various countries, and the Lyons
Group.
The Strategy describes several international investigation and enforcement efforts
involving interagency efforts including countries such as Philippines, Turkey, Serbia, and
Albania, as well as the federal use of country of concern designations, available under PATRIOT
Act Section 311. It notes actions against international alternative remittance systems (ARS),
including hawalas, informal money transfer methods often used in terrorist financing schemes.

401
 No Greater Threat

Various domestic efforts are mentioned: Organized Crime Drug Enforcement Task
Forces, High Intensity Financial Crimes Areas, High Intensity Drug Trafficking Areas, and
Suspicious Activities Reports Review Teams. These are linked with agency actions such as
BICE Office of Intelligence including the Numerically Integrated Profiling System (NIPS) and
“Operation Cornerstone,” the Department of the Treasury’s “Operation Green Quest,” other
Treasury units such as FinCEN and OFAC (Office of Foreign Assets Control), and FBI investi-
gative task forces.
Under the goal of enhancing federal government investigation and prosecution
authorities in money laundering and terrorist financing, the Money Laundering Strategy
mentions seven areas:
—interagency coordination,
—law enforcement agencies and task forces sharing financial information,
—focusing law enforcement on high impact targets,
—utilizing new statutory and regulatory authorities,
—international cooperation,
—improving federal interaction with private financial sectors,
—assisting state and local law enforcement in investigating and prosecuting financial
crimes.
In this goal, the Strategy also notes further development of BICE Operation Cornerstone,
described as “a new financial investigations program to identify vulnerabilities in financial
systems through which criminals launder their illicit proceeds, bring the criminals to justice,
eliminate the vulnerabilities, and develop a working partnership with industry representatives
to share information and close industry-wide security gaps that could be exploited by money
launders and other criminal organizations.” Several new initiatives by Operation Cornerstone
are mentioned, including working with private sector industries to gather new information and
reduce vulnerabilities, providing quarterly reports, and assigning a dedicated special agent to
each of BICE’s 25 field offices.
The Strategy reviews additional activities of OFAC, terrorist money laundering desig-
nations, and enforcement investigations. It references Section 314 of the PATRIOT Act,
which requires more information from financial institutions to federal investigative agen-
cies. The Strategy also notes recent availability for banks to file Bank Secrecy Act reports
electronically, as part of the PATRIOT Act Communications System (PACS), now opera-
tional. These filings will be utilized by Suspicious Activity Report Review Teams to iden-
tify potential terrorist financing or money laundering suspects.
The goal of more effective or efficiency regulation is given considerable detail, with several
approaches:
—completing regulations to implement anti-money laundering provisions of PATRIOT
Act Title III,
—review of effectiveness of anti-money laundering regulations (as part of a Treasury
PATRIOT Act Task Force which was to issue a report after review of regulations),
—continued cooperation among financial regulators,
—cyber vulnerabilities (including a report on addressing Internet vulnerabilities
exploited by terrorists to raise funds over the Internet),
—working with international partners and organizations to encourage adoption of
similar anti-money laundering regulations,
—expanding partnerships with the financial services industry,
—improving the quality and timeliness of regulatory guidance and feedback from
regulated entities,

402
 Part VI: The Next Six Elements of a National Security State

—strengthening public-private information exchange,

—expanding dialogue on privacy concerns, and
—enhancing enforcement and examination of money laundering regulations (including
possible expansion to the SEC and Commodities Futures Trading Commission).
The Strategy emphasizes international investigation, investigative authorities, coordi-
nation between investigative groups and task forces, regulation and information of financial
entities, and prosecutions. Much time is spent on success stories, and noting new initiatives,
task forces, regulations, and reports.
The appendix includes lists of money laundering defendants sentenced, PATRIOT Act
Title III investigative authorities, significant money laundering cases, and international activity.
(These detailed appendices will not be described here, but they are revealing in the scope and
effect of money laundering investigations both domestically and internationally and the range
of investigative authorities).
The Money Laundering Strategy sets out dramatic and ongoing federal agency efforts to
approach the "war on terrorism" through investigations into banking transactions, financial
information sharing, and money laundering or terrorist support prosecutions. It is plain that
these will be among the lead federal efforts in domestic anti-terrorism activity.

[Through this National Strategy there will be broader and more extensive activity at the
federal, state, and local levels in investigating and prosecuting terrorist financing and money
laundering, and that these activities have or will involve banks as well as all manner of financial
entities across the country. Like the Money Laundering Strategy itself, these efforts will be
relentless and single-minded, with little concern for privacy issues or the long term social
effects of the pervasive presence of these relentless investigations.]

***
These seven National Strategy documents are the core policy anti-terrorism position
papers describing federal anti-terrorism campaigns of all types at all levels. The remaining two
documents or policy descriptions on the list are of strong significance but less focused on
terrorism itself: the National Drug Control Strategy and the National Defense Strategy.

The National Drug Control Strategy is not a policy document devised as a response to the
September 11 attacks, since drug control has long been the topic of national strategy statements.
It has some bearing upon anti-terrorism in that federal government anti-terrorism statements,
enforcement activity, and even some statutory provisions (including some Sections of the
PATRIOT Act), link anti-terrorism investigation and prosecution with drug investigation and
prosecution. It is also well known that some terrorist organizations in South America and the
Middle East obtain financing through narcotics operations or trafficking.
Much of the Drug Control Strategy reviews more wide ranging domestic anti-narcotics
issues such as drug use among high school-aged students, continued drug investigation, and
public education about illicit drug use. The Strategy lists three major priorities: drug use
prevention, drug treatment and education, and disrupting drug markets and trade. Although the Drug
Strategy’s review of government programs to disrupt the drug market does not incorporate
much anti-terrorism language, it does mention of money laundering and the PATRIOT Act:

403
 No Greater Threat

Americans spend more than $63 billion on illegal drugs — money that must be laun-
dered to be usable by traffickers. It does little good to attack trafficking organizations and
leave the proceeds of their crimes untouched. Indeed, money laundering investigations are
often key to identifying such organizations in the first place. Anti-money laundering
efforts are thus critical to destabilizing trafficking organizations and limiting their power.
After discussing some aspects of money laundering (placement of funds into the laundering
system, layering of funds to hide their origin, and integrating funds by putting them to use), the
Drug Control Strategy states:
The money launderer is most vulnerable during the placement stage. The strategy of
the U.S. Government, both on the regulatory and enforcement sides, is therefore to attack
the placement of funds into the financial system. (Valuable new authorities created under
the USA PATRIOT Act will increase the government’s ability to attack transactions,
jurisdictions, and money laundering systems during the layering and integration phases
as well.)
The Strategy also mentions international drug control issues, and its discussion of
Afghanistan has some relation to anti-terrorism. The Strategy recognizes that after the fall of
the Taliban (when opiate production was sharply reduced), opiate production in Afghanistan is
expected to increase to more than twice that of Burma, the other major opium producer. The
Strategy states:
For post-Taliban Afghanistan, the stakes could scarcely be higher. By funding local
warlords, the Afghan drug trade contributes to local political instability. It also threatens
governments worldwide through the financial assistance that drug profits can provide to
terrorist organizations such as al Qaeda. For these reasons, the United States strongly
supports multilateral efforts to reduce the illegal opium and heroin trade that is returning
to Afghanistan.
These multinational efforts include as partner nations members of the G-8, particu-
larly the United Kingdom, which is the G-8 lead nation for counternarcotics programs in
Afghanistan. The aim of our multinational efforts is to diminish the destabilizing influ-
ence of illegal drugs in Afghanistan and break the links between Afghanistan’s drug trade
and its terrorist organizations. We intend to achieve these objectives through long-term
initiatives that will disrupt Afghanistan’s opium trade and provide alternative livelihoods
and economic opportunities, a real and effective rule of law, and an environment favorable
for an effective representative central government.
The Strategy states interdiction and enforcement efforts concerning Afghanistan will be linked
with establishing an Afghanistan drug policy agency and anti-drug law enforcement agency,
working with local judiciary to develop an enforcement mechanism and eliminate drug related
corruption. “Afghan military and law enforcement personnel will be trained and equipped to
perform the border and regional security functions that are vital to extending government
control to areas without the rule of law and permeated by the illegal drug trade.” It adds:
We will collaborate with the international community and international aid organi-
zations to create opportunities for legitimate economic livelihoods for Afghan farmers
and laborers through initiatives that provide micro-credit alternatives and subsistence
loans, legal crop substitution options, and cash-for-work programs for migrant workers.
Where possible, programs will be focused on project to redevelop the education, health,
public safety, social services, telecommunications, and transportation infrastructure for
Afghanistan.
The Drug Control Strategy includes an appendix detailing federal drug program spending ($11.2
budget for FY 2003, $11.6 billion funding request for FY 2004).

404
 Part VI: The Next Six Elements of a National Security State

[The Drug Control Strategy (2003) identifies clear links between federal government
policies on terrorism and drug trafficking, although many terrorist groups utilizing narcotics
trafficking as a funding source are local and regional, rather than global, and not all have a
stated objective of targeting the U.S. for terror attacks, focusing their battle with the U.S. on
law enforcement efforts to disrupt the drug trade. The Strategy does not note the extent to
which certain terrorist groups such as al Qaida have other funding methods or sources,
although many of those issues are mentioned in the Money Laundering Strategy.]

***
Finally, the National Defense Strategy (related to the National Military Strategy along with
the Pentagon’s five-year national defense strategy), presents perhaps the most expected of
national strategy topic reviews from the federal government viewpoint. The national defense
strategy reflects various documents, policy statements, or government pronouncements,
describing national defense posture and commitments.
These defense strategies address areas such as defeating adversaries, force readiness,
response requirements, preparation, and new threats or situations. Common themes are
strategic agility, overseas presence, power projection, and decisive force.
The defense strategy includes fighting and winning overseas wars such as both current
conflicts, global engagement, and peacetime military engagement. It declares readiness to
respond to regional dangers, transnational dangers, “asymmetric challenges” — that is the use
of force in ways not similar to or susceptible to immediate response of large deployments armed
forces — and “wild cards” such as threats or actions from unknown or not well known sources.
These initiatives are part of the Deputy Directorate for Strategy and Policy and the Joint
Requirements Oversight Council.
Part of the overall “strategy” is development and deployment of new weapons systems
and technologies, ranging from the F-22 Raptor fighter plane, to the Predator drone surveillance
or weapons delivery system, to a new generation of cruise missiles, and the next phase of mines
and anti-personnel weapons. There has also been tremendous growth in the past 15 years in the
use of laser-guided weapons, advanced telecommunications, and even field enhancements such
as night vision for infantry and depleted uranium munitions.
All of this, plus maintaining the present levels of forces and associated programs and
agencies, including the Department of Defense itself, comes as a substantial cost (although not
specifically mentioned in the Strategy) nearing $400 billion once all other military related
federal programs are included, in addition to the current spiraling costs of the Iraq and
Afghanistan wars.
This strategy is certainly among the most visible and ongoing of the national strategies.
The U.S. is engaged in daily conflict in two areas, and might be opening a third, depending on
developing situations in the Middle East and perhaps in Asia. Long term commitments are
absolute in this area.

APPENDIX 6-C

RECOMMENDATIONS OF THE 9/11 COMMISSION

For several months throughout 2003 and 2004, national attention was turned to the
hearings, considerations, and the eventual report of The National Commission on the Terrorist
Attacks on the United States. The authorized final published Report of the 9/11 Commission,

405
 No Greater Threat

comprising more than 400 pages and issued in July, 2004, is an exhaustive review of the circum-
stances leading up to, and surrounding, the September 11 attacks. It contains a comprehensive
assessment of policies, programs, investigations, strategies, attitudes, and approaches
concerning terrorism.
A good deal of the response to the 9/11 Commission Report, including the response by
Congress, concerns the Report’s recommendations. A complete review of the Report is not
feasible for present purposes. What follows are the recommendations of the 9/11 Commission
(summarized or abbreviated) appearing as bold type language in the last two Chapters of the
Report (beginning at p. 361 of the published report).

CHAPTER 12: WHAT TO DO? A GLOBAL STRATEGY

12.1 Reflecting on a Generational Challenge
[no Recommendations]
12.2 Attack Terrorists and Their Organizations
The U.S. government must identify and prioritize actual or potential terrorist sanctu-
aries. It should have a realistic strategy to keep possible terrorists insecure and on the run.
We should reach out, listen to, and work with other countries.
The U.S. should make the difficult long-term commitment to the future of Pakistan.
This includes sustaining the current scale of aid, supporting the Pakistan’s government in
its struggle against extremists, and assisting the country to commit to improving educa-
tion.
Afghanistan must not again become a sanctuary for international crime and terrorism.
The United States and the international community should help the Afghan government
extend its authority over the country, with a strategy and nation-by-nation commitments
to achieve their objectives.
Problems in the U.S.-Saudi relationship must be confronted, openly. The two coun-
tries must decide whether they can build a relationship that political leaders on both
sides can publicly defend — a relationship about more than oil. It should include a shared
commitment to political and economic reform in Saudi Arabia, and a shared interest in
greater tolerance and cultural respect, translating into a commitment to fight the violent
extremists.
12.3 Prevent the Continued Growth of Islamist Terrorism
The U.S. must define what its message is, what it stands for. We should offer an
example of moral leadership, committed to treat people humanely, abide by the rule of
law, and be generous and caring to our neighbors. America and Muslim friends can agree
on respect for human dignity and opportunity. By heeding the views of thoughtful leaders
in the Arab and Muslim world, a moderate consensus can be found.
Where Muslim governments, even those who are friends, do not respect our princi-
ples, the U.S. must stand for a better future. One of the lessons of the Cold War was that
short-term gains in cooperating with the most repressive and brutal governments were
too often outweighed by long-term setbacks for America’s stature and interests.
The U.S. should continue initiatives in radio and television broadcasting to Arab and
Muslim audiences.

406
 Part VI: The Next Six Elements of a National Security State

The U.S. should rebuild scholarship, exchange, and library programs that reach out to
young people. Where such assistance is provided, it should be identified as coming from
the citizens of the United States. * * *
The U.S. should engage its friends to develop a common coalition approach toward
detention and humane treatment of captured terrorists. New principles might draw upon
Article 3 of the Geneva Conventions on the law of armed conflict, which was designed for
cases where usual laws of war did not apply. Its minimum standards are generally
accepted throughout the world as customary international law.
The country must continue with efforts to stem the proliferation of weapons of mass
destruction.
Vigorous efforts to track terrorist financing must remain front and center in U.S.
counterterrorism efforts. * * *
12.4 Protect Against and Prepare for Terrorist Attacks
Targeting travel is at least as powerful a weapon against terrorists as targeting their
money. The United States should combine terrorist travel intelligence, operations, and
law enforcement in a strategy to intercept terrorists, find terrorist travel facilitators, and
constrain terrorist mobility.
The U.S. border security system should be integrated into a larger network of screen-
ing points that include transportation system and access to vital facilities, such as nuclear
reactors. The President should direct the Department of Homeland Security to lead the
effort to design a comprehensive screening system, addressing common problems and set-
ting common standards with systemwide goals in mind.
The Department of Homeland Security, supported by the Congress, should complete,
as quickly as possible, a biometric entry-exit screening system, including a single system
for speeding qualified travelers. It should be integrated with the system that provides
benefits to foreigners seeking to stay in the United States. Linking biometric passports to
good data systems and decisionmaking is a fundamental goal.
***
Secure identification should begin in the United States. The federal government
should set standards for the issuance of birth certificates and sources of identification,
such as drivers licenses. Fraud in identification documents is no longer just a problem of
theft.
There should be an effort toward new and practical approaches to securing transpor-
tation system and determining how these systems can properly be made secure at an
acceptable cost.
Improved use of “no-fly” and “automatic selectee” lists should not be delayed while
the argument about a successor to CAPPS continues. This screening function should be
performed by the TSA, and it should utilize the larger set of watchlists maintained by the
federal government. Air carriers should be required to supply the information needed to
test and implement this new system. There should be priority attention to improving the
ability of screening checkpoints to detect explosives on passengers. Each individual
selected for special screening should be screened for explosives.
[The Administration should safeguard individual privacy when sharing information.]
The burden of proof for retaining a particular governmental power should be on the
executive, to explain (a) that the power actually materially enhances security and (b) that
there is adequate supervision of the executive’s use of the powers to ensure protection of
civil liberties. If the power is granted, there must be adequate guidelines and oversight to
properly confine its use.

407
 No Greater Threat

[Recommending "a board within the executive branch" to oversee adherence to the
guidelines we recommend and the commitment the government makes to defend our civil
liberties.]
Homeland security assistance should be based strictly on an assessment of risks and
vulnerabilities. Government homeland security funds to states and localities should be
based on demonstrated vulnerability to terrorist attack and not be treated just as another
form of “revenue sharing.”
***
Congress should support pending legislation which provides for the expedited and
increased assignment of radio spectrum for public safety purposes.
We encourage the insurance and credit-rating industries to look closely at a com-
pany’s compliance with the ANSI standard in assessing its insurability and creditworthi-
ness.

CHAPTER 13: HOW TO DO IT? A DIFFERENT WAY OF ORGANIZING GOVERNMENT

13.1 Unity of Effort Across the Foreign-Domestic Divide
There should be a National Counterterrorism Center (NCTC), building on the foun-
dation of the existing Terrorist Threat Integration Center (TTIC). [NCTC should be a
center for joint operational planning and joint intelligence, staffed by personnel from vari-
ous agencies, with authority to evaluate performance of people assigned to the Center].
UNITY OF EFFORT IN THE INTELLIGENCE COMMUNITY
[Much of this is reflected in the Intelligence Reform Act]
The Director of Central Intelligence should be replaced by a National Intelligence
Director with two main responsibilities: (1) oversee national intelligence centers on spe-
cific subjects of interest across the U.S. government and (2) manage national intelligence
programs and oversee agencies that contribute to it. (See proposed intelligence organiza-
tional chart in Report, p. 413).
The CIA Director should emphasize (a) rebuilding the CIA’s analytic capabilities; (b)
transforming the clandestine service by building human intelligence capabilities; (c)
developing a stronger language program, with high standards nd sufficient financial
incentives; (d) renewing emphasis on recruiting diversity among operations officers so
they can blend more easily in foreign cities; (e) ensuring a seamless relationship between
human source collection and signals collection; and (f) stressing a better balance
between unilateral and liaison operations.
Lead responsibility for directing and executing paramilitary operations, whether
clandestine or covert, should shift to the Defense Department. That activity should be
consolidated with training, direction, and execution of operations being developed in the
Special Operations Command.
Overall sums appropriated for national intelligence and component agencies should
no longer be secret. Congress should pass a separate appropriations act for intelligence,
defending the broad allocation of how these tens of billions of dollars have been assigned
among varieties of intelligence work.
13.3 Unity of Effort in Sharing Information
Information procedures should provide incentives for sharing, to restore a better bal-
ance between security and shared knowledge.

408
 Part VI: The Next Six Elements of a National Security State

The president should lead a government-wide effort to bring the major national secu-
rity institutions into the information revolution. He should coordinate the resolution of
the legal, policy, and technical issues across agencies to create a `trusted information net-
work.’
13.4 Unity of Effort in the Congress
Congressional oversight for intelligence — and counterterrorism — is now dysfunc-
tional. Among the alternatives are a joint committee on the model of the Joint Committee
on Atomic Energy, and a single committee in each house of Congress, combining autho-
rizing and appropriating authorities.
Congress should create a single, principal point of oversight and review for homeland
security. Congressional leaders are best able to judge what committee should have juris-
diction over this department and its duties. Congress has the obligation to choose one
committee in the House and one in the Senate. This committee should be a permanent
standing committee with a nonpartisan staff.
Congress should accelerate the process utilized to confirm appointments, when con-
sidering national security appointments.
13.5 Organizing America's Defenses in the United States
A specialized and integrated national security workforce should be established at the
FBI consisting of agents, analysts, and surveillance specialists who are recruited, trained,
rewarded, and retained to ensure the development of an institutional culture imbued
with a deep expertise in intelligence and national security. [There are various specific rec-
ommendations for FBI and FBI field offices, and FBI coordination.]
[DOD should assess adequacy and strategies of Northern Command]
The Department of Homeland Security and its oversight committees should regularly
assess the types of threats the country faces to determine (a) the adequacy of the govern-
ment’s plans — and the progress against those plans — to protect America’s critical
infrastructure and (b) the reading of the government to respond to the threats that the
United States might face.
[These 9/11 Commission recommendations in their entirety were "codified" through
the Intelligence Reform and Terrorism Prevention Act of 2004, making them part of fed-
eral law. Also, many 9/11 recommendations concerning intelligence were implemented in
various provisions of that Act.]
##

During this time period, reports varied from 800 arrests to as many as 1,200 arrests, but this may be
due to the continuing timeframe as reports tracked the arrest incidents and the numbers grew. At this
writing, information on many of these detainees still remains unavailable or sketchy.
Don Van Hatta, “Arrests Have Yielded Little So Far,” New York Times, October 21, 2001. The article
reports that there have been 830 arrests in various places, but none so far had been directly linked to the
September 11 attacks and none had been charged with any crime related to the attacks. One of those
arrested and later released was a 29 year-old man in Evansville, Indiana who was working at the restaurant
that he owns, the Crazy Tomato, making spaghetti, when he was picked up by the FBI on October 11. The
FBI also arrested the man’s uncle and several other employees. They were taken to Kentucky and then to
Chicago, where they were jailed in the Metropolitan Correction Center. The apparent reason for the arrest?
It seems the restaurant owner had been given flying lessons at a firm called Tri-State Aviation as a gift from
his father-in- law. He had gotten his license and went on to get an instrument rating. After their arrest and
detention for a week during which the Indiana detainees staged a hunger strike, they were released without
charge or further explanation.
A relative of the restaurant owner arrested criticized the FBI tactics. She said, “I understand the
terrible pressure the FBI is under because they have been mandated to never, ever let this happen again. At

409
 No Greater Threat

the same time, if America is not safe from its law enforcement agencies, if you can be scooped up fixing
pasta and detained with no explanation and no communication, who among us is safe?”
Two individuals, one in Arizona and one in California, had been charged with lying to investigators
about their prior associations with suspected September 11 hijackers, but had not been charged with
advance knowledge of the attacks. As of the date of the article, these two were still being held.
According to the article, many other Arabs were arrested on mere association. One man, a 23 year old
Saudi national attending college in San Diego, eventually was released after being held for more than two
weeks, when no charges could be filed. Another detainee, however, was rearrested and charged with lying
to a grand jury when he testified that he knew only one, and not both, of two hijackers who had contact
with some students.
For additional details on many of these arrests, see article Amy Goldstein (and others contributing),
“A Deliberate Strategy of Disruption: Massive, Secretive Detention Effort Aimed Mainly At Preventing
More Terror,” The Washington Post, November 4, 2001. The Washington Post story identifies the restau-
rant owner as a former member of the Egyptian national rowing team and a U.S. citizen with a two year-old
daughter. His father in law is a U.S. foreign service officer and his mother in law can trace her lineage to the
American Revolution. According to the story, when the restaurant owner finally got back home, he ripped
up his pilot’s license. He left for Egypt to visit his parents and is unsure whether to return. If he does not
return, his restaurant business probably will close. His relative called it, “An American dream shattered.”
In an unusual public admission, the FBI announced in April, 2003 at a meeting of 100 Muslim commu-
nity leaders in Evansville, that the detention of the individuals, who became known as the “Evansville 8,”
had been an error, the result of a bogus tip. Thomas V. Fuentes, the FBI agent in charge in Indiana, told
those who had been detained, including Crazy Tomato restaurant owner Tarek Albasti (who with his wife
purchased the restaurant in 1997 after holding several jobs there), that “the situation that happened to you
was horrible.” Agent Fuentes said “on behalf of the FBI, I will apologize.” Nevertheless, according to a news
report, Fuentes said in a later interview that at the time, the FBI was “forced” to take action based on the
tip.
Albasti was the first to arrive in the United States, among other relatives and friends from Egypt who
later came to Evansville and eventually worked in the restaurant. However, after September 11 they ran
afoul of FBI investigations, mostly due to the flying lessons that Albasti had taken. The men were among 50
people held at material witnesses in maximum security jails without being charged. The bogus tip came not
from any terror investigation but from domestic difficulties between a restaurant employee and his wife,
who later told the FBI that her husband was suicidal and had planned to die in a plane crash. The FBI then
went into action. After weeks of detention in various locations, the government had decided not to file
charges.
Despite the FBI’s apology, business at the Crazy Tomato, which plummeted following the arrests and
news reports, has not returned to its previous level. Evansville, a predominately white city of 120,000, has
only 300 Muslim residents. See Robert E. Pierre, “FBI Apology Fails to Dissipate Cloud,” The Washington Post,
May 24, 2003.
Two individuals, one in Arizona and one in California, had been charged with lying to investigators
about their prior associations with suspected September 11 hijackers, but had not been charged with
advance knowledge of the attacks. As of the date of the article, these two were still being held.
According to the New York Times article, many other Arabs were arrested on mere association. One
man, a 23 year old Saudi national attending college in San Diego, eventually was released after being held for
more than two weeks, when no charges could be filed. Another detainee, however, was rearrested and
charged with lying to a grand jury when he testified that he knew only one, and not both, of two hijackers
who had contact with some students.

410
PART VII: THE NATIONAL SECURITY STATE SCORECARD, A
POSSIBLE FUTURE, OVERALL CULTURAL THEMES
Having reviewed some early sources of the national security state in America, conducted a thorough review
of the PATRIOT Act, and examined 12 major national security state characteristics, it would be useful
examine the current “scorecard” of these characteristics. How close is America to a potentially permanent
national security state? What overall trends are influencing America’s direction?

Any “rating” of national security state characteristics is inexact and subjective. The
ratings presented here are meant to encourage further discussion. Nevertheless, it reasonably
can be argued that some of the 12 characteristics have been fulfilled and others are close to that
point. That is, America is heading in the direction of a national security state, but has not
reached it yet. A full-fledged national security state of the type that America could become may
be only between five to ten years away.

THE RATINGS: A NATIONAL SECURITY STATE “SCORECARD”

In these ratings, a “100” score is the highest — that is, the “worst” in terms of a national
security state occurring. It cannot be declared what total score would herald the arrival of a
national security state. It is not necessary for every factor to reach 100 for the situation to have
passed the point of no return. But a score above 50 in a majority of characteristics would not
bode well.
Throughout this discussion, it has been said that a national security state, if it occurs, could
be permanent. While that is possible, there can be no reliable prediction of how long a national
security state could exist in America. National security states since World War II have existed for
various periods: some less than 10 years, some 50. (Greece is one example of military control of a
country which existed for less than 10 years.) Even extreme forms of national security states, of
the sort not possible in the United States, have in some cases lasted less than a decade. Of course,
even in a short time the situation can become serious. Only enormous internal upheaval or total
defeat in war has brought an end to some national security states. The objective is to prevent it
from happening at all.
To offer a general “rating” of the extent to which the characteristics of national security
state have been met in the United States of early 2002:
Visible increase in uniformed security personnel 100%
Lack of accountability of law enforcement and security officers 75%
Reduced role of the judiciary 30%
Secrecy of ruling authority and continued momentum of threat 60%
Media in service of the state 55%
National economic and political resources against security threat 85%
Patriotism leading to nationalism 60%
Lack of critical response by religious denominations 30%
Wartime mentality and permanent war economy 100%
Targeted individuals or groups 60%
Direct silencing of dissent 10%
Increased surveillance of citizenry 35%

411
 No Greater Threat

By these scores, America is close to being a national security state. The score is at or above 50 in 8
of the 12 characteristics, and 90 or above in 2 of those 8 (characteristics 1 and 9). However, the
scores are much lower in most of the remaining characteristics, including direct silencing of
dissent and surveillance of the citizenry. Two other scores to watch, which could worsen, are
the reduced role of the judiciary and the lack of critical response by religious denominations and
religious-based groups. These are among the most crucial of the as-yet-undecided factors.
There should be an energetic debate about these characteristics and how far along
America has come on each of them. A national security state can be avoided. To do so, attention
will need to be paid not only to the 12 clear characteristics but also to some general themes.

***
Comment at Close of 2004
Most certainly, the brightly painted bus which was sitting at the blinking road sign in
mid-2002, has moved past that sign. It is now headed pell mell down a road this nation has not
taken in perhaps 50 years, if that. And a very likely endpoint of that road, if there is one, is a very
steep slope. At the close of 2004, three observations can be made about these initial “ratings.”
First, since mid-2002 the “value” for each of the 12 categories has increased (where the
rating was 100, that figure stayed the same). In some instances, the increase was significant,
strongly suggesting that the nation is moving dangerously close to transformation into a
national security state.
Second, should a national security state develop, that development very probably will last
at least a decade, longer than the post World War II “red scare” of the 1950s and 1960s, even
without another major foreign terrorist attack on United States soil. This is due to several
factors:

— the permanency of major post September 11 statutes including the PATRIOT Act,
Homeland Security Act, Transportation Security Act, Intelligence Reform Act, and others
ranging from bioterrorism to visas to border security;
—new surveillance authorities and abilities authorized by these statutes, utilizing ever-
developing technologies which already place 1950s-era clandestine information gathering
methods in the realm of the horse and buggy;
—significant and permanent shifts in federal bureaucracy including the Department of
Homeland Security, a pervasive, dominant and secretive agency which, due to agencies
transferred to it, now manages of some of the nation's most powerful investigative offices;
—restructuring the nation’s intelligence organizations, representing another major
reconstitution of federal agencies since September 11;
— continued cultural attitudes of anxiety fostered by the ongoing “war on terrorism,
most notably consistent changes in "terror alerts";
— two ongoing wars in Afghanistan and Iraq, with the prospect of U.S. military
involvement in one form or another, until at least 2007;
— continued detentions at Camp Delta in Guantanamo Bay, although to date not one
single military tribunal has been concluded since detainees began arriving there in 2002, which
along with recent court decisions presents considerable uncertainty about the long-term
situation for Camp Delta detainees;

412
 Part VII: The National Security State Scorecard, a Possible Future, Overall Cultural Themes

— persistence of narrow, American-centered worldviews reflected in the Adminis-

tration’s seven major anti-terrorism “National Strategy” policy statements (see overall
description of these documents in Appendix 6-B);
— ongoing commitment of spending on military and warmaking, and
— the unfortunate reality that neither of the two major political parties, during the 2004
Presidential campaign or otherwise, has challenged the status quo regarding terrorism,
questioned central assumptions of anti-terrorism policies, or proposed reducing military
spending by even 10 per cent (the Democratic Party Presidential candidate, for example,
pledged to add two new divisions to the armed forces).
Third, the vigorous national debate, which was strongly urged here, on anti-terrorism and
the emergence of a national security state — a debate which must be critical and comprehensive
— has not yet occurred. It is a debate made all the more crucial given the developments noted
and others such as revelations of legal opinion letters circulated within the Administration
actually suggesting, concerning terrorism detainees, ways to minimize adherence by the U.S. of
prohibitions against torture in federal civil law, military law, or the Geneva Convention.
To be sure, several new books have appeared on terrorism concerns, there is continued
activity by civil liberties advocacy groups, and daily press reports on social or legal issues in the
"war on terrorism." There are civil liberties forums and anti-PATRIOT Act resolutions in
municipalities across the country. Notable insights were offered in the report and recommen-
dations of the 9/11 Commission. But the country has yet collectively to consider the nature and
rationale of the "war on terrorism" and its long term effects.
With these observations, at the close of 2004, it is useful to revisit the national security
state categories and suggest new "ratings,” as the country moves into 2005. Again, this is a
subjective process, not the result of any survey, and is intended solely to motivate discussion.

The NEW ratings for the 12 national security state categories are:
Visible increase in uniformed security personnel 100%
Lack of civil accountability of law enforcement and security
officers (and increased power or authorities of security officers) 80%
Reduced role of the judiciary and executive treatment of suspects 65%
Secrecy of ruling authority and momentum of threat 85%
Media in the service of the state 65%
National economic/political resources against threat 95%
Patriotism moving to nationalism 65%
Lack of critical response by religious denominations 40%
Wartime mentality and permanent war economy 100%
Targeted individuals and groups 75%
Direct silencing of dissent 30%
Increased surveillance of citizenry 60%

The original “ratings” totalled 700 out of a possible 1200, for an original overall “score” of
58 per cent. The new “ratings” total is 860, for a new overall “score” of 72 per cent. The new score of
72 per cent is an increase over the previous “score” of approximately 25 per cent. That new score
easily could be higher.

413
 No Greater Threat

Largest increases were in categories of: “reduced role of the judiciary and executive
treatment of suspects,” “targeted individuals and groups”, and “increased surveillance of the
citizenry.” Categories such as "wartime mentality and permanent war economy,” which already
were at a rating 100, would remain so in any case due to, among other things, two ongoing wars.
In "reduced role of the judiciary and executive treatment of suspects," there was some
positive progress in the Supreme Court cases which reaffirmed the judiciary’s role in the federal
government’s anti-terrorism activities, and in several federal appeals courts decisions rejecting
or criticizing those activities. Yet numerous federal appeals court cases supported government
action or abstained from a full review of them. Also, the Supreme Court's anti-terrorism
decisions did not declare it improper for the federal government to designate citizens as “enemy
combatants” or to seize and hold detainees at Camp Delta. The balance truly shifts with the
alarming increase in the range of actions which can be described as "executive treatment of
suspects" (discussed in detail elsewhere in Expanded Commentary for 2004 for Characteristic
No. 3). .
For "targeted individuals and groups," regardless of government statements denying
ethnic profiling and affirming that political protest and actions critical of the government are
essential activities and protected by the First Amendment, the government’s practice does not
match pronouncements. Rather, the government is doing all it can to watch, track, and monitor
foreign nationals, especially those from Middle Eastern countries residing in or visiting the
United States. It has dramatically increased its reaction to or monitoring of anti-government
activity or advocacy groups—this was made abundantly clear in the government responses to
protests surrounding the 2004 conventions of the Democratic Party in Boston and Republican
Party in New York.
There have been similar other incidents across the country, from New York to the District
of Columbia, to Florida, Denver and California. These incidents reveal extreme police response
to protest, thinly veiled police contempt for political activism, outright and unjustified
maltreatment of political activists, and infiltration or surveillance of political groups. This
should be to the shame of a government which claims that its anti-terrorism campaign is
intended to protect the American way of life and affirm constitutional values. There even
appears to be a return to return to “red squads” tactics. .
Activity in the category of "increased surveillance of the citizenry" is occurring more
slowly, but is inexorably moving toward a new daily way of life for the American public:
— surveillance cameras in public areas,
— private monitors inside government and commercial buildings,
— new biometric tracking methods for government identification functions such as visas
and passports along with their use in some commercial buildings,
— increases in data mining plans or activated strategies in this area,
— increased secrecy for both government and private sectors,
— new surveillance technologies,
— heightened security for most public and many commercial buildings,
—greater use of employee monitoring and background checks in employment sectors,
even those not connected to national security or to critical infrastructure,
—greater activity in government investigations through the Internet (for example, FBI’s
Carnivore, now DCS 1000, and several similar programs),
—implementation of the “Secure Flight” and “Registered Traveler” airline passenger
screening programs,
— the US-VISIT program,

414
 Part VII: The National Security State Scorecard, a Possible Future, Overall Cultural Themes

— new levels of personal identifications, with movement toward what will be "national
identity cards" chiefly through driver's licenses, and
— new security for a host of buildings and sites (ambitious plans for this and for many
other areas of national life are outlined in the National Strategy for the Physical Protection of Critical
Infrastructures and Key Assets. See summary in Appendix 6-B of this and other “national strategy”
policy documents on anti-terrorism).
If these trends continue, in addition to the expected use of potentially pervasive “smart”
tracking technologies such as RFID, in another 10 years Americans will not remember was the
country was like prior to September 11.
In contrast to these three categories showing the largest "ratings" increase from mid-2002,
the category of "patriotism moving to nationalism" moved only slightly, from a “60” to a “65.”
That is reflected, among other things, by the closeness of the Presidential election, showing a
deep division in the country on the direction and long-term impact of the war on terrorism, and
deep divisions reflected by recent polls on whether the war in Iraq was justified, whether there
should be a timetable for U.S. troop withdrawal, and whether in general the war on terrorism is
being properly waged. Also, there was no widespread public criticism of the Supreme Court
cases which reaffirmed the judiciary’s role in examining the constitutional impact and validity
of the federal government’s anti-terrorism actions.
There continued “support our troops” attitude is mixed with public uncertainty over the
Iraq war and the war on terrorism. One example of this was the exceptional response across the
country to Michael Moore’s Fahrenheit 911, a documentary directly critical of the Iraq war (and
which earned another Oscar nomination). Still, this characteristic is in a state of flux. With
another major terrorist attack on US soil, or similar event, this category could shift dramat-
ically.
The category of “lack of critical response from religious denominations” also only slightly
increased, from 30 to 40. It is not yet clear when major religious denominations will get more
serious about questioning the war on terrorism, beyond the occasional statement from this or
that national denomination office. For example, the National Council of Churches, from its own
headquarters, has been extremely critical of the entire anti-terrorism scene. Yet, it is unclear
whether individual congregations within NCC denominations are aware of NCC's statements
and have responded in kind. Until the headquarters of these denominations are as intense about
disseminating and encouraging response to their statements as they are about the issuing
statements, this situation will continue to go in circles, or rather, in a spiral, possibly heading
downward — just the sort of condition which can make arrival of a national security state that
much easier. Indeed, more than statements will be required if religious demoninations are to be
in the forefront of this national debate, which has core spiritual aspects.
In all, the national security state characteristics are moving in a disturbing direction.
Americans must take up these matters more seriously, and decide what sort of country this is to
be over the next 15 to 20 years.
****

AN OVERALL THEME: MASS MEDIA CULTURE

One trend of the national security state, beyond broadcast television news media being in
the service of the state in terms of reporting national government activity, is the role of mass
media culture. Mass media as a shaper of national perception, attitude, commitment, and
direction is a well-established national policy concept. Of additional concern is the already
significant increase in TV culture on the major networks of programs extolling and glorifying
law enforcement, investigations, and security agencies.

415
 No Greater Threat

On the three major commercial television networks (ABC, NBC, CBS), numerous such
programs currently exist in nearly every prime time slot. They are: NYPD-Blue, Law and Order, Law
and Order SVU, Law and Order/CI [Criminal Intent], The District, Third Watch, JAG, The Agency, CSI [Crime
Scene Investigation], Alias, Profiler, Crossing Jordan, and UC: Undercover. The total is 13 one-hour
prime-time programs with content devoted to law enforcement or government agencies. (Of
additional consequence is that many of these programs focus on investigation of violent crime,
usually murder. That amounts to perhaps seven murders every week being presented to
television viewers as central facets of the episode storyline.)
This is a significant number for the prime time programming hours available among the
three major commercial networks. Some additional programs related to the same general topic
are lawyer shows such as Philly, The Guardian, and The Practice. One program which does not fall
squarely into this group is The West Wing. While that drama is about the national government, it
is not often flattering to its White House cast of characters, including the President. If that is
counted, the number is 14.
Assuming the core of evening prime time is 8 pm to 11 pm (ET), and considering weekdays
only, this is 15 hours of core prime time programming per week on any given network, or 45
total weekday prime time hours for the three major commercial networks. If at least 13 of those
hours are taken up by programs devoted to criminal investigation, law enforcement, and
government agencies, then nearly 30 percent of total core prime time network programming
already is devoted to these topics. That is a substantial portion of the available prime time
programming hours; much of the remaining programming hours can be considered reserved for
sitcoms, dramas, investigative programs, movies, sports, and specials. So the prime time
programming devoted to law enforcement and government agency content ranks even higher in
significance and in viewer impact.
This assessment does not include the one-half hour per weekday of network news, which
runs between 6:30 and 7:30 pm (ET). That can be deemed as even more content of the same sort,
albeit devoted to reporting, since the news almost always involves government or government
agencies, including national security activities of the national government and the latest
information about current military action abroad.
Very likely, network television will offer more such programs in the wake of September 11.
Already a major network has aired a prime time movie “The President’s Man” which involved a
covert, one-man operation to capture — of course — a major Middle Eastern international
terrorist. The highly-trained commando was supported — of course — by state-of-the-art,
high-tech backup.
The fall 2002 prime time television lineup on the three major commercial networks (NBC,
CBS, ABC) will be most fascinating. Americans should be watching closely as networks hold
their affiliate season launch events, followed by on-air promos in the summer of 2002 for the fall
season. If the total percentage of such programming goes over 40 per cent of total prime time
hours, it will become a situation worthy of national discussion. That would be an overkill of
programming on this content, aside from daily national network news.
As has been mentioned, television is more than the three major commercial networks.
Other national commercial networks such as Fox, WB, and UPN, also field programs devoted
to law enforcement and government agencies, either as original programming or acquired
programming (re-runs).
Content on certain cable channels already is heavily devoted to the military or law
enforcement. These include the History Channel, the Military Channel, Court TV, FX, and the
Arts & Entertainment Network (depending on the movies and biographies it may be showing).
Among this programming are shows such as The Shield, Combat Missions, World’s Wildest Police

416
 Part VII: The National Security State Scorecard, a Possible Future, Overall Cultural Themes

Videos, Mail Call and re-runs of Profiler, JAG, Cops, and NYPD Blue. Add to this movies on these
topics appearing on standard cable channels such as HBO, Bravo, Turner Classic Movies,
American Movie Classics, and a host of other standard, premium, or digital cable movie
channels almost too numerous to count. It amounts to an overwhelming presence of national
television programming about government agency activity of one sort or another, or the
military.
The sheer number of commercial, cable, and satellite channels might seem to work against
the prospect of monolithic TV content. That would be so if the content actually reflected the
variety of the channels themselves. It does not. Television content in the main is moving toward
the center, becoming less bold, less adventurous, less dynamic, and certainly less critical. If the
center of the American viewing public has itself become more patriotic and more supportive of
the national government, the mass media not only will follow that trend but will shape it in
turn.
To digress slightly, cable television originally was conceived as the salvation of the
viewing public from the sameness of the mass culture commercial networks — it was to save
television from itself. It was to offer the new “electronic town meeting” and to present new
vistas of locally-generated, community-minded issues programming and entertainment. It
would put the power of television in the hands of the communities. How much has changed.
Now cable TV is just as commercial as network TV. And many cable channels are owned and
controlled by the same entities which own and control network TV. In television, it seems, the
more things change, the more they stay the same.
Reaching back to Marshall McLuhan’s famous phrase, “The medium is the massage,” it is
evident that the concept is no less significant today.1 He suggested that the medium, especially
the powerful mass medium of television, actually “massages” the collective viewership and
makes the viewership more susceptible to the objectives of those who would use that medium
for specific ends — be that the continuation of the consumer culture or more narrowly defined
national goals. His assessment of television as a “cool” medium, meaning that it is viewed
passively, silently, without the requirement of interactive response, underscores both the
pervasive quality of television viewing and the enormous power of the medium to shape as well
as to follow public trends and attitudes.2
Beyond television, Hollywood is about to weigh in, in force. Little time was wasted in
releasing films like Blackhawk Down, We Were Soldiers and Behind Enemy Lines. More such films
undoubtedly are on their way. Positive-leaning World War II films are already on the upswing,
such as The Mandolin and Wind Talkers. From this point forward, American commercial television,
cable television, and film industries will offer a steady diet of law enforcement and military
themed productions, increasingly presenting these agencies in a positive light. Much harder to
find among major studio releases will be films like Training Day, about a corrupt narcotics
detective, Spy Game, revealing the chess-like, morally ambiguous inner workings of the CIA,
Three Kings, which concentrated on the absurdities of the Gulf War, The Thanks of a Grateful Nation,
which examined Gulf War Syndrome, and Courage Under Fire, which showed the human error
and the dangerous intra-squad rivalries in Gulf War combat. Most assuredly, films like
M*A*S*H, Coming Home, Apocalypse Now, Full Metal Jacket, The Thin Red Line, Platoon, and Good Morning,
Vietnam, all unabashedly critical of the Vietnam War, or The Deer Hunter, the masterful and
introspective film about the transformation of a group of steel-town friends exposed to that

1. Marshall McLuhan and Quentin Fiore, The medium is the MASSAGE: An Inventory of Effects (Produced
by Jerome Agel, 1967).
2. Marshall McLuhan, Understanding Media: The Extensions of Man (MIT Press, 1964).

417
 No Greater Threat

war, would likely never see the light of day, or even pass script review, in today’s entertainment
atmosphere. Instead, Americans soon will be served a steady diet of gung-ho, 120-minute
advertisements for military recruitment. In fact, it is hardly surprising that now, armed forces
recruitment commercials are among the advertisements being shown to movie audiences before
the usual movie trailer previews.
***
Comment at Close of 2004
After more than two years since mid-2002, the mass media culture in America has done
little to distinguish itself in any bold or courageous way. When it comes to prime-time
television programming, there are (or were) even more new programs in the overall genre of
cop/ crime/ threat/ military/ go-get- ’em, good guys. These included a new CSI series (CSI New
York), a new CIA-style investigative program (Threat Matrix), and a new military tech program
(Tactical to Practical). Some have left the screen, but there will be more to come. Along with these
is the current programming line-up and the endless re-runs of the same programs noted in the
original discussion. Add to this, the continued distressing sameness of news content on
commercial network news programs and on cable news-info channels. Not to be forgotten are
the reality shows, sit-coms, game shows, entire cable networks devoted to topics such as food
or shopping or sports or style or travel, and the plethora of movie channels all showing movies
that everyone has already seen. The overall result is still, in the main, junk. The best news
program remains Comedy Central’s The Daily Show (which almost, but not quite, makes up for
some of that channel’s more baseless offerings such as The Man Show and the vulgar South Park).
Anything more to be said about this situation would be repetition. The continued “vast
wasteland” of commercial and cable television content, stretching to the horizon, is one reason
for the absence so far of the major national debate, so urgently needed, on the potential
emergence of a national security state.
***

AN OVERALL THEME: THUNDEROUS STARS AND STRIPES

A precarious combination of national security state characteristics is occurring: media, if
not in direct service to the interests of the state, then coming close to it; patriotism edging
towards nationalism; and the overall theme of mass media culture. Patriotism itself as a new
national norm seems here to stay, even if it does not further advance into the more dangerous
nationalism that is a characteristic of a national security state — and the extent of that
development is still uncertain. Already, patriotism is so “in” that the American flag has been
picked up by the consumer culture to sell its products, from cars to candy bars.
The “new” patriotism which has taken hold since September 11 now will be continually
reflected and amplified in the media culture, as television culture responds to the trend by
producing programming designed to express and capitalize upon it. This interplay will initiate
a cycle of media amplifying the new patriotism which will then increase in influence as it is
further reinforced and legitimated, in turn generating further media culture amplification. This
cycle is likely to be repeated for the next two to three years — at least through the present Bush
administration and the 2004 Presidential election.
The potential ultimate result of this likely ever-increasing cycle has never before been
experienced, not even in World War II when messages on everything from product boxes to
cartoons to print, film, and television, were in service to the war effort. The particular
combination in process now is placed in the context of the ominous progress also being

418
 Part VII: The National Security State Scorecard, a Possible Future, Overall Cultural Themes

experienced in various other national security state characteristics. In addition, television in the
1940s was in its infancy, with extremely limited channels which were not on the air 24 hours a
day. The existence of 50 to 75 basic cable television channels was not even on the horizon.
Movies were not being produced in the same quantity and certainly were not being duplicated
and given the opportunity for indefinite multiple additional exposure to viewers through videos
and DVDs. There was no Internet to further replicate media offerings, such as through national
network channel websites. Print did not exist in the variety that it exists today, even if there
may be fewer metropolitan newspapers — a trip to the magazine section of a local bookstore
would confirm that. As well, ownership of these scores of media entities and outlets was not as
concentrated in the hands of a limited number of media mega-conglomerates.
The public now encounters a pervasive, more varied and yet more concentrated media
culture capable of much greater influence upon other national security state characteristics. As
patriotism moves forward and the media culture responds, creating the cross- effect between
these developments, the overall impact could be much greater than ever before witnessed.
Encompassing that patriotic response is a trend to recall America’s glory days of war.
Specifically, those would be three recent American conflicts: World War II, Korea, and (a
revised) Vietnam. American losses in those wars cannot be minimized. But a sense of
perspective must temper the new cheering. Americans should recognize that the greatest losses
were sustained by the peoples of the nations where those wars were fought. Vietnam, for
example, suffered great civilian casualties, was subjected over the course of years to the most
sustained bombing ever delivered to a single nation, and was exposed to tons of defoliants of a
type and a quantity never before used anywhere.
There also should be an undercurrent of recognition that war is still hell. The sacrifice of
soldiers is still the total sacrifice of mostly young men — on both sides. Further, wars seldom
ultimately settle larger issues, just as the current war in Afghanistan will not settle the scourge
of terrorism.
This revisionism of America’s wartime experiences continues as part of a need to establish
the United States as the pre-eminent moral force in the world, at least in the view of the
American public. Yet, no nation can make that claim. There are no angels among the world’s
collection of nation states.1

AN OVERALL THEME: EDUCATION

Also more of a theme than a particular factor in the arrival of the national security state is
the nature and tone of the education system. Crucial to the formation of the national security
state and the atmosphere of its continuation is what is being taught in the schools about the
government, the nature of overnmental claim to legitimacy, the principles behind the
Declaration of Independence, the Constitution and the Bill of Rights, and the role and responsi-
bility of the citizenry in shaping and responding to governmental policies. Here there must also
be careful consideration of educational reaction to the September 11 attacks, the new powers
granted by the PATRIOT Act, and the US military activity abroad including the war in
Afghanistan.

1. One example of the new patriotism phenomenon is a book, Mike Radford, The Rebirth of Patriotism
and Old-Fashioned Values (Patriotism Foundation, 2nd Ed. 2002) (Second Printing Dedicated to 9-11-01). The
book, with endorsements by Mary Eisenhower and (former) Senator Bob Dole (R-Kan), is a personal
journey of patriotism, war veterans, and famous patriotic Americans. For more information see:
www.mikeradford.com and www.patriotismnow.com

419
 No Greater Threat

American schools should not be reticent to teach the American history of the long
struggles for freedom and rights throughout the American political landscape. They range from
early labor movements, the rise of the public health movement, beginnings of worker safety
issues, the suffrage movement, anti-slavery revolts, movements for public education and against
child labor, treatment of the American Indian, civil rights, women’s movements, gay rights
movements, and the earliest concerns for the environment.1 Exposure to this history would
provide a needed perspective and would demonstrate that government is not always right,
political systems are fallible, and an informed and aware citizenry, able to think critically and
challenge prevailing assumptions, is the best defense against tyranny.
First Lady Laura Bush has talked after September 11 about the need to assure children that
they are safe and that the adults around them are committed to their safety. That much is surely
important. But what goes on in the schools beyond this, in social studies and civics classes in
public elementary and high schools along with religion classes in parochial schools, could lead
to a new base for the arrival of the national security state. Education must be critical as well as
informative, thought-provoking as well as factual. America’s educational system must be up to
the task. Waving the flag and assuring children of their safety is not enough.

AN OVERALL THEME: “PATRIOT ACT PROGENY”

With the power, strength, scope, and force of the PATRIOT Act slowing seeping into the
political psyche, state legislatures are deciding that similar powers for state law enforcement
agencies could be expanded or duplicated under state law. The result is the beginning, in the
2001 and 2002 sessions, of a new trend — state assemblies from California to Maryland are
considering or have passed one or more “anti-terrorism” bills designed from, or taking
inspiration from, the PATRIOT Act.
For example, more than 10 anti-terrorism bills dealing with various subjects were
introduced in the Maryland General Assembly. They range from permitting the governor
expanded authority to declare state emergencies and impose quarantines for terrorist-
sponsored health crises, to limiting the civil liability for state police forces and National Guard.
Other bills in Maryland and other states would allow for roving wiretaps and other surveillance
powers to be employed by federal investigators under the PATRIOT Act.
In California, Governor Gray Davis has proposed that his state’s police agencies be given
the same expanded authority to fight terrorism that federal agencies now have under the
USAPA. These expanded powers would permit state agencies to request expanded wiretap and
other surveillance orders from state courts. This will bring previously unheard-of powers to
state and local levels where abuses are even more likely and effective monitoring or control are
less likely (which is not to applaud the expanded investigative and surveillance authorities
given to federal agencies by the USAPA).
The bills also propose establishing various committees, commissions, councils, or
advisory boards for the governor or legislature. They would deal with issues like infrastructure
security, terrorist preparedness, threat assessment, and civilian “protection.” The civilian
population of this country is about to be “protected” out of all reason.
These “Fellow PATRIOT Acts,” which have been or are likely to be passed in some form in
numerous states, further will compound the already dangerous increase in governmental
surveillance power and could even have a more extensive effect on civil liberties. For example, it
is possible that these laws will not be as precisely drafted as the PATRIOT Act or as carefully

1. An excellent text for an examination of this history is Prof. Howard Zinn’s well known work, A
People’s History of the United States (HarperCollins 1980),

420
 Part VII: The National Security State Scorecard, a Possible Future, Overall Cultural Themes

enforced. Further, it is very likely that these state laws will not “sunset” as do some of the more
troubling provisions of the PATRIOT Act. Also, it is guaranteed that additional state PATRIOT
Act-style legislation will result in additional demands upon financial and other resources.
A Different Reaction: Not all states and municipalities are following in the wake of the
PATRIOT Act. Mention must be made of developments that suggest a more varied response.
Some cities have passed resolutions criticizing the Act as a threat to civil liberties or (symbol-
ically) refusing to enforce it or support it (reported in an article published by ABC News on July
1, 2002, and also reported in The Village Voice on June 26, 2002 [article by Nat Hentoff]). These
actions have been taken in Cambridge, Northampton, Leverett, and Amherst (all in
Massachusetts), Ann Arbor (Michigan), and Berkeley (California). A similar resolution was
passed in Denver (Colorado) and another was recently approved in Boulder. The Denver
resolution said that the police should not seek or collect information about political, religious,
or social associations or activities of any citizen “unless the information relates to criminal
activity and the subject is suspected of criminal activity.”
A Councilmember in Cambridge, Brian Murphy, said that it was “important that
communities send a message” that there is opposition to this Act. A Councilmember in Ann
Arbor, Heidi Herrell, said, “We’re very concerned about civil rights and about potential
discrimination against members of our community.” A Councilmember in Denver, Kathleen
MacKenzie, said about the resolution there, “We were concerned about the abridgement of free
speech because of national security concerns.” She pointed to a pervading atmosphere against
criticizing the government which she said was frightening and reminiscent of the McCarthy
era. She said that giving up the right to dissent was “too high a price” to pay. Other Denver
Council members felt differently, but the prevailing view behind these resolutions was for the
municipality to express clear opposition to the approach and effect of the PATRIOT Act.
These activities are highly significant examples of ways in which the development of a
national security state can be averted. If state or local political and community leaderships are
willing to take a plain and public stand against government machinations which threaten
human rights, there is hope for us all.

***
Comment at Close of 2004
The “resolutions movement” against the USA PATRIOT Act continues to grow. Anti-
PATRIOT Act resolutions across the country, in communities large and small, in big cities, and
in four State legislatures, now number more than 370 (as 2004 comes to a close). A lead organi-
zation in this movement, the Bill of Rights Defense Committee (BORDC) continues to track
these developments and to issue useful and informative updates on its website in addition to
regular e-newsletters, resources, and reports. Sadly, the mass media has paid little attention to
these developments, which is perhaps to be expected but nevertheless represents a huge gap in
major media coverage on the PATRIOT Act and the war on terrorism.
Much overlooked as well has been the impact of this anti-PATRIOT Act resolutions
movement, and anti-PATRIOT Act sentiment express elswhere, upon the Administration. The
Administration's response has included everything from a special Department of Justice
website on the PATRIOT Act “lifeandliberty.gov,” a multi-city tour by Attorney General John
Ashcroft on the statute, consistent statements by the Department of Justice and the FBI on the
usefulness of the PATRIOT Act, and direct mention of the Act's importance in the 2004 State of
the Union address and in the Presidential campaign. Also overlooked is the fact that the
presence of this anti-PATRIOT Act movement and the consistent, immediate response of civil

421
 No Greater Threat

liberties organizations to the potential “PATRIOT Act II” statute (proposed Domestic Security
Enhancement Act of 2003) when it was leaked in February, 2003, indisputably was a major
reason that the Administration did not submit that statute, intact, to Congress. (If it had been
submitted, the statute which might well have been approved in Congress, given the huge
approval margins for the PATRIOT Act and Republican Party control over both Houses).
Such critical responses, and the public forums which often accompanied resolution
campaigns, must continue. They are not a substitute for the national debate which still must
occur on the national security state, but they are an important component of such a national
discussion.

Another interesting initiative to challenge the prevailing view of "security" and "national
security" pervading standard responses to the "terror threat" has been launched by the advocacy
group, Physicians for Social Responsibility. It is called "SMART Security" (Sensible,
Multilateral, American Response to Terrorism). The program fits with PSR's general approach
(since the time in the 1980s when it originally became well known and active) of urging nuclear
disarmament and opposing nuclear weapons proliferation and expansion.
SMART Security emphasizes funding local emergency responders and encouraging better
preparedness for any terror attack using chemical, nuclear, or biological weapons or methods. It
also goes farther than that, seeking national action on three main points:

1) strengthen institutions and support the rule of law to prevent terror attacks and future wars — which
would include increasing funding for humanitarian programs and rejecting "unilateral preemptive wars,"
2) reduce the threat and stop the spread of nuclear weapons and other weapons of mass destruction —
encouraging national leadership on these issues and honoring international commitments on nuclear weapons
reduction, and
3) changing the budget process to reflect SMART security needs — such as reducing military spending by
among other things eliminating obsolete and unnecessary weapons systems and providing adequate funding for
peacekeeping efforts and redevelopment in "troubled nations" such as Afghanistan and Iraq.

PSR's SMART program declares that the U.S., for all its military might, is not being
"smart" about security. The program rejects a "go it alone" approach to terrorism focusing on
military action, which the SMART initiative says is "doing more harm than good." In that
respect, PSR states that its SMART program is part of the physician's motto to "first, do no
harm." A further examination of this SMART program, described on the PSR website, is
encouraged.
Other organizations, coalitions, and communities (that is, more than just the expected
anti- war or anti-government groups) on various places along the political spectrum, have
developed similar programs, campaigns, or initiatives regarding the current national response
to the "war on terrorism." These include faith-based groups and coalitions (such as Sojourners,
the American Friends Service Committee / Friends Committee on National Legislation, Pax
Christi USA, and the Fellowship of Reconciliation), advocacy groups of various types, and even
moderate groups such as People for the American Way. An entire list can be made of these
various programs and initiatives challenging the approaches, assumptions, methods, and
objectives of the current "war on terrorism."
Nevertheless, the task in turning the bus around is daunting. The immediate “psychic”
impact of September 11 may be fading, but the overall impact of the federal statutes, Adminis-

422
 Part VII: The National Security State Scorecard, a Possible Future, Overall Cultural Themes

tration policies, and other government actions and programs which followed, will be with this
country for years to come, making resolution movements and critical responses such as these
crucial to any national debate on whether this country is becoming a national security state.

***

AN OVERALL THEME: UNITED STATES AND THE MIDDLE EAST

Since so much of the terrorism issues facing the world relates to the Middle East, some
passing mention must be made of that area. This is not about the history of political issues in
the Middle East since 1944, so there is little point getting into detail. As a general approach,
Americans need to take a critical look at what role the United States should play in the next 20
years in the long term policies and goals of all the peoples of the Middle East, not just Israel and
Palestine. Ultimately, the true path to sustained and lasting peace must be taken by the peoples
there. It cannot be imposed by any outside nation.
However, a new campaign of political rapprochement, economic development, environ-
mental renewal, small business encouragement, and declining to respond to extremism in any
form, will help. So will an inclusive political approach drawn from and reviving the basic
frameworks established in UN Resolutions (especially Security Council Resolution 242 (1967)
[calling for an end to the 1967 war and withdrawal of Israeli troops to pre-1967 boundaries] and
Resolution 338 (1973) [reaffirming the call to peace, withdrawal, and demilitarization after the
Yom Kippur War]), the Camp David Accords (1978) and the Oslo Accords. A recent United
Nations Security Council resolution supported by the United States endorsed a Palestinian
state and demanded an immediate cease-fire of the conflict that was still raging at that time.1
Progress also would be made by a decision by the United States to shift its support more
to economic aid rather than arms transfers, and to join in an all-out effort to halt arms transfers
and demilitarize the region.2 This would include Middle Eastern nations such as Saudi Arabia
and Egypt, which each year receive billions in United States foreign aid, much of it military
assistance.
According to available State Department information, in fiscal year 2000 alone, United
States aid to Egypt included $1.325 billion in foreign military financing (FMF) to support “a
modern, well trained Egyptian military that will help ensure stability in the region.” The
request for fiscal year 2002 is the same. The figure for the Economic Support Fund (ESF), a
different sort of aid geared to economic development and job creation, was $727 million, only
about half of the military assistance figure. As to Israel, the FMF and FMF supplement totaled
$3.1 billion in fiscal year 2000, with ESF of about $1 billion in additional funds — one-third of
the military aid. The fiscal year 2002 request for Israel was $2.04 billion for FMF and $720
million for ESF. Aid to Saudi Arabia is similar, with billions going to military assistance
programs.United States aid to the West Bank and Gaza in fiscal year 2002 was only $485
million in ESF and ESF supplemental; no FMF. In fiscal year 2002, the request was for only $75

1. See Associated Press, “U.N. Council Swiftly Approves U.S. Resolution For Mideast,” The Baltimore
Sun, March 14, 200.
2. See Tom Raum, “U.S. Tops World in Supplying Weapons, Despite Slowing Demand,” Associated
Press, August 8, 1999. The story stated that the U.S. in 1998 retained its position as the world’s largest
supplier of weapons, totaling $7.1 billion in global arms sales. This was up from $5.7 billion the year before.
Citing a Congressional Research Service study of United States arms sales, the story noted that nations in
the Middle East such as Saudi Arabia, Israel, United Arab Emirates, Algeria, and Kuwait were among the
top purchasers of United States weapons. Other nations included Ethiopia, India, Malaysia, and South
Korea. Weapons included ranged from fighter jets and helicopters to artillery tanks and armored vehicles.

423
 No Greater Threat

million, also with no FMF. United States aid to Jordan in fiscal year 2002 was about equal in
FMF (and supplemental) about $220 million, and in ESF (and supplemental), about $200
million. In fiscal year 2002 for Jordan, the ESF request was $150 million and the FMF request
was $75 million. The State Department information said that the FY 2002 ESF request of $150
million “will seek to address Jordan’s most pressing development challenges: too little water,
rapid population growth, and too few jobs.” However, that figure is approximately one tenth of
the $720 million request for ESF aid to Israel for 2002, and is, actually, a drop in the bucket
considering the cost for a long term development strategy for an entire country.1
Yet, if international cooperation is being sought, US aid to “Middle East multilaterals”
was a mere $2.8 million in fiscal year 2000, with a 2002 request of about the same, $3 million.
United States aid to develop democratic cultures in the Middle East (“Middle East democracy”)
was $6 million in fiscal year 2000. The request for fiscal year 2002 also was about the same: $7
million. The information states that “a vibrant civil society encourages greater citizen partici-
pation in government decision-making and increases government accountability and respon-
siveness to citizen concerns” and “respect for the rule of law and human rights is another
cornerstone of a democratic society.” Yet the U.S. yearly commitment to this important goal and
to support certain groups in the Middle East working toward these ends is far less than the cost
of a single fighter plane.
For Middle East “cooperation” aiding cooperative groups such as the Middle East
Regional Cooperation Program initiated after Camp David, fiscal year 2002 aid (ESF) was $10
million. For 2002, the Bush Administration request was half that figure: $5 million. How
quickly does the Pentagon spend $5 million? How quickly was $5 million spent in the Afghan
war? Overall, for true peace and security to take hold and develop in the region, many of these
figures need to be reversed.
Foreign aid figures for the Middle East by the United States government do not match
foreign aid attitudes of American citizens, who wish for the development in the region of viable
democratic governments which respect human rights. And more military aid in the billions of
dollars, every year, will not necessarily achieve “stability” in the region, particularly when aid to
cooperative groups and democratic initiatives is so minuscule. The United States must also
recognize that its government and corporations are among the world leaders in arms sales and
arms transfers.
Added to these ironies is the further American support for the economic sanctions against
Iraq following the Persian Gulf War. Iraq surely should be called to account for its role in that
war and for its continued belligerence in its treatment of international inspectors seeking to
verify Iraq’s compliance with prohibitions against developing biological weapons and weapons
of mass destruction. Yet international attention and criticism of the sanctions, as well as first-
hand reports from bold Americans who have traveled to Iraq as part of the “Voices in the
Wilderness” campaign to see the situation for themselves, have pointed out that the economic
sanctions have not had this effect. Instead, the years of economic deprivation have resulted in
extreme, severe hardship on the Iraqi population, especially children, and have stunted
economic development there. Meanwhile, the regime of Saddam Hussein still lives in luxury
and still shows no signs of weakening. A comprehensive and compassionate approach to the
Middle East would include a re-evaluation of the sanctions program. It is not a sign of weakness
to realize that a strategy is not going as planned.

1. Figures were obtained through available Internet information. These are not necessarily final budget
proposals or final spending figures, but they certainly demonstrate Federal policies and priorities in this
region.

424
 Part VII: The National Security State Scorecard, a Possible Future, Overall Cultural Themes

The Middle East is on the front page of American newspapers on an almost daily basis. No
doubt, in the terminology of nation-state politics, the security of the region is essential to world
security. But if poverty and economic stagnation are among the contributors to terrorism, then
attention must be paid to the Middle East and to other world regions such as Southeast Asia
and most of Central Africa. There is much more to be done in many other areas of the world.

***
Comment at Close of 2004
Without going into another review of numbers, both FMF and ESF for Israel and Egypt
have continued to comparable figures in FY 2003 through FY 2005. More distressing, current
U.S. Middle East policy has not shown any further depth, insight, perspective, discernment, or
progress, than in the past two Administrations.
The recently-proposed “roadmap to peace” (a phrase which fell to being hardly
mentioned only a few months after it was coined) has run into a dead end. The changes which
should be on the way in U.S. Middle East policy in the wake of the Iraq war, have not yet
materialized. Only mildly citicism of Israeli government activities is not the response called for,
when these activities demand more intense criticism and scrutiny. The death of Rachel Corrie,
for example, who was crushed by an Israeli bulldozer as she tried to prevent it from destroying
yet another Palestinian house in the occupied territories, should have brought a much more
dramatic condemnation from the U.S. government. Israel’s weak apology was a study in
rationalization. Israel’s continued construction of the Berlin-style “wall” in the West Bank
should have brought a U.S. threat of an end to financial support unless construction was halted
and constructed sections removed. International condemnation of the wall (or fence), including
a UN Council resolution and a decision by the World Court, could bolster such a response, but
the U.S. has not sufficiently used its influence in this respect. Israel’s continued settlements in
the occupied territories, although decried by the United States, and clearly a violation of
international law, also have not been the subject of what needs to be a serious, and public,
foreign policy showdown.
With no real feasible plan by the current Administration for Middle East peace, no real
prospects for brokering such a peace, and with United States’ credibility among Arab
populations and the international community at its lowest ebb decades, there is little hope for
anything but more of the same in that shattered region. This will only fuel more terrorist
activity, which will bring about more severe “war on terrorism” responses. And so it will go, in a
cycle the end of which could be all-out regional war at a single misstep. The stakes could not be
higher, which makes the lack of progress in these areas all the more troublesome.

***

THE UPCOMING ELECTIONS: SOME CHALLENGES

The next Presidential election in 2004 is not far away. If that election were held today, no
Democrat (or mortal being) on the political landscape could defeat George W. Bush. His re-
election is now a virtual certainty, to be undone only by serious mismanagement of the national
security apparatus now in his command, terrible failure in the United States military action
abroad, or a true depression in the economy. Those events are not likely.
The groundswell of patriotism and the remembrance of America’s glory will only serve as
a new wave to be ridden by President Bush to a new election. America will have eight years of

425
 No Greater Threat

Bush administration, preceded by 12 years of the Reagan-Bush administration, interrupted only

by eight Clinton years which had little overall effect on the military-intelligence apparatus
(Clinton may have reduced but surely did not slash the military budget and he issued some
choice Executive Orders of his own). That would mean that after 2008, in nearly 30 years of
recent American political life since 1980, 20 of them will have been dominated by a Reagan-
Bush administration. This does not account for the possibility that Bush’s Vice President will
run and win in 2008.
Before the presidential election of 2004 comes the congressional election of 2002. Those
elections should offer some insight into how the national security state factors already reviewed
will be combined and whether a national security state is to advance or emerge. For one of the
other overall themes or situations of a national security state is a one-party system, or the lack
of a political serious challenge to the ruling party. If the congressional elections indicate some
balance of political power, the forces of national security state might be minimized.
Yet there were few dissenting votes or voices when Congress, with strong support of both
parties, passed the PATRIOT Act. Many of the new sweeping authorities and powers granted
by the PATRIOT Act are expected to expire in 2005 — unless Congress renews those powers.
That is, when the time comes, Congress could repeal the sunset provision of Title II and decline
to inactivate Title III. That possibility should be a core issue for the 2002 and 2004 elections. If
the new Congress, after those 2002 elections, is composed of a majority that would support
renewal of the PATRIOT Act authority granted to the President and the Executive Branch, the
PATRIOT Act may become a permanent feature of American legal and political life. That would
be a huge step toward a national security state. De-authorization of Title III and careful review
by Congress of every report and regulation which the PATRIOT Act requires should be made
forefront campaign issues for this upcoming Congressional race.
Also, if the differences between Democrats and Republicans become more blurred, and
commitment to funding social needs wanes on behalf of Democrats and Republicans alike, it
may not matter where the vote is cast. If so, political differences will be blurred to the point that
the two-party system is likely to become one national ruling political force. A major obstacle to
a national security state will fall away.

***
Comment at Close of 2004
This is not the place, unfortunately, for a book-length treatment of the 2004 Presidential
election campaign and the election results. Enough books and detailed commentary already
have been, and will be, written on those subjects.
As noted, a hopeful indication regarding concern over potential emergence of a national
security was the closeness of the election both in the popular vote (the difference in the vote
totals being approximately 3 per cent of the total votes cast: 59,108,395 for George W. Bush and
55,554,114 for John Kerry) and the electoral vote (a difference of less than 25 electoral votes, 279
for George Bush and 252 for John Kerry— one State, Ohio with its 20 electoral votes surely was
a factor in the margin of electoral vote victory). This is a surprising closeness given that the
country is "at war" in the Iraq and Afghanistan conflicts and rarely in U.S. history has an
incumbent president lost an election during wartime (President Lyndon Johnson decided not to
run in 1968, so the results of any election, had he run for re-election, can only be speculated).
Nonetheless, the 2004 Presidential campaign was marked by a disturbing sameness
among the two major candidates on fundamental war on terrorism aspects: both supported the
PATRIOT Act, neither proposed immediate troop withdrawal from Afghanistan or from Iraq,

426
 Part VII: The National Security State Scorecard, a Possible Future, Overall Cultural Themes

and neither denounced a practice that now appears to have become a foreign policy doctrine of
pre-emptive military action anywhere in the world to strike at a potential terror threat. Further,
neither candidate made any promises to release detainees at Camp Delta, suggested reducing
military spending, pledged to dismantle the Department of Homeland Security, or promised to
end any of the ongoing programs to track and monitor foreign nationals (NSEERS, SEVIS,
Special Registration, US-VISIT, etc.) or U.S. citizens (Secure Flight, Registered Traveler, etc.).
The new post-election Administration is just unfolding, still undergoing a period of
reorganization, after expected Cabinet shifts. Beginning in 2005, the country will see action by
an Administration with no doubts about its mandate and from a pollical party that will
continue to control both Houses of Congress. To be sure, the Intelligence Reform and Terrorism
Prevention Act of 2004, passed in the last weeks of that year, is not the end of anti-terrorism
legislation.

***

A CONCERNED RESPONSE
The response to the potential arrival of the national security state is a matter for consid-
eration at every level of American political, cultural, and social life. The national security state, if
its arrival is to be prevented, must be resisted by the very population it would enthrall. Nothing
else will do. The levels of response must range from the conversations around the office water
cooler to letters to the editor written to the local or metro paper to the critical viewing of major
network television programming to the prayers offered at weekly religious services to what is
being taught in the schools.
Americans must be aware that their liberties and freedoms can never be taken for granted.
They must also be aware that their rights and liberties are theirs alone, and do not belong to any
government to be given or taken away. And Americans must be aware that their greatest
responsibility is not to themselves but to peoples all around the world, who are also entitled to
the same rights and liberties, to a decent quality of life, to a future with meaning and children
without hunger or disease, to an environment safe and vibrant, to a decent living wage. To fulfill
those responsibilities means reaching beyond even the concept of the nation state to a new
global commitment to the use of world resources. To the extent that this requires a global
commitment against terror, so be it. But it is not the only commitment we face.
Americans also must come to realize that peace and security are more complex terms.
Rev. Martin Luther King, Jr., said it best — a nation that continually devotes its resources to
programs of war rather than to programs of national uplift is approaching spiritual death. His
speech at Riverside Church in April of 1967, a year before his assassination, was more significant
in its assessment of America’s domestic and national future than his more famous 1963 “I Have a
Dream Speech.” The Riverside Church speech (passing over his commentary on Vietnam,
directed to the details of the war situation at that time) should be required reading for every
high school senior. Here are just some excerpts from that speech, rarely recalled in the rush to
paint Martin Luther King only as someone who “had a dream”:
I am convinced that if we are to get on the right side of the world revolution, we as a
nation must undergo a radical revolution of values. We must rapidly begin the shift from a
thing-oriented society to a person-oriented society. When machines and computers,
profit motives and property rights, are considered more important than people, the giant
triplets of racism, extreme materialism, and militarism are incapable of being conquered.

427
 No Greater Threat

A true revolution of values will lay hand on the world order and say of war, ‘This way
of settling differences is not just.’ A nation that continues year on year to spend more
money on military defense than on programs of social uplift is approaching spiritual
death.
America, the richest and most powerful nation in the world, can well lead the way in
this revolution of values. There is nothing except a tragic death wish to prevent us from
reordering our priorities over the pursuit of war.
This calls for a worldwide fellowship that lifts neighborly concern beyond one’s tribe,
race, class, and nation; it is in reality a call for an all-embracing and unconditional love for
all mankind. We can no longer afford to worship the God of hate or bow before the altar
of retaliation. The oceans of history are made turbulent by the ever-rising tides of hate.
History is cluttered with the wreckage of nations and individuals that pursued this self-
defeating path of hate.
In this pivotal speech in 1967 against the Vietnam War, King declared that he decided he
could “never again raise my voice against the violence of the oppressed in the ghettos” without
having first spoken clearly to “the greatest purveyor of violence in the world today: my own
government.”
Certainly a chilling example of King’s prophetic comments was the announcement by the
Bush administration in June, 2002 that it was planning a “strike first” military policy against
several nations deemed to be “rogue states” or terrorist countries.1 This sort of pre-emptive
approach will discard the decades-old policy of containment, deterrence, and response if
necessary, and bring the United States with its massive military might to a first-strike program.

These declarations by King and those of other similar leaders of the day nearly 30 years
ago are no less compelling today. A concerned response to the creeping presence of what may
soon become a full fledged national security state is to resist those forces, to become a watchful
citizen, to not accept every proclamation from a government agency designed to ensure one’s
security, to be aware of the meaning of security in the largest sense, and to be critical of the
information coming from mass broadcast network media — given that this media cannot (and
more unfortunately, will not) provide the entire picture of national or world events.
Part of that approach is realizing as a nation not only the stumbles we have made on our
journey, but also how far we still have to go. No nation is perfect, America included. To be a
society willing to embrace the whole of our past as well as willing to face the difficult challenges
of justice in the future is to be a society willing to embark upon the critical process of wise self-
examination. Perhaps this was said best — as often can occur — by the youngest among us,
such as 12 year-old Charlotte Aldebron of Maine, writing an essay in her sixth grade class about
the American flag:

1. Wire Reports, “Bush Planning New ‘Strike First’ Military Policy — Security Strategy Targets
Terrorists, Rogue States,” The Baltimore Sun, June 11, 2002, p. 4A. The plan will be part of a national security
strategy to be submitted to Congress and available to the public in early fall, 2002. According to Bush
Administration officials, present security doctrines are outdated and that the United States cannot wait
until threats become more “grave” before taking action. President Bush suggested in his June, 2002
commencement address at West Point that such a strategy would be put in place.

428
 Part VII: The National Security State Scorecard, a Possible Future, Overall Cultural Themes

The American flag stands for the fact that cloth can be very important. It is against the
law to let the flag touch the ground or to leave the flag flying when the weather is bad.
The flag has to be treated with respect. You can tell just how important this cloth is
because when you compare it to people, it gets much better treatment. Nobody cares if a
homeless person touches the ground. A homeless person can lie all over the ground all
night long without anyone picking him up, folding him neatly and sheltering him from the
rain.
School children have to pledge loyalty to this piece of cloth every morning. No one has
to pledge loyalty to justice and equality and human decency.
No one has to promise that people will get a fair wage, or enough food to eat, or
affordable medicine, or clean water, or air free of harmful chemicals. But we all have to
promise to love a rectangle of red, white, and blue cloth.
Betsy Ross would be quite surprised to see how successful her creation has become.
But Thomas Jefferson would be disappointed to see how little of the flag’s real meaning
remains.
America must come to terms with its past if it is to chart a future of freedom and
prosperity. America has no choice but to come to a new understanding of its place in the
community of nations if it is to respond effectively to global challenges that truly are beyond
national borders. And it cannot rely solely on its military if it seeks true peace and security.

APPENDIX 7-A. A GENERAL OUTLINE OF WAR ON TERRORISM STATUTES, AGENCIES,

AND PROGRAMS

The following is a general outline of anti-terrorism measures, statutes, executive orders,

agencies, programs, strategy documents, and related matters, focusing on the United States, and
mostly since September 11. The outline is not intended to be comprehensive but to demonstrate
how substantially the anti-terrorism network continues to expand. Visible and most discussed
areas of anti-terrorism activity, such as the PATRIOT Act, Department of Homeland Security,
and Guantanamo Bay/Camp Delta, are only single elements of a far-reaching and ongoing war
on terrorism strategy which has emerged since September 11. The full impacts of these statutes,
programs, and strategies are yet to be felt.

INTERNATIONAL
Mutual Legal Assistance Treaties (MLATs)
(various countries)
Financial Action Task Force on Money Laundering (FATF)
(based in Paris)
Interpol
G8 (Group of 8)/Roma Group
(25-point counterterrorism action plan)
NATO and United Nations
(also see UN Security Council Resolution 1373)
International Maritime Organization
IAEA (International Atomic Energy Agency)
UN Counter-Terrorism Committee/ investigations
“Smart Borders” programs and initiatives (Canada and Mexico)

429
 No Greater Threat

Border Security Troop Movement Treaties

PATRIOT Act type statutes in:
Canada, Britain, France, India, Australia, Malaysia, Indonesia
Cooperative Programs or Projects in Middle East

STATUTES
USA PATRIOT Act (2001)
Aviation and Transportation Security Act (2001)
Enhanced Border Security and Visa Entry Reform Act
Public Health Security and Bioterrorism Preparedness and
Response Act (2002)
Coast Guard Readiness Act (2002)
Homeland Security Information Sharing Act
Federal Information Security Management Act (2002)
Money Laundering Suppression Act (1994)
National Construction Safety Team Act (2002)
Cyber Security Research and Development Act (2002)
Homeland Security Act (2003)
Intelligence Reform and Terrorism Prevention Act (2004)

SELECTED EXECUTIVE ORDERS

Executive Order on Al Qaida/Freezing Assets
(EO 13224, amended EO 13268)
Military Order (Executive Order) (November 13, 2001)
Executive Order for the Office of Homeland Security (EO 13228)
Executive Order on Cybersecurity (EO 13231)
Executive Order Establishing Homeland Security
Advisory Council (EO 13260)
Executive Order on Critical Infrastructure Protection (EO 13231)
Executive Order Establishing National Counterterrorism Center (EO 13354)1
Executive Order on Strengthening Sharing of Terrorism
Information to Protect Americans (EC 13356)2
Executive Order for Homeland Security Information Sharing
(EO 13311)

1. Note that “terrorism information” in this Executive Order and other related Executive Orders is
stated to mean: “all information, whether collected, produced, or distributed by intelligence, law enforce-
ment, military, homeland security, or other United States Government activities, relating to (i) the exist-
ence, organization, capabilities, plans, intentions, vulnerabilities, means of finance or material support, or
activities of foreign or international terrorist groups or individuals, or of domestic groups or individuals
involved in transnational terrorism; (ii) threats posted by such groups or individuals to the United States,
United States persons, or United States interests, or to those of other nations; (iii) communications of or by
such groups or individuals; or (iv) information relating to groups or individuals reasonably believed to be
assisting or associated with such groups or individuals.

430
 Part VII: The National Security State Scorecard, a Possible Future, Overall Cultural Themes

Executive Order Establishing President’s Board on

Safeguarding Americans’ Civil Liberties (EO 13353)1

NATIONAL
White House or Federal Agencies, some Multi-Agency Programs:
White House Office of Homeland Security
Homeland Security Advisory Council
COOP (Continuity Of Operation Plans)
Critical Infrastructure Protection Board
Terrorist Threat Integration Center
National Counter Terrorism Center*
National Counter Proliferation Center*
Joint Intelligence Community Council*
Director of National Intelligence*
(*these are among the entities or offices established by the
Intelligence Reform and Terrorism Prevention Act of 2004)
Terrorist Threat Warning System
Joint Interagency Homeland Security Task Force
National Security Telecommunication Advisory Committee
(1982, EO 12382)
Selected Federal Departments, Agencies, Programs:
Central Intelligence Agency
Director of Central Intelligence
FBI-CIA Cross Posting and Cross Training/Information Sharing
Terrorist Watch Lists

2. Among the directives in this Executive Order is development of a set of standard requirements
throughout the Executive Branch for sharing of terrorism information among all federal agencies, and
“guidelines for terrorism information to be collected within the United States including, but not limited to,
from publicly available sources, including nongovernmental databases.” There also is to be formed an Infor-
mation Systems Council (which appears to be in the Office of Management and Budget) with representa-
tives from an array of government agencies, such as: Departments of Justice, State, Treasury, Defense,
Commerce, Energy, and Homeland Security, the CIA, FBI, and National Counterterrorism Center. This
Council is to develop an “interoperable terrorism information sharing environment” to “facilitate automated
sharing of terrorism information among appropriate agencies.” The Council is to submit a plan for such a
program within 6 months of the date of the Executive Order. (August 27, 2004).
1. Members are: From Department of Justice: Deputy Attorney General (Chair), Assistant Attorney
General for Civil Rights Division, Assistant Attorney General for Office of Legal Policy, Counsel for Intelli-
gence Policy; From FBI: Chair of the Privacy Council; From Department of Homeland Security: Under
Secretary for Border and Transportation Security (Vice Chair), Assistant Secretary for Information Anal-
ysis, Assistant Secretary for Policy at the Directorate of Border and Transportation Security, Officer for
Civil Rights and Civil Liberties, Privacy Officer; From Department of Treasury: Under Secretary of Enforce-
ment, Assistant Secretary for Terrorist Financing; From Office of Management and Budget: General
Counsel; From CIA: Deputy Director of Central Intelligence, General Counsel; From National Security
Agency: General Counsel; From Department of Defense: Under Secretary of Defense for Intelligence,
General Counsel; From Department of State) General Counsel and Legal Adviser; and Director of the
Terrorist Threat Integration Center. Others may be appointed from time to time.

431
 No Greater Threat

Department of Homeland Security (DHS)

Secret Service
Directorate of Information Analysis and Infrastructure Protection
Directorate of Border and Transportation Security
Transportation Security Administration
Customs Agents
Bureau of Citizenship and Immigration Services
Directorate of Emergency Preparedness and Response
Federal Emergency Management Agency (FEMA)
Directorate of Science and Technology
Homeland Security Advanced Research Projects Agency
Homeland Security Science and Technology Advisory
Committee
Homeland Security Institute
Special DHS Bureaus or Offices:
Bureau of Immigration and Customs Enforcement
Office of Intelligence/Operation Cornerstone
Office of Domestic Preparedness
National Biological Weapons Analysis Center
Plum Island Research Center
Federal Incident Management Plans
“ready.gov” (website)
Special DHS-Administered Programs:

National Threat Advisory System

Terrorist Watch Lists
NSEERS
US-VISIT
SEVIS
“Secure Flight”
“Registered Traveler”
National Vaccine Program
Select Agent Program
Project SAFECom
“Reverse 911”
Department of Justice and Federal Bureau of Investigation
National Joint Terrorism Task Force
Joint Terrorism Task Forces
Foreign Terrorist Tracking Force
National Domestic Preparedness Office
Financial Review Group (FBI)
DCS 1000 (“Carnivore”) Internet Search System

432
Part VII: The National Security State Scorecard, a Possible Future, Overall Cultural Themes

FBI “Flying Squads”

NCIC III Database
Terrorist Watch Lists
FBI-CIA Cross Posting and Cross Training/Information Sharing
National Infrastructure Protection Center
Guidelines for Undercover Operations
Guidelines for Information Sharing
Guidelines for Monitoring Attorney-Client Communications
Other guidelines, regulations, or protocols under PATRIOT Act
Department of Treasury
Various regulations under Title III of USA PATRIOT Act
Financial Crimes Enforcement Network (FinCEN)
Office of Foreign Assets Control (OFAC)
Executive Office of Terrorist Financing and Financial Crimes
Operation Green Quest (multi-agency)
Department of Defense
Northern Command (NorthCom)
Operation Liberty Shield (multi-agency)
Guantanamo Bay Naval Base/Camp Delta-Camp Echo
Defense Information Agency (DIA)
National Communicator System
Terrorism Information Awareness (DARPA project)
Department of Energy
National Infrastructure Simulation and Analysis Center
Department of Transportation
Transportation security programs not transferred to DHS
Department of State
Terrorist Watch Lists (development or sharing)
Sharing with FBI information including NCIC III
Consular Officials and CIA assistance at certain consular posts
Centers for Disease Control
Epidemic Intelligence Service
“Push Packs” availability for bioterror incidents
National Disaster Medical Team
Department of Commerce
Critical Infrastructure Assurance Office
National Institute for Standards and Technology
Computer Security Division
Other/Additional or Ongoing Security Programs:
— national standards for birth certificates and driver licenses*
— new aviation security measures including advanced passenger screening, advanced
airport checkpoint security devices, improved pilot licenses, and prohibited items lists*
— screening of passengers on cruise ships*

433
 No Greater Threat

—increased border surveillance and border agents at both northern and southern
borders
(*these and other activities are among programs established or enhanced by Intelli-
gence Reform and Terrorism Prevention Act of 2004)
REGIONAL
Border Security/Customs (DHS and DOS)
Airport Security (DHS and TSA)
Passenger Screening
In Flight Security
Federal Air Marshals
Rail Security (DOT and DHS)
Seaport Security (DHS and Customs)
National Capital Region Coordination/DHS
Joint Terrorism Task Forces
Regional Security Patrols
STATES AND LOCALITIES
Homeland Security Contact/Liaison State Governor’s Office
“Mini-PATRIOT Acts” in States
New emergency powers of State Governor and Health Departments
Intelligence Offices in State and Local Law Enforcement
State or Local Law Enforcement involvement in Joint Terrorism Task Forces
Information Sharing with State or Local Law Enforcement under Homeland Security
Act Provisions
State or Local Law enforcement involvement with immigration or terrorism investi-
gations
PRIVATE SECTOR
Employee monitoring
Employee background checks
CEO COM Link (Critical/Emergency Operations Link)
Network Reliability and Interoperability Council
Financial and Banking Information Infrastructure Committees
Security protocols/terror threat assessments/terror response plans (under Homeland
Security Act, much of this information exempt from Freedom of Information Act if trans-
mitted to DHS) for:
chemical plants
power plants
airports
seaports
telecommunication critical points
energy transmission systems
highways, bridges, dams
hospitals
national sites and monuments
prominent commercial buildings

434
Part VII: The National Security State Scorecard, a Possible Future, Overall Cultural Themes

NATIONAL STRATEGY DOCUMENTS

National Strategy on Homeland Security
National Security Strategy of the United States
National Strategy on Combating Terrorism
National Strategy on Combating Weapons of Mass Destruction
National Strategy on Physical Protection of
Critical Infrastructures and Key Assets
National Strategy on Securing Cyberspace
National Money Laundering Strategy
National Drug Control Strategy
National Defense Strategy (see various strategy documents)
(to be added, as directed by Intelligence Reform Act: National Transportation Strategy)

435
PART VIII: CLOSING OBSERVATIONS AND THE NEED FOR
WATCHFULNESS
National security is not a question of military might, international incursions, or sophisticated surveil-
lance. It cannot be achieved by new federal agencies, questionable legislation, increased investigations, or
dramatic national spending on counter measures, infrastructure, and law enforcement. National security if
considered in the larger sense of a nation’s vision of itself, dedication to its future, and commitment to its
place in the world, is a holistic concept drawing from societal strengths, community confidence, and guar-
antee of justice.

The true search for “security” cannot be limited to efforts to achieve personal or even
national safety, or prevention of attacks. In the search for security there should also be the
realization that “security,” whether at the personal or national level, has more than one form
and comes from more than once source.

INTERNATIONAL ISSUES OF TERRORISM, “SECURITY” AND THE ROLE OF THE

UNITED NATIONS
The concept of international cooperation to attack causes of violence is a thread running
through many of the statements and addresses mentioned so far. The “war on terrorism” is
indeed international but it cannot be a confrontation expressed solely in military terms. It also
must be addressed by bringing these issues to the only world forum which exists: the United
Nations. Americans do not know (because the American commercial broadcast media believes
the headquarters of the United Nations is on the Moon) that there already have been numerous
UN conventions, treaties, and resolutions dealing with international violence and terrorism.
These include the:
Convention on Offenses and Certain Other Acts Committed on Board Aircraft (1963)
Convention for the Suppression of Unlawful Seizure of Aircraft (1970)
Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation
(1971)
Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving Inter-
national Civil Aviation (1988)
Convention Against the Taking of Hostages (1979)
Convention for the Suppression of Unlawful Acts Against the Safety of Maritime
Navigation (1988)
Convention on the Marking of Plastic Explosives for the Purpose of Detection (1991)
International Convention for the Suppression of Terrorist Bombings (1997)
International Convention for the Suppression of the Financing of Terrorism (1999)
Declaration on Measures to Eliminate International Terrorism (1994 and Declaration
Supplement in 1996)
UN Security Council Resolution 1333 (2000) (calling on Taliban to close all terrorist
training camps)
UN Security Council Resolution 1267 (1999) (demanding that the Taliban turn over Osama
bin Laden to appropriate authorities so he can be brought to justice)

437
 No Greater Threat

UN Security Council Resolution 1269 (1999) (unequivocally condemning all acts of

terrorism as criminal and unjustifiable)
The UN demanded that the Taliban produce Osama bin Laden in 1999, three years before
President Bush issued a similar demand in the wake of September 11 — without once
mentioning that UN resolution. The U.S. demand was followed up not by diplomatic initiatives
but by a devastating and expensive Afghan war which still did not result in bin Laden’s
apprehension — although it did result in the removal of the Taliban at the price of thousands of
civilian lives and a capital city of Kabul left in smoking ruins, barely stone upon stone.
The 1999 UN International Convention for the Suppression of Financing of Terrorism is a
comprehensive document. It defines terrorism (in language which is also echoed in United
States criminal statutes and in the PATRIOT Act), calls for punishment of terrorist acts,
permits the forfeiture of funds used to finance terrorism, allows for information sharing
including among financial institutions in the investigation of terrorism, and declares that
terrorist acts are an extraditable offense as to any nation signing the Convention. Similar
statements are made in the International Convention for the Suppression of Terrorist
Bombings.
So, years before the PATRIOT Act, the United Nations was making similar declarations
about terrorism. But the United States still is not comfortable in taking the international lead
toward providing the United Nations with the power and authority to carry out these policies.
Neither has the United Nations been silent on the issue of terrorism after September 11. A
Security Council resolution was passed the day after the attacks, condemning the attacks,
calling on all nations to work together to bring the perpetrators to justice, and expressing
readiness to take “all necessary steps” to respond.1 The UN General Assembly issued a similar
strongly worded resolution on September 18, condemning the attacks and calling for “interna-
tional cooperation to prevent and eradicate acts of terrorism” and declaring that those who have
aided, supported, or harbored the perpetrators “will be held accountable.”2
A previous General Assembly resolution in January 2001 addressed various measures
needed to eliminate international terrorism.3 It referred to other United Nations actions on the
subject including a report of the Secretary General in 2000 and a United Nations special
committee report. The resolution called for an end to financing of terrorism, reaffirmed other
United Nations conventions on terrorism, committed to continued work on means to eliminate
nuclear terrorism, and expressed the importance of continued international cooperation.
Another General Assembly resolution in February of 20004 commented on the related issues of
terrorism and human rights and again roundly condemned all acts of terrorism.
Also, it is no surprise that after September 11, the United Nations issued a statement from
its Department of Disarmament Affairs and UN Under Secretary General for Disarmament
Jayantha Dhanapala, called, “Fighting Terrorism Through Disarmament.” The statement calls
for “mutual disarmament” and says that increasing the number and sophistication of weapons
and extensive defense systems will not protect us from terrorism. Weapons-based security “not
only perpetuates a flawed value system but it also increases the number of weapons, and
therefore the danger of their diversion to warlords and others — with calamitous
consequences.” Disarmament would be a major step toward “a safer and better world.”

1. Security Council Resolution 1368 (2001) (S/RES/1368 (2001)), Adopted by Security Council at
4370th meeting, 12 September 2001.
2. Resolution A/RES/56/1 (2001), Adopted by General Assembly at 56th Session.
3. A/RES/55/158, Adopted by General Assembly in 55th Session.
4. A/RES/54/164, February 24, 2000.

438
 Part VIII: Closing Observations and the Need for Watchfulness

The United Nations is thought to be ineffective because it does not have the power to
enforce its resolutions. The nations which criticize the UN for its lack of effectiveness are the
same nations that refuse to give the UN the global authority and enforcement power for its
resolutions, and often the same states spending millions if not billions for their own supposed
safety and security. It would be valuable indeed to see how the world would look if the United
Nations had $300 billion per year to spend (the budget of the United States Department of
Defense alone) and the United States had $1 billion to spend on “defense.” It would be valuable
to see how the world would look if the UN could “tax” all nations at the rate of, for example, 2
per cent of each nation’s total budget, and use that “tax” for its programs and policies, as well as
for enforcement of resolutions. It would be interesting to consider what the International Labor
Organization would do with a yearly budget of, say, $30 billion or the World Health Organi-
zation with a budget of, say, $20 billion.
The wider concept of national security can only be enhanced when the United States
takes its place among the global community of governments, calls upon the United Nations to
be the global peacemaker which it is capable of being, pays its own dues to the United Nations
without delay or politicking, becomes a leader in a movement to give the United Nations broad
peacemaking authority to enforce its treaties, conventions, and resolutions, and helps to ensure
that the United Nations has the resources — including the funds and material — to do so. That
day needs to come soon.
That day needs to come soon not only because of the cardinal and bedrock imperative of
securing human rights on a global scale but also because the trend of trading human rights for
security is occurring on a global scale. According to an Amnesty International’s annual state-of-
the world report issued in May, 2002, the United States was primary among governments
around the world which have used the post-September 11 war on terrorism to erode human
rights or stifle political dissent. Emergency anti-terrorist legislation and changes in trial and
detention procedures contributed to a new wave of repression and impeded universal human
rights principles. The report did not hesitate to call the September 11 attacks a crime against
humanity, but indicated that the aftermath of legislative actions curtailing human rights have
an even more long-lasting effect. Commenting on the report, the organization’s secretary
general said, “Human rights were traded away in almost all parts of the world” and “democratic
states jumped on the band- wagon almost as rapidly as authoritarian regimes.1 . . . A very
dangerous message is sent when the pillars” of human rights come under attack. “The edifice
could crumble.”
***
Comment at Close of 2004
Unfortunately, there have been significant developments in international areas since mid-
2002 regarding the war on terrorism, and little of it has been positive. Terrorist attacks have
continued, in Indonesia, Spain, Saudi Arabia, and Chechnya, to name a few incidents. That does
not account for the daily and deadly terrorist actions in Iraq, ranging from bombings and
shootings to kidnapping and executing hostages. Many innocent lives have been lost and much

1. The report said that new laws, deportation procedures, criminal trial rules, and other legislation
were enacted not only in the United States but also in Britain, Canada, India, Pakistan, Malaysia and
Singapore, while other countries with already poor human rights records, such as Saudi Arabia and Russia,
were not criticized, in an effort to enlist their governments in the war on terrorism. The report criticized the
use of military tribunals by the United States and the condition and situation of the detainees at Guan-
tanamo Bay.

439
 No Greater Threat

fear spread around the world. Terrorism is to be condemned, yet these incidents do not justify
transforming a nation into a national security state.
What also has continued is the trend, observed by human rights groups and commen-
tators soon after September 11, of utilizing the war on terrorism to restrain civil rights, change
status of immigrants, increase security measures of all types (especially involving airlines and
seaports), reduce the role of the judiciary, and alter or threaten fundamental principles. Most of
these international responses have no sunset provisions and so will be in place for years to
come.
In Britain, the civil liberties crisis is becoming as severe as that in the United States. In
2001, after September 11, the country enacted the Anti-Terrorism, Crime and Security Act
(ATCSA) which in many respects is similar to the USA PATRIOT Act in providing additional
governmental powers of investigation and surveillance in the name of terrorism prevention and
in restricting certain rights of immigrants. The ATSCA extends previous security acts, such as
the Terrorism Act of 2000 which covers domestic terrorism. It includes in the definition of
terrorism those who “engage in serious violence, endanger life or create a serious risk to the
health and safety of the public for the purpose of advancing a political, religious, or ideological
cause.” This definition is broad enough to encompass political protests of various sorts which
might have no relationship to "terrorism" as largely understood.
The British government could also make it an offense to protest outside a person’s home
“where the effect is to intimidate or cause distress.” A similar extension may be made of the
Anti- Social Behavior Act, which was intended for nuisance offenses or domestic situations.
The British Home Secretary announced an intention to seek authority to overrule any
British court which grants bail to, or imposes only house arrest upon, a terrorism suspect. The
domestic security agency, MI-5, is expanding and hiring more personnel to deal with increasing
demands to investigate, interrogate, and detain terrorism suspects. Meanwhile, the country’s
armed police (such as London’s Metropolitan Police SO19) are pressing for more protection
from civil or criminal accountability for their actions.
What is more, according to reports, the British Court of Appeals, the country’s second
highest appeals court, ruled on August 11, 2004 that “evidence” obtained even under duress
(that is, torture) can be admissible against the defendant in a British trial court. The Court of
Appeals said this evidence could be used so long as no British law enforcement agent or officer
was involved in the torture. Reports quoted Lord Justice Laws of the Court in saying he was
“quite unable to see that any...principle prohibits the Secretary of State from relying... on
evidence... which has or may have been obtained by torture by agencies of other states over
which he has no powers of direction.” Civil liberties groups condemned the ruling as permitting
torture and allowing the country to “contract out” torture. A lawyer for British terrorism
suspect detainees said the country has sunk to an “all time low” where a court “can even
contemplate that evidence obtained under torture could be admissible and where there is no
attempt to provide any effective remedy against abuse of power.” Other critics are calling the
government actions “a new dark age of injustice.”
Similar to the Guantanamo Bay detainees, foreign nationals arrested in Britain as
terrorism suspects have been detained without charge for extensive periods, under the ATSCA
or similar authorities. Shortly after September 11, near-immediate arrests were made of 14 Arab
Muslims. Many were held without charge for many months and for a few, going on years. Under
new authorities, such detentions are permitted if the Home Secretary has “reasonable grounds
to suspect” that the person has links to terrorism. The Home Secretary may refuse to release
government information supporting that finding, even to the defendant or counsel, if the
information is deemed sensitive or closed. Terrorism detainees are being held in Belmarsh high

440
 Part VIII: Closing Observations and the Need for Watchfulness

security prison, which has been called Britain’s Guantanamo Bay. Conditions there for
terrorism suspects have been described by those few terrorism suspects who have been
released, as extreme.
According to reports, all told nearly 600 people have been arrested in Britain under anti-
terrorism laws since September 11. Only 91 were charged with any terrorism offense, and only 15
convicted.
There are likely to be further such developments. A speech by Queen Elizabeth on
November 23, 2004 reportedly outlined the Labor government’s proposals for other security
measures. Among them:
— proposed counter terrorism legislation allowing, in certain cases, trials without juries
and arrests those suspected of planning a terrorist attack,
— proposed Serious Organized Crime Agency (SOCA) to function as a national investi-
gative agency and which could gather and use a wide range of surveillance evidence such as
wiretaps, with authorities for such evidence gathering greatly expanded (the agency also would
have powers to investigate and prosecute political extremists),
— proposed national identity cards which could be in use by 2010, and which will include
biometric identification information, and
— proposed new Supreme Court that would replace the judicial committee of the House
of Lords.
In India, that country passed its own Prevention of Terrorism Act (POTA) after
September 11. A legislative action in late 2004 to repeal that statute, which had contained a
2004 sunset clause, resulted only in similar provisions being included in a prior statute, the
Unlawful Activities Prevention Act (UAPA) (1967). Amendments to the UAPA include several
sections directly from the POTA, such as government authority to designate organizations as
“unlawful.” The same list of 32 “unlawful” organizations developed under the POTA was
included in the UAPA amendments. Another provision in those amendments was a new crime
against material support for terrorism.
According to reports, more than 1,600 persons have been arrested since the POTA was
passed. Even though the statutes was repealed, the government either is continuing with those
prosecutions or is not releasing those individuals. Many have been detained without trial for
more than two years. Under the POTA, persons arrested could be held for 30 days before
appearing before a court or magistrate. Bail can be granted only if the court finds that
conviction of the arrested person is unlikely. The POTA has been used as an excuse for
roundups of political opponent. There have been reports of abuse of these detainees.
In Australia, in 2003 the country passed an extensive terrorism act (ASIO Terrorism Act).
The Act gives police unprecedented power to detain, strip-search, and interrogate anyone
believed to be a terrorism suspect. The Act permits the government to detain a terrorism
suspect without charge, possibly incommunicado, for up to seven days and potentially longer
(quite similar to §412 of the USA PATRIOT Act). The detainee does not have to be suspected of
any specific terrorism offense, if authorities believe the detainee has “information related to”
terrorism.
An ongoing controversy in Australia is the detention at Guantanamo Bay/Camp Delta of
David Hicks, an Australian national. That detention has become a focal point for reaction to the
"war on terrorism" and for Australia's role as a U.S. ally. A persistent protest movement in
Australia, joined by the parents of David Hicks, has sought his release. However, the Australian
government has not demanded Hicks’ release, and meanwhile the U.S. has announced that
Hicks is likely to be among the first group of detainees to face a military commission trial on
supposed war crimes charges. Some press reports maintain that Hicks has been tortured at

441
 No Greater Threat

Camp Delta and has been in virtual solitary confinement. (More on this can be found on various
websites including the Guantanamo Human Rights Commission.)
In Canada, which passed its own version of the PATRIOT Act, there is increasing activity
against Muslim nationals suspected of terrorism involvements. The results have at times been
extreme, including the case of an Egyptian national arrested for videotaping the CN tower in
Toronto (one of the world’s tallest structures). Canada’s version of the USA PATRIOT Act
gives significant additional powers to security agencies and to the Royal Canadian Mounted
Police, its main police force.
In France, internal security legislation has increased the powers of police officers to
question ordinary civilians engaged in activities such as public gatherings. Spain has enacted
legislation giving it increased powers in investigating the actions of Basque separatists (and
those powers will likely be utilized against or expanded to include, other terrorist suspects).
Similar anti-terrorism laws were under consideration in African- Arab nations such as
Morocco and Tunisia, while Egypt for years has given its police extraordinary powers in
arresting and interrogating suspected dissidents or terrorists. In the Middle East, members of
the League of Arab States are implementing an Arab Convention on the Suppression of
Terrorism, which reportedly does not make allowances for human rights of suspects or
detainees, and gives police authorities substantial and almost autonomous powers.
In Latin America, there is regional concern about attempts by the United States to invoke
cooperation agreements to track and prosecute “terrorists” even if groups or individuals been
sought, arrested, or prosecuted have not engaged in any acts directly against the United States
or had nothing to do with September 11. The U.S. has attempted to utilize the Inter-American
Defense Board for "war on terrorism" activities in the region, and has sought to create a multi-
national force to respond to terrorist incidents. The Board’s status is currently in the nature of
an advisory board to the Organization of American States.
At a regional summit in Quito, Ecuador, the United States suggested that regional
countries restructure the “Rio Pact” (Inter-American Treaty of Mutual Assistance of 1947) to
strike at terrorism, insisting that this approach was essential to attract and maintain foreign
investment in Central and Latin America. However, the U.S. proposal was not universally
welcomed and was rejected outright by some representatives from some nations including
Brazil and even the host nation of Ecuador.
In any case, nations in Central and Latin America, while wary of a return to the era of
military dictatorships, are concerned about “terrorism” (a term which may be defined very
differently in these countries than understood in the U.S.). Some of countries still have strong
laws against political dissent and have maintained powerful police and internal security forces
that operate with virtual impunity against perceived political threats to the ruling government.
Other similar developments of passing or extending laws that greatly increase
government power to investigate terrorism and detain suspects and reduce the role of the
courts, or that restrict the rights or movements of foreign nationals, have occurred in other
European nations such as Germany and Russia, and countries in Asia such as Malaysia and
Thailand.
In international legal involvements, there is an increase in the use of Mutual Legal
Assistance Treaties (MLATs), arranged between nations, including the United States, to
investigating and prosecuting terrorism, kidnapping, and money laundering activities. Some
actions under MLATs are coming dangerously close to violating civil rights on a global basis. In
one situation in October, 2004, the FBI temporarily shut down the web sites of Indymedia, an
independent information and commentary service critical of the government, with websites in
various countries. At least 20 national web sites in Brazil, France, Germany, Italy and Uruguay,

442
 Part VIII: Closing Observations and the Need for Watchfulness

were disrupted when Rackspace, a US-based web-hosting company located in the United
States and Britain, was ordered by the FBI to hand over two of its British-based web servers
that hosted numerous Indymedia sites.
That action, not coincidentally, came just one week before the start of the European
Social Forum (ESF) a large gathering of antiwar and anti-globalization activists that was taking
place in London and which was to be broadcast live on streaming video through many of these
web sites. The FBI said the action was taken at the request of Italian and Swiss authorities,
under MLATs with those countries — although Indymedia believed the action also was related
to an earlier Indymedia story on activities of Swiss undercover police in infiltrating anti-global-
ization groups that had staged protests outside the G8 summit meeting in Evian, France in
2003.
This situation is in addition to the international practice of “extraordinary rendition”
(mentioned elsewhere) by which certain foreign-born terrorism suspects have been sent by the
United States to their countries of origin, where they are likely to be tortured, with U.S. agents
then making use of that information.1 Such actions apparently are being taken with enough
frequency — or with a certain confidence that these activities will not be questioned — that
such supposedly clandestine activities are making their way into occasional press reports in the
United States and elsewhere.
There is increased security at airports around the world, and new security cooperation
with the United States to enhance passenger screening. Foreign airlines will be required by the
United States to carry armed guards about some planes either entering or flying over the United
States, with the possibility that airlines which do not comply might not be allowed to land in
the United States. These new rules by the Department of Homeland Security involve interna-
tional flights when intelligence information indicates a security risk or hijacking possibility.
New security steps also will be taken on international cargo flights.2 Additional measures are
being taken concerning security at international seaports, including all 361 seaports in the
United States. and the ships that use them, and more than 7,000 ports around the world in 147
countries, involving more than 8,000 commercial vessels.3
A context for these various international security developments and security measures, is
found in a recent Amnesty International report. The 340-page report, released in June, 2004,
covers human rights situations in countries around the world. The report sharply criticized

1. This has been noted elsewhere. See also, for example, a widely distributed story in November,
2004 from The London Sunday Times, “US Accused of `Torture Flights.’“ (Also reported as “Private Jet
Takes Men For `Torture.’“) It describes reports obtained by the Times involving the movements of a
privately-chartered Gulfstream 5 jet, reportedly being used by the CIA to move terror suspects to various
countries in order to carry out “torture by proxy.” The report revealed the results of examination of confi-
dential logs obtained by The Sunday Times of 300 flights of the aircraft over two years. The report also
noted the flights of a 737 Boeing airliner which the report says were hired by American agents from Premier
Executive Transport Services in Massachusetts. According to the story, the flights were first reported in
May, 2004 by Swedish television program Cold Facts. See also, Reed Brody, “Prisoners Who Disappear,”
International Herald Tribune, October 12, 2004, and Dana Priest, “Detainees Secretly Taken Out of Iraq,”
The Washington Post, October 24, 2004. Much of this is in a report by Human Rights First as well as other
groups concerning “ghost detainees.” Additional reports continue to be made about these “torture” flights.
2. Laura Sullivan, “Foreign Airlines Told to Use Armed Guards,” The Baltimore Sun, December 30,
2003, p. 1A. The article points out, as already noted elsewhere, that around the Christmas holidays of 2003,
US and French officials grounded six Air France flights due to “information” that there was a risk of
possible terrorist actions on those flights. The article also said that the US will not offer to pay the cost of
putting armed guards on certain flights. For another article in the same time frame discussing increasing
airline security and international perspectives, see Associated Press, “Commercial Jets Remain Inviting
Targets, Experts Say,” January 15, 2004.

443
 No Greater Threat

anti-terrorism actions by many governments, stating that “Not since the Universal Declaration
of Human Rights was adopted in 1948 has there been such a sustained attack on its values and
principles.” Amnesty criticized U.S. actions in the war on terrorism, contending that “what
would have been unacceptable on September 10, 2001, is now becoming almost the norm.”1
Another human rights group, Human Rights Watch, has said that the United States’
willingness to compromise on human rights to fight terrorism continues to set a dangerous
precedent internationally.2
As mentioned, these measures and international actions, and their costs, must also be
compared to the serious needs around the world of environment, poverty, development
challenges, and disease — of which also contribute to the concept of security both within a
nation and in a global context. A report by the World Bank in April, 2004 states that the UN's
"Millennium Development Goals" cannot be reached. The goals, set at the UN General Assembly
in 2000, including reducing by half the number of people in the world’s poorest nations
suffering poverty, hunger, and ill-health. The report states that for objectives of economic
progress, areas of Africa and Asia are already so far short of the goal that the overall goal cannot
be met. In health, problems of infant mortality, HIV/AIDs and other diseases such as malaria,
continue to rise.
Sanitation and clean water also are core issues for economic viability, health progress, and
security, yet 1.1 billion people do not have available access to clean water. By 2050, the World
Bank report predicts that at least one in four people in the world will live in countries affected
by chronic shortages of fresh water. The report states that $10 to $15 billion of extra spending
each year will be needed to meet international targets for water and sanitation.
There cannot be true security without peace, and there cannot be peace without respect
for all human rights everywhere, outlined not just by the United States Bill of Rights but also by
the UN Declaration of Human Rights, now more than 50 years old. There are strong reasons for
attending to these matters beyond concerns of terrorism. Nevertheless, such issues could well
be viewed as part of a global anti-terrorism strategy, for lack of global attention to these areas
only invites continued conditions that contribute to the rise of and growth of terrorist organi-
zations.

3. Meredith Cohn, “As World’s Ships Arrive in Port, New Security for Smooth Sailing,” The Balti-
more Sun, July 1, 2004, p. 1A. The article notes, “New federal rules, costing billions of dollars and untold
man-hours, require 361 ports nationwide and the ships that use them to implement their own security
plans. International rules that take effect at the same time will affect nearly all of the world’s ocean
commerce.” The Coast Guard estimates that the long-term cost to the US of enhanced seaport security is $7
billion. Among the measures are security plan requirements for 361 ports and 3,500 facilities at those ports,
necessity for visitors to port offices to make appointments 24 hours in advance, identification required for
all port workers, restrictions on availability of visas for crews of international ships, additional details on
cargo ship manifests, and docking denied for international vessel from an international port not certified as
secure.
1. See New York Times News Services, “Rights Group Denounces War on Terror,” May 29, 2004.
The statement was from Irene Khan, Amnesty International secretary general.
2. See Associated Press, “U.S. Too Quick to Compromise, Rights Group Says,” January 15, 2003,
noting the 558-page report from Human Rights Watch, which covered human rights situations in 58 coun-
tries. The story quotes the report as saying that United States actions regarding civil rights and terrorism is
counterproductive: “The smoldering resentment it breeds risks generating terrorist recruits, puts off poten-
tial anti-terrorism allies and weakens efforts to curb terrorist atrocities.”

444
 Part VIII: Closing Observations and the Need for Watchfulness

“SECURITY” AND “PEACE”

The search for security is linked to the ultimate search for peace. Any schoolchild knows
that true peace is not simply an end to fighting. That intuition is as old as human history and
can be found in scriptural traditions going back to the Book of Genesis or the prophecies of
Isaiah. Modern day prophets have said the same. The search for security and peace in a society
cannot begin and end with weapons, military actions, surveillance, protectionism, and
prosecution. Such a society eventually will succeed only in feeding upon itself. Instead, the
search for a national security ultimately must be the search for a national mission, a national
vision. As has been said, “without vision, the people perish.”
September 11 sent a shock wave through all Americans, causing many to wonder about
airline security and national security. But in the discussions and legislation and executive
orders and new federal offices that have been generated since that tragedy, little time has been
spent wondering about America’s place in the world. Even less time has been spent wondering
whether yet another military campaign can get to the roots of terrorism. Those roots are as
simple and old as the crushing poverty of many Middle Eastern nations, as recent and
predictable as the United States’ former training and support of these same extremists, and as
complex and intricate as the personal bases and theological justifications for Muslim
extremism.
There are several ironies in this scenario, and some do not bode well for the future. The
first irony is that there appeared to be no diplomatic initiatives capable of achieving these ends.
That is, we had to destroy Afghanistan in order to save it.
The second irony is that some elements of the Taliban were once supported, to some
degree, by the West including the United States during their fight against the invasion by the
Soviet Union in the 1980s. However, the rise of Muslim extremism in Afghanistan which
brought about that invasion and then covert (if not overt) United States support to the
extremists — on the well-worn and duplicitous American foreign policy bromide that the
enemy of our enemy is our friend — might have been avoided if billions in economic
development aid had been pledged to Afghanistan 25 years ago.
The third irony is that the sums now needed to “rebuild” Afghanistan surely would not be
as great had not those conducting the recent Afghanistan war been so intent on destroying
everything that stands. No amount of money will remove every mine or every unexploded
cluster bomb. No amount of money will replace the thousands of civilians whose lives have been
lost, or the long term ecological effects of war machinery, such as the use of fuel-air bombs with
a destructive force just short of a nuclear device.
The last irony is the fact that even with grandiose plans for rebuilding Afghanistan, few
public statements are being made about what, if anything, will be done to transform the
secondary Afghan economy away from narcotics production and to bring Afghan politics to an
egalitarian system based less on traditional views. For years, Afghanistan has supplied or been a
conduit for a substantial portion of the opium or heroin for consumption in the West. With
that multi-million dollar enterprise have come infighting, warlords, civil conflict, and the slow
corruption of Afghanistan’s politics and culture. Without a comprehensive economic plan to
move Afghanistan into other more life- sustaining economic sectors, deal with the warlords,
and stabilize the political apparatus, the billions in reconstruction aid being pledged will not
have been well spent.

445
 No Greater Threat

Wendell Berry, poet and author, has offered useful insights on our foreign policy
approaches of combating terrorism by trying to stamp it out with the biggest boot one can find.
He said, speaking of the “failure of war:”1
National defense through war always involves some degree of national defeat. This
paradox has been with us from the very beginning of our republic. Militarization in
defense of freedom reduces the freedom of the defenders. There is a fundamental inconsis-
tency between war and freedom. In a modern war, fought with modern weapons and on a
modern scale, neither side can limit to ‘the enemy’ the damage that it does. These wars
damage the world. Modern war has not only made it impossible to kill ‘combatants’ with-
out killing ‘noncombatants.’ It has made it impossible to damage the enemy without dam-
aging yourself.
That wisdom is not entirely new, which is also Berry’s point. Many Native American
cultures and similar cultures around the world have a long-established tradition of viewing as
inseparable their own lives and the life of the earth itself. It is an ancient wisdom also reflected
in world religions.
Berry’s observations are reflective of this global approach. Commenting on the trends in
American foreign policy:
To achieve peace by peaceable means is not yet our goal. We cling to the hopeless par-
adox of making peace by making war. Which is to say that we cling in our public life to a
brutal hypocrisy. In our century of almost universal violence of humans against fellow
humans, and against our natural and cultural commonwealth, hypocrisy has been ines-
capable because our opposition to violence has been selective or merely fashionable.
Acts of violence committed in ‘justice’ or in affirmation of ‘rights’ or in defense of
‘peace’ do not end violence. They prepare and justify its continuation. The most dangerous
superstition of the parties of violence is the idea that sanctioned violence can prevent or
control unsanctioned violence. But if violence is ‘just’ in one instance as determined by the
state, why might it not also be ‘just’ in another instance, as determined by the individual?
How can a society that justifies capital punishment and warfare prevent its justifications
from being extended to assassination and terrorism?
Berry also warns against the popular American notion of the “price” paid by “heroes” of
war, who supposedly “bought” our freedom by protecting our nation. He notes that the
sacrifices on behalf of peace can be just as great, but most Americans are not yet ready to make
sacrifices so personal. They would rather finance and cheer on such “sacrifices” to be made by
others in uniform, yet the greater “sacrifice” is civilians destroyed by remote control. He adds:
We seem to have agreed that whatever has been (or will be) paid for so-called
progress is an acceptable price. If the price includes the diminishment of privacy and the
increase of government secrecy, so be it. If it means a radical reduction in the number of
small businesses and the virtual destruction of the farm population, so be it. It if means
that a mere handful of people should own more billions of wealth than is owned by all of
the world’s poor, so be it. But let us have the candor to acknowledge that what we call
‘the economy’ or ‘the free market’ is less and less distinguishable from warfare.
The needs of the few must give way to the needs of the many. The cost to fight terror-
ism by surveillance, entrenchment, investigation, prosecution, and devastation must be
measured against the cost to fight terrorism by international cooperation, raising the
standard of living in developing nations, battling disease and despair, establishing infra-
structures elsewhere instead of just fretting about the security of our own, creating new

1. Wendell Berry, The Failure of War, originally published in Yes! Magazine, A Journal of Positive Futures
(Positive Futures Network). P.O. Box 10818, Bainbridge Island, Washington 98110. Subscriptions: 800-937-
4451. Web: www.yesmagazine.org. Used with permission from Wendell Berry and Yes! Magazine.

446
 Part VIII: Closing Observations and the Need for Watchfulness

systems of health care and environmental protection everywhere, assisting in the creation
and enforcement of fair wage and labor laws, and creating the international political cli-
mate where the investigation and prosecution of terrorism is the right and responsibility
of everyone.
Berry also notes the importance in a national campaign for defense (that is, national
security) to have a comprehensive, effective, and perceptive energy policy, agricultural policy,
and education policy. Turning to the larger concepts of peace:
By now all of us must at least have suspected that our right to live, to be free, and to be
at peace is not guaranteed by any act of violence. It can be guaranteed only by our willing-
ness that all other persons should live, be free, and be at peace — and by our willingness
to use or give our own lives to make that possible. To be incapable of such willingness is
merely to resign ourselves to the absurdity we are in.
Berry echoes the statements of many other visionary contemporary commentators of
American cultural life. They are too many to mention but surely include: author and activist Pat
Mische of Global Education Associates (who with Gerry Mische authored Toward a Human World
Order), former United Nations official Robert Muller (especially in his 1982 book, New Genesis),
Rev. Jim Wallis of Sojourners (and his recent book, The Soul of Politics), activist Phillip Berrigan,
activist and poet Rev. Daniel Berrigan, S.J., author and syndicated columnist Garry Wills,
theologian Hans Kung (especially in his 1993 book, Global Responsibility: In Search of a New World
Ethic), attorney, professor, and author Benjamin Ferencz, Francis Boyle (international law
issues especially their application to dissent in America), Ralph Nader (author, consumer
advocate, founder of Public Citizen and PIRGS, Green Party candidate for President), Joel Ijams
Brooke (First Steps to Peace), Sr. Joan Chittister, OSB of the faith-based organization Pax Christi
USA, Lester Brown of the Worldwatch Institute, policy analyst Robert J. Lifton, commentator
and social policy advocate Noam Chomsky (Rogue States and Profit Over People: Neoliberalism and
Global Order), peace educator and columnist Coleman McCarthy, religious leader Rev. Joan Park
Campbell, social observer and critic Joe Holland, faith-based policy analysts Peter Henriot, S.J.
and Jim Hug, S. J., faith and family educational and policy organizers Jim and Kathy McGinnis,
Catholic Bishop Thomas Gumbleton, theological commentators and writers such as Rev. J.
Bryan Hehrir and David Hollenbach, and theologian Matthew Fox. There are many more. Yet
not one of them will ever be interviewed on “Nightline” or “Larry King Live” or “Dateline NBC”
or even “Charlie Rose.”
***
Comment at Close of 2004
Athough the obstacles to be overcome in achieving true peace and security are no secret,
the United States continues, as 2004 closes, to approach the war on terrorism with a singleness
of vision, and to see terrorism issues solely in investigative, security, strategic, or tactical terms.
One example would be funds already devoted to terrorism and to the Department of
Homeland Security. It is estimated that $29.4 billion will be spent on domestic security
programs, which does not include various other spending including $368 billion for Pentagon
spending that does not include the Iraq war. This is part of an overall federal budget of $2.4
trillion. And Congress is proposing adding 20,000 troops to the armed forces.1

1. See, Associated Press, “$29.4 Billion OK’d for Domestic Security,” September 25, 2003; “House
Passes $2.4 Trillion ‘05 Budget,” March 26, 2004, and Los Angeles Times, “Senate Votes to Increase Army by
20,000.” The military budget includes $9.1 billion for a missile defense system, and $11.5 billion for ship-
building.

447
 No Greater Threat

Another example is the various anti-terrorism research projects underway directed to

bioterrorism or weapons of mass destruction. Announced in early 2004, these research and
development efforts will take many years and perhaps decades to complete. They are the most
extensive plans in recent memory, involving numerous federal agencies. Among these programs
are high-tech efforts to improve response to or prevent biological or chemical attacks ($7 billion
— $3.5 billion in research and development and $3.4 billion for vaccine supplies), responses to a
potential smallpox outbreak, and a wide variety of similar programs. The complex task of
assembling a new research establishment is just beginning.1
In addition, following enactment of the Intelligence Reform and Terrorism Prevention
Act of 2004, Congress now has established a new intelligence oversight official. There remain
some proposals in Congess to established a new domestic intelligence agency.2
In this context, it is particularly noteworthy that some critics have claimed that the
United States is losing its focus on the war on terrorism, is not paying attention to root causes
of terrorism such as lack of employment and economic or political instability in key world
regions, is not taking note that the war on terror has become more complex, and is not being
careful about the need to balance security with citizen rights.3 Another indication of these
trends is that the 9/11 Commission also recognizes the need for a broader strategy that takes
into account development needs in countries where terrorism bases have occurred, that
considers international contexts of terrorism, and that also recognizes that terrorism is a tactic
and not an ideology itself.4

1. Ralph Vartabedian, “Anti-Terror Research Effort Launched,” Los Angeles Times, March 7, 2004.
The article notes that DHS will get $1 billion for these research efforts, the National Institutes of Health
have a $1.7 billion bioterrorism research budget, the military is spending $706 million on research to counter
certain weapons of mass destruction, the Energy Department has $232 million to detect signs of nuclear
weapons production, and the Federal Emergency Management Agency (FEMA) is spending $3.4 billion in
2004 and 2005 to stockpile vaccines around the country in the event of a bioterrorism incident. The entire
$40 billion bioterrorism research effort is coordinated by the White House Office of Homeland Security
and the Homeland Security Council. The article states, “The council does not attempt to strictly control the
homeland security research program because it involves too much money, such a diverse set of projects and
such a broad range of agencies,” quoting a “senior White House official.” The article also quotes other critics
who state that devoting all of this effort to research and technology alone will not solve these bioterrorism
problems.
2. Associated Press, “Bush to Implement Some 9/11 Reforms As Early As Today,” August 2, 2004. The
article notes, “Currently, the CIA director heads not only his own agency but also the intelligence commu-
nity, which has grown to 15 agencies. But the director has neither budgetary authority nor day-to- day oper-
ational control of the other agencies, most of which are part of the Defense Department.” And, Laura
Sullivan, “9/11 Panel Presses for Quick Action on Reforms,” The Baltimore Sun, July 24, 2004, and Associ-
ated Press, “Bush Voices Support for September 11 Panel’s Recommendations,” July 25, 2004.
3. See, “CIA Concerned US War on Terror is Missing Root Causes,” Angence France Presse, October
29, 2002, noting that CIA response to Congressional inquiry on terrorism, stated among other things,
“Several troublesome global trends — especially the growing demographic youth bulge in developing
nations whose economic systems and political ideologies are under enormous stress — will fuel the rise of
more disaffected groups willing to use violence to address their perceived grievances.” In Afghanistan, the
remnants of the Taliban and Al Qaida continue to be in a position to disrupt local political activity, and the
long term prospects for stabilizing the entire country are uncertain. And see, Associated Press, “U.S. Is
Losing Focus on Terror Flight, Panel Says,” December 16, 2003, noting report of a special non-partisan
commission on national security created in 1998 and chaired by former Virginia governor and Republican
Party chairman, James S. Gilmore III. See also, Associated Press, “Terror War Growing More Complex,
Experts Say,” November 21, 2003, point out that terror attacks have grown in Muslim countries, some
terrorists are becoming more difficult to track, new militant bases appear to have taken shape in some
countries in Southeast Asia, terror networks of other sorts are growing, Osama bin Laden remains at large,
and the Muslim world is still struggling with the ideological basis and impact of terrorism as a legitimate
Muslim action.

448
 Part VIII: Closing Observations and the Need for Watchfulness

Of additional note in the context of terrorism, safety, and security, are recent polls
indicating that voters are concerned that the "war on terrorism" is not being "won" and that the
United States’efforts have not made the country safer. These polls found that 46 per cent of
those responding said the country was not “winning the war on terrorism,” 60 per cent believed
that the country would be the target of another terrorist attack within a few months, and 73 per
cent were concerned that additional terrorist attacks will occur. Also, 27 per cent said they felt
less safe than they did two years ago, 48 per cent said they were neither safe or less safe, and 24
per cent said they felt more safe. A majority also felt that the Administration was overempha-
sizing military and unilateral action in the war on terrorism and should put more emphasis on
diplomatic and economic methods and seek more help from the United Nations and allies.1
According to Administration officials, progress is being made on the war on terror, due to
the additional authorities granted by the USA PATRIOT Act and similar statutes. Among the
examples of this progress are the arrests of the “dirty bomber” Jose Padilla — still held as an
“enemy combatant” without charge at the close of 2004 — arrests of supposed terrorists or cell
groups in areas ranging from Oregon to New York, information from detainees in Guantanamo
Bay that has clarified terrorist threats, and the breakup of numerous alleged plots for terrorist
attacks on ships and other locations.2
Yet, whatever progress has been made is the result of additional investigative effort and
prioritizing, and not always due to the PATRIOT Act’s authorities. More than 500 FBI agents
have been reassigned to terrorism investigations. More than 300 translators have been hired
(although the PATRIOT Act authorizes the hiring of these translators in Title I and II, that
authorization could have been arranged without enacting the entire statute). The July, 2002
report by the joint House-Senate intelligence committee concerning supposed intelligence
“failures” after September 11, 2002, identified problems in collating and tracking information
that are not necessarily resolved by passing the PATRIOT Act. These included issues of agency
awareness, chain of command, prioritizing, coordination, computer technology, inter-office
communication, swiftness of analysis, and interaction with other federal agencies.
As has already been suggested, the PATRIOT Act itself may create part of the problem by
substantially increasing the amount of information, the level of activity, the extent of the
coordination, and the communication to be conducted between federal agencies and other
foreign or State or local law enforcement agencies. It is a daunting task to analyze the “river” of
intelligence and information that flows to the United States government for that one piece of
information which could deter a terrorist attack.
This is the inherent difficulty in viewing the threat of terrorism strictly as a law
enforcement and interdiction, or military and tactical, issue, and applying that analysis.
Terrorism, if seen more broadly as a challenge of terrorism, is a phenomenon with causes and
bases not addressed by law enforcement or military responses. Such approaches indeed would

4. Mark Matthews, “9/11 Panel Seeking Broader Strategy,” The Baltimore Sun, July 26, 2004.
1. Ivan Penn and Jonathan E. Briggs, “Most Voters Expect Terror Attacks,” The Baltimore Sun,
January 12, 2004, noting a poll that said 46 per cent of responding said the United States was not winning
the war on terror, and Knight Ridder, “War on Terror Hadn’t Made Most Feel Safer, Poll Finds,” September
10, 2003, noting results of poll conducted by Knowledged Networks for Program on International Policy
Attitudes at the University of Maryland. In that poll, 64 per cent said the United States military presence in
the Middle East has increased rather than decreased the likelihood of terrorist attacks against the United
States, with 58 per cent agreeing with the statement that the United States is playing the role of world
policeman in the Middle East more than it should be. The story also notes a similar poll taken by ABC and
released in the same week, with 48 per cent of those responding saying that the Iraq war has increased the
risk of terrorist attacks.
2. “Mueller Reports Progress After 9/11,” Associated Press, December 15, 2002.

449
 No Greater Threat

be unending. Even White House strategy documents, notably the National Security Strategy of the
United States and the National Strategy for Combating Terrorism, recognize — although not spending
near enough effort in discussion and analysis — these causes and bases. They include
joblessness, oppression, poverty, and lack of development in many of the countries where
terrorism threats have formed and grown.

PEACE, SECURITY, AND PERSONAL RESPONSES

Coupled with this new understanding of the interrelationship between peace and
security is an understanding of what “peace” means. Politicians are fond of the word, usually
when using it to support war. Yet peace has an expansive character, a deeper importance
personally as well as culturally. It is dedication to a right relationship with oneself, one’s family,
and one’s neighbor, and realization of the interrelationship of human cultures and the interrela-
tionship between humanity and all of creation. It is the manifestation of the desire for a
harmonious existence of all things, to the benefit of all things, for the good of all things.
War cannot bring this. War never did. The only peace war can bring is the peace of
silence, the quiet of the grave, the eerie post-attack stillness where there nothing but the wind,
and the smoke, and the smells, and the moaning.
The quest for peace is the effort to achieve a state of affairs and a means of being and
doing, beyond merely the absence of war. But the quest for peace is more than the wish for
prayer, more than the prayer for peace, far more than the legislative resolution declaring that
there should be peace. It is a new determination, brought about by a new dedication. This
dedication and crusade for peace cannot come by acting sharply from pity, or grief, or anger, or
guilt. It cannot come simply from a political base. Action for peace is acting widely in responsi-
bility, spirituality, hope, persistence, perception, understanding, confidence, cooperation,
compassion, and resolve. It comes from recognizing the difference between charity and justice,
recognizing the unity in the basic needs of all humanity, the spirit of life residing everywhere,
and the promise of a better future. In his 1987 work Being Peace, Thich Nhat Hahn says it this
way:1
There is a Zen story about a man riding a horse which is galloping very quickly.
Another man, standing alongside the road, yells at him, ‘Where are you going?’ and the
man on the horse yells back, ‘I don’t know. Ask the horse.’ I think that is our situation.
We are riding many horses that we cannot control. The proliferation of armaments, for
instance, is a horse. We have tried our best, but we cannot control these horses. Our lives
are too busy.
He continues:
In Buddhism, the most important precept of all is to live in awareness, to know what
is going on. To know what is going on, not only here, but there. For instance, when you
eat a piece of bread, you may choose to be aware that our farmers, in growing the wheat,
use chemical poisons too much. Eating the bread, we are somehow co-responsible for the
destruction of our ecology. When we eat a piece of meat or drink alcohol, we can produce
awareness that 40,000 children die each day in the third world from hunger and that in
order to produce a piece of meat or a bottle of liquor, we have to use a lot of grain. Eating a
bowl of cereal may be more reconciling with the suffering of the world than eating a piece
of meat.

1. Reprinted with permission from Being Peace (1987) by Thich Nhat Hahn with permission of
Parallax Press, Berkeley, California. www.parallax.org.

450
 Part VIII: Closing Observations and the Need for Watchfulness

This dedication to the cause of peace comes from awareness:

Every day we do things, we are things, that have to do with peace. If we are aware of
our lifestyle, our way of consuming, of looking at things, we will know how to make peace
right in the moment we are alive, the present moment. When we pick up the Sunday
newspaper, for instance, we may be aware that it is a very heavy edition, maybe three or
four pounds. To print such a paper, a whole forest may be needed. When we pick up the
paper, we should be aware. If we are very aware, we can do something to change the
course of things.

And with this dedication and awareness comes responsibility:

Not many Americans are aware that [conventional weapons and arms trading] are
killing people in the third world every day. The Congress has not debated this issue seri-
ously. We have not taken the time to see this situation clearly, so we have not been able to
change our government’s policy. We are not strong enough to pressure the government.
The foreign policy of a government is largely dictated by its people and their way of life.
We have a large responsibility as citizens. We think that the government is free to make
policy, but that freedom depends on our daily life. If we make it possible for them to
change policies, they will do it.
The quest for peace is linked to this personal and cultural transformation. “To transform
the situation is to transform our minds.” He tells us, “Awakening is important. The nature of the
bombs, the nature of injustice, the nature of the weapons, and the nature of our own beings are
the same.”
These commentaries on peace, the characteristics of peace, and the requirements of peace
are in stark contrast to the national mood. After the September 11 attacks, President Bush
addressed the Joint Session of Congress and said that America is a nation “awakened to danger.”
Soon after that, Congress passed the PATRIOT Act without discussion or debate, signed by the
President the next day. An even sharper comparison comes from the President’s own words.
About 60 days from September 11, President Bush gave a speech now called, “Let’s Roll.” It
was a paean to teachers, police officers, fire fighters, and the military. He said:
This enemy tries to hide behind a peaceful faith. But those who celebrate the murder
of innocent men, women and children have no religion, have no conscience and have no
mercy.
We wage a war to save civilization itself. We did not seek it, but we will fight and we
will prevail.
***
A lot of people are working really hard to protect America, but in the long run, the
best way to defend our homeland, the best way to make sure our children can live in
peace, is to take the battle to the enemy and to stop them. . . . Our military is pursuing its
mission.
***
Our great national challenge is to hunt down the terrorist and strength our protection
against future attacks. Our great national opportunity is to preserve forever the good that
has resulted. Through this tragedy, we are renewing and reclaiming our strong American
values.
***
Ours is the cause of freedom. We’ve defeated freedom’s enemies before, and we will
defeat them again.

451
 No Greater Threat

We cannot know every turn this battle will take, yet we know our cause is just and
our ultimate victory is assured. We will no doubt face new challenges, but we have our
marching orders.
My fellow Americans, let’s roll.
This may be good national speechmaking, but it is very poor and extremely dangerous
foreign policy. They are the words of a President seeking to rally the nation behind a program of
what could be years of covert and overt military adventurism, expensive, painful, and (although
no one at the Defense Department, State Department or the White House will admit to it)
ultimately fruitless.
The crusading character of this speechmaking, repeated in President Bush’s weekly radio
addresses, in other speeches, and in the State of the Union address, serves only to stir up
national enmities and launch grandiose military operations. President Bush’s State of the Union
address continued these themes, which have come to define the Bush Administration and drive
its budget priorities and domestic agenda, although in somewhat loftier terms:

Thousands of dangerous killers, schooled in the methods of murder, are now spread
throughout the world like ticking time bombs — set to go off without warning.
***
And America needs citizens to extend the compassion of our country to every part of
the world. So we will renew the promise of the Peace Corps, double its volunteers over
the next five years, and ask it to join a new effort to encourage development and education
and opportunity in the Islamic world.
***
We have a great opportunity during this time of war to lead the world toward the val-
ues that will bring lasting peace. All fathers and mothers, in all societies, want their chil-
dren to be educated and live free from poverty and violence. No people on Earth yearn to
be oppressed, or aspire to servitude, or eagerly await the midnight knock of the secret
police.
***
America will lead by defending liberty and justice because they are right and true and
unchanging for all people everywhere. No nation owns these aspirations, and no nation is
exempt from them. We have no intention of imposing our culture — but America will
always stand firm for the nonnegotiable demands of human dignity: the rule of law, limits
on the power of the state, respect for women, private property, free speech, equal justice,
and religious tolerance.
***
Evil is evil, and it must be opposed. Beyond all differences of race and creed, we are
one country, mourning together and facing danger together. Deep in the American charac-
ter, there is honor, and it is stronger than cynicism. Many have discovered again that even
in tragedy — especially in tragedy — God is near.

To save “civilization itself” will take more than bombing Afghanistan. It will take far more
than demonizing Muslim radicals. It will take a level of American awareness, compassion,
persistence, and resolve that cannot reside solely in its military, that must come from interna-
tional view of truly global events, and that results in a new set of national priorities, both
political and economic. America may not be capable of doing so. Time will tell, and soon.

452
 Part VIII: Closing Observations and the Need for Watchfulness

In Congress, a bill has been introduced (Dennis Kucinich, D-Oh) to create a Department
of Peace. That is not to be confused with the United States Institute of Peace, created during the
Reagan Administration and, unfortunately, not widely known for its visibility or vigor in
addressing the cause of world peace. That bill will likely never get out of committee. But the
PATRIOT Act passed without debate. Americans need to see that policy follows budgets, and
vice versa. What there is money to do will be done. And as the saying goes, if all one has is a
hammer, one tends to see every problem as a nail.
Americans ask what they can do. There is plenty to do. The American Friends Service
Committee recently released a list of “10 Things You Can Do for Peace.” They are:
1. Call or write your congressperson and state representatives to let them know how you
feel about policy initiatives, international and domestic.
2. Voice your opinion in letters to the editor, radio talk shows, in your family, at the office
water cooler.
3. Encourage young people to respond, and listen to their views and reactions.
4. Attend public events. Organize activities. Be aware of activities around you or in your
area. If there is a national event and you can get to it, go.
5. Learn all you can about the issues, the concerns. Learn about the Islamic faith, which
has strong views on peace and nonviolence.
6. Work against violence aimed at others because of race, color, creed, religion, ethnicity,
or gender. Make a special point to reach out a hand of support to anyone who is perceived to be
a Muslim or Arab. Contact a local mosque or civic organization to express support and identify
ways to help.
7. Learn about those countries that the United States government is holding responsible
for terrorism. Knowing the history, geography, the accomplishments, and problems facing
countries like Pakistan or Afghanistan will help let others see that peaceful majorities live there.
8. Hold the media accountable for biased or incomplete reporting. Call a local media
outlet if you see evidence of unfair or slanted reporting. Read and watch a variety of media
sources. (That would include other Internet media sources such as websites for IPS, UN,
Common Dreams, TruthOut, and Media Channel.)
9. Insist on maintaining and protecting the civil liberties that United States citizens have
worked so hard to create. These include the right to associate, to assemble in groups and
express opinions, and to privacy.
10. Educate yourself on alternatives to war. Read the works of writers and thinkers and
commentators on peace and social justice.
Overall, make understanding and global awareness part of daily life. The world is a much
bigger place than the United States. There is more going on than what the president did or what
bombs were dropped today. When there was 30% unemployment in America, it was called the
Great Depression. There is 30 per cent unemployment in many countries in the world now.
America is at a crossroads unlike anything it has faced in the past 40 years. The bright-
painted bus does not have to lurch across the boundary line, past the blinking sign, and into the
national security state. We can chart a new course and take on a more comprehensive, compas-
sionate crusade to stop terrorism where it starts.
We must start in a shift of attitudes among the American public. In a recent ABC News-
Washington Post poll in June, 2002, four out five responding, or 80%, said that investigating
threats is a more important national goal than protecting personal privacy. And two-thirds said
they support giving U.S. intelligence agencies more authority to monitor public places as part of
their investigation of terrorism. Just over two-thirds, more than 66%, support the formation of
the Department of Homeland Security. President Bush’s job-approval rating remains above

453
 No Greater Threat

70%, approaching figures held by Ronald Reagan. Although 66% said that the new FBI investi-
gation rules and authorities are an encroachment on privacy rights, a majority supports the new
measures anyway.
These trends simply must be reversed. The threats facing America and the land beyond
the blinking yellow sign are concerns no less great than the dangers and problems and issues of
terrorism. The long term effects of what may seem to be necessary measures in times of crisis
may be with us far longer than anyone wishes or had planned. The potential for abuse of all of
these sweeping new powers and authorities by what amounts to the entire Executive Branch,
and for an America with a permanent national security state mentality, economy, and political
atmosphere, are as serious a question as how and in what way to respond to the menace of
terrorism. Liberty is far too precious and achieving it has taken far too long to jeopardize it so
dangerously in the space of one year since September 11, 2001. In another two or three years, if
present trends continue, the situation may soon turn from serious to dire to irreversible. These
are the greater challenges to be faced.
May Americans meet those challenges effectively in the cause of true peace for us and the
world at large. May we never forget that the price of liberty includes eternal vigilance, but
always remember that the responsibility of liberty is to create it for others.

***
As 2004 comes to a close, the danger persists that the United States may transform itself
into a national security state. The difficulties of viewing terrorism solely in strategic and tactical
and informational terms are becoming more clear. The overall prospects continue to be gloomy.
Civil liberties continue to be at risk. The country is now at war. Statutes are unfolding upon
statutes, executive orders upon regulations, policy documents upon major pronouncements.
There is a new Cabinet-level department, and an intelligence overhaul. Congress is buzzing
with further proposals. Security systems are sprouting everywhere. Terror threat warnings are
the order of the day. Ethnic suspicions are heightened. Privacy has taken on a more limited
meaning. While some courts sound alarm, detainees under government control continue to
languish, for years, without direct contact of family or of counsel, without hearing, and without
charge, their fate still unknown. The highest court in the land has confirmed that this can
happen to United States citizens.
New and dangerous gardens are being tended. The "war on terrorism," begun in earnest on
September 11, 2001, appears to have no end in sight. There may, in fact, be no end to it. And
billions of dollars are unspent on crucial social needs of nearly every description. Despite the
sense of government resoluteness and determination, the road ahead is far from certain.
The painted bus, now with the same driver as before, has moved past the blinking sign. If
the country does not turn this brightly painted bus around, it may go down a road which has no
end, or to a cliff of perilous heights. Proceeding to either of these ominous destinations is now
very real. And that would be thegreatest threat of all.

454
 INDEX

A Catholic Bishops, United States Catholic Con-

ference
Accountability, and law enforcement, 233 United, 334
Aircraft, destruction of
Catholic Worker
aircraft, 123
Catholic, 338
Alien and Sedition Acts, 16
Chomsky, Noam
American Council of Trustees and Alumni
Chomsky, 447
American, 357
COINTELPRO, 358
American Friends Service Committee
Commercial television
American, 336
commercial, 416
ANSER Institute
Comstock Law, 17
ANSER, 349
Consumer reports, obtaining
arrests and detentions, Justice Department or information, 104
INS, 237
Correspondent, 58–60, 71
Correspondent accounts, 58
B Crime victims, programs or payments
Beneficial, 58, 60 crime, 107
Beneficial owner accounts, 58 Critical Infrastructure Protection Board
Berrigan, Daniel , 348
Berrigan, 447 Critical, 267
Berrigan, Philip Critical Infrastructures Protection Act
Berrigan, 447 , 137
Berry, Wendell Cyber security
Berry, 446 cyber, 362
Biometric, 92, 102 cyberterrorism, 128
Biometric identification, 135
biometric, 92
D
Brooke, Joel Ijams
Brooke, 447 Declaration of Human Rights
Bush, Laura United, 328
Bush, 420 Detainees, 234
Diligence, 59
Diligence, 59
C DNA profile bank, 126
Camp X-Ray, 244 DNA profiles
Canadian border security, 91 DNA, 103
Carter, 9, 11 Domestic terrorism
Carter, Jimmy, 9 , 122
due diligence, 54, 59, 63–64

455
 No Greater Threat

diligence, 60 humanitarian, 102

E I
Educational records, obtaining Information sharing between agencies
educational, 105 information, 130
electronic surveillance Intelligence Community
surveillance, 239 intelligence, 346
Episcopal Church, Executive Council Internal Security Act, 19
Executive, 335 International Covenant on Civil and Political
Espionage Act of 1917, 17 Rights, 244
Espionage and Sabotage Act of 1954, 17 Interpress Service News
exigent circumstances, and PATRIOT Act, 138 Interpress, 263
Iraq, 252
F
Federal crime of terrorism, 124 J
Federal Emergency Management Agency, 268 Jefferson, Thomas
Ferencz, Benjamin Jefferson, 328
Ferencz, 447
Financial Action Task Force
Financial, 56 K
Financing Terrorism, International Conven- King, Martin Luther, Jr.
tion for Suppression, 438 King, 427
First Responders Assistance Act Kucinich, Rep. Dennis
, 134 Kucinich, 453
FISA, 255 Kung, Hans
Foreign Intelligence Surveillance Act, 19 Kung, 447
Foreign student, monitoring programs
foreign, 102
Foreign Terrorist Asset Tracking Center, 131 L
Fox, Matthew Lifton, Robert J.
Fox., 447 Lifton, 447
Lutheran Evangelical Church in America
Lutheran, 335
G
GAO, 345
General Assembly, United Nations M
General, 438 machine-readable passports
Government Accounting Office , 102
GAO, 343 Madison, James
Madison, 328
Mandatory detention, 99
H detention, 99
Habeas, 100 Mass transportation, 122
Habeas corpus McCarthy, Coleman
habeas, 99 McCarthy, 447
habeas corpus, 17 Measures, 57–59, 63
Homeland Security Council Measures, 72
, 266 Media and broadcast media, 258
Homeland Security Foundation Mennonite Central Committee
Homeland, 349 Mennonite, 336
House Un American Activities Committee Military tribunals, 239
(HUAC), 18 Mische, Jerry
Humanitarian relief for affected aliens Mische, 447

456
 Index

Mische, Pat Sojourners

Mische, 447 activity--Sojourners, 338
Muller, Robert Southern Baptist Conference
Muller, 447 Southern, 337
special measures, 56–57
Star Chamber, 245
N Supervised release
Noble Eagle, 227 supervised, 128

O T
OFAC, 74 Taliban, 445
Office of Foreign Assets Control, 73 Terrorist group or organization
Oversight office, Department of Justice organization, 94
oversight, 133 The Media Channel
Media, 263
P Thich Nhat Hahn
Hahn, 450
Pax Christi USA
Training program, inter-agency
Pax, 338
training, 132
payable-through, 58
Transportation Security Administration, 227
PBS, 261
Portland, Oregon
Portland, 352 U
Presidential Decision Directive 39 Unitarian Universalist Association
Presidential, 343 Unitarian, 336
Presidential Decision Directive 62 United Church of Christ
Presidential, 343 United, 336
Presidential Decision Directive 63 United Methodist Church, General Board of
Presidential, 343 Church andGeneral
Prime time General, 335
prime, 416 United Nations, 259, 437
Public safety officers, payments to
public, 106
V
Vietnam, 10, 19
R Vietnam, 19
Reagan, 9–10, 12, 16 Visa identity, verifying
Reagan-Bush, 10 visa., 92
Reagan, Ronald, 9 visa integrity and security
Rewards, 103 , 101

S W
Sedition, 16 Wills, Garry
Sedition Act of 1918, 17 Wills, 447
Smith Act, 18

457