September 9, 2021

The Triumph of the Securocracy

Emily Berman Assistant professor, University of Houston Law Center
Aziz Z. Huq Frank and Bernice J. Greenberg Professor of Law and Mark Claster Mamolen Teaching Scholar, University of Chicago Law School


This blog is part of ACS’s Blog Symposium exploring the Legal Legacy of 9/11. 

Who has gained from the various legal, policy, and institutional changes set in motion by the 9/11 attacks? The question seems crass, even slightly repulsive. But that makes it no less important.

The September 11 attacks were a policy shock—in form, at least, a surprise despite some hints in past conspiracies.  Surprises often shake loose calcified institutional and policy arrangements, both domestically and geopolitically: The resulting rhetorical, legal, and policy spaces are novel. They are prone to colonization by those most capable and ready to address the felt gaps in law, policy, and ideas. In part, this allows these actors to formulate what, exactly, the crisis entails, and what responses are in fact needed. In part, as Paul Pierson has explained, the policies that ensue become the foundation for politics—coalitions of bureaucrats, politicians, and aligned interest groups that can beat back challenges to a profitable new dispensation.

The most notorious example of an off-the-shelf policy being rushed to address the felt need to do something is, of course, the Iraq war (although Robert Draper’s recent book suggests a somewhat more complicated story). But turn to post-9/11 domestic policy and a similar picture emerges: the gaps in policy and rhetoric identified in the wake of the attack have been filled by interest groups and governmental actors that were well-positioned in late 2001 and the days thereafter to make the case that they had the needed expertise in responding to national security concerns.

In particular, actors within the government have been remarkably successful in accruing resources—and hence institutional heft—while at the same time sloughing off oversight that might determine whether they are in fact advancing some plausible public good. And the question whether these agencies, in defining and pursuing their new missions, are imposing unacceptable harms to the public is also left unanswered.

Yet the resulting new or newly empowered bodies have dominated the policy space created by the 9/11 attacks. Their experts dominate the airwaves; their alumni account for a significant share of law school hiring, since some deans and hiring committees tend to cultivate a proximity to state power. These agencies continue to soak up public resources, at a time when vital public health and education mandates go unfunded. They are in the business too of defining the policy problem requiring action in imperfect, arguably discriminatory, ways. And they have escaped efforts to impose a serious accounting of their expenditures and actions—even when these entail serious violations of constitutional and human rights.

We suspect that the prestige, and sheer scale of their agencies (which bring jobs and income to congressional districts to the predictable boon of their elected representatives) ensure that legislative oversight will often be anemic at best.

Let’s call the resulting institutions a securocracy—a set of governance arrangements, overlapping the public-private divide, extracting both money and resources from government to define and then implement their own visions of ‘security.’ This is done largely without congressional oversight, the conventional constraints associated with the Fourth Amendment’s system of warrants, or any other meaningful system of external auditing or control. The resulting arrangement perpetuates itself by dint of oversize influence in the legislative process, avoiding either serious debate on their self-conceptions or their effects on public finance, constitutional norms, or security as experienced by Americans of all races, ethnicities, and economic class.

Our aim in this blog post is to offer two examples of the securocracy in the national security context (although the same could be done for ordinary policing). Attention to this political economy is largely wanting in the legal academy. Theorists in the rational choice tradition, who have dominated much of the scholarship in the legal academy on national security, conspicuously and comprehensively ignore the fact that at a moment of crisis, there is no shared ideal of the common weal. (See the current debate on masks and vaccination mandates for a reminder of how disagreement abides even in the face of unequivocal scientific evidence). It is precisely what the public good requires that is up for grabs—a problem on which rational choice models offer little guidance. It is precisely the power to define what counts as a threat that is the prize to be seized.

To see the problem, consider first the FBI. As this chart shows, the 9/11 attacks triggered a significant and sustained rise in resources—a doubling in just under a decade.

Yet justifications for this large—and continually growing—injection of resources are open to question. According to the Bureau’s most recent report on domestic terrorism (coproduced with the Department of Homeland Security and published in May 2021), the number of terrorism arrests has been dropping since 2015, halving by 2019. Many of the arrests that have occurred, moreover, have resulted from the use of “stings” targeting individuals who lack any prior connection to terrorist movements. If the domestic terrorism threats from groups such as al Qaeda and ISIS were continuing to rise as substantially as the FBI’s resource-allocation, one would expect to see these numbers rising, not falling. One would also not obviously anticipate that the Bureau would need to manufacture prosecutions to keep its numbers up. It is also hard to imagine that the Bureau has effectively deterred terrorists given their ideological motives.  If one wants to explain the absence of another 9/11-style attack (indubitably a policy success), one must look elsewhere.

At the same time, the Bureau reports that 2019 was the most lethal year for domestic violent extremism attacks since 1995. Between 2017 to 2019, there were 57 domestic terrorism-related deaths. Of these, 47 were racially motivated; most perpetrators were white supremacists. In 2020, the Center for Strategic and International Studies found that some two-thirds of the terrorist plots and attacks in the United States in 2020 were conducted by White supremacists and other like-minded extremists, and largely targeted African Americans, immigrants, Muslims, and Jews. In 2018, one journalist’s close study of the FBI found that the attitude of the Bureau to white supremacism was fairly characterized as one of “willful indifference” that had allowed the violent right-wing to grow and “metasta[cize].”  To the targets of such violence, the FBI’s post-January 6 pledge to pivot to address this threat may seem too little, too late.

Diverting resources to the FBI—and allowing the FBI to define the problem of ‘national security’—has gifted us with a massive, cumbersome  bureaucracy—a securocracy—that is unable to change course even when the environment changes—even, indeed, when disaster looms in plain sight.

Here’s a second example: The vast electronic surveillance state built on the foundations of 9/11. For the first three decades of its existence, the Foreign Intelligence Surveillance Act (FISA) remained a relatively obscure, rarely controversial statute. It offered a highly structured warrant procedure to constrain the discretion of intelligence officials. It used reticulated statutory definitions of who qualified as a target; the acceptable purposes of intelligence-collection; and the specific showings required for a federal judge on the Foreign Intelligence Surveillance Court (FISC) to allow collection on U.S. soil.

Like the FBI’s budget, however, the scope of surveillance authorities ballooned after the September 11th attacks, spurred by fears of “sleeper cells” in the U.S. and the intelligence-community’s clamoring for FISA “modernization” (read: expansion).

The result was predictable: new, more expensive programs targeted the contents of communications into and out of the United States, but also swept in vast swaths of Americans’ phone and internet metadata. This included non-content information such as phone numbers or email addresses, the duration of phone calls, and the IP addresses from which emails originated.

Initially, these programs were undertaken pursuant to presidential fiat, but ultimately (at securocrats’ urging) Congress provided them with legislative foundations—expanding the scope of authority conferred by FISA to accommodate the most fervent wishes of the intelligence community. The FISA Amendments Act (FAA), which authorized the collection of the electronic communications of non-U.S. citizens or residents located outside the United States, epitomizes the expansion of securocrats’ power and claims on resources.

The original FISA statute included familiar constitutional protections, such as individualized suspicion and judicially enforced probable cause rules. FAA orders look more like the results of notice and comment rule-making—but without any notice and comment, or any of the other rule-of-law safeguards of agency action.  The FAA has no requirement of probable cause; no target need be identified with particularity. Instead, intelligence agencies submit to the FISC their proposed procedures—for selecting their targets and for how they will use the information they collect. The FISC determines whether those procedures satisfy the requirements of the Fourth Amendment.  Agencies then engage in surveillance with those procedures for a year before needing reauthorization.

That targets of the surveillance must notionally be non-U.S. persons abroad does not mean that FAA surveillance poses no threat to the privacy of Americans.  Quite the opposite: While the target may be overseas, one side of many—if not most—of those conversations is often inside the United States.  This “incidental” collection, as the government calls it, entails collection of millions of communications to or from Americans inside the U.S. every year. These are then deposited in a database, to which multiple federal agencies have access.  Indeed, the FBI may search that database not only for foreign intelligence information—the purpose for which the surveillance took place—but also for evidence of crime. The result is a large expansion in bureaucratic power cemented into the resources used to create and manage this enormous database.

Even if the scope and permissiveness of this surveillance regime is itself not problematic, its track record of compliance with the FISC-approved procedural rules is abysmal.  Each FISC opinion reauthorizing surveillance for another year notes numerous “compliance incidents”—securocracy-speak for Fourth Amendment violations.  Agencies regularly access databases filled with electronic communications without satisfying the applicable rules.  They collect data for which collection is not authorized—sometimes for years at a time without notifying the FISC.  They grant access to individuals who are not authorized to access the databases.  They disseminate information to other federal agencies in violation of the rules designed to minimize the dissemination of information about innocent Americans.  They fail to implement procedures to protect attorney-client privilege. They decline to maintain proper records of their collection and database search activities.

Yet the FISC has never required the intelligence agencies to discontinue its FAA collection activities.  (On one occasion, after realizing that it had been operating in violation of FISC-required rules for over five years, the government voluntarily ended one form of collection.)  Instead, the FISC and the government agree on some token remedial efforts, which may or may not prove effective, and the collection continues.  Securocrats, once more, command resources and authorities without an accounting (legal or otherwise) for their uses.

The FBI and the agencies exploiting FISA and the FAA are hardly the only instances of ‘securocrats’ triumphant. Similar stories, indeed, can be told for more mundane police, immigration-enforcement, and carceral institutions. But we offer them here to suggest the kind of questions we should ask about the post-9/11 world: Not just questions of legality, but matters of power—and who has seized it, through what means, and to what end.

 

 

National Security & Civil Liberties