Invasive and Ineffective: DHS Surveillance Since 9/11

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

In the aftermath of the September 11 attacks, President George W. Bush and Congress created the Department of Homeland Security (DHS), consolidating twenty-two different agencies and their functions under one umbrella. Much has been written since the Department’s creation about its dysfunction and systemic challenges. But DHS’s sweeping collection, retention, and use of data about Americans, immigrants, and travelers has received far less scrutiny. Much of this information – which can reveal everything from a person’s political and religious leanings to the identity of their friends, relatives, and associations and their fingerprints or facial signatures – is not related to “specific…threat(s) from…specific terrorist(s),” which was identified as a significant intended focus of DHS in President Bush’s proposal to create the Department. Instead, it is often used to make opaque and unscientific determinations about who might pose a threat in the future.

There is scant evidence that the combination of suspicionless surveillance and speculative threat assessments have made us safer. Moreover, former DHS officials have emphasized the impact of DHS’s operations on Americans’ civil rights and civil liberties, noting that the “privacy and due process concerns resulting from other homeland security operations, such as information collection by the National Security Agency, pale by comparison.” As the administration turns its focus toward domestic terrorism in the wake of the January 6 insurrection, and far-right violence in particular, it must take care in deploying DHS’s significant resources not to simply recycle practices that jeopardize historically targeted communities and individual privacy.

Beginning a decade ago, for instance, the Obama administration began to entrench Countering Violent Extremism (CVE) initiatives. Programs in this mold recruited community leaders, social workers, teachers, and public health providers, purportedly to help identify people who were at risk of becoming violent extremists. Instead, these efforts broadly painted members of American Arab and Muslim communities as terrorists and everyday political activism and religious practices as signs of violence. While President Biden promised during the election that he would scrap such programs, his administration has instead doubled down on this same basic approach, funding efforts that direct the public to report supposedly suspicious activity or behaviors – including vaguely defined indicators such as having a grievance, being socially isolated, or behaving unusually – to the police or to “threat assessment” teams involving law enforcement. These programs, which are run out of DHS’s new Center for Prevention Programs and Partnerships (CP3), are essentially a repackaging of the repudiated CVE programs that relied on unscientific criteria to flag potential threats, even if they do not overtly target marginalized communities.

In addition, some reports of suspicious activity will be disseminated to “fusion centers,” products of the post-9/11 push to supercharge information-sharing and surveillance coordination between federal, state, and local governments and the private sector. These centers were roundly criticized in a bipartisan 2012 U.S. Senate investigation that found they had “yielded little, if any, benefit to federal counterterrorism intelligence efforts” while releasing reports that were useless or corrosive of civil liberties. More recent events do not inspire confidence that much has changed: last year, one fusion center was caught distributing fake posts by right-wing activists as evidence of potential violence at anti-police brutality demonstrations, while others were found to have monitored racial justice organizers and protests. Nevertheless, DHS and DOJ guidelines encourage fusion centers to assess terrorism risk by drawing on a plethora of extraneous sources, from social service providers and public health departments to hospitals and phone and internet providers.

Between the threat assessment framework and the involvement of fusion centers, issues unrelated to public safety threats – a fight between classmates, for instance, or a mental health condition requiring care – will be elevated to often unaccountable law enforcement bodies, thereby undermining efforts by social service and health providers to get people the help they may need. Moreover, these unreliable threat indicators are likely to be tainted by well-documented racial and religious biases that disproportionately identify Muslims and individuals of color as posing a threat.

In the travel and immigration screening context, too, the Department fuses reams of disparate and unreliable information to conduct risk assessments, an opaque process that purports to determine who might pose a threat among both foreign travelers and Americans. To facilitate this process, DHS uses automated tools that pull from a broad list of datasets, including detailed passenger information submitted by airlines, license plate data, DMV records, law enforcement and intelligence information, visa and immigration enforcement records, and social media data. Some tools incorporate data sets tainted with bias, such as NSEERS, a defunct Bush-era registry for Arab men. In the past, border agents have even added notes on books carried by travelers, documenting First Amendment-protected activity.

Exposés of Transportation Security Administration (TSA) risk assessment programs depict a department run amok. In one program, Screening of Passengers by Observation Techniques (SPOT), later rebranded as the “Behavioral Detection and Analysis Program,” officials flagged travelers as potential security threats on the basis of innocuous behavior such as whether they were wearing “improper attire for the location” or gazing down. TSA officers administering the program reported that it enabled racial profiling, and the program was the subject of multiple critical GAO and DHS Inspector General  reports, which found that the majority of TSA’s indicators were not empirically supported and the agency had not determined the effectiveness of the program. Though TSA has stopped this stand-alone behavioral detection effort, it appears that aspects of the program have been incorporated into general TSA activities.

Another TSA risk assessment program, “Quiet Skies,” identifies incoming international passengers (including Americans) based on routine behaviors like fidgeting, sweating, using the bathroom, or conversing with fellow passengers; once flagged, armed federal air marshals may board their flights to observe them. TSA officials disclosed to Congress that 5,000 US citizens – none of whom were ultimately deemed suspicious or requiring further scrutiny – had been monitored in a single six-month period, and the DHS Inspector General issued a scathing audit that documented DHS’s extensive failures to follow basic processes.

Social media is also an emerging frontier of broad-scale surveillance both abroad and domestically. The Obama administration started using social media to screen people coming to the U.S., a practice significantly expanded by former President Trump’s Muslim Ban. Since 2019, for instance, the State Department has collected social media identifiers from about 15 million people who apply for U.S. visas annually. These are shared with DHS and accessible through its risk assessment platforms, and the Department continuously monitors select visa holders’ social media during their time in the country. Domestically, DHS’s Office of Intelligence & Analysis (I&A) is responding to the January 6 insurrection by rolling out an initiative to identify online “narratives” that they believe are likely to incite violence, as well as to identify people who may be susceptible to these narratives based on their social media behavior.

There is little proof, however, that social media screening is an effective threat detection tool. DHS’s own internal tests examining the utility of social media to screen people coming to the U.S. suggest that officials found it of little use in identifying national security concerns, and that it was difficult to understand the context or to ascertain the reliability of what they were reviewing. The Department ultimately concluded that “mass social media screening” was a waste of resources. In addition, earlier this year, the White House office that reviews federal regulations rejected a proposal by DHS to follow the State Department’s lead in collecting social media identifiers because the Department had not “adequately demonstrated the practical utility of collecting this information.” And I&A’s intelligence gathering and dissemination process has had a poor track record of protecting civil rights and liberties, raising concerns about its foray into social media monitoring.

Moving forward, policymakers should learn from the experiences of the last twenty years. None of the DHS-led programs described above have a documented track record of providing security benefits. Yet their ill-conceived methods persist, and continue to be expanded, in current policy. Indeed, the effectiveness and potential impact of these programs was never meaningfully considered – or, in some cases, was even ignored as the programs were rolled out. Before implementing new initiatives, DHS must empirically validate their utility using concrete assessment criteria and account for impacts on privacy, civil rights, and civil liberties. To ensure this happens, DHS should bring its Offices of Privacy and Civil Rights and Civil Liberties into the fold at the outset of the policy design process, give them a voice in whether programs should be implemented and not simply how, and direct them to regularly audit programs that go into effect. DHS should also halt support for efforts that have not been demonstrated to work, including the violence prevention programs, fusion centers, and broad-scale social media surveillance initiatives discussed above.

Commentators will continue to discuss whether DHS should be restructured or eliminated. In the meantime, there are ample steps that the Secretary and Congress should take to ensure that the Department enters this decade by taking a new approach: measuring effectiveness, engaging only in empirically proven methods, and dedicating itself to robust protection of civil rights and civil liberties.

Can States Block Federal-Local Cooperation?

The long-fought conservative war on progressive cities, which has taken on deadly new dimensions as the pandemic continues, may be moving into an intriguing - and for localities, potentially promising - new legal phase. As states seek to block local governments from implementing common-sense mask and COVID-19 vaccination rules to protect public health, the federal government has started to intervene on the local-government side of these conflicts.

The American Rescue Plan provides state and local funding to offset the costs of responding to the COVID-19 pandemic. The Department of Treasury emphasized in an interim final rule that these funds should be used to support the prevention and mitigation of the COVID-19 pandemic in key settings like schools. And the Centers for Disease Control and Prevention has issued guidance recommending universal masking for all students over the age of 2, as well as teachers, staff, and visitors in K-12 schools.

Despite this Treasury and CDC guidance, some states are blocking local governments from implementing the exact programs the federal government recommends and is funding - and threatening to withhold funding if cities and counties refuse to comply with state orders. In Arizona, for example, Governor Doug Ducey is limiting the distribution of federal ARP funds to local school districts that do not adopt mask mandates, preventing school districts following federal guidance from receiving federal funds. In Florida, despite multiple rulings to the contrary, the state has decided to withhold funds from two school districts for imposing masking mandates. Florida Commissioner of Education Richard Corcoran said last week that the department has withheld funds from Alachua and Broward counties in amounts equal to the monthly salaries of school board members because “each district has implemented a mandatory face mask policy that violates parental rights by not allowing a parent or legal guardian to opt-out their child.” Local governments in these and other conservative-led states want to comply with federal guidance, but states are standing as obstacles to federal-local cooperation against the pandemic.

Now, the Biden Administration has signaled an active willingness to block this state interference. On August 18th, President Biden issued a memorandum to the Secretary of Education to ensure that “[g]overnors and other officials . . . are not standing in the way of local leaders” preparing for students’ safe return to the classroom. Following that memorandum, the federal Department of Education put six states - Arizona, Florida, Iowa, Oklahoma, South Carolina, Tennessee, Texas, and Utah - on notice that actions to block school districts from voluntarily adopting science-based strategies for preventing the spread of Covid-19 may run afoul of federal law.

The federal government has taken further steps to support cities as states signal that they will continue to target cities following federal recommendations for student safety. President Biden has indicated that the federal government would direct federal funding to compensate school districts that the state of Florida is seeking to remove funding from. The Department of Education has opened civil rights investigations in Iowa, Oklahoma, South Carolina, Tennessee, and Utah to determine whether prohibiting mask requirements impedes access for students with disabilities in violation of federal law. Federal investigations have not been initiated yet in Arizona, Texas, or Florida because of pending state litigation.

This is not the first time the question of federal funding and state interference with local governance has come to a head. In Lawrence County v. Lead-Deadwood School District No. 40-1, 469 U.S. 256 (1985), the Supreme Court held that the state of South Dakota could not compel a county to allocate federal funds according to a state-mandated funding formula, when the state disagreed with how the county wanted to prioritize local spending. There, the federal government had set aside funds for local governments to spend for “any governmental purpose,” and the state’s imposition of additional spending conditions presented an obstacle to the federal government’s aim of supporting local discretion. Here too, states seek to prevent voluntary collaboration between the federal government and local governments.

This is not to say that the federal government can mandate local collaboration. The Trump Administration was properly held to have violated the Tenth Amendment when it tried to commandeer local governments into involuntarily acting as an arm of federal immigration enforcement. But here, states are seeking to undermine willing federal-local collaboration, and by extension local autonomy, to engage in policymaking that furthers public health and individual rights, such as the federal educational rights of students. Local communities, school districts, and their students stand to suffer as a result.

Federal-local cooperation to overcome state opposition has the potential to further equity and bolster individual rights in a variety of other policy areas. The federal government can support local governments that seek to use their autonomy and discretion to pass higher minimum wage, expand ballot access, increase environmental protection, and redirect law enforcement dollars toward human services, to name a few examples. The federal government does not intervene in state-local relations lightly, nor should it, but when the imperatives of federal law are implicated in local policymaking, the abuse of state preemption should not stand as a barrier.

Nestor M. Davidson is the Albert A. Walsh Chair in Real Estate, Land Use, and Property Law and the Faculty Director of the Urban Law Center at Fordham University School of Law. Marissa Roy is the Legal Team Lead of Local Solutions Support Center.

Bypassing the Texas Two-Step to Save Reproductive Rights

Last week, when the Supreme Court refused to halt the new Texas abortion law from taking effect, President Biden directed the Departments of Justice and Health and Human Services to examine whether they have the legal means with which to protect the reproductive freedom of pregnant people in Texas.  Calling this objective a “whole-of-government effort,” the president condemned the Texas law as “pernicious” and “almost un-American.” It “creates a vigilante system,” the president observed, in which people having no personal connection to the situation can file a state-court claim for $10,000 in damages against both abortion providers and those who help pregnant people seek such services.

This clever Texas two-step manages to dance around the traditional way in which people, whose constitutional rights are violated by a state statute, may sue to stop the law from ever going into effect. A deeply-rooted principle of American jurisprudence is the concept of “sovereign immunity.” The doctrine of sovereign immunity provides that a state, as a supreme governing entity, cannot be sued for any purpose without its consent.  It derives from the British common law idea that the King could do no wrong.  Generally speaking, this rule means that the sovereign state of Texas is not answerable in the courts unless it legislatively agrees to be. As the Supreme Court stated long ago, a state’s sovereign immunity is “a personal privilege which it may waive at pleasure.”

But government officials charged with administering state laws do not enjoy that pleasure.  Sovereign immunity does not apply to them. Consequently, people can haul state officials into court to stop them – in advance – from enforcing an unconstitutional measure.  That’s why you see so many governors, attorneys general, and other government officers named as defendants in cases challenging the constitutional validity of state statutes and regulations.

Here, it occurred to the Texas legislature that if its new abortion statute prohibited any state official from enforcing it (which it does), opponents of the law would have no one to sue preemptively to strike it down. After all, opponents of the abortion law cannot sue the State of Texas – sovereign immunity forecloses that option. In devising the legislation, Texas lawmakers also bet that reproductive health providers would be too frightened by the expected tidal wave of private lawsuits to remain open.  It was a smart bet.  Already, some Texas clinics are unfortunately turning away pregnant people in need of care.

True to its promise, the Biden administration sued Texas this week in federal court seeking both a declaration that the state’s new abortion statute violates federal law and an injunction essentially barring private parties from prosecuting all claims created by the legislation. Unlike individuals personally affected by the statute, the federal government is not barred by sovereign immunity from suing Texas directly. This is because the U.S. Constitution subordinates state sovereignty to federal action. That said, the unprecedented private enforcement mechanism adopted by Texas still presents the federal government with a unique challenge.

The complaint filed by the U.S. Justice Department seeks injunctive relief against Texas —“including all of its officers, employees, and agents, including private parties who would bring suit under [the abortion statute] – prohibiting any and all enforcement of” the law (emphasis added). When presented with novel circumstances involving deprivations of constitutional rights, courts try “to plot a line between state action subject to Fourteenth Amendment scrutiny and private conduct (however exceptionable) that is not.” Our legal system  primarily safeguards individuals from constitutional violations committed by the government, or agencies of government.

The federal government’s complaint makes a compelling argument that – under this statutory scheme designed to repel judicial challenge – private actors should be treated as state actors in the constitutional analysis.  The Supreme Court has never ruled, however, that private claims, which all members of the general public are statutorily empowered to bring, can actually constitute state action.  Considering that the present Supreme Court has already refused to stay the implementation of the Texas law – even on an interim basis – it is far from certain that a majority of the justices would extend the state action doctrine in aid of pregnant people in Texas.

Under these circumstances, the Biden administration may want to consider a belt and suspenders approach – that is, devise a back-up strategy in case the litigation gets tangled up in remedial knots.  The one that I suggest is more mundane than a sweeping injunction, but it could nevertheless achieve much the same result.

In designing this abortion law, Texas legislators may not have considered that two sovereigns can play the immunity game.  The United States of America also enjoys sovereign immunity. And you know who else does, too?  Private contractors who perform services for the federal government.

Over 80 years ago, in Yearsley v. W.A. Ross Construction Co., the Supreme Court made clear that contractors performing work “authorized and directed by” the federal government are immune from liability provided that the “authority to carry out the project was validly conferred, that is, if what was done was within the constitutional powers of Congress.”  More recently, the Supreme Court has referred to this liability shield as “derivative sovereign immunity.”

If the Biden administration is looking for a practical, administrative way to defend the constitutional rights of pregnant people in Texas (and everywhere else in this country), it might seriously consider putting derivative sovereign immunity to work. The president could promptly direct that appropriate federal agencies contract with Texas abortion clinics simply to remain open and to help arrange for patients’ transportation when necessary.  This assistance cannot include paying for any actual medical procedures other than those already funded by federal law because Congress has restricted such payments through prior legislation. But the U.S. Departments of Justice, Health and Human Services, Labor, and Defense, as well as the Office of Personnel Management, arguably have statutory authority – through existing funding programs – to make a sovereign immunity play.

For example, the Justice Department’s lawsuit lists federal programs involving the Jobs Corps, refugee resettlement, prison healthcare, Medicare and Medicaid Services, federal employee health insurance, and military healthcare that are all stymied by the new Texas law. Most, if not all, of these programs are serviced by private contractors that work to ensure pregnant people can exercise their existing constitutional right to access abortion care. And as parties performing authorized federal contracts, Texas healthcare providers should be immune from the new Texas statute.

After 80 years, the operative theory here is not particularly controversial.  That’s good.  Sometimes the most effective and enduring solutions are the least exciting.  And by keeping “vigilantes” at bay, a federal response along these lines could maintain access to critically-needed medical services in Texas while the Supreme Court again revisits the scope of a pregnant person’s right to choose.

Daniel S. Alter is a practicing attorney in New York.  Earlier in his career, Mr. Alter was a Coker Fellow in Constitutional Law at Yale Law School, adjunct professor at NYU Law School, and an Assistant U.S. Attorney for the Southern District of New York.

The Espionage Act and Media Sources After 9/11  

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

In December of 2005, the New York Times published a blockbuster story by James Risen and Eric Lichtblau entitled Bush Lets U.S. Spy on Callers Without Courts. Risen and Lichtblau reported that the Bush Administration had, since shortly after 9/11, authorized the National Security Agency to wiretap certain calls between the United States and abroad without warrants, despite a longstanding statutory prohibition on warrantless wiretapping of calls between the United States and other nations. Risen and Lichtblau won a Pulitzer Prize for the series, which the Pulitzer committee described as “carefully sourced stories on secret domestic eavesdropping that stirred a national debate on the boundary line between fighting terrorism and protecting civil liberties.”

A key source for the Times story, and a second person who was wrongly suspected of being a source, fared considerably less well than the reporters. Former Justice Department lawyer Thomas Tamm discovered the secret NSA program in 2004. Troubled by what he had learned and dissatisfied with the responses he received when he questioned his supervisors and a Senate Judiciary Committee staffer about the program, Tamm contacted the New York Times and became a source for the series that Risen and Lichtblau eventually published. After investigating Tamm and discovering his communications with the former Senate staffer, the FBI raided Tamm’s house in 2007. Tamm remained under criminal investigation until the Obama Administration dropped the matter in 2011. During the same time period, the FBI also came to suspect former NSA employee Thomas Drake of being a source for the New York Times series. The suspicion apparently stemmed from Drake’s cooperation with a complaint made by several of his colleagues to the Defense Department’s Inspector General, despite the Department’s obligation to protect complainants’ identities. Although Drake was not a source for the Times story, he was a source for a different story in the Baltimore Sun, and the Justice Department eventually threatened to prosecute him for leaking classified information to the Sun reporter. The Justice Department raided Drake’s home in 2007, and in 2010 indicted him for unlawfully retaining classified information. In 2011, Drake pled guilty to a single misdemeanor count of exceeding his authorized access to government computers. At the sentencing hearing, Judge Richard D. Bennett called it “ ‘unconscionable’ that Drake and his family were dragged through ‘four years of hell’ only to have prosecutors ultimately back down on all felony charges.’”

The Tamm and Drake investigations, and Drake’s prosecution especially, were early harbingers of a government crackdown on leaks of classified information to the media. Prior to 9/11, the U.S. government had undertaken only three prosecutions of former government employees or contractors suspected of engaging in such leaks. In the past twenty years, that number has more than quadrupled. The reasons for this dramatic rise in prosecutions are debatable, and no simple, single answer suffices. But 9/11 and its aftermath are surely parts of the story. The national security state expanded substantially after 9/11, including the amount of information classified and the number of people with security clearances. Additionally, a host of controversial new programs – like the surveillance programs that alarmed Tamm and Drake -- generated unease within the government and corresponding temptations to leak. Indeed, Yochai Benkler observed in 2014 that many of the post-9/11 leak prosecutions have involved “accountability leaks,” which he defines to mean “unauthorized national security leaks and whistleblowing that challenge systemic practices.”  The same may be said of more recent leaks. The combination of such leaks with a growing national security state bearing heightened surveillance capacities is a combustible one. These factors are compounded by additional developments, including technology that makes it easier than ever before both to leak and to catch leakers through digital footprints.

Although the exponential rise in media leak prosecutions is a post-9/11 phenomenon, the main legal authority on which prosecutors rely in such cases – the Espionage Act of 1917 -- is a relic of the first world war. Indeed, the Act was enacted decades before the United States had a permanent classification system, and its major amendments were passed in 1950, a year before such a system was initiated. More so, the Act’s legislative history – detailed most exhaustively in a landmark law review article by Harold Edgar and Benno C. Schmidt, Jr. – makes plain that a majority of the congresspersons who passed the Act did not intend to criminalize leaks to or publications by the press. Their targets, rather, were spies and saboteurs.

The Act’s sweeping language, however, can support its application to media leaks. In provisions now codified at 18 U.S.C. §§ 793(d) and (e), the Act makes it a crime for anyone who possesses information “relating to the national defense” to “willfully” communicate it to an unauthorized person or to fail to return it on demand, if the possessor “has reason to believe” the information “could be used to the injury of the United States or to the advantage of any foreign nation.” When the communicated items are tangible – such as documents or photographs, rather than orally conveyed information – the Act does not require a “reason to believe” in the materials’ potential injuriousness. Courts have read into the Act a requirement that the information be “closely held,” and they use classification status to inform whether the requirement is met. The Act thus can plausibly be read to cover virtually any unauthorized communication of classified information, including those to or by the press. By the Act’s terms, it simply does not matter whether the information reveals wrongdoing, generates policy debates, or otherwise is in the public interest.

The U.S. Court of Appeals for the Fourth Circuit agreed that the Act authorized media leak prosecutions in the 1988 case of U.S. v. Morison.  In addition to its statutory analysis, the Morison Court dismissed the First Amendment and vagueness concerns raised by the defendant. The Court’s constitutional analysis was grounded partly in earlier case law regarding Espionage Act prosecutions that involved not media leaks, but international spying and sabotage. Those cases themselves relied on still older precedent that arose well before the classification system took its modern, bloated form. Indeed, a key Espionage Act precedent involving spying – Gorin v. United States – was decided in 1941, at a time when the United States had only a wartime military classification system, rather than the enormous, permanent, government-wide system that exists today. Gorin was cited by later courts to support subsequent spying cases. Those later cases, in turn, were cited by the Morison Court to bolster the Act’s application to media leaks in a world of increasingly ubiquitous classification.

Two of the three judges on the Morison panel themselves took solace in a contingency of their own time – that is, in the relative scarcity of media leak prosecutions in the 20th century. Judge Wilkinson, who joined the majority opinion, wrote a concurrence in which he deemed it unlikely that sources of information about “corruption, scandal, and incompetence” would be prosecuted. Judge Phillips penned a separate concurrence in which he agreed with Judge Wilkinson’s prediction and deemed it the “critical judicial determination forced by the [F]irst [A]mendment arguments advanced in this case.” Of course, these optimistic assessments have not held in the post-9/11 years. Although Morison remains the only federal appellate court authority on the constitutionality of media leak prosecutions under the Espionage Act, a growing body of District Court precedent has relied on it to reject challenges to post-9/11 prosecutions.

That the Espionage Act is increasingly wielded like an official secrets act thus stems more from accident and inertia than from democratic design or constitutional deliberation. The Act was created on the eve of the U.S. entry into World War I as a means to target spies and saboteurs, in an era when our sprawling classification system was barely conceivable. It took nearly four decades for prosecutors to wield it against a media leak, and a few more decades – until United States v. Morison – for such a prosecution to succeed. Yet Morison, which itself drew on inapposite caselaw, laid the doctrinal groundwork for what was to follow after 9/11. The result is our status quo – an increasingly normalized system of media leak prosecutions in which the public interest, whether in an absolute sense or relative to any national security harm from a leak, is legally irrelevant.

As we reflect on 9/11 and its aftermath, then, we would do well to take a fresh look at the use of the 1917 Espionage Act as a tool to punish and deter leaks of information to the media. Elsewhere, I and others have argued in detail that the rising tide of media leak prosecutions is deeply troubling from First Amendment and public policy perspectives. We have urged judicial innovations to account for these problems at both the liability and sentencing stages, and we have also called for statutory reform. Whatever changes might eventually be adopted or rejected, however, one point is plain: we are well past due for meaningful deliberation regarding the constitutionality and wisdom of prosecuting leaks of information to the media. The issue is simply too important to be resolved through happenstance or historical accident.

The Triumph of the Securocracy

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.

 

 

The Threat We Face is Unbridled Hate

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

Where were you on 9/11?

Twenty years later, it’s a question that I and millions of Americans are asking today. My 9/11 story began like many other Americans. It seemed like another ordinary day.

I was working at UBS Financial Services in Washington D.C. – a brief stint before returning to public service. After surviving the District’s notorious rush hour traffic, I made it to the office by 8 a.m. Then, I saw the breaking news alert – a second airplane struck the South Tower of the World Trade Center.

A week later, I went up to New York to volunteer with the relief effort by providing food and supplies to first responders. The mood was somber, but it was also filled with a sense of resilience and perseverance. During those dark days, our country was united. In the days and months that followed, we didn’t see each other through our traditionally prescribed political labels – instead, we were Americans. Americans who felt connected by our common humanity.

In the two decades that followed, our country waged a global war against terrorism to eliminate terrorism at its source. As we’ve learned, however, terror and hate know no boundaries and are pervasive and growing threats here at home. The domestic threat may be cloaked in different clothes, rituals, and names but is just as insidious and destructive. And we have yet to unite around confronting hate at its source.

For those impacted by hate, their loved ones, and their communities, the ramifications of hate are very real and will never be forgotten.

I’m thinking of: Satwant Singh Kaleka in Oak Creek, Maura Binkley in Tallahassee, and Heather Heyer in Charlottesville, all killed at the hands of domestic terrorists.

I’m thinking of the attack on Mother Emmanuel AME Church in Charleston, South Carolina that killed nine Black churchgoers.

I’m thinking of the attack at the Tree of Life synagogue in Pittsburgh, the Walmart in El Paso, or the Atlanta-area spas just earlier this year.

And then there’s Brian Sicknick – a brave member of the U.S. Capitol Police who tragically died the day after he fought off domestic terrorists trying to infiltrate the Capitol on January 6.

To honor those we’ve lost, we must come together to address the threat of domestic terrorism and more dangerously – the threat of unbridled hate. Hate has been part of our country’s history and our present, but it doesn’t have to be our future. It seems like a daunting task to stop the spread of hate – but we must try. That’s why as the 2021 president of the National Association of Attorneys General, I’ve been conducting a year-long inquiry into hate and what I’ve learned is there are tangible steps that we can take to address hate.

First, we must understand the full extent of the threat, and the mechanisms that allow hate to flourish. Next, we must repair the harm hate has caused and the societal cleavages that allow hate actors to exploit our fissures. I don’t believe we can eradicate hate, but we can create a society that resists the allure of hate regardless of its mask, supports those who have experienced it, and bends toward cohesion in the midst of adversity.

 Understanding the Threat

To understand the threat hate portends, we must address gaps in hate crimes data at the state and federal levels. The FBI recently reported that the number of hate crimes in the United States rose in 2020 to the highest level in 12 years – propelled by increasing assaults on Black and Asian-Americans. In all, the bureau counted 7,759 hate crimes last year marking a six percent increase from 2019 and the most since 2008. While this data gives a fuller picture of the problem, the majority of hate crimes go unreported by both the people who experience them and by law enforcement who do not provide this data to the federal government. These gaps leave various levels of law enforcement with an incomplete picture and ill-equipped to allocate appropriate resources.

Earlier this year, I led 34 other attorneys general in advocating for the passage of the federal No Hate Act, which authorizes necessary resources for each state to improve reporting and increase community awareness. It’s an important first step, however, each state should legislate mandatory hate crimes reporting to the federal government to help fill this gap. However, data collection and reporting are just the beginning.

Denying Hate a Host

We must confront the factors that facilitate hate and allow hate actors to radicalize and recruit. The most obvious culprit here is social media. For too long, big tech has created a virtual safe haven for hate actors. Advocacy groups and think tanks like the Anti-Defamation League, Counter Extremism Project, Center for Countering Digital Hate, and dozens more agree that big tech fails to act even when they know extremists are using their platforms to peddle misinformation to fan the flames of hate. In each of the horrific acts of terror previously mentioned, the perpetrator engaged with or sought inspiration from hate actors online.

Even worse, big tech profits from online hate. For example, in the wake of the January 6 attack, Facebook targeted advertisements for military tactical gear and weapon accessories to users who were following extremist content. They were quietly profiting from these advertisements despite their claims that they would not tolerate their platform being used to incite violence. I joined forces with other attorneys general to shine light on this duplicity and urged them to halt these advertisements until after the inauguration. Big tech has proven that they value profit over public safety and there must be accountability and change.

Repairing Harm and Supporting Survivors

Finally, where hate has already taken place, we must work to repair the harm. The impact of resulting trauma – be it hate crimes or institutional racism – can be long-lasting and generational. In both cases, the trauma inflicted on individuals and communities can leave them, and their children and grandchildren, crippled with despair and grief that can impact their ability to flourish.

Restorative justice can be a mechanism through which healing begins both for the survivor and the perpetrator. Restitution is also a means to support survivors. My office worked to pass local legislation to give us the authority to bring civil-charges against perpetrators of bias-motivated crimes. Combined with our restorative justice program, I’m confident that we can ensure accountability and begin to repair harm. There is no one size-fits-all approach to survivor support but these are tools that should be in each state’s toolkit.

On this 20th anniversary of 9/11, we solemnly remember the lives of those we lost, and we should also remember that our country has the capacity to come together to solve big challenges. While foreign threats are still prevalent, we must acknowledge that today, the biggest threat to the fabric of our nation is unbridled hate and we must unite to address the systems, policies, and actors that perpetuate it.

To address acute and institutional forms of hate, all of us must commit to acknowledging these basic truths of our past, work to address the legacies of hate that exist today, and repair the damage that has been done to our communities. We must commit to shedding our role as passive bystanders and instead, take action.

What’s at stake is nothing less than our common humanity – we must stand up for it.