Epilogue

excerpted from the book

Inside the Shadow Government

National Emergencies and the Cult of Secrecy

by Harry Helms

Feral House, 2003, paper

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After the World Trade Center was destroyed, the composer Karlheinz Stockhausen called the act "the greatest work of art of all time." This comment was justifiably greeted with outrage, but Stockhausen was on to something. Like art, people tended to see in the September 11 attacks what they wanted to see. And how people reacted often told more about themselves than attacks.

Ominously, the reaction of many in Washington was that the attacks were caused by inadequate internal security and in order to fight terrorism, Americans must give up some of their rights. "We are in a new world," said House Minority Leader Dick Gephardt (D-Missouri) in late 2001. 5. "This event will change the balance between freedom and security."

Gephardt introduced legislation to create a national identification card for American citizens (even though none of the September 11 hijackers were using false identification or were American citizens). And ... other politicians called to relax the Posse Comitatus Act and give the military an expanded role in civilian law enforcement.

A little over six weeks after the attacks, the "USA Patriot Act" was overwhelmingly approved by Congress. This massive bill (over 340 pages) greatly expanded government wiretap and surveillance powers (especially without warrant), created a vaguely defined new crime of "domestic terrorism," allowed the government to track e-mail and internet use without a warrant, greatly expanded the ability to conduct searches under a warrant without notifying the targets of the search and loosened the Constitution's fourth amendment "Probable Cause" restrictions. In many respects the USA Patriot Act seemed to have as its basic premise that the Bill of Rights was the true cause of the September 11 attacks instead of massive and well documented failures by such government agencies as the FBI and the INS. And some in the Bush administration even attempted to link the war on terrorism with the war on drugs through ads, aired during the 2002 Super Bowl, claiming that drug sales financed terrorism (although, as it later developed during 2002, a significant chunk of the funds for the September 11 attacks came from the Saudi royal family).

Most "anti-terrorism" proposals merely called for increased snooping on American citizens, even though no American citizens were among the September 11 plotters. One such effort was the Terrorism Information and Prevention System (TIPS). This would have enlisted mail carriers, utility meter readers, installation/service personnel, pizza delivery people and others with access to private residences (a group estimated to total over 11 million) to report any "suspicious" activity or people to the FBI and other branches of the Department of Justice. When TIPS was announced, the outcry from civil libertarians, much of the media and some members of Congress caused the plan to be quickly abandoned.

However, many TIPS critics were silent when a more ominous effort to fight terrorism," the Total Information Awareness Program (TIAP) was announced in November, 2002. Edward Aldridge, the Pentagon's Undersecretary of Acquisitions and Technology, described it as a "prototype database to seek patterns indicative of terrorist activity." And how would it be able to seek such patterns? By collecting data on credit card and bank transactions (including loans, checking accounts and ATM withdrawals) travel (air, rail, rental car and hotel records), traffic and driver's license records, insurance records, telephone records, medical records (including prescription drug purchases), passport and visa applications, tax records marriage and divorce records and what was described as "reports of suspicious activity given to law enforcement and intelligence agencies." In short, almost any transaction or activity for which some kind of record is produced, would eventually find its way into the TIAP database. All this data, some from private databases such as those used by telemarketers and credit reporting agencies, some from public records and some from government agencies, would then be analyzed to find those as yet undefined "patterns indicative of terrorist activity."

It's clear that many Americans could quickly find themselves flagged as potential terrorists under TIAP. One-way air travel booked on short notice is one factor supposedly indicative of terrorist activity. But any one who travels often on business must sometimes book a flight on short notice (such as a few hours) and without a return trip, since they do not know how long they will need to be at their destination. Under TIAP, such business travelers might wind up on a terrorist watch list. The same thing could happen to those who have rented apartments near suspected terrorists, taken certain classes (like Arabic or Middle Eastern Studies) at college or who make frequent cash withdrawals from an ATM. "What this (TIAP) is talking about is making us a nation of suspects," said Chuck Pena, a senior analyst at the Cato Institute.

Some people were unconcerned about TIAP, noting that much of the data would come from private records that are already available for rent by telemarketers, insurance companies and other businesses. However, no private database is remotely as comprehensive as the proposed TIAP database for each American. The TIAP database would have access to government records that are not available to businesses and, most importantly, private businesses using a database don't have the power to arrest and imprison people.

Inevitably, substantial errors would creep in the TIAP database for some individuals (just as they do in credit bureau records, for example) and some people will be unfairly targeted as terror suspects and conversely, legitimate terror suspects will go undetected because of erroneous information. The potential for misuse of TIAP by a future Richard Nixon, Lyndon Johnson or J. Edgar Hoover staggers the mind. For example, one can easily envision the TIAP database being used to dig up dirt (such as history of renting DVDs of Sharon Stone films?) on political opponents or overly inquisitive journalists.

Adding to the anxiety over TIAP and its potential for misuse, was that its development was headed by Admiral John Poindexter, the former national security advisor to President Reagan. Before TIAP, Poindexter was best known for his role in the Iran-Contra scandal; he was found guilty on five counts of conspiracy, obstruction of Congress and false statements in 1990. Those convictions were overturned on appeal in 1991 on the grounds that his testimony before Congress, which was given under immunity, may have influenced witnesses against him during his trial. During his testimony before Congress, Poindexter admitted not informing President Reagan of the arms sales to Iran to fund the Contras because he "wanted the President to have some deniability so that he would be protected." Poindexter also said he "could not recall" certain events in response to 184 questions during his testimony to Congress. It was later discovered that Poindexter and Oliver North had deleted over 5000 e-mails pertaining to Iran-Contra from White House servers. Unfortunately for them, those e-mails were saved on backup and they revealed Poindexter had been intimately involved in the scandal from the beginning.

As if having a convicted (if overturned) felon heading TIAP wasn't scary enough, the TIAP logo looked like something designed by Orwell -an eye perched atop a Masonic pyramid, scanning the world with the slogan "scientia est potentia" (knowledge is power).

Encouragingly, the criticisms of TIAP resulted in the program's development being suspended by the Pentagon in January of 2003. The Pentagon announced that research into less intrusive, more narrowly focused methods of compiling data on potential terrorists would continue but without Poindexter in a key capacity. But the temporary defeat of TIAP was soon offset by efforts spearheaded by Senator Orrin Hatch (R-Utah) to expand the USA Patriot Act. These efforts included making permanent several provisions set to expire in 2005 and enhancing permissible internet monitoring without a court order (such as keeping track of web sites a person visits).

Some people even felt the U.S. Iegal system and Constitutional safeguards were not up to the task of fighting terrorism and must be discarded. The December 1, 2002 Washington Post reported the Bush administration was developing a parallel (shadow?) legal system under which all terrorism suspects, including U.S. citizens, could be investigated, detained, questioned, tried and punished without the full rights-like being represented by an attorney-normally available to civilians accused of a crime under U.S. law. According to the Post, several elements of the parallel system are already in place, such as indefinite military detention for those designated as "enemy combatants" and the liberal use of "material witness" warrants to detain those who have not been charged with any crime.

Sources who spoke to the Post pointed to the case of Jose Padilla, an American citizen arrested on May 8, 2002 when he flew into Chicago from Pakistan. Padilla had been linked to Abu Zubaydah, an A1 Qaeda planner in Pakistan. Reportedly Padilla was returning to the United States to do reconnaissance and planning for a radioactive "dirty bomb" attack. Soon after his arrest, he was declared an enemy combatant by President Bush and transferred to the brig of a South Carolina naval base where he remains and could, in theory, be held until the President declares an end to the "war on terrorism." Padilla has been unable to communicate with anyone, including family or lawyers and Bush administration sources have indicated that if Padilla is ever brought to trial, it would be in a military tribunal instead of a civilian court.

TIAP and the Padilla case are just two examples of the message that has been conveyed in multiple ways to the American people since September 11, 2001:

If you want to be protected from terrorism, you're going to have to sacrifice your privacy and liberty and accept a more intrusive, powerful government role in your life.

That's why some people will see a book like this as either treason or lunacy. Instead of less government secrecy and emergency powers, those people will demand more. They will be willing to give the government whatever it wants to fight terror. But there is a problem with such reasoning. The government was already spending billions on secret projects and planning prior to September 11, 2001. The government had supposedly created a worldwide eavesdropping program operated by the NSA. The military was already training to fight terrorism in the United States and was helping to patrol the country's borders. Contingency plans had been made for all manner of conceivable terrorist threats and attacks.

And it all failed on September 11, 2001. It all failed completely, \ wretchedly and catastrophically, leaving almost 3000 dead.

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Before surrendering more freedom to the government and granting it more secret powers, maybe we should ask what we're getting in return.

Some secrecy is indeed necessary in any government, and especially w en fighting an elusive, faceless enemy like terrorism. But it must be remembered that American citizens exercising their constitutional rights did not carry out the September 11 attacks. Instead, the attacks were made possible by the failure of FBI managers to properly heed warnings they were getting from the field about suspicious flight school students from the Middle East. The attacks were also made possible by an INS that had lost track of foreign citizens that had overstayed or violated their visas. Before giving the government new powers, maybe we should first demand they more professionally enforce the laws already on the books and more intelligently use the powers they have already been granted.

Maybe the term "Shadow Government" was more appropriate than anyone realized. A shadow, after all, has no substance.

What we need instead is a "Sunshine Government" with open, honest debate on how best to respond to new threats such as terrorism. For example, the issue on how, or even whether, to use military forces in civilian law enforcement can be openly debated without endangering national security-and if the American people decide they want more military involvement in civilian law enforcement, such military involvement will be more widely accepted and considered legitimate if it's the result of Congressional action instead of secret planning. During the Cold War years, information was readily available to the public on what to do in the event of a nuclear attack or warning of such an attack. Similar information needs to be distributed to the public for new terrorist threats such as chemical or biological attacks-and if there is nothing the government could reasonably do in the event of such attacks on a metropolitan area, that should be made clear to the public as well. The definition of "national emergency" needs to be clarified (such as a situation involving the actual or imminent threat of widespread death and destruction) instead of being left up to the whims of the current occupant of the Oval Office. Instead of relying on presidential executive orders, emergency plans and procedures can, and should be, developed through the process provided in the Constitution for creating new laws. Classification of information needs to be reformed so that it is used to protect matters of genuine national importance instead of as a shield to hide missing funds and a failure to perform.

Inside the Shadow Government

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