Seven of the members of the 9/11 Commission are arguing that the nation is still vulnerable a decade after the attacks.
“We are safer but we are not as secure yet as we can or should be,” Chairman Thomas Kean told the Bipartisan Policy Center (BPC) in Washington, D.C.
The commission’s original report contained 41 recommendations to improve US security. Due to insufficient progress, however, the committee issued a new report Wednesday detailing nine commission recommendations that remain unfulfilled and are causing a gap in the country’s security.
Perhaps that failure is because of the inordinate amount of time, energy and resources the government has put into an unprecedented domestic surveillance program.
Thanks to new laws and technologies, authorities track and eavesdrop on Americans as they never could before, hauling in billions of bank records, travel receipts and other information. In several cases, they have wiretapped conversations between lawyers and defendants, challenging the legal principle that attorney-client communication is inviolate.
Advocates say the expanded surveillance has helped eliminate vulnerabilities identified after the Sept. 11 attacks. Some critics, unconvinced, say the snooping undermines privacy and civil liberties and leads inevitably to abuse. They argue that the new systems have weakened security by burying investigators in irrelevant information.[...]
In May, two members of the Senate Intelligence Committee said that Americans would be disturbed if they knew about some of the government's data-gathering procedures. But Sens. Ron Wyden (D-Ore.) and Mark Udall (D-Colo.) said they were prohibited from revealing the facts.
"When the American people find out how their government has secretly interpreted" surveillance law, "they will be stunned and they will be angry," Wyden said.[...]
Exactly what records are kept and how they are used is not well understood even by lawmakers who oversee the intelligence agencies, said Rep. Rush D. Holt (D-N.J.), who chaired the now-expired Select Intelligence Oversight Panel.
"The NSA finds it pretty easy to snow members of Congress by confusing them," Holt said in an interview.
Officials from the FBI and NSA say they follow strict rules to avoid abuses. But in 2007, the Justice Department's inspector general found that the FBI had engaged in "serious misuse" of its authority to issue National Security Letters, claiming urgency in cases where when none existed.
Such letters, a kind of administrative subpoena, are key to the increased surveillance.
Courts have ruled that the government doesn't need a search warrant, which requires a judge's approval, to obtain records held by "third parties," such as hotels, banks, phone companies or Internet providers.
So the government has used National Security Letters to get the data, issuing 192,500 of the letters between 2003 and 2006, according to an audit by the Justice Department inspector general. The numbers have dropped sharply since then, but the FBI issued 24,287 National Security Letters last year for data on 14,212 Americans. That's up from a few thousand letters a year before 2001.
"It used to be the case that if the government wanted to find out what you read and what you wrote, it would have to get a warrant and search your home," said Daniel J. Solove, a law professor at George Washington University and the author of numerous books and articles on privacy law.
Now, "it just obtains your Amazon purchase records, your Facebook posts, your Internet browsing history—without you even knowing."
Coincidentally, a procedural hearing in the 9th Circuit Court of Appeals in Seattle was heard Wednesday on two long-running cases involving the NSA's warrantless wiretapping program, begun under the Bush administration. The first case is Hepting v. AT&T:
The lawsuit claims that AT&T violated the privacy rights of its customers by allowing the NSA to occupy one of the company's switching stations in San Francisco and monitor its customers' e-mails and phone calls without a warrant.
The second case is Jewel v. NSA, brought by Electronic Frontier Foundation.
The Electronic Frontier Foundation will ask the appeals court to reverse a decision dismissing the Jewel case. A lower court argued that since millions of Americans were spied on by the government, no single citizen had standing to sue the government. The court's reasoning in its ruling may be weak, since the government in its filings with the appeals court spends more verbiage reheating the national security chestnut than trying to defend the lower court's logic.
The court will decide, again, whether these cases can go forward. As EFF's legal director, Cindy Cohn writes, the "outcome of both Jewel v. NSA and Hepting v. AT&T will be crucial not only to those who wish to stop the spying and regain the privacy of our communications, but to upholding the Constitutional limitations on the Executive Branch’s power. "