Chapter Four
A Consolidation of Power

In the immediate aftermath of the 2001 terrorist attacks, the U.S. government quickly moved to minimize the risk of further assaults and to search for ways to better equip the government to handle future threats. The U.S. Congress was particularly active. In a flurry of activity following September 11, Congress approved sweeping laws to reorganize the government to make it more responsive to the threats of terrorism and to significantly enhance law enforcement tools to make it easier for the government to find, track, and arrest would-be terrorists. Even with the broad changes, which brought about a major consolidation of power, the government faced an enormous task in attempting to safeguard a free and open society from terrorist attacks.

Homeland Security Department

One major way the government hoped to better position itself to analyze terrorist threats, act upon them, and provide a rapid response should another attack occur was through a massive government reorganization. In 2002, Congress created a new cabinet-level department, the Department of Homeland Security. The move represented a major overhaul of the government—the largest government restructuring since 1947, when President Harry S. Truman merged the War and Navy Departments into the Department of Defense.

The sheer size of the restructuring was staggering. To create the new department, twenty-two existing agencies and bureaus distributed throughout the federal government were consolidated, bringing together roughly 170,000 employees. Among other things, the Homeland Security Department absorbed the Coast Guard, the Border Patrol, the Customs Service, the Secret Service, the Transportation Security Administration, and the troubled Immigration and Naturalization Service (INS). The idea behind the consolidation was that such centralization would improve the government's ability to coordinate antiterrorism efforts. Proponents also believed the restructuring would enhance the government's ability to gather and synthesize information about terrorists and their plots, while enhancing border security.

The Homeland Security Department has four primary divisions. One is responsible for strengthening and administering border and transportation security. The second is designed to ensure emergency preparedness and to oversee

a response to future terrorist attacks. Another is charged with developing and implementing means of protecting the public from biological, chemical, radiological, or nuclear attacks. The final division was established to create a clearinghouse for terrorism intelligence.

Coordinating Information

Officials especially hoped that the restructuring would prompt improvements in border security, particularly in the way the INS was run. The service's credibility, and that of the entire federal government, was called into question on March 11, 2002, when the INS sent a letter to a Florida flight school announcing that the INS had approved visas so that two foreigners, Mohammed Atta and Marwa Al-Shehhi, were cleared to receive flight training. The two men, of course, were among the nineteen September 11 hijackers and had been dead for six months. The INS not only had let the foreign-born terrorists and their accomplices into the country, it had been unable to keep track of them.

Lawmakers crafting legislation for the Homeland Security Department attributed part of the problems at the INS to a contradictory mission. The INS had been responsible for providing immigrant services, such as granting the documents that allow immigrants to live, study, and work in the United States. At the same time, the INS was also charged with enforcing a wide variety of immigration laws, including the daunting task of inspecting every person who enters the country, conducting criminal investigations of immigrants, and patrolling the borders for illegal immigrants. As just one measure of the enormity of the immigration service's task, fewer than five thousand INS agents in 2001 had to conduct more than 510 million inspections of people arriving in the United States at more than three hundred ports of entry. Moreover, the INS had less than two thousand investigators in 2001 to find up to 8 million illegal residents in the United States.

To fix these problems, Congress added the INS to the new Homeland Security Department and separated the immigration services from the law enforcement functions of the service within the new department. Moreover, Congress approved funding for the INS to hire thousands of new Border Patrol agents and inspectors. Although critics worried that immigration services might suffer by moving the INS to the new department, advocates believed that folding the INS into the Department of Homeland Security would greatly enhance the agency's effectiveness and provide the government with an enhanced ability to track foreign visitors.

In creating the new department, lawmakers also hoped to significantly improve the government's ability to synthesize and analyze intelligence information. As officials sorted through the intelligence they had prior to September 11, many realized that the government had a significant amount of information that, if acted upon, might have prevented the terrorist attacks. The problem was not so much a lack of information as it was a lack of awareness of the significant intelligence government officials already possessed. Summing up the situation, one FBI agent said, "We didn't know what we knew."²³ Consequently, one of the divisions in the new department is responsible for culling reports from all U.S. intelligence sources. Analysts within the division assess the risks posed by any threats and issue warnings to law enforcement agencies and the public.

To keep the public informed of the likelihood of a terrorist attack at any given time, the department also developed a color-coded system based on the division's analysis of intelligence information. Under the system, a low level of threat is represented by the color green, and blue means the nation is on guarded alert. Yellow indicates an elevated threat and is issued when the government believes there is a significant chance of a terrorist attack. Orange signals a high threat level, and red points to what the government considers a severe risk of terrorist attack.

Although designed to keep the public informed about potential terrorism risks, the color-coded system has been criticized by those who believe it is meaningless to most Americans. For example, knowledge that there is a high probability of a terrorist attack is of little use to the average American, who more likely wants to know whether it is safe to go to a neighborhood shopping mall, sports venue, or to cross a bridge. By early 2003, the government had not been able to refine its warning system to pinpoint particular places that were considered likely to be attacked, and many Americans had begun to discount the government's threat assessments.

Improved Readiness Debated

When it comes to the question of how well the massive government reorganization will work and how effective it will be in combating terrorism, analysts are divided. All agree that if the department performs as intended, the government's antiterrorism efforts will be significantly streamlined. Consequently, the United States will be able to respond more quickly and effectively to perceived threats. For example, many analysts believe that by creating a centralized clearinghouse for intelligence information the government's ability to monitor and evaluate potential threats will be greatly enhanced. Skeptics, however, question whether the reorganization will actually improve domestic security. They point out that merely putting a host of disparate agencies under one roof will not necessarily enhance the government's ability to fight terrorism. Moreover, they worry that instead the move will only bog down antiterrorism efforts in bureaucracy.

One key concern among experts is that the massive reorganization, with its primary focus on domestic security, may inadvertently reduce the government's ability to carry out other important missions. As just one example, the U.S. Coast Guard has traditionally focused its efforts on conducting search-and-rescue operations at sea. With the guard's new emphasis on counterterrorism efforts, critics worry that search-and-rescue exercises could suffer—with disastrous results for distressed boaters.

Despite such concerns, government officials hailed creation of the new department as a significant step in bolstering the nation's readiness for, and defense against, future terrorist attacks. However, the department's own officials cautioned that being prepared for possible terrorist attacks is not solely a job for government agencies and emergency officials. Rather, it is a job for all Americans. The department urged Americans to be vigilant, keeping watch for signs of suspicious activity that might be related to a terrorist attack. The department also urged Americans to make sure they are adequately prepared and to formulate clear-cut plans in the event an attack is made. In an online article, the Department of Homeland Security stated:

Improving our national preparedness is not just a job for the professionals—law enforcement, firefighters and others. All Americans should begin a process of learning about potential threats so we are better prepared to react during an attack.

While there is no way to predict what will happen, or what your personal circumstances will be, there are simple things you can do now to prepare yourself and your loved ones.²⁴

The Patriot Act

In addition to reorganizing the government to better position it to respond to the threat of terrorism and enlisting ordinary Americans in the fight, Congress also sought to bolster the government's ability to locate and stop potential terrorists before they struck. Following the attacks, many government officials complained that agencies responsible for promoting security were not able to adequately foresee potential threats because the nation's laws did not authorize the necessary law enforcement tools.

In the climate of fear and apprehension that followed September 11, therefore, the government sought, and Congress approved, a host of new powers for law enforcement officials. On October 26, 2001, roughly six weeks after the terrorist attacks, lawmakers approved, with little debate, one of the first major pieces of antiterrorism legislation—the USA Patriot Act. In passing the measure, members of Congress attempted to respond to the Justice Department's request for expanded intelligence-gathering powers, based on the theory that the department might have been able to unravel the September 11 plot before it had occurred, if only it had broader powers to collect information. Among other things, the department requested and received increased authority to conduct physical searches, obtain wiretaps, and engage in electronic surveillance.

Some of the changes brought about by the Patriot Act were natural extensions of powers federal agencies already had to monitor terrorism suspects. These additions were considered necessary in order to eliminate gaps in the government's ability to track terrorists as they moved around the world. For example, the Patriot Act extended the government's ability to obtain so-called roving surveillance of a person's phone activities, that is, a surveillance not tied to a single phone. Previously, the government could conduct roving surveillance only in domestic law enforcement activities. The Patriot Act gave the government the same power in foreign intelligence operations. Likewise, the law enhanced the government's authority to obtain subpoenas and search warrants to cull information from cable companies, which increasingly provided the same sorts of services as telephone and Internet service providers.

Other aspects of the Patriot Act were designed to give the government improved abilities to monitor and track suspected terrorists, who increasingly made use of computers and the Internet to communicate their plans. The new law authorized monitoring of both the source and destination of e-mail and Internet activity, a significant expansion of power that government officials said would greatly enhance efforts to track terrorists. Previous law had only allowed law enforcement officials to install what are called pen registers, which record telephone numbers dialed from a suspect's phone, and trap-and-trace devices, which record numbers from which incoming phone calls originate. The Patriot Act goes significantly further, however, by allowing use of such devices to record a suspect's Internet activities.

Such tools could prove invaluable to the government. For example, if a suspect wrote or received regular e-mail messages from other known terrorists, officials could gain important insights into terrorist organizations and methods. Moreover, if a suspect regularly visited anti-American extremist websites or sites devoted to helping people build weapons, law enforcement officials would have further grounds for continued and heightened surveillance.

The Patriot Act also included provisions which effectively legitimized a powerful FBI software program that enables agents to read e-mail transmissions. Originally called Carnivore and now known by the less descriptive name, DCS 1000, the software program is a powerful tool that could theoretically allow authorities to uncover terrorist plans. Capturing the content of e-mail messages is considered a search subject to the Constitution's Fourth Amendment, meaning the government must first obtain a warrant before reading a suspect's e-mail. However, the Patriot Act effectively sanctioned use of the program as a pen register and trap-and-trace device. This means, that under the new law, whenever the government uses its own software for such purposes, it must merely keep and provide a record of the information collected.

The Patriot Act also greatly increases the ways in which the government can collect information. The Fourth Amendment to the U.S. Constitution has required law enforcement agents to provide immediate notification when a search is being conducted. The new law, however, has broadened the circumstances under which secret searches can be conducted. This tool could help investigators gather evidence in terrorism cases as part of larger investigations

into terrorist activities. Among other things, the new law allows the government to conduct surveillance or clandestine physical searches of foreign agents, including U.S. citizens, for up to ninety days, even if the government does not have probable cause to believe a crime is being committed.

Government advocates of the expanded powers provided by the Patriot Act argue that the new law enforcement tools are necessary to allow the government to prevent another wave of terrorist attacks. Because the risks of inaction are so high and carry with them the potential for widespread death and destruction, extraordinary measures are not only appropriate, they claim, but necessary.

Civil Rights Concerns

Critics of these new powers and systems warn that what terrorists might be unable to dismantle, efforts to eradicate terrorists will. In other words, while the expanded powers could have obvious benefits for investigators seeking out terrorism leads, the new authority also holds the potential to significantly erode privacy and civil rights, cherished as one of America's greatest liberties. As critic Stephen J. Schulhofer, a New York University law professor noted, "Records pertaining to any American citizen are now available for FBI inspection on a clandestine basis whenever the agent states that the records 'are sought for an authorized investigation …to protect against international terrorism,' whether or not there is a basis for considering the targeted person a suspect or a foreign agent."²⁵

Many critics of the Patriot Act believed the broad powers to conduct clandestine searches were dangerous and unnecessary. They said the government already had broad enough power to conduct secret searches in international terrorism cases under the Foreign Intelligence Surveillance Act. More troubling, they argued, was the fact that new powers for secret searches contained in the Patriot Act were not limited to terrorism cases but could be used in any criminal investigation. Moreover, because it is often difficult for the government to identify foreign agents, U.S. citizens and foreign nationals could be subject to broad surveillance and secret searches on nothing more than the government's suspicion.

Also troubling to civil libertarians is the Patriot Act's expansion of the government's ability to obtain documents and records that under prior law would have been considered private. The new law, for example, allows the government to obtain the financial records of bank customers merely by stating that the request is part of a counterterrorism effort. The law similarly allows the government to obtain telephone records and student records. Moreover, while the government had previous authority to obtain records from travel-related businesses such as airlines and car rental companies, the government under the Patriot Act now has authorization to examine the records of any business, ranging from credit card companies to bookstores. It remains to be seen, however, whether the new powers will help or hinder the government's counterterrorism efforts.

An All-Seeing System

Even as many Americans questioned the wisdom of providing the government with so many new tools that held the potential to seriously erode civil liberties, various government agencies were attempting to develop antiterrorism systems that by their nature held the potential to completely undermine the privacy of ordinary Americans. One of the most controversial efforts to uncover terrorist attacks before they occur was launched by the Defense Department's Advanced Research Projects Agency, which established what it called the Total Information Awareness project. The goal of the program was to develop a powerful information-gathering system that could help the government identify terrorists while they were still in the planning stages of their attacks.

The program's objective, as stated on the Total Information Awareness Office website, "is to revolutionize

the ability of the United States to detect, classify and identify foreign terrorists—and decipher their plans—and thereby enable the U.S. to take timely action to successfully preempt and defeat terrorist acts."²⁶ The Total Information Office even had its own logo, which featured an eye atop a pyramid (similar to that found on the backs of one-dollar bills) overlooking a representation of the world. The logo included the Latin phrase, Scientia est Potentia, which means "knowledge is power."

Planners envisioned a system capable of mining a variety of databases, ranging from credit card records to airline ticket purchases, then analyzing the captured information for patterns of suspicious activity. In addition, program proponents hoped to connect domestic databases with those in other countries. In announcing the ambitious project in 2002, Defense Undersecretary Pete Aldridge said, "We are in a war on terrorism, we are trying to prevent terrorist acts against our country. We are trying to give our people who understand and try to track down the terrorists …a sufficient set of tools."²⁷

Although many policy makers saw the proposed system's enormous potential to increase the government's ability to track and apprehend terrorists before they strike, critics complained that the program would seriously undermine civil liberties and privacy for American citizens. William Safire, a conservative columnist for the New York Times, noted that the program held the potential to track every American's every move. He wrote:

Every purchase you make with a credit card, every magazine subscription you buy and medical prescription you fill, every Web site you visit and e-mail you send or receive, every academic grade you receive, every bank deposit you make, every trip you book and every event you attend—all these transactions and communications will go into what the Defense Department describes as "a virtual, centralized grand database".²⁸

Because of the potential of such a system to snoop on ordinary Americans and to pry into intimate details of their lives, in 2002, Congress approved legislation prohibiting the use of the Total Information Awareness system against U.S. citizens. Nevertheless, many Americans saw in the Total Information Awareness project and in the Patriot Act the potential for serious abuses of civil rights and privacy. For them, the government's efforts to protect them from terrorism were a more significant threat than that posed by the terrorists themselves. While most citizens believed the government acted out of a genuine desire to thwart trouble, many were left to wonder whether antiterrorism efforts themselves would more effectively destroy terrorists or their cherished American ideals.