PrintNovember 9, 2010
The 'Wall' Continues to Hamstring Anti-Terror Activities
The 9/11 attacks occurred in part because the intelligence on terrorist dangers was suppressed as a result of a policy known as "the wall." This policy prevented the intelligence and prosecution sides from sharing information. On April 13, 2004, Attorney General Ashcroft told the 9/11 Commission that the "wall" between law enforcement and intelligence was responsible for many of the failures.
FISA (Foreign Intelligence Surveillance Act) was brought into existence during the Carter administration in response to the intelligence scandals of the mid-1970s because of the assumption that the intelligence agencies acted improperly. A set of rules was written for intelligence-gathering in the states to make sure wiretaps and surveillance were carried out in accordance with the law. The rules that apply to law enforcement wiretaps were not appropriate for intelligence wiretaps, which require more flexibility.
The idea behind FISA was that the contact between prosecutors and intelligence wiretaps should be kept to a minimum to prevent American liberties from being eroded. The "wall" would keep the prosecution side and the intelligence side separate. All that could be given to the prosecutors was a tip to start an investigation, but not the details of the intelligence. Prior to 9/11, there were warning signs which Stewart Baker, former assistant secretary for homeland security, called a "failure of imagination. Frances Townsend [who spearheaded the FISA Intelligence investigations] tried to break down the wall. She tried to make a lot of changes for the good. She was more open-minded and aggressive." Unfortunately, she was dismissed because of her efforts.
After 9/11, "the wall" was formally eradicated by Congress and the Court of Appeals. However, there are still barriers today, walls that are less pronounced. Baker, who recently wrote the book Skating on Stilts, notes that
even after the 9/11 attack people are suspicious of limits to their civil liberties, are pushing back the pendulum in the other direction, and still have the assumption that the threats have been overstated by government agencies that want to yield more power.
One example is the ACLU lawsuit asking a federal judge to halt an alleged Obama administration plan to kill an American citizen cleric. The cleric is living in Yemen and encourages radicalized Americans to initiate terrorist attacks. The suit alleges that the targeted-killing program violates Anwar al-Awlaki's Fourth Amendment right to be free from unreasonable seizure and his Fifth Amendment right not to be deprived of life without due process. There are those who once again want to implement a wall that would place civil liberties ahead of national security and Americans safety.
Will cyber warfare be the next area of attack? A wall is being built by the privacy groups and the cyber industry because they do not want any form of regulation. Jim Roth, the former New York Chief Division Council of the FBI who was heavily involved in FISA, wants a balance between national security concerns and the internet. He strongly believes that "the side of national security must win during any emergency since our First Amendment rights are not absolute. You can't yell fire in a movie theatre."
America's cyber infrastructure is not well-protected, and it is possible that an attack would bring this nation to its knees. Baker says the cyber-industrial complex does not want to be regulated, so they play off the civil liberties side, claiming that any regulation, even for security measures, would be a civil liberties disaster. Townsend suggests that this cyber wall can be easily demolished if the government changes its perspective. According to Townsend, the government must initiate a private-public partnership since so much of the "intellectual capital with cyber resides in the private sector. The government should change its thinking process and involve the private sector in the policy generated process not after."
Another wall has been created by the European Union. They refuse to share any passenger name recognition data because of their perceived threat to civil liberties. The Europeans are attempting to limit the kind of information that is passed on to the U.S. and will allow only Homeland Security to use it. They do not want it passed on to other agencies, such as the FBI. Baker emphasized that the data is needed to improve passenger screening. For example, if a European flies to Pakistan and back to Europe and then some time later flies to the U.S., the first leg of the trip is not passed on; thus, the Europeans are preventing the U.S. from connecting the dots. According to Baker, "The EU will forbid airlines from giving the information to the third country (the US) if the third country doesn't dance to their tune: the European supervision on privacy issues." To break down this wall, Baker proposes that the U.S. might consider talking directly with individual countries and bypassing the EU. He also believes that the U.S. might want to limit the "sharing of terrorism data with countries that restrict our ability to collect such data. It makes no sense that the Europeans are trying to limit the kind of information needed to make sure people don't get on planes and blow themselves up over the US."
All interviewed agree that there must be an honest dialogue sooner rather than later. Michael Hayden, the former CIA Director, feels that the balance between the concerns of the civil libertarians and national security "should lead to an honest conversation of what do we want to do and what don't we want to do. Some of the decisions of what not to do will increase the risk."
