Surveillance Pre and Post 9/11

My last contribution to this weeks discussion of surveillance pre and post 9/11.

Fishing Expedition
The administration has cast too wide — and too haphazard — a net in trying to nab terrorists.
By Alex Gourevitch
Web Exclusive: 06.26.03

The last few months have not been kind to those charged with carrying out the Bush administration’s war on terrorism. Bush’s basic approach to the issue has come into question, and a fear once expressed only by hard-core libertarians — that since September 11, the administration has arrogated to itself too much power to restrict Americans’ freedom — appears increasingly to be justified.

In Texas, the national media was recently treated to the spectacle of government trying to use anti-terrorism powers for purposes that were purely political in nature, as Republicans tried to enlist the Department of Homeland Security to track down Democratic state legislators who were boycotting a vote on redistricting. Worse than that, however, the Justice Department has been using a number of the new privileges it acquired under the Patriot Act in normal criminal cases. “Information obtained from computer-service providers was used in investigations unrelated to foreign terrorism,” noted a June 15 piece in The Washington Times. The article also mentioned that Justice has used its new prerogatives to acquire voicemails in non-terrorist cases. And Attorney General John Ashcroft has tried to justify anti-terrorism measures that have yielded few substantive, terrorism-related results — such as the special registration programs for foreign nationals — by saying that they help to catch common criminals.

It’s of course debatable as to whether the administration should have been given such broad anti-terrorism powers in the first place. But legislators who approved them did so with the understanding that they would be used to stop terrorism — not to interfere in state-level politics or to catch common criminals. With the measures having produced few obvious benefits in the fight against terrorism, the administration seems now to be hunting for ways to justify them ex post facto.

In recent months, many of the administration’s anti-terrorism techniques have been shown to be highly inaccurate. The Total Information Awareness (TIA) program, recently renamed the Terrorist Information Awareness (still TIA) program, is the most glaring case in point. On this issue, The New Yorker’s Ben McGrath deserves special mention for his satirical discussion of the most absurd aspects of the program — specifically TIA’s attempt to identify terrorists by their “gait signatures.” By their own admission, the developers of this technology still need to improve their accuracy.

Chuck Peña, the CATO Institute’s defense policy expert, has done the nitty-gritty math on TIA as a whole and found the following: First, he (generously and unreasonably) assumed that TIA is 99.9 percent accurate at identifying a suspect as a terrorist and equally precise at identifying a suspect as an innocent bystander. Then he applied this figure to all 240 million adults in the United States. Peña calculated that the probability of actually finding a terrorist given these numbers would be only 2 percent; meanwhile, 239,995 people would be wrongly apprehended. He then narrowed his search parameters to the U.S. Muslim population and made a more reasonable, though still high, assumption of 95 percent accuracy. Under these conditions, 299,750 innocent people would be misidentified as terrorists, while the probability of finding a real terrorist would be 1.5 percent. Peña also narrowed the search further, pretending that he was looking for 19 hijackers among only male Muslims in the United States. Assuming TIA to be 99.9 percent accurate at identifying these hijackers, he found that the government would nab 3,600 innocents along with the 19 actual terrorists. And the probability of actually finding one of those terrorists? One-half of one percent.

“People might quibble with my numbers or statistical model,” Peña told me. But “even if I’m off a little bit, the point is you have to be whole orders of magnitude better to make this thing work.” Though the administration has promoted TIA on the basis that it would catch some terrorists, Peña notes that officials have persistently avoided saying how many innocent people would get rounded up as well. “If they had to sell it on the numbers, it wouldn’t sell,” Peña said.

TIA may provide the most flagrant example of where Bush’s war on terrorism doesn’t make sense — but there are others. Take the fact that the government conducted 11,000 “voluntary” interviews with Iraqis during the Iraq war but did not find a single terrorist. A June 7 New York Times article notes that the special registration program has led to more than 82,000 interviews at immigration offices, tens of thousands of additional screenings at airports and border crossings, more than 13,000 people deported or facing deportation, and a couple thousand detained. Yet it has only yielded 11 individuals suspected of links to terrorism. Assuming (conservatively) that 100,000 different people registered or were screened and that the 11 suspects are indeed linked to terrorism (a liberal assumption given the administration’s ever-expanding definition of what it means to be linked to terrorism), that’s a .01 percent success rate.

The problems don’t end there. According to The Washington Post, the FBI has issued scores of “national security letters” that force businesses to turn over electronic records about telephone calls, e-mails and finances. It was also recently revealed that the Justice Department has used 113 emergency search or electronic-surveillance authorizations since 9-11, compared with fewer than 50 in the previous 23 years combined. Justice has also waited to notify individuals that they were the target of a search 248 times. And Justice refuses to reveal whether any of these particular measures actually caught or stopped terrorists.

These are not just the aimless blunderings of a well-intentioned but imperfect administration. They are the crude tools of a political beast that has shown itself to be both untrustworthy and confused. The administration’s confusion is manifest in its inability to clearly articulate just whom exactly the war on terrorism is against. We hear about vague categories such as “persons of interest,” “material support” and “sleeper cells” that seem to have sprung as much from Ashcroft’s imagination as from any concrete intelligence. Radically different groups and individuals have been clumsily shoveled together under the rubric of “terrorist.” In a recent speech to the ACLU, FBI director Robert Mueller lumped together al-Qaeda, Hezbollah and Timothy McVeigh. The State Department’s list includes 36 disparate groups, from Tamil and Basque separatists to the Kurdistan Worker’s Party. It’s hard to believe their similarities are really more important than their differences. After all, few of the groups have a beef with the United States directly. But the administration has forced these various organizations together, making the threat seem more coherent, aligned and organized than it really is.

This blurry view of the enemy has led to plenty of missteps. For instance, it has been widely reported that the Justice Department deprived John Walker Lindh of access to a lawyer, placed him in extreme conditions to extract a confession and expunged e-mails from one of its own advisors warning that the department was being excessive.

And government officials have wildly exaggerated statistics. A recent Philadelphia Inquirer article found that in the first two months of this year, cases against 56 different people were labeled “terrorist” in nature — even though at least 41 of them had nothing to do with terrorism. The same paper found that 60 of 62 terrorism-related convictions in New Jersey last year were nothing more than students cheating on Test of English as a Foreign Language (TOEFL) exams. Earlier Inquirer investigations helped prompt a General Accounting Office review that found about 75 percent of Justice’s “foreign terrorism” convictions in 2002 to have nothing to do with foreign terrorism. (For a fuller review of the administration’s fuzzy math on terrorism, see my recent article in The Washington Monthly.)

Ashcroft has also said that sleeper cells were broken up in Lackawanna and Detroit, but this too has turned out to be an exaggeration at best. The Lackawanna residents pled guilty to supporting terrorism mainly because they were afraid of taking the risk of defending themselves in court. But as a Mother Jones article revealed, the government investigation found “no violent act or plot in the usual understanding of those words. No cache of arms has been found, no plans for future malevolence.” The Detroit case fell apart recently when it turned out that the government’s star witness lied in an effort to win a plea bargain. Two of the four suspects were cleared of all associations with terrorism; the other two maintain they were convicted on questionable grounds. And just yesterday, The Washington Post reported on another bogus terrorism accusation, in which the secret evidence used to jail a New Jersey man for six months turned out to be just plain wrong.

The Justice Department has had a generally bad habit of accepting tips at face value and ruining people’s lives in the process. A June 19 New York Times article documented a number of cases in which false accusations motivated by personal interests have led to unnecessary arrests. According to the Times:

Federal agents, facing intense pressure to avoid another terrorist attack, have acted on information from tipsters with questionable backgrounds and motives, touching off needless scares and upending the lives of innocent suspects.
On top of which has come a recent report by the Justice Department’s Inspector General showing that the department abused its powers when rounding up immigrants. The report contradicted Ashcroft’s oft-repeated assertions that foreigners have been afforded their full slate of rights. It found that some of Justice’s actions — detention without bond and holding suspects without charge — were on the margins of legality. Others — denying access to lawyers and physical assault — run counter to the few rights immigrants have. And the report did not even investigate all of the relevant cases, examining only 119 out of 762.

Perhaps the worst thing about the administration’s preventive approach to terrorism is that it has encouraged law enforcement based on suspicion rather than reason. The most damning part of the Inspector General’s report was when it noted — refering to PENTTBOM, the FBI’s terrorism investigation — that Justice “made little attempt to distinguish between aliens who were subjects of the PENTTBOM investigation and those encountered coincidentally to a PENTTBOM lead.” Likewise, The New York Times has quoted FBI spokesman Bill Carter as saying that “at one time, when information came to us, a lot of times based on experience the investigator would say, ‘Nah, this is not something we will follow through on.'” But now “the director has stated that no counterterrorism lead will go uncovered.” In other words, reasoned judgment is no longer a legitimate tool of law enforcement, especially where organized paranoia will suffice.

Alex Gourevitch is a Prospect writing fellow.

Copyright © 2005 by The American Prospect, Inc. Preferred Citation: Alex Gourevitch, “Fishing Expedition”, The American Prospect Online, Jun 26, 2003. T