Post-9/11: All Eyes on You

by , September 06, 2011

In the latest installment of a year-long advertising campaign on the Washington metro, subway riders are treated to a series of smart, mod photographs of leather-clad VPPs (very pretty people) who we assume are spies, operatives, or fugitives á la Jason Bourne.

There’s a Carrie Moss with long hair, posing as though caught mid-mission, stilettos over socks, with some ambiguous surveillance equipment. Here’s a combat-boot-wearing genius looking as if he’s parachuted in to snatch your photograph. B-Team Pierce Brosnan and Patrick Macnee aren’t far behind.

International Spy Museum

What does it mean? Well, they’ll tell you: “Nothing is what it seems.”

International Spy Museum

Except this is exactly what it seems: a cannily designed, self-consciously manipulative pitch for the International Spy Museum. If the billboards aren’t enough, there are lengthy, hard-to-ignore banners declaring in proto-X-File font: “new intel acquired,” “you’ve been spotted,” and “your cover’s blown,” as if your very decision to travel on Washington’s underground public transportation puts you at risk of being exposed to some diabolical but darkly glamorous (government?) syndicate.

International Spy Museum

These and other signs “hiding” the truth tell metro riders to text for answers, and surely there are plenty of sheeple who do, only to find a coupon for museum admission at the other end. This installment is another in the “nothing is what it seems” or “hidden messages” series, in which the marquee interactive ad displays a man’s face in a revolving number of “identities,” subtly feeding right into the “trust no one” ethos of post-9/11 urban life.

Only in Washington does such cynicism become part of our daily landscape. It not only trivializes the new surveillance state and our resignation to it, but also sexes it up and celebrates it. And outfits like the Spy Museum, which was opened less than a year after 9/11, simply monetize the experience. Museum curators may say it’s all about our long infatuation with spies and espionage, gadgetry, history, and how government spooks tail and foil the bad guys — and why not, 90 percent of its board members are former government officials — but the billboards say it all, tapping into the modern metropolitan paranoia, succumbing to the growing unease, however unconscious, that at any time, anywhere, any one of us could attract the state’s all-seeing eye (not at all unlike J.R.R. Tolkien’s Sauron!).

Since the towers fell and the western side of the Pentagon crumbled and burned, that eye has taken many forms: drones, cameras, online snoops, global positioning satellites, and data miners. Heck, according to The Washington Post last year, the National Security Agency (NSA), the super-secret agency behind all the data collection and warrantless wiretapping scandals, “ingests” some 1.7 billion pieces of intercepted communications every 24 hours, including emails, text messages, IP addresses, and phone records.

International Spy Museum

Across the country, cities are beginning to use unmanned aerial vehicles, or spy drones, to patrol the skies over neighborhoods. And the U.S. Supreme Court is poised to address whether police can stick a GPS tracking device on a suspect’s car without his knowledge — or a warrant — a method law enforcement has taken to quite enthusiastically in recent times. This 20-year-old found one on his car last year, presumably placed there by the FBI, and he wasn’t even a suspect — at least in any case he knows about.

Talk about paranoia.

Meanwhile, the D.C. Metro, like any public transportation hub, has its own share of security mechanisms, some quite obvious, others not so much.

I couldn’t ignore the surrealism of it all, walking through the Metro Center station Thursday on my way to a symposium titled “9/11 at 10” sponsored by the American Constitution Society. With The PATRIOT Act on the brain, I was gaping at the Spy Museum’s latest exposition, when I practically walked over a new 9/11 memorial embedded in the tile, easy to ignore. Meanwhile, the recorded voice of Janet Napolitano, homeland security secretary, is booming from an intercom, “If you see anything suspicious….”

I look around and I see the same people from 10 years ago hustling to work as if on autopilot. I wonder how many are disgusted with this mummery. Do any of these tourists rushing off to the Spy Museum care that the CIA today is more about dropping bombs on people from undisclosed closet spaces than gumshoeing it with fancy gadgets and multiple identities?

I take mental note of all the polls that have shown Americans willing, time and again, to trade away their liberties — like privacy and constitutional protections against illegal search and seizure, not to mention free speech — in favor of “national security,” and decide I am likely in lonely company.

“Secret” Laws Meet Little Resistance Post-9/11

The reason there has been so little uproar over the awesome expansion of surveillance activities in the U.S. since 9/11 is that by its very nature it’s going on in secret. We don’t know how much we are being snooped and scooped, and we certainly have no idea how much information about us — including our Internet, phone, buying, and banking habits — is being passed around myriad agencies at every level of government.

Ever heard of a fusion center? Do you care? Most Americans have had every opportunity to learn about data- mining and how the so-called bureaucratic walls or stovepipes between agencies have been torn down to expedite counter-terror and emergency management in the wake of 9/11. But until it affects individuals directly, until the FBI is at the door, it’s snooze city.

This is partly why the PATRIOT Act has been so successful on Capitol Hill, despite the fact that federal courts across the country have in the last decade ruled several of its measures unconstitutional. There’s significant evidence that the expanded surveillance powers invested in the PATRIOT Act have been abused by the federal government at the expense of innocent Americans (read Notes in the Margin), but the most controversial applications have been reauthorized several times by Congress since the act was first passed by bipartisan majorities in October 2001.

“We have substantial evidence that [the PATRIOT Act] is being abused. The government has secret interpretations of the law that gives them the ability to collect far more than you are aware of. It’s dangerous not only for privacy and liberty but for our national security, because there is no public accountability,” charged American Civil Liberties Union lawyer (and former FBI agent) Michael German, at the 9/11 at 10 event.

“Completely innocent people can have their information gathered and maintained by the federal government,” not to mention passed along to their state and local police departments. “We have evidence that people are being investigated for the political activities….

“After 10 years, we don’t know what the authorities are, much less whether they are even working.”

The problem remains, he said, that all of this is occurring behind the curtain, or in secret, so Americans tend to shrug off what amounts to a gradual yet significant degradation of their “natural rights” as codified in the U.S. Constitution. “If people could see everything,” how they were being listened to at political events, or how their travel information is collected and stored, for example, there might be more blowback, German added.

Panel moderator Jeffrey Rosen, a law professor at George Washington University and a regular contributor to The New Republic, pointed out that the Transportation Security Administration (TSA) recently announced it would be changing tactics at its airport security checkpoints as a result of last year’s uproar over the intrusiveness of the full-body scanners. The Department of Homeland Security, created after 9/11, said it would be installing new software that renders the generic outline of a human body as opposed to virtually naked pictures of individual travelers as they go through the scanners to get to their gates.

Rosen, who has called the full-body scanners unconstitutional, insists that the TSA had the ability to make this new software, which he calls “blob” technology, an alternative to “the naked” technology, all along. It just took a lot of negative publicity and near revolt for them to pursue it.

It causes us to ask, he said to the Washington audience on Thursday, “Were there ‘blob-like’ alternatives for the surveillance laws adopted after 9/11?”

Most likely we will never know because, as German points out, there hasn’t been enough popular dissent or public pressure to push the issue.

Peace activists, particularly those whose homes were raided in Chicago a year ago, and Muslim Americans, whose mosques have been infiltrated by informants and undercover agents, most recently in New York City, know only too well how the PATRIOT Act is being used to end-run their constitutional rights. And do you think the FBI isn’t watching what you are doing online? One 24-year-old Pakistani, a legal U.S. resident living in Virginia, was just arrested by the FBI and charged with “providing material support to terrorism,” for producing and uploading a video to YouTube.

But as far as ordinary Americans are concerned, those groups and individuals are on the margins, and the FBI’s activities, as questionable as some of them may sound, do not concern most citizens. A large cross-section of Americans travel on planes, but most of us don’t hold beliefs or attend a place of worship that the government might consider a “hot” target for surveillance, at least not yet.

And we certainly wouldn’t know if or when our phone records were being searched, our bank transactions were being taken note of, or our online identities were being mixed up with those who might be FBI targets. We can’t imagine that one day our cellphones or those OnStar devices on our vehicles could work against us — so why spend a lot of time obsessing about it? If you are doing nothing wrong, the saying goes, why worry?

Just that attitude has led to the guaranteed success of the most controversial powers of the PATRIOT Act: roving wiretaps, the so-called lone wolf provision, “sneak and peek” or “black bag” searches in which police can enter and search your home without your knowledge, and national security letters, with which FBI agents can grab your personal records without a warrant and force you to tell no one. With each re-authorization, there has been some kabuki theater in the form of debate in Congress — with some genuine pushback from lawmakers such as former Sen. Russ Feingold, D-Wisc., and Rep. Ron Paul, R-Texas — but they’re eventually approved every time.

The best was when then-Illinois state senator Barack Obama said in 2003 that the PATRIOT Act was “shoddy and dangerous,” and pledged to scale it back but then voted for its re-authorization in the U.S. Senate in 2006 — this vote made 14 out of the 16 measures permanent — because he said there were enough “modest” improvements to support it.

The truth is, while Congress has made a tediously elaborate show of oversight (emphasis on show), the federal law enforcement and surveillance state has taken advantage of the provisions’ legal elasticity, as well as constantly evolving technology like cellphones, iPads, GPS, and cloud computing, to expand and hone its ability to watch and track Americans, according to Gregory Nojeim, senior counsel for the Center on Democracy and Technology, who also sat on Thursday’s panel.

“Law enforcement has more tools now to conduct surveillance,” he noted. The post-9/11 environment was a “perfect storm” of lower standards for law enforcement to initiate investigations against citizens, lower judicial standards, the ability for police to “keep secrets” — in other words, conduct investigations in some cases without judicial oversight — and new technology, all leading to “the diminishment of [constitutional] tenets of freedom,” Nojeim added.

But without a full-scale audit of how these expanded powers under the PATRIOT Act are being used and whether they are effective in making us safer, most Americans will continue to act against their own interests, said the ACLU’s Michael German.

Such people are lulled by Madison Avenue and Hollywood confections that make government surveillance sexy and smart and the eventual dissolution of privacy an acceptable tradeoff for upgrading “connectivity” and “safety.”

This is one “perfect storm” that has kept the PATRIOT Act and all of its manifestations growing, including the federal intelligence budget, which was $75 billion in 2009, according to The Washington Post, more than double its size before 9/11. The NSA, which has in turn doubled its own budget, is hidden away in the D.C. suburbs in 6.3 million square feet of office space housing some 30,000 employees, “many of them reading, listening to, and analyzing an endless flood of intercepted conversations 24 hours a day, seven days a week.”

“New intel acquired”? You betcha.

NOTES IN THE MARGIN

The government’s abuses of the PATRIOT Act are certainly no secret. Here are just a few of the most salient reported violations and abuses, which no doubt most Americans have already forgotten:

  • According to USA Today in 2006, the NSA was building a massive database with billions of phone records handed over by several major telecommunications companies, including AT&T, Verizon, and BellSouth, with the goal of analyzing “call patterns” to supposedly recognize terrorist activity in the U.S. “It’s the largest database ever assembled in the world,” said one source, who said the agency’s goal was “to create a database of every call ever made” within the nation’s borders. Meanwhile, despite Congress granting retroactive immunity to the telecom companies for cooperating in what amounts to dragnet surveillance, a federal judge is now listening to appeals in two major civil lawsuits accusing the compliant telecoms and the government of violating individuals’ constitutional rights.
  • In 2007, The New York Times reported that both the Pentagon and the CIA were using their own version of “non-compulsory” national security letters to legally gather information on people living in the U.S., despite the fact that they are both — presumably — barred from engaging in domestic surveillance. According to the report, “banks, credit card companies, and other financial institutions receiving the letters usually have turned over documents voluntarily, allowing investigators to examine the financial assets and transactions of American military personnel and civilians, officials say.”
  • Also in 2007, a Department of Justice inspector general’s report found pervasive errors in the FBI’s use of warrantless national security letters. Violations included agents’ lack of documentation justifying the NSLs. In others, more personal information was turned over to the government than the NSL covered. The IG also found that the FBI was passing along the material gleaned from the letters — including individuals’ phone, bank, and credit records — to other agencies and even to foreign governments.
  • In 2010, FBI lawyers acknowledged that the agency illegally collected some 2,000 phone records by invoking terrorism “emergencies” that really did not exist or merely persuading phone companies to voluntarily hand over the records.
  • Practically from the beginning, the federal government has used the enhanced powers under the PATRIOT Act to pursue ordinary criminal prosecutions against Americans. “It’s actually a bigger problem than we thought it was,” the ACLU tells Antiwar.com. As far back as 2003, the evidence began emerging. According to a New York Times report then, the Bush administration was “using its expanded authority under the far-reaching law to investigate suspected drug traffickers, white-collar criminals, blackmailers, child pornographers, money launderers, spies, and even corrupt foreign leaders.” Don Dodson, a spokesman for the National Association of Criminal Defense Attorneys, told the Times: “Within six months of passing the PATRIOT Act, the Justice Department was conducting seminars on how to stretch the new wiretapping provisions to extend them beyond terror cases.… They say they want the PATRIOT Act to fight terrorism, then, within six months, they are teaching their people how to use it on ordinary citizens.”

Read more by Kelley B. Vlahos