Post-9/11 privacy and secrecy: A report card

news analysis Since Sept. 11, the federal government has been trying to learn more about us, while keeping us from knowing what it's doing. Is this wise?

Declan McCullagh
Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
6 min read

news analysis In January, the U.S. government convened a public meeting at the Marriott Hotel in Dulles, Va. The purpose was to ask area residents, business owners and pilots what they thought about airspace security restrictions near the nation's capital.

The extensive and complicated restrictions--imposed after the Sept. 11, 2001, terrorist attacks, supposedly as a temporary measure--drew an overwhelmingly negative response. Lt. Cmdr. Tom Bush, for instance, a U.S. Navy F-18 Hornet pilot who also flies a small general aviation plane, dubbed them simply irrational.

Soon afterward, the Defense Department's North American Aerospace Defense Command abruptly demanded that the meeting's transcript be yanked from a government Web site--a move that some attendees attributed to the harsh public criticism. After CNET News.com reported on the deletion in March, the transcript was restored.

That incident highlights what has become an unmistakable trend in the five years since the attacks on the World Trade Center and the Pentagon: The federal government is concealing more information about its own activities, while engaging in more surveillance of Americans' private lives.

"Controls on information are growing significantly, and official efforts to exploit personal data are also on the rise," said Steven Aftergood, director of the Project on Government Secrecy at the Federation of American Scientists, or FAS.

The change has been dramatic. In the 1997 fiscal year, the federal government spent $3.4 billion on securing classified information, a figure that rose to $7.7 billion for 2005. Similarly, the government declassified 204 million pages of documents in 1997 but a mere 29.6 million in 2005. (Those numbers come from calculations by OpenTheGovernment.org, an umbrella group that includes FAS, the Reporters Committee for Freedom of the Press, the Electronic Frontier Foundation, and the Society of Professional Journalists.)

At the same time, surveillance of Americans by the federal government has steadily increased. President Bush has acknowledged bypassing the checks and balances of the courts when enlisting the National Security Agency in an extensive surveillance program. Congress is discussing whether to rewrite that law.

A lawsuit pending in San Francisco has yielded allegations of far more extensive NSA surveillance. Former AT&T employee Mark Klein released documents alleging the company spliced its fiber optic cables and ran a duplicate set for the NSA to Room 641A at its 611 Folsom St. building in San Francisco. Redacted documents show that AT&T has tried to offer benign reasons for the existence of such a room. (AT&T refuses to comment.)

Listening in

The Bush administration has been especially secretive about the extent of the NSA program and how it works. But even the far smaller number of known wiretaps performed under court order has grown since 2001, government statistics show. Not only has eavesdropping on criminal activities increased, but Internet and telephone wiretaps performed under the Foreign Intelligence Surveillance Act have roughly doubled from 2001 to 2005.

That has happened as executive branch agencies have become far more resistant to Freedom of Information Act requests. "The very fabric of our democracy is undergoing a kind of a mutation, in which access to information is no longer a given," said FAS's Aftergood. "It's something that you increasingly have to struggle for or make a conscious effort to obtain."

In addition, new justifications for not releasing unclassified government documents to the public are proliferating. In the last few years, especially, terms like "For Official Use Only," "Controlled But Unclassified," "DEA Sensitive," "Confidential Business Information" have appeared on more and more documents--even though, in almost all cases, there's no legal justification for them.

"Such unchecked secrecy threatens accountability in governments and promotes conflicts of interest by allowing those with an interest in disclosure or concealment to decide between openness or secrecy," a recent report by OpenTheGovernment.org states.

In addition, some expansions of government secrecy--perhaps including NORAD's deletion of the transcript--appear to be driven by fear of public criticism. In 2003, the U.S. Army surreptitiously pulled the plug on one of its more popular Web sites after a report embarrassing to the military appeared on it. In another example, the names of the members of the Defense Science Board--an obscure but influential advisory body that influences military policy and had a budget of $3.6 million a year--have vanished from the group's public Web site.

That also happened in 2002 when the Defense Department tried to quell public concern about the now-defunct Total Information Awareness project by deleting files from the Web.

First, biographical information about TIA project leaders, including retired Adm. John Poindexter, disappeared. Then the TIA site shrank even more, with the slogan and logo for the TIA project--a Masonic pyramid that eyeballs the globe--vanishing, a highly unusual move for any government agency. Finally, a few weeks later, a diagram that explained the TIA project was erased.

For their part, the Bush administration and its allies argue that critics are blind to the fact that the United States is embroiled in a war on terror that could last for many more years.

Critics of such programs "seem surprised that we wouldn't tell the targets, that we would keep surveillance secret," said Todd Gaziano, director of the Center for Legal and Judicial Studies at the Heritage Foundation, a conservative Washington, D.C., think tank, referring to the NSA program. "It would be kind of laughable in any other era, and I don't know why it's not laughable now."

Gaziano, who likened the Sept. 11 attacks to those on Pearl Harbor, said he found it "absurd" that anyone would argue surveillance and secrecy have been hallmarks of the Bush administration. Anyone who's read up on American history should know that Woodrow Wilson and Franklin Delano Roosevelt conducted far more sweeping interceptions during World Wars I and II, he said.

This has been one of the most law-abiding wars, overseen by lawyers at every step.
--Heather Mac Donald
senior fellow,
Manhattan Institute
for Policy Research

"My theory is that we are not doing enough surveillance," Gaziano said.

"If Osama bin Laden calls up the next Mohammad Atta and says, 'Start Operation Anthrax.' And then Mohammad Atta starts calling around to a company inquiring about helicopter rides or about machinery that's useful in milling anthrax, it doesn't matter whether the caller on the other side is a legitimate, innocent American," he added. "We ought to know every plan."

Heather Mac Donald, a senior fellow at the conservative-oriented Manhattan Institute for Policy Research, said she's unconvinced that any "significant incursions" on civil liberties have occurred since Sept. 11. "This has been one of the most law-abiding wars, overseen by lawyers at every step," she said.

The Patriot Act's expansion of government powers, for instance, is "shot through with checks and balances," she said. "There's hardly a power in it that doesn't require some sort of judicial oversight. The government simply doesn't have the resources available to be engaged in completely groundless fishing expeditions or spying for the sake of spying."

And allegations of heightened government secrecy are just "preposterous," she added. Take, for instance, a Patriot Act provision that allows delayed search warrants, permitting police to secretly enter a home and notify the targeted person after the fact. "People thought that was improper, that there should be full sunshine disclosure of terrorism investigations," Mac Donald said. "Well, that's absolutely absurd."

Mac Donald acknowledged that she hadn't been persuaded by the Bush administration's assertions that it had the power to ignore the Foreign Intelligence Surveillance Act when authorizing the NSA to engage in widespread surveillance of communications involving suspected terrorists. But that's no reason to shut down the program, she said. The administration could have resolved those concerns by simply asking for changes to FISA, whose requirements of probable cause don't make sense "when you're initially looking at computers working with large amounts of data."

"I think the NSA program is a good program and an essential program," she added. "I don't think it has been used abusively to violate anybody's privacy."

The level of surveillance conducted by the United States also pales in comparison with other countries, particularly in Europe, said Gary Schmitt, a resident scholar at the conservative-leaning American Enterprise Institute.

"Even though we're far less intrusive than many people would suspect, the intrusive capabilities we have are probably about right given the threat that we face," Schmitt said. "I think we've probably got pretty much the right balance."