Terrorist attacks make headlines — the bloodier, the bigger. But assaults on civil liberties are usually stealth strikes — often with even greater, more enduring impact. March was an ominous month for American civil liberties and for those concerned with preserving privacy and other individual rights.
Although President Obama vowed on his first day in office "to usher in a new era of open government" and make his administration the most "transparent" in history, his administration has largely continued his predecessor's whittling away of individual rights in the name of national security. While we should all support sensible measures to combat terrorism and prevent another 9/11, such steps must be balanced against the need to preserve our freedoms. The 9/11 commission concluded that greater openness in government would strengthen both national security and liberty. But government secrecy has grown dramatically on Obama's watch, and the rights of citizens have continued to shrink. (Beware the Ides of March, indeed.)
Last month's issue of Wired magazine contained a troubling story that has received all too little attention. According to James Bamford, a controversial reporter whose most insightful work has focused on the National Security Agency, our nation's vast electronic and signals spy agency, the agency is building a top-secret, $2 billion data collection and storage center five times the size of the U.S. Capitol in the Utah desert. The heavily fortified center is scheduled to be operational by September 2013.
As of then, your private emails, cellphone records, Google searches, parking receipts, travel itineraries, bookstore purchases and other digital "pocket litter" will be flowing through the agency's giant servers and routers and stored in near-bottomless databases. Congressional oversight of this ambitious new project, codenamed "Stellar Wind," has been extremely limited. Only the chairmen of the House and Senate intelligence committees have been briefed in detail on the project's capabilities and constitutional safeguards. Claiming that its new "Utah Data Center" has been mischaracterized by the media, the agency has issued vague denials of any wrongdoing.
Nor is this behemoth of a center the only focus of privacy concerns. In mid-March (those Ides again), Attorney General Eric Holder signed new guidelines for the National Counterterrorism Center that will lengthen from six months to a staggering five years the amount of time that the center can keep private information on Americans who are not suspected of engaging in terrorism or material support for violence.
Charles Savage of the New York Times reported that the change would enable the center to make more copies of vast databases and "data mine" them using complex algorithms to search for patterns that suggest a threat. The administration has said it needs to engage in such data mining because of lapses it identified in its review of its failure to "connect the dots" about Umar Farouk Abdulmutallab, the infamous "underwear bomber" who tried to blow up a Detroit-bound jet in December 2009.
But data-mining won't solve a far simpler problem: the government's failure to share with law enforcement the fact that Abdulmutallab's father visited a U.S. embassy in Africa to warn that his son was associating with unsavory folks and might be plotting anti-American terrorism. As far as we know, not a single official has lost his job over the government's self-professed failure to "connect the dots." But that hasn't stopped Holder from proposing to collect far more information about American citizens for a far longer time.
When former President George W. Bush's counter-terrorism minions proposed a similar program, known as "Total Information Awareness," civil libertarians raised such a ruckus that the administration was forced to cancel it. But the media have been singularly uninterested in Holder's guidelines.
Finally, Elizabeth Goitein, a co-director of the Brennan Center for Justice, reiterated last month her warning that the administration has so far declined to take serious steps to reduce the egregious overclassification of information (i.e., declaring too much information off-limits to public consumption). This echoes a 2011 report she co-wrote with David M. Shapiro, in which the authors argue that overclassification not only "jeopardizes national security" but "corrodes democratic government." "When a member of the public asks an agency to review particular records for declassification," they wrote, "92 percent of the time the agency determines that at least some of the requested records need not remain classified." And there are no incentives to refrain from or challenge improper classification.
Put the pieces together — the National Security Agency's new enhanced capacity to store information, the Holder guidelines enabling the government to store such information for a longer time and the government's insistence on keeping secret much of what it's doing in the name of keeping us safe — and a potentially dangerous picture emerges. Add to that the president's New Year's gift to the nation — the National Defense Authorization Act, which empowers the government to detain indefinitely, without trial, any American citizen who supports al Qaeda, the Taliban or "associated forces" — and George Orwell's "1984" no longer reads like fiction.
Obama says he won't authorize such detentions. But it is his choice, thanks to the law he signed on Dec. 31. He also says that he won't authorize willy-nilly the killing of American citizens who embrace terror without judicial review. Anwar al-Awlaki, a U.S. citizen and the head of al Qaeda in the Arabian Peninsula, probably deserved to be targeted and killed by a drone last year. But will the next American whom Obama decides to kill? And how will we know? The guidelines for the assassination program remain secret.