The Toxic Legacy of 9/11…and How to End It
The day before, in the hours after the attacks, Senate Majority Leader Tom Daschle (D‑SD) had said, “And we will speak with one voice to condemn these attacks, to comfort the victims and their families, to commit our full support to the effort to bring those responsible to justice.”1 But even in the midst of the biggest attack on American soil since Pearl Harbor, Daschle had his limits.
As the bipartisan AUMF was about to go to the Senate floor for an expected unanimous vote, Daschle got frantic, last-minute messages from White House staff. The president, they claimed, wanted some additional language inserted into the resolution. As Daschle later explained,
“Literally minutes before the Senate cast its vote, the administration sought to add the words ‘in the United States and’ after ‘appropriate force.’ This last-minute change would have given the president broad authority to exercise expansive powers not just overseas — where we all understood he wanted authority to act — but right here in the United States, potentially against American citizens. I could see no justification for Congress to accede to this extraordinary request for additional authority. I refused.”2
Two days later, the Senate passed Daschle’s AUMF 98–0. But if the Senate Majority Leader thought he had stopped the Bush administration’s domestic surveillance overreach attempt, he was mistaken. White House officials simply ignored him.
The same day the Senate approved the AUMF, Bush and his advisors opted to take a covert approach to implementing a massive domestic warrantless surveillance scheme. At NSA, General Hayden “approved the targeting of terrorist-associated foreign telephone numbers on communication links between the United States and foreign countries where terrorists were known to be operating.3 Only specified, pre-approved numbers were allowed to be tasked for collection against U.S.-originating links.” Exactly how the numbers had been verified as belonging to known or alleged terrorists was not specified. And the direct, domestic targeting of a U.S.-based telephone number by NSA in the absence of a FISA court-approved warrant was a flagrant violation of the Foreign Intelligence Surveillance Act.
That program, subsequently dubbed STELLAR WIND, swept up the communications activity of millions of Americans, yet never stopped a single terror attack on the country. The same would be true of the PATRIOT Act’s Section 215 telephone metadata collection program and the FBI’s use of a September 2008 creation by then-Attorney General Michael Mukasey: “Assessments”—a type of investigation requiring no criminal predicate to initiate.
These and other surveillance tools, as well as federal court decisions sanctioning their use—despite the plain language of the Fourth Amendment—put America on the path to a form of bureaucracy-driven authoritarianism well before Donald Trump arrived on the political scene. What we should all be concerned about now is how those 9/11-inspired tools of surveillance and political repression might already be in use by a regime that has even less regard for the Constitution and the law than any of its predecessors.
A simple series of legislative fixes would solve these problems.
Congress could repeal the PATRIOT Act and the FISA Amendments Act and conduct actual sweeping reviews of all activities carried out under those authorities, ending all of them that violate the clear language of the Fourth Amendment and making all of its findings of abuse public.
Congress should also finish the work of the Church Committee by passing an actual legislative charter for the FBI and all other federal law enforcement agencies, explicitly banning them from engaging in any form of surveillance impinging constitutional rights, absent probable cause that one or more federal laws are being violated.
Lastly, it could provide citizens and civil society organizations with an explicit legal cause of action if an individual, group, or organization discovers that it has been unlawfully targeted with surveillance and related political repression.
Restoring the Bill of Rights to its proper shape and place in our civic life would be one way to honor those killed on 9/11 and in the wars that followed.
1 “A Day of Terror: Verbatim,” New York Times, September 12, 2001, online edition accessed October 3, 2016.
2 Tom Daschle, “Power We Did Not Grant,” Washington Post, December 23, 1905 (online edition, accessed October 3, 2016).
3 ST-09–002. Working Draft of NSA IG report on the President’s Surveillance Program, March 24, 2009, p. 3. Leaked by Edward Snowden to the Guardian and published on June 27, 2013. Accessed via the ACLU’s website at https://www.aclu.org/files/natsec/nsa/20130816/NSA%20IG%20Report.pdf on October 3, 2016.
Patrick G. Eddington is a senior fellow in homeland security and civil liberties at the Cato Institute. This article, originally posted to the CATO Institute website, is published courtesy of the Cato Institute.
