O BIG BROTHER,WHERE ART THOU?

A special report on Homeland Security and a return to the dark ages of political surveillance, citizen harassment and government secrecy

It Was a Bad Idea Then

Total Information Awareness! Omniscience is a grand concept, one might almost say godlike. As soon as I read the Defense Advanced Research Projects Agency (DARPA) proposal and looked at the agency’s colorful diagram with all those arrows going into the Automated Virtual Data Repositories and those other arrows coming out of the Repositories and into the Collaborative Multi-Agency Analytic Environment and the Collaborative Multi-Agency Policy and Ops Environment with the little Plausible Futures box, and then the final arrow heading to the Decisions hexagon—well, I wanted one.

Unfortunately, as I read further, it became clear that DARPA wasn’t seeking the kinds of information I’m after. What they want is to know everything private and personal about everybody. On a small scale, this is called being nosy. On the scale proposed by the Bush administration, it’s called being totalitarian.

The last time the government made a serious attempt to pry into the political beliefs of the citizenry, to ferret out un-American attitudes and to punish wrong thoughts, was during the 1950s. The Federal Bureau of Investigation properly arrested people—some of them Communists—for crimes they had committed. But the House Committee on Un-American Activities and the Senate Subcommittee on Investigations vilified citizens for their political beliefs.

The House Committee on Un-American Activities didn’t garner much attention until it began to investigate Communist Party influence in the movie industry. The Committee held sensational Congressional hearings whose purpose was not to prove anyone’s guilt—these were not trials, after all—but to get the witnesses to confess to having been Communists or to having been duped by Communists, to compel them to recant and to name others who also had held dangerous social or political beliefs. If a witness didn’t cooperate with the committee, he or she could be jailed for contempt of Congress.

The man who embodied the mini-terror of the ’50s was Republican Sen. Joseph R. McCarthy, our own little Robespierre. Early in 1950 he claimed that he had a list of 203 Communist U.S. State Department employees. His 203 was nowhere near the 2,000 that the House Committee on Un-American Activities had earlier said were in government, but now that we were in a Cold War with Communist Russia, his baseless charge received attention. He had no real evidence to support his list, but that didn’t matter.

The committees cast a shadow over life. We grew sly. We learned to begin political discussions by making only the most innocuous conservative observations. If the person we were talking to agreed, and tentatively offered a somewhat more liberal nuance, then we ventured a still more liberal interpretation—accompanied by the disclaimer that we really didn’t know much about politics and might be wrong. And so it went.

In 1951, while on a student ship to Europe, I bumped into a college classmate who was going to a couple of conferences, one sponsored by the World Student Organization and another by the American Association for the United Nations. Three years later I was visited by two FBI agents who questioned me about my friend’s attendance at “those peace conferences.” (Anything having to do with peace or international affairs was suspect.) As I later learned, my friend was yanked from his position decoding top-secret dispatches and quizzed about the political affiliations of his Greek-immigrant father. My classmate finished out his naval service, but was never returned to decoding and has never been officially told that he was cleared; his brother was questioned and fired from NSA with no explanation. The scientific advisor to Supreme Headquarters Allied Expeditionary Force (SHAEF) put it succinctly when he advised my wife, “Don’t join anything. Don’t even join the Girl Scouts.”

We learned not to sign anything, not to join organizations, not to take part in “Communist-inspired” actions such as civil rights protests. In my 20s I had nothing to lose and so participated in picketing to integrate movie houses in Baltimore. I think the people we worked with were from the Congress of Racial Equality, but I didn’t ask, and to this day I don’t know. We didn’t make much headway that year; indeed, we had to be protected from the mob shouting “Go back to Russia” by blacks who formed a hollow square around us.

On July 29, 1951, The New York Times quoted President Harry Truman as saying, “This malicious propaganda has gone so far that on the Fourth of July, over in Madison, Wisconsin, people were afraid to say they believed in the Declaration of Independence. A hundred and twelve people were asked to sign a petition that contained nothing except quotations from the Declaration of Independence and the Bill of Rights. One hundred and eleven of these people refused to sign that paper—many of them because they were afraid that it was some kind of subversive document and that they would lose their jobs or be called Communists.”

That was July 1951. The ’50s were just beginning.

—Gene Mirabelli

Somebody’s Watching You

Are you or have you ever been a member of a terrorist organization? Don’t laugh—the electronic inquisition is gearing up, and no one will be above suspicion unless it is stopped.

Title II of the Homeland Security Act (HSA) creates a Directorate for Information Analysis and Infrastructure Protection charged with establishing and maintaining a huge database of public and private information on individuals in the United States. Intelligence information would be added to this vast repository, and data mining, or knowledge discovery software, would attempt to identify and track suspect individuals by combing the database for patterns and associations matching terrorist profiles. Leads would then be forwarded to the FBI.

But if retired Adm. John Poindexter, the former Reagan-era National Security Adviser and convicted Iran-Contra felon, has his way with Uncle Sam, he will build a system that apparently will go far beyond what the HSA calls for, with the result that you and virtually every other American will wind up under surveillance by the federal government. The Pentagon’s Defense Advanced Research Projects Agency (DARPA) is ready to award contracts for a new antiterrorism computer system, called Total Information Awareness (TIA), which will collect data about you from multiple sources. The as-yet- undeveloped system would be able to conduct searches without a warrant of your entire paper and e-trails: your e-mail and other ISP records, Internet cookie-generated logs of where you go on the Web, your magazine subscriptions, your credit card purchases, and your medical, financial, communications, employment, travel and prescription records, to name a few items. Biometric technology such as face and/or gait recognition coupled with footage from surveillance cameras would be included. Because the goal of the project is currently beyond the reach of computer science, the Pentagon has a budget of $240 million for the fiscal years 2002-2003 to hire companies that would participate in an initial five-year research project to work up the system. Critics, including lawmakers of both parties, civil libertarians, editorial pages of major newspapers, and even prominent conservatives, question the proposed system’s constitutionality and call it Big Brother in the making.

Poindexter, who conceived and has headed the TIA effort since January, was Col. Oliver North’s boss during the Iran-Contra scandal in which North dreamed up the clever but blatantly illegal scheme of covertly selling missiles to Iran as ransom for the American Embassy hostages and using the money to fund the anti-Sandanista guerrillas in Nicaragua. A federal court convicted Poindexter on five felony counts for his role in the affair (he famously declared it was his duty to withhold information from Congress at the time), but because he had testified on the matter under a grant of Congressional immunity, the convictions were later overturned.

Poindexter even then was interested in large-scale computer systems. According to the Web page of the Electronic Privacy Information Center (www.epic.org), he attempted to consolidate control within the National Security Agency, first over all government computer systems containing “sensitive but unclassified” information, and later over all computer and communications security for both the U.S. government and the private sector. His drive was stopped in 1987 when Congress passed the Computer Security Act, reestablishing authority for computer security at the National Institute for Standards Technology. But he’s back, and few outside of the Bush administration seem happy about it. Since John Markoff of The New York Times broke the TIA story on Nov. 9, concern and questions over the system have mounted, even among the lawmakers who introduced the Homeland Security Act. In fact, some in Congress are saying the bill does not authorize the TIA system at all. Sen. Joseph Leiberman (D-Conn.), one of the principal authors of the bill, placed an explanatory paragraph into the Congressional Record when the bill passed forbidding the new Department of Homeland Security from using or replicating TIA. The clause says, “Nothing in this legislation should be construed as requiring or encouraging HSARPA (Homeland Security Advanced Research Projects Agency) to adopt or replicate any specific programs within DARPA, such as the Total Information Awareness Program, or as conferring HSARPA with any additional authority to overcome privacy laws when developing technologies for information-collection.”

According to Communications Daily, outgoing House Majority Leader Dick Armey (R-Texas), a staunch conservative, maintains that the Homeland Security Act “. . . does not authorize, fund or move into the department anything like [Total Information Awareness].” Armey went on to say that the use of data mining technology in the bill is “. . . intended solely to authorize the use of advanced techniques to sift through existing intelligence data, not to open a new method of intruding lawful, everyday transactions of American citizens.” It would therefore appear that Poindexter is back to his old modus operandi of attempting to concentrate undue power in the executive branch, Congress be damned. Sen. Diane Feinstein (D-Calif.) is planning to sponsor a bill preventing the TIA project from violating the privacy rights of Americans. “This is a panoply, which isn’t carefully conscribed and controlled, for a George Orwell America,’’ Feinstein told the San Jose Mercury News. “And I don’t think the American people are ready for that by a long shot.”

TIA also raises significant Fourth Amendment issues of illegal searches, as the government has never before claimed such powers that the system would arm it with. Under the Freedom of Information Act, E.P.I.C. filed a lawsuit on Nov. 20 seeking to know “what modifications TIA might make to any existing legal, statutory and regulatory frameworks concerning governmental access to and use of transactional and other records about individuals.” The watchdog group is also after records regarding “the potential privacy and civil-liberties implications of the activities proposed for the TIA project.”

There are other potential problems as well. Poindexter’s database would almost certainly become a hacker’s Holy Grail. Pentagon computer systems have been breached before, and the mayhem that could ensue from so much information falling into the wrong hands is unthinkable. Also, TIA might wrongfully finger people with no terrorist affiliations whatsoever and damage their reputations and careers.

Opposition to TIA has even united at least one right-wing group with liberal organizations like E.P.I.C. and the American Civil Liberties Union (www.aclu.org). In a Nov. 24 article in the e-newsletter of the Cato Institute (an influential conservative think tank), Clyde Wayne Crews Jr. writes, “The Fourth Amendment to the Constitution, which safeguards us against unreasonable searches, forbids a total surveillance society if that’s where this project’s directors intend to go.” Crews goes on to ironically note that “The TIA’s logo features an edited version of the Great Seal of the United States: The 13-block pyramid (think 13 original colonies) topped by the Eye of God. . . . The TIA’s version perverts the proud seal that originally symbolized our freedom. The ‘eye’ is no longer God’s, but the federal government’s, surveying the entire globe in a single glance.”

—Glenn Weiser

Fear of Flying Lefties

Barbara Olshansky was in Newark International Airport last March when an airline agent at the counter checking her boarding pass called airport security. Olshansky was subjected to a close search and then, though she was in view of other travelers, was ordered to pull her pants down. The Sept. 11 terrorist attacks may have created a new era in airport security, but even so, she was embarrassed and annoyed.

Perhaps one such incident might’ve been forgotten, but Olshansky, the assistant legal director for the left-leaning Center for Constitutional Rights, was pulled out of line for special attention the next time she flew. And the next time. And the next time. On one flight this past September from Newark to Washington, six members of the center’s staff, including Olshansky, were stopped and subjected to intense scrutiny, even though they had purchased their tickets independently and had not checked in as a group. On that occasion, Olshansky got angry and demanded to know why she had been singled out.

“The computer spit you out,” she recalls the agent saying. “I don’t know why, and I don’t have time to talk to you about it.” Olshansky and her colleagues are, apparently, not alone. For months, rumors and anecdotes have circulated among left-wing and other activist groups about people who have been barred from flying or delayed at security gates because they are “on a list.”

But now, a spokesman for the new Transportation Security Administration has acknowledged for the first time that the government has a list of about 1,000 people who are deemed “threats to aviation” and not allowed on airplanes under any circumstances. And in an interview with Salon, the official suggested that Olshansky and other political activists may be on a separate list that subjects them to strict scrutiny but allows them to fly.

“We have a list of about 1,000 people,” said David Steigman, spokesman for the TSA, the agency created a year ago by Congress to handle transportation safety during the war on terror. “This list is composed of names that are provided to us by various government organizations like the FBI, CIA and INS. . . . We don’t ask how they decide who to list. Each agency decides on its own who is a ‘threat to aviation.’ ” The agency has no guidelines to determine who gets on the list, Steigman says, and no procedures for getting off the list if someone is wrongfully on it.

Meanwhile, airport security personnel, citing lists that are provided by the agency and that appear to be on airline ticketing and check-in computers, seem to be netting mostly priests, elderly nuns, Green Party campaign operatives, left-wing journalists, right-wing activists and people affiliated with Arab or Arab-American groups. Virgine Lawinger, a nun in Milwaukee and an activist with Peace Action, was stopped from boarding a flight last spring to Washington, where she and 20 young students were planning to lobby the Wisconsin congressional delegation against U.S. military aid to the Colombian government. “We were all prevented from boarding, and some of us were taken to another room and questioned by airport security personnel and local sherifff’s deputies,” says Lawinger.

In that incident, an airline employee with Midwest Air, and a local sheriff’s deputy who had been called in during the incident to help airport security personnel detain and question the group, told some of them that their names were “on a list,” and that they were being kept off their plane on instructions from the Transportation Security Administration in Washington. Lawinger has filed a freedom-of-information request with the TSA, seeking to learn if she is on a “threat to aviation” list.

Last month, Rebecca Gordon and Jan Adams, two journalists with a San Francisco-based antiwar magazine called War Times, were stopped at the check-in counter of ATA Airlines, where an airline clerk told them that her computer showed they were on “the FBI No Fly list.” The airline called the FBI, and local police held them for a while before telling them there had been a mistake and that they were free to go. The two made their plane, but not before the counter attendant placed a large S for “search” on their baggage, assuring that they got more close scrutiny at the boarding gate.

Art dealer Doug Stuber, who ran Ralph Nader’s Green Party presidential campaign in North Carolina in 2000, was barred last month from getting on a flight to Hamburg, Germany, where he was going on business, after he got engaged in a loud, though friendly, discussion with two other passengers in a security line. During the course of the debate, he shouted that “George Bush is as dumb as a rock,” an unfortunate comment that provoked the Raleigh-Durham Airport security staff to call the local Secret Service bureau, which sent out two agents to interrogate Stuber.

“They took me into a room and questioned me all about my politics,” Stuber recalls. “They were very up on Green Party politics, too.” They fingerprinted him and took a digital eye scan. Particularly ominous, he says, was a loose-leaf binder held by the Secret Service agents. “It was open, and while they were questioning me, I discreetly looked at it,” he says. “It had a long list of organizations, and I was able to recognize the Green Party, Greenpeace, EarthFirst and Amnesty International.” Stuber was eventually released, but after trying for two days at various airports, Stuber found he was barred from boarding any flight, and missed his business trip.

A Secret Service agent at the agency’s Washington headquarters confirmed that his agency had been called in to question Stuber. “We’re not normally a part of the airport security operation,” agent Mark Connelly told Salon. “That’s the FBI’s job. But when one of our protection subjects gets threatened, we check it out.” Asked about the list of organizations observed by Stuber, the Secret Service source speculated that those organizations might be on a list of organizations that the service, which is assigned the task of protecting the president, might need to monitor as part of its security responsibility.

While evidence suggests that Olshansky, Stuber and other left-leaning activists are seen as threats to aviation, other groups appear to have been singled out as well. A top official for the Eagle Forum, an old-line conservative group led by anti-feminist icon Phyllis Schlafly, said several of the group’s members have been delayed at security checkpoints for so long that they missed their flights. According to Pax Christi, a Catholic peace organization, an American member of the Falun Gong Chinese religious group was barred from getting back on a plane that had stopped in Iceland, reportedly based on information supplied to Icelandic customs by U.S. authorities. The person reportedly was permitted to fly onward on a later flight.

Hussein Ibish, communications director of the American Arab Anti-Discrimination Committee, says his group has documented more than 80 cases—involving 200 people—in which fliers with Arabic names have been delayed at the airport or barred altogether from flying. Some, he says, appear to involve people who have no political involvement at all, and he speculated that they suffered the misfortune of having the same name as someone “on the list” for legitimate security reasons.

Until Steigman’s confirmation of the no-fly list, the government had never admitted its existence. While FBI spokesman Paul Bresson confirmed existence of the list, officials at the CIA and U.S. Immigration and Naturalization Service declined to comment and referred inquiries back to the TSA. Details of how it was assembled and how it is being used by the government, airports and airlines are largely kept secret.

A security officer at United Airlines, speaking on condition of anonymity, confirmed that the airlines receive no-fly lists from the Transportation Security Administration but declined further comment, saying it was a security matter. A USAir spokeswoman, however, declined to comment, saying that the airline’s security relationship with the federal transit agency was a security matter and that discussing it could “jeopardize passenger safety.”

Steigman declined to say who was on the no-fly list, but he conceded that people like Lawinger, Stuber, Gordon, Adams and Olshansky were not “threats to aviation,” because they were being allowed to fly after being interrogated and searched. But then, in a Byzantine twist, he raised the possibility that the security agency might have more than one list. “I checked with our security people,” he said, “and they said there is no [second] list,” he said. “Of course, that could mean one of two things: Either there is no second list, or there is a list and they’re not going to talk about it for security reasons.”

In fact, most of those who have been stopped from boarding flights (like Lawinger, Stuber, Gordon and Adams) were able to fly later. Obviously, if the TSA thought someone was a genuine “threat to aviation”—like those on the 1,000-name no-fly list—they would simply be barred from flying. So does the agency have more than one list—one for people who are totally barred from flying and another for people who are simply harassed and delayed?

Asked why the TSA would bar a 74-year-old nun from flying, Steigman said: “I don’t know. You could get on the list if you were arrested for a federal felony.”

Sister Lawinger says she was arrested only once, back in the 1980s, for sitting down and refusing to leave the district office of a local congressman. And even then, she says, she was never officially charged or fined. But another person who was in the Peace Action delegation that day, Judith Williams, says she was arrested and spent three days in jail for a protest at the White House back in 1991. In that protest, Williams and other peace activists had scaled the White House perimeter fence and scattered baby dolls around the lawn to protest the bombing of Iraq. She says that the charge from that incident was a misdemeanor, an infraction that would not seem enough to establish her as a threat to aviation.

Inevitably, such questions about how one gets on a federal transit list creates questions about how to get off it. It is a classic—and unnerving—catch-22: Because the Transportation Security Administration says it compiles the list from names provided by other agencies, it has no procedure for correcting a problem. Aggrieved parties would have to go to the agency that first reported their names, but for security reasons, the TSA won’t disclose which agency put someone on the list.

Bresson, the FBI spokesman, won’t explain the criteria for classifying someone as a threat to aviation, but suggests that fliers who believe they’re on the list improperly should “report to airport security and they should be able to contact the TSA or us and get it cleared up.” He concedes that might mean missed flights or other inconveniences. His explanation: “Airline security has gotten very complicated.”

Many critics of the security agency’s methods accept the need for heightened air security, but remain troubled by the more Kafkaesque traits of the system. Waters, at the Eagle Forum, worries that the government has offered no explanation for how a “threat to aviation” is determined.

“Maybe the people being stopped are already being profiled,” she says. “If they’re profiling people, what kind of things are they looking for? Whether you fit in in your neighborhood?”

“I agree that the government should be keeping known ‘threats to aviation’ off of planes,” Ibish says. “I certainly don’t want those people on my plane! But there has to be a procedure for appealing this, and there isn’t. There are no safeguards and there is no recourse.”

Meanwhile, nobody in the federal government has explained why so many law-abiding but mostly left-leaning political and antiwar activists are being harassed at check-in time at airports.

“This all raises serious concerns about whether the government has made a decision to target Americans based on their political beliefs,” says Katie Corrigan, an ACLU official. The ACLU has set up a No Fly List Complaint Form on its Web site.

One particular concern about the government’s threat to aviation list and any other possible lists of people to be subjected to extra security investigation at airports is that names are being made available to private companies—the airlines and airport authorities—charged with alerting security personnel. Unlike most other law- enforcement watch lists, these lists are not being closely held within the national security or law-enforcement files and computers, but apparently are being widely dispersed.

“It’s bad enough when the federal government has lists like this with no guidelines on how they’re compiled or how to use them,” says Olshansky at the Center for Constitutional Rights. “But when these lists are then given to the private sector, there are even less controls over how they are used or misused.” Noting that airlines have “a free hand” to decide whether someone can board a plane or not, she says the result is a “tremendous chilling of the First Amendment right to travel and speak freely.”

But Olshansky, alarmed by her own experience and the number of others reporting apparent political harassment, is fighting back. She says now that the government has confirmed the existence of a blacklist, her center is planning a First Amendment lawsuit against the federal government—and CCR has already signed up Lawinger, Stuber, and several others from Milwaukee’s Peace Action group.

—Dave Lindorff

Dave Lindorff is a freelance writer based in Philadelphia; this article first appeared in Salon.

Uncivil Service

Civil-service law is as unsexy an issue as can be. Federal employee hiring rules? Collective bargaining rights? Whistleblower protections? Compared to terrorists lurking in the shadows with weapons of mass destruction, civil service is, well, boring. It is this very issue, however, that stalled passage of legislation creating the new Department of Homeland Security before last month’s midterm elections, and was, it has been argued, the issue that cost Democrats control of the Senate and seats in the House of Representatives. Some even suggest that the Democrats played right into the administration’s hands—that this was simply another battle in President George W. Bush’s war on both civil-service law and federal employee unions, and only tangentially related to the war on terrorism.

It was a strange political turn of events, one that Newsweek’s Eleanor Clift acidly described as a “debacle,” and “a metaphor for [the Democrats’] inability to effectively convey their side of the argument.” The Democrats initially proposed the creation of a Homeland Security Department, much to the Bush administration’s displeasure; the administration ultimately took credit for the idea, and painted the Democrats as obstructionist lapdogs of powerful public employee unions for their defense of civil-service laws.

Indeed, the public employee unions are major contributors to the Democrats, and did strenuously oppose the civil-service changes. As Bobby Harnage, president of the American Federation of Government Employees, explained in an official statement following the bill’s final passage: “This terrible piece of legislation gives the president the power to strip unionized workers of their ability to represent themselves on matters as basic as hiring, firing, promotions, appraisals, disciplinary actions, matching pay to job duties—the bread and butter of democratic unionism.” Under the new reorganization, the AFGE will no longer be allowed to represent 35,000 workers. AFL-CIO President John Sweeney also condemned the law as a “shameful and unprecedented assault on workers.”

Needless to say, the administration has denied this. President Bush’s proposal to eliminate many civil service protections was presented as a necessity in the interest of national security. “Flexibility” was the watchword, as Congressman Robert Portman (R-Ohio) explained last summer to PBS correspondent Margaret Warner: “The agility of the terrorist needs to be matched by a more agile federal work force than is available if the president does not have some flexibility.”

One problem with flexibility, many argue, is that it is unconstitutional. As union leader Harnage points out, “under this bill, Congress [will] no longer determine how taxpayer money is distributed among the agency’s employees—political appointees and managers would.”

Longtime ultraconservative columnist Charley Reese—no friend of Democrats—argued in print last September that “what Mr. Bush wants is to disregard the Constitution and bully Congress into ceding its constitutional authority to the executive branch.” After all, as Reese pointed out, it is Congress that has the sole authority to write legislation, including the terms of federal labor contracts, and to authorize and appropriate funds. The final version of the Homeland Security act accomplished this transfer of power—in the name of flexibility.

This was no problem for many in the media. Mort Zuckerman, owner of the New York Daily News and U.S. News and World Report, was typical of the chorus of voices eager to brush the Constitution aside: “It is just . . . ludicrous that civil service and budget rules should limit the protection of millions of Americans against enemies who may use nuclear, biological and chemical weapons.” Beltway pundit Morton Kondracke agreed wholeheartedly, writing in Roll Call that it was “simply unconscionable—even unpatriotic—that a fight over civil service rules and collective bargaining should block creation of a department designed to thwart terrorism.”

Democrats tried to question the relevance of national security to the proposed changes. As Rep. Robert Menendez pointed out last July 26 in an interview on PBS’s News Hour, President Bush exploited existing flexibility provisions governing the Department of Justice to block employees from unionizing earlier this year: “Over 500 individuals who were seeking to be unionized were suddenly taken away all of their rights, including their right to collective bargaining, even though many of them were, for example, clerical employees having nothing to do with national security.”

Congresswoman Nancy Pelosi (D-Calif.), now the House Minority Leader, voiced her reservations during the debate on the bill last July: “I am afraid that we do not see the respect for the civil service that I think this Homeland Security Department legislation should contain. There is a serious reason why we have a civil service. It came into existence to eliminate corruption and favoritism.”

Favoritism in hiring is the main issue, according to many Democrats and their fellow travelers. AFGE’s Harnage explains that the “Homeland Security legislation has allowed the administration to advance long-stalled schemes to eliminate the checks and balances ensured by collective bargaining and to transform the civil service into a politicized workforce of hacks and cronies.” Behind the scenes, other Democrats in Washington were blunt. “This is about who went to school with whom, and who went to a Christian college,” a Senate Democratic aide recently told Newsweek, adding, “this gives them a free hand to stack the department and turn it into an outpost of the Republican party.” The fact that the administration compromised on a number of key points—including continued protection for whistleblowers and continued insurance and retirement benefits—while holding out for the changes in hiring procedures seems telling.

When, in the midst of the preelection impass, Bush administration budget director Mitch Daniels complained that the civil service changes were necessary because “al Qaeda doesn’t have a three-foot-thick” book of labor rules, Sen. Robert Byrd (D-W.Va.) unleashed, in The Wall Street Journal, one of his typically stinging retorts: “Since when did the al Qaeda become our role model for labor-management relations? I thought we were out to destroy al Qaeda—not emulate them.” It would seem that the majority of Democrats—with the notable exception of Byrd and a few other uncompromising souls—were cowed by the president’s popularity and flummoxed by his political wiles. They decided that it was politically expedient to sacrifice the Constitution, and go along with the Bush administration’s seemingly ideologically driven desire to emulate a less-than-democratic organizational model.

—Shawn Stone

Information Override

At a time when the public and elected officials have been clamoring for more disclosure and accountability from the corporate world, a little-noted provision in the Department of Homeland Security law could make it even easier for corporations to hide information from the public and be even more obscure and less accountable.

Last month, when President George W. Bush signed the Homeland Security bill into law, he did far more than tighten up the security in the United States: He stripped the public of their right to access vital information.

The Critical Infrastructure Information Act, part of the Homeland Security law, states that when a business voluntarily submits “critical infrastructure information” to the Department of Homeland Security, it is exempt from the legal requirements of the Freedom of Information Act. Some examples of critical infrastructure are electric grids, water supplies, telephone systems or atomic energy facilities. Further, if the federal government gives that information to a state, then that information is exempt from the local FOIA as well.

The intent of the law is to encourage companies to “voluntarily” share information with the government about potential vulnerabilities to terrorist attacks. However, many critics of the act contend that businesses will use this as a way to bury vital information they do not want the public to know about.

“It’s a new law that allows the Department of Homeland Security to keep things secret,” says Rebecca Daugherty, freedom of information service center director at the Reporters Committee for Freedom of the Press. “It means that the freedom of information won’t require that important information be given out.”

Passed in 1974 in the wake of the Watergate scandal, FOIA allows ordinary citizens to hold government and businesses accountable by requesting public documents and records. With it, citizens, journalists, historians and watchdog groups have been able to demand crucial information that has kept the government and businesses somewhat responsible. However, the current FOIA exemption frees businesses that voluntarily provide information to the Homeland Security Department from the ordinary disclosure requirements. It also grants them immunity from civil liability for violations of securities law; civil rights; environmental, labor and consumer protection; and health and safety laws should such violations be revealed in the information they provide to the department.

More important, Daugherty says, it could deny the public crucial information about hazardous materials, chemical releases, toxic spills and other threats to health and safety—as well as vulnerabilities to terrorism and sabotage.

“While the whole point of the confidentiality provision is to keep terrorists from knowing certain vulnerabilities,” says Daugherty, “at the same time, it also keeps the public from knowing such information as well. If the public can’t follow what is going on, they can’t demand change, and that is one of the responsibilities of citizenship.”

One example of how the public used FOIA to hold an organization accountable was with the water treatment system in Washington, D.C. Daugherty explains that the water facility was using chemicals that were explosive and dangerous to the public. Had terrorists had that information, they could have used it to create harm in the community. Yet, at the same time, once the public found out about the use of such substances, it demanded that the water treatment plant use less volatile chemicals that were safer for the health and well-being of those living in the area.

“If the public can’t know about these things, then it gives a green light to companies, and state and local agencies to do things that are easy, but not necessarily safe,” says Daugherty. “We have not seen terrorists operate by trying to find out where there are vulnerabilities. They didn’t need to know that information when they attacked the World Trade Center. The public needs to know these kinds of things so they can demand change.”

Blair Horner, legislative director for New York Public Interest Research Group, says that this provision could hinder his organization from doing its job as a watchdog group to the government.

“It’s a kind of new exemption of the law that may be used to justify things that the public should know about,” says Horner.

He points out that if information were turned over to the Homeland Security Department about a power plant, and the documents disclosed that there were toxic hazards at the plant or other hazards to workers, then the public would not be able to get that information.

“It may shut down,” says Horner, “our group’s ability to get information about the environmental or public hazards for the workers that are being collected in this voluntary way.”

Daugherty says that what is ironic about this new law is that information that the government is saying needs protection is already guarded under the existing exemptions to FOIA.

She explains that there are nine exemptions already in place that were there before the Homeland Security bill was passed. Information that could cause proprietary harm or pose a threat to safety is already protected under existing laws.

Robert Freeman, executive director of the state Committee on Open Government, agrees and says that from his perspective, the law already enables the government to withhold records that would pose a threat to security. In particular, he says, this is the case with New York state’s FOIA law.

“The statute that we have,” says Freeman, “is sufficiently flexible in that it enables the government to withhold records in proper circumstances, but at the same time it also guarantees a level of accountability.”

He says that his basic objection to this new legislation is pretty simple.

“All an access law should ever say,” Freeman says, “is that everything is available unless disclosure would hurt either somebody or some governmental process or perhaps a competitive position of a commercial enterprise. The kind of blanket exemption that appears in the federal act does not involve that kind of thought process; it does not reflect that kind of principle.”

—Nancy Guerin

Gun Store to the World

The formation of a Depart-ment of Homeland Security represents the U.S. government’s latest effort to assure the American people that everything is going to be just fine. Though its scope is vast—170,000 employees in 22 federal agencies held accountable by one individual aiming for the leanest, meanest safety machine this side of an Israeli airport—the effectiveness of the cure-all will be questioned indefinitely. And considering that the office’s creation came with no major changes to the numerous loopholes in U.S. gun laws (ambiguities which analysts say present the most serious threat to security both at home and throughout the world), the Band-Aid may have missed the wound.

Make no bones about it, the United States arms the world both legally and illegally. International arms sales aside, the nation’s domestic gun laws are so riddled with holes that terrorist organizations virtually print brochures espousing the benefits of one-stop shopping for small arms in the United States. Intelligence officials have confiscated terrorist training manuals explaining how to obtain assault weapons legally and how to conduct oneself in order to avoid arousing suspicion while amassing and transporting firearms.

Shortly after Sept. 11, the Brady Campaign to Prevent Gun Violence released a report detailing how terrorists exploit weak gun laws to accumulate firearms. The report displays the shivering ease with which firearms can be purchased by just about anyone at more than 4,000 gun shows annually. The finding of the Brady report says that although the assault-weapons ban made semi-automatics like the AK-47 illegal, hunters and terrorists alike can still purchase a “sporting copy” of that particular firearm, now called the MAK-90 or modified AK, and other cheap knockoffs, at these events.

The reportedly low prices of these sporting copies make them a favorite of terrorists at home and abroad. The Bushmaster rifle used by the Washington, D.C.-area sniper, a clone of the M-16 military model, shows why the federal assault-weapons ban needs to be renewed and strengthened when it expires in 2004. John E. Shanks, the law-enforcement director for the Brady Campaign, points to the number of cases where assault weapons heading to the Middle East and Columbia have been confiscated as evidence for more strict U.S. gun laws.

“It’s just like drugs in our country,” Shanks says. “We just confiscated a couple million dollars worth of marijuana crossing the border in Texas, but it is just a drop in the bucket. We caught one here, we got one coming there, but anybody who’s working in that environment will tell you that this is just one percent of what is going through the borders on any given day.”

Shanks notes that the formation of a Department of Homeland Security has set in motion virtually no changes to U.S. gun laws. Considering that the there is no plan to shore up any of these gun law loopholes, an argument can be made that it was more than an oversight. And though he doesn’t think you should know, a background check on Attorney General John Ashcroft, a for-life member of the National Rifle Association, shows a long history of working for the interests of the gun lobby, a chief financier of his political career.

“There is a strong allegiance to the gun lobby,” Shanks says. “The gun lobby campaigned for President Bush and his whole administration, saying when they were elected, we’ll have the NRA working out of the Oval Office.”

Considering Ashcroft’s actions post-Sept. 11, you would be inclined to agree with the NRA. When testifying before Congress on Sept. 24, 2001, the attorney general said the Department of Justice needed to “unleash every possible tool in the fight against terrorism and to do so promptly.” Backing up those words, Ashcroft pushed for stronger surveillance and information and intelligence sharing via the U.S. P.A.T.R.I.O.T. Act (Providing Appropriate Tools Required to Intercept and Obstruct Terrorism). A-plus for the acronym, but for his adamant refusal to allow the FBI to cross-check lists of suspected terrorists with the gun-purchase background checklists kept by the Bureau of Alcohol, Tobacco and Firearms, Ashcroft fails to make the grade.

“We saw that as gross negligence on the part of the attorney general,” Shanks says. “The FBI was involved in a valid investigation regarding an outright assault on American soil, and all it wanted to do was cross-reference the lists. But we absolutely expected that out of Ashcroft.”

In fact, Shanks says, the only real change to U.S. gun laws was to ensure that more people are carrying weapons by arming airline pilots. But Shanks doubts that will solve much.

“Police officers who are highly trained in the use of their weapons have accidents,” says Shanks. “You cannot find a policeman who has not heard or known somebody who has shot a hole in the bottom or roof of a police car. What would happen should the same situation occur at 35,000 feet? Those are dangers that I don’t even think anybody really thought of. Let the pilot fly the plane, not have to worry about defending it.”

If anything can be learned from the attacks that began the rush towards domestic security, it is that terrorists are willing to attack targets within the borders with weapons found within the homeland. Shanks says these loopholes need to be closed before anyone can truly be safe.

“If it is gong to be a true homeland security bill, it should not focus on just terrorism,” Shanks says. “It should focus on security throughout America. People always tell us that criminals will always be able to get guns, and that may be so, but right now in America we hand them out on a silver platter. It’s just way too easy.”

—Travis Durfee