The Magazine

Better Safe Than Sorry

Post 9/11, the Bush administration has mostly gotten it right.

Jul 21, 2003, Vol. 8, No. 43 • By AMITAI ETZIONI
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Believe it or not, before 9/11 the regulations that allowed public authorities to record or trace e-mail were interpreted by Department of Justice lawyers as requiring a court order from every jurisdiction through which an e-mail message traveled. This was a holdover from the days when phone lines were local; warrants for phone taps were granted by local authorities and had only a local reach. But today, e-mail messages zoom around by a variety of routes. Now, thanks to the Patriot Act, nationwide tracing and recording orders are permitted under FISA. That is, law enforcement authorities may finally catch up with the technological features of e-mail. Anybody who sees a civil rights violation here should have his vision checked.

Few changes in the laws and regulations after 9/11 have raised more ire than new Department of Justice guidelines permitting the FBI to conduct surveillance of political and religious organizations. The new guidelines, introduced in May 2002, state, "For the purpose of detecting or preventing terrorist activities, the FBI is authorized to visit any place and attend any event that is open to the public, on the same terms and conditions as members of the public generally." Civil libertarians are still fixated on the fact that more than a generation ago the FBI infiltrated some fringe groups (such as the Ku Klux Klan and the Black Panthers) and tapped the phones of civil rights leaders like Martin Luther King Jr. But that was a different FBI, one run by J. Edgar Hoover, accountable to no one, feared by presidents and legislators because of files Hoover kept on their personal lives and because he succeeded in building a public cult around himself. The reforms of the mid-1970s barred FBI agents from so much as attending a public event or entering a public space to observe the goings-on there unless they were investigating a specific crime.

The absurd result was that agents charged with protecting a community were unable to inform themselves firsthand about inflammatory elements in its midst. In particular, terrorists could meet and recruit in places of worship without any fear of being overheard by public authorities. As it turned out, the danger was far from theoretical. A score of people were recruited at mosques in Britain to fight with the Taliban, and some of the 9/11 hijackers were recruited at a mosque in Hamburg, according to German security sources. Since 9/11 several American mosques have been investigated for links to terrorism, including two in the Seattle area and one near St. Louis.

Before 9/11 a Chinese wall separated intelligence agencies, such as the CIA and National Security Agency, from law enforcement, above all the FBI. As Attorney General Ashcroft put it in his July 2002 testimony before the Senate, "A criminal investigator examining a terrorist attack could not coordinate with an intelligence officer investigating the same suspected terrorists." The barriers between agencies, Ashcroft said, prevented cooperation and coordination. Michael Hayden, the director of the NSA, told a recent meeting of the Council on Foreign Relations in Washington that his staff were repeatedly drilled in not sharing "raw information" (which included names and addresses and other identifying marks) with anybody.

Since 9/11 the walls dividing the intelligence collection and law enforcement agencies have been largely removed. A major factor was a 2002 ruling by the FISA court that permitted information-sharing between intelligence agents and criminal investigators under FISA. And a new culture is being fostered, one that puts a premium on the very collaboration that once was avoided. Turf battles have not disappeared, but there is a growing appreciation that the enemy is not the other agency, but bin Laden and his followers. Attorney General Ashcroft is rhapsodic about the new culture, describing it as "capable of adaptation, secured by accountability, nurtured by cooperation, built on coordination, and rooted in our Constitutional liberties." Even without such Hollywood music in the background, it is good to know that now, as a rule, the left hand is allowed to know what the right hand has found out.