This is a copy of an article published in the journal Society, 52(1), pp. 70-79, 2015.
Please cite as: Deflem, Mathieu and Shannon McDonough. 2015. "The Fear of Counterterrorism: Surveillance and Civil Liberties Since 9/11." Society 52(1):70-79.
In the post-9/11 era, claims can repeatedly be heard that counterterrorism and related surveillance practices involve illegitimate invasions of privacy, free speech, and other violations of civil liberties. This puzzling theme of a fear of surveillance is echoed in both the relevant scholarly literature and civil liberties activism. In this paper, we analyze the contemporary discourse on surveillance and civil liberties in confrontation with reports on empirical cases of claims of abuse that are made against surveillance and intelligence activities. We argue that these civil liberties claims are not only a function of the incidence of actual violations, but are also a reflection of a civil liberties culture and an accompanying fear of counterterrorism and surveillance. Allegations of civil liberties violations in the post-9/11 era, therefore, do not have a wholly justified basis in the reality of surveillance practices, but should instead also be viewed as a manifestation of certain cultural sensitivities related to privacy rights and personal liberties.
The terrorist attacks of September 11, 2001 have dramatically heightened concerns over national security and brought about, in the United States perhaps more than anywhere else, a sharp rise in anti-terrorism laws and related initiatives to build and improve counterterrorism efforts. In addition to a sharp increase in the budget and resources assigned to counterterrorism investigations and intelligence-gathering agencies, US Congress formally approved the expansion of power of the executive branch, including the authorization of new surveillance techniques and procedures for law enforcement agencies in terrorist-related investigations (Deflem 2010). The most prominent and commonly scrutinized source of the formal expansion of investigative powers in the United States since 9/11 is the 2001 USA PATRIOT Act (“Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism”), which was swiftly passed with little congressional debate in October of 2001.
Civil liberties organizations as well as a number of academic scholars have routinely criticized post-9/11 counterterrorism initiatives as unconstitutional and major threats to civil liberties and privacy. Harmonizing with the claims from civil liberties groups are contributions in the popular and scholarly discourse on surveillance and counterterrorism that lament the purported negative impact of governmental policies and related surveillance and intelligence activities on personal rights and liberties. The revelations by former security contractor Edward Snowden in June 2013 concerning alleged spying practices by the National Security Agency (NSA) greatly reinvigorated these debates.
In this paper, we investigate if there is any counter-evidence to the alarmist statements that are often made in the popular and scholarly discourse on civil liberties and surveillance. Against the background of academic scholarship on surveillance and criticisms from civil liberty and privacy groups, we rely on archival sources, government documents, and media reports to examine a variety of claims made concerning civil liberties violations by security agencies. Our analysis reveals that at least a sizeable number of claims raised against counterterrorism practices are without objective foundation in terms of any actual violations. As an explanation for this marked discrepancy, we suggest that, as various survey data show, there is a relatively distinct, albeit it uneven and not entirely stable, culture of privacy and civil liberties in contemporary American society which independently contributes to a fear of counterterrorism, rather than of terrorism. These specific cultural sensitivities bring about an increase in the amount of civil rights allegations independent of actual violations thereof.
Surveillance Studies Meets Civil Liberties Advocacy
In recent years, especially since the events of 9/11, a new social-science field of surveillance studies has been developing (Ball, Haggerty, and Lyon 2012; Contemporary Sociology 2007; Lyon 2007). Briefly reviewing this new burgeoning area, it can be observed that most contributions exhibit a critical and, implicitly or explicitly, fearful view of surveillance as a powerful and deeply invasive social force. Such worrying observations are particularly made in the context of the development of technologically advanced means of information gathering that can threaten privacy and civil liberties.
Surveillance expert David Lyon (2003, 2007), for example, laments the inherent consequences of the new surveillance methods as a powerful tool for profiling that would produce and reinforce long-term social inequalities. Surveillance scholars have suggested such novel concepts as a ‘surveillant assemblage’ to denote the convergence of once separate and discrete surveillance systems in order to mark nothing short of a gradual destruction of privacy (Haggerty and Ericson 2000). Surveillance technologies are argued to turn into instruments of totalitarian control that create or exacerbate inequality and lack accountability (Haggerty and Ericson 2006). Some differences in perspective on the impact of surveillance are to be noted among social-science scholars (Deflem 2008; Dunér 2005), but the research community has nonetheless not sufficiently acknowledged whatever gains and positive contributions have been made in providing security.
Besides surveillance scholars, major civil liberties organizations have greatly criticized the post-9/11 expansion of the surveillance powers of government and intelligence agencies by means of aggressive public campaigns, critical reports, and lawsuits. The American Civil Liberties Union (ACLU) is one of the most active and prolific of such groups oriented at protecting the rights granted to US citizens by the constitution. The ACLU has instituted a so-called ‘Safe and Free’ campaign to address a number of issues related to surveillance and civil liberties on the basis of the notion that “there has never been a more urgent need to preserve fundamental privacy protections and our system of checks and balances than the need we face today, as illegal government spying, provisions of the Patriot Act and government-sponsored torture programs transcend the bounds of law and our most treasured values in the name of national security” (ACLU website).
The ACLU claims that post-9/11 systems of mass surveillance threaten civil liberties more than that they can effectively combat terrorism. Yet, ACLU campaign tactics may aggravate the fear of surveillance by exaggerating the actual threat to civil liberties. For example, an analysis of an ACLU ‘Safe and Free’ commercial regarding the FBI’s authority to perform ‘sneak-and-peek’ searches shows that the ACLU overstates the extent of the threat to civil liberties imposed by counterterrorism laws (Factcheck.org 2004). The ACLU’s ad claims that the Patriot Act authorizes government agencies to search homes without notification, leaving out the condition of obtaining a warrant from a judge on the basis of regular probable-cause criteria.
Campaigns similar to those launched by the ACLU have also been established by other civil liberties organizations. The Electronic Frontier Foundation (EFF), for example, set up the FLAG (FOIA Litigation for Accountable Government) Project, which “aims to expose the government’s expanding use of new technologies that invade Americans’ privacy... [and] to protect individual liberties” (EFF website). The project utilizes Freedom of Information Act (FOIA) requests to reduce government secrecy and thwart potential abuses of power in regard to government surveillance. Likewise, the Electronic Privacy Information Center (EPIC) works to “focus public attention on emerging civil liberties issues and to protect privacy, the First Amendment, and constitutional values” (EPIC website). EPIC has set up a ‘Watching the Watchers’ program to assess the impact of public surveillance programs proposed following 9/11 (ObservingSurveillance.org). An EPIC report reviewing a budget plan of the Department of Justice criticizes the proposed surveillance programs for their inadequate public scrutiny and possible violations of civil rights under the telling title of “Paying for Big Brother” (EPIC 2002). Using such strong imagery and provocative language, civil liberties groups may effectively contribute to create a fear of surveillance and counterterrorism irrespective of actual practices concerning rights violations.
Surveillance and Civil Liberties: Claims versus Violations
It is striking that a predominantly negative attitude towards surveillance can be detected both among a substantial number of social-science scholars interested in the study of surveillance as well as among civil liberties advocates. The central argument of our paper is that such shared concerns are, at least in part, a manifestation of a culture of fear towards surveillance, which, as a result, contributes to accelerate the number of civil liberties allegations made against security agencies irrespective of the actual incidence of such violations. To test this hypothesis, our analysis must first reveal such discrepancies and next substantiate the existence of a broader cultural pattern.
To examine the relative weight of claims and incidents of civil liberties violations, we rely on various sources. First, we review reports from the Office of the Inspector General in the US Department of Justice concerning claims made pertaining to abuses of the Patriot Act involving Department of Justice employees, such as the Federal Bureau of Investigation (FBI). Second, we additionally reviewed news reports of incidents of civil rights violations by the FBI, with special attention to the use of National Security Letters.
Department of Justice Investigations
Section 1001 of the Patriot Act requires the Office of the Inspector General (OIG) in the Department of Justice (DOJ) to investigate and release semi-annual reports on civil rights or civil liberties violations that have been alleged to have been committed by DOJ employees, such as the FBI, the Drug Enforcement Administration (DEA), the Federal Bureau of Prisons (BOP), the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), the US Attorneys’ Offices, and other DOJ components, excepting claims of misconduct by US Attorneys (USDOJ, OIG website). The Special Operations Branch of OIG receives such complaints via mail, email, telephone, and facsimile. The Investigative Specialist and two Assistant Special Agents in Charge review all complaints, enter them into an OIG database, and decide if they are credible and warrant investigation.
OIG classifies each complaint into a number of categories. Some complaints do not fall within OIG’s jurisdiction or do not warrant further investigation. For example, some complaints concern allegations against agencies outside of DOJ, including other federal agencies, local governments, or private groups. Complaints classified as within DOJ’s jurisdiction are subject to an additional review process that may lead to an investigation, including extensive interviews and scrutiny of relevant documents. Some of the alleged violations are found to be management issues, such as claims concerning a lack of quality food in prisons, which are not investigated further but are reported to the appropriate DOJ components to be handled. OIG requests information on the remaining allegations, which may lead to a full-on investigation. Of those allegations that are investigated, the claims are not always found to be substantiated, and some investigations still remain open or are referred to other agencies for investigation.
An analysis of the findings of the OIG reports pertaining to investigations between October of 2001 and June of 2013 reveals that the number of civil rights claims and allegations far exceeds the number of violations. Table 1 presents the distribution of all claims versus credible claims in each investigative half-year period. Overall, in the period between 2001 and 2013, the Office of the Inspector General received 21,248 claims of civil rights or civil liberties violations. Of these claims, only 3,421 fell within DOJ’s jurisdiction or warranted further review. Of the DOJ claims warranting further review, only 265 were deemed credible enough to open an OIG investigation. Thus, only 7.7% of the claims within DOJ jurisdiction warranting further review and 1.2% of the total claims received were identified as potential civil liberties violations, showing that the number of civil liberties violation claims made against DOJ far exceeds the number of credible claims.
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Over the considered period, it can be noted that the number of claims is not stable. After a period of increasing allegations between 2002 and 2004, the number of allegations declined, presumably because an initial wave of concerns took place in reaction to 9/11 legislation and policies that broadened investigative powers. A notable resurgence of allegations took place from 2009 until 2010, the immediate years following the election of President Barack Obama. This temporary upswing could be attributed to complaints from citizens with strong anti-Obama sentiments or from foreign and/or Muslim or Arab detainees hoping for a more favorable treatment since the end of the Presidency of George Bush. As the review below will show, the latter can be assumed to have been the case because most complaints have come from Arab or Muslim inmates who are often also foreign or foreign-born. It is also to be noted that a minor upswing in the number of allegations took place in the last period on which data are available, from January to June 2013, but it is too soon to conclude that a Snowden effect occurred as the former contractor’s revelations reached the media in the last month of this period.
The allegations against DOJ agencies and employees concern seven categories of complaints: claims that are readily judged to be unwarranted; BOP prisoner or detainee abuse; illegal search and seizure; coercive questioning; racial or ethic profiling and discrimination; improper surveillance; and improper information sharing. Reviewing these categories, claims that do not warrant further review at face value entail a number of obviously frivolous complaints. They include, amongst others, allegations from individuals alleging that the US government is broadcasting electronic signals to harm them, is filling their home with poisonous gas, is using illegal nuclear magnetic reactors, or is interfering with their thoughts or dreams; that the government is intercepting their dreams or is using subliminal messages to coerce people to engage in certain acts; that they are under 24-hour surveillance by the CIA or other government agencies; that their emails or phone calls are being intercepted; that they are being tortured by the government even though they are non-detainees; that the government planted devices in their head or injected them with ‘hypodermic behavioral instruments’ to control or obstruct their thoughts or behavior; and that the FBI engages in a wide variety of surveillance such as spraying chemicals around peoples’ beds, altering television sets to function as surveillance devices, injecting people with a memory loss drug, altering people’s physical appearance, and implanting GPS devices into their bodies.
The six remaining categories fall under credible claims that were formally investigated. The most common type relates to various forms of detainee or prisoner abuse by employees of the Federal Bureau of Prisons, mostly involving Muslim or Arab inmates. These claims include allegations of illegal detention or arrest, being held without access to an attorney, adverse conditions of detainment, verbal abuse, religious discrimination, and unwarranted cell searches. The ACLU has pointed out that these allegations follow a distinct pattern of violating the rights of immigrants, especially those of Muslim and Arab descent (ACLU 2003). Yet, upon investigation, these claims have often been found to be unsubstantiated. Examples include the case of a Muslim detainee who had alleged that he had teeth extracted against his will and was forced to eat pork. OIG determined that the detainee had signed forms to have his infected teeth removed and that the jail in question had a 100 percent pork-free menu. In other cases, inmates made claims of physical abuse which they later admitted to have fabricated. Among the substantiated abuse claims were a number of abuse allegations made by inmates concerning a BOP correctional officer repeatedly abusing Muslim inmates, including an instance when he ordered a Muslim inmate to remove his shirt so that the officer could shine his shoes with it. On another occasion, a correctional officer was disciplined for having asked an inmate about his nationality, the languages he spoke, and the crimes he had committed.
Other common claims of verbal abuse include correctional officers calling Muslim or Arab inmates derogatory names, such as ‘terrorist’, ‘towel-head’, and ‘Bin Laden’, or having told to hate them because they are Arabs or Muslims. Some of these incidents of verbal abuse have been confirmed, such as when prison officers in a California facility had inserted copies of pictures of a burning American flag in the inmates’ food slots, which read: “American flag: $25, Gasoline: $2, Cigarette Lighter: $2.50, catching yourself on fire because you are a terrorist asshole: PRICELESS.” There is also some evidence of BOP correctional officers attempting to conceal their role in incidents of abuse uncovered in OIG investigations. For instance, an Egyptian national claimed he was wrongly arrested in connection to the September 11 terrorist attacks and was later cleared. During his detainment, he claimed, he was subjected to a body cavity search in front of many people, including a female officer, and placed in solitary confinement where he was deterred from practicing his religion. OIG investigation supported these allegations and revealed attempts to cover-up the incident as well as mishandling of videotape evidence by BOP managers.
OIG opened an investigation into a BOP facility, the Metropolitan Detention Center (MDC) in Brooklyn, New York, in connection with allegations made by detainees held by the Department’s terrorism investigation of the September 11 attacks. Claims included allegations that BOP correctional officers physically and verbally abused detainees, such as by slamming detainees against walls, painfully twisting their arms and hands, keeping them restrained for long periods of time, and insulting them and using coarse language. OIG made several recommendations to correct these systematic problems of abuse.
The third category of civil liberties violation claims consists of claims of illegal search and seizure. Many of these claims could not be substantiated upon investigation. For example, when OIG investigated a claim that that an FBI agent and a New Jersey County Sheriff’s Deputy utilized unnecessary force and illegally searched a residence in a September 11 terrorism investigation, it was determined that the agents were pursuing a lead to question a terrorist suspect believed to be residing in New Jersey. Another OIG investigation examined the allegation from an Arab American that the DEA had illegally searched his home and confiscated his family’s passports and property. An investigation determined that the complainant was in fact a fugitive from justice charged by the DEA in connection to a drug investigation.
The fourth category of civil liberties violation claims involve coercive or improper questioning by DOJ investigative agencies. One such claim concerned a material witness in an FBI investigation in which the complainant claimed the FBI coerced his confession by threatening him and his family. An OIG investigation into the matter revealed that the complainant was deceptive during polygraph questioning, and interviews with witnesses did not substantiate his claims of being threatened.
A fifth category of claims concerns allegations of religious and ethnic discrimination by DOJ employees, including claims of racial profiling. For example, OIG investigated and later substantiated claims made by an Arab American gas station operator who was harassed by a Supervisory Detention Enforcement Officer. In other cases, the claims were found unsubstantiated, such as when a job candidate at the FBI claimed to have been faced with demeaning behavior during his job interview. Many complaints in the discrimination category come from Muslims or persons of Arab descent who claim to have experienced difficulty traveling. One such claim came from an off-duty BOP Correctional Officer of Arab descent that claimed he was the victim of racial profiling when the FBI detained him at the airport for questioning after displaying suspicious behavior on a flight with another passenger. An investigation found that FBI agents had followed policy.
The sixth category of civil liberties violation claims pertains to allegations of improper surveillance by DOJ agencies. Such a case occurred, for instance, when OIG investigated the allegedly improper arrest of Brandon Mayfield, an Oregon man and convert to Islam, who had been arrested and detained for two weeks as a material witness in connection with the Madrid train bombing in March 2004. During the investigation, the FBI conducted covert surveillance and searches of Mayfield. OIG determined that the FBI legally obtained authority to conduct the surveillance under the FISA Act, but Mayfield was improperly arrested as the result of faulty fingerprint analysis and religious profiling.
Finally, the seventh category of civil liberties claims reported to DOJ involves the improper sharing of information among investigative offices. For example, one case involved the electronic communication from one FBI field office to other field offices which contained the names and addresses of the administrators and customers of a Muslim-based website. Upon investigation, the FBI acknowledged that the list raised First Amendment concerns and thereupon discontinued its use.
Civil-Liberties Allegations Against the FBI
On the basis of news reports retrieved via Lexis-Nexis, we investigated civil liberties violations against the FBI in the period between January 1, 2002 and December 31, 2013. Though not based on a complete universe of cases or a random sample thereof, evidence gathered from these sources suggests that the number of civil rights violations by the FBI has been reported to be much lower than one would expect considering the potential problems voiced in the discourse on post-9/11 surveillance. During the examined period, some 20 cases involving allegations against the FBI received media attention. Some of the cases involves multiple individuals or groups claiming civil liberties violations. Only five cases involved a substantiated violation, two of which concerned certain provisions of the Patriot Act before they were excluded as unconstitutional upon reauthorization of the Act. Other claims are either still under investigation or were proved to be unsubstantiated.
Among the unsubstantiated claims are the cases of Mohamad K. Elzahabi and the FBI surveillance of protesters before the 2004 political conventions. In 2004, the FBI questioned Mohamad K. Elzahabi, a Lebanese national put on an FBI watch list after 9/11. Elzahabi claimed that the FBI violated his rights when they questioned him for seventeen days before his arrest in 2004 (Louwagie 2006). Elzahabi made statements during questioning that he taught sniping in Afghanistan and associated with Al Qaeda leaders, which his lawyers attempted to suppress, claiming coercion and involuntary detention. However, in June 2007, a judge denied the request, concluding that FBI agents explicitly told Elzahabi participation in the questioning was voluntary (Browning 2007).
Also in 2004, the ACLU filed a Freedom of Information Act (FOIA) request on behalf of activist organizations for information about FBI counterterrorism surveillance of antiwar protesters, environmental groups, and religious organizations in connection to the 2004 political conventions (Eggen 2004a, 2005). The ACLU argued that the surveillance efforts constituted an attempt to chill dissent and political opposition of the Bush administration, violating their First Amendment rights (Lichtblau 2005a). An investigation by OIG, however, did not substantiate these allegations and found that the FBI had conducted investigations on the protesters in response to specific threats to the conventions and had adhered to the requirements of the Attorney General.
Some civil liberties violation claims against the FBI remain unresolved. One case involves two US citizens, Muhammad Ismail and Jaber Ismail, a father and son related to Hamid Hayat, a man convicted of providing material support to terrorists. The Ismails were put on the no-fly list and barred from coming back to the United States for five months after a lengthy stay in Pakistan, where, the FBI was informed, they had attended a terrorist training camp (Archibold 2006). While the FBI eventually cleared the Ismails to fly home, it is unclear whether or not the FBI had illegally put them on the no-fly list.
Another case involves a university professor, Sami Amin al-Arian, arrested on terrorist charges of financing terrorism and fired from his tenured position at the University of South Florida (Kaye 2007). Al-Arian pled guilty to materially supporting terrorists in March 2006, after being acquitted on eight of the seventeen counts against him and with a jury deadlock on the other counts. Al-Arian claims that he agreed to the plea deal to avoid another lengthy legal process away from his family. The controversy surrounding Al-Arian continues as he remains in prison after his scheduled release in April 2007 because of civil contempt charges stemming from his refusal to testify in an unrelated case (Gharib 2007; The New York Sun 2008). The case continues to raise concerns over First and Fifth Amendment rights related to religion, free speech, and due process.
Our analysis also revealed several ongoing lawsuits related to terrorism investigations and potential civil liberties violations stemming from the surveillance of mosques and Muslim Americans, the no-fly list, and religious and ethnic discrimination. In May 2006, for instance, the ACLU filed an FOIA request on behalf of Southern California mosques and Muslims to get more detailed information about the extent of the surveillance and to ascertain if civil liberties violations occurred (Reza 2006). The ACLU filed another lawsuit in June 2006 against the Department of Homeland Security and the FBI on behalf of ten Muslim and Arab-Americans due to problems with the terrorism watch list. The ACLU argues that the plaintiffs are the victims of unfair harassment and detainment during traveling due to their ethnicity and problems with the no-fly list. However, most of the problems are discovered to arise from poor maintenance of the watch list and the containment of false positive names, or names similar to terrorist suspects.
Other civil liberties claims argue against the surveillance of protest and political advocacy groups by the FBI and other law enforcement officers. Specifically, information obtained through FOIA requests of the ACLU revealed the FBI’s Joint Terrorism Task Force collected e-mails and license plate numbers from domestic activists labeled as terrorists, including people involved in environmental, political, and animal-rights groups such as Greenpeace, the Catholic Workers group, and PETA (Lichtblau 2005b). The FBI argues that the surveillance does not originate from their political beliefs or attempts to stifle dissent. The matter is presently still under investigation by OIG (USDOJ, OIG website).
Additional civil liberties concerns relate to the FBI’s use of data mining programs to receive information from the commercial market of consumers or from other government agencies. Analysis of news sources revealed one data mining program, called Project Strikeback, that raised privacy concerns. The program consisted of the Department of Education sharing personal information on hundreds of student loan applicants with the FBI to search for terrorist activity involving identity theft and student loan fraud. However, the FBI argued that information was only requested from people who were already subjects of terrorist investigations (Glater 2006). The program was terminated because it was not often used, with fewer than 1,000 names requested from schools across the country (Geli and Perez 2006). There is no evidence or specific allegations of the FBI using the program to snoop on students outside the context of terrorist investigations.
Some of the civil liberties claims reported in the media have been supported as definite violations. The Mayfield case that was subject to an OIG investigation (see above) is one such case (McNamara 2004). Two cases both involve FBI whistleblowers retaliated against for complaining about or reporting deficiencies in terrorism investigations. One case involved Michael German, an ex-FBI agent who resigned in 2004 after he claimed the FBI punished him for reporting the intentional falsification of records and other violations of a counterterrorism investigation (Troia 2007). The Justice Department later supported his claim. Another whistleblower, Bassem Youssef, filed a discrimination lawsuit claiming he was barred from promotion due to his ethnicity (Johnston 2003). While the claim regarding ethnic discrimination is still pending, the Justice Department’s Office of Professional Responsibility concluded that there was reasonable cause to support the Arab-American agent’s claim that the FBI retaliated against him when he complained about being excluded from terrorism cases after 9/11 despite his extensive expertise (Eggen 2006). Furthermore, the Justice Department could not determine the FBI’s rationale for not promoting Youssef, but they do not attribute this failure to ethnic discrimination.
Among the most recent substantiated violations, it was reported that the FBI had in the period between 2002 and 2006 conducted some 2,000 telephone probes by invoking terrorism emergency situations that did not exist or by persuading telephone companies to voluntarily hand over phone records (Markon 2010). FBI officials thereby violated internally mandated procedures to protect civil liberties and broke federal law, specifically the Electronic Communications Privacy Act. The FBI, however, was absolved from having singled out any individuals or groups in violation of their First-Amendment right to free speech who organized actions against the Iraq War or engaged in related political activity.
Finally, in the period since the allegations by Edward Snowden against the NSA were published in news media in June 2013, it can be noted that the number of allegations of civil-liberties violations against the FBI did not substantially increase. There is some evidence to suggest that the Bureau may have been absolved from receiving additional complaints because public concerns shifted towards the NSA. Between June 1, 2013 and January 18, 2014, major newspapers included in Lexis-Nexis printed 27 articles concerning the FBI and civil liberties, compared to 128 articles about the NSA and civil liberties. More staggering yet, while only 99 articles in that period discussed the FBI in relation to privacy, no less than 1,297 concerned the NSA and privacy. In the entire one-year period before June 1, 2013, the number of news stories discussing the FBI and the NSA in relation to privacy was 70 and 19, respectively, while the number of stories about these agencies in relation to civil liberties was as low as 10 and 0.
National Security Letters
Among the greatest threats to civil liberties identified by civil liberties advocates has been the use of National Security Letters (NSLs) by the FBI. In 2004, US District Judge Victor Marrero ruled that the Patriot Act is unconstitutional because it allows the FBI to issue NSLs to demand data from Internet Service Providers (ISPs) without judicial oversight or public review (Eggen 2004b). After the 2006 revisions in the reauthorized Patriot Act, Judge Marrero ruled again that the NSL capabilities permitted under the act are unconstitutional (Armas 2007). Congress thereupon amended the NSL provision before the appeals court issued a decision.
The ACLU also filed a lawsuit challenging Section 215 of the Patriot Act, which allows the government to obtain business, library, and computer records in terrorism investigations through secret hearings of the Foreign Intelligence Surveillance Court (Denniston 2003). The ACLU argues that the ‘sneak-and-peek’ searches allowed under the Patriot Act are unconstitutional and disproportionately affect individuals of Arab or Muslim descent. Although the ACLU withdrew its lawsuit after Congress revised the Patriot Act in 2006 (Associated Press 2006), the organization and other civil liberties groups continue to criticize the Patriot Act following its reauthorization. The continued allegations are in part based on the accusation that Attorney General Alberto Gonzales knew of past civil liberties abuses when he argued for renewal of the Patriot Act in 2005 (Solomon 2007). When FBI reports confirmed that Gonzales was notified of certain violations before he testified in Congress, the Attorney General resigned in September 2007.
OIG investigated the use of NSLs, and found that a number of violations had occurred. Between 2003 and 2005, the FBI reported 26 possible violations of which 22 were the result of FBI errors. In 2006, the FBI reported another 84 possible violations, 14 of which were the result of third party errors. OIG argues that the large increase in the reporting of violations between the two periods may be explained by the wide attention the first report received, leading the FBI to more carefully examine NSL use. A separate audit performed by OIG found additional possible violations not reported by the FBI. Specifically, OIG found that some 1,000 investigative files contained possible violations (Slater 2007). Yet, the violations mostly resulted from confusion over NSL issuance procedures and requirements for reporting violations, the receipt and use of information beyond the authorized time period of the request, and failure to verify if the information received matched the request. Thus, one may argue that the violations are not the result of intentional civil liberties violations but are reflective of the need for improved training and communication of proper procedures. Also, the improper uses identified by the FBI and by OIG remain relatively low as compared to the total number of NSLs. Over the entire period covering 2003 through 2006, the total number of NSL requests issued by the FBI was no less than an estimated 192,499.
The Culture of Fear
The prior analysis shows that civil liberties claims are not only a function of actual violations, but also result from a culturally entrenched fear of counterterrorism and the power of surveillance. In such a hyper-sensitive civil liberties culture, there is an intimate and ironic relationship between fear and surveillance. Fear justifies and motivates the use of surveillance, while the expansion of surveillance produces a cultural fear of its capabilities and consequences. The notion of a culturally embedded fear of counterterrorism in the United States can be substantiated on the basis of national survey data such as those provided by Gallup and the Pew Research Center, two widely respected organizations conducting public opinion polls.
First, it is noteworthy that since the terrorist attacks of September 11, 2001, Americans have decreasingly perceived of terrorism as a top priority facing the country. Gallup data show that just before the attacks of 9/11, less than half of 1% of Americans mentioned terrorism as the most important problem facing the United States today (Newport 2010). Not surprisingly, that number rose dramatically to 46% in October 2001. But since then, Americans decreasingly perceive of terrorism as a central problem facing the country. By January 2003, the number of Gallup respondents seeing terrorism as a top concern had already declined to about 10%, and by September 2010 only 1% of Americans surveyed mentioned terrorism as a top issue of concern for the country. Similarly, Gallup polls show that Americans decreasingly perceive it to be likely that a terrorist attack will take place in their country (Saad 2011). After the events of 9/11, no less than 85% of those surveyed thought another terrorist attack against the United States was likely, a number that decreased to 52% by 2002 and stood at 38% in 2011.
Second, along with a dwindling fear of terrorism since 9/11, data show that Americans express considerable concerns over counterterrorism measures and are less willing to accept such measures in the name of the fight against terrorism. Since the events of September 11, Gallup polls show, US citizens increasingly less favor counterterrorism measures that might violate civil liberties (Gallup 2013). In January 2002 no less than 47% of surveyed Americans stated that the government could take necessary steps against terrorism even if civil liberties were violated, but by 2011 only 25% approved and no less than 71% disapproved of such measures. Also, whereas in June of 2002 only 11% of respondents felt that the administration had gone too far in restricting civil liberties, 41% felt that this was the case as early as May 2006.
Data from the Pew Research Center substantiate these findings by showing that increasingly fewer Americans feel that it is necessary to give up civil liberties to curb terrorism (Doherty 2013). In the immediate aftermath of 9/11, a majority of 55% of those surveyed stated it was necessary to give up civil liberties in the name of counterterrorism, while 35% expressed the opposite viewpoint. By 2011, the situation was reversed, with a majority of 54% stating it would not be necessary to curb civil liberties and 40% expressing the opposite opinion.
Successful counterterrorism interventions by security agencies can be expected to influence attitudes. Recently noteworthy, for instance, is the sympathy many Americans showed towards law enforcement following the capture of the perpetrators of the Boston Marathon bombings in April 2013. Yet, such situational factors can easily be offset by other, more problematic interventions and more long-standing suspicions towards government power. Favorable sentiments created by the immediacy of the problems posed by a terrorist suspect being on the loose in Boston cannot be expected to carry over into a general embrace of a more permanent expansion of law enforcement powers because of long-standing American concerns over privacy.
Indeed, Gallup data show that Americans have since 9/11 steadily affirmed their concerns over privacy and civil liberties (Gallup 2013). Findings show that from 2003 to 2011 some 65% to 71% of respondents feel that government actions against terrorism should not violate Americans’ civil liberties. Such concerns over privacy are also found to be felt among large segments of the American public with respect to both government as well as private-business conduct, sentiments which strikingly unite respondents who identify as Republican, Democratic, or Independent (Doherty 2013). In 2012, respectively 72%, 74%, and 77% of respondents from these groups stated that business was collecting too much personal information, while 72%, 60%, and 65% stated that the government was collecting too much information.
A surge in privacy concerns among Americans has most recently been experienced since Edward Snowden in June 2013 was reported to have leaked information about NSA surveillance programs, re-awakening the debate on the NSA Terrorist Surveillance Program that was secretly ordered by President George W. Bush in 2002 (Deflem 2010). Between June 1, 2013 and January 18, 2014, major newspapers in Lexis-Nexis published no less than 3,266 stories with the term ‘privacy’ in the headline, up from 999 in the prior one-year period. Not surprisingly, survey data show that a large majority, 90%, of Americans presently feel that they have less privacy than previous generations when it comes to personal information (Bowman and Rugg 2013). Also, Gallup data collected in June 2013 show that a majority of 53% of Americans disapprove of government surveillance programs (with 37% approving), even though sentiments were split on whether Snowden did the right thing or not, with 44% claiming he did the right thing and 42% that he was wrong to have leaked classified information (Newport 2013). It is hereby not so much striking to note that presumed NSA spying activities have moved to the foreground of public debate since Snowden’s accusations as that the extent and intensity of this debate reveal the cultural sensitivities surrounding surveillance programs regardless of whether violations of personal rights actually took place.
Surveillance and counterterrorism activities are by definition oftentimes secretive and raise sensitive matters on rights and justice. Such issues are particularly important in a democratic society where violations of civil liberties by intelligence and other security agencies, even in an area as pressing as terrorism, cannot be condoned. Yet, a democratically committed society will also be more likely to produce a cultural climate in which concerns surrounding privacy and civil liberties can lead to claims over rights-related violations that cannot be substantiated on the basis of actual incidents of such violations. Our findings in this paper suggest that the amount of civil rights violations in the post-9/11 context is relatively small when compared to the alleged threat to civil liberties suggested in the surveillance discourse among academicians and advocates.
In view of our analysis, it is important for social-science scholars to understand the social realities involved with surveillance and counterterrorism as involving a subjective dimension related to legitimacy —especially the lack thereof— that co-exists with objective conditions that are rooted in technology and bureaucratic development. For whereas government and private measures against terrorism and other security concerns have certain measurable consequences, it is also to be noted that they are evaluated by a citizenry that is more or less concerned about such issues irrespective of actual violations. The need is thereby affirmed for sociologists to examine the social conditions affecting security measures regardless of stated motives. Since the classic contributions of Emile Durkheim on the role of law and punishment (Durkheim 1893), it can no longer suffice to view counterterrorism (and other forms of social control) as a mere dependent variable related to terrorism (and other crimes). Instead, as the analysis in this paper shows, a more useful framework examines the entire range of factors shaping surveillance activities, ranging from situational factors to deep-rooted cultural traditions.
From the viewpoint of civil liberties, our study should not be misinterpreted to assume that we would suggest that the contemporary practices of surveillance and counterterrorism in post-9/11 America (and in other nations across the world) would not have the potential and actuality to violate civil rights. Our analysis does not imply that the threats that surveillance programs and practices may pose to civil liberties should be dismissed, a priori or otherwise. Instead, we suggest that a cultural fear of surveillance and counterterrorism may be so pervasive and deep-rooted that it leads to overstate the amount of civil liberties violations. The culturally embedded assumption that surveillance is powerful and harmful to rights and liberties, which is also sustained by claims-making by surveillance scholars and activists alike, may drive civil liberties allegations independent from actual violations thereof. In the interest of both social-science analysis as well as civil liberties protection, surveillance scholars and civil liberties advocates would do well to not overestimate and speculate, without evidence, on the powers of surveillance and counterterrorism outside of the social context in which relevant practices as well as their study and debate take place.
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