Al-Qaeda has a new strategy. Obama needs one, too.

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By Bruce Hoffman
Sunday, January 10, 2010; B01

In the wake of the failed Christmas Day airplane bombing and the killing a few days later of seven CIA operatives in Afghanistan, Washington is, as it was after the Sept. 11, 2001, attacks, obsessed with "dots" -- and our inability to connect them. "The U.S. government had sufficient information to have uncovered this plot and potentially disrupt the Christmas Day attack, but our intelligence community failed to connect those dots," the president said Tuesday.

But for all the talk, two key dots have yet to be connected: Umar Farouk Abdulmutallab, the alleged Northwest Airlines Flight 253 attacker, and Humam Khalil Abu-Mulal al-Balawi, the trusted CIA informant turned assassin. Although a 23-year-old Nigerian engineering student and a 36-year-old Jordanian physician would seem to have little in common, they both exemplify a new grand strategy that al-Qaeda has been successfully pursuing for at least a year.

Throughout 2008 and 2009, U.S. officials repeatedly trumpeted al-Qaeda's demise. In a May 2008 interview with The Washington Post, then-CIA Director Michael Hayden heralded the group's "near strategic defeat." And the intensified aerial drone attacks that President Obama authorized against al-Qaeda targets in Pakistan last year were widely celebrated for having killed over half of its remaining senior leadership.

Yet, oddly enough for a terrorist movement supposedly on its last legs, al-Qaeda late last month launched two separate attacks less than a week apart -- one failed and one successful -- triggering the most extensive review of U.S. national security policies since 2001. Al-Qaeda's newfound vitality is the product of a fresh strategy that plays to its networking strength and compensates for its numerical weakness. In contrast to its plan on Sept. 11, which was to deliver a knock-out blow to the United States, al-Qaeda's leadership has now adopted a "death by a thousand cuts" approach. There are five core elements to this strategy.

First, al-Qaeda is increasingly focused on overwhelming, distracting and exhausting us. To this end, it seeks to flood our already information-overloaded national intelligence systems with myriad threats and background noise. Al-Qaeda hopes we will be so distracted and consumed by all this data that we will overlook key clues, such as those before Christmas that linked Abdulmutallab to an al-Qaeda airline-bombing plot.

Second, in the wake of the global financial crisis, al-Qaeda has stepped up a strategy of economic warfare. "We will bury you," Soviet Premier Nikita Khrushchev promised Americans 50 years ago. Today, al-Qaeda threatens: "We will bankrupt you." Over the past year, the group has issued statements, videos, audio messages and letters online trumpeting its actions against Western financial systems, even taking credit for the economic crisis. However divorced from reality these claims may be, propaganda doesn't have to be true to be believed, and the assertions resonate with al-Qaeda's target audiences.

Heightened security measures after the Christmas Day plot, coupled with the likely development of ever more sophisticated passenger-screening and intelligence technologies, stand to cost a lot of money, while the war in Afghanistan constitutes a massive drain on American resources. Given the economic instability here and abroad, al-Qaeda seems to think that a strategy of financial attrition will pay outsize dividends.

Third, al-Qaeda is still trying to create divisions within the global alliance arrayed against it by targeting key coalition partners. Terrorist attacks on mass-transit systems in Madrid in 2004 and London in 2005 were intended to punish Spain and Britain for participating in the war in Iraq and in the U.S.-led war on terrorism, and al-Qaeda continues this approach today. During the past two years, serious terrorist plots orchestrated by al-Qaeda's allies in Pakistan, meant to punish Spain and the Netherlands for participating in the war on terrorism, were thwarted in Barcelona and Amsterdam.

Meanwhile, in Afghanistan, suicide bombers and roadside explosives target contingents from countries such as Britain, Canada, Germany and the Netherlands, where popular support for deployments has waned, in hopes of hastening their withdrawal from the NATO-led coalition.

Fourth, al-Qaeda is aggressively seeking out, destabilizing and exploiting failed states and other areas of lawlessness. While the United States remains preoccupied with trying to secure yesterday's failed state -- Afghanistan -- al-Qaeda is busy staking out new terrain. The terrorist network sees failing states as providing opportunities to extend its reach, and it conducts local campaigns of subversion to hasten their decline. Over the past year, it has increased its activities in places such as Pakistan, Algeria, the Sahel, Somalia and, in particular, Yemen.

Once al-Qaeda has located or helped create a region of lawlessness, it guides allies and related terrorist groups in that area, boosting their local, regional and -- as the Northwest Airlines plot demonstrated -- international attack capabilities. Although the exact number of al-Qaeda personnel in each of these areas varies, and in some cases may include no more than a few hard-core terrorists, they perform a critical force-multiplying function. Their help to indigenous terrorist groups includes support for attacks -- by providing weapons, training and intelligence -- and, equally critical, assistance in disseminating propaganda, such as by building Web sites and launching online magazines modeled on al-Qaeda's.

Fifth and finally, al-Qaeda is covetously seeking recruits from non-Muslim countries who can be easily deployed for attacks in the West. The group's leaders see people like these -- especially converts to Islam whose appearances and names would not arouse the same scrutiny that persons from Islamic countries might -- as the ultimate fifth column. Citizens of countries that participate in the U.S. visa-waiver program are especially prized because they can move freely between Western countries and blend easily into these societies.

Al-Qaeda has become increasingly adept at using the Internet to locate these would-be terrorists and to feed them propaganda. During the past 18 months, American and British intelligence officials have said, well over 100 individuals from such countries have graduated from terrorist training camps in Pakistan and have been sent West to undertake terrorist operations.

In adopting and refining these tactics, al-Qaeda is shrewdly opportunistic. It constantly monitors our defenses in an effort to identify new gaps and opportunities that can be exploited. Its operatives track our congressional hearings, think-tank analyses and media reports, all of which provide strategic intelligence. By coupling this information with surveillance efforts, the movement has overcome many of the security measures we have put in its path.

A survey of terrorist incidents in the past seven months alone underscores the diversity of the threats arrayed against us and the variety of tactics al-Qaeda is using. These incidents involved such hard-core operatives as Balawi, the double agent who played American and Jordanian intelligence to kill more CIA agents than anyone else has in more than a quarter-century. And sleeper agents such as David Headley, the U.S. citizen whose reconnaissance efforts for Lashkar-i-Taiba, a longtime al-Qaeda ally, were pivotal to the November 2008 suicide assault in Mumbai. And motivated recruits such as Abdulmutallab, the alleged Northwest Airlines bomber, and Najibullah Zazi, the Afghan-born U.S. resident arrested in New York last September and charged with plotting a "Mumbai on the Hudson" suicide terrorist operation. And "lone wolves" such as Maj. Nidal Hassan, accused of killing 13 people at Fort Hood in November, and Abdulhakim Muhammad, a convert to Islam who, after returning from Yemen last June, killed one soldier and wounded another outside an Army recruiting center in Little Rock.

But while al-Qaeda is finding new ways to exploit our weaknesses, we are stuck in a pattern of belated responses, rather than anticipating its moves and developing preemptive strategies. The "systemic failure" of intelligence analysis and airport security that Obama recently described was not just the product of a compartmentalized bureaucracy or analytical inattention, but a failure to recognize al-Qaeda's new strategy.

The national security architecture built in the aftermath of Sept. 11 addresses yesterday's threats -- but not today's and certainly not tomorrow's. It is superb at reacting and responding, but not at outsmarting. With our military overcommitted in Iraq and Afghanistan and our intelligence community overstretched by multiplying threats, a new approach to counterterrorism is essential.

"In the never-ending race to protect our country, we have to stay one step ahead of a nimble adversary," Obama said Thursday. He spoke of the need for intelligence and airport security reform, but he could have, and should have, been talking about the need for a new strategy to match al-Qaeda's.

Remarkably, more than eight years after Sept. 11, we still don't fully understand our dynamic and evolutionary enemy. We claim success when it is regrouping and tally killed leaders while more devious plots are being hatched. Al-Qaeda needs to be utterly destroyed. This will be accomplished not just by killing and capturing terrorists -- as we must continue to do -- but by breaking the cycle of radicalization and recruitment that sustains the movement.

Bruce Hoffman is a professor of security studies at Georgetown University and a senior fellow at the U.S. Military Academy's Combating Terrorism Center.He will be online to chat with readers on Monday at 11 a.m. Submit your questions and comments before or during the discussion.

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5 myths about keeping America safe from terrorism

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By Stephen Flynn
Sunday, January 3, 2010; B03

With President Obama declaring a "systemic failure" of our security system in the wake of the attempted Christmas bombing of a Detroit-bound airliner, familiar arguments about what can and should be done to reduce America's vulnerabilities are again filling the airwaves, editorial pages and blogosphere. Several of these arguments are based on assumptions that guided the U.S. response to the Sept. 11, 2001, attacks -- and unfortunately, they are as unfounded now as they were then. The biggest whopper of all? The paternalistic assertion that the government can keep us all safe without our help.

1. Terrorism is the gravest threat facing the American people.

Americans are at far greater risk of being killed in accidents or by viruses than by acts of terrorism. In 2008, more than 37,300 Americans perished on the nation's highways, according to government data. Even before H1N1, a similar number of people died each year from the seasonal flu. Terrorism is a real and potentially consequential danger. But the greatest threat isn't posed by the direct harm terrorists could inflict; it comes from what we do to ourselves when we are spooked. It is how we react -- or more precisely, how we overreact -- to the threat of terrorism that makes it an appealing tool for our adversaries. By grounding commercial aviation and effectively closing our borders after the 2001 attacks, Washington accomplished something no foreign state could have hoped to achieve: a blockade on the economy of the world's sole superpower. While we cannot expect to be completely successful at intercepting terrorist attacks, we must get a better handle on how we respond when they happen.

2. When it comes to preventing terrorism, the only real defense is a good offense.

The cornerstone of the Bush administration's approach to dealing with the terrorist threat was to take the battle to the enemy. But offense has its limits. We still aren't generating sufficiently accurate and timely tactical intelligence to adequately support U.S. counterterrorism efforts overseas. And going after terrorists abroad hardly means they won't manage to strike us at home. Just days before the attempted bombing of Northwest Airlines Flight 253, the United States collaborated with the Yemeni government on raids against al-Qaeda militants there. The group known as al-Qaeda of the Arabian Peninsula is now claiming responsibility for having equipped and trained Umar Farouk Abdulmutallab, who allegedly tried to blow up the flight. The group is also leveraging the raids to recruit militants and mount protests against Yemen's already fragile central government.

At the same time, an emphasis on offense has often come at the expense of investing in effective defensive measures, such as maintaining quality watch lists, sharing information about threats, safeguarding such critical assets as the nation's food and energy supplies, and preparing for large-scale emergencies. After authorities said Abdulmutallab had hidden explosives in his underwear, airline screeners held up flights to do stepped-up passenger pat-downs at boarding gates -- pat-downs that inevitably avoided passengers' crotches and buttocks. This kind of quick fix only tends to fuel public cynicism about security efforts. But if we can implement smart security measures ahead of time (such as requiring refineries next to densely populated areas to use safer chemicals when they manufacture high-octane gas), we won't be incapacitated when terrorists strike. Strengthening our national ability to withstand and rapidly recover from terrorism will make the United States a less appealing target. In combating terrorism, as in sports, success requires both a capable offense and a strong defense.

3. Getting better control over America's borders is essential to making us safer.

Our borders will never serve as a meaningful line of defense against terrorism. The inspectors at our ports, border crossings and airports have important roles when it comes to managing immigration and the flow of commerce, but they play only a bit part in stopping would-be attackers. This is because terrorist threats do not originate at our land borders with Mexico and Canada, nor along our 12,000 miles of coastline. They originate at home as well as abroad, and they exploit global networks such as the transportation system that moved 500 million cargo containers through the world's ports in 2008. Moreover, terrorists' travel documents are often in perfect order. This was the case with Abdulmutallab, as well as with shoe-bomber Richard Reid in 2001. Complaints about porous borders may play well politically, but they distract us from the more challenging task of forging international cooperation to strengthen safeguards for our global transportation, travel and financial systems. They also sidestep the disturbing fact that the number of terrorism-related cases involving U.S. residents reached a new high in 2009.

4. Investing in new technology is key to better security.

Not necessarily. Technology can be helpful, but too often it ends up being part of the problem. Placing too much reliance on sophisticated tools such as X-ray machines often leaves the people staffing our front lines consumed with monitoring and troubleshooting these systems. Consequently, they become more caught up in process than outcomes. And as soon procedures become routine, a determined bad guy can game them. We would do well to heed two lessons the U.S. military has learned from combating insurgents in Iraq and Afghanistan: First, don't do things in rote and predictable ways, and second, don't alienate the people you are trying to protect. Too much of what is promoted as homeland security disregards these lessons. It is true that technology such as full-body imaging machines, which have received so much attention in the past week, are far more effective than metal detectors at screening airline passengers. But new technologies are also expensive, and they are no substitute for well-trained professionals who are empowered and rewarded for exercising good judgment.

5. Average citizens aren't an effective bulwark against terrorist attacks.

Elite pundits and policymakers routinely dismiss the ability of ordinary people to respond effectively when they are in harm's way. It's ironic that this misconception has animated much of the government's approach to homeland security since Sept. 11, 2001, given that the only successful counterterrorist action that day came from the passengers aboard United Airlines Flight 93. These passengers didn't have the help of federal air marshals. The Defense Department's North American Aerospace Defense Command didn't intercept the plane -- it didn't even know the airliner had been hijacked. But by charging the cockpit over rural Pennsylvania, these private citizens prevented al-Qaeda terrorists from reaching their likely target of the U.S. Capitol or the White House. The government leaders whose constitutional duty is "to provide for the common defense" were defended by one thing alone -- an alert and heroic citizenry.

This misconception is particularly reckless because it ends up sidelining the greatest asset we have for managing the terrorism threat: the average people who are best positioned to detect and respond to terrorist activities. We have only to look to the attempted Christmas Day attack to validate this truth. Once again it was the government that fell short, not ordinary people. A concerned Nigerian father, not the CIA or the National Security Agency, came forward with crucial information. And the courageous actions of the Dutch film director Jasper Schuringa and other passengers and crew members aboard Flight 253 thwarted the attack.

Stephen Flynn is the president of the Center for National Policy and author of "The Edge of Disaster: Rebuilding a Resilient Nation."

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Failed attack on jet renews concerns over lack of TSA chief

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By Michael D. Shear
Washington Post Staff Writer
Wednesday, December 30, 2009; A11

The failed terrorist attack on a packed airliner on Christmas has renewed concerns about the lack of stable leadership at the Transportation Security Administration, the U.S. agency on the front lines in preventing exactly that kind of incident.

The TSA has been operating without a permanent top official for almost a year, a result of months of delay by the Obama administration and a political power play by a Republican senator opposed to collective bargaining by government workers.

The result, according to some transportation and security analysts, is an agency unable to muster the political will to make the alterations necessary to adapt to changing international threats.

"What doesn't get done as well is leadership and confident direction-setting," said Stewart A. Baker, who was a top official at the Department of Homeland Security in the Bush administration. "There are plenty of competent people at TSA. But when you are not a political appointee, you have to walk on eggshells a little."

Baker and others say they do not think the security failure of Northwest Airlines Flight 253 would have been avoided if President Obama's nominee -- former FBI agent and police detective Erroll Southers -- had been on the job Friday.

But they say they doubt that Acting Administrator Gale D. Rossides, a Bush appointee, has the political connections within the Obama White House and the Democratic Congress to reinvent the agency in ways that get ahead of terrorists.

"She's competent and knows the system well," said one transportation expert, who spoke on the condition of anonymity because he regularly works with TSA officials. "But she doesn't want to rock the boat. She's basically there to keep the trains on the tracks."

Several analysts said Tuesday that the events of the past week highlight the need for a permanent TSA administrator to move quickly in a number of areas. They say the TSA must find the resources -- financial and otherwise -- to design a "checkpoint of the future" that anticipates emerging threats and to phase out metal-detector technology that dates to the early 1980s.

The agency also needs to design better ways to share and interpret the mountain of passenger data collected by U.S. and foreign agencies, they said. The suspect in Friday's incident, Umar Farouk Abdulmutallab, would not have been allowed to board the flight if warning signs about him had been properly shared, Obama said Tuesday.

And some experts say the new TSA administrator must be deeply knowledgeable about security and terrorism, and more willing to be aggressive in shaking up a seven-year-old bureaucracy that does not respond nimbly to current threats.

"It's critical," said Michael Boyd, an airline consultant based in Colorado. "We need an [H. Norman] Schwarzkopf type there who's going say, 'I'm going to start thinking like a terrorist.' We don't have that."

A spokesman for the TSA declined to comment on the critique.

White House communications director Dan Pfeiffer defended Rossides on Tuesday but reiterated the administration's demand that Sen. Jim DeMint (R-S.C.) stop blocking Southers's nomination.

"The acting TSA administrator is very able, and we have a solid team of professionals at TSA," Pfeiffer said. "But Senator DeMint and others should put their short-term political interests aside and allow the Senate vote on the confirmation of the president's nominee to head the agency."

Obama nominated Southers on Sept. 11, nearly eight months after taking office, a delay that White House officials say was necessary to identify "the appropriate candidate" for the job.

In the wake of Friday's incident, Republicans have criticized the TSA and the Obama administration. But one of their own has single-handedly prevented new leadership at the agency. DeMint has refused to allow a vote on the nomination as long as Obama insists on permitting TSA workers to participate in collective bargaining negotiations, as other unionized government workers do.

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In an interview on "Fox News Sunday," DeMint accused the administration of being intent on "unionizing and submitting our airport security to union bosses [and] collective bargaining."

Senate Majority Leader Harry M. Reid (D-Nev.) criticized Republicans on Tuesday, accusing them of "playing politics with national security" by stalling the nomination.

"Despite his qualifications and being reported out by two Senate committees earlier this year, Republicans have decided to play politics with this nomination by blocking final confirmation," Reid said in a statement. "Not only is this a failed strategy, but a dangerous one as well with serious potential consequences for our country."

Reid vowed to force the nomination to a vote next month. But until that happens, or DeMint relents, the top TSA post will go unfilled.

In addition, the Senate has yet to decide when it will vote on Obama's choice to head the Customs and Border Protection agency, another key post in the fight against terrorism.

Longtime observers of airport security say the TSA vacancy will complicate efforts to implement effective procedures against efforts by terrorists to breach the system.

"During a time when security is so important and we need to think about the strategy going forward, we need to push politics aside," said Steve Lott, a spokesman for the International Air Transport Association.

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Former Guantanamo detainees fuel growing al-Qaeda cell

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By Sudarsan Raghavan
Washington Post Foreign Service
Wednesday, December 30, 2009; A03

SANAA, YEMEN -- Former detainees of the U.S. prison in Guantanamo Bay, Cuba, have led and fueled the growing assertiveness of the al-Qaeda branch that claimed responsibility for the attempted Christmas Day bombing of a U.S. airliner, potentially complicating the Obama administration's efforts to shut down the facility.

They include two Saudi nationals: the deputy leader of al-Qaeda in the Arabian Peninsula, Said Ali al-Shihri, and the group's chief theological adviser, Ibrahim Suleiman al Rubaish. Months after their release to Saudi Arabia, both crossed the kingdom's porous border into Yemen and rejoined the terrorist network.

Shihri and Rubaish were released under the Bush administration, as was a Yemeni man killed in a government raid this month while allegedly plotting an attack on the British Embassy. A Yemeni official said Tuesday that the government thinks he is the first Yemeni to have joined al-Qaeda in the Arabian Peninsula after being released from Guantanamo.

That a group partially led by former Guantanamo detainees may have equipped and trained Nigerian bombing suspect Umar Farouk Abdulmutallab is likely to raise more questions about plans to repatriate those prisoners to Yemen. Six were released last week; 80 Yemenis are now left at Guantanamo, nearly half the remaining detainee population. Many are heavily radicalized, with strong ties to extremist individuals or groups in Yemen, said U.S. officials and terrorism analysts.

Republicans have in recent months urged the Obama administration to rethink sending detainees to Yemen. They have cited al-Qaeda's growing footprint in the country, its instability and the case of Maj. Nidal M. Hasan, who is charged with killing 13 people at Fort Hood, Tex., after exchanging e-mails with a radical Yemeni American cleric.

"This is a very dangerous policy that threatens the safety and security of the U.S. people," said Rep. Frank R. Wolf (R-Va.).

A senior Obama administration official, speaking on the condition of anonymity, said al-Qaeda has used the prison "as a rallying cry and recruiting tool." Closing the facility, the official said, "is a national security imperative."

A second administration official said the government had little choice with the six detainees released last week. A federal judge had already ordered one to be released. The officials said the government concluded it did not have enough evidence to win against the remaining five in hearings in which the detainees had challenged their imprisonment under the doctrine of habeas corpus. The prospect of losing in federal court is likely to trigger other releases, the official said.

"We do not want a situation where the executive is defying the courts," the official said. "That's a recipe for a constitutional crisis."

Wolf, who did not object when the Bush administration repatriated 14 Yemeni detainees to their homeland, said that "conditions in Yemen have dramatically changed" with the emergence of al-Qaeda in the Arabian Peninsula. Wolf added that he had access to classified biographies of the six Yemenis sent back last week.

"Did they read the bios? They are dangerous people," Wolf said.

A third administration official, also speaking on the condition of anonymity, said the Yemenis sent back had been carefully screened to assess their potential for being recruited by al-Qaeda upon their return. He also expressed confidence in the Yemeni government's ability to handle their reintegration: "We have been exceptionally pleased with the dialogue and cooperation with Yemen over the last 11 months."

The Yemeni former Guantanamo detainee who joined al-Qaeda was among four suspects killed by Yemeni forces in a Dec. 17 raid north of the capital, according to a Yemeni official and a human rights activist. Hani Abdo Shaalan, who was released from the U.S. facility in June 2007, and three other suspected militants were planning to bomb the British Embassy and other Western sites, said a Yemeni official who was briefed on the operation.

Shaalan, 30, had traveled to Afghanistan by way of Pakistan in July 2001. He was searching for work, according to his Combatant Status Review Tribunal. He eventually found work as a chef's assistant in a Taliban camp and was at Tora Bora during the U.S. air campaign there. Pakistani forces captured him in their country, near the Afghan border.

Human rights lawyer Ahmed Amran, who assists the repatriated detainees, said Shaalan's family reported his disappearance last year.

After their release from Guantanamo, Shihri and Rubaish, both of whom trained and fought with al-Qaeda in Afghanistan, were sent to a Saudi rehabilitation program that uses dialogue and art therapy to reform militants. In February, the Saudi government released a list of 85 most wanted Saudi terrorists. At least 11 were graduates of the program, including Shihri and Rubaish.

Shihri, now 36, became al-Qaeda in the Arabian Peninsula's deputy leader after the Yemeni and Saudi Arabian branches of al-Qaeda merged in January. Rubaish, now 30, is the branch's mufti, or Islamic scholar, responsible for religious guidance and theological justification for committing violence.

Another former Guantanamo detainee, Mohammed al-Awfi, was one of the merged group's key field commanders for months. He, too, had gone through the Saudi rehabilitation program, then fled to Yemen along with Shihri. In January, he appeared on a video by the group announcing that he had joined al-Qaeda. But a month later, his relatives in Saudi Arabia persuaded him to surrender to Saudi authorities.

Yemen has struggled with its handling of former militants.

A prison-based rehabilitation program was widely considered a failure. Graduates had no follow-up support, and many later traveled to fight in Iraq and Afghanistan. Some were thought to have taken part in a September 2008 al-Qaeda attack on the U.S. Embassy in Yemen that killed 16, including six assailants.

Other suspects became radicalized inside Yemeni prisons and joined al-Qaeda, according to human rights activists. All the surviving suspected al-Qaeda militants involved in the 2000 bombing of the USS Cole in the southern city of Aden, which killed 17 American sailors, have either been released by Yemen's government or escaped in a 2006 jailbreak from a maximum-security prison. Among those who escaped was Nasser al-Wuhayshi, the current leader of al-Qaeda in the Arabian Peninsula.

Yemeni officials say they are capable of rehabilitating detainees but lack the resources.

Amran, the human rights lawyer, said that he does not know why Shaalan joined al-Qaeda but that the government needs to improve its reintegration programs. "The Yemen government doesn't assist detainees. No employer wants to hire them without a guarantee," said Amran, who works for the Yemeni group Hood. "If there's no help for the detainees, they will join al-Qaeda."

Staff writer Peter Finn and staff researcher Julie Tate contributed to this report.

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Many airport security improvements would require more intrusion, oversight

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By Robert O'Harrow Jr. and Spencer S. Hsu
Washington Post Staff Writer
Wednesday, December 30, 2009; A03

Aviation security could be improved with the use of databases containing passengers' personal information, technology such as body scans and better information-sharing. But the changes would require greater tolerance of intrusions and far more effective government oversight, security specialists say.

Passengers probably would have to become accustomed to the feeling that authorities know a lot more about them, their families and their associates, and that they are being looked at by machines in intimate ways that once were unthinkable.

While the aviation security system can never be rendered inviolable, experts say, the lapses that allowed Umar Farouk Abdulmutallab to board his flight for Detroit on Christmas Day, allegedly packing enough plastic explosives to blow a hole in the plane, confirm repeated warnings about the chronic, costly shortcomings of government efforts to create better systems to screen travelers for bombs, weapons and other threats.

And since the failed attack, the debate about how to plug security gaps has provided new evidence of the tension between the desire to improve security and concerns about personal privacy.

Some security advocates say that, given the close call Friday, now is the time to redouble efforts to combine data systems, intelligence and high-tech scanning technology to improve screening. Terrorists won't be stopped by machines alone, the specialists say.

"They're not stupid. They know what we're looking for," said Stewart Baker, a former general counsel at the National Security Agency and a former assistant secretary for policy at the Department of Homeland Security. "We need to begin looking more carefully and in a more nuanced way for terrorists, not just weapons. . . . That means we're going to have to end up getting used to the idea that the people who do the screening will know more about you."

Stalled efforts

Specialists say much is already known about how to improve security, pointing to the profile-intensive approach used in Israel, as well as information projects undertaken soon after the Sept. 11, 2001, terrorist attacks. Those projects included an effort to build vast networks of supercomputers to instantly probe every passenger's background for clues about violent intentions.

But those efforts repeatedly foundered because of management missteps at the Department of Homeland Security and a backlash from privacy advocates and citizens who were wary of placing so much surveillance power in the hands of the government, according to government reports. The once-secret program known as CAPPS II, for example, was designed to use passengers' travel reservations, housing information, family ties, credit reports and other personal data to identify potential threats. But the program was sharply limited after protests against a Bush administration proposal that it be used to catch criminals as well as terrorists.

Privacy advocates said that if the government decides to embrace such a system more widely, it can be done only under exceedingly tight oversight and strict rules that mandate severe punishment for misuse.

"There has to be some evidence it will work," said James X. Dempsey, vice president for public policy at the Center for Democracy & Technology, a nonprofit advocacy group in Washington. "And then there has to be accountability when it's abused."

Explaining the delays

Homeland security officials acknowledge the setbacks but say they are committed to overcoming them. They say mandates to minimize the impact of security on the aviation industry, the infrastructure challenges of installing equipment in airports and persistent concerns about privacy have contributed to delays. At the same time, officials point out, improvements have been put in place over the past eight years, including a cohesive workforce of screeners, better detection equipment for baggage and a relatively quick screening process.

"Since 9/11, DHS and TSA have made significant improvements to aviation security technology. We are driven by the ever-evolving threat environment to have adaptable, flexible technology that can address multiple threats," said Homeland Security spokeswoman Amy Kudwa. "We are committed to working through the inherent challenges we face in deploying new technology that meets all of these needs, to ensure the safety and security of the traveling public."

After the 2001 attacks, federal officials also pledged to create machines to automatically detect explosives, sense whether passengers are lying and scan materials for threats. The Department of Homeland Security and intelligence agencies have spent billions to develop information-sharing networks and other security systems, including spending more than $795 million for development of high-tech checkpoint screening equipment.

But according to government reports, the mismanagement of research, concerns about privacy and cost, and opposition from industry and Congress have hindered the widespread deployment of the systems at airports in the United States and abroad.

Also, a plan to help focus the development of better screening technology and procedures -- including a risk-based assessment of aviation threats -- is almost two years overdue, according to a report this fall by the Government Accountability Office, the investigative arm of Congress.

"TSA cannot ensure that it is targeting the highest priority security needs at checkpoints; measure the extent to which deployed technologies reduce the risk of terrorist attacks; or make needed adjustments to its [Passenger Screening Program] strategy," the GAO report said.

Checkpoint machines

At least 10 checkpoint-screening technology projects have been in development by Homeland Security's science and technology office, none of which has been widely deployed. Those projects include an "explosives trace portal" that uses puffs of air to dislodge bits of explosive materials to be analyzed by sensors.

The Bush administration rushed the machines into airports in 2006, even though "TSA officials were aware that tests conducted during 2004 and 2005 on earlier ETP models suggested they did not demonstrate reliable performance in an airport environment," the GAO found. The TSA halted the deployment later that year "due to performance problems and high installation costs." Much of the equipment was later sent to warehouses.

Another machine, called a "whole body imager," was designed to peer underneath passengers' clothing to find threatening objects or materials. But critics complained about the intrusiveness of the machines, which have not been deployed as widely as planned.

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Additional Layer of Restrictions Is Imposed on Airline Passengers

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By MICHELINE MAYNARD and LIZ ROBBINS

In the wake of the terrorism attempt Friday on a Northwest Airlines flight, federal officials on Saturday imposed a new layer of restrictions on travelers that could lengthen lines at airports and limit the ability of international passengers to move about an airplane.

Among other steps being imposed, passengers on international flights coming to the United States will apparently have to remain in their seats for the last hour of a flight without any personal items on their laps. Overseas passengers will be restricted to only one carry-on item aboard the plane, and domestic passengers will probably face longer security lines.

The restrictions will again change the routine of air travel, which has undergone an upheaval since the terrorist attacks in New York and Washington in September 2001 and three attempts at air terrorism since then.

Just a day after the attempt on Friday, travelers at airports around the world began experiencing heightened screening in security lines. On one flight, from Newark Airport, flight attendants kept cabin lights on for the entire trip instead of dimming them for takeoff and landing.

The limits, which brought to mind some of the most stringent policies after the 2001 attacks, come at a difficult time for the airline industry.

Travel has declined about 20 percent since 2008 because of the economy, and airlines have been dealing with numerous delays the past week because of snowstorms on the East Coast and in the Midwest.

Airline industry executives said the new steps would complicate travel as vacationers return home from Christmas trips, and could also cause travelers to cancel plans for flights in 2010.

But the Homeland Security secretary, Janet Napolitano, said in a statement Saturday that passengers should proceed with their holiday plans and “as always, be observant and aware of their surroundings and report any suspicious behavior or activity to law enforcement officials.”

The Transportation Security Administration, which governs security at airports and on airplanes in the United States, had no immediate comment on the steps.

The T.S.A. planned to add more security resources as needed on a daily basis, a person with knowledge of the agency’s plans said. The person said travelers would not experience the same thing at every airport, and that the system would be unpredictable by design.

Two foreign airlines, Air Canada and British Airways, disclosed the steps in notices on their Web sites. The airlines said the rules had been implemented by government security agencies including the T.S.A.

“Among other things,” the statement in Air Canada’s Web site read, “during the final hour of flight customers must remain seated, will not be allowed to access carry-on baggage, or have personal belongings or other items on their laps.”

The suspect in the Friday attempt, identified as Umar Farouk Abdulmutallab, 23, tried to ignite his incendiary device in the final hour of the flight while the plane was descending into Detroit.

On its Web site, American Airlines said the T.S.A. had ordered new measures for flights departing from foreign locations to the United States, including mandatory screening of all passengers at airport gates during the boarding process. All carry-on items would be screened at security checkpoints and again at boarding, the airline said. It urged passengers to leave extra time for screening and boarding.

In effect, the restrictions mean that passengers on flights of 90 minutes or less would most likely not be able to leave their seats at all, since airlines do not allow passengers to walk around the cabin while a plane is climbing to its cruising altitude.

The new restrictions began to be instituted Saturday on flights from Canada and Europe to the United States. Air Canada said it was waiving fees for the first checked bag, and it told passengers to be prepared for delays, cancellations and missed connections because of the new limits.

At airport terminals Saturday, travelers recounted the immediate differences they experienced. Though passengers arriving from Frankfurt passed speedily through United States customs at Kennedy Airport in New York, they said that in Germany the security was intensified.

“I really was surprised,” Eva Clesle said about the level of scrutiny in Frankfurt, adding that officials had inspected backpacks by opening “every single zip.”

In Rochester, one passenger waiting in a security line said she saw other passengers removed for additional screening.

The security administration, created in the wake of the September 2001 terrorist attacks, has emergency power to impose restrictions on air travel without consulting the airlines. Its steps have undergone modification in the past, however.

After the 2001 attacks, passengers bound for or leaving Reagan National Airport in Washington were not allowed to leave their seats for the first and last 30 minutes of a flight. The restriction was lifted in 2005.

Passengers still have to remove their shoes before entering screening machines, however, a step instituted at many airports and subsequently made mandatory after Richard C. Reid, the so-called shoe bomber, tried to blow up an American Airlines flight from Paris to Miami in December 2001 by igniting explosives in his shoes.

Sarah Maslin Nir contributed reporting.

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U.S. antiterrorism laws causing delays for refugees - washingtonpost.com

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More than 18,000 people affected since 2001, report says

By N.C. Aizenman
Washington Post Staff Writer
Thursday, November 12, 2009

U.S. antiterrorism laws are being applied so strictly that thousands of refugees who fled persecution in their home countries and appear to pose no threat to the United States have had their asylum and immigration applications denied or indefinitely delayed, according to a report released Wednesday.

The study, by Human Rights First, a nonpartisan organization based in New York and Washington, documented cases in which people have been inexplicably labeled terrorists.

Sachin Karmakar, a Bangladeshi advocate for the rights of religious minorities, was recently granted asylum after facing political and religious harassment. But his application for permanent residency faces indefinite delay because he took part in his nation's successful struggle for independence in 1971.

A teenage girl who was forced to become a child soldier at 12 in the Democratic Republic of Congo and who faces threats for speaking out against her captors has had her asylum application snagged on the grounds that during the period she was kidnapped, she was a member of a terrorist group.

A refugee from Burundi, whom Human Rights First identified only by his first name, Louis, was detained for 20 months, although an immigration judge thought he qualified for asylum because he had provided "material support" to a terrorist organization when an armed rebel group robbed him of $4 and his lunch.

The report found that more than 18,000 refugees and asylum-seekers have been affected since 2001. Of those, at least 7,500 cases remain unresolved. Most involve people already in the United States who have filed for permanent residency or are trying to bring over family members. The Department of Homeland Security has placed their cases on indefinite hold rather than deporting those involved.

However, an undetermined number of people in similar circumstances who, for technical reasons, are pursuing their cases in immigration courts are at risk of being deported.

The report's author, Anwen Hughes, found that efforts by Congress and the Bush and Obama administrations to address the issue by creating a waiver system have moved at a glacial pace and continue to leave out huge categories of immigrants.

"It's been a very slow and unworkable process," Hughes said. Meanwhile, she said, "for a lot of people, the delay is not harmless. We have clients who are here but whose wives or children are stranded in very difficult, dangerous situations."

Brandon Prelogar, special adviser for refugee and asylum affairs in the Department of Homeland Security, is scheduled to speak about the issue on a panel in Washington on Thursday. He could not be reached for comment Wednesday.

The current situation is rooted in legal provisions dating to 1990. However, the Patriot Act of 2001 considerably expanded the scope of those affected by barring entry to refugees and asylum-seekers who were supporters not only of terrorist groups designated or listed by the State Department but also of "undesignated terrorist organizations." The term can be applied to almost anyone who has used force in self-defense against a military regime that does not permit peaceful opposition.

Immigration officials have broadened the provision even further by applying it retroactively to organizations that no longer exist or that renounced violence decades ago.

Those caught in the net have included members of Afghan militias that fought against the Soviet invasion with U.S. support; groups that fought the ruling military junta in Burma; virtually every Ethiopian and Eritrean political party past and present; the South Sudanese armed opposition movement that, after years of civil war, is the ruling party of an autonomous area; and the main democratic opposition party in Zimbabwe, whose leader has been praised by President Obama for his courage in standing up to that nation's strongman.

Although the government has offered waivers in some cases, the law continues to entangle even people who engaged in nonviolent activities on behalf of undesignated terrorist organizations -- such as giving speeches, distributing fliers or offering medical care -- or who provided minimal contributions, such as taking food to a relative in jail.

Hughes said that other immigration laws prohibit entry to immigrants who have violated human rights or are a danger to the United States. She said she hopes the report will persuade Congress to remove the "undesignated terrorist organization" provision from the law.

Predator Drones and Pakistan - The New Yorker

Jane Mayer on Predator Drones and Pakistan

In this week’s issue of the magazine, Jane Mayer writes about the Central Intelligence Agency’s use of drones to kill terrorist suspects in Pakistan—a program that the Obama Adminstration is relying upon more and more. (Subscribers can access the entire article; everyone else can buy access to this issue online.) Mayer spoke about the costs of a remote-controlled war, the C.I.A.’s lack of transparency, and the Pakistan’s complicated response.

How has the use of Predator drones by the United States changed the situation in Pakistan?

Well, there’s good news and bad news. According to the C.I.A., they’ve killed more than half of the twenty most wanted Al Qaeda terrorist suspects. The bad news is that they’ve inflamed anti-American sentiment, because they’ve also killed hundreds of civilians.

And how is it different than other uses of American force?

It’s not coming from the military. It’s a covert program run by the C.I.A. People know about Predator drones, but not that there are two programs. The U.S.-military program is an extension of conventional military force. The C.I.A. runs a secret targeted-killing program, which really is an unprecedented use of lethal force in places where we are not at war, such as Pakistan. It’s a whole new frontier in the use of force.

John Radsen, a former lawyer for the C.I.A., told me that [the C.I.A.] “doesn’t have much experience with killing. Traditionally, the agency that does that is the Department of Defense.” You’ve got a civilian agency involved in targeted killing behind a black curtain, where the rules of the game are unclear, to the rest of the world and also to us. We don’t know, for instance, who is on the target list. How do you get on the list? Can you get off the list? Who makes the list? What are the criteria? Where is the battlefield? Where does the battlefield end?

It originally seemed simple, because in the beginning it seemed like they would just go after Al Qaeda, but the target list has been growing, particularly in Pakistan.

How do these targeted killings not violate the U.S. ban on assassinations?

After 9/11, the Bush Administration declared that terrorism was no longer a crime; it was an extension of war. Soldiers are privileged to kill enemy combatants in a war, and America is legally allowed to defend itself. And these targeted killings became an extension of the global war on terror.

How long has there been drone activity in Pakistan? Is it new?

Toward the end of the Bush Administration, the drone program in Pakistan ramped up, but when Obama became President, he accelerated it even faster. It’s surprising, but the Obama Administration has carried out as many unmanned drone strikes in its first ten months as the Bush Administration did in its final three years. It’s the favorite weapon of choice right now against Al Qaeda, and for good reason: It’s been effective in killing a lot of people the U.S. wants to see dead.

What does Pakistan think of the drones?

Originally, the Pakistani people’s reaction to the U.S. drone strikes in their country was incredibly negative. Pakistanis rose up and complained that the program violated their sovereignty. So, to obtain Pakistani support—or at least the support of the Zardari government—the Obama Administration quietly decided last March to allow the Pakistani government to nominate some of its own targets. The U.S. has been and is involved in killing not just Al Qaeda figures, but Pakistani targets—people like Taliban leader Beitullah Mehsud who are enemies of the Pakistani state.

Are there any safeguards that prevent the U.S. from carrying out political vendettas for top Pakistani officials?

Well, the problem with this program is that it’s invisible; I would guess there must be all kinds of legal safeguards, and lawyers at the C.I.A. are discussing who we can kill and who we can’t, but none of that is available to the American people. It’s quite a contrast with the armed forces, because the use of lethal force in the military is a transparent process. There are after-action reports, and there’s a very obvious chain of command. We know where the responsibility runs, straight on up to the top of the government. This system keeps checks on abuses of power. There is no such transparency at the C.I.A.

How does the continued collateral damage from Predator drones square with General Stanley McChrystal’s order to the military to lay off the air strikes in Afghanistan and avoid civilian deaths?

Well, you could argue it either way. There is less collateral damage from a drone strike than there is from an F-16. According to intelligence officials, drones are more surgical in the way they kill—they usually use Hellfire missiles and do less damage than a fighter jet might.

At the same time, the fact that they kill civilians at all raises the same problem that McChrystal is trying to combat, which is that they incite people on the ground against the United States. When you’re trying to win a battle of hearts and minds, trying to win over civilian populations against terrorists, it can be counterproductive. That’s why [the former Petraeus adviser and counterinsurgency theorist] David Kilcullen wrote, “Every one of these dead non-combatants represents an alienated family, a new revenge feud, and more recruits for a militant movement.”

Are people in Pakistan scared to move around because of the drones?

According to some recent studies, terrorists are scampering around only at night and accusing each other of being spies and informing on one another. So it’s had the desired effect in unravelling terror cells.

If the C.I.A. doesn’t have experience killing people, who is piloting the drones?

It doesn’t take as much talent or experience or training to pilot a drone as it does to pilot a real plane. The skills are much like what you need to do well in a video game. And the C.I.A. has outsourced a lot of the drone piloting, which also raises interesting legal questions, because you not have only civilians running this program, but you may have people who are not even in the U.S. government piloting the drones.

You mention in your piece that drone pilots, who work from an office, suffer from combat stress.

Someone sitting at C.I.A. headquarters in Langley, Virginia, can view and home in on a target on the other side of the world with tremendous precision, even at night, and destroy it. Peter Singer, who wrote a book on robotic warfare, said that cubicle warriors experience the same stress as regular warriors in a real war. Detached killing still takes a tremendous emotional toll inside our borders.

Why do you think the Obama Administration chose to rely more on drones?

Basically because they can. It’s sort of the least bad option. They can’t get into the tribal areas of Pakistan where a lot of Al Qaeda suspects are thought to be hiding, but they can see them with these drones. So it’s the only way they can get at them.

But there are all kinds of unintended consequences. For one thing, these missile strikes could scatter Al Qaeda, and cells could move to other parts of Pakistan, maybe down toward Karachi, where the population is denser. There have been reports of people already starting to move there.

Also, if the United States can legally kill people from the sky in a country that we’re not at war with, other countries will argue they can do the same thing. And the people using those joysticks in Langley and the deserts of Nevada could now be considered under international law to be engaged in warfare, which means they can legally be retaliated against. It’s a new horizon.

What would the outlines of a more transparent drone program look like?

Michael Walzer, the political philosopher, has noted that when the United States goes about killing people, we usually know who they can kill and where the battlefield is. International lawyers are calling for a public revelation of who is on this list, where can we go after them, and how many people can we take out with them. They want to know the legal, ethical, and political boundaries of the program.

'War on Terror' II - Nation

Image by Creativity+ Timothy K Hamilton via Flickr

We know the rules by now, the strange conventions and stilted Kabuki scripts that govern our cartoon facsimile of a national security debate. The Obama administration makes vague, reassuring noises about constraining executive power and protecting civil liberties, but then merrily adopts whatever appalling policy George W. Bush put in place. Conservatives hit the panic button on the right-wing noise machine anyway, keeping the delicate ecosystem in balance by creating the false impression that something has changed. We've watched the formula play out with Guantánamo Bay, torture prosecutions and the invocation of "state secrets." We appear to be on the verge of doing the same with national security surveillance.

Last week, the Senate Judiciary Committee seemed to abandon hope of bringing any real change to the Patriot Act. A lopsided and depressingly bipartisan majority approved legislation that would reauthorize a series of expanded surveillance powers set to expire at the end of the year. Several senators had proposed that reauthorization be wedded to safeguards designed to protect the privacy of innocent Americans from indiscriminate data dragnets--but behind-the-scenes maneuvering by the Obama administration ensured that even the most modest of these were stripped from the final bill now being sent to the full Senate.

In September the Senate got off to a promising start. Only three provisions are actually slated for "sunset" this year: "lone wolf" authority to wiretap terror suspects unconnected with any foreign terror group; "roving" wiretaps that can follow a suspect across an indefinite number of phone lines and Internet accounts; and "Section 215" orders that can be used to compel third parties to turn over any "tangible thing" investigators believe may be relevant to a terrorism investigation. Yet several Democrats had signaled a desire to use the renewal process to undertake a much broader review of the post-9/11 surveillance architecture, including National Security Letters (NSLs)--a controversial tool that permits the mass acquisition of financial and telecommunications records without court order--and last year's sweeping amendments to the Foreign Intelligence Surveillance Act (FISA), which permit the executive branch to authorize broad interception of Americans' international communications with minimal court oversight. Democratic Senator Russ Feingold proposed an ambitious and comprehensive reform bill called the JUSTICE Act--which still would have reauthorized roving wiretaps and 215 orders--while Democratic Senator Patrick Leahy offered a more modest bill that nevertheless sought to narrow the nearly unlimited scope of NSLs and Section 215.

The renewal of the expiring provisions was always a fait accompli, though Fox News and some conservative columnists falsely claimed that Democrats were scheming to eliminate them entirely. Feingold had recommended permitting the as-yet-unused "lone wolf" provision to lapse, but at hearings on renewal last month Democratic Senator Sheldon Whitehouse didn't believe there was "any doubt" about the reapproval of all three. Rather, Whitehouse explained, the question was whether any "further refinements" might be needed to check potential abuses.

In public, the administration declared its openness to such "modifications." As well one might expect, considering that President Obama himself had co- sponsored legislation in 2005 containing many of the very same safeguards now in Feingold's bill. Even when, during the campaign, Obama had disappointed many of his supporters by voting for the very FISA Amendments Act he pledged to filibuster, he reassured them that as president he would revisit that "imperfect" bill. Civil libertarians understood that the more limited Leahy bill would provide the template for reform but had reason to hope some of the key provisions of Feingold's JUSTICE Act might be incorporated during markup.

It was not to be. When the Senate Judiciary Committee convened at the beginning of the month to start work on legislation, it became clear that the Obama administration had been waging a campaign behind the scenes to oppose any significant modifications to NSL or 215 authority--in particular, any requirement that investigators have "specific and articulable facts" tying records sought to terror suspects or their associates. In a last-minute switcheroo, Democratic Senator Dianne Feinstein swooped in with a substitute bill that gutted the core reforms of Leahy's modest bill. And it got worse. A week later, a series of further amendments offered by Republican Jeff Sessions watered down the final bill reported out of committee still further. Remarkably, the arch-conservative Sessions appears to have been taking dictation from the Obama administration, presumably to spare committee Democrats the indignity of further overt capitulation: the New York Times reported that his changes were "a verbatim transfer of the text of amendments the Obama administration had privately sent to Congress on Wednesday." An attempt by Feingold to amend the FISA Amendments Act--perhaps the most egregious of the post-9/11 expansions of executive branch surveillance authority--was promptly torpedoed by Leahy on procedural grounds.

The supposed rationale for rejecting these changes--many of which the very same Judiciary Committee had unanimously favored just four years earlier--was that any new limitations on broad search powers might interfere with an "ongoing investigation." During hearings, one Justice Department official had alluded to an "important, sensitive collection program" involving 215 orders, and Attorney General Eric Holder publicly implied--though he did not state outright--that the new powers had played a crucial role in the capture of alleged bomb plotter Najibullah Zazi.

But there is ample reason for doubt. According to a report on National Public Radio, intelligence officers became aware of Zazi thanks to a tip from Pakistani intelligence indicating that he had trained with Al Qaeda. Such a tip should have provided grounds for a full-blown FISA wiretap warrant, and would have far surpassed the mere "reasonable basis" to suspect a terror link that even the most aggressive reform proposals required for NSLs or 215 orders. Democratic Senator Dick Durbin complained that "the real reason for resisting this obvious, common-sense modification of Section 215 is unfortunately cloaked in secrecy," and worried that posterity would look unkindly on his colleagues once that cloak was lifted. Feingold, too, disputed that his reforms would hamper investigations, and hinted that classified briefings had revealed uses of Section 215 that he considered abuses of the power.

While it's impossible to know precisely which tools were pivotal in the Zazi investigation, or what difference the proposed reforms would have made, the intelligence community has recently shown it has few qualms about making strained claims of necessity to support expansion of its powers.

That power to spy on "lone wolf" terror suspects under the looser standards of FISA was originally justified by the claim that FBI agents were unable to search "twentieth hijacker" Zacarias Moussaoui's laptop before 9/11 for want of such power. Yet in 2003 a bipartisan Senate report concluded that this was untrue: in reality, FBI supervisors had "failed miserably" by misunderstanding the fully sufficient powers they already enjoyed under FISA. The law as written in September 2001 would have permitted them to obtain a warrant; and in fact, investigators later used precisely the same evidence they'd already gathered to obtain an ordinary criminal warrant on Moussaoui.

Or consider the 2005 investigation of Magdy Mahmoud Mostafa el-Nashar, a former acquaintance of the London transit bombers (later cleared of wrongdoing). An FBI agent had gone to obtain records from North Carolina State University, where el-Nashar had done a stint as a graduate student. With the records in hand, however, the agent got a call from FBI headquarters instructing him to return them and instead obtain the same documents using a National Security Letter. As anyone even remotely acquainted with NSLs would have known, however, they cannot be used for educational records--and indeed, agents had to improvise a form to make their request. The perplexed university properly denied the request, and another subpoena was obtained.

Though any such misuse of an NSL is supposed to be reported to an oversight board promptly, no such report was filed for more than a year. Yet within a week of the incident, it had somehow come to the attention of FBI Director Robert Mueller, who cited the "delay" as evidence that the Bureau's current NSL powers were inadequate.

The FISA Amendments Act is the successor to an even broader bill called the Protect America Act, which similarly gave the attorney general and director of national intelligence extraordinary power to authorize sweeping interception of Americans' international communications. It was hastily passed in 2007 amid claims that the secret FISA Court had issued a ruling that prevented investigators from intercepting wholly foreign communications that traveled across US wires. Former Director of National Intelligence Michael McConnell even claimed that FISA's restrictions had rendered it impossible to immediately eavesdrop on Iraqi insurgents who had captured several American soldiers. The New York Post quoted tearful parents of the captured men expressing their horror at the situation and a senior Congressional staffer who alleged that "the intelligence community was forced to abandon our soldiers because of the law."

Yet as a Justice Department official later admitted, the FISA law clearly placed no such broad restriction on foreign wire communications passing through the United States; rather, there had been a far more narrow problem involving e-mails for which the recipient's location could not be determined. And as James Bamford explained in his essential 2008 book, The Shadow Factory, the delay in getting wiretaps running on the suspected kidnappers was the result of a series of missteps at the Justice Department, not the limits of FISA--no surprise, since even when FISA does require a warrant, surveillance may begin immediately in emergencies if a warrant is sought later. (The suspected kidnappers, by the way, turned out not to have been the actual kidnappers.) Yet on the basis of such claims, a panicked Congress signed off on almost limitless authority to vacuum up international communications--authority that we already know has resulted in systematic "overcollection" of purely domestic conversations, and even resulted in the interception of former President Bill Clinton's e-mails.

In theory, the purpose of building "sunset" provisions into these new powers was to allow--indeed, to force--Congress to consider what changes might be needed in the event of such misuse. Given the incredible secrecy of intelligence investigations, this would be a dubious check even under ideal circumstances. But what's truly astonishing is that even known abuses don't seem to have given legislators second thoughts about resisting administration demands.

Among the reforms in Feingold's JUSTICE Act was a measure requiring targets of "roving" wiretaps to be identified, as is required under criminal wiretap statutes, rather than merely described. Unlike criminal taps, FISA eavesdropping tends to be extraordinarily broad, with any innocent communications picked up "minimized" later. Yet "minimization," the legal procedures meant to protect the privacy of innocent Americans when their communications are swept up in a FISA wiretap, does not mean deletion. In a 2003 case, US v. Sattar, prosecutors submitted 5,175 recordings made under FISA that had not been "minimized." Yet, faced with disclosure obligations at trial, it turned out that they were able to produce a far greater volume of recordings: more than 85,000 audio files.

Given that breadth, the risks inherent in "John Doe" warrants, which neither name a specific phone line or Internet account in advance nor identify a target, are obvious. Indeed, a 2005 Inspector General report on the FBI's translation backlogs revealed that among the eighty-seven years' worth of foreign language material recorded FISA in 2004 alone--a tiny fraction of what the NSA collects--there were an undisclosed number of "collections of materials from the wrong sources due to technical problems." Feingold's proposed change was not even publicly debated.

Still harder to justify is the unwillingness to rein in NSLs, now issued by the tens of thousands annually--the majority of which are for the records of US persons. The Senate did see fit to make some modest changes to the NSL gag orders that prohibit recipients from talking about them--orders federal courts had already found unconstitutional in their present form. But there seemed little concern that the massive expansion in the scope of NSL authority under the Patriot Act and subsequent legislation had given rise to the endemic misuse of the letters discovered in two Inspector General reports. As IG Glenn Fine testified in September, two years after that first report, the FBI has still not produced the new internal guidelines his office recommended.

Fortunately, not all legislators are quite so willing to accept the "trust us" standard of the Bush years. Several House Democrats are requesting more public information about the use of 215 orders in particular, and there is still plenty of time to fix the flaccid bill produced by the Senate Judiciary Committee. It will take courage to push back against glib assurances that we can be made safe from terror only if Americans' private records can be vacuumed into vast databases with few limits. But if Democrats want to project real toughness in the national security arena, this would be a good place to start.

About Julian Sanchez

Julian Sanchez is a research fellow at the Cato Institute and a contributing editor for Reason magazine.