OFFENSIVE INFORMATION WARFARE AND PSYCHOLOGICAL OPERATIONS

This article is an excerpt from an unpublished monograph written just after the 9-11 attacks. It predicted the assault on the independent media by the Pentagon, citing its own doctrine at the time. Since November 2001, the censorship, information embargoes, wiretapping, and surveillance has reached monumental proportions.

OFFENSIVE INFORMATION WARFARE AND PSYCHOLOGICAL OPERATIONS

Wayne Madsen

Nov. 2001

Critical infrastructure protection is a two-edged sword. While stressing defensive infrastructure protection methods quite publicly, the U.S. government is not so keen on discussing its plans to conduct offensive cyber-attacks against other countries. However, one part of the U.S. plan to wage such warfare falls into the category of psychological warfare operations, which consists of infusing the electronic media with propaganda aimed at managing or changing popular perceptions about U.S. policies.
In October 1999, the U.S. Defense Department consolidated its defensive and offensive information warfare activities within the U.S. Space Command in Colorado Springs, Colorado. The subordinate activity responsible for these operations is the Joint Task Force for Computer Network Defense.
On April 30, 1999, Presidential Decision Directive 68 (PDD-68) was signed by President Clinton. This directive carried out the perception management proposals contained in the Marsh Report. PDD-68 authorized the creation of the International Public Information (IPI) system. A “core group” composed of representatives of the Departments of State, Defense, Justice, Treasury, and Commerce, the CIA and NSA was to develop methods “to prevent and mitigate crises and to influence foreign audiences in ways favorable to the achievement of U.S. foreign policy objectives.” According to the directive, information aimed at U.S. audiences is to be “coordinated, integrated, de-conflicted, and synchronized with the [IPI] to achieve a synergistic effect.” Essentially, the world’s electronic media, including the Internet, will be manipulated to achieve maximum propaganda success for U.S. government policies and strategies. The man behind the idea of an Internet-based international propaganda system is the architect of America’s Critical Infrastructure/Information Warfare doctrine – Richard Clarke.
In a May 2000 a Defense Science Board Task Force, which included members from the leading homeland security and information warfare contractors Booz Allen, SAIC, and ANSER, as well as Walt Disney Imagineering, concluded that the IPI system should be merged with the Pentagon’s psychological warfare (PSYOP) capabilities. The report stated, “of particular concern is the lack of an integrated PSYOP capability with the strategic International Public Information (IPI) initiative . . . DoD certainly possesses capabilities and experience which would enhance the development of the IPI initiative.”[1] The report also called for the federal government to influence media through the buying of content to spread propaganda – clearly something that was on the mind of presidential counselor Karl Rove when he met in Los Angeles on November 12, 2001 with Hollywood’s leading movie and television producers, including those from Paramount, Sony, Viacom, CBS, Dreamworks, and MGM. Although Rove denied the administration’s goal was spreading propaganda and influencing content, the DSB Task Force report explicitly stated its intentions to influence the content of popular media: “Buying good content on which the messages will ‘ride’ is a necessary and desirable expenditure.”[2]
It was not the first time the government was caught trying to infiltrate the media with disinformation specialists. From June 1999 to March 2000, five interns from the Fourth Psychological Operations Group, Fort Bragg in North Carolina were found to have worked at CNN headquarters in Atlanta. From September 1998 to May 1999, another three Fort Bragg PSYOPs personnel were discovered at National Public Radio (NPR). They worked on the programs All Things Considered, Morning Edition, and Talk of the Nation. The networks involved first denied they knew where the individuals were from but then terminated the agreement with the U.S. Army that permitted them to work inside the news organizations.[3]
Furthermore, the DSB Task Force recommended a permanent national propaganda infrastructure be set up within the national security framework during peacetime. It stated, “a permanent, properly constituted interagency body should be established within the National Security Council charged with all U.S. Government IPI, PD [public diplomacy], PSYOP and other peacetime management policies and operations. An authoritative standing body would ensure on-going, front-end, continuous interagency dialogue, coordination, and integration.”[4] The Task Force also set its eyes on the Internet in calling for PSYOPs to be adapted to support “Internet War.” Specifically, the report states the targets for such an Internet War:

Web sites: “quite suitable for dissemination of PSYOP content.”
E-mail: “Email is probably the predominant means of communication for Internet consumers and could also be an excellent medium for PSYOP. If desired, each message could be tailored to an individual recipient, thus providing some rough form of geographic tailoring and helping to keep opposing authorities somewhat in the dark about what everyone is receiving.”
Chat rooms and messaging: “Internet chat rooms may also have potential PSYOP uses, in that “guided discussions” could perhaps be used to influence how citizens think about certain topics. In the Chinese approach, offending messages are deleted before, or just after, they have been sent to everyone.”
Video games and other media: [Video games] can be disseminated by a number of techniques, ranging from diskettes to web downloads. Other important media at this moment include CDs, CD-ROMs, and DVDs. All are suitable for PSYOP in some situations.”[5]

In late 1999, a legal team at the Defense Department cautioned against the use of computer hacking and disinformation in offensive information campaigns. In a document titled “An Assessment of International Legal Issues in Information Operations,” the Pentagon’s Office of General Counsel opined that it was dangerous for the military to contemplate launching information warfare attacks on banks, stock exchanges, and universities. The lawyers warned of the possibility of a ripple effect on civilian populations and unintended consequences for neutral or allied nations. As for disinformation campaigns contemplated by some within the Pentagon and intelligence community, the Pentagon report was straightforward: “it might be possible to use computer morphing techniques to create an image of the enemy’s chief of state informing his troops that an armistice or cease-fire agreement had been signed. If false, this also would be a war crime.” [6]

[1] Office of the Under Secretary of Defense For Acquisition, Technology and Logistics, “Report of the Defense Science Board Task Force on The Creation and Dissemination of All Forms of Information in Support of Psychological Operations (PSYOP) in Time of Military Conflict,” May 2000.
[2] Ibid.
[3] J. Max Robins, “Military Interns Booted From CNN, NPR: How Did Army Officers get Into the News Business?” TV Guide, 15-21 April 2000; Mike Janssen, “NPR news chiefs deny they knew of Army interns,” Current, 17 April 2000.
[4] Office of the Under Secretary of Defense For Acquisition, Technology and Logistics, op. cit.
[5] Ibid.
[6] Bradley Graham, “Military Grappling With Rules for Cyber Warfare,” The Washington Post, November 8, 1999, p. A1.


THE FBI’S DUNGEONS AND DRAGONS

Although the FBI and Justice Department downplayed the technical capabilities of CARNIVORE, it was soon revealed by a source within Booz Allen that the follow-on ENHANCED CARNIVORE included the ability of federal law enforcement agents to use a computer virus to introduce a keylogging program on to a target’s computer. In the past, the FBI resorted to using a program called the Key Logger System to enter a suspect’s home or office under a search warrant and install it on a targeted computer system. Code-named MAGIC LANTERN, the virus is transmitted via e-mail. MAGIC LANTERN has a companion database program called CYBER KNIGHT that culls and matches data from e-mail, Internet chat rooms, instant messages, and Internet voice calls.[1] These programs, which appear to have been named by an aficionado of the game Dungeons and Dragons, go way beyond the authority of Title III intercepts and FISA searches and seizures. In fact, the introduction of computer virus contagions on to the Internet by the FBI, an agency that is also charged with protecting the information infrastructure from such threats, is not only a contradiction but is more in keeping with the information warfare doctrine formulated by the Department of Defense and the intelligence community.
NSA and the Defense Department have been examining ways to beneficially use computer viruses for a decade. The Army got a head start in 1990 when the Signal Warfare Centerxe “Signal Warfare Center” at Vint Hill Farms, Virginia began soliciting companies to propose the development of destructive computer viruses that could destroy information stored in a targeted computer. Computer security specialists warned that such research could potentially backfire against the United States, which is more dependent on information technology than any other country. However, the deployment of systems like MAGIC LANTERN and the involvement of intelligence prime contractor Booz Allen in its research and development clearly illustrates that the intelligence community has come a long way in adopting malicious software code as a weapon of warfare and intelligence gathering.
As the U.S. government continues to rely on technology like viruses to carry out surveillance it also faces potential liability from accidental releases of such programs. This was pointed out in 1992:

“There is also a question of what liability the government would assume if a computer virus that it developed were released accidentally. If bank depositors, stock holders, airplane and train passengers, and hospital patients were adversely affected by a government-developed virus, who would be responsible for compensating individuals for financial loss, injuries, or even death?[2]
Another troubling aspect of government computer viruses is the belief by many computer security and privacy experts that anti-virus software manufacturers might be required to alter their software to mask or hide the presence of a government virus. At least one, Symantech, which produces Norton Utilities, revealed it would not include the MAGIC LANTERN virus signature in its products.[3] This would be a logical extension of current prohibitions against telecommunications and ISPs informing their customers and subscribers that they are the targets of a legally-sanctioned wiretap.


[1] Bob Sullivan, “FBI software cracks encryption wall: ‘MAGIC LANTERN’ part of new ‘ENHANCED CARNIVORE Project’, MSNBC, 20 November 2001 < cp1="1">; Ted Bridis, “FBI Develops Eavesdropping Tools,” Associated Press, 22 November 2001.
[2] Wayne Madsen, “Government Sponsored Computer Warfare and Sabotage,” Computers & Security, 11 (1992), p. 234.
[3] John Leyden, “AV vendors split over FBI Trojan snoops,” The Register, 27 November 2001.

INTELLIGENCE ROLE IN CRITICAL INFRASTRUCTURE PROTECTION

The NSA has been very active in domestic critical infrastructure operations. The agency coordinated the efforts of the Joint Intelligence Community and Department of Defense Information Operations Technology Center (IOTC) at Fort Meade, Maryland. That component participated heavily in INFOWAR games like ELIGIBLE RECEIVER, EVIDENT SURPRISE, SOLAR SUNRISE, and MOONLIGHT MAZE, the latter a major operation said to involve combating Russian hackers, a charge hyped by the Pentagon , NSA, and FBI but never proven.
Current infrastructure protection programs give the government an extensive role in private sector information systems security. For example, in January 2000, the White House called for the Department of Defense to make available to all critical infrastructure owners (public and private sector) by January 2002 its most powerful security encryption capabilities. All government-developed encryption programs are conceived by the NSA, keys are seeded by NSA key management centers, and NSA maintains the capability to decrypt the communications as it sees fit. Post-September 11, many advocates of a government-run key escrow system resurfaced to push a concept that was thoroughly discredited after the Clinton administration decided to drop its support for Clipper, Capstone, and other key escrow systems.
The U.S. Defense Department, the U.S. Air Force’s Rome (New York) Laboratory, and NSA are funding research at Syracuse University to develop programs to detect the use of steganography programs in e-mail and other files. The NSA and the military are concerned that an increasing number of images on the Internet are being discovered to contain hidden text and could be used by foreign intelligence agents and terrorists to secretly transmit messages much in the same way that clandestine radio operators once openly broadcast sets of coded numbers over the air waves. These include image, audio, and video files on web sites that may be altered by hackers to secretly embed “stegoed” messages. The charge was made by certain quarters within the U.S. intelligence community that steganography was used by bin Laden’s terror network to plan their attacks, although this charge was later refuted by a number of experts who claimed bin Laden, in recent years, studiously avoided using any electronic communications that could be tracked by the West. Through the use of “blind steganography” programs and standard traffic analysis, the NSA and other intelligence agencies can detect the presence of steganography with a view to distorting the message or replacing it with a bogus version. The steganography detection software can also decode images and other files.
The NSA will play a major role in ensuring that civilian government agencies and key corporations have eliminated most significant known vulnerabilities by May 2003. This is represents a significant expansion of NSA’s domestic role in the United States. Historically, the NSA’s role has been confined to foreign intelligence activities. However, with the enactment of the USA-PATRIOT Act, the government has changed this approach. It argues that jurisdictions and national origins are meaningless in cyberspace and that these two pillars upon which current intelligence gathering activities are based are now “irrelevant.”
Post-September 11, the level of cooperation between the NSA and FBI has never been greater. Lacking its own cadre of technical experts, the FBI has turned to the NSA to provide technical expertise. The FBI has obtained greater Internet monitoring powers under USA PATRIOT and FISA. These laws legally permit the FBI to work closely with the NSA.
It has been known for some time that the U.S. intelligence community has installed sniffing devices at the major Internet hubs, particularly the major Internet Exchange Points (IXPs), including Metropolitan Area Ethernets (MAEs) and major Network Access Points (NAPs).[1] These are located in Washington, DC; Mountain View, California; Chicago, Los Angeles, Dallas, Houston, Fairfax, Virginia; Reston, Virginia; Pennsauken, New Jersey; Boston; Pittsburgh; Louisville, Kentucky; Philadelphia; Baltimore; Nashville, Tennessee; Honolulu; New York City; Miami; Portland, Oregon; Indianapolis, Indiana; Albuquerque, New Mexico; Seattle, Washington; San Antonio, Texas; Research Triangle Park, North Carolina; Columbus, Ohio; San Diego; Denver; St. Louis; Vancouver; Toronto; Ottawa; Montreal; Edmonton, Alberta; and Halifax, Nova Scotia.
According to a former official of the Clinton administration, the NSA has been developing a system of e-mail sniffing devices in off-shore ISP sites. According to the official, by placing Internet taps off-shore, the FBI could evade legal prohibitions on tapping the e-mail of U.S. citizens without a court order. For example, by using taps in Canada, Bahamas, or Mexico, the normal FISA and Title III wiretap court orders would not have to be sought to tap the e-mail of U.S. citizens because the tapping would take place outside U.S. jurisdiction. The official also said work was underway on developing CARNIVORE taps that could be placed on fiber optic links with certain countries.
The CIA has also been extremely active in developing software than can dig deep within the Internet to sift out information of interest. It uses LexiBot, commercial search program, to identify, retrieve, classify, and organize “deep” and “surface” content from the Internet. The CIA has provided venture capital to Intelliseek to develop a program called ProFusion for similar mining of Internet content.[2] The CIA has relied heavily on its proprietary Silicon Valley company, IN-Q-TEL, to fund research and development for Internet snooping software. The CIA has developed more sophisticated programs such as “FLUENT,” which allows it to search foreign language web sites and databases, including those in Chinese, Korean, Russian, Serbo-Croat, Ukrainian, and Portuguese, using English search terms. Another program, “OASIS,” searches audio signals, including streaming audio and video, and automatically converts the signals to text. It can distinguish between male and female voices, enhance its accuracy for heavily-accented English, and can capture and translate conversations in foreign languages, including Arabic and Chinese.[3]
According to congressional testimony from the Internet service industry, the FBI began using a commercially-available program called “Etherpeek,” which, upon issuance of a court order, was installed within the servers of Internet Service Providers. Etherpeek allowed the government to monitor and collect electronic mail. Booz Allen, the FBI’s prime contractor for Internet surveillance, originally helped develop Internet monitoring capability for NSA. In what amounted to technology transfer from NSA to domestic law enforcement, Booz Allen further developed the Etherpeek program and developed the more sophisticated CARNIVORE e-mail harvesting program. Although Attorney General Ashcroft previously, as a senator, opposed surveillance programs like CARNIVORE, he merely authorized CARNIVORE’s name to be changed to Data Collection System 1000 (DCS1000) after taking over the Justice Department.
Although the FBI claimed that CARNIVORE could only target particular e-mail header information based on a specific court order, it was later discovered that the system could capture entire packet streams, including web mail text and e-mail outside judicial authorization. In addition, the FBI had a remote access capability to CARNIVORE, which lacked audit trails and specific user identification and authentication (user id and password) controls. A representative of the ISP Earthlink stated the FBI told him that CARNIVORE’s monitoring criteria could be changed “with a flip of a switch.” Alabama Congressman Spencer Bachus commented that CARNIVORE’s “potential for abuse is tremendous” and that if Americans had to rely on the “good faith of public servants” they only needed to be reminded of the excesses of former FBI Director J. Edgar Hoover.



[1] Wayne Madsen, “Puzzle Palace Conducting Internet Surveillance, “ Computer Fraud and Security Bulletin, June 1995.
[2] Hiawatha Bray, “In search of intelligence,” Digital Mass.com
[3] Thomas C. Greene, “CIA patching ECHELON shortcomings,” The Register, 13 March 2001.
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THE NEW BIG BROTHER BUREAUCRACY

In its fiscal year 2001 budget request, the FBI requested funds to create data warehouses, enabling it to store information from communications intercepts in large databases. One such proposed database code named “CASA DE WEB” would store audio files, intercept transcripts, translated intercepts, and reports. Another program code-named “DIGITAL STORM,” would permit FBI agents to remotely access stored wiretaps via Internet-like connections. Both programs would facilitate text and voice key word spotting and voice print identification.
Some of the FBI’s capabilities were foreseen in an earlier leaked version of the National Plan for Information Systems Protection. The plan called for sensors to be deployed in Internet Protocol (IP) –compatible Ethernet and Fiber Distributed Data Interface (FDDI) networks to provide “automated detection, correlation, warning, and reporting for integrated threat warning and attack assessment.” In addition, NSA and CIA personnel are reviewing the security of civilian Federal agencies through their participation in Expert Review Teams (ERTs).
In addition, the FBI’s National Infrastructure Protection Center (NIPC) saw an increase in staffing for its Analysis and Information Sharing Unit (AISU) and Watch and Warning Unit (WWU). The WWU was relocated next to the FBI’s expanded Strategic Information and Operations Center. Additional Defense Department, CIA, DIA, and NSA personnel were brought on board. The NIPC is armed with new Justice Department authority to monitor Internet and other communications, including forthcoming National HUMINT Collection directives and Attorney General Guidelines on Foreign Intelligence Collection and Foreign Counterintelligence Investigations.
The NSA’s role in Critical Infrastructure Protection also increased as a result of the National Plan. The plan established a new NSA component called the National Security Incident Response Center (NSIRC), designed to be a “focal point” for incidents impacting U.S. national security information systems. NSA’s importance to Internet monitoring is derived from the fact that it is the “only organization positioned to link intrusion data to signals intelligence.” The NSIRC houses four functional areas – 1) the information Protect Cell (an operation within the National Security Operations Center (NSOC)); 2) the Reporting and Analysis of Network Exploitation Division (provides all-source analysis of network incident activity); 3) the Network Intrusion Analysis Capability (provides information on hacker techniques); and 4) the Threat Assessment Division (provides a global wide-ranging perspective of threats to U.S. telecommunications and information systems).
The CALEA (Communications Assistance to Law Enforcement Act) Implementation Section has ultimate authority in ensuring that the telecommunications industry places the right sort of eavesdropping equipment and software in its complex network of switches, routers, hubs, and relays. A team of FBI technical personnel pays regular visits to various telecommunications companies to check on their compliance with CALEA. According to source familiar with the FBI’s technical team, they are assisted by a group of retired personnel of the NSA many of whom are employees of Booz Allen.
In November 2001, the FBI met in a closed-door meeting in Tucson with telecommunications industry officials to demand more surveillance capabilities than originally authorized by CALEA. Industry officials disclosed that the FBI demanded direct, 24 x 7 access to voice communications similar to that provided by CARNIVORE to e-mail. A spokesperson for Nokia said that after September 11, the FBI was “pushing for anything and everything.”[1]
The FBI has become the final decision-making authority in deciding whether or not to approve foreign acquisition of U.S. telecommunications and ISPs. It was heavily involved in British Telecom’s failed bid to buy MCI Communications Corp. in 1996 – and may have actually killed the deal. It got involved in the joint venture between Verizon Communications and Britain’s Vodafone, as well as Deutsche Telekom AG’s bid for VoiceStream Wireless Corp. of Bellevue, Washington. The FBI was wary of the German government’s large stake in Deutsche Telekom. The FBI also held up Nippon Telegraph & Telephone’s offer to acquire U.S. Internet Service Provider Verio until NTT agreed to strict national security safeguards.
The FBI insists on attaching conditions to all foreign telecommunications deals with U.S. telecommunications providers. This results in the Federal Communications Commission (FCC) delaying its approval until the FBI and companies agree on the FBI’s national security controls. These controls originally included barring all non-U.S. citizens from handling the companies’ billing and call information. Faced with violating U.S. equal opportunity employment laws, the FBI dropped that idea. However, companies are required to maintain all equipment for domestic traffic in the U.S., so the FBI can have wiretapping access. All record-keeping facilities must also be based in the U.S. Companies like Vodafone and Verio must also employ only “trustworthy personnel” to monitor the network and handle wiretap requests. Vodafone and Verio also must ensure that no wiretap information is transmitted to any foreign government, and in the case of Verio, only specially-cleared Verio personnel can have access to wiretap information.
When TMI Communications Inc., a subsidiary of BCE, Inc. of Canada wanted to sell satellite-phone service to U.S. customers, the FBI interjected itself into the FCC approval process. TMI was forced to install a call-switching station in New England through which it would route all its U.S. traffic for FBI wiretappers. TMI phones were also required to be equipped with geo-positioning technology to permit the FBI to pinpoint a suspect user’s location.
Working with the CIS is the Telecommunications Contracts and Audit Unit (TCAU). This office processes industry requests for reimbursement for retrofitting surveillance into digital networks. It is assumed by many experts that the final bill for surveillance upgrades will range between $5 and $7 billion over a ten-year period.
Through projects like Soft Landing, Soft Sourcing, Breakthrough, and Groundbreaker, the NSA has placed a number of its retirement-age personnel in major high-technology firms, including Computer Sciences Corporation, Booz Allen, and SAIC. These companies are active participants in the government’s Critical Infrastructure Protection initiatives.
A large portion of the staff of the NIPC are detailees from the NSA and Department of Defense. The FBI has been quick to point out that these individuals report to FBI management and not to NSA managers. According to one senior government official, 200 FBI field agents provide the “eyes and ears” for the NIPC in specific regions of the United States. The FBI field offices are bolstered by NSA personnel assigned to provide “technical assistance.” The largest FBI field offices are located in New York, Washington, Los Angeles, San Francisco, Miami, Chicago, Houston, New Orleans, Baltimore, and Atlanta. Unlike the NSA detailees at the NIPC, the NSA technical field personnel are assigned directly from Fort Meade and do not fall within the FBI’s management structure. The NSA personnel are involved in the wiretapping of computer networks and monitoring Internet Service Provider activity under specific U.S. Criminal Statutes dealing with foreign counter-intelligence. However, NSA personnel also assist in the examination of computer media seized as a result of court-ordered search warrants.
According to a former high-level official of the NSA, the FBI is now routinely trawling the raw communications intercepts and “raw traffic analysis” contained in the ECHELON and ANCHORY database systems. The FBI reasons they have the authority to conduct such searches pursuant to the recently enacted USA-PATRIOT Act. The ability of the FBI to obtain intercepts on “US persons” (i.e., US citizens, legal residents, US corporations, US flag airline carriers, and US flagged maritime vessels) contravenes the procedures set in place by NSA to comply with FISA. Those procedures are contained in US Signals Intelligence Directive 18 (USSID 18), long considered by NSA to be the “bible” for handling the transfer of communications intercept information to agencies outside the NSA in particular and intelligence community in general.


[1] Jess Bravin and Dennis K. Berman, “FBI makes “mind-boggling” demands on Telcos,” The Wall Street Journal Online, 21 November 2001. <>

THE POSSE COMITATUS ACT

Congress passed the Posse Comitatus Act of 1878 (20 Stat. 152 [18 USC 1385]) in order to curb the military’s role in law enforcement in the South. The act, as amended, states:

“Whosoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined not more than $10,000 or imprisoned not more than two years, or both.”

Consequently, Posse Comitatus, Latin for “’the power of the county,” has historically prevented the military from engaging in domestic law enforcement activities. The U.S. government contends that because there have been exceptions made to the Posse Comitatus Act for drug interdiction and crisis situations like nuclear, biological, or chemical incidents, the military should be authorized to take on more domestic law enforcement functions, including reacting to cyber-security incidents. Civil liberties experts and advocates see this as an extremely dangerous venture. However, in the aftermath of the September 11 attack, calls for amending Posse Comitatus quickly came from Deputy Defense Secretary Paul Wolfowitz and Senator John Warner, R-VA. The latter recently told the Senate Armed Services Committee, “The reasons for the Posse Comitatus Act have long given way to changed lifestyle we face today here in America.”[1] Senator Max Cleland, D-GA, generally shared Warner’s views. In November 2001, the Pentagon drew up plans to create a new Homeland Commander-in-Chief, an act that would effectively abrogate the Posse Comitatus Act.
In its 1996 Information Warfare (Defense) Report to the Undersecretary of Defense, the Defense Science Board (DSB) supported the concept of the Defense Department defending non-military computer systems, in contravention of both the Posse Comitatus Act and the Computer Security Act. The DSB stated, “The SECDEF/DEPSECDEF should also task the General Counsel to propose legislation, regulation, or executive orders as may be needed to make clear the DOD role in defending non-DOD systems. This should specifically address the need for changes to the Computer Security Act, the capture of information on unidentified intruders (issue of intelligence collection on U.S. persons), the authority to conduct “hot pursuit” of intruders, and the ability to obtain reports from the operators of critical elements of the civil infrastructure.”[2]
Congress must resist attempts by the executive and some in the legislature to gut the Posse Comitatus Act thus ensuring that the U.S. military is not permitted to engage in unwarranted intrusions into the privacy of U.S. citizens, as occurred during the 1970s in monitoring the lawful activities of anti-Vietnam War protesters. In early 1997, when Senator Charles Grassley, R-IA, discovered U.S. Army Colonel John Ellis was serving as deputy chief of the FBI’s Domestic Terrorism Planning Section, he said, “to the extent we allow a Colonel Ellis incident to succeed, it confirms the militarization of law enforcement.” Grassley added, “The reasons are so obvious, with what we went through at Ruby Ridge and Waco, why there should be a clear line of demarcation between the military and law enforcement. And I’m incensed because the people at the FBI and Justice are too stupid to see that.”[3]
On November 13, 2001, President Bush further expanded the role of the U.S. military to mete out civil justice when he signed a Military Order authorizing the Detention, Treatment, and Trial of non-citizens charged with complicity in acts of terrorism. This order set in motion a process by which any foreign person accused of committing acts of terrorism or aiding and abetting in them can be tried by a secret military commission in a secret location.[4] Due process is circumvented under the order. There is no right of appeal or appellate review by another military commission or a court of law. The order itself circumvents many of the protections contained in the Uniform Code of Military Justice and was, according to retired Army Major General William Nash, unpopular with a number of Judge Advocate General attorneys within the Defense Department.[5] In a November 26, 2001 editorial in The New York Times, columnist William Safire referred to the special military commissions as “kangaroo courts,” saying, “Bush’s latest self-justification is his claim to be protecting jurors (by doing away with juries).”[6]

In the councils of government, we must guard against the acquisition of unwarranted influence, whether sought or unsought, by the military-industrial complex. The potential for the disastrous rise of misplaced power exists and will persist.
We must never let the weight of this combination endanger our liberties or democratic processes. We should take nothing for granted. Only an alert and knowledgeable citizenry can compel the proper meshing of the huge industrial and military machinery of defense with our peaceful methods and goals, so that security and liberty may prosper together.

President Dwight Eisenhower, Farewell Address, January 17, 1961


Hearsay evidence will be permitted in such a Kafkaesque trial setting. Evidence obtained by secret or coercive means can be withheld from defense attorneys. There is no right to a speedy trial or trial by jury. This coupled with Attorney General Ashcroft’s decision to permit federal investigators to listen in on the phone calls between people detained in prison but not charged with terrorist offenses (including material witnesses) and their attorneys raises a multitude of civil liberties and due process concerns. The Justice Department defended its decision by pointing out that monitoring would be done by special “taint teams” that would be barred from providing content of calls to federal prosecutors or investigators without judicial approval. However, many legal scholars argued that such a provision is a direct violation of a person’s Sixth Amendment right to be represented by counsel and Fifth Amendment stricture against self-incrimination.
Testifying before the Senate Judiciary Committee, Attorney General Ashcroft recast President Bush’s military tribunals as “war crimes commissions.” He stated, each action taken by the Department of Justice, as well as the war crimes commissions considered by the president and the Department of Defense, is carefully drawn to target a narrow class of individuals -- terrorists.”[7]
Judiciary Chairman Patrick Leahy responded to Ashcroft with five specific questions, “Number one, at some point we need a clear understanding of who will be subject to these tribunals. Number two, the defendants must receive the assistance of counsel in mounting a defense, and with that counsel, defendants must be permitted timely access to evidence and the right to cross-examine witnesses, and have the right to present exculpatory evidence. Number three, if the standard of proof is to be less than “beyond a reasonable doubt,” then it must be at least as high as “guilt by clear and convincing evidence.” Number four, the death penalty must not be imposed simply by a vote of a majority of the jurors. And number five, the system must guarantee the defendant a right to a meaningful appeal.”[8]
Ashcroft replied, “I think a full and fair proceeding is very likely to require many of these things you've mentioned. In the war crimes tribunals, which this Congress and this country has supported for the litigation -- the adjudication of war crimes against others, you know, in Bosnia and Romania and other settings, some of these kinds of principles exist there.”[9]
Using the United Nations War Crimes Tribunals as examples does not ensure a model will not ensure a “full and fair” proceeding. Ashcroft’s reference to Romania was puzzling since the only major military tribunal held there was a secret military tribunal held in Tirgoviste on December 25, 1989. That trial, which resulted in the summary executions of Romanian President Nicolae Ceausescu and his wife Elena, was roundly criticized as a “kangaroo court.”[10]
According to former U.S. Appellate Court Judge Patricia Wald, who served as a member of the International Criminal Tribunal for Yugoslavia (ICTY) in The Hague for two years, the procedural process in the tribunal is “flawed” with many legitimate questions about the fairness of the process. Wald said that there is no guarantee of credible evidence because there is no hearsay rule. Furthermore, the process is too long with people being detained for years before their cases come to trial.[11] The same charges have been leveled by a number of defense attorneys at the International Criminal Tribunal for Rwanda (ICTR). They have charged that the prosecution, which includes several U.S. Defense Department Judge Advocates General on loan to the U.N., often intimidates defense witnesses.


[1] Mary Leonard, “Fighting terror legislative moves / Posse Comitatus Act;
officials talk of using military at home, despite doubts,” The Boston Globe, October 31, 2001, p. A10.
[2] Report of the Defense Science Board Task Force on Information Warfare – Defense, Office of the Under Secretary of Defense for Acquisition and Technology, November 1996.
[3] Benjamin Wittes, “A Posse Comitatus crusade senator says Army officer's FBI role violates separation of military and police,” Legal Times, September 1, 1997, p. 8.
[4] According to Professor David Cole of Georgetown University, there is no legal barrier to Bush’s order applying to U.S. citizens. He said a political calculation was behind the decision to applying it only to non-citizens who are involved in any broadly-defined terrorist activities. Statement at the Constitution Project’s Initiative on Liberty and Security, Washington, DC, 28 November 2001.
[5] Statement at the Constitution Project’s Initiative on Liberty and Security, Washington, DC, 28 November 2001.
[6] William Safire, “Kangaroo Courts,” The New York Times, 26 November 2001.
[7] Senate Judiciary Committee, “Hearing: The Department of Justice and Terrorism,” 6 December 2001.
[8] Ibid.
[9] Ibid.
[10] The following is the statement of Ceausescu’s defense counsel before the tribunal: “It should be stated
once and for all that this military court is absolutely legal and that the former positions of the two Ceausescus are no longer valid. However, they will be indicted, and a sentence will be passed on the
basis of the new legal system. They are not only accused of offenses committed during the past few days, but of offenses committed during the past 25 years. We have sufficient data on this period. I ask the
court, as the plaintiff, to take note that proof has been furnished for all these points, that the two have committed the offenses mentioned.
[11] Statement at the Constitution Project’s Initiative on Liberty and Security, Washington, DC, 28 November 2001.

FREEDOM OF INFORMATION, CENSORSHIP AND THE PUBLIC’S RIGHT TO KNOW

The Marsh Report recommended that appropriate protection be provided for certain private sector information. It proposed that the Freedom of Information Act (FOIA) exemptions contained in paragraph b (3) be broadened to include “sensitive information” obtained from the private sector.
Several industry officials who took part in the ISAC and InfraGard programs quickly urged the federal government to amend the FOIA to allow their working group discussions and information shared with the government be exempt from public disclosure. Representatives Jim Moran, D-VA and Tom Davis, R-VA, both beholden to a large northern Virginia-based government contractor sector, sponsored legislation to ensure the FOIA exemption sought by industry.
The homeland security structure has also apparently developed a new classification scheme for homeland security and critical infrastructure information: Top Secret-HOMESEC and Secret HOMESEC.[1] The ability of the government to apply national security classifications to information that has, in the past, been available through FOIA hearkens back to the 1980s when the Reagan administration tried to create a new classification of “Unclassified But Sensitive” to restrict access to publicly-available technical information.
Environmental groups charged that a number of U.S. corporations were using the September 11 terrorist attacks as an excuse to put a clamp on the right of the public to access certain government-held public health, safety, and environmental information. An official of Greenpeace told a press conference in Washington, DC on November 5, 2001, that the Nuclear Regulatory Commission, bowing to pressure from the nuclear power industry, shut down its web site for a number of days citing “national security” concerns. However, Greenpeace noted that the public was denied access to important safety information, as well as information on public hearings on reactor re-licensing. The NRC also denied access to public document rooms in counties where nuclear plants are located. “This was a case of an industry using the tragedy of September 11 to push its own agenda which had nothing to do with national security,” according to Greenpeace.
In addition to the NRC, the Environmental Protection Agency removed information dealing with the emergency response plans of chemical plants across the country. Perhaps most disturbing were the actions of some private entities that chose to self-censor their web sites. The Federation of American Scientists (FAS) pulled down information on the location and overhead images of U.S. intelligence gathering sites collected as part of its Intelligence Resource Program. The FAS could not have been any more thorough than any U.S. intelligence agency in scrubbing the Internet for its information – it gave the green light for Google to delete the same information from its cached databases. Google also agreed to eliminate from its cached data information deleted by government agencies and commercial web sites.[2]
Attorney General Ashcroft has cited unidentified “privacy laws” in refusing to disclose the identities of over 500 immigrants being detained by the Justice Department on visa violations. As pointed put by a number of legal experts, there is no provision in the federal Privacy Act that prevents disclosure of the names of the detainees.
On October 12, 2001, Ashcroft rolled back eight years of less restrictive Justice Department policy on the FOIA when he issued a new policy memorandum stating that the DOJ would defend any government agency denying a FOIA request unless the denial lacked “a sound legal basis or present an unwarranted risk of adverse impact on the ability of other agencies to protect other important records.” Previously, under a memorandum issued by Attorney General Janet Reno on October 4, 1993, DOJ would only defend a decision to withhold information if it was “reasonably foreseeable that disclosure would be harmful.”
Withholding key information from the public is a major element in every information warfare doctrine. Censorship and disinformation are essential in information warfare. According to a report written for the Pentagon by SAIC, “widespread dissemination by the U.S. media and its independence vastly complicate military operations. Any information warfare strategy must taken into account the press or at least address its potential impact.”[3]
Former NSA director and CIA deputy director Studeman stated that there should be a “rapid media reaction force” charged with disseminating propaganda to various media channels and outlets for “positive purposes.”[4] It is inherent in current U.S. military Special Operations doctrine that virtual “cones of silence” be brought down on any information dealing with a particular conflict area like Afghanistan. This e-censorship policy was enunciated by the Special Operations Command’s Rear Admiral Thomas Steffens at a conference on Special Operations/Low Intensity Conflict in Arlington, Virginia in 1999. Defense “information operations” war games have included interdiction of news from, to, or about particular war zones and settings.
The culmination of this policy was never more evident than on October10, 2001, when National Security Adviser Condoleezza Rice, in a conference call to the heads of five U.S. networks (ABC, NBC, CBS, CNN, and Fox), persuaded them to “voluntarily comply” with a White House request to limit broadcasting speeches of Osama bin Laden that were being carried over the Arab satellite network Al Jazeera. Rice was concerned about the spread of propaganda and the potential for bin laden to transmit coded messages to his operatives. Critics pointed out that bin Laden’s Arabic speeches in text and streaming video were available on the Internet so the idea that he could send coded messages through English translations was a specious argument at best. On October 3, 2001, Secretary of State Colin Powell urged the visiting Emir of Qatar to restrain the broadcasts of Al Jazeera, which is based in the emirate. Al Jazeera had featured taped interviews with bin Laden, interviews with anti-American political leaders, and broadcasts favorable to the Palestinians. Ironically, the Emir of Qatar had to press upon Powell the need for a “free and credible media.”[5] Eventually, Powell’s persuasion succeeded when Al Jazeera also agreed to limit the amount of airtime it gave to bin Laden’s taped statements.
On November 1, 2001, President Bush also took the opportunity of post-September 11 jitters to sign Executive Order 13233 that effectively gave incumbent presidents the authority to veto any release of the presidential papers of prior presidents even if the prior president or his or her agent approved of the release. After stymieing previous attempts to release 68,000 Reagan administration papers already cleared for release by the Reagan Library, Bush merely revoked the previous Presidential Records Executive Order 12667 of 1989 – a move that effectively gutted the 1978 Presidential Records Act implemented in the aftermath of the Watergate scandal. The Reagan era papers are thought to contain a number of documents on Iran-contra and efforts by current and former administration officials to provide training and support to anti-Soviet Afghan guerrillas, including Osama bin Laden. These include former President Bush and his and Reagan’s top national security and intelligence officials, many of whom now serve in the current administration.


[1] Bill Gertz and Rowan Scarborough, “New Code Word,” The Washington Times, 30 November 2001, p. A9.
[2] Jessica Guynn, “Google removes sensitive cache,” Associated Press, 30 October 2001.

[3] Information Warfare: Legal, Regulatory, Policy, and Organizational Considerations for Assurance: A Research Report for the Chief, Information Warfare Division (J6K), Command, Control, Communications, and Computer Systems Directorate, Joint Staff, The Pentagon, prepared by SAIC, Telecommunications and Networking Systems Operation, July 4, 1995, pp. 2-68.
[4] Ibid.
[5] Andrea Koppel and Elise Labott, “U.S. pressures Qatar to restrain TV outlet,” CNN, 3 October 2001.

EXPANSION OF GOVERNMENT AUTHORITY THROUGH ANTI-TERRORISM MEASURES

The USA PATRIOT Act contained a number of provisions that had little or nothing to do with anti-terrorism. The act expanded the definition of what is a “protected computer” as defined by the 1986 Computer Fraud and Abuse Act. Protected computers now include those that are physically outside the United States. This new definition will permit the United States to ratify the new Council of Europe Cyber-crime Treaty because it requires the United States to investigate international hacking cases.

USA PATRIOT also expands the Justice Department’s Regional Information Sharing System Network (RISSNET), a secure encrypted packet switched intranet linking 5700 Federal law enforcement agencies, and law enforcement agencies in 50 states, Ontario and Quebec, the District of Columbia, Guam, the U.S. Virgin Islands, Puerto Rico, and Australia. According to sources close to the Washington Metropolitan Police, data on targeted groups such as the Alliance for Global Justice, the Washington-based organization that coordinated the anti-World Bank/International Monetary Fund protests, is shared with other jurisdictions via RISSNET.

RISSNET’s budget has been doubled for Fiscal Years 2001 and 2002. Users are authenticated by smart cards called “Smartgate.” RISSNET has been used in the past to monitor the activities of anti-globalization protestors in Seattle, Quebec City, Philadelphia, Los Angeles, and Washington, DC. The delivery of a sealed court order to the Independent Media Center (IMC) in Seattle on April 12, during the anti-Free Trade Area of the Americas protests in Quebec City was a clear indication of the FBI’s desire to suppress First Amendment rights. The concurrent gag order served to the IMC not to discuss the FBI’s demand for all server logs during the first two days of the Quebec protest further demonstrated the FBI’s politically-motivated machinations long before the events of September 11.

Some police department intelligence units, including that of the Washington Metropolitan Police Department, also monitor the web sites of activist political organizations. Intelligence information is archived by an Orwellian-sounding RISSNET entity called MAGLOCLEN or “Middle Atlantic-Great Lakes Organized Crime Law Enforcement Network.” Other RISS centers include: the Mid-States Organized Crime Information Center (MOCIC) in Springfield, Missouri; the New England State Police Information Network (NESPIN) in Franklin, Massachusetts; the Regional Organized Crime Information Center (ROCIC) in Nashville, Tennessee; the Rocky Mountain Information Network (RMIN) in Phoenix, Arizona; and the Western States Information Network (WSIN) in Sacramento.
MAGLOCLEN, which is headquartered in Newtown, Pennsylvania, distributes political intelligence to other police departments via RISSNET. MAGLOCLEN enables police investigators to link various activist groups and members through the Link Association Analysis (LAA) sub-system. The Telephone Record Analysis (TRA) sub-system can call up records of a targeted group’s telephone calls. A group’s banking and other commercial data can be monitored by the Financial Analysis sub-system. Police and federal agents can also call up profiles that provide specific information on the composition of organizations, including membership lists.
Although RISS centers are directed against organized criminal syndicates, gangs, and terrorists, any political activist group thought to be a threat could easily be lumped into one or more of these categories. For example, at one time or another, many of the groups represented in Washington have been labeled “terrorist” by law enforcement agencies, the military, and criminal prosecutors. These include Earth First, Greenpeace, the American Indian Movement, the Zapatista National Liberation Front, and the AIDS awareness group, ACT UP.
In late November 2001, Attorney General Ashcroft considered lifting Justice Department restrictions on the ability of the FBI to gather intelligence on political and social groups. The restrictions were imposed in the 1970s after Congress discovered that the FBI routinely spied upon Dr. Martin Luther King and anti-Vietnam War and black power groups. The major FBI domestic spying programs were COINTELPRO and CHAOS. The latter, a joint operation of the CIA, FBI, and NSA, targeted the mail and phone conversations of members of over 1000 suspect organizations and 13,000 individuals, including some 7,000 American citizens.[1] An NSA spying operations, Operation SHAMROCK, spied on the telegrams of “dangerous Americans,” while Operation MINARET placed certain Americans and their organizations on watch lists. In carrying out Ashcroft’s order, the Justice Department announced that all guidelines, policies and procedures on the FBI collection of political intelligence were “under review.”
Stifling political discourse on the Internet has been an item for discussion by the Pentagon’s policy makers for quite some time. Charles Swett, Assistant for Strategic Assessment in the Office of the Assistant Secretary of Defense, warned in 1995 “the political process is moving on to the Internet.”[2] Swett charged that the Zapatista National Liberation Front was lying in their Internet communiqués in claiming the Mexican army had raped and killed children in Chiapas. Swett also argued that the Pentagon should begin scanning “left-wing” news on the Internet sites in order to keep track of political activists operating domestically and abroad.[3] However, the Pentagon has a vested interest in trying to eliminate the Zapatista presence on the Internet. The U.S. Army’s Special Forces have been involved in training Mexico’s army in counter-insurgency operations against the Zapatistas,[4] a group which has only been deemed terrorist by the Mexican oligarchy, New York banks and securities firms, and U.S. military and intelligence officials. In June 1995, then-CIA director John Deutch accused unnamed “terrorists” of using the Internet for their own communications.[5] In addition, the Defense Intelligence Agency (DIA) began maintaining a list of 70 “rebel” Web sites.[6] The monitoring by the Pentagon of hacker groups opposed to Nike and The Gap for exploiting children in the developing world, indicates that the military is not only potentially violating constitutional provisions against illegal surveillance of U.S. citizens but also may be conducting low-level computer economic espionage on behalf of U.S. companies.
In early October 2001, an example of the FBI taking advantage of September 11 to stifle political discourse was its order for ISP HyperVine to shut down iraradio.com, an Internet radio station affiliated with New York-based Radio Free Eireann and the legal Northern Ireland political party Sinn Fein, or face seizure of its assets.[7] Considering the fact that Sinn Fein or the Irish Republican Army are not allies of Al Qaeda and do not appear on any U.S. government lists of designated terrorist organizations, this incident proves that under the new anti-terrorism laws, the FBI and other U.S. government agencies can, at a political whim or in response to a request from a foreign coalition partner, close down any Internet site deemed “terrorist.”
Under new executive orders and federal laws, what has been protected as free speech may now fall under the rubric of terrorist activity. Under the Antiterrorism and Effective Death Penalty Act of 1996, U.S. citizens are prohibited from supporting any group designated by the Secretary of State as “terrorist organizations.” However, exemplifying the haphazard and purely political nature of the power vested in the Secretary of State to designate terrorist groups, the State Department never listed the Taliban as a terrorist group even though it harbored one of the world’s most dangerous terrorists, Osama bin Laden. In fact, the Secretary of State is empowered to designate any group that is inimical to U.S. interests as “terrorist,” a chilling prospect for the free speech rights of American citizens. This new reality was brought home on September 26, 2001, when White House Press Secretary Ari Fleischer said all Americans “need to watch what they say, watch what they do.”
In his testimony before the Senate Judiciary Committee on December 6, 2001, Attorney General Ashcroft actually linked groups that oppose the government’s anti-terrorism measures to terrorists. Using Joseph McCarthy-style accusatory language, Ashcroft said, “to those who scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics only aid terrorists, for they erode our national unity and diminish our resolve. They give ammunition to America’s enemies, and pause to America’s friends. They encourage people of good will to remain silent in the face of evil.”[8]
Watching what one does is also a major element of the government’s anti-terrorism crusade. The Defense Advanced Research Projects Agency (DARPA) has been at the forefront of facial recognition system deployment among the civilian sector. Some of the seed money for facial recognition companies like Lau technologies/Viisage, Identix, and Visionics Corp. has come from DARPA. Lau developed the “Face in the Crowd” facial identification system used to scan the images of 100,00 spectators at the Super Bowl in Tampa. DARPA continues funding for the “Human ID at-a-Distance (HID) Program that combines biometrics with state-of-the-art integrated camera systems. HID technology expands facial recognition to include the particular ways an individual walks – gaits, strides, and other physical attributes of movement.[9]All of these technologies are under consideration in the areas of public safety and national identification.
The FBI is using a program called dTective that enhances the images of faces captured by bank and automatic teller machine cameras during banking transactions.[10] Booz Allen, the most ubiquitous of the private contractors in the entire critical infrastructure, information warfare, and homeland security arena, developed a sophisticated border control database system for the CIA that is largely based on biometrics. Known as PISCES (Personal Identification Secure Comparison and Evaluation System), the system matches passengers inbound for the United States against facial images, fingerprints, and biographical information. Funding for the system was included in a “terrorist interdiction system” line item in the Fiscal Year 1999 and 2000 Intelligence Authorization bills. Booz Allen has supplied the government with a high-speed data network for PISCES that permits information to be rapidly provided to U.S. authorities from over 14 high-risk countries. Although the system was up and operating in the months prior to September 11, it apparently failed to detect any of the terrorists involved in the attack.[11]

EXPANSION OF WIRETAPPING AND INTERNET MONITORING

Section 220 of the act authorized single search warrants and wiretap orders (roving wiretaps) across U.S. jurisdictional boundaries. Nationwide search warrants can be used to seize Internet and cable television subscriber information, including the means and sources of payment for such services. Voice mail messages may be seized pursuant to probable cause search warrants rather than more time-consuming wiretap orders.
The new law also stipulates what type of information the FBI may capture when monitoring communications. The FBI is not permitted to capture e-mail content through the use of a pen register/trap and trace wiretap order. Traditionally, pen register and trap and trace orders, which only require a very low threshold administrative “finding” by a Federal law enforcement officer of possible criminal activity, could only be used to monitor telephone call records, not the content of phone calls. With regard to the Internet, the FBI may only capture “addressing” and “routing” information with a pen register wiretap order. If a pen register device, such as CARNIVORE, captures “content” in violation of the Fourth Amendment suppression of all the evidence will be demanded by defense attorneys. In the case of the FBI capturing content of a web mail message using CARNIVORE or other pen register devices, the courts may rule that a constitutional violation has occurred. However the new law contains a loophole by not accurately defining what is meant by “addressing” and “routing” information.
Equipment currently used by the FBI to carry out pen register/trap orders on digital telecommunications systems also capture all electronic impulses transmitted by the network switch on which they are attached. These include impulses initiated by a caller after the call has been established, including entering personal identification numbers (PINs) for home banking or electronic ordering of merchandise. The Clinton Justice Department considered such information to be content and therefore not subject to pen register/trap interceptions.
In 1998, the Justice Department stated that “all of the information transmitted after a phone call is connected to the called party . . . is substantive in nature. These electronic impulses are the ‘contents’ of the call: They are not used to direct or process the call, but instead convey certain messages to the recipient.” It is uncertain whether the Ashcroft Justice Department will abide by this previous determination.
Law enforcement may also use sweeping Foreign Intelligence Surveillance Act (FISA) powers to conduct searches as long as foreign intelligence or counter terrorism is “a significant purpose” of the investigation. Originally, the administration argued that the foreign intelligence and terrorism criminal predicate need only be “a purpose” for such searches. However, congressional observers point out that if federal prosecutors imprudently use FISA evidence that falls short of the foreign intelligence/terrorism primary purpose rule, they may put into jeopardy all FISA evidence.
On July 15, 1998, the venerated Supreme Court hosted a conference on Critical Infrastructure Protection. The keynote speaker was Judge Royce Lamberth of the U.S. District Court for the District of Columbia and the chief judge of the FISA court – a virtual star chamber that once only granted the FBI broad domestic intercept authority in foreign intelligence matters. Although Lamberth conceded that some people felt national infrastructure protection is “a lot of hype,” he heartily endorsed the findings of the President’s Commission on Critical Infrastructure Protection
Responding to charges that the government cannot be trusted not to engage in any improper political surveillance, Lamberth contended that “[the Department of] Justice has a high standard on Title III intercepts” and that “the FISA court demonstrated that judges can be trusted to do the right thing.” However, in its twenty year history, the FISA court has never turned down a government request to conduct a wiretap and with USA PATRIOT those powers to conduct broad surveillance, searches, and seizures have been greatly expanded outside the foreign intelligence scope.
The Bremer Report was particularly scornful of the Justice Department’s Office of Intelligence Policy and Review (OIPR) in blocking surveillance applications to the FISA Court. The Bremer Report bemoaned the fact that the OIPR required actual “evidence of wrongdoing or specific knowledge of [a terrorist group’s] intentions in addition to [a] person’s membership in [an] organization before forwarding the application to the FISA Court.”[12] Under USA PATRIOT, the power of OIPR to block applications has been significantly reduced as long as suspicion of terrorist activity is a “significant purpose” of the application.
In USA PATRIOT, the Congress added a number of pork barrel projects above and beyond what was requested by the Bush administration. Funding for the Treasury Department’s Foreign Terrorist Asset Tracking Center was increased. The center’s functions have been expanded to include a capability to review all-source intelligence in support of tracking financial support networks. North Dakota Senator Byron Dorgan, D-ND, criticized creating a new Treasury Department intelligence center. He said that Treasury’s Office of Foreign Asset Control (OFAC) is better placed to track terrorist money. However, Dorgan complained that OFAC is used to severely fine Americans who travel to Cuba in violation of a U.S. embargo against that country. The small but vocal Cuban minority in Florida has consistently succeeded in having Cuba placed on a list of terrorist states. Under the current legislation, Americans who travel to Cuba could be charged as aiding terrorism. The new law also creates a National Virtual Translation Center that will make use of “cutting-edge communications technology to link securely translation capabilities on a nationwide basis.” There is also a provision in the act to establish a new National Infrastructure Simulation and Analysis Center (NISAC) to address critical infrastructure protection.
[1] Morton H. Halperin, et al., eds., The Lawless State (New York: Penguin, 1976), p. 138
[2] Charles Swett, Strategic Assessment: The Internet, unofficial paper prepared for the Office of the Assistant Secretary of Defense for Special Operations and Low Intensity Conflict (Policy Planning), dated April 17, 1995.
[3] Ibid.
[4] Douglas Farah, “A Tutor to Every Army in Latin America; U.S. Expands Latin American Training Role,” The Washington Post, July 13, 1998, p. A1.
[5] Statement of John Deutch before the Senate Governmental Affairs Committee, Permanent Subcommittee on Investigations, June 25, 1996.
[6] Kevin Whitelaw, “Terrorists on the Web: electronic ‘safe haven,’” U.S. News & World Report, June 22, 1998, p. 46.
[7] Oonagh Blackman, “FBI closes pro-IRA radio,” The Mirror, 5 October 2001, p. 10.
[8] “A Nation Challenged; Excerpts From Attorney General’s Testimony Before Senate Judiciary Committee,” The New York Times, 7 December 2001, p. B6.
[9] Wayne Madsen, “Biometrics: Powerful New Intelligence Tracking Method,” I-Ways, Second Quarter 2001, p. 10.
[10] Associated Press, “High-tech arsenal deployed in terrorist hunt,” 3 November 2001.
[11] Wayne Madsen, “Biometrics Supported in Post-Attack Security Proposals,” I-Ways, Third Quarter 2001, p. 7.
[12] National Commission on Terrorism, “Countering the Changing Threat of International Terrorism,” p. 11.


SUMMARY

For over a decade, blue ribbon panels of current and former defense, intelligence, and corporate officials have issued reports on critical infrastructure protection, information warfare, counter-terrorism, and homeland security. These reports, along with similar reports and white papers from various government-sponsored think tanks, have all argued for an increase in surveillance structures with little or no regard for the effect on our constitutional form of government and democratic traditions. Nevertheless, a number of draconian proposals for monitoring, surveillance, censorship and other limitations on individual freedoms sat on the shelves of various government agencies on the morning of September 11. With great dispatch and with little respect for our system of checks and balances, Attorney General Ashcroft, on behalf of the FBI, and long-serving White House counter-terrorism czar Richard Clarke,[1] acting in coordination with the intelligence community, set about ensuring that practically every wish list item of the FBI and intelligence community, respectively, was either included in the USA PATRIOT Act or included in President Bush’s various executive orders.

There is an ancient Chinese proverb, “Be careful what you wish for, it may come true.” For years, military-industrial policy makers contemplated all sorts of intrusive technologies and systems in the event of some “national emergency” involving critical infrastructures or cyber warfare. While lip service was paid to respect for civil liberties, it is now clear that the first priority was the marketing of new and intrusive surveillance technologies.


[1] Unlike any other official at his level, Clarke has served within the National Security Council during the first Bush, Clinton, and present Bush administrations.