We now have seen the birth of the Office of Homeland Security, with Tom Ridge in charge of this new super-sized cabinet-level department that combines numerous federal law enforcement agencies under a single command. As a result, some 170,000 “unionized” employees have been converted to “ at will “ employees in the interest of the “flexibility” needed to fight the new style wars of the 21st century.
For its part, the Pentagon has concocted a regime called, “Total Information Awareness” under the tutelage of John Poindexter, a recycled convicted felon from the Reagan years. TIA will allow for surveillance of suspected terrorists by mining the information files of average citizens.
Even more recently we learned that there is a draft of PATRIOT II, which will further broaden the government’s power of surveillance and detention. The ACLU has already weighed in. denouncing this proposed law which would, among other things, authorize wiretaps for up to 15 days without court approval during “times of emergency.”
And, of course, we still have the military tribunals enacted by executive order.
Mr. Michaels argues, persuasively I think, that America is well on the way to becoming a “National Security State” in the wake of 9/11/01. No Greater Threat sets the criteria for defining such a national security state, analyzes in detail the 10 Titles of the USAPA, and then explores each of the 12 indicators of a national security state and how far we are embarked towards the realization of each of them.
Finally, he puts the entire reaction of our government to the 9/11 tragedy in perspective, and challenges all of us to be the kind of watchdog citizens and proactive guardians of our civil rights that we must be in order to preserve our democracy and its freedoms.
Indeed, the greatest threat could well be citizen complacency in allowing our government to see only a militaristic response to preserving the true security of our nation.
This book may be tough going, wading through the arcane and diabolical minutiae of the act’s provisions, but there is a big payoff in the second part of ›the book when the author treats the consequences that have already occurred and are occurring each day as federal authorities act on the new authorities they possess by virtue of the USAPA.
Mr. Michaels, an attorney who lives in Towson and specializes in legal research, dates the genesis of the National Security State to the Reagan-Bush administration, which was marked by “a rise in military adventurism, and the militarization of foreign policy and the national budget, as America pressed its interests of ‘freedom’ around the world.”
With a policy of “low intensity conflicts,” and acting as a major arms supplier worldwide, the seeds of terrorism began to be sown. Under Reagan, the US also began to withdraw from international treaties, an inclination only accelerated under Bush II.
Since 9/11/01 there has been a decided movement to “extreme patriotism and total reliance on the global reach of the military,” as Michaels puts it. The dominance of the military, along with the pivotal role of intelligence, will move solidly into the domestic realm post 9/11. A series of laws and executive orders starting with the National Security Act of 1947, and accelerated during Reagan, Clinton, and Bush, have brought us to the brink of the National Security State.
Mr. Michaels warns that rights and freedoms once lost are unlikely to be regained without a “fundamental shift in government or in national attitudes.” The American people have, perhaps, too much trust in their leaders when it comes to national security, and have not resisted, in the main, these new draconian laws that restrict basic rights and liberties.
Part I of the book is a sweeping look at historical antecedents which become precursors of a national security state. Michaels does yeoman’s work in setting the stage and giving context to his analysis of the USAPA. He quotes John Dean, former White House counsel under Nixon. Mr. Dean sees in the post 9/11 terrorism crisis, the potential for the U.S. to be transformed into a “constitutional dictatorship” in the form of a president imbued with unlimited powers in times of emergency.
There are 10 major parts or “Titles” to the USAPA; and, all told, there are 150 sections. The Act was approved by Congress, without notable dissent, virtually overnight, while the ashes of the World Trade Center were still hot.
Mr. Michaels suspects that most of the provisions of the Act were already drawn up waiting for the appropriate moment to unleash it upon an acquiescent Congress and public. In most of its provisions, it amends existing federal laws. It creates many new federal offices, task forces, and bureaus, and authorizes billions of dollars of expenditures. It is extremely complex and it remains doubtful that many members of Congress took the time to read it prior to its passage.
Mr. Michaels examines each section in minute detail, and provides extensive footnotes. The inclusion of the footnotes at the bottom of each page is off-putting at first, but they make the book easier to read and add considerable background for a full understanding of the law’s provisions.
Each section of the book builds upon the last, and the reader is soon aware of the immensity of the pretensions of this Act and will be, perhaps, stunned and scared, contemplating scenarios where one might be swept up, albeit inadvertently, in one of the many dragnets aimed at entrapping terrorists and their supporters. There are some safeguards in the Act.
Many, but not all, of the Act’s provisions will sunset in 2005.
Mr. Michaels cautions that citizens must be vigilant to see that many of the provisions most damaging to the exercise of civil rights, are not extended without debate. There is also the distinct probability that many of the provisions will be challenged in the courts on constitutional grounds.
Given the lack of scrutiny by Congress in enacting this legislation, the courts must step up to the plate to assume their constitutional duties to protect the people against hasty and unwise legislation. Yet in view of the efforts of President Bush to “stack” the federal judiciary with judges having extremely right wing views, we may not expect too much help from this branch.
The USAPA, Title by Title
Titles I through V of the Act deal with the definition of terrorism and foreign intelligence information, and the conduct of foreign affairs. Suffice it to say that the definitions are broad, but also imprecise. There is ample opportunity for innocent people and organizations to be snared in such a wide net as the Act allows. Legitimate political dissent could be constrained under these provisions as defined. A proscribed terrorist act must be deemed “dangerous to human life,” but, although this would seem to exempt peaceful protest and non -iolent civil disobedience, it is not certain how the test of “danger” will be applied. As Mr. Michaels warns rather ominously, many things relate to many other things.
An examination of Title I, “Enhancing Domestic Security Against Terrorism,” reveals an annual appropriation authorization that would exceed several billion dollars. It also begins the persistent effort to spy on internet traffic through a “national network of electronic crime task forces” under the Secret Service. Electronic crimes, as defined, would extend beyond terrorism, and the authority to seize property and freeze assets is greatly expanded.
Title II is called “Enhanced Surveillance Procedures.” Many of this Title’s provisions are permanent. This Title allows a tremendous expansion of information-sharing among federal investigative agencies. All forms of communications over cell phones, computer line, cable connection or fax machine are within the scope of “interceptions” allowed by this Title. This would include E-mails, and resurrects fears of the notorious “Carnivore” program used by the FBI for questionable purposes. Under this Title, grand jury testimony and financial and consumer records are also types of information to be shared by federal agencies. No court order is needed and there is no restriction in the uses to which this information can be put.
Mr. Michaels explains how the concept of information-sharing can be abused. It will also be a real problem in dealing coherently with the mountains of information received, creating a backlog which could impede rather than improve terrorism investigations. Warrant-less searches reminiscent of the infamous Cointelpro program of the FBI, and “sneak and peek” warrants for “non-physical” searches, present serious challenges to the Fourth Amendment, and do not necessarily have to do with terrorism, nor be restricted to non-US citizens. Voicemail messages are now to be treated the same as E-mail. In some cases, a court having jurisdiction must be provided with a record of the surveillance device after the fact.
There is no legal recourse to an individual whose information has been wrongly acquired by investigators. No statement of probable cause is needed under this Title. The person whose records are sought need not even be a target, but simply have records that the FBI wants, as long as the FBI agent states its objective as obtaining foreign intelligence information.
Title III is “International Money Laundering.” This Title concerns correspondent accounts and private banking accounts owned by non-US citizens. The Treasury Department will require additional record-keeping and reporting requirements on the part of ›domestic banks and require “enhanced due diligence” when banks identify “special measures” accounts. Certain Congressional committees will be given notice within 10 days, but there is no guidance on what to do with this information. There is no provision for a court challenge by a domestic financial entity faced with special measures, or by an account holder of a targeted account. Non-profit organizations and other NGO’s could have their finances investigated if the Treasury Department feels they may be providing financial assistance to terrorist organizations, even if they are “unwittingly involved.” There is no judicial or legislative supervision. Banks must share all information with other banks and will probably have to hire extra officers with special training to handle sensitive information. The forfeiture and seizure provisions of this Title are vastly increased, and now resemble the ancient “forfeiture of estate” or “corruption of blood” practices outlawed in the Constitution. These confiscation powers are extensive and do not require probable cause or any court involvement.
Title IV is “Protecting the Border.” Mr. Michaels states that this and the remaining parts of the USAPA will not sunset. Title IV deals with immigration and terrorist organizations. Michaels suggests that this and the remaining titles leave little doubt of the potential for the US to become a National Security State. The danger has to do with the government’s ability to designate terrorist organizations without judicial review. How a “finding” is made by the State Department, and what evidence is used to support a finding, is not detailed. A member or supporter of such a designated group may have no rights. The “innocent involvement” defense is not available to a foreign national. The burden of proof is on the accused. It is guilt by association, and overturns the bedrock legal principle that a person is innocent until proven guilty. Due process guarantees are almost non-existent.
Mr. Michaels’ conclusion is that a “disturbing amount of unchecked power is now placed in the Executive Branch.”
Another part of the Title allows law enforcement officials to take custody and detain certain identified aliens in this country. All that is necessary is to “certify” that he or she is engaged in an activity that endangers the national security of the U.S. An alien so certified can be detained for 7 days before being charged with a crime. If the alien cannot be removed or deported because that is deemed too dangerous, he can be held another 6 months. This 6 months can be extended for an additional 6 month periods at the whim of the Attorney General. The only relief could be a habeas corpus petition to a federal court. It is unlikely that a federal court would grant such a petition in defiance of the Justice Department. The Justice department will have to report to Congress every 6 months on the aliens in its custody. The report goes to the Judiciary Committees of the House and Senate. The report does not need to give names of the aliens or when they were taken into custody or where held. Title IV allows for considerable secrecy in this entire process. The monitoring of foreign students is also ramped up. $37 million has been appropriated for this purpose.
Title V expands the investigatory powers of the FBI. Private records can be searched and they need not be the records of aliens. The affected person is not to be informed that the information was obtained. A single certification by a federal investigator can elicit private and sensitive information without a court order or a showing of probable cause. Records that would be freely available to investigators under Title V would include telephone records, financial records, consumer reports and educational records.
Title VII deals with domestic terrorism and raises the specter that activities which are legitimate expressions of First Amendment freedoms of speech or political protest would meet the expanded definitions of terrorism. The conduct must be dangerous to human life, but who will make this sometimes subjective judgment? Also, the conduct must seek to change government policy by “intimidation or coercion.” In reading this part of the book, it was clear to me that the recently departed activist, Phil Berrigan, and many of his friends and associates could be arrested as terrorists or as harborers of a terrorist under this Title. Another section elevates computer hacking to a terrorist act in many situations.
The author writes extensively on the implications of an Act that he says “is nothing less than a fundamental change in national priorities and resources.” It is obvious that Mr. Michaels fears that the cure may be worse than the disease.
Without going into the 12 elements of a national security state, I’ll mention some of the signs that we are moving ineluctably in that direction. Of course, the Total Information Awareness initiative headed by Poindexter, a cynical appointment at best, is an Orwellian proposal. John Ashcroft, for his part, has urged government agencies to resist FOIA requests. Secrecy is the watchword. Star Chamber-like proceedings are not hard to imagine; already we have seen executive privilege used audaciously in recent months.
The multiplicity of warnings of terrorist threats, codes orange and the like, will keep the population anxious, and the authorities can take credit when nothing occurs, as if a color code will deter fanatics.
Michaels describes how “America is perilously close to hosting a fully supportive national TV broadcast press, in near total service to the state.” Concentration of ownership of media has made news a function of entertainment corporations. No coverage of dissenting groups and organizations is regularly carried, ›and cable—supposed to be an antidote to the commercial networks—has reverted mostly to sports and movies, food and golf and other specialty entertainment content. Mainstream TV glorifies the military and police; over 30% of prime time TV, Michaels points out, is devoted to police and crime and military programs.
For example, where is the coverage of the UN? It might surprise people to know that the UN already had passed many Conventions and Resolutions prior to 9/11 which dealt with virtually every area that the USAPA does, but with a coordinated effort of all nations to protect all citizens of the world, not just Americans.
There is scant coverage of international affairs on TV or of the proceedings of the World Court which, of course, America does not recognize.
Mr. Michaels covers the tremendous costs of homeland security as envisioned in the USAPA and other programs, and notes also that a small fraction of this money applied to world poverty and diseases could ease the conditions that breed social unrest and desperation. He points out the tendency of legitimate feelings of patriotism to lean towards nationalism. Dissent is seen as dangerous and dissenters are seen as cowardly and giving aid and comfort to the “enemy.” President Bush’s pronouncements that anyone not with him is aiding terrorism were not helpful.
Virtually all organized religious opinion is against war and militarism as a solution to terrorism.
One of the signs of a national security state is the overwhelming presence of agencies, boards, commissions, and corporations involved in homeland security. Many were in existence or in the planning prior to 9/11/01, but they are now taking on expanded roles, are more public, and penetrate deeply into the fabric of our society. Mr. Michaels observes, “A permanent wartime economy has long been the norm.” He dates this back to the years immediately following the end of WWII. He predicts that “homeland security planning, security technologies and information security will be growth industries in America for a long time to come.”
Another sign of the growing security trend is the targeting of groups and individuals. Some local policing authorities are resisting federal encroachments onto their turf. Portland, Oregon refused ›to cooperate with federal authorities in questioning men of Middle Eastern origin without any evidence of a crime or criminal intent. Other cities have refused as well, including Seattle, San Francisco, Denver and Detroit. Nonetheless, the States are also setting up the machinery of “little PATRIOT Acts” of their own, whether by federal mandate or otherwise. INS rules have become much stricter. Visa rules for visitors and students are strictly enforced, where heretofore minor infractions, such as overstaying time, were mostly ignored. The lawyer-client privilege has been invaded when the Justice Department insists on eavesdropping on private lawyer-client conversations. There are many violations of due process in federal detention sweeps. The overriding message seems to be that the ends justify the means. It has even been suggested that in certain circumstances, torture can be introduced into criminal interrogations.
A major fear is that the FBI will conduct wider surveillance of groups that are deemed to be subversive. As in the case of Cointelpro in the 1960’s, groups will be targeted without necessary prior cause or evidence, and without full chain of command approvals. The FBI will be allowed to move into almost any public area of American life. New technologies will enable this enhanced surveillance. All internet traffic can be captured. Right now, 47% of American large corporations routinely store and review employees’ e-mails. The average person may soon be caught on camera 200 times a day. Face recognition cameras are even used at the Statue of Liberty, ironically enough.
All this increased security presence is discouraging air travel, and tourism is way down. Many foreign travelers are forsaking America for more user-friendly venues, and many schools in America are permanently canceling all school trips. Mr. Michaels has found that 180 tour group companies have applied to SBA for disaster loans following 9/11. And the country is preparing our youth for the spy business. Recruitment is up for the CIA and the military corps, and the Homeland Security Act provided considerable money for scholarships at colleges that teach students to become “cyber cops.” Political protest groups need to be aware that a broad interpretation of computer crime could be an act “dangerous to human life or intended to influence government policy.”
The recent virtual march organized by http://MoveOn.org, flooded the White House and Senate switchboards with continuous calls over an entire day, as well as with faxes and e-mails. The action temporarily shut down some communications systems. Could this be an act of domestic terrorism under USAPA? You’d better hope it is not John Ashcroft making this determination.
The proposal to have merchants, delivery people, postmen and meter readers spy on citizens was taken off the table after widespread public negative reaction; but, there is now a tendency for some to think they are doing their patriotic duty if they turn in their neighbor when they think they detect unusual or suspicious behavior. If we go to war with Iraq, and the American “human shields” that surround Baghdad survive, it will be interesting to see how they are treated when they return home.
In the final chapter of No Greater Threat, Mr. Michaels urges citizens to be watchful and also urges a broadened understanding of what sort of actions will make us “safe.” He quotes Dr. Martin Luther King, Jr., Wendell Berry and others who make a compelling case for a different, more peaceful and more enlightened approach to making the world a better place for all life, human and otherwise.
I came away from this book even more convinced that there can be very little justification for war anymore, even though I do not think of myself as a pacifist. The burden of citizenship has never been greater. The world demands that we be informed, know our history and the histories of other countries, and speak to power with spiritual and moral authority.
After reading No Greater Threat, it will be impossible to be apathetic anymore.
For more information about No Greater Threat, or to order a copy ($29.95›paperback, $48.95›hardback), visit: nogreaterthreat.com or purchase through Amazon.com or other booksellers. It is also available directly through Algora Publishing, algora.com.