I have a 9/11 story. Everyone with a 9/11 story remembers the time when everyone else had a 9/11 story themselves. It would come up unexpectedly in strange places. Waiting in line, work, with friends, public transportation, the dog park. If you know, you know. We’d take turns telling each other about where we were when it happened. For years this went on, but the passage of time and the tumult of the day eventually slowed the pace.
Now those of us with 9/11 stories are beginning to share our experiences with the first adult generation without a direct memory of the event itself. Anyone aged 23 or younger was born after 9/11. They grew up entirely within the cultural and legal environment defined by the shock of the attack, and the tragedy of the aftermath.
While the image of 9/11 may remain sharp, the ensuing weeks and months were a dizzying buildup for war. The recent George W. Bush administration, just months after what counted as a controversial election in those days, eagerly swung open the doors to the various three-letter agencies and sculpted their long-sought priorities into the signature legislation of the 9/11 era, the USA Patriot Act—Uniting And Strengthening America By Providing Appropriate Tools Required To Intercept And Obstruct Terrorism (October 26, 2001).[1]
The Patriot Act was the match that turned the post-Nixon era of governmental self-oversight to cinders. Those in favor of a powerful, unrestrained executive at the helm of a vast, highly organized domestic surveillance apparatus seized the moment. It took some time and the complicity of both political parties and now, 24 years later, that’s exactly what we have. In order to understand how this happened, let’s take a look at what the central aspects of the Patriot Act actually accomplished.
DOMESTIC MASS SURVEILLANCE
The Patriot Act ushered in an entirely new paradigm in mass surveillance made possible by the rapid development of technology and the absorption of the internet into every facet of life. Section 213 authorized “sneak and peek” searches. These permitted the government to access information related to a person’s internet usage and private digital communications without informing the target of the search as previously required.
Section 215, known as the “tangible things” or “business records” section of the Act changed the way reviewing courts that were created by the shadowy Foreign Intelligence Surveillance Act of 1978, known as FISA courts, removed oversight requirements in the name of state secrecy. Absent any oversight, the FISA court permitted the warrantless, mass collection of bulk metadata, a program that only became known to the public following the disclosure by whistleblower Edward Snowden.
Section 216 applied to the warrantless collection of search histories. Section 206 permitted the use of “roving surveillance equipment” permitting the mass surveillance of whole geographic areas. The list goes on.
With the wind at their backs and an open ocean of data before them, the NSA, FBI and an entire web of state, local and federal agencies (“Fusion Centers”) began to push the limits on how vast a surveillance network they could build. Even after repeated exposure, and despite the stated intent that the law was supposed to “sunset” once the crisis had passed, republicans and democrats joined hands to reauthorize these sections of the Patriot Act for over 2 decades and counting. This understates the fact that when government takes away your rights, it is extremely difficult to claw them back without major (revolutionary) changes in Congress/government/etc.
LET FISA COOK
The Foreign Intelligence Surveillance Act of 1978 created an independent court system to evaluate the lawfulness of domestic government surveillance requests in order to keep state secrets from the American people. This was a purported response to deep public skepticism of American spy agencies following the legacy of J. Edgar Hoover and the FBI’s role in attempting to suppress and derail the civil rights movement, including murdering civil rights leaders. Sounds reasonable right? Government oversight, particularly when civil liberties within the USA are involved seems like a good idea for democracy. What could go wrong?
A lot apparently. FISA oversight turned out to be a mere rubber stamp of collusion. The FISA court rejected just .03% of the government’s requests to spy. Democrats, while fully complicit in voting for and reauthorizing the Patriot Act, occasionally made attempts at reform, however the “reform” promised was in name only.
The era of total secrecy took a pause in 2015 with the passage of the USA Freedom Act of 2015, ‘‘Uniting and Strengthening America by Fulfilling Rights and Ensuring Effective Discipline Over Monitoring Act of 2015’’ which placed tighter controls on FISA, caused the declassification of prior FISA rulings and ended the practice of mass data surveillance. At least it purported to. While no new whistle blowers have come forward with information on the scale of the Snowden leaks, the original NSA data collection program was also roundly disclaimed before it was revealed. The reprieve was short lived. In 2024, republicans revived and approved FISA’s authority to review warrantless applications once again.
FUSION CENTERS
A widely spread bit of state propaganda post-9/11 was that the government’s information silos had prevented the spy agencies from coordinating to thwart the attack. To address this, fusion centers were established as hubs for information sharing between federal, state and local law enforcement. The problem criminal procedure superfans will spot immediately is that state and federal rules regarding privacy protections vary significantly from jurisdiction to jurisdiction. California and Oregon, for example, have constitutional privacy rights that are more stringent than the federal rule. In order to prevent state law enforcement officers from obtaining surveillance data that would be illegal under state law but not federal law, California passed SB828 creating the 4th Amendment Protection Act.
Fusion centers have played critical information-sharing roles in the government’s surveillance of political activists and marginalized communities. For example, in 2009 it was revealed that antiwar activists in the Pacific Northwest had been infiltrated by an undercover agent who shared information on the activists’ activities directly with US Army intelligence, by utilizing a fusion center. For the last three years, CLDC has been representing two climate activist organizations that learned that the Oregon Titan Fusion Center was illegally maintaining dossiers on their political and social activities, in violation of Oregon statute.
FEAR IS THE MIND KILLER
The expansion of the surveillance state and the use of government secrecy to obfuscate the scale of the supercharged spying apparatus did not occur in a vacuum. A climate of fear was purposefully cultivated by the government at the time. You may still chuckle over the ridiculousness of “freedom fries” but do you also remember the color coded terrorism warning index? For the unaware, there was a 10 year period where you could check the government’s assessment of the likelihood of a terrorist attack in roughly the same manner you check the air quality. Sometimes it would just go up for a few days, and then go back down again without explanation, contributing to an uneasy social climate.
Open racism, especially targeting Muslims were used as political tools in the cynical push to war. The war itself, a topic so vast it deserves to be discussed on its own, contributed to the local militarization of police by providing decommissioned weapons of war for free to domestic police agencies ostensibly for public safety purposes. The hook was that local police could only keep the war toy if they used it within one year of receiving it further spurring the militarization of police and brutalization of the populace. If you ever wondered why your small town’s police department inexplicably has a tank, this is the reason. The application of military force abroad, only to find that same force returning home for domestic application is sometimes called Foucault’s Boomerang after the postmodernist thinker observed the brutal tactics used by French occupiers struggling to hold Algeria used against student protesters at home. Say what you will about the pleasures or displeasures of reading Foucault, but the guy had some hits.
TELLING THE STORY
I was 17 years old on 9/11. I watched the second plane hit the tower on a rolling television cart in my English homeroom from a suburb just outside Los Angeles. My teacher openly speculated “LA was next.” It wasn’t, but when the Army recruiters showed up they certainly stressed that it might have been. I watched my friends and classmates enlist. The ones that came back did not come back the same. That’s my 9/11 story.[2] It’s not dramatic, but it’s the story I tell when the topic comes up.
The 25th anniversary of 9/11 is next year. One assumes the current administration will mark the event, but it’s unlikely to be particularly reverential. The expansive surveillance state still exists, even less accountable than before as the integrity of governmental institutions continues to degrade. The normalization of both state surveillance of political activists and other community members and the militarization of US law enforcement has been swift and mind numbing. As we tell our 9/11 stories to those who were not there, we have an obligation to tell them the truth about what happened. Not just on the day, but in the days and weeks and years afterward. It’s not just our experience anymore. It is theirs as well.
~ Written by our Criminal Staff Attorney, Matt K.
https://gwtoday.gwu.edu/national-security-archive-gw-discovers-vietnam-era-surveillance-targets
https://www.congress.gov/crs-product/LSB10652
https://scholarship.law.nd.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1092&context=jleg
https://supreme.justia.com/cases/federal/us/531/98/
https://www.eff.org/nsa-spying
https://www.wired.com/2014/08/edward-snowden/
https://www.justice.gov/archive/opa/pr/2005/April/05_opa_163.htm
https://www.wired.com/2013/06/nsa-whistleblower-klein/
https://www.theguardian.com/commentisfree/2013/jun/12/snowden-surveillance-subverting-constitution
https://epic.org/foreign-intelligence-surveillance-court-fisc/
https://www.counterpunch.org/2021/12/31/j-edgar-hoovers-legacy-spying-on-democracy/
https://www.lib.berkeley.edu/about/news/fbi
https://www.motherjones.com/criminal-justice/2013/06/fisa-court-nsa-spying-opinion-reject-request/
https://www.senate.gov/legislative/LIS/roll_call_votes/vote1071/vote_107_1_00313.htm
https://www.justice.gov/archive/ll/subs/p_congress.htm
https://act.eff.org/action/stop-the-fisa-improvements-act
https://www.reuters.com/article/us-usa-nsa-spying-idUSKBN25T3CK/
https://www.brookings.edu/articles/9-11-and-the-reinvention-of-the-u-s-intelligence-community/
https://www.dhs.gov/fusion-centers
https://www.aclunc.org/campaign/california-constitutional-right-privacy
https://calwatchdog.com/2014/05/02/ca-lawmakers-look-to-pull-plug-on-nsa-snooping/
https://law.justia.com/codes/california/2022/code-gov/title-1/division-7/chapter-32-5/
https://www.democracynow.org/2009/7/28/broadcast_exclusive_declassified_docs_reveal_military
https://www.wired.com/2012/06/cops-military-gear/
https://www.brookings.edu/articles/how-9-11-helped-to-militarize-american-law-enforcement/
https://www.brookings.edu/articles/how-9-11-helped-to-militarize-american-law-enforcement/
[1] Side note: it was the passage of this opening volley to the resurgence of authoritarianism that sparked the creation of the Civil Liberties Defense Center. Founder Lauren Regan traveled around the US teaching activists, law students and lawyers what the Patriot Act changed and how it would impact political organizing and activism for years to come (decades?).
[2] Lauren would add that shortly after 9/11, the level of surveillance and funding that was focused on the Northwest environmental and animal rights movements went through the roof. Soon after, the Green Scare and subsequent arrests of ALF and ELF activists would occur, and Alberto Gonzales, then US Attorney General, would announce the capture and prosecution of “ecoterrorists.”
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