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BORDC Companion to the 9-11 Commission Report

The 9-11 Commission released its final report on July 22, 2004. Both President Bush and Senator Kerry have announced that they would seek to implement the recommendations of the Commission if elected President this year. Additionally, Congress has held special hearings during its August recess to discuss ways to implement the Commission’s recommendations.

As the report is the result of almost two years of interviews, hearings, and research, it presents the nation’s best explanation into why the 9-11 terrorist attacks occurred and what counterterrorism measures should be implemented to prevent future attacks. Most of the press and public statements about the report have regarded the Commission’s recommendations for creating an Intelligence Czar and a National Counterterrorism Center. While increasing the ability of intelligence officers to gather and properly analyze information is an important aspect in countering terrorist acts, our elected officials cannot lose sight of the commission’s equally important recommendation that the increase in intelligence authority should not occur without proper guidelines to protect civil rights and personal privacy.

The following sections discuss issues that are relevant to BORDC’s work.*

The USA PATRIOT Act

The report barely mentions the USA PATRIOT Act. Nevertheless, what it does say is significant:

  • It dismisses one of the Department of Justice’s main justifications for the USA PATRIOT Act: That a “legal wall” prevented law enforcement communication; and
  • It acknowledges the public concern’s about the USA PATRIOT Act and calls for a “full and informed debate.”

No Legal “Wall”

The Commission correctly clarifies that the “wall” was a cultural, not a legal, barrier for sharing of information between intelligence officers and criminal prosecutors. In reference to an investigation for hijacker Khalid al Midhar ongoing before 9-11 the Commission notes, “Simply put, there was no legal reason why the information the [intelligence] analyst possessed could not have been shared with the criminal agent.” (Footnote 83, p. 539, emphasis added).

The Commission highlights: “It is now clear that everyone involved was confused about the rules governing the sharing and use of information gathered in intelligence circles.” (p. 271). The Commission further notes that Attorney General Reno’s 1995 procedures for regulating the sharing of information between intelligence officers and criminal prosecutors “were almost immediately misunderstood and misapplied.” (p. 79).

Nevertheless, the report ignores this history and contends, “The provisions in the [Patriot] act that facilitate the sharing of information among intelligence agencies and between law enforcement and intelligence appear, on balance, to be beneficial.” (p. 394). The report does not connect the dots and address the real issue of whether these provisions were in fact needed. If the “wall” was created by misinterpretation of internal agency procedures and regulations, internal memoranda or new and clearer regulations could have easily fixed the “wall”. In other words, a statutory change like the USA PATRIOT Act was not necessary to bring down the “wall.”

Although BORDC has never criticized the government’s desire for sharing information among agencies in a properly regulated way, we believe the lesson from the 9-11 Commission’s report is that the “wall” debate is symptomatic of a much larger problem—The DOJ is seriously misleading the American people about the justifications for the USA PATRIOT Act.

Protection of Civil Liberties

As far as discussing the public’s response to the USA PATRIOT Act, the Commission remarks, “Because of concerns regarding the shifting balance of power to the government, we think that a full and informed debate on the Patriot Act would be healthy.” (p. 394, emphasis added). In its discussion of ways to protect civil liberties, the Commission recommends

The burden of proof for retaining a particular governmental power should be on the executive, to explain (a) that the power actually materially enhances security and (b) that there is adequate supervision of the executive’s use of the powers to ensure protection of civil liberties. (p. 394-95).

BORDC wholeheartedly agrees with this recommendation. We also note that the recently released DOJ Report from the Field about selected applications of the USA PATRIOT Act does not meet this burden of proof. See our analysis to learn why.

The Commission further contends that “If the power is granted, there must be adequate guidelines and oversight to properly confine its use.” This has not been the case to date with regard to the DOJ’s uses of the USA PATRIOT Act. For instance:

  • The DOJ has repeatedly used the USA PATRIOT Act to detain and prosecute people and organizations, like bio-artists and webmasters, for their First Amendment activities.
  • The DOJ has continued to use the material support provision (Section 805) after federal judge Audrey Collins of the 9th Circuit declared it “unconstitutionally vague” last December.
  • The definition of “domestic terrorism” (Section 802) is so broad that it cannot be considered “confined.”

We call on members of Congress to exercise their power of oversight and hold the executive accountable for meeting its burden of proof.

Information Sharing and Privacy Concerns

Although the Commission recommends greater intelligence gathering powers, including the expansion of the CAPPS program and the creation of a National Counterterrorism Center (NCTC), its report presents a balanced review of the potential drawbacks of this added power and stresses the need for regulatory constraints.

For example, in calling for increasing airline passenger screening, the Commission warns of the potential pitfalls:

Competing risks include ‘false positives,’ or the danger that rules may be applied with insufficient training or judgment. Overreactions can impose high costs too—on individuals, our economy, and our beliefs about justice. (p. 387).

These are all points highlighted in BORDC’s recently released white paper—Total Information Awareness & Beyond: The Dangers of Using Data Mining Technology to Prevent Terrorism (see pgs. 16-17).

In response to these concerns, the Commission calls for increased cross-agency regulatory and other legal guidelines for the collection and sharing of this information. A number of reports, including those of the Markle Foundation, the Technology & Privacy Advisory Committee, and our own white paper, had previously called for such guidelines.

The Commission called on the Executive Branch to develop the rules, which it considers to be critical:

The necessary technology already exists. What does not are the rules for acquiring, accessing, sharing, and using the vast stores of public and private data that may be available...Sharing and uses of information must be guided by a set of practical policy guidelines that simultaneously empower and constrain officials, telling them what is and is not permitted. (p. 419).

The Commission also calls for greater reliance on "instincts and discretion of well trained human beings" (p.387) who are less prone to error than predictive analysis programs such as the MATRIX, which determined that 120,000 people were likely terrorists during a Florida test-run. According to the Commission, we need a “system of screening, not categorical profiling. A screening system…does not involve guess work about who might be dangerous.” (p. 387).

Detentions & Torture

The report also discusses the detentions related to the 9-11 investigation. It mentions that the “inspector general of the Justice Department found significant problems in the way the 9-11 detainees were treated.” (Download the inspector general’s report.) But the Commission also cites the benefits, noting that six of the 768 “special interest” detainees “were directly linked to a terrorist organization” and that the DOJ gathered “new leads helpful to the investigation of the 9/11 terrorist attacks.”

The report does not comment on whether this strategy has been effective in countering terrorism since 9-11. It does, however, encourage people to read the transcripts of its Sixth Public Hearing, which discussed the issue.

In discussing detained persons “who are not being held under a particular country’s criminal laws,” the Commission presents its concern that “[a]llegations that the United States abused prisoners in its custody make it harder to build the diplomatic, political, and military alliances the government will need.” The body calls on the United States and its allies to develop “a common coalition approach toward the detention and humane treatment of captured terrorists.” (p. 380). The report observes that the Geneva Conventions on the law of armed conflict are customary international law; in other words, they apply throughout the world, regardless of whether the country has ratified the Geneva Conventions.

Immigration Policy

The report’s section on immigration policy is unfortunately draped with irony. The Commission observes:

Admitting large numbers of students, scholars, businesspeople, and tourists fuels our economy, cultural vitality, and political reach. There is evidence that the present system is disrupting travel to the United States. Overall, visa applications in 2003 were down over 32 percent since 2001. In the Middle East, they declined about 46 percent. (p. 389).

The 9-11 Commission hypothesizes in a footnote that Special Registration (NSEERS) may have been a factor in the sharp decline of visa applications from Arab and Muslim countries. (Footnote 38, p. 564).

Nevertheless, the Commission proceeds to recommend a number of policies designed to tighten our immigration system. One such recommendation is to expand US-VISIT to be a complete entry-exit screening system using biometric information for everyone entering the United States, including Americans returning from another country and Canadians and Mexicans visiting the United States. The report also criticizes the former INS for not implementing a foreign student tracking system (like the present day SEVIS) before 9-11. (p. 81).

The report states that “Our borders and immigration system, including law enforcement, ought to send a message of welcome, tolerance, and justice to immigrant communities.” (p. 390). Regrettably, this statement does not recognize the anxiety and outrage that the cited programs, along with ineffective policies not mentioned in the report, such as detentions without charges, rounds of FBI questioning of Arabs and Muslims, and mass deportations, have provoked in targeted communities and foreign visitors.

More information

*In the interest of providing this companion guide to the public quickly, BORDC has not analyzed the entire 585-page report. If you read the report and notice incorrect assertions or additional items we should include in this companion, please let us know by sending an email to info@bordc.org.