The New Normal

By Stephanie Friedberg

In April 2004, Brandon Mayfield and his wife suspected that a stranger had been in their house. The signs of intrusion were subtle but unsettling — doors normally left unlocked were bolted and their carpet was freshly vacuumed.

When Brandon was arrested a month later under a material witness warrant, the Mayfields became certain (though the FBI has never confirmed) that they had been subjected to a “sneak and peek” search. Authorized under the USA PATRIOT Act, sneak and peek warrants allow authorities to search residences without notifying the target of the probe until much later. While traditional warrants require law enforcement to notify and allow the target to be present at the search, sneak and peek searches are executed in secret. After two weeks in prison, the FBI admitted that it erred in its identification of Brandon, and released him.

The Patriot Act, one of the greatest expansions of law enforcement authority in the nation’s history, became law barely a month after 9/11. Although the law included sunset provisions ensuring that the most controversial powers, like sneak and peek searches, would expire if not reauthorized, Congress has since renewed the law at every opportunity. Each time there has been pressure from the executive branch — under both Bush and Obama — based on generalized “national security” concerns.

But these broad new powers are not used only, or even primarily, for terrorism cases. A 2009 Administrative Office of the United States Court report acknowledged that the majority (65 percent) of sneak and peek warrants were for drug-related offenses, while less than 1 percent were for terrorism-related charges. These warrants have become a permanent part of law enforcement’s general toolkit.

Sneak and peek warrants are only one example of expansive new power to gather information about Americans amassed by the federal government in response to 9/11. This is fast becoming “the new normal” in the country’s legal landscape.

The 2008 FISA Amendments Act (FAA), for example, dispensed with the decades-old requirement that the government obtain a warrant before eavesdropping on the international phone calls or e-mails of Americans. Instead, the government need only certify to a special court that its surveillance program is designed to target the non-citizens on the other end of these communications.

After 9/11, Congress also expanded the FBI’s authority to issue “National Security Letters” (NSLs). These letters are a type of administrative subpoena requesting information, ranging from bank statements to e-mail records, held by third parties that the Bureau believes is “relevant” to a terrorism investigation. Unlike other demands for private information the FBI does not need judicial approval for NSLs, and, unsurprisingly, they have been abused. In 2007, the Justice Department’s inspector general reported widespread illegal or improper issuance of NSLs by the FBI from 2003 to 2005.

The Nationwide Suspicious Activity Reporting Initiative (SAR) program gathers even more information about Americans. This program allows police officers to submit “suspicious activity” reports, including those collected from the private sector, to an FBI database accessible to other law enforcement agencies. The Department of Homeland Security has attempted to define “suspicious activity” in a neutral manner and the SAR guidelines prohibit profiling. But because they give local police and private citizens broad discretion to decide whether everyday activity – e.g., photographing a bridge – is suspicious, rather than focusing on suspicion of criminal activity, watchdog organizations have found that reports commonly target certain racial and ethnic groups. This is racial profiling, a tactic that Secretary of Homeland Security Janet Napolitano
Napolitano and her predecessor Michael Chertoff have found, in other contexts, to be of questionable value for counter-terrorism efforts.

In a particularly troubling development, since 9/11 the Justice Department modified its guidelines governing FBI domestic intelligence activities to authorize infiltration and investigation of political and religious groups without any objective basis for suspicion. In August 2006, the FBI ordered an ex-con to infiltrate the Islamic Center of Irvine and solicit its members to help organize a violent attack. Unaware that the man was in fact working for the FBI, the community reported him to the FBI and obtained a restraining order against him. Since 2008, the FBI has also been gathering information about “ethnic-oriented” businesses, “behaviors,” and “lifestyle characteristics” in order to “map” communities with concentrated ethnic populations — a tactic authorized by the current guidelines.

These kinds of techniques can damage trust between the FBI and the American Muslim community; a trust that is essential to combating terrorism. After learning the truth about the FBI informant in its midst, the Islamic Center filed a lawsuit against the FBI. As Omar Kurdi, a Center member noted, “The FBI wants to treat the Muslim community as a partner while investigating us behind our backs. They can’t have it both ways.”

Proponents of the foregoing intelligence-gathering policies identify the absence of a major attack since 9/11 as evidence of their effectiveness. In fact, every study of post-9/11 domestic security has found that traditional policing, rather than intrusive new surveillance laws and techniques, has been the most effective in thwarting terrorist plots. Intelligence officials complain that they are drowning in data. “Agencies are flooded with information to analyze -the vast majority of it just informational white noise,” reportedreported the Breakthrough Institute, which “may be more harmful than helpful.”

During the emotional aftermath of 9/11, lawmakers made hasty decisions about national security policy and damaged the relationship between citizens and government. It’s time to reconsider. Rather than throwing additional governmental powers at the problem, we need to examine the effectiveness of the authorities we’ve already adopted, and the cost to our values and finances, before these powers become further entrenched in our system. Given President Obama’s embrace of many Bush-era national security policies, this is likely to be an uphill struggle. But national security is simply too important to accept “the new normal” without asking whether we’re actually safer than we were ten years ago — or whether we’re sacrificing our security along with our cherished liberties.

Stephanie Friedberg was a summer intern at the Brennan Center for Justice at New York University School of Law. She is a second year law student at the University of California, Irvine, School of Law.