President Bush signed the landmark Homeland Security Act into law Monday, setting in motion the most ambitious reorganization of the federal government in decades. Already, though, critics on both the right and the left are worried that measure will create a mechanism for unprecedented spying on U.S. citizens.
One program in particular is emerging as a concern: the Pentagon's Total Information Awareness system. Privacy experts say the program will allow the government to routinely mine thousands of databases -- from drivers' licenses to bank statements to telephone records -- to compile dossiers with scant regard for people's innocence or guilt.
The critics' fears are compounded because the intellectual author of the program is retired Adm. John Poindexter, the director of the Information Awareness Office of the Defense Advanced Research Projects Agency. Poindexter achieved notoriety as the highest-ranking official in the Reagan administration to be found guilty in the Iran-contra scandal. As a central figure in the covert plan to sell weapons to Iran in hopes of freeing American hostages then held there, and then using the profits to aid the anti-Sandinista contras in Nicaragua, Poindexter was convicted of lying to Congress, destroying official documents, and obstructing the congressional inquiry. The convictions were thrown out only when an appeals court found that testimony he'd given under immunity to Congress was wrongly used against him in the criminal trial.
The Homeland Security Act passed through Congress last week with only modest opposition. But Sen. Bill Nelson, a Florida Democrat, was one who raised pointed concerns about how the measure might become a vehicle for carrying out the goals of Total Information Awareness. The following is a partial text of his Nov. 18 speech on the Senate floor:
"I come to the floor to speak about a matter we will be discussing tomorrow as we take up the homeland defense bill and some of the questions of privacy that have arisen, not necessarily directly involved in this bill but clearly in the discussion of homeland security.
"Some grave questions of invasion of privacy have been noted. So I felt compelled to take the floor of the Senate to raise further the issue of governmental intrusion into the private lives of people. I realize that in this technologically advanced age, in order to go after the bad guys, in order to be able to stop them before they hit us, clearly there has to be the clandestine means of penetrating the communications that are going on. That is very important to the defense of this country and our citizens. At the same time, the constitutional rights of privacy must always be foremost in our minds as we battle this new, elusive kind of enemy called the terrorist.
"So I want to offer some words. I start, first, with words from a very famous American who had something significant to say about privacy, [U.S. Supreme Court] Justice Louis Brandeis, in which he argued, in a 1928 case, that the Framers of our Constitutionand I will quote Justice Brandeis: '... sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations.' Justice Brandeis went on that the framers of the Constitution had '... conferred, as against the government, the right to be let alone -- the most comprehensive of rights and the right most valued by civilized man.'
"Now, Justice Brandeis wrote those words in a dissenting opinion in a 1928 case involving a liquor dealer who was convicted by evidence gathered through a wiretap, way back then, early in the last century. That case arose because technology had granted the government an increased ability to peer inside people's private lives -- then, in 1928, a wiretap. The technology increased governmental authority, forcing the Supreme Court to evaluate and redefine the boundaries between freedom and governmental power. The technological advances also stimulated an important national debate about the balance between individual freedom and the legitimate needs of law enforcement.
"Now we are at a similar crossroads, and those words ring out to us today as we go about trying to balance the rights between individual freedom and the legitimate needs of the government to penetrate terrorist cells. Technology has advanced faster than the nation's norms and the laws for managing them. Modern technology makes possible unprecedented intrusions into the private lives of American people. This ability, coupled with increasing governmental demands to use that technology, poses a grave threat to personal privacy and personal freedom.
"This past week, I was riveted by the news of the revelations about how the Department of Defense is developing a computer system to grant intelligence and law enforcement authorities the power to secretly access ordinary citizens' private information, including e-mail, financial statements and medical records -- to access that private information without the protections of a court order. Clearly, in this post-9/11 world, we need to develop tools that will enable our government to keep us safe from terrorists by disrupting their operations. But these tools need to be balanced against the protection of innocent people's right to privacy. If the right to privacy means anything, it is the right of the individual to be free from unwarranted governmental intrusion.
"So what riveted my attention were reports, first in the New York Times, the Washington Post, and then in the Washington Times, that the so-called Total Information Awareness program -- located deep inside the Department of Defense -- would make possible unwarranted governmental intrusions such as we have never seen before.
"It is disturbing that we are developing a research system that, if ever used, would violate the Privacy Act as well as violate a lot of other federal laws on unreasonable searches of private information without probable cause, which is the typical standard that needs to be met. That is why we go to a judge to get an order allowing us to intrude on such things as searches, as seizures, on such things as wiretaps.
"I have a serious concern about whether this type of program, called Total Information Awareness, can be used responsibly. So while we investigate and learn more about it, I intend to speak out to the Congress and to the committees on which I am privileged to serve -- including the Armed Services Committee -- to speak out that we need to oversee this program to ensure that there is no abuse of law-abiding individuals' privacy.
"It has been reported that this program is authorized or endorsed by the homeland security legislation pending now in the Senate. And that does not appear to be the case. While it doesn't specifically tend to be the case, this legislation does include a provision creating a research division within the new Homeland Security Department. It would develop, among other things, information technologies similar to the Total Information Awareness program.
"While I strongly support funding for new research, and I certainly believe that we must use our technological advantage to defeat our enemies, at the same time I think we better take a breath, be very cautious that any new research done in the Defense Department or within the new proposed Department of Homeland Security does not threaten our personal freedoms.
"I also have grave concerns that this Information Awareness program is being directed by someone who is very controversial: retired Rear Adm. Poindexter, the former Reagan administration official who was convicted in, you remember, the Iran-contra story. There is a very legitimate question about whether or not he is the appropriate person to head such a sensitive program.
"To quote from recent editions of the Washington Post, specifically Nov. 16, an editorial: 'However revolutionary and innovative it may be, this is not neutral technology, and the potential for abuse is enormous ... Because the legal system, designed to protect privacy, has yet to catch up with this technology, Congress needs to take a direct interest in this project.'"
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