by Dan Smith

Most readers of the September 7, 2007 Washington Post who stayed with the news (i.e., non-sports, non-fashion, non-entertainment) sections of the paper probably went to the story headlined: "Petraeus Open to Pullout of 1 Brigade." Nothing remarkable about that; given that General David Patraeus, commander of U.S. forces in Iraq, and Ryan Crocker, U.S. ambassador to Baghdad, were due to testify before Congress starting Monday September 10.

The Petraeus story was important because of the timing. But there was that day another story whose headline, even though appearing above the fold on page one, may have been read by far fewer readers despite the gravity of the issue: "Judge Invalidates Patriot Act Provisions." In a civil suit initiated by the American Civil Liberties Union (ALCU), U.S. District Judge Victor Marrero of New York ruled unconstitutional the post-9/11 expanded use by the FBI of warrantless "national security letters" (NSL) to force electronic communications companies to provide customer data in secret.

At issue is the First Amendment right of free speech. The letters not only require surrender of private data to the government on demand but also forbid companies that comply from ever telling affected customers that information was provided as mandated by the letters. (Marrero's ruling, according to legal experts, does not affect the use of NSLs for bank, credit, or other financial records since these are covered by other legislation.) An earlier ruling in 2004 by Marrero on NSL use was on appeal when Congress amended the Patriot legislation, rendering the appeal moot. But in this current decision Marrero holds that the law remains unconstitutional in that it requires the courts to accede to the secrecy provisions on the simple assurance by the government that secrecy was necessary.

This story, like the Petraeus "one brigade out" item already described, occupied only one column on the front page -- and only "above the fold" -- before directing the reader to an interior page. Now to have a single column on page one for this story may have been nothing other than a format decision. But from long years of observing riders of mass transit with their morning papers, a significant minority will not turn to an interior page for news -- even when the article deals with free speech. So when I turned as directed to the interior page, I was pleasantly surprised to find not only the rest of the front page article on Judge Marrero's ruling but also two other lengthy articles dealing with civil liberties.

"Terrorism Watch List Is Faulted For Errors" covered an audit made public by the office of the Justice Department's Inspector General on the accuracy and therefore the usefulness of the list to prevent a repetition of 9/11. Created in 2004, the list now holds some 800,000 records and is expanding at a rate of 20,000 new records every month. But the IG's audit notes that the mistakes that permeate the list may actually hamper efforts to identify and capture terrorists -- not to mention the inconvenience caused to innocent people trying to travel.

A random sampling by the IG auditors of 105 records found errors in 38%. Worse, the list manager, the Terrorist Screening Center (TSC) which is run jointly by the FBI and the Department of Homeland Security, was maintaining two dissimilar versions of the list. Obviously, this constitutes a gaping hole in the government's "anti-terror" efforts, attested by the discovery that records on 20 alleged terrorists were not accessible to "front-line" screeners at border crossings or other entry points. But it also means that a person incorrectly barred from flying and who protests, can (after waiting for two months, the average processing time for citizen complaints) be cleared on one version but not the other and not know how to get the second record eliminated since the government doesn't tell people what the news article called "their watch list status."

But there was one more story on this page -- one that actually gave some hope that Congress would not continue to roll over civil liberties in pursuit of "national security" and "protecting the homeland." Entitled "Lawmakers Challenge Plan to Expand Spying," this article describes a request by House Democrats for the Administration's legal justification for expanding access by law enforcement agencies (federal, state, and local) to data derived from the domestic use of military spy satellites and aircraft. According to Department of Homeland Security (DHS) officials, satellite imagery has been used for scientific and law enforcement purposes in the past and therefore the administration does not require new congressional action to implement this expanded use. The officials contend that wider availability of the information gathered will help counter both human and natural "threats" (e.g., illegal immigration and terrorism, and forest fires, respectively) in real time. DHS officials have assured House leaders that the expanded program will be intensely monitored and reviewed by a number of offices to ensure it is not misused. House leaders understandably are wary after revelations of massive abuse of other "national security" and other "anti-terror" programs by the Bush administration.

What runs through all of these articles are three themes. One, the Bush administration remains over-obsessed with secrecy in conjunction with "defending the homeland" to the detriment of civil liberties and constitutional guarantees. Two, it remains intent on spying on citizens and residents and totally disregarding privacy laws without justification in the form of judicial authorization based on probable cause of potential or actual criminal activity. Three, the administration insists that Congress, the courts, and the public passively accept its "trust me" assurances despite the innumerable instances in which the administration has violated the rights and personal freedoms of the public.

Two lessons emerge from all this. One, the people assuredly risk their rights and freedoms by not keeping well informed about what the government tries to cloak in secrecy. Two, voters must stay informed -- hence they need to read more and more thoroughly -- of what their representatives in Congress are doing and not allow them to simply cave in to administration fantasies that "keeping America safe" requires sacrificing fundamental liberties. It is time to wake up and reassert the premise of our social compact -- that an informed public is the best safeguard for maintaining both our security and our freedoms.

Col. Dan Smith is a Senior Analyst at the Friends Committee on National Legislation, and a frequent contributor to Foreign Policy In Focus.
© 2007 Foreign Policy In Focus