“The Foundation of a Very Oppressive State”

Fred Kaplan, Slate


Why one of America’s top terrorism analysts thinks U.S. government surveillance has gone too far

Brian Jenkins is no bleeding heart when it comes to tracking down terrorists. “I’m not squeamish,” he said in a phone interview Friday morning. “I don’t wring my hands over what has to be done.” Jenkins, in fact, is a pioneer in the field of counterterrorism. A former Special Forces soldier and longtime RAND Corporation analyst, he compiled the first database of international terrorists back in 1971, wrote one of the first monographs on the subject in 1974, and has since served as a frequent high-level consultant on the subject.

And yet, Jenkins thinks that the U.S. government’s counterterrorism policies—which he’s helped influence over the decades—have gone too far. “What we have put in place,” he said, “is the foundation of a very oppressive state.”

The oppressive state doesn’t yet exist, he said, but if a president wanted to move in that direction, “the tools are in place now.” The choice to do so “could be made under circumstances that appear perfectly reasonable,” he went on, noting, “Democracy does not preclude voluntary submission to despotism. Given a frightened population, Congress can legislate away liberties just as easily as tyrants can seize power. That seems to be what has started to happen.”

Jenkins was, of course, responding to the recent revelations that, for several years now, U.S. intelligence agencies have been mining data from the three major phone companies and nine Internet companies, gaining access to at least the patterns of all telephone calls and Internet traffic.

But Jenkins, who still has close contacts inside the intelligence community, has been concerned about these dangers for most of the past decade, beginning with the hasty passage of the Patriot Act and the subsequent news stories about NSA domestic surveillance outside the purview of Congress or the courts set up by the Foreign Intelligence Surveillance Act. Congress forced the shutdown of that surveillance program, which was known as Total Information Awareness, and passed new laws, expanding the powers of the FISA courts, so that it could rule not just on individual search warrants but also on massive data-mining expeditions.

In fact, though, these steps were illusory. “They put in place the principle of oversight,” he said, “but the practical impact—the actual oversight—is less than it was before.”

In part, this outcome stems from the technology itself. “The people who set up this program didn’t intend to be malevolent,” he said. “It’s capacity-driven. We have this enormous capacity to collect and sort data. We do this because we can, and because it’s the one area where the government can really overmatch its terrorist adversaries.”

The problem is what happens incrementally. “What now seems extraordinary is soon accepted as normal, and becomes the baseline for the future,” Jenkins said. “Over a period of time, this baseline shifts, and these new intrusions accumulate and reinforce one another—and that fundamentally changes things.”

This dynamic has taken hold in many liberal democracies during crises and wars. “In the past, at the end of the emergency, the balance has shifted back and a lot of those powers were ended,” he said. “But we’re in a situation now that doesn’t have a finite ending. If there isn’t an end, then these powers accumulate and accumulate and accumulate. This is a fundamental difference. What we put in place becomes a permanent part of the landscape.

“We are driven,” he continued, “by fears of what might happen, not by things that have happened.” He noted that since Sept. 11, 2001, there have been 42 terrorist plots in the United States. All but four of them were halted. Three of those succeeded and killed a total of 17 people. “Not that this isn’t a tragedy,” he said, “but, really, in a society that has 15–16,000 homicides every year, it isn’t a lot.

“The point,” he said, “is that if we are fearful of what might be, and if there is no visible end to this—you can always fear what might be—then there will be no occasion for reconsidering the measures we’ve put in place.”

Jenkins thinks the occasions should be mandated. It appears that these programs are renewed periodically. After the Guardian reprinted a court document allowing the NSA to mine data from Verizon, Sen. Dianne Feinstein, chairwoman of the Senate Intelligence Committee, revealed that this was a routine renewal of a long-standing program. But Jenkins is bothered that the renewal is so routine. “I don’t know if it’s every year or five years or seven years,” he said, “but somebody should have to come back and say, ‘These are the measures in place, they were useful in the following circumstances.’ Then a choice should be made on whether to keep them in place. The government will always argue that they should be, but at least they should have to make the argument, again and again.”

This means Congress should take its oversight responsibilities more seriously—and the debate should be conducted more broadly, as much of it as possible in public.

After this week’s news stories, James Clapper, director of national intelligence, released a statement, describing what the program is and is not. Jenkins, after reading a few lines from this statement, said, “I cannot figure out why this was classified to begin with. It should have been in the public domain all along. The fact is, terrorists know we’re watching their communications. Well, some of them, it seems, are idiots, but if they were all idiots, we wouldn’t need a program like this. The sophisticated ones, the ones we’re worried about, they know this. There are debates we can have in public without really giving away sensitive collection secrets. It’s a risk, but these are issues that affect all of us and our way of life.”

What happens if—after a genuine public debate, true congressional oversight, and a FISA court with teeth—it is agreed that all these programs should continue? “Well, if that’s what we want, that’s democracy,” Jenkins said. “The problem now is there’s no structure in place to ensure that this is what we want.”

Back in 1974, in his first monograph on the subject, International Terrorism: A New Mode of Conflict, Jenkins wrote:

Owing to technological developments and changes in the political environment, power—defined crudely as the capacity to kill, destroy, disrupt, cause alarm, and compel society to divert vast resources to security—is coming into the hands of smaller and smaller groups whose grievances, real or imaginary, it would not always be possible to satisfy. How democracies deal with this, and remain democracies, is one of the major challenges we face in the late twentieth century.

Almost 40 years later, well into the 21st century, he now said, “That’s still the major challenge.”