The White House sanctioned the use of harsh interrogation techniques on detainees, such as simulated drowning, based on legal reasoning it later rescinded; even many within the administration felt the techniques amounted to torture. At the outset of President George W. Bush’s “global war on terror,” lawyers in the Department of Justice (DOJ)’s Office of Legal Counsel (OLC) produced legal guidance that enabled the Central Intelligence Agency (CIA) to use the techniques on terrorism suspects. On August 1, 2002, the OLC provided a now-infamous “torture memo” to Alberto Gonzales, who was then counsel to the president. “We conclude that for an act to constitute torture . . . it must inflict pain that is difficult to endure,” reads the memo, which was written at the request of the CIA. Physical pain must be equal to the pain of “organ failure, impairment of bodily function, or even death.” The OLC later extended similar advice to the Department of Defense. According to reports by news media and human rights organizations, U.S. interrogators used techniques that included: depriving detainees of clothing, food, light, warmth, and sleep; slapping them on the face and torso; and waterboarding, a technique that simulates drowning. In 2003, a new OLC chief, Jack Goldsmith, concluded that these memos had defined torture too narrowly and prepared to fight for their reversal, he wrote in his book, The Terror Presidency. In June 2004, after the OLC’s torture memo leaked to The Wall Street Journal, Goldsmith withdrew the memo and offered his resignation, calculating that either the White House would have to respect his decision or risk his resignation dominating news headlines. His decision stood, but Attorney General John Ashcroft resisted Congressional efforts to obtain other controversial memos. The legal reasoning that replaced the memo backpedaled on admissible practices and noted that in the past U.S. courts had found that “a course of conduct that included, among other things, severe beatings . . . repeated threats of death and electric shock [and] sleep deprivation . . . constituted torture.” The stated goal of these techniques, according to officials, was to extract information from terrorism suspects that would help prevent future attacks. And, while officials have argued that information obtained using these techniques has indeed helped prevent some attacks, considerable debate persists about the quality of intelligence obtained through torture. Because of the questionable nature of this evidence, the United States is having a difficult time prosecuting some detainees subjected to such treatment. Critics have also argued that use of the controversial techniques badly damaged America’s standing throughout the world.

Follow-up:
The Department of Justice’s Office of Professional Responsibility is investigating the Bush administration’s embrace of waterboarding. In summer 2008 the House Judiciary Committee and the Senate Armed Services Committee held hearings probing the issue, at which top officials of the DOJ and the White House defended the policies against a torrent of harsh questioning. Although the White House press office did not respond to a request for comment, in July 2007 the president signed an executive order requiring “any CIA interrogation program” to comply with “all relevant federal statues” and put “explicit limitations on interrogation techniques.” A statement from the White House said, “The president has insisted on clear legal standards so that CIA officers involved in this essential work are not placed in jeopardy for doing their job — and keeping America safe from attacks.” On December 11, 2008, the Senate Armed Services committee reported the findings of its two-year, bipartisan inquiry; it found that the controversial interrogation techniques were the result of administration policies, not bad decisions by individual soldiers. “The abuse of detainees in U.S. custody cannot simply be attributed to the actions of ‘a few bad apples’ acting on their own,” the report says. On January 14, 2009, a top Bush administration official, Susan J. Crawford, told The Washington Post that the U.S. military tortured Mohammed al-Qahtani, and that his treatment had kept her from referring his case for prosecution. Qahtani alledgedly intended to participate in the September 11 attack on the World Trade Center.

Since 9/11, Central Intelligence Agency officers have grabbed more than 100 suspected terrorists from foreign countries and, after flying them around the globe to mask their destination, deposited them in countries that often had notorious human rights records. This practice is known as “extraordinary rendition.” Peter Bergen, a New America Foundation fellow who has studied it, reported that more than a quarter of such prisoners have stated explicitly that they were tortured. Sending prisoners to a country where they are likely to be tortured arguably violates the Convention Against Torture and the Geneva Conventions. A June 2006 report by the Council of Europe concluded that the CIA’s rendition program had flown some 1,245 flights through European airports or air space. The CIA has swept up at least one innocent victim, and, according to Jane Mayer’s book The Dark Side, has investigated at least seven other cases where the detainees may have been innocent. The agency also rendered suspected terrorists to its own prisons in Afghanistan, Iraq, Guantanamo Bay, and at secret “black site” prisons around the world. Prisoners taken in this way have no recourse to a judicial process; often no one knows where they are. The program’s aim was to get dangerous terrorists “off the streets,” according to Michael Scheuer, who initiated the program during the Clinton administration. “The Rendition Program has been the single most effective counterterrorism operation ever conducted by the United States Government,” Scheuer told a congressional committee in 2007. “Americans are safer today because of the program.”

Follow-up:
Investigations by authorities in Europe and the news media have forced the CIA’s rendition activities into a lower profile, but agency officials still defend the program. “Rendition is a lawful tool that has helped the United States and other nations disrupt terror plots and networks,” CIA spokesman George Little told the Center. “The United States does not conduct or condone torture, nor does it transfer anyone to other countries for the purpose of torture.” In December, a group of retired military officers, who oppose techniques such as rendition, met with the Obama transition team to discuss treatment of detainees, and Eric Holder, Obama’s nominee for attorney general, has called for an end to rendition practices.

The Department of Justice (DOJ), under the Bush Administration, made an array of inappropriate, politically based decisions, some apparently illegal, which included choosing candidates for career appointments on political grounds. Some of these decisions reached back to the tenure of John Ashcroft, who served as attorney general from 2001 to early 2005, but many of them occurred — and burst into public view — while Alberto Gonzales served as attorney general, from 2005 to the fall of 2007. Under law, certain DOJ positions are reserved for political appointees, but legal internships, assistant U.S. Attorney positions, and immigration judgeships are supposed to be filled without regard to political affiliation. Before 2003, those interested in becoming immigration judges generally applied in response to public job postings, but then, according to a report by the DOJ inspector general, the White House and the Office of the Attorney General began expressing interest in these positions. Monica Goodling, DOJ White House liaison and senior counsel to the Attorney General, judged candidates for these and other jobs on criteria that included membership in a conservative legal society, statements on their “political philosophy,” and opinions on hot-button issues like abortion and gay marriage. In addition, Kyle Sampson, Gonzales’ chief of staff, pushed for the unprecedented dismissals of nine U.S. attorneys under circumstances that appeared to be overtly political. He also suggested that the Bush administration use its power to appoint interim U.S. attorneys for indefinite periods to circumvent the Senate-confirmation process; one of those Sampson recommended for such an appointment was a former department official who had hired candidates for positions in the Civil Rights Division based on their credentials as Republicans and conservatives. These developments have affected the public’s perception of a department whose credibility depends on being above ideology and partisanship in enforcement of the law.

Follow-up:
After extensive congressional hearings, Alberto Gonzales, Kyle Sampson, Monica Goodling and other top Justice officials stepped down. The department’s inspector general has released reports criticizing both the politicized hiring and the politically-tinged removals of U.S. attorneys. A third report focusing on the politicized Civil Rights Division is forthcoming. In September 2008, current Attorney General Michael B. Mukasey appointed a federal prosecutor to consider investigating the U.S. attorney dismissals. In response to a request for comment, a DOJ spokesman pointed the Center to a recent speech in which Mukasey said, “There is no denying it: the system failed. . . . The good news is that much has changed since the period covered by these reports [from the Inspector General’s office] — as the reports themselves acknowledge.”

Photo: Former Attorney General Alberto Gonzales. Photo credit: Department of Justice

The government’s ability to protect critical technology in the hands of the private sector has been repeatedly called into question, most prominently by the Government Accountability Office (GAO); in fact, the government’s performance in this area has been designated “high risk” by the GAO since 2007. “The technologies that underpin U.S. military and economic strength continue to be targets for theft, espionage, reverse engineering, and illegal export,” the GAO has warned. Among the problems the agency highlighted: inefficient programs, poor interagency coordination, and decades-old programs ill-equipped to weigh competing U.S. interests in the 21st Century. The various programs cover everything from monitoring arms exports to vetting foreign takeovers of U.S. firms whose work has national security implications. Part of the problem is rooted in the fact that these protection responsibilities are scattered across various agencies in the State, Defense, and Commerce departments. The Department of Defense (DOD)’s Defense Security Service, which oversees contractors across most of the government, was “broken across the board” when Director Kathleen Watson took over in 2006, according to Watson’s testimony before Congress in April 2008. And the situation hasn’t fared much better elsewhere; the GAO reported in 2008 that both the State Department and the Department of Commerce “have not managed their respective export licensing processes to ensure their effective operations.” In 2007, defense contractor ITT pled guilty to illegally sending classified military information to other countries — China among them — and agreed to pay a $100 million penalty. It was “the first conviction of a major defense contractor for a violation of the Arms Export Control Act,” according to a statement by then-U.S. attorney John Brownlee in Roanoke, Virginia. The government’s case against ITT documents numerous instances in which the firm, for several years, deceived or otherwise evaded oversight by State and DOD.

Follow-up:
Some progress has been made, including legislation to reform the Committee on Foreign Investment in the United States, which processes national security reviews of foreign acquisitions of U.S. companies. Additionally, President Bush in early 2008 issued a directive to reform export of defense equipment, services, and technical data in line with the country’s National Security Strategy. But gaps remain. The GAO stated in April 2008 that “despite dramatic changes in the security and economic environment, State and Commerce have not undertaken basic management steps to ensure their controls and processes are sufficient and appropriate for protecting U.S. interests.” The DOD press office did not respond to a request for comment, but Director Watson was frank in her April testimony to Congress: “It took a year to figure out where the problems were and design a transformation plan. We just got our resources six months ago. . . . We have a lot of work to do and, in my view, we’ve just started.”

Photo credit: U.S. Navy

The U.S. military prison camp at Guantanamo Bay, Cuba, has held hundreds of detainees without charging them with a crime. The White House conceived of Guantanamo as an extralegal zone for hardened terrorists whom it unilaterally declared were exempt from the Geneva Conventions. There, terrorists would have no recourse to the American legal system, lawyers at the Department of Justice argued; instead, they could be imprisoned for as long as the government saw fit. In June 2004, the Supreme Court struck down the administration’s plan and declared that the foreign nationals held at Guantanamo had the right to petition for their release in U.S. courts. Once forced to confront the legal status of its prisoners, the Department of Defense (DOD) began releasing or transferring many of the inmates. By October 2004, the United States had released 202 detainees from the prison camp and between late 2004 and March 2005 the remaining 558 detainees passed through “Combatant Status Review Tribunals,” which determined that 520 of these prisoners were "enemy combatants." By 2008, however, after further review of cases and intervention by U.S. courts, the number of prisoners held at Guantanamo dropped to approximately 255, according to the Pentagon. Another 60 or so have been cleared for release but can not be repatriated because their home country refused to accept them or due to other diplomatic complications. Lawyers for Guantanamo detainees have struggled to obtain documents from the U.S. military believed to contain evidence against their clients, and in some cases, the United States has had to drop prosecutions of Guantanamo inmates because much of their case was built on evidence obtained through interrogation methods widely considered to be torture. Asked to comment, a DOD spokesman directed the Center to a factsheet on Guantanamo: “Detainees held at Guantanamo Bay are not only afforded the majority of the protections granted to prisoners of war,” it states, “but many additional privileges that exceed the requirements established by the Geneva Conventions.”

Follow-up:
President-Elect Obama has made clear his intention to close the Guantanamo prison camp; his administration will likely seek to release some detainees while bringing others to the United States for criminal trials. As a result of habeas corpus proceedings, the Bush administration is transferring certain prisoners from Guantanamo: In December, three of five Algerian detainees ordered released by a federal judge were sent to Bosnia, their adopted homeland.

Photo credit: U.S. Army

Nine years after Osama bin Laden was placed on the Federal Bureau of Investigation’s “ten most wanted” list, seven years after President George W. Bush said the Al Qaeda leader was “Wanted, Dead or Alive,” the exact location of the six-foot, five-inch Saudi terrorist remains a mystery. Even before Al Qaeda operatives flew jumbo jets into the World Trade Center and the Pentagon, U.S. intelligence was tracking bin Laden’s whereabouts, but after September 11, the desire and the need to apprehend him surged. "It's not enough to get one individual, although we'll start with that one individual," then-Secretary of State Colin Powell told reporters in 2001. By December of that year, U.S. Special Forces and Afghan allies thought they had cornered the Al Qaeda leader at Tora Bora, a cave complex in the eastern mountains of Afghanistan. Army officials later asserted that they were not certain if bin Laden was present at Tora Bora, but in April 2002, The Washington Post reported that intelligence officials had “decisive evidence” that he was there and that he escaped the battle alive. Reporters and military experts say that American officials misjudged the commitment of the Afghan militias they relied on to seal off escape routes used by bin Laden, Al Qaeda leaders, and the Taliban. At a March 2002 press conference, President Bush appeared unruffled. “I truly am not that concerned about him. I know he is on the run,” he said. After that, the White House largely stopped talking about bin Laden. "I think we've lost him," a U.S. counterterrorism official told Time magazine in 2002. "That's why you're not hearing much talk about the hunt — because we're not succeeding." In 2003, the arrest of Khalid Sheikh Mohammed, bin Laden’s third-in-command, revitalized the hunt for bin Laden in remote areas of Pakistan, but the information gleaned from Mohammed’s arrest proved old. Pakistan forbade American soldiers operating in Afghanistan from crossing the border in pursuit of attackers who fled into the hills, and by the end of 2004, American military personnel were “no longer really hunting for Mr. bin Laden,” according to The New York Times. Critics argue that the war in Iraq diverted resources from Afghanistan: When Saddam Hussein was found hiding in a hole in 2003, 12 times as many U.S. troops were serving in Iraq as in Afghanistan. In 2005, the Central Intelligence Agency (CIA) shut down “Alec Station,” the unit dedicated to hunting bin Laden. With Al Qaeda rebuilding its command and control in Pakistan, the strategic importance of bin Laden’s capture remains high. Equally important, say terrorism experts, is the symbolism of the 9/11 mastermind remaining at large.

Follow-up:
At an April 2008 hearing before the House Select Intelligence Committee, Peter Bergen, an expert on Al Qaeda, testified: “How is the hunt for Osama bin Laden and other senior Al Qaeda leaders going? The hunt is going poorly.” U.S. intelligence officials say the reason, in part, is that bin Laden has worked hard to avoid detection. A CIA spokeswoman referred the Center to November 2008 remarks made by Director Michael Hayden. “He is putting a lot of energy into his own survival, a lot of energy into his own security,” Hayden said. “In fact, he appears to be largely isolated from the day-to-day operations of the organization he nominally heads.” President-Elect Barack Obama’s national security advisers are indicating that the president-elect wants to ratchet up efforts to find the Al Qaeda leader, according to recent reports.

Photo credit: Federal Bureau of Investigation

As a former border-state governor, President George W. Bush sought a systematic answer to America’s immigration problems, but found himself repeatedly stymied by the fallout from 9/11 and rifts within his own party. During the 2000 campaign, even The New York Times' usually critical editorial board said Bush “deserves credit for altering the tenor of his party's rhetoric on immigration.” Bush’s platform said he believed immigration “is not a problem to be solved, but the sign of a successful nation,” and his plan for comprehensive reform included both stepped up border security and a path to citizenship for the more than 12 million illegal immigrants residing in the United States. But by the time the administration began to lay out its plan for comprehensive immigration reform in 2004, Americans rattled by the events of 9/11 were focused largely on border security and enhanced enforcement. Meanwhile, conservative Republicans derided the “path to citizenship” proposals as an unfair amnesty for lawbreakers. Despite what a White House aide characterized as “extremely intensive involvement by the administration,” in 2007 Congress voted down the president’s immigration proposal. The result is a patchwork of policies, state laws, and limited initiatives that has satisfied few. Without a functional federal system, state legislatures have enacted their own immigration measures, tripling the number of immigration-related bills both proposed and passed between 2006 and 2007, according to the National Conference of State Legislatures. The Department of Homeland Security (DHS) has increased workplace raids and apprehensions of illegal aliens, drawing criticism both from the American Civil Liberties Union and the business-oriented Chamber of Commerce. (Both organizations are suing DHS over workplace enforcement issues.) DHS is pressing forward with other narrow initiatives such as a border fence and the “no-match rule,” which pushes employers to fire workers whose names or Social Security numbers do not match information in federal databases. Although DHS Secretary Michael Chertoff said recently that the department is on “on the road to victory” over illegal immigration, he also acknowledged that “to give us an immigration system that satisfies our economic needs and that is also humane to people who do want to come work in this country, we are going to have to go back to Congress and see if we can get comprehensive reform in the future.”

Follow-up:
A report from the Pew Hispanic Center shows that the growth of the unauthorized immigrant population slowed starting in 2005. State legislatures continue to pass immigration legislation at the same elevated rates as in 2007. The White House press office did not respond to a request for comment, but, in August 2007 President Bush said, “Although the Congress has not addressed our broken immigration system by passing comprehensive reform legislation, my administration will continue to take every possible step to build upon the progress already made in strengthening our borders, enforcing our worksite laws, keeping our economy well-supplied with vital workers, and helping new Americans learn English.” In the 2008 election, 9 of the 14 House Republicans who lost their seats were members of the get-tough Immigration Reform Caucus. If another opportunity opens for immigration reform, however, the Obama administration may not jump at it: immigration did not make it onto President-Elect Obama’s list of top priorities, which begins with economic recovery.

Keeping weapons of mass destruction (WMD) out of the hands of terrorists is cited as the top priority for America’s national security, but efforts to prevent WMD proliferation have not met the challenge, according to government and nonprofit watchdogs. The 9/11 Commission wrote that “the greatest danger of another catastrophic attack in the United States will materialize if the world’s most dangerous terrorists acquire the world’s most dangerous weapons.” In 2005, in a follow-up progress report, WMD nonproliferation programs scored a “D” on the report card released by the 9/11 Public Discourse Project, led by 9/11 Commission chairs Thomas H. Kean and Lee Hamilton. “Preventing terrorists from gaining access to weapons of mass destruction must be elevated above all other problems of national security because it represents the greatest threat to the American people,” the report warned. In 2008, the Partnership for a Secure America, a bipartisan national security group supported by the 9/11 Commission leaders, followed up on the work of the Public Discourse Project. The partnership’s overall grade for “WMD Terror Prevention” was a “C.” The weakest spots in WMD prevention, according to the report: integration of U.S. programs to prevent nuclear terrorism and the uncertain long-term prospects for those programs; U.S. efforts to recognize chemical threats; detection of covert bioterrorism preparations and U.S. disengagement from the international Biological Weapons Convention. As part of its package implementing the 9/11 Commission recommendations, Congress created a senior White House position with the title coordinator for the prevention of weapons of mass destruction proliferation and terrorism. But the Bush administration has yet to appoint someone to the position. Experts say that the threat of terrorists obtaining WMD is very real. “We assess that Al Qaeda will continue to try to acquire and employ chemical, biological, radiological, or nuclear material in attacks, and would not hesitate to use them,” said Ted Gistaro, the chief transnational threats officer with the Director of National Intelligence in August 2008. Although the White House did not respond to a request for comment, in December spokeswoman Dana Perino said, “We recognize that there is more to do, but what we have done is provided a really good foundation for the next team to be able to take that on and continue to try to keep us safe.”

Follow-up:
Congress created a Commission on the Prevention of Weapons of Mass Destruction Proliferation and Terrorism, led by former senators Bob Graham, a Florida Democrat, and Jim Talent, a Missouri Republican, to “address the grave threat that the proliferation of weapons of mass destruction poses to our country.” The commission’s report, released in December 2008, warns that “more likely than not” terrorists will use weapons of mass destruction in an attack before 2013 and criticizes the Bush administration for its lack of attention to the threat of bioterrorism attacks, as compared to nuclear attacks.

Image: Partnership for a Secure America's WMD report card

The National Security Agency (NSA), the government agency responsible for collecting electronic data on threats to the United States, encountered major problems in managing its information systems and providing timely intelligence. A joint congressional inquiry found that the NSA apparently held relevant intercepts prior to the 9/11 attacks that were not processed until after the terrorists had already struck. In another case, the NSA failed to pass on Al Qaeda-related information gathered in 1998 to other intelligence agencies until 2002, due both to the agency’s missteps and its “deficiencies” in keeping up with modern communications. In the aftermath of 9/11, the NSA launched several secret initiatives to avoid such problems. One of these, called Trailblazer, became so plagued by problems that NSA expert Matthew Aid branded it potentially “the biggest boondoggle going on now in the intelligence community.” Trailblazer was intended to capture and analyze intelligence data similar to the kind that went unnoticed before 9/11, but after spending $1.2 billion on research and development, there was little to show, according to The Baltimore Sun. A Sun Freedom of Information Act request yielded an audit which found “inadequate management and oversight” of the contractor, Science Applications International Corporation (SAIC). A second major initiative, a $500 million program dubbed Turbulence, is meant to sniff out threats in cyberspace, but it, too, has been hit by delays, cost-overruns, and technical problems. Another program, Groundbreaker, an effort to upgrade NSA's massive computing complex, has at least doubled in cost to $4 billion. And despite the effort, the agency’s computers frequently crash, have trouble talking to each other, and are prone to losing or failing to track key intelligence, according to The Sun. Also problematic has been the agency’s $300 million Cryptologic Mission Management software program, which is designed to help the NSA manage its critical role as the nation’s prime keeper and breaker of codes.

Follow-up:
The NSA started a major overhaul of its Turbulence program and has consolidated its technology programs under a senior official, The Sun reported. The NSA press office did not respond to a request for comment, but Richard C. Schaeffer Jr., the agency’s information assurance director, told Congress in July 2006 that the NSA focused on the problems. “Among other things,” he said, “we’ve compiled and published security checklists that harden computers against a variety of threats; we’ve shaped and promoted standards that enable information about computer vulnerabilities to be more easily cataloged and exchanged and, ultimately, the vulnerabilities themselves to be automatically patched; and we’ve begun studying how to extend our joint vulnerability management efforts to directly support compliance programs such as those associated with the Federal Information Security Management Act.”

Photo credit: Department of Homeland Security

In 2006, U.S. Customs and Border Protection decided to outdo the border walls of the past and build a great barrier of data — a system of ground sensors, remote-control cameras, and radars that transmit real-time data to border agents — along the U.S.–Mexican border. But as of late 2008, only 28 miles of the “virtual” fence, known officially as the Secure Border Initiative Network, or SBInet, are up and running. The finished job is expected to run 6,000 miles along the northern and southern borders of the United States at a cost of $30 billion. The Department of Homeland Security (DHS) awarded the initial $2 billion contract for the project to Boeing, which promised to have large sections of the fence up and running by 2008. The first phase ran six months late and used commercially-available technology that was replaced almost immediately with fancier gadgets. In theory, border agents can use the information to intercept illegal transit, but after taking the pilot project for a test-run, border agents told the Government Accountability Office (GAO) that it was “not an optimal system” for their needs. From the program’s inception, the GAO warned about the vagueness of the requirements set out in the contracting order, a problem that plagued two predecessors, the Integrated Surveillance Intelligence System and America’s Shield Initiative. Now land-management issues have delayed the project. A September 2008 agreement with the Department of the Interior over DHS’s use of government land should have come through last July, but DHS failed to file the necessary paperwork. The department also will have to grab private property from some border land owners by eminent domain. Testifying before Congress in September, Randolph C. Hite, the GAO’s director of information technology architecture and systems, put the problem bluntly: “Important aspects of SBInet remain ambiguous and in a continued state of flux, making it unclear and uncertain what technology capabilities will be delivered and when, where, and how they will be delivered.”

Follow-up:
DHS has pushed back a series of pilot efforts in the Tucson, Arizona, sector to 2009, and in March 2008 had made plans for only Tucson and two other sectors of the fence by 2011. Since September 2007, the first installation of the virtual fence has played a part in the apprehension of more than 3,500 illegal aliens, Homeland Security Secretary Michael Chertoff told Congress in July 2008. Although the DHS press office did not respond to a request for comment, in June 2008 Chertoff said of the program, “This is truly using technology to leverage the ability of the boots on the ground, the Border Patrol agents themselves, to do their jobs as efficiently and as safely as possible.”

Photo credit: Department of Homeland Security

During emergencies, many local, state, and federal responders who need to talk to each other are still operating on different wavelengths, despite billions of dollars in grants and seven years of work from a federal “interoperability” program. Successful interoperability would mean that responders could communicate with “whomever they need to . . . when they need to, and when they are authorized to do so,” according to the Government Accountability Office (GAO). The problem first gained national prominence during Al Qaeda’s 9/11 attacks, when firefighters and police found they could not communicate their efforts to coordinate rescue activities. Four years later, the problem persisted as demonstrated during Hurricane Katrina, when first responders in Florida, who had emergency resources to lend to hard-hit areas of Louisiana and Mississippi, spent half a day trying to contact officials in those devastated regions. In 2001, the Department of Homeland Security’s Project SAFECOM was tasked with promoting interoperability across all governmental levels. The program has both technical and cultural challenges to overcome — choosing radio technology that can operate on complementary frequencies, for instance, and teaching police officers that to firefighters “Fire!” means “something is burning,” not “shoot your weapon,” according to the GAO. With an estimated 50,000 different agencies with emergency response officials across the country, comprehensive, coordinated plans are essential to SAFECOM’s task, but in 2007, some state and local emergency responders still did not know the program existed, the GAO found. Those that did often were not using the program’s tools. Another idea for boosting interoperability, recommended by the 9/11 Commission, is to dedicate a larger chunk of the radio spectrum to public safety. The Federal Communications Commission was tasked with finding a private owner in February to operate a nationwide wireless network for first responders, but after setting the price at $1.3 billion, it had no takers.

Follow-up:
The Department of Homeland Security produced a National Emergency Communications Plan in July 2008 while state governments have put together similar documents; DHS is not checking, though, if the $3.9 billion in federal grant money given to states corresponds to those plans, according to the GAO. Although the DHS press office did not respond to a request for comment, as of April 2008 the department had approved statewide interoperability plans for all 50 states and six territories, according to the agency’s website.

The Federal Bureau of Investigation (FBI) made expansive and inappropriate use of new authority to issue “national security letters,” compulsory requests for companies to supply consumer and financial information. The bureau had long used these letters to obtain information about agents of foreign powers; in 2001 the USA Patriot Act gave the FBI the power to issue them in investigations of international terrorism. In 2000, the FBI issued about 8,500; then, from 2003 to 2006, agents annually issued more than 30,000, and by 2006 more than half related to investigations of Americans. The letters asked information about telephone calls, e-mails, financial transactions, even library records – while forbidding their recipients from disclosing that they had received the request. Three separate recipients sued to overturn the gag order and, citing First Amendment rights, Judge Victor Marrero struck it down in 2004; the government is appealing. The Department of Justice (DOJ) Office of the Inspector General found that the bureau could not justify use of the letters in many cases and that the FBI often received information it was not authorized to obtain, yet catalogued and examined it along with the rest of the data provided. Other intelligence-gathering agencies, including the Department of Defense and the Central Intelligence Agency, have made use of similar, but non-compulsory, letters. Such requests for personal information occasionally may advance counterterrorism investigations, but watchdog groups warn that American citizens have no legal recourse to fight back against a program with such little transparency. FBI officials stress that they have responded promptly to the inspector general’s concerns, and that the Bureau “conducted an extensive, nationwide internal review” of its use of national security letters and moved to ensure that all requests were first reviewed by an attorney and that staff were better trained on the issue.

Follow-up:
The reauthorized Patriot Act of 2006 overhauled the provisions governing national security letters to address privacy concerns. A forthcoming report from the DOJ inspector general will address informal requests that agents have made without issuing national security letters.

Photo credit: White House

The Federal Bureau of Investigation (FBI), the Central Intelligence Agency (CIA), and other U.S. intelligence and law enforcement agencies had pieces of information before the September 11, 2001, terrorist attacks that, had they been shared, might have led to the unraveling of Al Qaeda's plot. For example, in July 2001, an FBI agent in Phoenix, Arizona, wrote a memo to bureau executives in Washington warning of the "possibility of a coordinated effort by Usama Bin Ladin” to train terrorists in U.S. flight schools. No one in the FBI’s Osama bin Laden or Radical Fundamentalist unit saw the field agent’s memo until after 9/11. Had they seen the memo in a timely manner, the 9/11 Commission said, it could have “sensitized the FBI so that it might have taken the Moussaoui matter more seriously.” A month after the Phoenix memo was written, the FBI’s Minneapolis office was kept from notifying the Federal Aviation Administration of an agent’s assessment that Zacarias Moussaoui planned to hijack an airplane. Moussaoui was training to fly commercial aircraft; the FBI suspected him of jihadist beliefs; and in August 2001 the CIA described him as a possible “suicide hijacker,” but the CIA made no connection between him and intelligence reports that warned of possible Al Qaeda hijackings. The 9/11 Commission used these examples to argue for improving communications among agencies. “The culture of agencies feeling they own the information they gathered at taxpayers’ expense must be replaced by a culture in which the agencies instead feel they have a duty to the information — to repay the taxpayers investment by making that information available,” wrote the commission in its report.

Follow-up:
The Intelligence Reform and Terrorism Prevention Act of 2004 created the powerful new position of director of national intelligence to oversee and coordinate the work of the nation’s intelligence agencies. The act also established the National Counterterrorism Center as the focus of anti-terror efforts, putting the activities of a host of agencies under a single roof. And the legislation mandated action to facilitate effective sharing of terror-related information — an effort aimed at creating what became known as the “Information Sharing Environment” (ISE.) In March 2006, President Bush appointed Ambassador Thomas McNamara as program manager for the role and located his office under the new director of national intelligence. The Government Accountability Office (GAO) has acknowledged the substantial progress represented by these steps, but nonetheless has placed the goal of establishing appropriate and effective information-sharing mechanisms to improve homeland security on its high-risk list. The GAO reported in 2007 that “more needs to be done to address [the] problems and the obstacles that hinder information sharing.” McNamara has now issued a plan to guide development of the ISE, and has completed some of the tasks laid out by the plan, but GAO said in June that the scope of the ISE must be better defined and that performance measures must be developed. The Department of Homeland Security press office did not respond to a request for comment, but Director of National Intelligence Mike McConnell said in an October 2008 speech: “We have made remarkable progress — most of it in secret — over the last few years. . . . We are very focused on integration, collaboration, information, and data-sharing in a collective way.”

Photo credit: National Park Service

In the months following the terrorist attacks of September 11, 2001, the United States embraced an unlikely ally: Pakistan’s dictator and longtime Taliban backer, Pervez Musharraf. After Musharraf reversed his support for the Taliban in late 2001, Pakistan went from pariah to close ally in the Bush administration’s “war on terror.” It was a controversial and risky move that initially seemed to work, resulting in arrests of high-level Al Qaeda leaders. But the White House also bet that General Musharraf — who ousted Pakistan’s elected government in a 1999 coup — would crack down on Pakistan’s restive northwest areas, home to many senior Taliban and Al Qaeda members, possibly including Osama bin Laden. Unfortunately, despite $10 billion in American largesse since 2001, Musharraf proved an unreliable partner. Rather than using U.S. funds to conduct counterterrorism operations, Pakistan funneled the majority of the aid into heavy arms and aircraft — equipment more appropriate for conventional warfare with rival India than for a battle with terrorists. Pakistan’s northwestern frontier remains a pipeline for insurgent traffic into Afghanistan. According to the Department of Defense (DOD), the existence of militant sanctuaries in Pakistan represents “the greatest challenge to long-term security within Afghanistan.” Moreover, Bush’s long-standing support for Musharraf’s dictatorship did little to burnish the United States’ beacon-of-democracy credentials. In 2007 America’s image in Pakistan sank to a new low, with only 15 percent of Pakistanis holding a favorable view of the United States.

Follow-up:
In August 2008, after elections seated a new opposition coalition headed by Benazir Bhutto’s widower, Asif Ali Zardari, Musharraf resigned from power under threat of impeachment. Since then, Zardari says Pakistan has taken a more aggressive stance against militants, including one offensive that killed 1,500 insurgents. American officials have expressed frustration with Islamabad’s actions, and the United States has reportedly launched at least 18 missile strikes on targets inside Pakistan since August 2008, stoking local resentment. In September 2008 this uneasy state of affairs gave way to a tacit agreement between American and Pakistani officials — one in which Washington refuses to openly acknowledge the attacks, while Islamabad continues to fend off public outcry by roundly condemning them. To date, at least three senior Al Qaeda officials have been killed in such strikes. The DOD press office did not respond to a request for comment, but Admiral Mike Mullen, the chairman of the Joint Chiefs of Staff, has in the past cited the need for the U.S. effort in Pakistan to focus on economics and development, as well as the military fight.

Photo: Former President of Pakistan Pervez Musharraf. Photo credit: Office of U.S. Representative Tom Davis

“Prior to 9/11, the Federal Bureau of Investigation (FBI) did not have an adequate ability to know what it knew,” said a statement from the staff of the 9/11 Commission. The commission faulted the FBI and other agencies for failing to “connect the dots” in a way that might have uncovered the 9/11 plot; the “dots” referred to suspicious activities by the hijackers that had been uncovered, in some cases, by the bureau’s field offices. Yet seven years after the attacks, the FBI is still largely unable to electronically share investigative information among its agents that could help it solve crimes and stop terrorist plots. The bureau embarked on a program known as Trilogy that was designed to weave the FBI’s information together — and make it accessible to agents — using new computers, electronic networks, and software. But the software, called the Virtual Case File (VCF), turned out to be a spectacular failure — and a waste of at least $100 million — as a result of missteps by both the bureau and its main contractor, Science Applications International Corporation (SAIC). Among the problems: poorly defined design requirements and a lack of management continuity and oversight. “The urgent need within the FBI to create, organize, share, and analyze investigative leads and case files on an ongoing basis remains unmet,” a report by the Department of Justice’s Office of Inspector General concluded in February 2005. This failure to provide modern information technology to FBI agents put them at “a severe disadvantage in performing their duties,” the report added. The FBI officially killed VCF in April 2005. "We had information that could have stopped 9/11," Senator Patrick J. Leahy, a Vermont Democrat, told The Washington Post. "It was sitting there and was not acted upon. . . . We might be in the 22nd century before we get the 21st-century technology."

Follow-up:
The FBI launched its latest effort to provide agents with modern technology — the Sentinel project — in March 2006, as a cooperative effort with Lockheed Martin. The effort found praise by the Government Accountability Office in an August 2008 audit: the FBI “has implemented a number of best practices for Sentinel,” reported the GAO, “and by doing so has placed itself on a path to both avoid the kind of missteps that led to the failure of VCF and increase the chances of putting needed mission capabilities in the hands of bureau agents and analysts as soon as possible.”. The FBI press office declined to respond to a request for comment, but noted that Director Robert Mueller III told the Senate in September 2008 that the Sentinel IT program “is progressing on time and within budget.”

Photo credit: Transportation Security Administration

Although U.S. intelligence agencies for years have been concerned that terrorists might target nuclear facilities for sabotage or theft, many facilities remain vulnerable. At a planning meeting in Spain in July 2001, 9/11 terrorist Mohammed Atta recommended “targeting a nuclear facility he had seen during familiarization flights near New York,” the 9/11 Commission report revealed. Most analysts believe this facility to be the Indian Point nuclear plant; a 1982 Sandia National Laboratories study found that a significant accident there could cause thousands of immediate fatalities. Atta’s idea was rejected, but “Al Qaida will continue to try to acquire and employ . . . nuclear material in attacks,” according to a 2007 unclassified National Intelligence Assessment on the terrorism threat to the United States. Over the past decade, security lapses have plagued both the nation’s nuclear weapons complex run by the Department of Energy (DOE) and several civilian nuclear reactors overseen by the Nuclear Regulatory Commission (NRC). Government and private security tests have revealed serious vulnerabilities where uranium or plutonium, sometimes of weapons-grade quality, is stored. In 2007, a local CBS affiliate obtained footage of guards sleeping on the job at the Peach Bottom nuclear power plant in Pennsylvania. Efforts to consolidate nuclear materials in fewer, easier-to-defend sites have moved slowly.

Follow-up:
The DOE and NRC have improved their security standards, although government auditors found in 2007 that protection levels still need improvement. Among the recommendations by the Government Accountability Office (GAO): the two agencies should cooperate on a common threat analysis and security testing; and the NRC should work to ensure that its licensees have the legal authority to use automatic weapons and deadly force as do DOE sites. The DOE is planning to consolidate nuclear materials, but debates continue regarding the extent and time frame. A DOE spokesman told the Center that consolidation is moving as fast as possible, while ensuring that security, environmental, and logistics concerns are addressed, noting that the deadline for removing nuclear materials from Lawrence Livermore National Laboratory has been moved up two years to 2012. “This is the soonest we can do this safely and securely,” he said. In response to GAO criticism, NRC Chairman Dale Klein wrote to Congress and said that “DOE and the NRC do not agree with GAO that we should establish a common DBT [security standard] for facilities that store and process” nuclear materials. “The NRC believes that it is more important to set protection levels that are appropriate for potential scenarios and associated consequences that involve the malevolent use of nuclear materials stored or handled at a given site,” said Klein.

Photo credit: Department of Defense

While pouring billions of dollars into military actions in Iraq and Afghanistan, the Bush administration underplayed perhaps the most important battle against Islamic extremists: the struggle to win over hearts and minds. Building pro-Western political and cultural organizations and promoting U.S. values of openness, democracy, and human rights were key to winning the Cold War, but experts broadly agree that the “war of ideas” suffered under the Bush Administration. “If the United States does not act aggressively to define itself in the Islamic world, the extremists will gladly do the job for us,” the 9/11 Commission admonished. The United States once had an entire agency, the United States Information Agency (USIA), assigned to “public diplomacy” — promoting America’s values and image in the world — but after the Cold War, the USIA was disbanded and its staff shoehorned into the State Department, where the agency’s exchange programs and outreach efforts diminished. Other agencies failed to take up these challenges: by 2001, the Central Intelligence Agency, for example, had only a handful of staff in its once huge “strategic influence” section. After September 11, the budget for nonmilitary public diplomacy and public affairs began growing again, topping $1.5 billion by 2006. Still, by one estimate, the U.S. would need to spend $7 billion on public diplomacy in the Muslim world to match the level of funding dedicated to winning over German and Japanese citizens after World War II. In other parts of the world, too, much of the goodwill the United States enjoyed after 9/11 turned to animosity. In 2002, just months after the 9/11 attacks, support for American anti-terrorism policies began eroding, according to the Pew Global Attitudes Project. After the start of the Iraq war, public opinion turned against America even among U.S. allies like France and Germany. In a separate poll conducted in 2006, people in countries as disparate as South Korea and Canada chose the United States as the greatest threat to global stability, beating out such countries as Iran, Syria, China, and North Korea. Threats to American private property and personnel overseas “have become constant in some regions, especially the Middle East,” the Government Accountability Office (GAO) reported in 2007.

Follow-up:
In 2004, Congress passed a law that increased public diplomacy activities in the Muslim World. By 2006, funding for educational and cultural exchange programs in the Middle East had increased by 25 percent, according to the GAO, but in 2007, 22 percent of public diplomacy positions at State were still vacant, and in the Muslim world, some 30 percent of U.S. foreign service officers lacked the requisite language skills. America’s image in the world remains battered; In a 2008 poll in five western European countries, the United States ranked only below China as the “greatest threat to global security.” Although the State Department press office did not respond to a request for comment, in October 2008 the undersecretary for public diplomacy, James K. Glassman, said, “When George W. Bush became president, there was no war of ideas strategy to speak of and no infrastructure. As this administration prepares to leave office, a strategy, a platform, and a new way of doing business are in place, ready for the next administration.”

Photo credit: Department of Defense

More than five years after its creation, the Department of Homeland Security (DHS) still suffers from a host of growing pains — growing pains that have attracted scrutiny from a variety of watchdog groups. Cobbled together in 2003 from 22 disparate agencies, the sprawling department oversees a budget that is creeping toward $50 billion. From the inception of DHS, the Government Accountability Office (GAO) categorized its implementation and transformation as a “high risk” item. “It represented an enormous undertaking that would require time to achieve in an effective and efficient manner,” then-Comptroller General David M. Walker told Congress in February 2008, adding that a successful transformation can take five to seven years. DHS has not exactly earned straight A’s, either. Despite repeated promptings from the GAO, the department had not created a comprehensive transformation strategy by its fifth birthday and has struggled to prioritize the most pressing risks to the country’s safety, both when allocating grants to state and local partners and when planning internal strategies. In its first two years, the department came under fire for its bureaucratic torpor, and as one of his first acts after taking office in 2005, Secretary Michael Chertoff commissioned a study that led to a departmental reorganization later that year. Although the department’s operations have improved in recent years, “DHS has made more progress in its mission areas than in its management areas,” Walker noted in his February testimony. In 2008, reports from the Center for Strategic and International Studies, the GAO, and the DHS inspector general shared concerns about several areas, including: contractor oversight, information technology, financial management, transportation security, and emergency preparedness. The GAO recently included “protecting the homeland” as one of 13 “urgent issues” requiring the attention of President-Elect Obama and the 111th Congress. “The department must ensure that it is prepared and vigilant,” the GAO’s transition website warns, “particularly during the presidential transition period, when the nation can be viewed as being especially vulnerable.”

Follow-up:
The GAO reports to each new Congress on its high-risk items, so an updated report should be in the offing in early 2009. In December 2008, the Obama transition team announced that Arizona Governor Janet Napolitano will lead DHS in the new administration. Though the DHS Press Office did not respond to a request for comment, on the fifth anniversary of the department’s creation, Chertoff said the department’s accomplishments “have laid the foundation for a strong, efficient and vigilant, mature Department of Homeland Security — one that will protect the American people and our way of life for many years to come.”

Terrorist watch lists, launched by government agencies following the 9/11 attacks to help track terrorism suspects, have been plagued by miscommunication, inaccuracy, and inefficiency. The Federal Bureau of Investigation (FBI), which maintains a master list through its Terrorist Screening Center, has not always removed records from the watch list when it should have, a Department of Justice investigation found in 2008. FBI field offices have often submitted incomplete or inaccurate information to headquarters, or bypassed headquarters entirely and submitted nominations directly to the screening center, which has resulted in incomplete, less-than-thorough records. Several agencies, such as the Bureau of Alcohol, Tobacco, Firearms and Explosives and the Drug Enforcement Administration, were supposed to share terror-related information with the FBI, but that didn’t always happen, which meant some potential terrorists never made the list. Other agencies forwarded names to the list that FBI officials thought were only nominations, so some of those names were neither maintained nor removed when necessary. And bureaucratic delays often meant suspect names weren’t added to the list for up to four months. By April 2007, the list contained more than 724,000 entries, including many common names; partly as a result, legitimate passengers have been tagged as potential terrorists, including a five-year-old Californian named James Robinson, Massachusetts Senator Ted Kennedy, and Nobel Peace Prize winner Nelson Mandela. Carl Kropf, spokesman for the FBI’s Terrorist Screening Center, said the most visible problems arise from airline passengers who share the same or similar names with individuals included on the terrorist watch list. He said that trouble should be remedied in 2009 when the government takes over the screening process from the airlines.

Follow-up:
Californian James Robinson is now 8 and still has trouble flying, his father told a House committee in September 2008. The master list now contains more than 1 million records, and lists 400,000 individuals, only three percent of whom are U.S. citizens, Homeland Security official Rick Kopel told the same committee. The Transportation Security Administration’s system of matching passengers against the terrorist watch list is getting an overhaul, and streamlining is expected in early 2009. Meanwhile, a Congressional investigation found that a secret half-billion dollar program meant to overhaul the FBI’s master list database is on the verge of collapse, riddled with design, management, and contractor flubs.

Photo credit: Department of Defense

Senior federal employees are leaving their jobs at abnormally high rates at agencies charged with fighting terrorism. At the Department of Homeland Security (DHS), senior-level employees left their jobs in 2005 and 2006 at a rate of 14.5 and 12.8 percent, respectively — double the average rate for such positions at all cabinet-level departments, according to the Government Accountability Office. The consolidation of 22 agencies under DHS is the biggest reorganization of the federal government since Harry Truman created the Department of Defense in 1947, and its growing pains are apparent. An internal survey that tracks federal employees’ satisfaction, the Federal Human Capital Survey, has measured low levels of job satisfaction at DHS since the department’s creation. The Federal Bureau of Investigation (FBI) has also had trouble retaining staff for its counterterrorism operations. In 2007, the inspector general at the Department of Justice wrote that “the frequent rotations and turnover within its senior management ranks” is inhibiting the FBI’s transformation into an intelligence-gathering agency. A study by the Senate Intelligence Committee in 2008 found that the FBI needed to fill 20 percent of supervisory positions in the section at FBI headquarters that deals with al Qaeda-related cases. High attrition rates in crucial spots weaken organizational memory and effectiveness; these civil servants are on the front line of homeland security and need to be running at full throttle.

Follow-up:
The results for the 2008 Federal Human Capital Survey are not yet available. A spokesman for the FBI responded to a request for comment by pointing to FBI Director Robert Mueller’s September 2008 testimony before Congress; Mueller said the FBI is expanding “career paths for intelligence analysts and intelligence special agents so that we can grow a highly skilled cadre of intelligence professionals.” Although the DHS press office did not respond to a request for comment, the department did conduct its own employee satisfaction survey in 2007, which showed “improvement over the 2006 survey.” “Ours is still a young department — the newest in the federal government — and as we mature and continue to resolve some natural growing pains, I expect employee morale and satisfaction will improve accordingly,” wrote Elaine C. Duke, the deputy under secretary for management.

Image: Office of Personnel Management's 2006 Federal Human Capital Survey

Seven years after the attacks of September 11, the Department of Homeland Security (DHS) has a better idea of who’s coming into the United States, but it cannot say if the visitors are overstaying their welcome. On average, more than 30 million “nonimmigrant” travelers stream in and out of the country each year; DHS estimates that 3.6 million people currently residing in the United States came here on travel visas and overstayed the visas’ limits. Among those numbers, in 2001, were three of the 19 September 11 hijackers. Post-9/11 homeland security measures include US-VISIT, an entry-exit system that is supposed to track travelers in the United States. DHS has invested more than $1.7 billion in the program. Originally, it required immigration officials to collect two fingerprints from visa applicants. Upon a visitor’s entry into the U.S., officials check the prints against databases of “known criminals and suspected terrorists.” Another scan of the prints upon departure — in theory — creates a record of a visitor’s exit, while helping immigration officials begin the process of identifying visa-holders who may have overstayed their welcome. At the outset, foreign governments kicked up a fuss over the new requirements — Brazil even started fingerprinting U.S. travelers in return — but in September 2008, DHS Assistant Secretary for Policy Stewart Baker crowed about the program’s success. “We got it up and running from scratch, despite the doubters,” he wrote on the department’s blog. “And it’s so successful that we’re expanding it to collect all 10 (finger)prints and to compare them to prints found in terrorist safe houses around the world.” Baker skipped over one detail: While the “entry” half of the program is ticking along, DHS is lagging years behind schedule for installing the “exit” capabilities, despite investments topping $250 million. The department could not say “what program capabilities will be delivered when,” according to the Government Accountability Office (GAO). Part of the problem is that proposals for a successful exit program would seem to require mirroring the processes used for entry; that might create hefty new staffing and infrastructure requirements, program officials told GAO. After admitting to low compliance rates in exit pilot programs, DHS embarked on enlisting airlines as partners, hoping that they could integrate security measures into normal check-in procedures for departing visa-holders. The airlines, however, are resisting this proposal. “Congress has made it quite clear that the federal government is responsible for the US-VISIT-Air Exit Program, not the airlines,” John Meenan, the executive vice president of the Air Transport Association, reminded a House committee in July. A second series of pilot programs will test two scenarios: in one program, airlines will collect the fingerprints, and in the other the U.S. Customs and Border Patrol will be responsible. Although the DHS press office did not respond to a request for comment, in February 2008 Secretary Chertoff told Congress, "Taking all 10 fingerprints will improve accuracy and allow us to increase the number of matches from latent prints captured all over the world." Still, the bottom line remains troubling; although the US-VISIT entrance program may keep out unwanted visitors, DHS still has no effective way of identifying those who illegally stay behind.

Follow-up:
In September, US-VISIT took a financial gut-punch in the 2009 homeland security appropriations bill. Congress cut the Bush administration’s request for the program by $90 million and demanded a report from Secretary Michael Chertoff on a “plan for expenditure” and a complete schedule for implementation of the program.

Photo credit: Department of Homeland Security

President Bush's military commissions for trying suspected terrorists have fought legal challenges for years, and they have only produced three convictions so far. Before 9/11, terrorists such as Ramzi Yousef, architect of the 1993 World Trade Center bombing, were routinely tried in U.S. criminal courts. Two months after the 9/11 attacks, President Bush issued an order setting up the commissions, saying it was “not practicable to apply . . . the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts.” In 2002 the Department of Justice advised that Geneva Convention protections for prisoners of war did not extend to members of Al Qaeda. This set off a series of battles among the executive branch, Congress, and the courts. After defeats in the Supreme Court, Bush enlisted the help of Congress, which passed the Military Commissions Act in 2006, reestablishing many of the provisions in the president’s original order. But the Supreme Court declared parts of it unconstitutional. In 2007 David Hicks, an Australian who converted to Islam and served with the Taliban in Afghanistan, pleaded guilty and was returned to Australia. In 2008 military commissions finally convicted Salim Ahmed Hamdan, Osama bin Laden’s driver, and Ali Hamza al-Bahlul, bin Laden’s personal secretary. The Department of Defense’s website lists 13 additional cases, one including all six “Sept. 11 Co-Conspirators.” Among the defendants is 9/11 mastermind Khalid Sheikh Mohammed, who, seven years after the attacks, still has not been fully tried.

Follow-up:
President-Elect Obama reportedly is considering bringing accused terrorists to the United States for criminal trials in federal courts. Joe Dellavedova, a Department of Defense spokesman, said that for now the military commissions are going forward with trials scheduled for December and January. “The commissions have been tested, but that’s what the legal system is about,” Dellavedova said. On December 8, Khalid Sheikh Mohammed and other alleged 9/11 plotters offered to confess to the military commission, although reports from the court at Guantanamo indicated that some of the men might condition their pleas on a guarantee of the death penalty, a sentence that they would consider martyrdom.

Photo credit: U.S. Navy

The Federal Bureau of Investigation’s (FBI) new counterterrorism assignments have bled resources from its other missions. Traditionally the FBI has fought domestic bad guys — bank robbers, white-collar criminals, mobsters, and spies — but now its top three priorities are counterterrorism, counterintelligence, and cyber-security. As resources have accrued to these areas, prosecutions have dropped off for white-collar and financial crimes, such as mortgage fraud, and for local criminal activity. Analyses of data from the Department of Justice by Transactional Records Access Clearinghouse, the Seattle Post-Intelligencer, and The New York Times have demonstrated the decline in investigations and prosecutions for financial or white-collar crimes, while the number of terrorism-related cases has ballooned. “It's continuously an effort to request new resources while prioritizing the resources that we have,” FBI Director Robert Mueller told the House Committee on the Judiciary in September 2008. Mueller fought the Office of Management and Budget to gain greater funding for his criminal investigators, according to The New York Times; he lost that battle. The bureau is pursuing an increasing number of mortgage fraud cases, but the 2009 budget continues to prioritize funds for counterterrorism at the expense of other FBI functions.

Follow-up:
Congress inserted a requirement for a report on FBI workforce allocation in the 2008 budget, but when the report came out in June it lacked virtually any specifics. President-Elect Barack Obama has called for 1,000 new FBI agents, to better enable the bureau to “investigate and identify those seeking to do harm — whether they are terrorists, gangs, or white-collar criminals.”

In the confusion that reigned on September 11, 2001, the U.S. military was never positioned to shoot down any of the hijacked planes and even sent fighters after one of the flights long after it had crashed into the World Trade Center. “The civilian and military defenders of the nation's airspace — FAA [the Federal Aviation Administration] and NORAD [the North American Aerospace Defense Command] — were unprepared for the attacks launched against them,” the 9/11 Commission concluded. “Given that lack of preparedness, they attempted and failed to improvise an effective homeland defense against an unprecedented challenge.” Despite statements by Bush administration officials that it was unimaginable that terrorists would use hijacked places as missiles to crash into planes, NORAD actually ran drills in preparation for that scenario – which proved ineffective. Confronted by an actual attack, Air Force officials “did not know where to go or what targets they were to intercept.” according to the Government Accountability Office (GAO). “And once the shootdown order was given, it was not communicated to the pilots,” The 9/11 Commission had to dig to uncover the extent of the U.S. air defense system’s failure, including issuing subpoenas to both the FAA and NORAD to learn the truth, which was at odds with agency officials’ statements. Some Commission members reportedly urged a criminal investigation; instead, the matter was turned over to the inspectors general of the Transportation and Defense departments to determine whether to make criminal referrals to the Department of Justice. The inspectors general found no evidence that officials were knowingly misleading.

Follow-up:
The GAO stated in 2007 that the FAA, NORAD and the Transportation Security Administration have taken action to “address the communications and coordination problems that were highlighted by 9/11.” But the effectiveness of that response remains an open question. In October 2006, Aerospace Daily & Defense Report reported that an Air Force plan to “better marry military and civilian radar networks” and respond to a 9/11-style attack was running nearly two years behind schedule and costing more than three times the initial budget. A NORAD spokesman told the Center a variety of improvements have been implemented to boost responsiveness “to a 9/11-style attack or other kinds of asymmetric aerial attacks on the U.S.”

High-powered weapons smuggled into Mexico from the United States are arming drug cartels in a bloody war with Mexican authorities that has killed more than 4,000 in 2008 alone, including hundreds of police officers, soldiers, and prosecutors — all while Mexico’s calls for the United States to cut off the flow have had little effect. Mexico’s strict gun laws make buying the weapons difficult, but in the United States, they are sold legally at stores, gun shows, and flea markets — and then smuggled across the border. The Department of Justice’s Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) found that more than 90 percent of guns seized at the Mexican border were originally sold in the United States, two-thirds of which have been traced back to Texas, Arizona, and California. In a report issued in November, the Brookings Institution estimated that 2,000 guns cross the border into Mexico every day. Only 100 U.S. firearms agents and 35 inspectors are stationed along the border (compared to 16,000 Border Patrol agents). Many of the U.S. weapons — including semiautomatic assault rifles, such as AK-47s, and other high-powered firearms — have fallen into hands of Mexican drug cartels and helped fuel drug-related violence, prompting Mexican officials to call for stricter gun laws in U.S. border states. Texas, for example, has some of the most relaxed gun laws in the country, allowing “straw buyers” to easily purchase weapons and hand them over to traffickers in exchange for money and drugs. In January, the ATF implemented Project Gunrunner in an effort to prevent the flow of weapons by increasing staff and enhancing eTrace, a tracing technology to follow trafficking trends. At a Border Governors Conference in August 2008, 10 U.S. and Mexican governors pledged to support Project Gunrunner’s programs to reduce violence and stop the spread of illegal weapons to Mexico. But as weapons flow south, the Mexican drug war rages on, and the cartels’ drugs continue to flow north into the United States.

Follow-up:
As a result of Project Gunrunner’s initiatives, ATF agents were able to arrest Victor Varela, the alleged leader of a gun trafficking operation in Arizona and New Mexico, in April 2008. But despite this singular success, the DOJ has ultimately failed to halt the flow of guns to Mexico. In June, the House passed a bill that would authorize nearly $74 million to expand Project Gunrunner; it remains in the Senate.