Maybe Fort Hood couldn’t have been prevented

My friend and nemesis Jim Lakely wants to pin at least some of the blame for the Fort Hood massacre … on the ACLU and its intimidation of the Army into “politically correct” modes of thought.  The glib answer is to suggest that civil rights groups don’t kill people — people kill people. And if the ACLU were so powerful in the ranks of the armed forces, I imagine we would’ve seen gays serving openly by now. It’s kind of a problematic theory.

Less glibly, it sounds like Maj. Nidal Hasan was raising red flags all over the place, essentially rooting on suicide bombers before an audience of Army doctors. But if he wasn’t drummed out of the service after that incident, it seems to me that political correctness isn’t really the Army’s problem — or, at least, not the only one.

As with 9/11, though, the question looms: Why wasn’t this prevented? There will be Congressional hearings, investigations and perhaps some new legislation that will supposedly seal the cracks in our national security infrastructure. But somewhere along the way, it should maybe be considered that large parts of the system worked the way they should’ve — and it still wasn’t enough. Sometimes bad things happen.

I mention this because of today’s Wall Street Journal report on pre-massacre communications between the FBI and the military about Hasan’s calls to a radical cleric:

The content of the pair’s communications didn’t raise red flags because terrorism task-force members checked with the military and found that Maj. Hasan was an Army psychiatrist who conducted research and was working on a master’s degree, FBI officials said.

The FBI checked on Maj. Hasan’s record with the military, but the Pentagon says it wasn’t given information about why those checks were being made. Typically, the FBI isn’t keen to raise suspicions about individuals without solid indications of possible wrongdoing. And in this case, it appears sharing more information would have been up to the FBI’s discretion.

It also isn’t clear whether military officials on those FBI task forces raised concerns to the counterterrorism supervisors they were assigned to serve, or whether the military members sought permission to report directly to the Army on Maj. Hasan — as they would have been required to do under post-9/11 rules on information-sharing. The bureau declined to answer whether such permission was sought.

There is also no way to know whether a tip to the Pentagon would have made a difference.

Notwithstanding the shortcomings, it appears some crucial information was shared in ways it wouldn’t have been before the Sept. 11 attacks.

Maj. Hasan’s communications with Mr. Awlaki were most likely intercepted by the National Security Agency. In either case, that means U.S. foreign-intelligence officials sent the communications to their domestic counterparts at the FBI.

Again: It’s early. We might find that FBI agents were cowed by notions of political correctness. But we might find that they simply didn’t have enough to go on. And that a bad thing happened despite the vigilance of critical parts of our national security infrastructure. It’s happened before. It will most certainly happen again. We can’t stop every bad thing from happening.

Are there 400,000 terrorists plotting the destruction of America?

Call me skeptical, but the Washington Post reports that’s how many people are on the FBI’s terrorist watch list.

During a 12-month period ended in March this year, for example, the U.S. intelligence community suggested on a daily basis that 1,600 people qualified for the list because they presented a “reasonable suspicion,” according to data provided to the Senate Judiciary Committee by the FBI in September and made public last week.

The ever-churning list is said to contain more than 400,000 unique names and over 1 million entries. The committee was told that over that same period, officials asked each day that 600 names be removed and 4,800 records be modified. Fewer than 5 percent of the people on the list are U.S. citizens or legal permanent residents. Nine percent of those on the terrorism list, the FBI said, are also on the government’s “no fly” list.

One wants the government to be vigilant about protecting the country from terrorists, of course, but there’s a danger opposite to that of not investigating enough people and that’s investigating too many people. Leave aside, for the moment, the dangers to civil liberties; I’m willing to be a substantial portion — maybe even most — of the names on that list have nothing at all to do with terrorism. But they’re still consuming some of the FBI’s investigative resources. And time spent investigating the innocents might well cause the FBI to overlook the next Mohammed Atta.

In any case, it’s possible that the FBI will do everything as well as can be done — and that a terrorist will still slip through anyway. But the job might be easier if investigators weren’t flooded with so many (probably) false ledes.

Goodbye, civil liberties: The FBI can investigate you for terrorism just because it feels like it

Charlie Savage uncovers the FBI guidelines for beginning terrorism investigations. (Read the document here.) Word to the wise: Never give an FBI agent a funny look.

The manual authorizes agents to open an “assessment” to “proactively” seek information about whether people or organizations are involved in national security threats.

Agents may begin such assessments against a target without a particular factual justification. The basis for such an inquiry “cannot be arbitrary or groundless speculation,” the manual says, but the standard is “difficult to define.”

Assessments permit agents to use potentially intrusive techniques, like sending confidential informants to infiltrate organizations and following and photographing targets in public.

If you cannot define the standard, you cannot violate the standard. Basically, this is a blank check to the FBI to investigate whomever it pleases for any reason — or no reason — at all. But the FBI denies that will happen:

But Valerie Caproni, the F.B.I.’s general counsel, said the bureau has adequate safeguards to protect civil liberties as it looks for people who could pose a threat.

“Those who say the F.B.I. should not collect information on a person or group unless there is a specific reason to suspect that the target is up to no good seriously miss the mark,” Ms. Caproni said. “The F.B.I. has been told that we need to determine who poses a threat to the national security — not simply to investigate persons who have come onto our radar screen.”

I take seriously the need to prevent terror attacks. But: The FBI ought to have specific reasons to start delving into the lives of its citizens. Terrorism prevention by hunch will absolutely have bad results.

She also said that the F.B.I. takes seriously its duty to protect freedom while preventing terrorist attacks. “I don’t like to think of us as a spy agency because that makes me really nervous,” she said. “We don’t want to live in an environment where people in the United States think the government is spying on them. That’s an oppressive environment to live in and we don’t want to live that way.”

Indeed.

I am now officially disappointed in Barack Obama

It had to happen sooner or later. The new Obama Administration has invoked the dreaded state secrets privilege, saying that a torture lawsuit against the federal government shouldn’t proceed “because even discussing it in court could present a threat to national security and relations with other nations.” It’s a nifty legal tool that the government has in the past used to avoid telling the truth, not to preserve national security.

A Justice Department spokesman, Matt Miller, said the government did not comment on pending litigation, but he seemed to suggest the Obama administration would invoke the privilege more sparingly than its predecessor.

“It is the policy of this administration to invoke the state secrets privilege only when necessary and in the most appropriate cases,” he said, adding that Attorney General Eric H. Holder Jr. had asked for a review of pending cases in which the government had previously asserted a state secret privilege.

“The Attorney General has directed that senior Justice Department officials review all assertions of the State Secrets privilege to ensure that the privilege is being invoked only in legally appropriate situations,” he said. “It is vital that we protect information that, if released, could jeopardize national security.”

The Obama Administration’s position on the state secrets privilege, then, amounts to these two words: “Trust Us.”

You know what? I don’t trust them.

It’s not that I don’t think that President Obama won’t make good on his word to assert the privilege more sparingly than the Bush Administration; I do. But it doesn’t matter. No president — not in a democratic nation, at least — should be able to declare his actions utterly beyond scrutiny. Ever.

There have been proposals to add oversight to assertions of the state secrets privilege — our own Sen. Specter has even co-sponsored a bill to that effect. If Democratic politicians have meant any of their critiques of the Bush Administration in recent years — if they opposed torture out of genuine conviction instead of as a means of bludgeoning the opposition — some version of this bill will pass very quickly. In the meantime, it appears that Barack Obama is just another politician.