Waiving federal payments of as much as $1.85 million, 10 people who lost their loved ones in the Sept. 11 terrorist attacks have sued several U.S. airlines and airport security firms, charging that they are responsible for their relatives’ deaths. More lawsuits, including ones against the Federal Aviation Administration (FAA), are expected in the wake of recent revelations that U.S. officials had received warnings about imminent terrorist attacks, and failed to properly investigate two alleged terrorists.
“We have over 30 clients right now who will probably go the way of a lawsuit,” said Mary Schiavo, aviation attorney at Baum, Hedlund, Aristei, Guilford & Schiavo in California, and former inspector general of the U.S. Department of Transportation, who is handling nine of the 10 individual cases. “Thanks to these incredible disclosures by the White House and whistleblowers, it just keeps getting easier. These hijackings were foreseeable, unlike what we were initially told.”
Named in the suits are American Airlines, United Airlines and two airport security firms, Huntleigh USA Corp. and Argenbright Security Inc. Schiavo’s firm is also preparing suits against the FAA.
The Nolan Law Group in Chicago filed the first wrongful death case against the airlines in December and is currently waiting for approval to file five more.
Neither Nolan nor Baum, Hedlund have set figures for damages sought. But Lorna Brett, public affairs official at Nolan, said, “Seven figures is not unusual, whether the case gets settled or sees a jury.”
The families say they are bringing the lawsuits to get to the bottom of the intelligence and security failures that led to Sept. 11. They say that money isn’t the issue, although some of them also claim that the Victims’ Compensation Fund set up by the Department of Justice pays much less than advertised.
To bring the suits, the plaintiffs had to start by opting out of the fund, which was created on Sept. 22 and offers as much as $1.85 million to families afflicted by Sept. 11 tragedies. Those who choose the fund waive their rights to bring lawsuits against American firms and government agencies. (Foreign nationals may still be sued by those who have accepted money from the fund.) Of the 2,823 people eligible for the fund, more than 500 have chosen to accept payments, according to the Department of Justice.
“I thought I’d go for the fund at first. I was thankful for it,” said Julie Sweeney, 29, whose husband, Brian, died aboard United Airlines flight 175 out of Logan International Airport in Boston. “But the more I learned about it, the more angry I became. I think it is there to tempt people to move on with their lives, tax free, so they won’t ever sue. I call it a government buyout. It screamed ‘coverup.’” Sweeney, from Massachusetts, filed her suit on March 6 after spending time researching airport security on the Internet and meeting with Schiavo.
Lance Koutny, also of Massachusetts, says he believes his mother-in-law had too much insurance to allow his family to qualify for even the $250,000 the fund claims is its minimum payout. (The fund’s payouts can be adjusted based on financial criteria like insurance.) “I don’t believe that we qualify for money from the fund,” he says. Koutney’s wife, Maria, lost her 53-year-old mother, Marie Pappalardo, on United flight 175. “Marie had significant life and travel insurance. My wife doesn’t care about the money. She wants to know what happened on Sept 11.” Koutny contacted Schiavo and filed suit against the airline in January.
Both law firms say they recommend that families with immediate financial needs accept the U.S. payment.
The first stage of the legal process — the collecting of evidence — has already begun. During a conference call in late April, presiding Judge Alvin K. Hellerstein of the Southern District Court in Manhattan told Donald J. Nolan, aviation attorney at the Nolan Law Group, he could proceed with discovery, a legal term for requesting information such as interoffice memos and subpoenas. Nolan filed discovery requests with United Airlines. Among the information sought was the following:
All ticketing, baggage and other travel documents related to Marwan Al-Shehhi, Fayez Ahmed, Hamza Alghamdi, Ahmed Alghamdi and Mohald Alshehri, the hijackers aboard United flight 175; a complete passenger list; the FAA-approved Air Carrier Security Plan for Logan International; any and all security directives received by the airlines from Jan 1, 2001, to Sept 11, 2001; information about liability insurance policy; and records of aircraft security inspections.
On May 3, the airline’s law firms, Quirk and Bakalor and Mayer, Brown, Rowe & Maw, replied to Judge Hellerstein that the request involved “sensitive security information” and that only the newly formed Transportation Security Administration (TSA), which took over some airport security issues as of Feb. 17, could release it. It asked the court to obtain the views of the TSA before going forward with discovery.
“They are claiming secrecy,” said Nolan. “They say they did everything the FAA told them to do with regards to security. But these secrets can’t be the basis for withholding evidence from us.”
“My guess is that the TSA is going to sit with the judge and say this is top secret information and then it will be up to the judge to decide,” said Lorna Brett, public affairs official at Nolan. “If the judge disagrees with them, we get our discovery and it becomes part of the court record. If the judge agrees it is sensitive information and can’t be handed over, then we have to file a motion against that call. Let’s put it this way, this is going to be a long battle.”
The airlines have denied that they were negligent and said they did what the FAA told them to do. Calls to their lawyers were not returned.
“I want answers. The answers go way beyond the airlines,” said Ellen Mariani of New Hampshire, a Nolan client who lost her husband, Louis Neil Mariani, on United flight 175. “You can’t keep covering this up. What did the FAA tell United?”
According to a number of FAA “Red Team” field officers, the staff personnel responsible for covert inspection of airport security, the FAA was ignoring warnings left and right. “The FAA could have easily taken measures to secure airports, given what they knew about lax security in some of the major hubs across the country, and they did nothing,” said Steve Elson, a Red Team agent from 1992 to 1995 and security inspector at Houston International Airport until February 1999. “The same thing goes with the FBI. No one listened to the field agents. I call that wanton criminal negligence.”
The FAA, various government agencies and Congress were warned about the potential for suicide hijackings numerous times in the past few years.
In 1993, the Pentagon commissioned a report called “Terror 2000″ by Marvin Cetron, president of Forecasting International, a think tank in Virginia. It was sent to the State Department, the FBI, the FAA and the Pentagon. “Anybody who was anybody was involved in that report — the CIA, the KGB, the [Israeli] Mossad — and we briefed the Pentagon and told them that a suicide hijacker could easily slam into the Pentagon,” Cetron said. “They were interested, but not convinced.”
On Sept. 12, 1994, a small private plane owned by Frank Eugene Corder crashed into a White House wall.
Also in 1998, Dale Watson of the FBI’s International Terrorism Section of the National Security Division reported to two congressional committees about terrorists in the U.S. He talked about “Operation Bojinka,” a terrorist plot to plant bombs on “numerous U.S. air carriers in a simultaneous operation.” This was the second time they had heard about Bojinka; the first time was in 1995. To this day, cargo is considered a very small security operation for the FAA. But Watson said in his statement that the FBI was better equipped to deal with international terrorism, given the lessons learned from the first World Trade Center bombing in 1993.
In 1999, a report to the FAA by the Library of Congress warned that al-Qaida operatives could hijack a commercial airliner.
In April 2001, Boston’s Fox News Channel 25 reported on Logan’s security woes. Brian Sullivan, a risk-management specialist for the FAA in Boston, said he sent copies to Sen. John Kerry, D-Mass., on May 7, adding that “multiple aircraft could be taken down by determined terrorists.”
From January 2001 to August 2001, the FAA sent out warnings to the airlines but, according to Sullivan, who left the agency during this period, did not instruct the airlines to act. “When the FAA says that they have had no specifics about terrorist threats, they are lying bastards,” said Sullivan. “These are legitimate threats that could have been carried out because of the vulnerability of the system. We made the FAA aware of this — we did everything we could. When I saw that the planes that hit the towers came out of Boston I wanted to throw up.”
Whether the above warnings and events, combined with the 9/11 terrorist attacks, add up to actionable negligence is a difficult question. (The law firms are concentrating on the airlines and the FAA because it is extremely difficult to sue other branches of the federal government, such as the FBI.) The unprecedented nature of the 9/11 attacks might seem to make the litigants’ task harder, since the defendants can argue that they could not have been expected to anticipate or take action against hijackings carried out by groups of men who then crashed the planes. But the principle of using private litigation to seek redress for negligence is well established. “The airlines assume the duty to monitor and screen passengers, and if they didn’t do that properly and it leads to damages, then that’s when they are legally negligent,” said Mark J. Conlin, an attorney at Conlin Maloney & Miller in Spokane, Wash. Conlin is handling a case against American Airlines flight 587, which exploded en route to the Dominican Republic on Nov. 12, 2001.
Only 25 percent of aviation crash cases eventually see a jury, Conlin attests.
The airlines and their security companies are responsible for passenger safety once they pass the security scanners. The FAA is only responsible for supplying the airlines with security warnings and recommendations according to its regulations, which are mostly confidential.
“The negligence of the airlines was clear from the get-go,” said Schiavo. “But if they received specific warnings from the FAA and did nothing about it, then we go right off the simple negligence charts and into egregious negligence, which is knowing the vulnerability and the threat and doing nothing.”
But Red Team whistleblowers, past and present, say that the airlines are not the only culprits. Senior FAA managers who knew about the security failures from field agents did little, if anything, to improve airport security, they say. And according to Sullivan, several high-ranking officials on whose watch 9/11 took place were promoted, including William J. Gripper Jr., formerly in charge of New England airport security for the FAA, and Mary Carol Turano, former FAA manager of the Boston Civil Aviation Security Field Office at Logan.
“Here are the chief architects of the federal insecurity at Logan and instead of holding them accountable, they get moved up a notch,” Sullivan said. In tests at Logan, Sullivan reported that on more than one occasion he was able to get through the metal detection systems with knives hidden in money pouches. When a security inspector waved the wand over his clothes, they found his belt to be responsible for the metal detection and waved him to the boarding area.
Despite the evidence suggesting FAA shortcomings, successfully suing the agency will not be easy. The government cannot be sued based on policy decisions. So if field inspections never warranted a policy change, then the FAA cannot be held accountable. But if the FAA was aware of airport or airline security lapses and failed to inform the offenders of the problems, it would be liable.
“These ‘gotcha’ reports are wonderful evidence because the FAA is responsible to file a warning with the airlines,” said Schiavo. “If these security violations were not passed on to the airlines, the FAA is negligent. That is what we are looking for right now.”
Stephen Gale, a professor at the University of Pennsylvania and counterterrorism expert, doesn’t think the airlines could reasonably have been expected to prevent 9-11, considering the fundamentally flawed system they’re operating in. In 1998, Gale helped the General Accounting Office with a report on airline security and later briefed FAA managers about suicide hijackers. “The FAA’s response to me was that you can’t protect yourself from a meteorite,” Gale said. “These lawsuits want to find a culprit, but no single airline could have protected against Sept. 11. The system is full of holes to this day. If you want a secure system, we’d have to start by looking at the best model out there, El-Al of Israel, and I don’t think airlines would want to put up with that. Our system is enormous and we can’t have airlines going around profiling people, but that’s what El-Al does at times and there’s no hijackings.”
Sen. Kerry, a member of the subcommittee on international operations and terrorism and former member of the Senate Intelligence Committee, says that information overload and cumbersome bureaucracies could have been the reason the federal agencies were unable to connect the dots. “Could turf battles and arcane inner-agency adherence to protocol have caused information to be lost in the bureaucracy? Definitely. Could simple, honest and understandable mistakes have caused valuable intelligence to be overlooked? Absolutely.”
Even if the agencies responsible for airport security and counterterrorism intelligence had utilized the information provided by their field agents, Kerry said, it is hard to say whether the terrorists’ plot could have been prevented. “We don’t know. And there are people obsessed with secrecy who are preventing us from knowing and learning,” he said. (It was unclear whether Kerry was referring to the airlines, the FAA, federal intelligence agencies, the Bush administration or all of the above.) “We have no information on which to make our best judgments today.”
On June 11, family survivors of Sept. 11 will rally in Washington to call for an official investigation of what led to that fateful day. Sens. Joseph Leiberman, D-Conn., and John McCain, R-Ariz., proposed a bill on Dec. 20 to investigate the security and intelligence failures leading up to the 21st century’s Day of Infamy. “An independent commission makes sense,” said plaintiff Mariani. “Especially for people who chose to go into the fund. They’ll get some answers.”
Skeptics doubt much information will come even from an independent commission inquiry. Proponents of an independent commission expect that the discoveries won’t lead to the hanging of any one person or agency, but are likely to create policy changes within the FAA, FBI and possibly other bodies of government. Whether or not a commission sees the light of day, claimants still want to take their case to trial.
“I’m in this case for the long haul,” said Catherine Stefani of California, who lost her daughter Nicole on United flight 93. “I don’t want to settle this out of court. I want answers. I want to know how these guys got through security with box cutters. I want to know about the people involved in the Venice, Fla., flight school,” she said of the school attended by Mohammed Atta. Stefani is traveling to Hawaii for Independence Day. Half seriously, she said that she would feel safer on the island than on the mainland during the Fourth of July.
“My daughter would not have flown that day if she heard warnings like we’re hearing now,” she said.
By now, you’d think we’d be entering the end of the 9/11 era. One war over in the Greater Middle East, another hurtling disastrously to its end, and the threat of al-Qaida so diminished that it should hardly move the needle on the national worry meter. You might think, in fact, that the moment had arrived to turn the American gaze back to first principles: the Constitution and its protections of rights and liberties.
Yet warning signs abound that 2012 will be another year in which, in the name of national security, those rights and liberties are only further Guantanamo-ized and abridged. Most notably, for example, despite the fact that genuinely dangerous enemies continue to exist abroad, there is now a new enemy in our sights: namely, American oppositional types and whistleblowers who are charged as little short of traitors for revealing the workings of our government to journalists and others.
Here and elsewhere, it looks like we can expect the Obama administration to continue to barrel down the path that has already taken us far from the country we used to be. And by next year, if a different president is in the Oval Office, expect him to lead us even further astray. With that in mind, here are five categories in the sphere of national security where 2012 is likely to prove even grimmer than 2011.
1. Ever More Punitive (Ever Less Fair-minded).
Those who imagine the era of overreach in the name of national security coming to an end any time soon would do well to remember that some spectacular national security trials are on the horizon — and that we may be entering a new age of governmental vindictiveness. Among the most newsworthy of those trials: the military commissions at Guantanamo that will bring to the docket Khalid Sheikh Mohammed, the alleged mastermind of the 9/11 attack, and his co-conspirators, as well as Abd al-Rahim al-Nashiri, the alleged point person in the 2000 suicide attack on the U.S.S. Cole in the port of Aden. These will likely include capital charges and be prosecuted in a spirit of vengeance.
But that spirit won’t stop with al-Qaida ringleaders and operatives. A series of cases not involving attacks on or the killing of Americans will also be argued in the name of national security and in a similar spirit of vengeance. To begin with, there is the upcoming court martial of Pfc. Bradley Manning, accused of downloading classified U.S. government documents and leaking them to the website WikiLeaks. And then, of course, there is the potential prosecution of WikiLeaks founder Julian Assange in federal court — a federal grand jury is now considering his indictment — for his alleged collaboration with Manning.
Both cases have been hailed with a righteous anger that might strike an outsider as akin to frothing at the mouth. Top officials have insisted that the WikiLeaks materials threatened American lives and left “blood” on the hands of both Assange and Manning (though no one has yet pointed to a single individual physically harmed by the release of those documents).
At the more bloodthirsty end of the American political spectrum, former Arkansas governor and presidential candidate Mike Huckabee and Congressman Mike Rogers (R-Mich.), among others, have called for Manning’s execution. As Rogers explained, “I argue the death penalty clearly should be considered here… [Manning] clearly aided the enemy to what may result in the death of U.S. soldiers or those cooperating. If that is not a capital offense, I don’t know what is.”
A similar, if less lethal, desire for punishment lies behind the Obama administration’s determination to aggressively pursue and crack down on leaks to the media from inside the government, even when they don’t involve the actual theft of government documents. Obama, of course, entered the Oval Office proclaiming a “sunshine” policy when it came to the workings of the government, only to move beyond George W. Bush in attempts to clamp down on whistleblowers.
The pending trials of two former CIA officers exemplify this pattern. Jeffrey Sterling is charged with leaking classified documents to the New York Times’ James Risen about plans to release flawed information to Iran in a potentially counterproductive effort to subvert its nuclear program; John Kiriakou just pled not guilty to releasing information to the media about Bush-era torture policies. All told, the administration has gone after six suspected leakers — more than all previous administrations combined — using the draconian Espionage Act.
In the matter of leakers, the message couldn’t be clearer or more vengeful. The government’s position has been this: expose us and we will turn on you with a fury you can’t imagine. As terrorists have been warned that new laws and legal systems can be built to deal with them, those accused of leaks to the press are being told that even the full extent of the law may not be the limit when it comes to punishment.
Witness the treatment of Bradley Manning in his first year of punitive captivity before he was charged with any crime: he was kept in a Marine brig in total isolation and forced to sleep naked. Or consider the attempt not just to prosecute but to destroy the life of former National Security Agency official Thomas Drake. He was accused of leaking classified information on what he considered to be a wildly wasteful NSA program. In the end, though charged under the Espionage Act, he pled guilty to the misdemeanor of essentially borrowing a government computer — but not before his life had been turned upside down and his job lost.
2. Ever More Legal Limbo (Ever Less Confidence in the Constitution).
By now, it’s old hat to acknowledge that the indefinite detention of those once deemed “enemy combatants,” now termed “unprivileged enemy belligerents,” has become as American as apple pie. Like the Bush administration before it, the Obama administration insists on its commitment to holding nearly 50 Guantanamo detainees in indefinite detention without charge or trial.
In May 2009, in a speech at the National Archives, the president couldn’t have been clearer: indefinite detention, he stated, would remain an option in the national security toolbox under his administration. In this way, he guaranteed that an American version of offshore (in)justice and the essential character of Guantanamo, which he once claimed he would shut down, would continue intact.
In 2012, however, there is a worrisome new indefinite detainee category to worry about: U.S. citizens. Previously, Americans were exempt from incarceration at Guantanamo and so from its policy of detention without trial. In 2002, Yaser Hamdi, a Saudi-American citizen, when discovered at Guantanamo Bay, was hurried to a plane in the wee hours of the morning and whisked away, a sign of the rights still accorded American citizens. Similarly, the “American Taliban,” John Walker Lindh, apprehended on the Afghanistan battlefield, was brought into the federal court system.
Lately, however, Congress has shown less respect for the distinction between rights accorded to citizens and non-citizens. Last month, Congress passed the 2012 National Defense Authorization Act (NDAA). The debates over its passage reflected a concerted effort to make American citizens as well as foreigners subject to indefinite military detention.
Ultimately, citizens supposedly remain exempt from the new law, but even so, it was a close call and a signal about where we may be headed. As a recent Congressional Research Service report on the NDAA explained, it is “not intended to affect any existing authorities relating to the detention of U.S. citizens or lawful resident aliens, or any other persons captured or arrested in the United States.”
Still, there remain many fears and much confusion about what protections are retained by U.S. citizens under the Act. Nor did President Obama’s signing statement, asserting that he would “not authorize the indefinite military detention without trial of American citizens,” assuage those fears and confusions. If American citizens were indeed protected from indefinite detention under the new legislation, why was such a signing statement necessary?
There is yet another place where the law seems to have plunged into legal limbo without in any way abridging U.S. actions: the high seas. Earlier this year, the Obama administration announced that it was detaining 15 pirates captured off the coast of Somalia — and that they were being held without reference to any legal status whatsoever. According to New York Times reporter C.J. Chivers, “where interdiction ends, an enduring problem begins: what to do with the pirates that foreign ships detain?”
According to the State Department, the pirates will be tried. But where? In the words of Vice-Admiral Mark I. Fox, “We lack a practical and reliable legal finish.” In other words, the U.S. has not yet found a country under whose law it can try them. In the meantime, according to the latest reports, the U.S. Navy continues to confine them. Think of this, conceptually speaking, as a floating Guantanamo intended to hold for-profit enemies.
3. Ever More Secrecy (Ever Less Transparency)
“Necessary” secrecy has been the fallback explanation for much of the information that has been withheld from public scrutiny since 9/11. The military commissions at Guantanamo will proceed, for instance, in part on the claim that, if the accused, many of whom have already been held for a decade, were to be tried in federal court, too much would be revealed that could somehow compromise the country’s security.
To counter civil libertarian claims that secrecy is only an attempt to hide embarrassing or wrongful behavior, the current administration has promised “transparency” in the military commissions scheduled to begin later this year. Efforts at transparency, announced last fall, included a website where documents — filled with redactions (blacked-out sections) — could be accessed by the public, and a closed-circuit viewing, albeit with a 40-second delay, for the media and members of the victims’ families.
It has taken next to no time, though, for the government to contradict those vows of transparency, ensuring that, in the polite words of Spencer Ackerman of Wired’s Danger Room blog, Guantanamo will remain “not a place of openness.” Meanwhile, all mail between the detainees and their military defense counsels is being screened, a practice that understandably has those lawyers in an uproar.
In the category of non-transparency and the growth of secrecy as a first principle of government, there is the administration’s elaborate dance of nondisclosure over a memo produced by the Justice Department’s Office of Legal Counsel (OLC). It was evidently written to justify the assassination by drone in Yemen last September of American citizen Anwar al-Awlaki, alleged to have been the “bin Laden of the Internet.”
Until recently, the administration has ducked questions about al-Awlaki’s killing and that of another American citizen, Samir Khan, the editor of the al-Qaida magazine Inspire. In January, the government announced that Attorney General Eric Holder would soon make public the OLC memo that legalized the killing, but delayed the Attorney General’s explanation until early March. Meanwhile, the New York Times and the ACLU filed a Freedom of Information Act (FOIA) request for its release. On March 5th, Holder finally gave a detailed explanation of the tortured reasoning behind the targeted killing of al-Awlaki, but still, no memo seems to be forthcoming.
During the past year, the imposition of secrecy on government activities of all sorts has only become more pronounced. To offer just one egregious example among many, consider the government’s behavior in the case of former CIA agent Jeffrey Sterling. At its request, a federal judge has now agreed to allow it to invoke the “silent witness rule.” In other words, she will let government documents be shown to the jury without being made public, on the grounds, according to prosecutors, of “national security.”
After a decade in which the customary practice in matters of “security” has been to sweep all too many government documents of significance into the shadows under that rubric of national security, this should hardly be surprising. Americans now know ever less about what the government they elected does. If it were not for the FOIA lawsuits of the ACLU and others, very little of what we do know about torture, warrantless surveillance and other instances of government malfeasance would ever have seen the light of day. Consider the increasing number of whistleblower prosecutions as one more way to try to shut government activities off from the eyes of the citizenry.
4. Ever More Distrust (Ever Less Privacy)
For years, the prospect of warrantless wiretapping in the name of national security has had a chilling effect on Americans who have opposed government policies in the war on terror. In 2008, President Bush signed a new FISA Amendments Act (FAA), which authorized the government to snoop on citizens with minimal oversight from the already secretive Foreign Intelligence Surveillance Courts. (They were set up in 1978 to oversee the granting of surveillance warrants against potential foreign intelligence agents.) The Obama administration has continually opted to uphold this power and the government’s freedom to warrantlessly tap electronic communications between people outside the United States and people inside the country in the name of national security.
Meanwhile, the latest revelations in the ever-more-distrust, ever-less-privacy sweepstakes are led by news that the New York City Police Department (NYPD) has implemented surveillance programs that violate the civil liberties of that city’s Muslim-American citizens. The NYPD infiltrated mosques and universities, collecting information on individuals suspected of no crimes, in conjunction with a CIA officer (now withdrawn) using methods traditionally reserved for that agency.
This surely represents, however informally, an abrogation of the CIA’s mandate to conduct its surveillance only abroad, and it’s likely that no one involved will pay a penalty for it. In addition, in a striking combination of security overreach and police profiling, the NYPD has been investigating and surveilling Muslim-American citizens well outside the city limits — from New Haven, Connecticut, to Newark, New Jersey.
To make matters worse, the government just approved the use of surveillance drones as part of a growing law enforcement arsenal for gathering information in the United States. On February 14th, President Obama signed a bill allowing for the use of such drones in a broad array of arenas, ranging from business activities to law enforcement.
The message is clear enough: this year (next year and the year after) will be the year of more snooping. For law enforcement, your life is apparently an open book.
5. Ever More Killing (Ever Less Peace)
Scarcely a day goes by without news of the use of Predator and Reaper drones to kill individuals in foreign countries, including in recent years Afghanistan, Pakistan, Iraq, Yemen, Somalia, Libya and the Philippines. It’s as if the CIA and the military have been handed a new toy that they just can’t refrain from using, or teaching others to use. According to the Atlantic, “Conservative estimates suggest hundreds of noncombatant civilians have been killed in Pakistan alone.”
Meanwhile, the drumbeat for war with Iran continues to build. Faced with the prospect of an Israeli attack on the Islamic Republic, the Obama administration has refused to definitively back away from the prospect of becoming part of that war.
“Iran’s leaders should understand that I do not have a policy of containment,” the president said. “I have a policy to prevent Iran from obtaining a nuclear weapon. And as I have made clear time and again during the course of my presidency, I will not hesitate to use force when it is necessary to defend the United States and its interests.”
In fact, the urge to stop a potentially disastrous confrontation, which could seriously affect the price of oil and the global economy, has sent high military and civilian officials winging from Washington to Israel with warnings against an attack on Iran. Still, war continues to be treated by diplomats and others almost as a fait accompli.
The news then is certainly grim, and moving in one clear direction — the use of the law, or at least the Justice Department’s version of the law, to justify whatever acts the government feels are necessary against whomever they deem to be the enemy. Attorney General Holder summed the situation up tellingly in his defense of the al-Awlaki killing.
In significant detail, he explained that the killing of an American citizen (and terror suspect) was lawful, despite the fact that it brought into question the guarantee of due process under the Fifth Amendment, and despite the guarantees offered by the laws of war. “Due process,” he declared, “is not judicial process.” It was a startlingly honest admission of something new under the American sun: due process is now what the president and his closes advisors decide it is, a constitutional rethinking of the first order to justify the “targeted killing” of an American citizen.
To sum up, the legal gray zone Washington has, over the course of a decade, plunged us into — and everything that goes with it, including punitive measures, attempts to bypass constitutional guarantees, the spread of secrecy and surveillance, a growing distrust of American citizens, and straightforward killing — isn’t something we will soon put behind us. The move away from the rights and liberties enshrined in the Constitution and the law is very clearly the way of the American future in our new age of enemies.
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On May 1, 2008, at 4:59 p.m., Brad Kleinerman entered the spooky world of homeland security.
As he shopped for a children’s watch inside the sprawling Mall of America, two security guards approached and began questioning him. Although he was not accused of wrongdoing, the guards filed a confidential report about Kleinerman that was forwarded to local police.
The reason: Guards thought he might pose a threat because he had been looking at them in a suspicious way.
Najam Qureshi, owner of a kiosk that sold items from his native Pakistan, also had his own experience with authorities after his father left a cellphone on a table in the food court.
The consequence: An FBI agent showed up at the family’s home, asking if they knew anyone who might want to hurt the United States.
Mall of America officials say their security unit stops and questions on average up to 1,200 people each year. With 4.2 million square feet under one roof, the two-decade-old mall is a monument to suburban shopping and entertainment. Nearly 100,000 people from around the world pass through on a given day.
The interviews at the mall are part of a counterterrorism initiative that acts as the private eyes and ears of law enforcement authorities but has often ensnared innocent people, according to an investigation by the Center for Investigative Reporting and NPR.
In many cases, the written reports were filed without the knowledge of those interviewed by security. Several people named in the reports learned from journalists that their birth dates, race, names of employers and other personal information were compiled along with surveillance images.
In some cases, the questioning appears to have the hallmarks of profiling — something that officials at the mall deny. In nearly two-thirds of the cases reviewed, subjects are described as African-American, people of Asian and Arabic descent, and other minorities, according to an analysis of the documents.
Mall spokesman Dan Jasper said the private security guards would not conduct interviews based on racial or ethnic characteristics because “we may miss someone who truly does have harmful intent.”
Much of the questioning at the mall has been done in public while shoppers mill around, records show. Two people, a shopper and a mall employee, also described being taken to a basement area for questioning. Officials at the mall would not address individual cases.
“The government is not going to protect us free of charge, so we have to do that ourselves,” said Maureen Bausch, executive vice president of business development at the mall. “We’re lucky enough to be in the city of Bloomington where they actually have a police substation here [in the mall] … They’re great. But we are responsible for this building.”
Reporters at the Center for Investigative Reporting and NPR obtained 125 suspicious activity reports totaling over 1,000 pages dating back to Christmas Eve, 2005. The documents, provided by law enforcement officials in Minnesota, give a glimpse inside the national campaign by authorities to collect and share intelligence about possible threats.
The initiative exemplifies one of the enduring legacies of the terrorist attacks 10 years ago: Organizations and individuals are now encouraged by U.S. leaders to watch one another and report any signs of threats to homeland security authorities.
There is no way for the public to know exactly how many suspicious activity reports from the Mall of America have ended up with local, state and federal authorities. CIR and NPR asked 29 law enforcement agencies under open government laws for reports on suspicious activities. Only the Bloomington Police Department and Minnesota’s state fusion center have turned over at least a portion of the paperwork.
In 2008, the mall’s security director, Douglas Reynolds, told Congress that the mall was the “number-one source of actionable intelligence” provided to the state’s fusion center, an intelligence hub created after 9/11 to pull together reports from an array of law enforcement sources.
Information from the suspicious activity reports generated at the mall has been shared with Bloomington police, the FBI and, in at least four cases, the federal Immigration and Customs Enforcement agency.
The push to encourage Americans to report suspicious activity began in the aftermath of Sept. 11, 2001, when government officials and citizens found out there had been hints about the attackers that intelligence analysts had missed.
In the decade since, the Justice Department and Department of Homeland Security have launched programs urging citizens to report suspicious activity. The private sector, including the utility industry and other businesses concerned with protecting “critical infrastructure,” have their own surveillance and reporting systems. Homeland Security Secretary Janet Napolitano has made such reporting a priority.
Last year the Department of Homeland Security launched a promotional campaign, “If you see something, say something,” encouraging Americans to report anything perceived as threatening.
Among those formally enlisted were parking attendants, Jewish groups, stadium operators, landlords, security guards, fans of professional golf and auto racing and retailers such as the Mall of America. Visitors “may be subject to a security interview,” the mall’s website says.
The suspicious activity reports from the mall are rich with detail. They contain personal information, sometimes including Social Security numbers and the names of family members and friends. Some of the reports include shoppers’ travel plans.
Commander Jim Ryan of the Bloomington Police Department said shoppers are not under arrest when stopped for questioning by private security. He said even he would walk away if the questioning seemed excessive.
“I don’t think that I would subject myself to that, personally,” he said. Ryan, however, defends security procedures at the mall.
Ryan said such reports are crucial to the nation’s safety in the post-9/11 era. He said the suspicious activity reports could be held by his agency for two decades or longer. He acknowledged that the mall’s methods, and reports the security guards file, may “infringe on some freedoms, unfortunately.”
“We’re charged with trying to keep people safe. We’re trying to do it the best way we can,” he said. “You may be questioned at the Mall of America about suspicious activity. It’s something that may happen. It’s part of today’s society.”
Some national security and constitutional law specialists question the propriety and effectiveness of such reports.
Dale Watson, a former top counterterrorism official with the FBI, said the mall’s reports suggest that anyone could be targeted for intrusive questioning and surveillance.
“If that had been one of my brothers that was stopped in a mall, I’d be furious about it — if I thought the police department had a file on him, an information file about his activities in the mall without any reasonable suspicion to investigate,” said Watson, who played key roles in the investigations of the 1995 Oklahoma City bombing and a 1998 attack on U.S. embassies in East Africa.
Shoppers, who for the most part had no idea that a visit to the mall led to their personal information being shared with law enforcement, reacted with anger and dismay when shown their reports.
“For all the 30 years that I have lived in the United States, I’ve never been a suspect,” said Emil Khalil. The California man was confronted at the mall in June 2009 for taking pictures, and he said an FBI agent later questioned him at the airport. “And I’ve never done anything wrong.”
Monica Lam, Center for Investigative Reporting
Brad Kleinerman, at home with his youngest son, was stopped after Mall of America security guards said he looked at them in a suspicious manner.
Mike Rozin, chief of a special security unit at the mall since 2005, acknowledged that the vast majority of people who come into contact with his unit “have done nothing wrong, have no malicious intent.”
“They just act in a suspicious manner that obligated me to investigate further,” Rozin said. “We talked to them for an average of five minutes, and they’re able to continue their shopping.”
Francis Van Asten’s experience with mall security lasted much longer.
On Nov. 9, 2008, the Bloomington resident videotaped a short road trip from his home to the Mall of America. Van Asten, now 66, planned to send it to his fiancée’s family in Vietnam so they could see life in the United States.
As he headed down an escalator, camera in hand, mall guards caught sight of him.
“Right away, I noticed he had a video camera and was recording the rotunda area,” a security guard wrote in a suspicious activity report.
Van Asten, a one-time missile system repairman for the Army, was questioned for approximately two hours, records show. He was asked about traveling to Vietnam and how he came to know people there. The FBI Joint Terrorism Task Force was alerted. He was given a pat-down search, and the FBI demanded that his memory card be confiscated “for further analysis.”
Authorities were concerned about his footage of an airplane landing at Minnesota’s nearby international airport. They also worried Van Asten was conducting surveillance of mall property.
Exhausted and rattled, Van Asten had trouble finding his car after the ordeal was over.
“I sat down in my car and I cried, and I was shaking like a leaf,” Van Asten said in an interview at his home. “That kind of sensation doesn’t leave you real quickly when you’ve had an experience like that.”
Bobbie Allen, a musician who lives in downtown Minneapolis, was stopped for writing in a notebook. As he waited for a lunch date on June 25, 2007, Allen jotted down some words, which caught the attention of security guard.
One guard wrote in Allen’s suspicious activity report: “Before the male would write in his notebook, it appeared as though he would look at his watch. Periodically, the male would briefly look up from his notebook, look around, and then continue writing.”
Guards asked for his name and for whom he was waiting. Allen, who is black, felt singled out for his race, according to the report. The guard responded that he was “randomly selected” for an interview.
The guards called Bloomington police, after deciding Allen was uncooperative and his note-taking “suspicious.” Allen was cleared, but a suspicious activity report was compiled, complete with surveillance photo, age, height, address and more. Much of that information ended up in a Bloomington police report.
Jeffrey Rosen, a law professor at George Washington University, said such actions trample on traditional civil liberties protections and shift unaccountable power into private hands.
Rosen said the risk of abuses is high, particularly if there turns out to be a lack of proven results. “If all they’re getting for amassing suspicious activity reports on innocent people in government databases is the arrest of a few low-level turnstile jumpers and shoplifters, that doesn’t seem very sensible,” Rosen said.
In Allen’s case, he responded in a way few others have: He complained to the Minnesota Department of Human Rights and filed a lawsuit. Department investigators concluded that there was probable cause to support Allen’s claim of racial discrimination.
Allen declined an interview, citing a settlement agreement reached with the mall.
Not everyone had a negative reaction to being written up. After a report naming him was forwarded to the FBI, Sameer Khalil of Orange County, Calif., said he believed that police and private security have an important job they must do.
“I think [the mall's program] makes America safer,” he said.
Businessman Najam Qureshi discovered how the suspicions at the mall can linger.
The FBI arrived on his doorstep shortly after a run-in with mall security. His family moved from Pakistan to the United States when Qureshi was 8. Police once pulled over their car for a minor traffic violation, and Qureshi remembers his father saying, “You don’t have to fear the police here. They are here to help.”
Qureshi opened a small kiosk at the mall so his aging father, a former aeronautical engineer named Saleem, could keep busy. One day in early 2007, Saleem Qureshi left his cellphone in a mall food court. When he returned for it, security personnel had established a “perimeter” around the phone, along with other unattended items nearby that did not belong to Saleem — a stroller and two coolers.
The “suspicious” objects eventually were cleared by security, documents show. But mall guards pursued Saleem Qureshi with questions.
“Qureshi moved around a lot when answering questions,” security guard Ashly Foster wrote in a report. “At one point, he moved to his kiosk and proceeded to take items off of two shelves just to switch them around. … He seemed to get agitated at points when I would ask more detailed questions.”
Four years after his father ended up in a suspicious activity report, his son was shown the report for the first time.
“Everybody that lives in this country,” said Najam Qureshi, “is a person of interest as far as these reports are concerned.”
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The Center for Investigative Reporting, the nation’s oldest independent, nonprofit investigative news center, reported this story along with National Public Radio. You can contact the reporters at gwschulz-at-cironline.org, zwerdling-at-npr.org and abecke-at-cironline.org.
Read the extended version on the Center for Investigative Reporting’s project site, americaswarwithin.org.
Margot Williams of NPR contributed to this report.
(Credit: Reuters/Frank Polich) 
Army Pfc. Bradley Manning (Credit: AP Photo/Cliff Owen) 
(Credit: VikaSuh via Shutterstock) 
Walid Shoebat 
