What We’ve Lost in the “War on Terror”
Tomorrow is the 18th anniversary of four coordinated attacks in the US by Al Qaeda operatives that killed nearly 3,000 people. While these deaths are tragic beyond words, it’s worth remembering what the world was like before September 11, 2001, and what we’ve lost since then.
The most obvious change since 9/11 has been at the airport. Before then, you didn’t have the security theater charade now in place. Today, you must empty your pockets, take your electronic devices out of your carry-on, and remove your shoes to enter the boarding area (unless you’re enrolled in the Transportation Security Administration (TSA) PreCheck).
You could take liquids through security screening and weren’t subjected to endless announcements warning you to report suspicious bags or people to authorities. You could even lock your suitcase with a non-TSA-approved lock. Indeed, the TSA itself didn’t exist until after 9/11.
You didn’t need a ticket to walk to the gate to see off a friend or family member. And when you picked them up, you could park in front of the arrivals building without being chased off by police.
These changes are just the tip of the iceberg. The truly significant changes occurred behind the scenes in the surveillance infrastructure that was installed at breakneck speed in the days and weeks after 9/11.
Less than two hours after the 9/11 attacks began, Uncle Sam set in motion an initiative called “Continuity of Government” (COG). The COG was originally a contingency plan set up in the 1980s to put America under martial law during a nuclear war. According to a 1987 article in the Miami Herald, the plan called for “suspension of the Constitution…emergency appointment of military commanders to run state and local governments and declaration of martial law during a national crisis.”
Late in 1988, in the final months of his administration, President Ronald Reagan expanded the COG plan to include any “national security emergency,” not only one caused by a nuclear war. This change was suggested by Lt. Colonel Oliver North. According to former Boston Globe reporter Ross Gelbspan, North “urged President Reagan to draw up a secret contingency plan to surveil political dissenters and [detain] hundreds of thousands of undocumented aliens in case of an unspecified national emergency.”
Thus, more than a decade before 9/11, the legal infrastructure was in place for an unprecedented expansion of Uncle Sam’s surveillance and detention authority in a national emergency.
And that’s exactly what we got after 9/11. Vice President Richard Cheney quickly took control of the COG apparatus. Within days, the key features of Oliver North’s expanded COG plan started coming into existence.
On September 14, 2001, three days after 9/11, President Bush signed Proclamation 7463. This was a declaration of national emergency giving him sweeping powers to use military force against Al Qaeda. That authority must be renewed annually and is supposed to be reviewed every six months by Congress. But Bush and all his successors, including President Trump, have now renewed this emergency declaration 17 times. And Congress has never reviewed Proclamation 7463 despite the legal requirement to do so.
A few days later, Bush signed Executive Order 13224, another declaration of national emergency. The order authorizes the president to confiscate – without trial – the property of anyone believed to support terrorism. Initially, the target list accompanying the order contained 27 names. It now contains more than 1,300 pages of names.
Cheney was instrumental in persuading Congress to enact the USA Patriot Act without meaningful debate. Among other provisions, the law greatly expanded the government’s civil forfeiture authority. And while Cheney justified the law as an anti-terror measure, it was first used in an anti-fraud investigation, a crime far removed from terrorism.
The Cheney team also created a series of legal opinions justifying the expansion of the president’s authority in a national emergency. One argued the president had the right to deploy military force without the consent of Congress. Another claimed the US had the right to disregard international agreements for the humane treatment of prisoners when alleged terrorists were captured. This document laid the groundwork for a Constitution-free zone in which suspected terrorists could be held indefinitely without being charged with a crime.
Four weeks after 9/11, Bush established the Office of Homeland Security, which eventually became the Department of Homeland Security. Bush also issued a series of directives to expand terrorist screening, leading to the creation of the No Fly List and the terrorist watchlist. As of 2014, the No Fly List contained 64,000 names. If you’re on it, you can’t board a flight leaving or entering the US or even passing over its territory. The terrorist watchlist is much larger, with about 1.16 million names as of June 2017. If you’re on this list, you can still fly. Just be prepared for a body cavity search when you try to clear security and to be handcuffed when you cross a US border.
In keeping with the original vision of Oliver North, criticizing the government is one way to wind up on the terrorist watchlist. Constitutional Law Professor Walter F. Murphy, a prominent critic of President Bush, learned this firsthand in 2007. He asked an airline employee why he was detained when trying to board a flight. The employee asked, "Have you been in any peace marches? We ban a lot of people from flying because of that." Murphy responded that he had not marched but he had given a lecture that criticized Bush for violating the Constitution. "That'll do it," the employee responded.
Another COG initiative that found its way into post-9/11 America was the militarization of law enforcement. A new military command, NORTHCOM, was tasked with creating “fusion centers” to consolidate all possible data sources to identify potential threats. According to the Department of Homeland Security, fusion centers serve as “focal points in states and major urban areas for the receipt, analysis, gathering and sharing of threat-related information between state, local, tribal, territorial, federal and private sector partners.”
The Posse Comitatus Act prohibits the military from acting as a domestic police force, but according to internal military documents leaked on WikiLeaks, fusion centers are an ideal way for the military to conduct domestic espionage without breaking the law. Thus, it should come as no surprise that “terrorist” groups like the Quakers, People for the Ethical Treatment of Animals, Greenpeace, the Arab American Anti-Defamation Committee, and the American Civil Liberties Union have come under surveillance since 9/11.
A key focus of COG from its outset has been warrantless surveillance. To expand the government’s role, President Bush signed another executive order in 2002 to establish the Terrorist Surveillance Program. The targets were individuals allegedly connected to terrorist groups or otherwise of interest to intelligence officials. Surveillance was carried out by the secretive National Security Agency, which gained direct access to the infrastructure of America’s largest telecommunications companies. When the program was challenged in court, Bush persuaded Congress to authorize it formally in 2008. Since then, Congress has dutifully renewed this authority every five years.
Yes, America is a very different place than it was before 9/11. And we now take it for granted that in peacetime Uncle Sam needs the emergency powers originally intended to be used only after a nuclear war.
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