First came the Federal Bureau of Investigation's decision in the spring to implement stringent new guidelines to prevent agents from abusing their authority to issue national security letters, which can be used to gather information about Americans without their knowledge. Then in Congress, lawmakers voiced concern that the wiretapping authority they granted the Justice Department this summer may be too broad and needs to be revisited.
Most recently, the Pentagon announced last week that it is shutting down its TALON database, which held secret files on local antiwar activists.
Six years after 9/11, some analysts see these developments as signs that civil liberties are beginning to regain ground lost since the war on terror was launched.
While many security experts argue that the amorphous nature of the terrorist threat demands a comprehensive response, they also question the advisability of casting a wide net that infringes on Americans' privacy rights.
"There's clear evidence of abuse and that the pendulum has shifted too far in terms of eroding civil liberties, so these are all hopeful signs," says Matthew Robinson, professor of criminal justice at Appalachian State University in Boone, N.C. "But I think the pendulum has farther to swing, and [civil liberties may be eroded further] until some courageous leader comes forward and says, 'Enough.' "
The story behind the Pentagon's decision to close its TALON database illustrates the ongoing effort to determine exactly where and how that line between security and civil liberties should be drawn.
How TALON worked
TALON stands for Threat and Local Observation Notices. It is a database of files on potential threats against US military bases at home and abroad that are reported to military intelligence by civilians and service members. The idea was a kind of military neighborhood watch program. In 2005, the media reported that TALON was maintaining extensive files on local peace activists and students opposed to military recruiting.
That's when antiwar activist Kot Hordynski discovered the Pentagon had a file that listed his group, Students Against War, as a credible threat. The reason: It had organized a rally of 300 to 400 students who protested the presence of military recruiters on campus in April 2005.
At first he thought it was kind of cool. "As organizers who are always starved for recognition, we thought we were doing something right, pushing the right buttons," says the student at the University of California at Santa Cruz. "At the same time, it was a frightening experience to see our name in a Pentagon database. It really struck home."
The experience inspired Mr. Hordynski and his group to redouble their antiwar activity, but also to work to expose the Pentagon's database on US citizens. With the help of the American Civil Liberties Union (ACLU) and dozens of other peace organizations, they eventually forced the Department of Defense to release thousands of pages of files it had kept on peaceful antiwar activists. That prompted a congressional inquiry as well as allegations that the Pentagon was violating the Foreign Intelligence Surveillance Act and its own guidelines.
In December 2005, the Defense Department undertook its own comprehensive review of the TALON database. Soon afterward, it announced it was purging "a large amount of information" deemed to have been kept inappropriately.
A report by the Defense Department's inspector general released in June found that more than 5,000 of the 13,000 files in the database had been purged as of April 2007. A source within the Pentagon who asked not to be quoted says that after the public controversy, reporting to the TALON program also dropped off. The combination of factors led the Pentagon to announce last week that it would shut down the program in September and would forward perceived domestic threats to the military and to law-enforcement agencies.
"The analytic value of the reporting system had declined significantly," says Maj. Patrick Ryder, a Pentagon spokesman. Major Ryder declined to comment on whether concerns about civil liberties played a role in the decision, but added: "Civil liberties are always a concern within the department."
The ACLU contends that the Pentagon's stated reason for the program's closure is irrelevant. "People are cautiously optimistic [that] the tide is turning," says Jameel Jaffer, director of the ACLU's National Security Project. "But you have to see that TALON program in the context of the many other surveillance programs that have been introduced over the last five years. We're in a bizarre situation where, for the first time, the government is demanding more and more information about individuals and at the same time making it more difficult for them to get the information that they need in order to evaluate the government and whether it's acting within the law."
Conservatives' point of view
Some conservatives say that in a time of national crisis, some individual liberties have to be surrendered for the security of the whole nation. But others believe equally aggressive tactics can be taken that don't violate constitutional guarantees.
"The Constitution allows for the most aggressive techniques to be used, but with checks and balances to ensure that in undertaking this fight, we don't destroy our freedoms and democracy," says Bruce Fein, a top Justice Department official under President Reagan who is now chairman of the American Freedom Agenda, a conservative civil liberties advocacy group.
For Hordynski, who immigrated to this country from Poland at age 8, the experience has taught him about the importance of vigilance in the fight for individual rights. "I definitely never thought anything like this could happen in this country," he says. "It's sadly and strangely reminiscent of the stories I heard about Communism when I was growing up. Obviously, I wouldn't want to compare those times, yet it says a lot about the state of our country that we can even talk about those things in the same sentence."