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The Hazards of Safe-Keeping: A Book Review of "Skating on Stilts," by Stewart Baker

Gabriel Schoenfeld

Are we doomed to suffer another major terrorist strike? For some, it seems like a remote possibility, with the greater danger lying in policies of hyper-surveillance. For others, the real danger is complacency—the assumption that the threat has passed—and a misplaced eagerness to scale back the policies that have kept us safe for nine years.

One man who has pondered this question from a pivot point in the federal government is Stewart Baker, a general counsel of the National Security Agency in the Clinton years and a policy chief in the Department of Homeland Security under George W. Bush. With Skating on Stilts he offers a memoir of day-to-day life within a major Washington bureaucracy and an insider’s analysis of the challenges to domestic security in the post 9/11 era.

Mr. Baker opens his narrative by admitting that, in the 1990s, he had been an advocate of “the wall,” the legal barrier that kept criminal investigators and intelligence collectors apart, limiting the sharing of information. The wall had been put in place in 1995 with the high-minded goal of protecting civil liberties. Its purpose was to prevent evidence gathered without ordinary criminal warrants from being used to incriminate defendants.

The wall worked—all too well. As the 9/11 Commission found, it kept critical facts from flowing to the people in charge of counterterrorism, and in some cases it kept intelligence from being gathered at all. In the end, Mr. Baker writes, the wall “crippled our last, best chance to catch the hijackers,” and some 3,000 people lost their lives.

Congress dismantled the wall soon after 9/11 by passing the Patriot Act and 18 months later formed the Department of Homeland Security, bringing 22 agencies under one outsize bureaucratic shell. Mr. Baker joined the department in 2005. Crucial counterterror information could now be shared, he was pleased to observe, but all sorts of other problems remained.

High on the list was the screening of passengers on incoming international flights. Only one of the 20 hijackers on 9/11 had been stopped at an airport and denied entrance to the U.S. Clearly new border controls were needed. A vital component of such controls would be access to airline databases, which tracked who was flying into the country, when and why, and small passenger details (like the wearing of a cast) that might be of special interest to anyone worried about terrorist stratagems.

The airlines granted access to their databases, and the Department of Homeland Security put its computers and personnel to work analyzing the data. But once the program was made public, it was savaged from all sides. Ultra-conservative groups like the Eagle Forum and the American Conservative Union joined forces with the American Civil Liberties Union to denounce it as an invasion of privacy, the evil hand of “Big Brother.” Major newspapers chimed in with denunciations of their own.

A version of the program stayed in place (and operates to this day), but Mr. Baker became disillusioned with what he calls “the privacy lobby” and its cheerleaders in the media: “They seemed to have lost any sense of responsibility, either for past disasters or for future security.”

Fighting the privacy lobby was soon at the core of Mr. Baker’s job, and it was not only an American battle. European officials had their own concerns about the American use of passenger data. Mr. Baker recounts in detail his tortuous negotiations with the European Union. Meanwhile, the State Department and the Department of Homeland Security were at loggerheads, too, over whether to risk a rift with Europe by insisting on thorough data sharing. It is clear from Mr. Baker’s narrative that bureaucracies operate at cross-purposes—and with maddening inefficiency—even when vital matters are at stake.

One of the biggest privacy battles began in June 2006 after the New York Times disclosed the highly classified CIA-Treasury program to monitor al Qaeda finances by way of the Belgium-based financial clearinghouse known as Swift. The program, an intelligence-gathering operation, was perfectly legal and was conducted with court-approved warrants. It had already facilitated the capture of the chief plotter of the 2002 Bali bombing that killed 202 people.

The Times story obviously compromised the secret effort to monitor terrorist finances, and it spurred the European Commission to try to shut it down. “European privacy bureaucrats,” Mr. Baker says, “crowed that they had crippled the American program.” An infuriating irony, he adds, was that Europe’s own efforts to collect and analyze hotel-registration data were “far more intrusive and less carefully constructed than Treasury’s program.”

What accounts for such behavior? Mr. Baker castigates civil libertarians of the left and right who, though blaming the government for its supposedly alarmist policies, were themselves alarmist about the policies’ threat to liberty. Such people claimed, as Mr. Baker puts it, that “a frightened U.S. government . . . [launched] a seven-year attack on our privacy that a new administration is only slowly (too slowly, say the advocates) beginning to moderate.” Mr. Baker tells a different story, of officials urgently trying to solve post-9/11 security problems while unfairly attacked at every turn.

Mr. Baker’s argument is the more persuasive one, not least in the wake of recent events—in Fort Hood (Nidal Malik Hasan), in the skies over Detroit (Umar Abdulmutallab), in Times Square (Faisal Shahzad) and in the New York City subways (Najibullah Zazi). The Obama administration, to its credit, has left in place the policies that Mr. Baker fought for, and we are safer for it.

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