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The FBI, the NSA, and the Struggle Between National Security and Civil Liberties in the Wake of 9/11

by Athan G. Theoharis

Expanded Powers: The FBI, the NSA, and the Struggle Between National Security and Civil Liberties in the Wake of 9/11


In the ten years since 9/11, a variety of postmortems have tried to resolve the failures to prevent a surprise attack. Meanwhile U.S. responses to the attack have been a subject of intense debate. A decade later we now have the perspective to reflect on the responses of the U.S. intelligence community to this national tragedy.

After this carefully planned and devastating surprise attack, the administration of George W. Bush sought to alleviate the public’s concerns and fears. First it offered assurances that the situation was well in hand. More important, it announced policy changes to prevent future threats. The premise of its new initiatives—essentially replicating the response of presidents and intelligence agency officials during World War II and the cold war—was that the successful execution of the 9/11 terrorist operation had been a consequence of restrictions on the surveillance powers of U.S. intelligence agencies. Expanding these powers would prevent future terrorist attacks without compromising fundamental civil liberties. The administration’s proposed changes renewed an ongoing debate dating from the adoption of the Bill of Rights: What is the proper balance between national security and civil liberties? The dialogue is currently shaped by the new consensus that evolved during the cold war years, which posits that limitations on political and privacy rights are essential to safeguarding the nation.

In line with this argument, in October 2001 Congress enacted the USA Patriot Act, a measure proposed by the Bush administration. Among its controversial provisions, the Patriot Act relaxed the standards for the use of National Security Letters (NSLs), which are issued on the sole authority of FBI officials without prior court review and approval. NSLs are employed to intercept telephone and internet communications or obtain credit, bank, and business records when, in the words of the Patriot Act, “relevant to an authorized counterterrorism or counterespionage investigation.” This new standard revised the earlier requirement that such uses had to be based on “specific and articulable facts . . . that the person or entity . . . is a foreign power or agent of a foreign power.”

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