Top Ten Abuses of Power Since 9/11

Document Date: September 6, 2006

9/11: Six Years Later
> Abuses of Power: Assaults on civil liberties
> Victories for Democracy: Successes in the fight for freedom
> The Road Not Taken: Security measures the Bush Administration has ignored
> Voices: ACLU staff on 9/11 and the fight for freedom since 2001

> The Challenge to Illegal Spying
> Torture: Seeking Truth and Accountability
> Extraordinary Rendition: CIA Kidnapping
> Reform the Patriot Act
> Video: Stop the Abuse of Power

1. Warrantless Wiretapping — In December 2005, the New York Times reported the National Security Agency was tapping into telephone calls of Americans without a warrant, in violation of federal statutes and the Constitution. Furthermore, the agency had also gained direct access to the telecommunications infrastructure through some of America’s largest companies. The program was confirmed by President Bush and other officials, who boldly insisted, in the face of all precedent and the common understanding of the law, that the program was legal. And, the agency appears to have been not only eavesdropping on the conversations of Americans in this country without warrants, but also using broad “data mining” systems that allowed it to analyze information about the communications of millions of innocent people within the United States. In August 2006, in a lawsuit brought by the ACLU, a federal judge in Detroit found the program both unconstitutional and illegal. The U.S. Court of Appeals for the 6th Circuit overturned that decision because it found the plaintiffs could not prove with certainty they were wiretapped but they did not rule on the legality of the program. The ACLU is considering an appeal. In the meantime, the 110th Congress chose basically to sanction the exact same program in August of 2007. The law that makes the warrantless wiretapping program legal is scheduled to sunset in February 2008, although Congress plans to take up legislation before then. Learn More >>

2. Torture, Kidnapping and Detention — In the years since 9/11, our government has illegally kidnapped, detained and tortured numerous prisoners. The government continues to claim that it has the power to designate anyone, including Americans as “enemy combatants” without charge. Since 2002, some “enemy combatants,” have been held at Guantanamo Bay and elsewhere, in some cases without access by the Red Cross. Investigations into other military detention centers have revealed severe human rights abuses and violations of international law, such as the Geneva Conventions. The government has also engaged in the practice of rendition: secretly kidnapping people and moving them to foreign countries where they are tortured and abused. It has been reported the CIA maintains secret prison camps in Eastern Europe to conduct operations that may also violate international standards. Congress made matters worse by enacting the Military Commissions Act, which strips detainees of their habeas rights, guts the enforceability of the Geneva Conventions’ protections against abuse, and even allows persons to be prosecuted based on evidence beaten out of a witness. (See

3. The Growing Surveillance Society — In perhaps the greatest assault on the privacy of ordinary Americans, the country is undergoing a rapid expansion of data collection, storage, tracking, and mining. The FBI’s Investigative Data Warehouse, as an example, has grown to over 560 million records. Over and above the invasion of privacy represented by any one specific program, a combination of new technologies, expanded government powers and expanded private-sector data collection efforts is creating a new “surveillance society” that is unlike anything Americans have seen before. Learn More >>

4. Abuse of the Patriot Act— Several provisions of the Patriot Act were set to expire at the end of 2005 and, despite opposition from across the political spectrum and more than 400 community and state resolutions expressing concern about the Patriot Act, Congress reauthorized the law without reforming its most flawed provisions to bring these extraordinary powers back in line with the Constitution. Since then, the Justice Department’s Inspector General found that the FBI has issued hundreds of thousands of national security letters, a majority against U.S. persons, and many without any connection to terrorism at all. In September 2007, the ACLU won a landmark victory when a judge struck down the national security letter provision of the Patriot Act because part of the statute violated both the First Amendment and the separation of powers doctrine. (See

5. Government Secrecy — The Bush administration has been one of the most secretive and nontransparent in our history. The Freedom of Information Act has been weakened , the administration has led a campaign of reclassification and increased secrecy by federal agencies (including the expansion of a catch-all category of “sensitive but unclassified”), and has made sweeping claims of “state secrets” to stymie judicial review of many of its policies that infringe on civil liberties. It even refused to grant government investigators the security clearances they needed to investigate the illegal and unconstitutional NSA wiretapping program. The administration has also expressed interest in prosecuting journalists under the Espionage Act of 1917: essentially trying to quell the media’s role in exposing questionable, illegal and unconstitutional conduct, including the maintenance of secret CIA prisons abroad and the NSA wiretapping program. Learn More >>

6. Real ID — The 2005 Real ID Act, rammed through Congress by being attached to a unrelated, “must pass” bill, lays the foundation for a national ID card and makes it more difficult for persecuted people to seek asylum. Under the law, states are required to standardize their drivers licenses (according to a still undetermined standard) and link to databases to be shared with every federal, state and local government official in every other state. Conservative estimates place the cost of the program at $10 to 12 billion. Opposition to the bill and its implementation remains fierce, and comes from groups such as the National Governor’s Association and the National Council of State Legislators. (See

7. No Fly and Selectee Lists — The No-Fly list was established to keep track of people the government prohibits from traveling because they have been labeled as security risks. Since 9/11 the number of similar watch lists has mushroomed to about 720,000 names, all with mysterious or ill-defined criteria for how names are placed on the lists, and with little recourse for innocent travelers seeking to be taken off them. These lists name an estimated 30,000 to 50,000 people. The lists are so erroneous several members of Congress, including Senator Ted Kennedy (D-MA), have been flagged.

8. Political Spying — Government agencies — including the FBI and the Department of Defense — have conducted their own spying on innocent and law-abiding Americans. Through the Freedom of Information Act, the ACLU learned the FBI had been consistently monitoring peaceful groups such Quakers, People for the Ethical Treatment of Animals, Greenpeace, the Arab American Anti-Defamation Committee and, indeed, the ACLU itself. In August 2007 the Pentagon announced that it would be shutting down its TALON database program, which illegally gathered information on anti-war activists across the country. (See

9. Abuse of Material Witness Statute — In the days and weeks after 9/11, the government gathered and detained many people — mostly Muslims in the US — through the abuse of a narrow federal technicality that permits the arrest and brief detention of “material witnesses,” or those who have important information about a crime. Most of those detained as material witnesses were never treated as witnesses to the crimes of 9/11, and though they were detained so that their testimony could be secured, in many cases, no effort was made to secure their testimony. The government has apologized for wrongfully detaining 13 people as material witnesses. Some were imprisoned for more than six months and one actually spent more than a year behind bars. Learn More >>

10. Attacks on Academic Freedom — The Bush administration has used a provision in the Patriot Act to engage in a policy of “censorship at the border” to keep scholars with perceived political views the administration does not like out of the United States. The ACLU has filed a lawsuit challenging this ideological exclusion, charging that it is being used to prevent United States citizens and residents from hearing speech protected by the First Amendment. Additionally, government policies and practices have hampered academic freedom and scientific inquiry since 9/11, creating a system where science has come under siege. The government has moved to overclassify information and has engaged in outright censorship and prescreening of scientific articles before publication. (See

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