Brian Jenkins is no bleeding heart when it comes to tracking down terrorists. “I’m not squeamish,” he said in a phone interview Friday morning. “I don’t wring my hands over what has to be done.” Jenkins, in fact, is a pioneer in the field of counterterrorism. A former Special Forces soldier and longtime RAND Corporation analyst, he compiled the first database of international terrorists back in 1971, wrote one of the first monographs on the subject in 1974, and has since served as a frequent high-level consultant on the subject.
And yet, Jenkins thinks that the U.S. government’s counterterrorism policies—which he’s helped influence over the decades—have gone too far. “What we have put in place,” he said, “is the foundation of a very oppressive state.”
The oppressive state doesn’t yet exist, he said, but if a president wanted to move in that direction, “the tools are in place now.” The choice to do so “could be made under circumstances that appear perfectly reasonable,” he went on, noting, “Democracy does not preclude voluntary submission to despotism. Given a frightened population, Congress can legislate away liberties just as easily as tyrants can seize power. That seems to be what has started to happen.”
Jenkins was, of course, responding to the recent revelations that, for several years now, U.S. intelligence agencies have been mining data from the three major phone companies and nine Internet companies, gaining access to at least the patterns of all telephone calls and Internet traffic.
But Jenkins, who still has close contacts inside the intelligence community, has been concerned about these dangers for most of the past decade, beginning with the hasty passage of the Patriot Act and the subsequent news stories about NSA domestic surveillance outside the purview of Congress or the courts set up by the Foreign Intelligence Surveillance Act. Congress forced the shutdown of that surveillance program, which was known as Total Information Awareness, and passed new laws, expanding the powers of the FISA courts, so that it could rule not just on individual search warrants but also on massive data-mining expeditions.
In fact, though, these steps were illusory. “They put in place the principle of oversight,” he said, “but the practical impact—the actual oversight—is less than it was before.”
In part, this outcome stems from the technology itself. “The people who set up this program didn’t intend to be malevolent,” he said. “It’s capacity-driven. We have this enormous capacity to collect and sort data. We do this because we can, and because it’s the one area where the government can really overmatch its terrorist adversaries.”
The problem is what happens incrementally. “What now seems extraordinary is soon accepted as normal, and becomes the baseline for the future,” Jenkins said. “Over a period of time, this baseline shifts, and these new intrusions accumulate and reinforce one another—and that fundamentally changes things.”
This dynamic has taken hold in many liberal democracies during crises and wars. “In the past, at the end of the emergency, the balance has shifted back and a lot of those powers were ended,” he said. “But we’re in a situation now that doesn’t have a finite ending. If there isn’t an end, then these powers accumulate and accumulate and accumulate. This is a fundamental difference. What we put in place becomes a permanent part of the landscape.
“We are driven,” he continued, “by fears of what might happen, not by things that have happened.” He noted that since Sept. 11, 2001, there have been 42 terrorist plots in the United States. All but four of them were halted. Three of those succeeded and killed a total of 17 people. “Not that this isn’t a tragedy,” he said, “but, really, in a society that has 15–16,000 homicides every year, it isn’t a lot.