Last Christmas Day, after a Nigerian walked onto a Detroit-bound passenger jet with powdered explosives sewn into his underwear, people wondered: Isn't there a machine that could find that sort of stuff?
In fact, there is: Full-body scanners that peer under clothing to detect anomalies. While there's no certainty the machines would have caught Umar Farouk Abdulmutallab, no one disputes they are superior to metal detectors at finding explosives, which is why the U.S. Transportation Security Administration is now deploying the imagers at airports nationwide.
So why weren't the machines in place before? A well-oiled coalition of privacy advocates on the Left and Right had stopped them, writes Stewart Baker, the former policy chief of the Department of Homeland Security, in his book "Skating on Stilts: Why We Aren't Stopping Tomorrow's Terrorism."
The advocates, including the liberal Electronic Privacy Information Center and the conservative Gun Owners of America, helped convince the House of Representatives to pass a resolution in June 2009 forbidding the government from using the body imagers for primary screening. It was one of a number of victories the civil-liberties coalition won in the wake of the Sept. 11 attacks — victories that have left the U.S. vulnerable, writes Baker, a lawyer now in private practice. Around that thesis, he weaves what is partly a memoir of his time as a senior aide to Homeland Security Secretary Michael Chertoff and partly a blistering polemic aimed at what he calls the Privacy Lobby.
"There's a well-established civil libertarian mythology about the nation's response to 9/11," Baker writes. "In the myth, a frightened U.S. government throws civil liberties out the window within weeks of the attacks, launching a seven-year attack on our privacy that a new administration is only now slowly … beginning to moderate. In real life, privacy groups mobilized within weeks of 9/11, and they won victory after victory, right from the start."
The scary near-miss by Abdulmutallab, whose bomb burned but failed to detonate, overwhelmed the privacy arguments against the body scanners, which have been likened to virtual strip searches. The TSA addressed that issue by blurring the facial image, insuring the image-reader would not see the passenger, and allowing people to opt for a pat down. According to the TSA, almost everyone chooses the machine.
Yet the case of the underwear bomber exposed another privacy-related security flaw that has not been fixed, Baker writes. The Nigerian was on a terrorism watch list, but airline security officials never knew it.
In 2003, the ACLU and other groups filed suit to stop the TSA from gathering passenger reservation information, a tool the agency wanted to use to decide who merited extra screening. Congressional appropriators essentially killed the program, and DHS replaced it in 2008 with what Baker calls "a pale imitation … that gave TSA access to no information other than name, gender and birthdate."
Baker concludes: "If you've wondered why, eight years after 9/11, we're still looking for weapons and not for terrorists, now you know. Privacy advocates turned the use of even ordinary data like travel reservations into the policy equivalent of a toxic waste site."
"Skating on Stilts" is full of such anecdotes, and Baker, who was a key Homeland Security player from 2005 to 2009, makes a persuasive case against the privacy absolutists. He reprises his successful effort to pry airline passenger data out of the Europeans, who are even more uncompromising about privacy than American activists. He tells the story of how the wall erected between intelligence-gathering by the FBI and law enforcement, though designed to protect civil liberties, ended up blinding authorities to the unfolding 9/11 plot. And he recounts how other agencies blocked, on privacy grounds, DHS' bid to maintain and update a database to continually screen the backgrounds of scientists who work with deadly biological pathogens.
Baker deftly skewers the original legal theorist behind the right to privacy, Supreme Court Justice Louis Brandeis, who was scandalized in 1890 by the fact that newspapers published flattering details about a party at his house. Brandeis also found it outrageous that a newspaper could take and publish a photo of a person without his permission. Obviously, the idea of what constitutes an invasion of privacy has evolved dramatically. Baker portrays privacy advocates as fussy Luddites.
When the government collects information about people, Baker acknowledges, some bureaucrats may improperly access it, as when State Department employees rifled Barack Obama's passport file during the 2008 presidential campaign. But the employees were easily caught and disciplined, Baker notes. The answer is to hold bureaucrats accountable for abuses, he says, not deny them important security tools.
It's not always easy to do that, though, and Baker is sometimes glib about the potential for government misdeeds. He doesn't mention that the passenger screening plan Congress killed would have allowed TSA, an agency that is subject to near-daily complaints about surly, abusive airport screeners, to create a risk profile for passengers to determine how they were treated at the security checkpoint.
For many, that's a frightening prospect. When Nancy Anne Phillips, a 63-year-old retired professor from Southern California, complained in April that a screener brushed her crotch with a metal-detecting wand at Philadelphia's airport, TSA denied her allegation but said the security tape of the incident had been destroyed.
At the same airport in March, a TSA employee made a 4-year-old boy struggle through a metal detector without his supportive leg braces, the Philadelphia Inquirer reported. The agency apologized to the boy's father after the incident was publicized but blew him off at the time, he recounted.
Baker would retort that TSA wouldn't be screening 4-year-old children if the privacy lobby hadn't made it impossible to craft an intelligence-based system.
And he might say something else: No TSA slight carries the force of a terrorist bomb.