Monday marked the fifth anniversary of the Sept. 11 terrorist attacks, yet the government's efforts to secure the nation against another terrorist attack have been minimal, leaving the country's chemical plants, ports, and other installations dangerously unsecured while increasing secrecy and intrusion into civil liberties.

Domestic Spying

In late 2005, The New York Times revealed that President Bush has been secretly authorizing the National Security Agency (NSA) to eavesdrop on domestic phone calls and emails without a wiretapping warrant since soon after 9/11. The NSA program has been faulted not only for its legal basis bur for its apparent lack of efficacy. According to FBI sources interviewed by the Washington Post, all of the thousands of international calls by Americans that were subject to NSA eavesdropping turned out to be investigative dead ends.

After the White House fiercely resisted Congress's attempts to implement even minimal oversight over the wiretapping program, Sen. Arlen Specter (R-PA), an avid critic of the program, caved to pressure and accepted watered-down legislation that would legalize the president's NSA wiretapping program retroactively. The National Security Surveillance Act (S. 3876) would also create a legal framework for future surveillance of American citizens. By retroactively acknowledging that the president has "the constitutional authority of the executive," the bill allows the federal government to wiretap anyone's phone calls or read anyone's emails without judicial approval or oversight.

A federal court recently ruled the NSA spying program unconstitutional. The U.S. Court for the Eastern District of Michigan found the program to be in violation of the First and Fourth Amendments and the separation of powers. The decision came on a case filed by the American Civil Liberties Union challenging the legality of the NSA program by arguing that the rights of several journalists and academics had been violated.

Chemical Security

Even as the administration spies without oversight on its citizens, five years after 9/11, Congress has failed to pass legislation mandating security standards for thousands of chemical facilities across the country. The House and Senate have spent most of 2006 in gridlock on legislation to authorize the Department of Homeland (DHS) to establish reporting requirements and verify the security of chemical facilities.

The Senate Homeland Security and Governmental Affairs Committee passed Chemical Facility Anti-Terrorism Act of 2006 (S. 2145) in July 2006 that fails to require facilities to consider safer technologies or publicly report failed inspections. The bill has reportedly been bogged down because of various objections from more than a dozen senators. In a letter to the objecting senators, Homeland Security and Government Affairs Committee Chairwoman Susan Collins (R-ME) urged her colleagues to allow the bill to reach the Senate floor and settle any differences over the legislation there.

Later in July, the House Homeland Security Committee passed Chemical Facility Anti-Terrorism Act of 2006 (H.R. 5695), which is hailed by public interest groups as substantially better than the Senate version. The bill, sponsored by Rep. Daniel Lungren (R-CA), establishes security requirements for our nation's chemical facilities, and was amended in committee to include requirements that companies, when feasible, use safer technologies and provisions allowing states and localities to establish their own stronger security programs.

The House is expected to finish its business this year, but with many competing objectives and a contentious bill, it is uncertain when the Senate will vote on the bill. That in five years Congress has failed to pass a substantial chemical security law should come as little surprise considering the strong opposition to any regulation from the chemical industry.

Sensitive But Unclassified

In March of 2002, White House Chief of Staff Andrew Card issued a memo ordering agencies to "safeguard" information that is "sensitive but unclassified." This catch-all broadly includes, in each agency's judgment, "information that could be misused to harm the security of our nation and the safety of our people."

A provision codifying the "sensitive but unclassified" category was then slipped into the Homeland Security Act of 2002, drawing little attention and no debate. Specifically, the act instructs the executive branch to "identify" and "safeguard" "homeland security information that is sensitive but unclassified" (often called Sensitive Homeland Security Information (SHSI), which includes any information about terrorist threats, potential vulnerabilities, and disaster response. This even applies to information that has previously been disclosed--particularly disturbing to those who fear it could lead to the withdrawal of vast amounts of information.

Four years later, no government-wide policies or procedures exist to guide agencies through deciding what information should be withheld from the public due to its "sensitive but unclassified" nature. Federal agencies are also without uniform rules governing who makes such decisions and how such information is then handled. As a result, there are over 50 different SBU designations used by the federal government and rampant confusion at the federal, state and local levels. In a GAO report issued this year, first responders, for instance, "reported that the multiplicity of designations and definitions not only causes confusion but leads to an alternating feast or famine of information."

Reclassificaiton and Overclassification

On Feb. 21, Matthew M. Aid of the National Security Archive disclosed the scope of a multiple-agency reclassification program. The reclassification program appears to be a backlash to a 1995 executive order issued by President Clinton that required government agencies to declassify all historical records that were 25 years or older, with national security exceptions. Under the new program, government agencies removed declassified documents from the shelves of the National Archives and considered them for reclassification. Many of the documents were publicly available--some were even published by the State Department and for sale at Amazon.com--leading historians and national security experts to question the validity of their reclassification.

Over 55,000 pages of documents were reclassified. Most of these documents are from the Central Intelligence Agency (CIA), Defense Department, Defense Intelligence Agency, Department of Justice (DOJ), and State Department, often including non-sensitive information and sometimes dating back to World War II. It was not until 2006 that the public, Congress and even some high-level members of the National Archives were even aware of the massive scope of the reclassification effort. Unlike similar efforts, Congress had not authorized the intelligence agencies to undertake the program, nor had there been an executive order, or any funds appropriated for this expensive effort with a price tag estimated to be in the seven digits.

In March 2006, the National Archives issued a moratorium and a formal review. An audit conducted by the National Archives estimated that more than 8,500 of the 25,000 records (nearly one-third) removed from the public shelves of the Archives should not have been removed. Lifting the formal moratorium on the reclassification program, the National Archives plans to issue and encourage the implementation of standardized procedures "to ensure that re-review and withdrawal actions are rare and that collaboration between agencies and National Archives with respect to determining the appropriateness of such action in the first place always occurs with provisions for challenge and appeal."

State Secrets

Based on the 1953 Supreme Court ruling in Reynolds v. United States, the state secrets privilege allows the executive branch to declare certain materials or topics exempt from disclosure or review. The Bush administration has used this privilege almost half the number of times it was invoked in the entire period between 1953 and 2001, when the combined use of 8 presidents -- Eisenhower, Kennedy, Nixon, Ford, Carter, Reagan, the first Bush and Clinton -- amounted to 55 claims of state secrets.

As reported by The New York Times, the administration recently used the state secrets privilege to compel the courts to dismiss a lawsuit brought by a German man who had been held in Afghanistan for five months after being mistaken for a suspected terrorist with the same name. The Justice Department has also claimed state secrets privilege when it asked the courts to throw out three lawsuits against the National Security Agency's warrantless domestic spying program. Additionally, the state secrets privilege was used to shut down a lawsuit by national security whistleblower Sibel Edmonds, an ex-translator for the Federal Bureau of Investigation, who was fired after accusing coworkers of security breaches and intentionally slow work performance.

In each of these cases, the Department of Justice has used the state secrets privilege to shut down cases against the federal government, claiming that any discussion of the lawsuit's accusations would endanger national security. With a growing array of challenges to the government's handling of terror suspects and warrantless domestic wiretapping, target cases for this tactic are in far from short supply.

Result: More Secret But Not More Secure

Shortly after the 9/11 terrorist attacks, OMB Watch raised concerns that the government might impinge on important democratic principles such as government transparency and civil liberties. We argued that increased secrecy would not only make us less safe, it would undermine our values of an open, democratic society - and allow terrorists a significant victory. Today we are even more troubled. Many basic liberties have been eroded, but are we any safer?

Until our chemical plants, ports, and other installations are secured, until the public has evidence that dangers in our communities are removed, and until oversight is strengthened to provide checks on a largely unaccountable executive branch, we have much to do. As Justice Louis Brandeis said in 1933, "Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman." We would argue that Brandeis' quote applies equally in an age of terrorism.