The Best American Crime Writing 2003

INTRODUCTION

There was a time, pre-9/11, when you could read about crime with a certain detachment, as you would a novel or a short story. No matter how serious or frightening or infuriating the crime, reading about it was essentially a form of entertainment, because the criminals and their victims were generally at a comfortable remove from you, the reader.

The sudden rise of terrorism has changed all that. As the weapons of choice among criminals have morphed from knives and guns (which kill individuals) into chemicals, germs, and atoms (which kill everybody), you the reader have suddenly become a possible victim. So reading about crimes has taken on somewhat greater immediacy, at least when the subject is terrorism-and it often is these days.

But wait, you have not only been cast in the role of victim; you have also become a suspect If that sounds preposterous-you, a suspected terrorist-then what else would you call yourself when you are compelled to empty your pockets at airport security gates, walk through metal detectors, submit to electronic frisking, stand by while a uniformed guard rummages through your carry-on luggage, and take off your shoes so they can be inspected for explosives?

Nor does it end there. In addition to being victim and suspect, you have also been deputized as a cop. In January 2002, President Bush announced the formation of a volunteer Citizen Corps that would wage war against terrorism at the grassroots level, and that means you. A highlight of the program was to be Operation TIPS, in which millions of Americans would act as informers-especially people who had access to other people’s homes-and would report any suspicious activity to the authorities.

The very notion that millions of people would be playing Miss Marple and Big Brother, looking under furniture and pawing through garbage, stirred vociferous opposition. Uneasy comparisons were made to the East German secret police, the Stasi. So the administration quickly took back the part about spying inside people’s homes and said the spying would stop at the front door. In any case, the FBI was soon flooded by calls from thousands of amateur private eyes with raw information. Writing for the online magazine Salon.com, Dave Lindorff reported that when he called the Justice Department to ask what citizens were supposed to do if they had terror tips to pass on, he was given a telephone number that he was told had been set up by the FBI. When he called the number, a female operator greeted him cheerily with the words “Americas Most Wanted, good afternoon.” Lindorff expressed his surprise, and the lady said, “No, this is not the FBI. This is the TV program Americas Most Wanted. We’ve been asked to take the FBI’s tips for them.” The propriety, not to mention the legality, of the FBI’s farming out its intelligence-gathering duties to a privately produced TV show never became an issue, because Operation TIPS never quite got off the ground.

Crime writers, who are ordinary citizens like the rest of us, have also been pulled into the game as victims, suspects, and cops, but their work as reporters has been even more deeply affected by the aftermath of 9/11, and not at all for the better. Since 9/11, there has been a rush within the government to classify all sorts of formerly accessible information on the grounds that its release would endanger national security. Within two months of 9/11, an informational black hole had swallowed entire universes of data. Reporters found their sources slipping away, closing down, evaporating.

The Justice Department, for example, arrested and detained a thousand people on American soil but refused to say who they were or what charges they faced. At the same time, all U.S. immigration and deportation proceedings were declared secret and closed to the public. Access to the INS reading room was closed except by appointment and with an escort. President Bush signed an order restricting public access to the papers of past presidents, and the White House even took the unusual step of paring the list of congressional leaders approved for classified law enforcement briefings. The announcement of these moves, it should be noted, triggered objections in Congress and lawsuits by the press and citizens’ rights groups, and as a result some of the measures were rolled back a bit. Still, the clampdown on information has continued unabated.

Reporters have been caught in a whipsaw. Deprived of information on the one hand, they are finding their own private notes being construed as public property. In July 2002, for example, federal judge T. S. Ellis III agreed with government lawyers who argued that CNN reporter Robert Young Pelton was acting as a government agent when he interviewed John Walker Lindh, the American captured with the Al Qaeda in Afghanistan. The judge ruled that Pelton would have to surrender his notes.

What we have here is a reaction to September 11 that, while understandable under the circumstances, has seriously altered the dynamics of crime fighting, crime reporting, and crime itself. Two pieces of sweeping legislation passed by Congress since 9/11 lie at the core of this seismic shift-the USA Patriot Act and the Homeland Security Act.

The first to be voted into law was the USA Patriot Act, an acronym for Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act. It was rushed through Congress in six weeks with abbreviated hearings and almost no debate; it was then approved by the House, 357-66, and the Senate, 98-1. This is breathtaking, considering that the Patriot Act vastly expands the surveillance capabilities of the government without providing the customary judicial restraints designed to protect civil liberties.

Of all the provisions in the Patriot Act, the ones of greatest concern to journalists, especially journalists who write about crime, are Sections 213 and 215. These two sections enable law enforcement officers to break into newsrooms and journalists’ homes in order to search for and seize materials they believe may constitute “evidence of a criminal offense in violation of the laws of the United States.” The wording is dangerously broad; the “criminal offense” is not limited to terrorism, and the target of the break-in need not be suspected of any crime at all. This means, essentially, that under the guise of fighting terrorism, the government has given itself the right to burglarize independent news organizations if they think they might find information (presumably in the form of a reporter’s research) about a crime, whether or not it has anything to do with terrorism. Furthermore, the government does not have to inform the victim of the break-in that it ever occurred, and anyone who may happen to know about the break-in is forbidden to tell anybody else. This break-in provision, known as the “sneak and peek” clause, is eerily reminiscent of the Watergate plumbers operation and seriously weakens the Fourth Amendment protections against unreasonable search and seizure.

The Patriot Act also enables law enforcement agencies to get around many of the restrictions on intercepting electronic communications. Until now, for example, the Wiretap Statute has set a very high standard of proof for court-ordered wiretaps in domestic criminal cases: The government had to show probable cause that (1) the target of the surveillance was committing a specific crime; (2) the communications being intercepted would bear directly on that crime; and (3) the actual phone being tapped was the one being used in connection with the crime.

A lower standard of proof was required for tracing the telephone numbers of incoming and outgoing calls, because the information captured did not include the actual content of the phone conversation, just the phone numbers. Government attorneys needed only to certify that the telephone numbers would be “relevant to an ongoing criminal investigation.” The Patriot Act expands this “trap and trace” law to include the Internet, and this is a significant broadening of the government’s invasive power. The difference is that the nature of the information gathered from tracing Internet activity is much more revealing than mere telephone numbers and comes very close to content. For example, among the data captured from an Internet surveillance would be all the searches a crime reporter (or anybody else) made on Google, all the web addresses visited in browsing the Internet, and addresses of incoming and outgoing e-mails. And the only requirement for an intercept warrant under the “trap and trace” law is that the information gathered would be relevant to a crime. Again, the crime does not have to involve terrorism.

Section 206 of the Patriot Act goes even further than intercepting the electronic communications of individuals. It permits the FBI to put a monitor on any public Internet facility that they think a terrorist might use, and that includes libraries, cyber cafes, and university computer laboratories. All the users of these facilities would be monitored, not just the suspects, and the operator of the facility would be prohibited from informing its patrons that their activities were being monitored by the FBI.

The Homeland Security Act, which was passed in November 2002, created a whole new federal bureaucracy and redoubled the government’s powers to amass information about individuals. But it also put crucial information out of reach of the public by undermining the Whistleblower Law, which prohibits reprisals against people who come forward to reveal corruption, malfeasance, or any criminal activities within government or private businesses. The Homeland Security Act exempts from the Freedom of Information Act any information provided voluntarily to the government as long as it relates to “infrastructure vulnerabilities or other vulnerabilities to terrorism.” Exactly what these vulnerabilities are is not made clear, and the vagueness of the wording invites the broadest interpretation. So any company or agency that is about to have a whistle blown against it need only pass the pertinent information about itself on to the FBI voluntarily, claiming that it affects infrastructure vulnerability, and it will automatically become secret, immune to Freedom of Information requests by inquiring reporters. Such a cover-up could have an impact on the environment, the economy, public health and safety, and the public’s right to be informed, but the Homeland Security Act would make it a crime to tip off a reporter.

On the other hand, the information the government does put out may become increasingly suspect if Defense Secretary Donald Rumsfeld’s announcement of the formation of the Office of Strategic Influence (OSI) is any indication of what’s to come. The business of the OSI, Rumsfeld said in February 2002 when he announced its formation, would be to influence public opinion by planting disinformation in domestic and foreign media, thereby using the press as dupes. The public outcry was so great that the very next day Rumsfeld said the OSI would not put out false information, and a week later he announced he was closing the short-lived OSI altogether. But nine months after that, feeling his oats at a press conference, Rumsfeld boasted to reporters that although he had been forced to close the Pentagon’s OSI, he had not abandoned its mission. “And then there was the Office of Strategic Influence,” he said. “You may recall that. And ‘oh my goodness gracious, isn’t that terrible, Henny Penny, the sky is going to fall.’ I went down that next day and said fine, if you want to savage this thing, fine, I’ll give you the corpse. There’s the name. You can have the name, but I’m gonna keep doing every single thing that needs to be done, and I have.” At the same time Rumsfeld made this remark, reports in the press indicated that he intended to make information warfare a major Pentagon strategy.

One saving grace in all the legislation following 9/11 is the repeated proviso in the Patriot Act that surveillance in any of its forms will be permitted only if “such investigation of a United States person is not conducted solely upon the basis of activities protected by the First Amendment to the Constitution.” In other words, writing or speaking unpopular sentiments or criticizing the government is not yet considered sufficient reason to spy on American citizens.

But there is still cause for concern. Every year, the First Amendment Center, together with the American Journalism Review, conducts a survey to gauge how Americans view the free-speech protections of the First Amendment. A year before 9/11, 22 percent said they thought the First Amendment went too far in the rights it guarantees. By 2002, after 9/11, that percentage had more than doubled-to 49 percent. As for how the public views the press in its coverage of the war on terrorism, 49 percent do not think the American press has been too aggressive in asking government officials for information. But almost as many, 48 percent, think it has. If this trend continues, then the result will be an uninformed public, shorn of its privacy and right of free expression-a democracy’s nightmare and a terrorist’s dream.

– John Berendt