Snowden Makes Request for Asylum in Ecuador

Just weeks after leaking the story that the NSA has been collecting phone records and the internet activity of American citizens, it appears that Edward Snowden will not be seeking permanent asylum in China.  Yesterday, multiple news agencies reported that Snowden was on his way to Moscow, where he will apparently wait for Ecuador to grant him asylum.  Earlier reports stated that he might be fleeing to Cuba, but it looks like he never boarded the flight that was supposed to take him there.

That’s right, the man who went on the record saying that he was concerned with the direction our government was headed in regard to freedom of speech and privacy has turned to China and Russia for protection.  I guess he didn’t hear about the Chinese government upping its own surveillance program in Tibet, or that Russian President Vladimir Putin had an entire band thrown in prison for voicing their opinions on Putin’s Russia, or any number of human rights violations both countries have been accused of committing in the recent past.  And he was probably too busy to notice that Ecuador has followed in Venezuela’s footsteps as far as its policy towards America.

Snowden probably fled China because of an extradition treaty we have with them, figuring that sooner or later he would be turned over to the American government and forced to answer for his actions.  It was probably a smart move in this regard since we don’t have an extradition treaty with Russia.  On top of that, our well-documented, strained relations with Putin’s administration make it even less likely that the Russians would ship him back to the U.S.  So why would he go to Ecuador?  Why not stay in Russia?  After all, the United States accounts for roughly 45% of Ecuador’s trade and they could experience a sharp economic decline if the U.S. decided to retaliate against them for harboring Snowden.

It might have something to do with the fact that the American government has already made a serious push toward convincing Russia to turn him over.  The media reported yesterday that the government had filed to revoke Snowden’s passport, which would presumably strand him in Russia for the immediate future.  And like I said before, Ecuador tends to take Venezuela’s stance on foreign relations with the U.S.  Ecuadorian President Rafael Correa is known for making strong statements against America, holding frequent rallies against U.S. “imperialism.”  So even if President Obama were to threaten economic sanctions, it doesn’t seem likely that Correa would cave.

It’s also worth noting that Snowden has reportedly received assistance from Julian Assange of WikiLeaks fame.  Assange calls Snowden “a hero” and claims that he is healthy and safe in an undisclosed location.  Assange himself has been holed up in the Ecuadorian embassy in London, another valid reason for Snowden to seek asylum in that country.  For one, he knows he has at least one ally with ties to the Ecuadorian government.  Second, the Ecuadorian government has harbored Assange for nearly a year, protecting him from charges similar to those Snowden would face in the U.S.  The precedent set by the Ecuadorian government has to be reassuring for Snowden.

Knowing this, it seems impossible not to question Snowden’s motives at this point.  That’s not to say that he was wrong for bringing this to light.  This story is definitely concerning and it’s provoked quite a range of responses from the public, and I could argue for both sides all day.  Regardless, it seems hypocritical for a self-proclaimed champion of free speech that claims to want to protect the rights of American citizens to turn to two countries known for censorship and a country that regularly voices anti-American sentiments.  I’m sure he has his reasons; we just don’t know what they are yet.  There’s still speculation that he has deals with foreign governments to sell information about our national security.  This seems plausible since he obviously has access to massive amounts of damning reports and other documents.  It could also be as simple as Snowden not wanting to spend the rest of his life behind bars, or worse.  He reportedly pleaded with the Ecuadorian government that he wouldn’t get a fair trial in the U.S.  Either way, it looks like the government’s chances at having a crack at him in a court of law are shrinking at a rapid pace.  Luckily, Snowden hasn’t shied away from the spotlight since he made international headlines.  We might have more answers soon, but for now we’re still playing the waiting game.

Chris Whitten, Research Fellow
Center for Policy and Research

Trials for Alleged 9/11 Plotters Resume at Guantanamo Bay

Lost in the shuffle during a week where the NSA scandal has dominated headlines is more news coming out of Guantanamo Bay.  On Monday, the government released the identity of Guantanamo’s “indefinite detainees,” or those who the government has deemed too dangerous for release regardless of whether they can be tried in a military court.  The government has already announced that a number of these detainees will be held indefinitely even though they cannot be tried due to lack of evidence. The names have been kept secret since 2009 when multiple agencies investigated files on detainees in order to support President Obama’s initial effort to close the Guantanamo Bay Detention Center.  Normally these detainees could not be constitutionally held without the possibility of trial, but in 2001 Congress authorized the practice with the “Authorization of Military Force” bill.

Human rights groups including Human Rights Watch and Amnesty international have condemned the idea of “indefinite detainees,” calling for the release of all prisoners that the government has no intention of trying in a court of law.  Some men on the “indefinite detainees” list are actively involved in the well-documented hunger strikes.  At least two, both Afghani men, are deceased, with one committing suicide and the other dying of natural causes in Camp 6.  While the practice of holding detainees without the possibility of trial may be controversial, the release of their identities is a small step towards the transparency and legitimacy that human rights groups have been calling for in recent years.

In other Guantanamo-related news, pre-trial hearings for five men accused of plotting the September 11th attacks resumed on Monday, four months after CIA listening devices were discovered in conference rooms used by the detainees’ attorneys.  Included in this group is Khalid Sheik Mohammed, the alleged mastermind of the attacks.  The hearings included statements from defense attorneys claiming that CIA personnel tortured the detainees while they were being held in overseas prisons prior to their transfer to Guantanamo Bay.  They have also filed motions to dismiss the case due to meddling by senior military officials.

Also present in the courtroom were two victims and family members of three other victims that perished in the attacks.  The observers met with prosecutors and defense attorneys earlier in the week and pleaded for a quick and efficient trial.  At least one victim, a firefighter who was injured by falling rubble in the aftermath of the attacks, is expected to testify on behalf of the prosecution.  As one could imagine, the trials will probably not be very speedy.  Detainee trials at Guantanamo have been ridiculed for many reasons, one of the biggest being that they are inefficient and often take years to complete.  These particular observers have been waiting on an outcome for some twelve years.  Although the trials are resuming, we may have to wait a lot longer to see a resolution.

Chris Whitten, Research Fellow
Center for Policy and Research

More Government Secrecy in Detainee Trials at Guantanamo Bay

Later this week, the trial of an alleged al-Qaeda bomber and current Guantanamo Bay detainee suspected of orchestrating the 2000 bombing of the USS Cole will continue, and one of the first items on the docket is a top secret motion from the government.  Classified motions are not exactly rare in military trials against detainees, but this one is particularly interesting.  Those who know the contents of the motion are barred from discussing any of its contents, and even the defendant, Abd al-Rahim al-Nashiri, and his defense team are not allowed to obtain declassified information regarding the motion unless the Army judge presiding over the trial compels it.  In fact, al-Nashiri’s lead attorney told reporters that his defense team had to fly to Washington, D.C. just to read it.

Army Brig. General Mark Martins, the government’s lead prosecutor on war crimes, insisted that his office was not using classification to cover up any embarrassing episodes, stating that there are “important narrow occasions” where the government may classify information “to protect national security interests.”  Still, the motion has already attracted negative attention from critics of the Pentagon court, which uses the motto “Fairness – Transparency – Justice.”  Yale law professor Eugene Fidell likened the motion to playing charades in the dark.  Even before news of the classified motion was released, a defense attorney filed a motion in May opposing any closure of future motions against al-Nashiri.

Military hearings at Guantanamo have been criticized for some time due to concerns over secrecy and the legitimacy of hearings against detainees, and this news will only add fuel to the fire.  The government is seeking the death penalty against al-Nashiri, and anything less than full disclosure of the government’s case against him leads to serious questions regarding the fairness of military trials against detainees.  In fact, Professor Fidell was quoted as saying,

“We’re supposed to be talking about the rule of law. You can have an all-star team of justices – Cardozo, Brandeis, Holmes, John Marshall, Stevens, Brennan, take your pick – and if they’re working in a closet you can forget about it in terms of public confidence in the administration of justice.”

The timing of this news was poor for the government in light of the recent leak of information regarding the NSA’s surveillance scandal.  With public concern regarding government secrecy rapidly growing, we should expect a great deal of criticism regarding the use of classified motions against detainees at Guantanamo.  And when the stakes are so high, we should be calling for more transparency and legitimacy in trials against detainees.

Chris Whitten, Research Fellow
Center for Policy and Research

Update: New Information on NSA Surveillance Scandal

Last week I wrote about the breaking story that the NSA has been monitoring phone records after obtaining a court order that allowed them to collect data from Verizon Wireless.  As I noted, feelings on the issue are split.  An editorial from the New York Times claimed that the Obama administration had “lost all credibility on the issue,” and that the government was clearly abusing its power.  The Washington Post took a similar stance, but called for more information on the matter before the public jumped to conclusions.  Over the weekend, more information came to light that might help us paint a better picture of what exactly the NSA’s telephone surveillance program entailed.

Most of the new information about the NSA’s PRISM program came from the whistleblower himself, Edward Snowden, and ex-CIA employee.  Snowden is currently living in Hong Kong to avoid prosecution by the federal government for leaking the story.  He provided The Guardian, the British news agency that first broke the story, with a 12-minute video interview that you can watch here.  In the interview, Snowden claimed to have had the authority to spy on any American citizen, including the President.  He claimed to have leaked the information because of some of the same concerns I voiced last week.  In particular, he said that he did not want to live in a society that secretly monitors its citizens, especially those who have done nothing wrong.

So basically what we have learned is that between the CIA and NSA, the federal government had virtually unlimited power to monitor U.S. citizens, even those in the most powerful positions.  It would appear that the government needed no probable cause of any kind to place surveillance on these people.  I think it’s safe to say that most people’s initial reaction to any instance of government surveillance is outrage.  As I said before, we are a freedom- and privacy-loving people.  But it’s also important to look at all perspectives before jumping to conclusions.

First things first, the government is not in an enviable position.  Charged with protecting over 300 million citizens, agencies like the NSA and CIA have a monumental task in detecting and thwarting terrorist attacks against the United States.  Incidents like 9/11 and the Boston Marathon attacks showed just how susceptible we can be to terrorism without implementing a proactive approach.  Because of this, there seems to be a general consensus that the government must have some type of surveillance and intelligence gathering programs.  The trouble is in deciding just how extensive and intrusive these programs should be.  If the government backs off on its surveillance programs and an attack occurs, the public will be outraged and ask why more wasn’t done to protect them.  On the other hand, in situations like this where the government is perceived as having gone too far, the public is also outraged.  The happy medium, if it exists at all, would be extremely difficult to find.  So if the public is going to be outraged regardless of which stance the government takes, it makes sense to some extent that the government would take a proactive stance that might actually prevent attacks and prevent American deaths.

Second, we have to look at what the government was searching for in the records acquired from Verizon.  So far, it appears that the NSA was not listening to individual phone calls or audio recordings.  From what we know thus far the NSA was simply analyzing data for patterns that might uncover terrorist activity within the U.S., which most would consider a legitimate government concern.  Nothing so far points to the government using the collected data for censorship purposes, or anything unrelated to preventing terrorism for that matter.

Having said that, I am not trying to convince anybody that the government did the right thing.  Determining what the right thing even is in this situation is an extremely difficult task, and there probably isn’t a concrete answer.  There is certainly a chance that the government may abuse its power any time it monitors its citizens, but we still don’t have all the facts to make a determination on whether or not they were.  And, especially at a time when confidence in our government is so low, public outcry against the NSA is understandable and maybe warranted.  Even so, when we look at this situation we have to keep it in perspective.  One of the government’s many jobs, and more specifically the NSA’s job, it to protect the public from terrorist attacks, and so far it looks like that is what the PRISM program is intended to do.  More facts are sure to come to light in the following days and weeks, and we might want to reserve judgment until then.

Chris Whitten, Research Fellow
Center for Policy and Research

NSA Phone Surveillance Scandal Sparks Different Reactions

On Wednesday, The Guardian released a story detailing how the National Security Agency obtained a secret court order compelling telephone giant Verizon Wireless to hand over phone records detailing all domestic calls made by its customers.  Specifically, the order, signed by a federal judge on April 25th, gave the NSA unlimited authority to collect phone numbers, location data, time and duration of calls, and other unique identifying data until July 19th.  As the article points out, the court order was unusual in that it targeted such a wide range of people.  Normally, this type of court order would be limited to an individual or a small group of people.

Now, I would venture to say that when most Americans first heard about this story, they envisioned a government agent sitting in a van with headphones on, listening to their individual phone calls.  However, as a follow-up article by The Washington Post explains, this is probably not the case.  Information obtained regarding the court order made no actual mention of audio recordings.  Although it is not out of the question that the NSA may have other programs aimed at obtaining audio files, they would not be able to acquire them under this order.  It appears that the NSA is only seeking paper and electronic records at this point.

But why would the NSA want these phone records?  Although the reasoning behind the court order is largely unknown at this point, the White House responded quickly by claiming that this was an anti-terrorism move.  Particularly, the NSA is probably seeking out patterns in the records that could reveal possible terrorist plots against the United States.  Even if this is the case, the methods the NSA uses to find these patterns have not been proven and have actually been questioned by experts in recent years.

The story has already sparked a great deal of outrage among the American public.  We have a high expectation of privacy and tend to think that we are immune to this type of surveillance, especially when it has not been proven to be effective.  But since specific details are still being withheld, we can’t be sure whether the NSA’s program is actually constitutional.  Putting that aside, there are a few different ways to look at the situation.  Like I said before, we tend to place a high value on privacy in the U.S.  The idea that the government can monitor our phone calls without notice of permission is unsettling to most, and understandably so.  Even if the government is not actively listening to our phone calls, it’s hard to say what else they ARE monitoring.  Prior to the enactment of the Patriot Act, this kind of surveillance would have been unthinkable.

On the other hand, some Americans are ok with the idea of the government monitoring private phone calls.  The program even received some support in Congress.  Senator Lindsey Graham defended the NSA’s program on Fox News, stating that it was a necessary step toward thwarting “homegrown terrorism.”  There are undoubtedly some Americans who agree and are ok with trading some amount of privacy for increased national security.  In the post-9/11 era, this is also understandable.  After all, what does the average American have to worry about if they have nothing to hide?  It’s not like the government has released the actual records to the public.  This might be true, and that argument might hold water, but the fact is that we don’t know where it stops.  Just to reiterate, specifics regarding the program are still unknown, and the NSA may have place self-imposed limitations on their surveillance, but we just won’t know until more details are released.  That’s the part that makes so many Americans uneasy.

Until then, we again have to ask ourselves a question that been asked over and over for the past decade:  What amount of privacy and liberty are we willing to give up in the name of national security?

Chris Whitten, Research Fellow
Center for Policy and Research

GTMO GENERAL ON HUNGER STRIKES: “THE POWER TO END THIS IS IN THEIR HANDS”

Recently, the hunger strikes by detainees at Guantanamo Bay have reached new heights.  The strikes began with six detainees in early March, and quickly grew to 103 detainees by mid-May.  Guards have allegedly resorted to using controversial tactics to force feed detainees if they refuse to eat their meals.

Now it seems as though the strikes may continue, at least for the foreseeable future.  Yesterday, Marine General John Kelly, chief of the United States Southern Command, put the ball in the detainees’ court to stop the hunger strikes.  General Kelly indicated that the strikes and subsequent force feeding will continue, at least until “they get tired of what they’re doing.”  He also took issue with the media’s portrayal of the strike, indicating that some detainees agree to drink Ensure through a straw rather than through feeding tubes inserted by GTMO personnel.  He went on to call the protests “Hunger Strike Lite.”  General Kelly went so far as to deny that force feeding was even taking place at GTMO, electing to call it “enterally feeding” detainees instead.

Meanwhile, a group of retired generals met with National Security Council members to further discuss the closure of Guantanamo Bay.  The panel called on the Obama administration to renew efforts to close the detention center, citing national security issues as the main concern.  Retired Real Admiral John Hutson was quoted as saying,

“Every day Guantanamo is open is another day of stain on American reputation and undermining our security. And a day closer to the end of the Obama administration.  We have to move.”

Regardless of who you believe regarding the alleged force feeding of detainees or your stance on the closure of GTMO, two things seem certain.  The hunger strikes will continue, and base personnel will not cave in.

Chris Whitten, Research Fellow
Center for Policy and Research

Court of Appeals upholds denial of FOIA request seeking Bin Laden photos

The Court of Appeals for the District of Columbia yesterday decided to uphold a district court ruling that the US did not have to release photos of taken during and after the raid on Osama Bin Laden’s compound in Abbottabad, Pakistan. The photos were sought by a conservative watchdog group, Judicial Watch, under a Freedom of Information Act request. The court found, however, that since the photos were used to conduct facial recognition to verify the body as Bin Laden, releasing the photos could endanger intelligence methods.

While I do not dispute that ruling, I am happy about the outcome on another ground altogether. John Bennett, director of the CIA’s National Clandestine Service, described the photos in a declaration to the court as “quite graphic, as they depict the fatal bullet wound to and other similarly gruesome images of his corpse.” And according to the Appeals Court,

“As the district court rightly concluded, however, the CIA’s declarations give reason to believe that releasing images of American military personnel burying the founder and leader of al-Qaida could cause exceptionally grave harm.”

To my mind, this decision validates an important reason for the Freedom of Information Act: informational transparency. Congress did not pass it to give the media free access to salacious material to boost their ratings.

As citizens of an open democracy, Americans have a right to information about their government and its activities. But where the government has a legitimate reason for withholding a document, even if it is on grounds such as diplomatic “embarrassment,” as happened in the Bradley Manning Wikileaks case, a FOIA request should as a matter of policy only be granted if there is a legitimate informational purpose. Judicial Watch could identify no cognizable information contained in the pictures that was not already publicly known. Thus, releasing the photos would not serve FOIA’s purpose of informational transparency, only the media’s purpose of generating buzz.

A vastly undervalued aspect of protecting our rights as citizens of an open society is to avoid abusing those rights. One example of the dangers that fear of unwarranted disclosure can cause can be found in the case of the CIA interrogation tapes. Fearing that these tapes may at some point become public, the CIA destroyed them. The courts yesterday thus did us a favor in protecting the government from unnecessary disclosure of gruesome photos, helping to ensuring that the government can do its job without fear that anything and everything will wind up on Fox, MSNBC, and Al Jazeera.

Paul W. Taylor, Senior Fellow
Center for Policy & Research

 

Speedy trial chickens may be coming home to roost

In a previous post, I mentioned the possibility of speedy trial problems arising if terrorism suspects are treated differently than other violent criminals. And we are now seeing signs that this may be true.

The defense for Guantanamo Bay prisoner Ahmed Gilani, who is so far the only GTMO detainee to be tried in Federal court rather than in a Military Tribunal, is now seeking to have his conviction overturned due to his long detention prior to trial (see also, here). Gilani was sentenced to life in prison for his role in the 1998 embassy attacks in Tanzania and Kenya. After his capture in Pakistan in 2004, he was held in incommunicado by the CIA for two years, then by the military at Guantanamo Bay, Cuba until 2009, when the Obama Administration transferred him to civilian custody for trial.

But I suspect that while this delay is truly significant, and under normal circumstances would be a clear violation of the constitutional requirement for a speedy trial, I think there is a clear difference between this case and the Boston bombing case. Where Tsarnaev was a civilian captured in the US with no apparent ties to a foreign enemy entity (state-based, state-sponsored, or otherwise), Gilani was captured on foreign soil in the course of a foreign war authorized by Congress. As such, the US was authorized to hold Gilani without charge as a suspected enemy combatant, regardless of his activities in 1998.

Where one might decide to draw the line between these two poles, with arrest under civilian authority on the one end, and capture under foreign relations/law of war authority on the other, I don’t exactly know. However, it is clear that these two cases fall on opposite sides of that divide. So even if Gilani’s speedy trial appeal is defeated, as I suspect it will, that does not limit the concern that such an appeal could lead to the release of convicted terrorists if pre-trial detention is prolonged for intelligence-gathering purposes. Such concerns are very real, and should not be taken lightly.

Paul W. Taylor, Senior Fellow
Center for Policy and Research

Fed’s handling of Tsarnaev draws criticism (and praise)

After capturing the second Boston Marathon bombing suspect on Friday, the FBI decided to invoke the public safety exception to the Miranda requirement. This decision has generated much debate about the rights that should be afforded to terrorism suspects, whether a distinction should be drawn between foreign and domestic terrorist suspects, and who qualifies as which.

According to the ACLU, while authorities should be able to question Tsarnaev about imminent threats, using the public safety exception “to create the case against the suspect” would be “wholly inappropriate and unconstitutional.”  In this they are absolutely correct. This exception was created not as an investigatory tool, but as an excuse for officers who, under pressing circumstances and in the heat of the moment, ask a question of a suspect, such as “where is the bomb?” or “which way did your accomplice run?” It was a failsafe to allow officers who ask questions with the sole purpose of ensuring public safety before read the suspect their rights to still be able to introduce the suspects responses in court. It was not intended to create a tactic by which police could intentionally delay mirandizing suspects.

Relatedly,  several Republican politicians have argued that Tsarnaev should be officially labelled an “enemy combatant” in order to remove procedural hurdles to national security investigations. For example, as an enemy combatant, Tsarnaev would not be entitled to the a lawyer during interrogation. These lawmakers hope that by removing the Miranda warning and its attendant rights, the authorities may be  better able to probe possible links to al Qaeda or other terrorist groups.

Of course, there is as yet no indication that there are any such links, and if there are, the 4th and 5th Amendments have generally not gotten in the way of finding out. For example, “Millennium Bomber”Ahmed Ressam gave up all of his contacts shortly after being caught and interrogated by the FBI under full Constitutional protection. In fact, facing 130 years in prison, he sang like a bird for 4 years while his sentencing was put on hold. (The uber-liberal Ninth Circuit has since ruled that Ressam’s 22-year sentence was too lenient, and placed an effective floor of 65 year on the sentence.)

But this has not stopped some Republican lawmakers from claiming the need to apply extraordinary measures to “foreign” terrorists. However, they seem to have hit a snag here, since Tsarnaev is a naturalized US citizen, not that they let this get in the way. In fact, Senator Lindsey Graham went so far as to advocate using racial and religious profiling to to determine if Constitutional protections should apply:

“You can’t hold every person who commits a terrorist attack as an enemy combatant, I agree with that. But you have a right, with his radical Islamist ties and the fact that Chechens are all over the world fighting with Al Qaeda — I think you have a reasonable belief to go down that road, and it would be a big mistake not to go down that road. If we didn’t hold him for intelligence-gathering purposes, that would be unconscionable.”

So, according to Senator Graham. if they are Chechen and/or Muslim, screw their rights.

Discrimination aside, Sen. Graham seems to have forgotten that we don’t need to hold Tsarnaev for intelligence gathering purposes, since he’s already being held for criminal prosecution. This gives the FBI and other Federal investigators ample access to him for intelligence gathering purposes.

Indeed, holding Tsarnaev as an enemy combatant could jeopardize the government’s ability to try him, since Military Commissions have no jurisdiction over US citizens, and the latter trying him in civilian courts could trigger problems with speedy trial protections and admissibility of the evidence obtained without 4th and 5th Amendment protections.

For additional commentary on the Tsarnaev case, the following were collected by Fordham’s Center on National Security:

New York Times: “Mr. Graham’s reckless statement makes a mockery of the superb civilian police work that led to the suspect’s capture….Fortunately the Obama administration has ignored the posturing and declared that Mr. Tsarnaev, like all citizens and even alien terrorists captured on American soil, will be tried in the federal courts.”

Wall Street Journal: “The flap over reading [Tsarnaev] his Miranda rights is a largely irrelevant distraction. … The important security issue isn’t convicting Dzhokhar but finding out what he knows that might prevent a future attack or break up a terror network. This is where naming him an enemy combatant would be useful.”

New Yorker: Does the public exception to the Miranda “grant the police a limited ability to ask where a bomb is or which way an accomplice ran, and use the answers in court? Or is it a free forty-eight-hour questioning coupon the government gets for calling someone a terrorist?”

Paul W. Taylor, Senior Fellow
Center for Policy & Research