Federal Courts v. Military Commissions: The Debate Isn’t Over

After last week’s conviction of Bin Laden’s son-in-law Sulaiman Abu Ghaith in Federal Court, Attorney General Eric Holder issued a statement praising the trial as a demonstration that Federal Court is the proper venue for high-profile terrorism cases. As I cited in a post earlier this week, Holder said of the trial:

“We never doubted the ability of our Article III court system to administer justice swiftly in this case, as it has in hundreds of other cases involving terrorism defendants. It would be a good thing for the country if this case has the result of putting that political debate to rest. This outcome vindicates the government’s approach to securing convictions against not only this particular defendant, but also other senior leaders of al Qaeda.” Continue reading

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

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

Sulaiman Abu Ghaith Prosecution Begins in NYC

This morning Sulaiman Abu Ghaith, a son-in-law of Usama Bin Laden, pleaded not guilty to the charge of conspiracy to kill Americans. Interestingly, this took place not in a military commission at Guantanamo Bay, but in federal court in lower Manhattan, just a few blocks from the site of the 9/11 attacks.

While Abu Ghaith’s connection to the 9/11 attacks is disputed, he is charged with publicly praising the 9/11 attacks and supporting al Qaeda/UBL for nearly 15 years. Numerous sources cite him as being the most senior al Qaeda member to be tried in the United States.

Not surprisingly, the decision to hold his trial in federal court has drawn significant criticism from the press, politicians, and the public- and it was just announced yesterday. NYC Mayor Michael Bloomberg is quoted as saying “Would I prefer to have it [the prosecution of Abu Ghaith] elsewhere? I’m not going to get involved in that because I don’t want to make the president’s job any more difficult.” Other political leaders were not so diplomatic, Republican Senators Lindsey Graham and Kelly Ayotte described the Obama administration’s decision to prosecute Abu Ghaith in federal court as “sneaky” and contradictory to the will of Congress.

Today was just a simple 20-minute arraignment, but given the press and publicity Abu Ghaith has received thus far, his prosecution seems like it will be a lengthy and contentious process.

Kelly Ann Taddonio, Research Fellow
Center for Policy and Research