In today’s New York Times, Mark Mazetti and Justin Elliot discuss American and British spies’ use of the popular online fantasy games World of Warcraft and Second Life as tools to perform surveillance and undermine the networking efforts of terrorists and other criminals. Continue reading
Over the weekend, The New York Times and Washington Post reported that the NSA, on top of collecting Americans’ phone records, has been collecting other information that could detail social connections, travel companions, and locations at certain points of time. It appears that the NSA collected this information through credit agencies, social media, passenger manifests from airlines, insurance agencies, and other public and private sources. The program seems to be either closely linked or a part of the PRISM program leaked by Edward Snowden a few months ago. Continue reading
In August of 2013 I had the opportunity to travel to Guantanamo Bay to represent Seton Hall Law’s Center for Policy and Research as an NGO observer at the 9/11 trials. In particular, I was able to watch one of many pretrial hearings in the case of the United States v. Mohammed, in which Khalid Sheikh Mohammed (KSM), Walid Muhammad Salih Mubarak Bin ‘Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali (AKA al-Baluchi), and Mustafa Ahmed Adam al Hawsawi are named as defendants. The five detainees are accused of plotting the 9/11 attacks that lead to the deaths of nearly 3,000 people in New York, Virginia, and Pennsylvania.
It appears that the NSA’s plan to protect the US against cyber-warfare will be shot down in the near future. According to The New York Times, officials inside the Obama administration say that the plan comes too soon after the NSA’s disclosures about its surveillance programs to be implemented. Continue reading
A few days ago I wrote about the Obama administration’s decision to shut down 19 embassies in the Middle East and North Africa for the remainder of the week in response to what officials are calling a serious and credible threat. The State Department has since reaffirmed that some embassies will remain closed until further notice while others will reopen on Monday. We already know that the threat causing the shutdown came from al-Qaeda’s Yemeni branch, but we’re still in the dark in regard to what the threat actually entails. Continue reading
Just as many predicted from the beginning, it looks like the NSA surveillance scandal has reached beyond the NSA to other branches of government. On Saturday the New York Times reported that over the past few years, the Foreign Intelligence Surveillance Court, or FISA, has basically created an entire new category of law pertaining to surveillance for the NSA and CIA. FISA has reportedly handed down over a dozen classified rulings on everything from espionage to nuclear proliferation to cyber attacks. It appears that FISA has quietly taken over the Supreme Court’s role in all matters pertaining to surveillance.
Most notably, the court used a particular case to expand a little-known doctrine called the “special needs” doctrine that allows authorities to sidestep the Fourth Amendment by performing search and seizure operations without the need for a warrant. The government claims that this expansion of the special needs doctrine is only applicable in terrorism-related cases. The exception is typically used only for things like airport screenings and DUI checkpoints. Professor William C. Banks of Syracuse University stated that the use of this doctrine is just “another way of tipping the scales toward the government in its access to all this data.”
So how can FISA justify the expansion of this doctrine, essentially abandoning the use of the Fourth Amendment’s protection from arbitrary searches and seizures? It looks like it came down to the interpretation of one word: Relevant. Instead of interpreting the word in the narrow sense used in most criminal cases, the court elected to broaden its scope, allowing the NSA to collect any records that could possibly be relevant to national security concerns. This interpretation has drawn sharp criticism in the past few days. A senior partner at Perkins Cole LLP, the Justice Department’s go-to firm on federal surveillance law, claims that FISA has destroyed the meaning of “relevant” altogether, essentially changing it to mean “everything.” He also mentioned that a typical federal or state court would laugh the prosecution out of the courtroom if it tried to argue for this new interpretation.
But what does this mean for the average American? Probably not much. As I’ve said before, I don’t think the NSA has the time or resources to rifle though billions of pages of records that they know are not “relevant” to national security. I have a hard time believing that our government is reading all our “LOL’s” and “IDK’s” when there is so much at stake. In fact, it’s come out that even though the NSA has the power to collect the records, they still needed a warrant to actually access them. Sure, the government still has plenty of egg on its face and has sufficiently embarrassed itself on a global scale. But now, roughly a month after Edward Snowden first released information on this scandal, we still have yet to hear of any connection between the NSA’s programs and any non-terrorism-related arrests.
With that said, it’s hard not to be concerned when courts hand down secret rulings that essentially throw away our Constitutional protections. At least for now the traditional law requiring warrants for searches and seizures still applies to normal cases, but that won’t make to many people feel better about the fact that we have a highly secretive court handing down classified decisions that have the potential wipe out our most basic freedoms. I’m usually willing to give the government a pass when it comes to protecting our national security, but this has to stop somewhere. I think it’s safe to say that the American government has officially pole-vaulted over that fine line between protecting our freedom and trampling on it.
Chris Whitten, Research Fellow
Center for Policy and Research
It now appears that the government is taking steps toward lightening the burden on Guantanamo Bay, and perhaps even closing it. Yesterday, The New York Times reported that the Senate Armed Services Committee approved the National Defense Authorization Act for 2014. The bill will lift a ban on the transfer of detainees to the United States for the purpose of prosecution. The bill also pertains to transferring detainees for medical reasons, or even for continued detention in American prisons.
Since 2011, the U.S. Secretary of Defense has been required to certify that a list of conditions have been met before a detainee could be transferred. Most of the conditions were extra security measures that essentially stopped the government from even attempting transfers, even for low-security risk detainees. Under the new bill, the checklist would be done away with and the Secretary of Defense would only need to certify that the transfer would be in the best interest of national security. This would be a much more flexible process that would probably lead to more transfers and possibly more trials for detainees.
Although the bill has been approved, it still has a long way to go before it becomes a law. No actual vote has been held; members of the Committee have only agreed to debate the bill’s provisions on the Senate floor. A rival bill has also been drafted by Republicans in the House of Representatives that would maintain the blanketed ban on transfers for any reason whatsoever.
So what are the benefits of the bill? First of all, it might speed up the process for detainees who are actually being charged with crimes. Military tribunals are notoriously slow, and we often have to wait years before we see a verdict in these trials. If we opened up our traditional court system, we might see quicker results. That’s not to say that our traditional system is lightning quick, but if we remove some of the barriers that prosecutors and defense attorneys face in military tribunals we would probably see a lot more efficiency.
Aside from that, the cost of providing medical treatment to detainees at Guantanamo can be astronomical. Medical expenses are high as it is, but when you factor in transportation costs for medical personnel and equipment, they become ridiculous. We would not only be able to cut our bottom line if we were able to provide quicker, better, and cheaper medical attention for detainees, but we would probably be able to quiet some of the human rights concerns that have stemmed from force-feeding detainees that have been on hunger strikes for months now.
Overall, there are a lot of positives to be found in the bill. President Obama’s initial promise to close Guantanamo a year into his presidency has turned into a lengthy debacle and it doesn’t look like the government will be able to close it in one fell swoop. If we make the decision to close it, it’s going to be a long process. And even if this bill were voted into law it’s probably unlikely that high-value detainees would be transferred due to security issues. So is this bill just a small step towards the slow phasing-out of Guantanamo Bay? Yes. But it’s a step nonetheless, and a step we can build on.
Chris Whitten, Research Fellow
Center for Policy and Research
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
While the debate over the legality of the US drone campaign in various places around the world rages on, Scott Shane of the New York Times pointed out yesterday that drone strikes worldwide are actually on the decline. They report that the number of strikes in Pakistan, where drones are most actively used, actually peaked back in 2010. In Yemen, where drone strikes served to decapitate the leadership of Al Qaeda in the Arabian Peninsula, the number spiked dramatically in 2012, but has since dropped off again. Meanwhile, no strikes have been reported in Somalia for more than a year.
The cause of this decline, according to NYT sources, include the diminishing list of high-level Al Qaeda targets, which they attribute to the success of the drone program, as well as other factors like weather and diplomatic concerns. However, Shane suggests that another factor may be the growing appreciation of the costs of the program. This is certainly a concern, especially as Al Qaeda uses the strikes as a propaganda tool and, thanks to the Urdu language press, many Pakistanis report to live in fear of drones (despite never having seen one). I, myself, have long argued that the drone program is legitimate and beneficial to US interests, with the caveat that we find a way to transition to law enforcement methods within a reasonable amount of time. The only problem is figuring out how to do that in places like rural Pakistan, Yemen, and Somalia.
Hopefully, this is a topic that President Obama may address national security speech scheduled to take place tomorrow at the National Defense University. Unfortunately, while I have a lot of faith in President Obama on many fronts, I would be surprised if he goes beyond a mere recitation of the drone strike numbers, and actually proposes a way out.
Paul W. Taylor, Senior Fellow
Center for Policy & Research
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