NSA Received Help from FISA for Surveillance Authorization

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

Ramifications of Federal Court Trials vs. Military Commission

 

Earlier this month, on March 8, Sulaiman Abu Ghaith, Usama Bin Laden’s son-in-law, pleaded not guilty to a charge of conspiracy to kill Americans in a federal courthouse in Manhattan.  Although his connections with the infamous 9/11 attacks are disputed, he is charged with publically praising the attacks and providing support to Al Qaeda for roughly 15 years.  This will undoubtedly be one of the most high-profile terrorist-related trials to take place since the beginning of the War on Terror given the Abu Ghaith’s alleged ties with Bin Laden, but the circumstances surrounding it have already given rise to harsh criticism from politicians and the general public.

In particular, the main cause for concern is the curious decision to try Abu Ghaith in a federal court rather than a military commission trial at Guantanamo Bay, as is normally the course of action in terrorism-related cases.  Lawmakers argue that this decision could have far-reaching implications not only for the Abu Ghaith trial, but for future terrorism-related trials as well.

But what are these implications?  For starters, the Abu Ghaith trial begins a new chapter in a fight between President Obama’s administration and Congress.  In 2009, President Obama announced that he would transfer five Guantanamo detainees to the United States to face criminal charges in federal court.  Opponents of Obama’s plan argued that transferring suspected terrorists to U.S. soil would compromise national security and could lead to wrongful acquittals of guilty parties.  Those in favor of the plan countered by pointing out the efficiency and fairness of the American justice system.

Congress ultimately responded by enacting legislation that froze the funds needed to make those transfers happen.  The Obama administration has seemingly found a loophole in the Congressional act, which only covers Guantanamo detainees, by bringing suspected terrorists to the United States without first holding them at Guantanamo.

Beyond policy considerations, there are legal implications at the heart of the discussion.  In regard to the Abu Ghaith trial, critics argue that Abu Ghaith will be granted rights under the Due Process clause of the Constitution during his trial in federal court that would not exist if he were tried at Guantanamo Bay.  For instance, a military commission does not grant the right to a speedy trial that would be applicable in federal court.  However, the Supreme Court has yet to voice its opinion on whether these rights would also be applicable in a military court, which leaves some uncertainty as to whether these concerns are legitimate.

The type of evidence allowed also differs between military commissions and federal courts.  While both would allow coerced testimony obtained at the point of capture, military commissions typically allow hearsay evidence, which will be barred in federal court.  This will be a significant difference, especially because the federal prosecutor will have a higher burden of proof than a military commission would require.  However, this burden may not pose problem that critics cite, as federal courts have had a 91% conviction rate in terrorism-related cases since the 9/11 attacks.

Along those same lines, defendants in the federal court system may have greater access to witnesses than in military commissions.  In military commissions, the defendant would have no right to subpoena witnesses.  Also, although the judge in a military commission has the power to compel witnesses to appear, he does not have to do so depending on the circumstances.  During the course of his trial, Abu Ghaith will have a better opportunity to call witnesses in support of his defense.  Critics argue that these differences may lead to a wrongful acquittal of a suspected terrorist.  However, the extra burden may not pose the problem that critics cite, as federal courts have had a 91% conviction rate in terrorism-related cases since the 9/11 attacks.

The human rights group Human Rights First points out that a trial at federal court will protect defendants from being convicted ex-post facto.  In other words, defendants will not be convicted of crimes that were not articulated by the legislature at the time they were allegedly committed.  Military commissions allow such convictions, meaning that a defendant may have no prior notice that he is committing a criminal act at the time of his actions.

Finally, the process of selecting the judge and jury are much different in federal court than in a military commission.  In a military commission, the U.S. military handpicks the judge and selects the panel (the equivalent of a jury) from the enlisted military.  In federal court, judges are appointed for life before hearing any cases and the jury is picked from the general public.  Those in favor of federal court trials argue that these procedural steps will lead to a fairer trial for defendants.

 

As the son-in-law of Usama Bin Laden, Sulaiman Abu Ghaith’s trial will naturally catch the public’s eye.  The publicity will only be heightened by the controversy surrounding the Obama administration’s decision to try Abu Ghaith in federal court rather than in a military commission, the type of trial Guantanamo Bay was created specifically for.  With so many differences in procedural, evidential, and political matters, it will be interesting to see how the Abu Ghaith trial plays out.

Christopher Whitten, Research Fellow
Center for Policy & Research

“Your Drones! They’ll Have to Wait Outside!”

Much hubbub has been made recently over whether police use of drones would be an unacceptable infringement of privacy. In fact, lawmakers in some minor jurisdictions have gone so far as to ban all drones.

Caring little for fourth amendment questions, myself, especially in the domestic law enforcement context, I’ll only offer one observation: the police have been oggling you from above for decades.

There is a precedent well known to every law student that allows the police to use aircraft for observation of the areas of your property that they may not be able to see from the street. In California v. Ciraolo, 476 U.S. 207, the Supreme Court decided that police use of airplanes to “search” your backyard was not a breach of your fourth amendment right to be free from unreasonable searches. According to the Court,

“The Fourth Amendment simply does not require the police traveling in the public airways at [a legal] altitude to obtain a warrant in order to observe what is visible to the naked eye.”

Now, back to drones: the only technical difference between drones and ordinary aircraft is the location of the pilot. It is not at all clear why this difference would matter to your sense of privacy. Maybe electronic eyes burn that much more on the back of your head? It’s doubtful the Supreme Court would make that kind of distinction.

However, there is another effective difference: the ease and low cost of drones will greatly increase the amount of surveillance that the police can conduct. And being watched only when the police determine it’s worth the exorbitant cost may seem like less of a burden on your backyard activities. So then that must be what people are worried about.

But if it is not the technical differences between drones and police helicopters that raise the specter of a police state, then the efforts to limit aerial surveillance should not be limited to unmanned overflight. If it decides to craft a new policy for aerial surveillance, the legislature should ensure that it be platform-neutral: aerial surveillance is either intrusive or mundane. It can’t be both, depending on where the pilot sits.

Paul Taylor, Senior Research Fellow
Center for Policy & Research

The Khalid Sheikh Mohammed Hearings Resume: But Who Is The Man Behind The Curtain? And “Who is Controlling These Proceedings?”

2L student Adam Kirchner is currently observing the KSM hearings in Guantanamo.  This article, describing his first day as an observer, was featured in “The Public Record” on January 28th.  

The KSM Guantanamo Bay Military Commission Hearing, United States v. Mohammed, et al., reconvened on Monday for the second session of pre-trial motion hearings. The first session of these hearings, held in October, 2012, devolved into what many referred to as “a circus.” The opening session of this week’s hearings produced several tense moments, including a proverbial “Man Behind the Curtain” incident (as Presiding Judge James Pohl’s control of the proceedings was superseded by some, in his words, “external body”); the hotly contested issue of the United States obstructing defense attorneys’ access to their clients arose;  the debate over whether defense attorneys are truly free to communicate with their clients waged on; and, in their own words, the detainees offered the reasons why they choose to waive their rights to be present during the hearings.

The principal defendant, Khalid Sheikh Mohammed, and his four co-defendants are each accused of eight distinct changes under the Military Commission of 2009, for their roles in the terrorist attacks of 9/11. The charges against the accused are: Conspiracy, Attacking Civilians, Attacking Civilian Objects, Intentionally Causing Serious Bodily Injury, Murder in Violation of the Law of War, Destruction of Property in Violation of the Law of War, Hijacking an Aircraft, and Terrorism.

In a briefing on Sunday, Chief Prosecutor Brigadier General Mark Martins addressed the suggestion that the recent detainee victory in Hamdan II from the D.C. Circuit would nullify the Conspiracy charges in this case as well. Prosecutor Martins stated that he would proceed in this case, assuming that he will be directed to push forward and argue the merits of the Conspiracy charge, despite the decision in Hamdan II. The strategy would make sense in the event the Hamdan II decision is appealed to the Supreme Court.

In the case at hand, the decisions made by the Judge,  Colonel James Pohl, in this phase of the commission  will ultimately affect the evidence that can be discussed, and the procedure of the commision on the merits once all pre-trial motion hearings have been concluded.

The Prosecution alleges that Khalid Sheikh Mohammed was the “architect of the 9/11 concept” in its motion designed to exclude from the trial information that it asserts could compromise the United States’ national security. See Government Motion to Protect Against Disclosure of National Security Information, AE013, page 3. Elaborating on the claim that Mohammed was the “architect of the 9/11 concept,” the Prosecution charges that he conceived of and oversaw the preparation for the 9/11 attacks. Co-defendant Walid bin Attash’s alleged role in the 9/11 attacks was developing the method by which the hijackers smuggled weapons aboard the airplanes, in addition to training the hijackers in hand-to-hand combat. Following co-defendant Ramzi Binalshibh’s denied entry into the United States, his alleged role in the 9/11 attacks was to be the liaison between the chief hijackers and Khalid Sheikh Mohammed. Co-defendant Ammar al-Baluchi’s alleged role in the 9/11 attacks included financial coordination of the hijackers, in addition to procuring a cockpit operations video and flight simulator for the hijackers’ training. Co-defendant Mustafa al-Hawsawi’s alleged role in the 9/11 attacks was financial coordination of the hijackers. Al-Hawsawi’s actions allegedly included draining the hijackers’ bank accounts on the day of the attacks.

Who is the Man Behind the Curtain?

Static filled the gallery’s speakers, and the large video screens which displayed the 40-second-delayed proceedings went blank— to prevent lip-reading— while a red light flashed at the right-hand side of Judge Pohl’s desk. Observation of the hearing was shut down.

As soon as the audio and visual feeds resumed and the flashing light shut off, Judge Pohl expressed two immediate question/concerns: Who ordered the audio/visual feeds to be censored, because it was not on his authority and why were the feeds censored when Learned Counsel for Khalid Sheikh Mohammed, David Nevin, had been discussing theunclassified portion of the Joint Defense Motion to Preserve Evidence of Any Existing Detention Facility? After resuming control of what information would appear on the record, Judge Pohl emphasized his concern that an “external body” is superseding his authority, remarking that it was if “if some external body is turning the commission off.”

Nevin, on behalf of Khalid Sheikh Mohammed, echoed Judge Pohl’s concerns and asked: “Who is controlling these proceedings?”

Learned Counsel for Walid bin Attash, Cheryl Bormann, emphasized  that the mere mention of a motion that contained some classified information seemed to trigger the censorship..

Defense Counsel for Mustafa al-Hawsawi, Navy Commander Walter Ruiz, raised an even more worrisome implication:  If an external body above Judge Pohl’s authority is censoring the audio/visual feeds, that same external body might also be eavesdropping on the defense teams’ communication during the proceedings even when they are not addressing the court. After all, the courtroom is filled with microphones.

Only the Prosecution did not look surprised when the curtain of silence fell upon the courtroom, and they would not discuss what they knew in public.

Counsel discussed these issues in a closed session Monday afternoon, originally slated to deliberate the Military Commission’s Rule 505, which states that an established attorney-client relationship can only be severed for good cause, by the request of the accused, or upon application for withdrawal by counsel. Rule 505 became a pressing issue early in Monday’s session because former-Detailed Defense Counsel for Walid bin Attash, Marine Major William Hennessey, suddenly withdrew from representing his client. Bormann expressed bin Attash’s wish to sever the relationship. However, Judge Pohl stressed the importance of clients themselves, not their counsel or proxies, controlling the severance of an attorney-client relationship when good cause has not been shown, as is the instant issue.

A Case in Point: Denial of Attorney Access to Clients

Before Judge Pohl heard any motions for the day, Ms. Bormann addressed a prevailing issue throughout her representation of Walid bin Attash during the past year: the United States, she argued, obstructs defense counsels’ access to their clients. Bormann and her co-counsel for bin Attash attempted to meet with their client in private at around 8:15, shortly before the proceedings. Bin Attash was present; however, Bormann and her co-counsel were denied any access to their client until he was brought to the courtroom under guard. Bormann argued that today’s barrier to accessing her client was a case in point, following along the lines of other instances of impeded attorney-client access.

Are Defense Attorneys Truly Free to Communicate with Their Clients?

Amidst vocal reactions from the gallery behind the glass, Ms. Bormann  told Judge Pohl, “You don’t live my life.”

Many of the families of 9/11 attack victims present did not, understandably, commiserate with Ms. Bormann. However, Bormann made her remark in the context of her ethical dilemma as an attorney whose attorney-client communication is seized for review by the United States. Ms. Bormann made the point, essentially, that she has not been truly free to communicate with her client since October 2011, thereby depriving her client of her ability to provide a fully informed defense against the charges against him.

Why the Accused Waive Their Rights to Be Present During the Hearings

Cheryl Bormann’s zealous advocacy for her client, Walid bin Attash, was matched in part by her client’s own level of engagement during the proceedings. Bin Attash, with a long, black beard, a head scarf, and a white tunic covered by a camouflage vest, spent much of the proceedings pouring over binders of information through thick, black glasses. Bin Attash made many notes and communicated often throughout the day with his co-defendants.

Anticipating that the accused would abstain from appearing in further sessions this week, Monday’s session concluded with Judge Pohl requiring the accused to answer whether they understood their right to appear at their hearings, and whether they had any questions for him about their rights. All of the accused answered in Arabic, through a translator, that they understood their right to appear at the hearings. But only Walid bin Attash took the opportunity to discuss why the accused, in their own words, waive their rights to be present during their hearings. Bin Attash, a Yemeni, explained excitedly in Arabic that the hearings’ process gives the accused no incentive to appear in court. The accused have been unable to develop trust in their attorneys despite a relationship lasting over a year. Bin Attash clarified that he and his co-defendants do not want this to be a “personal issue” with Judge Pohl. Bin Attash closed his comments by declaring that the Prosecution does not want the accused to hear or understand anything (presumably in reference to their rights and their waivers to appear at the hearings). Bin Attash:

“We have no motivation to come to court. We have been dealing with our attorneys for a year and a half, and we have not been able to build trust with them. Their hands are bound. The prosecution does not what us to hear or understand or say anything. They don’t want our attorneys to do anything.”

Adam Kirchner is a dual-degree student at Seton Hall University School of Law and the Whitehead School of Diplomacy and International Relations. He is a Research Fellow of the Center for Policy and Research and the Transnational Justice Project at Seton Hall University School of Law