Homeland Security Watch

News and analysis of critical issues in homeland security

June 17, 2011

The terrorist threat is real; constitutional guarantees need to be at least as real

Filed under: Privacy and Security,Terrorist Threats & Attacks — by Philip J. Palin on June 17, 2011

UPDATE: The lead editorial in the Sunday New York Times focused on the same issue as set out below on Friday.  Please see: “Backward at the FBI”.

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Just this week: two were indicted for conspiring to bomb New York synagogues,  British police arrested another suspect in what is thought to be a plot against nuclear power plants in the UK,  four were arrested in Austria for terrorist intentions, and sixteen were arrested in Indonesia for planning to use cyanide in a mass police poisoning.  The list could easily be longer.

All the suspected terrorists noted above are alleged to have at least loose links to Al-Qaeda.

Yesterday news reports confirmed the selection of Ayman Al-Zawahiri as Osama bin-Laden’s successor.  In video remarks released on June 8 Zawahiri promised new attacks on the United States.  There are also signals that with bin-Laden out of the way, Al Qaeda may be ready to advocate much more free-lance work or so-called “individual jihad.”   While bin-Laden was focused on another big hit, his successors seem as ready to kill with a thousand cuts.

In April Mark F. Giuliano, Assistant Director, Counterterrorism Division, Federal Bureau of Investigation did a good job summarizing a range of recent terrorist threats.  It is too long to reproduce here and offer any analysis.  Please read what Giuliano said about terrorist threats.

To deal with the constantly evolving threat, revisions are reportedly underway, or by now perhaps completed, on the FBI’s Domestic Investigations and Operations Guide (copy courtesy of the NYT).  According to CBS News:

Under the FBI’s (existing) rules, agents are allowed to retain personal information obtained about a subject even if no evidence turns up of any wrongdoing. Agents were also authorized to “proactively” begin investigations (the lowest level of which is termed an “assessment”) on potential targets, even without specific justification; and restrictions on the use of intrusive techniques (such as infiltrating organizations, use of informants, or photographing subjects) were loosened.

Now the FBI’s revised document will ease rules further. For example, instead of being required to formally open assessments on subjects before conducting searches for information, agents may do so without keeping a record.

Julian Sanchez, with the Libertarian Cato Foundation, explains the possible policy and privacy implications:

Agents can already do quite a bit even without opening an “assessment”: They can consult the government’s own massive (and ever-growing) databases, or search the public Internet for “open source” intelligence. If, however, they want to start digging through state and local law enforcement records, or plumb the vast quantities of information held by commercial data aggregators like LexisNexis or Acxiom, they currently do have to open an assessment. Again, that doesn’t mean they’ve got to have evidence—or even an allegation—that their target is doing anything illegal, but it does mean they’ve got to create a paper trail and identify a legitimate purpose for their inquiries. That’s not much of a limitation, to be sure, but it does provide a strong deterrent to casual misuse of those databases for personal reasons. That paper trail means an agent who might be tempted to use government resources for personal ends—to check up on an ex or a new neighbor—has good reason to think twice.

Removing that check means there will be a lot more digging around in databases without any formal record of why. Even though most of those searches will be legitimate, that makes the abuses more likely to get lost in the crowd. Indeed, a series of reports by the Inspector General’s Office finding “widespread and serious misuse” of National Security Letters, noted that lax recordkeeping made it extremely difficult to accurately gauge the seriousness of the abuses or their true extent—and, of course, to hold the responsible parties accountable. Moreover, the most recent of those reports strongly suggests that agents engaged in illegal use of so-called “exigent letters” resisted the introduction of new records systems preciselybecause they knew (or at least suspected) their methods weren’t quite kosher.

The new rules will also permit agents to rifle through a person’s garbage when conducting an “assessment” of someone they’d like to recruit as an informant or mole. The reason, according to the Times, is that “they want the ability to use information found in a subject’s trash to put pressure on that person to assist the government in the investigation of others.” Not keen into being dragooned into FBI service? Hope you don’t have anything embarrassing in your dumpster! Physical surveillance squads can only be assigned to a target once, for a limited time, in the course of an assessment under the current rules—that limit, too, falls by the wayside in the revised DIOG.

I share concerns regarding invasion of privacy and gradual erosion of Fourth Amendment guarantees. In September 2010 the Justice Department Inspector General completed a multi-year study of FBI domestic operations and reported:

The evidence in our review did not indicate that the FBI targeted any of the groups for investigation on the basis of their First Amendment activities.  However, we also concluded that the factual basis for opening some of the investigations of individuals affiliated with the groups was factually weak. Moreover, in several cases there was little indication of any possible federal crimes as opposed to state crimes.  In some cases, we also found that the FBI extended the duration of investigations involving advocacy groups or their members without adequate basis, and in a few instances the FBI improperly retained information about the groups in its files. In some cases, the FBI classified some investigations relating to nonviolent civil disobedience under its “Acts of Terrorism” classification.

Beyond the Fourth Amendment, I am nearly as concerned over law enforcement distraction and intelligence mission-creep. Did you see the May 28 story on a self-confessed Texas anarchist and his 440 page FBI report?  In this case, there is criminal predicate, but reasonable people may disagree over reasonable suspicion.   The guy is eccentric, maybe even worth a close look… but for how long, with what resources, and at what cost?

Or how about this week’s report on a series of subpoenas and warrants served across the Midwest.  According to the Washington Post:

Investigators, according to search warrants, documents and interviews, are examining possible “material support” for Colombian and Palestinian groups designated by the U.S. government as terrorists.

The apparent targets, all vocal and visible critics of U.S. foreign policy in the Middle East and South America, deny any ties to terrorism. They say the government, using its post-9/11 focus on terrorism as a pretext, is targeting them for their political views.

They are “public non-violent activists with long, distinguished careers in public service, including teachers, union organizers and antiwar and community leaders,” said Michael Deutsch, a Chicago lawyer and part of a legal team defending those who believe they are being targeted by the investigation.

Several activists and their lawyers said they believe indictments could come anytime, so they have turned their organizing skills toward a counteroffensive, decrying the inquiry as a threat to their First Amendment rights.

With warrants issued probable cause was demonstrated to the satisfaction of some magistrate.   I will watch to hear and read more, but political activism — from the right, left, or constantly confused — must not be conflated with criminality.  I owe it to my neighbor, my self, and the constitution to defend the political and free-speech rights of everyone, especially those with whom I disagree.

Even without loosening the standards needed to begin a pre-criminal assessment, the amount of information already available tends to overload the system… and the minds of individual investigators.  Meaningful standards not only protect our privacy and the constitution, they help the law enforcement and intelligence systems focus on suspects worth the investment of time and effort.

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Comment by William R. Cumming

June 17, 2011 @ 6:45 am

Great post Phil! And after a decade I can mount a cogent and I believe correct argument that little of the legal fall out from 9/11/01 is a known or given almost a decade later. SCOTUS analysis on these and related issues in short supply. But time will tell! Including whether trade offs on civil rights, civil liberties, and privacy are the careful line drawing necessary to retain democracy respecting rights of majority and the minority. The temptations of the NATION STATE to preserve itself through violence and other means continues to grow even as the financial terrorists and others destabilize the globe.

Pingback by Homeland Security Watch » New NCTC guidelines for non-terrorism information

March 23, 2012 @ 6:57 am

[…] much more attention than I will have time to give until the weekend.  But previous limitations (see here and here) have clearly been softened.  The following paragraph from page 4 seemed to leap from the […]

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