Homeland Security Watch

News and analysis of critical issues in homeland security

January 1, 2014

ACLU v Clapper: More complementary than conflicting?

Filed under: Intelligence and Info-Sharing,Legal Issues,Privacy and Security,Terrorist Threats & Attacks — by Philip J. Palin on January 1, 2014

Last Friday Federal District Judge William H. Pauley III released his decision in ACLU v. Clapper. Busy with post-Christmas travel and such I mostly heard the headlines.

Before reading the actual text — and overly influenced by those headlines — I intended to post today on the divergence of Judge Pauley from Judge Leon’s Klayman v Obama decision (see prior post).

But when I finally read the actual text of the decision, this non-lawyer finds significant complementarity in what Judges Leon and Pauley have decided.

Yes, Leon found bulk collection of meta-data to be illegal, while Pauley found the same practice legal.  But decisions (lawyerly or not) are often as icebergs where most of the weight is found below the surface.

In their analysis of what is being done by the US intelligence community and the potential implications for liberty, the two decisions seem to me to reach somewhat similar judgments. But Leon perceives innate abuse where, in the particular case before him, Pauley sees and hears mostly prospective rather than actual harm.

Again, you should read the original — which can be downloaded here — but to support my reading and entice you to read more, here is the opening of the Pauley decision, the bold highlights are my own:

The September 11th terrorist attacks revealed, in the starkest terms, just how dangerous and interconnected the world is. While Americans depended on technology for the conveniences of modernity, al-Qaeda plotted in a seventh-century milieu to use that technology against us. It was a bold jujitsu. And it succeeded because conventional intelligence gathering could not detect diffuse filaments connecting al-Qaeda.

Prior to the September 11th attacks, the National Security Agency (“NSA”) intercepted seven calls made by hijacker Khalid al-Mihdhar, who was living in San Diego, California, to an al-Qaeda safe house in Yemen. The NSA intercepted those calls using overseas signals intelligence capabilities that could not capture al-Mihdhar’s telephone number identifier.

Without that identifier, NSA analysts concluded mistakenly that al-Mihdhar was overseas and not in the United States. Telephony metadata would have furnished the missing infonnation and might have permitted the.NSA to notify the Federal Bureau of lnvestigation (“FBI”) of the fact that al-Mihdhar was calling the Yemeni safe house from inside the United States.

The Government learned from its mistake and adapted to confront a new enemy: a terror network capable of orchestrating attacks across the world. It launched a number of counter-measures, including a bulk telephony metadata collection program-a wide net that could find and isolate gossamer contacts among suspected terrorists in an ocean of seemingly disconnected data.

This blunt tool only works because it collects everything. Such a program, if unchecked, imperils the civil liberties of every citizen. Each time someone in the United States makes or receives a telephone call, the telecommunications provider makes a record of when, and to what telephone number the call was placed, and how long it lasted. The NSA collects that telephony metadata. If plumbed, such data can reveal a rich profile of every individual as well as a comprehensive record of people’s associations with one another.

The natural tension between protecting the nation and preserving civil liberty is squarely presented by the Government’s bulk telephony metadata collection program. Edward Snowden’s unauthorized disclosure of Foreign Intelligence Surveillance Court (“FISC”) orders has provoked a public debate and this litigation. While robust discussions are underway across the nation, in Congress, and at the White House, the question for this Court is whether the Government’s bulk telephony metadata program is lawful. This Court finds it is. But the question of whether that program should be conducted is for the other two coordinate branches of Government to decide.

Legality, efficacy, and wisdom are three quite different standards. They may — or may not — overlap.

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4 Comments »

Comment by William R. Cumming

January 1, 2014 @ 7:00 am

Excellent post and thanks Phil for the effort and Happy New Years!

Julian Assange gave a recent speech wherein he states WE ARE THE LAST FREE GENERATION! Maybe?

But as to the two court decisions the following may be helpful!

Some federal departments and agencies publish at each step of the judicial process an ACTION ON DECISION. What is an AOD? First, and some agencies like IRS make these AODs public, they inform the public as to agreement with or not the rationale of the decision, and separately the result or action taken by the court.

At one time in a galaxy far far away the Office of the Solicitor General of the US [the third lawyer in rank in DoJ] only got involved at the Appellate level after an appellate decision. Now seeking to structure the law even as it reaches the Appellate level, not just SCOTUS, the Office of the SG may choose to weigh in much earlier. Certainly these cases will bring the SG calling!

But it could be up to five years before the cases reach SCOTUS if at all and SCOTUS DECIDES AT LEAST RELATIVELY DEFINITIVELY! So stay tuned even as one of these decisions was stayed to allow review!

Comment by JCOMISKEY

January 1, 2014 @ 7:04 am

Dr. Collin Gray’s “Schools for Strategy: Teaching Strategy for 21st Century Conflict” argues that strategist should not focus on the strategic issues of the early 21st century, rather they should focus on their ability to think strategically and exercise strategic judgment.

See:http://www.strategicstudiesinstitute.army.mil/pubs/display.cfm?pubID=947

AQ’s 9/11 strategy focused on US strategic vulnerabilities including legal vulnerabilities.

2014 terrorist will again focus on US strategic and tactical vulnerabilities. I add tactical in the sense that 9/11-like attacks, though aspirational goals, are less likely. Smaller scale tactical attacks are more likely.

Justice Breyer reminded us that when the cannons of war roar, the constitution can adapt to military/security imperatives.
See: https://www.youtube.com/watch?v=G9XQyL78q10

Consider the realities of amazon.com metadata collection capabilities. Should we deny the government similar capabilities (in a security sense)?.

Legality, efficacy, and wisdom must overlap.

Afterthought: Please know that the intelligence community makes every effort to ensure the privacy of all intercepts and in most cases the anonymity of all intercepts. President Putin’s response to recent terrorist attacks and the Winter Olympic security concerns will likely shed some light on how wise US national security policy is.

Comment by Philip J. Palin

January 1, 2014 @ 9:02 am

John and Bill: Thanks for engaging the issue. A couple of personal angles:

Like Elbridge Gerry (see Tuesday post), I understand the Bill of Rights to protect me from my government. Full enjoyment of my liberty is threatened by several sources… family, neighbors, the bank that holds my mortgage, Google who knows me too well, many more… but government remains a uniquely powerful threat.

I am enough of the government that I know official intentions are mostly benign and behaviors typically banal. There are very seldom conspiracies (in the US) to oppress liberty (and when they persist usually end as tragic-comedy). But the banality, reach, and resources of the government (local, state, federal) have an enormous incremental effect — for good and ill — that can only be domesticated to liberty by ongoing care.

We all benefit from — uncomfortable — external feedback. Whatever other consequences, the Snowden leaks provide an opportunity to ensure the Intelligence Community is being self-critical, constitutionally-obsessed, and systematically governed. As I have written previously, so far — like Judge Pauley — I perceive the system of checks and balances within which the intelligence community operates have been working well. I understand why the Intelligence Community regrets the leaks. But now that the leaks (floods?) have happened, the one great benefit is for the governed to engage fully in considering what has been done and whether this behavior earns their consent.

Comment by JCOMISKEY

January 1, 2014 @ 9:56 am

I welcome external feedback and I ask those that categorically oppose government security measures to offer other than banal alternatives.

Government understands what has to be done. Protect the nation and its citizens.

I am informed that duly elected representatives of the people have the consent of the people. Redress of grievances is afforded. Retrospective judgment is appropriate but must consider all facts and circumstances notwithstanding their ugliness.

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