Homeland Security Watch

News and analysis of critical issues in homeland security

April 10, 2014

Mass aggregation and analysis of data: Debate, discussion, desiderata

Filed under: Intelligence and Info-Sharing,Legal Issues,Media,Privacy and Security — by Philip J. Palin on April 10, 2014

On Monday the Supreme Court declined a petition to expedite consideration of Klayman v. Obama.   The plantiffs had sought to by-pass appellate review given the government’s “outrageous intrusion of privacy” confirmed by a Federal District Court’s finding.

Klayman is one of several cases focused on the government’s aggregation and analysis of metadata, as exposed by the Edward Snowden document releases.  (Prior consideration by HLSWatch is available here.)

Since the December decision in Klayman at least one other Federal District Court has affirmed the constitutionality of actions that the judge in Klayman suggested would cause Madison to spin in his grave.  A variety of related cases — and contending judgments — are working their way through the courts.

It would have been unusual for the Supreme Court to abbreviate the process.  On this issue a fulsome set of legal engagements should serve to clarify key issues.

The political process around mass surveillance is also advancing.  On March 25 the President outlined several reforms to how metadata is collected and accessed.  The Republican Chair and ranking Democrat on the House Intelligence Committee have proposed their own reforms. There is also an effort underway to frame-up policy directions for the digital domain that go beyond a privacy-v-security binary.

The political context features several advocacy groups, such as the ACLU and EFF, pressing for privacy rights; several commercial organizations including AT&T, Verizon, Google and Facebook reluctant to be identified  as co-conspirators in invading consumer privacy; and a mainstream media keen to cover any source of conflict.

At least in the United States there is deeply divided public opinion.  For example one January poll found that 48 percent of respondents approved and 47 percent did not approve of tracking phone calls for potential terrorist links. Roughly twenty-percent of those who approved of the phone tracking also agreed the program is “too much intrusion into Americans’ private life”.   This tracks with what seems to be increasing concern that “anti-terrorism policies” threaten civil liberty, even as support for specific anti-terrorism activities remains strong.

TREND: What concerns you more about the government’s anti-terrorism policies, that they have gone too far in restricting the average person’s civil liberties, or that they have not gone far enough to adequately protect the country?
                     Jan 09  Oct 01  Aug 02  Jul 10  Jan 14
                     2014    2013    2013    2013    2010

Gone too far         51      43      46      45      25
Not gone far enough  33      40      39      40      63
DK/NA                16      17      15      15      12

Are these public attitudes contradictory… ambivalent… paradoxical?  Are these the ill-considered judgments of a poorly informed mass or a signal of profound crowd-wisdom?

Our intellectual culture is (mostly unconsciously) influenced by Hegel (abstract, negative, concrete or sometimes thesis, antithesis, synthesis and more).  The law is especially Hegelian in its dependence on the adversarial process.  Well beyond the law we are inclined to engage contending perspectives in search for ideal solutions.  For some this ideal emerges from historical (empirical) context.  For others there is an ideal that transcends history and experience.  In either case there can be a tendency to exclude or negate one option in order to achieve an other.

It is worth noting this is Hegelianism without Hegel who wrote, “Genuine tragedies in the world are not conflicts between right and wrong. They are conflicts between two rights.”  But much of our current discontent with so many aspects of politics, law, and governance may very well emerge from an intellectual conceit that seeks the best and disdains the rest.

If you characterize an issue as privacy versus security, I will probably lean toward privacy.  To acknowledge this predisposition can be helpful. It ought not be confused with thought. First principles inform but very seldom resolve our problem-solving.  Thinking requires an examination of context and contingencies and potential consequences.

Privacy and security are not necessarily in conflict, as for example in the language of the Fourth Amendment: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…”

When privacy and security are perceived to be in conflict, what is the source of conflict? What are the contingent Goods that an active instance of privacy or security seems to threaten?  For surely neither privacy nor security are ends-in-themselves.  Rather each are aspects of a more comprehensive Good or Goods.  Can we articulate our valuations to each other so that we might resolve the perceived conflict by directly addressing the goals which privacy and security are thought to advance (or retard)?  Are we disagreeing over first principles or tertiary techniques?

Issues of privacy and security are clearly being considered as matters of law.  In these legal considerations ancient ethical concerns are referenced and there will clearly be contemporary ethical implications whatever the legal outcomes.

The current political arguments strike me as mostly rhetorical rather than ethical.   Typically absolute rights or obvious needs are assumed much more than demonstrated. Strawmen are set forth by every side.

In both the legal and political domains the consideration tends to be adversarial — pseudo-Hegelian — in method.   I have no objection to this as one of several methods by which a shared understanding can emerge.  I am concerned if it is the predominant method.

Where do you participate in serious and sustained consideration of important ethical issues?   Especially civic issues such as the matter of privacy v. security?  Where and how have you seen non-adversarial methods generate practical solutions?

I hope your answers are more fruitful than my own.  If not, I wonder how much the paucity of such approaches suggest a social-civic anemia for which our current political confrontations are but a symptom?

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.

December 19, 2013

Klayman v Obama

Filed under: Intelligence and Info-Sharing,Legal Issues,Privacy and Security,Terrorist Threats & Attacks — by Philip J. Palin on December 19, 2013

Many of the issues we have previously discussed in terms of balancing liberty and security are taken up in Monday’s decision by a federal district judge to grant a Motion for Preliminary Injunction regarding bulk collection of meta-data by the National Security Agency.

Among most legally-trained commentators, there seems to be a consensus the district court’s injunction will be overturned by the US Court of Appeals, based largely on the Supreme Court’s previous decision in Smith v Maryland where no reasonable expectation of privacy was extended to the telephone numbers we choose to dial.

Judge Richard Leon probably also expects his decision to be overturned at the appellate level.  His opinion is written, it seems to this non-lawyer, more for the benefit of the Supreme Court than as a matter of conforming with the details of current law.  Indeed, the Judge stayed his own order “in view of the national security interests at stake in this case and the novelty of the constitutional issues involved.” (My italics)

As regular readers might imagine, I am sorely tempted to opine on what the judge wrote.  I spent (too) much of Tuesday reading and re-reading the sixty -eight page decision.  I agree with most of what I read and while the government’s argument may still prevail I am grateful Judge Leon has teed-up the issues so well.

But in this instance I will exercise more restraint than usual and not share with you my favorite bits.  If you have cause to read Homeland Security Watch you really owe it to yourself — your life, fortune, sacred honor and posterity — to read the full opinion and order. Please find it here:  Klayman v Obama

Judge Leon has written the clearest non-technical description I have read of what the NSA has actually been doing.  His statement of facts places these actions in their full legal context. Some important operational judgments are offered.  His footnotes are especially insightful and trenchant.  Whatever your angle on this issue, this is an original text worth your time and careful attention.  Get it, read it, and reflect.

–+–

Almost a month earlier than previously promised (gosh, I wonder why?), Wednesday afternoon the White House released the Report and Recommendations of The President’s Review Group on Intelligence and Communications Technologies.   Including appendices the full report is 308 pages long.  I have not yet mastered the text.  Eventually we should try to compare and contrast Judge Leon’s text with this one.  It is entitled, “Liberty and Security in a Changing World.”

October 24, 2013

Mr. Johnson Goes to Oxford

Filed under: Legal Issues,Terrorist Threats & Attacks — by Philip J. Palin on October 24, 2013


Video of Mr. Johnson’s address to the Oxford Union

Nearly eleven months ago Jeh Johnson, then coming to the close of his tenure as DOD General Counsel, addressed the Oxford Union on how the conflict with al-Qaeda and its affiliates will end.

Mr. Johnson has now been nominated to serve as the secretary of homeland security.

Following is most of that speech.  I do not include a long preface of administration priorities achieved nor any of the twenty-five footnotes.  Other lacunae are noted below.

–+–

The United States government is in an armed conflict against al Qaeda and associated forces, to which the laws of armed conflict apply. One week after 9/11, our Congress authorized our President to “to use all necessary and appropriate force” against those nations, organizations and individuals responsible for 9/11. President Obama, like President Bush before him, as Commander-in-Chief of our Armed Forces, has acted militarily based on that authorization. In 2006, our Supreme Court also endorsed the view that the United States is in an armed conflict with al Qaeda.[7] Therefore, all three branches of the United States government – including the two political branches elected by the people and the judicial branch appointed for life (and therefore not subject to the whims and political pressures of the voters) – have endorsed the view that our efforts against al Qaeda may properly be viewed as an armed conflict.

But, for the United States, this is a new kind of war. It is an unconventional war against an unconventional enemy. And, given its unconventional nature, President Obama – himself a lawyer and a good one – has insisted that our efforts in pursuit of this enemy stay firmly rooted in conventional legal principles. For, in our efforts to destroy and dismantle al Qaeda, we cannot dismantle our laws and our values, too.

The danger of al Qaeda is well known. It is a terrorist organization determined to commit acts of violence against innocent civilians. The danger of the conflict against al Qaeda is that it lacks conventional boundaries, against an enemy that does not observe the rules of armed conflict, does not wear a uniform, and can resemble a civilian.

But we refuse to allow this enemy, with its contemptible tactics, to define the way in which we wage war. Our efforts remain grounded in the rule of law. In this unconventional conflict, therefore, we apply conventional legal principles – conventional legal principles found in treaties and customary international law.

As in armed conflict, we have been clear in defining the enemy and defining our objective against that enemy.

We have made clear that we are not at war with an idea, a religion, or a tactic. We are at war with an organized, armed group — a group determined to kill innocent civilians.

We have publicly stated that our enemy consists of those persons who are part of the Taliban, al-Qaeda or associated forces, a declaration that has been embraced by two U.S. Presidents, accepted by our courts, and affirmed by our Congress.

We have publicly defined an “associated force” as having two characteristics: (1) an organized, armed group that has entered the fight alongside al Qaeda, and (2) is a co-belligerent with al Qaeda in hostilities against the United States or its coalition partners.

Our enemy does not include anyone solely in the category of activist, journalist, or propagandist.

Nor does our enemy in this armed conflict include a “lone wolf” who, inspired by al Qaeda’s ideology, self-radicalizes in the basement of his own home, without ever actually becoming part of al Qaeda. Such persons are dangerous, but are a matter for civilian law enforcement, not the military, because they are not part of the enemy force.

And, we have publicly stated that our goal in this conflict is to “disrupt, dismantle, and ensure a lasting defeat of al Qaeda and violent extremist affiliates.”

Some legal scholars and commentators in our country brand the detention by the military of members of al Qaeda as “indefinite detention without charges.” Some refer to targeted lethal force against known, identified individual members of al Qaeda as “extrajudicial killing.”

Viewed within the context of law enforcement or criminal justice, where no person is sentenced to death or prison without an indictment, an arraignment, and a trial before an impartial judge or jury, these characterizations might be understandable.

Viewed within the context of conventional armed conflict — as they should be — capture, detention and lethal force are traditional practices as old as armies. Capture and detention by the military are part and parcel of armed conflict. We employ weapons of war against al Qaeda, but in a manner consistent with the law of war. We employ lethal force, but in a manner consistent with the law of war principles of proportionality, necessity and distinction. We detain those who are part of al Qaeda, but in a manner consistent with Common Article 3 of the Geneva Conventions and all other applicable law.

But, now that efforts by the U.S. military against al Qaeda are in their 12th year, we must also ask ourselves: how will this conflict end? It is an unconventional conflict, against an unconventional enemy, and will not end in conventional terms.

Conventional conflicts in history tend to have had conventional endings…

(Here Mr. Johnson provides a quick summary of how a few prior wars have ended.)

We cannot and should not expect al Qaeda and its associated forces to all surrender, all lay down their weapons in an open field, or to sign a peace treaty with us. They are terrorist organizations. Nor can we capture or kill every last terrorist who claims an affiliation with al Qaeda.

I am aware of studies that suggest that many “terrorist” organizations eventually denounce terrorism and violence, and seek to address their grievances through some form of reconciliation or participation in a political process.[20]

Al Qaeda is not in that category.

Al Qaeda’s radical and absurd goals have included global domination through a violent Islamic caliphate, terrorizing the United States and other western nations from retreating from the world stage,[21] and the destruction of Israel. There is no compromise or political bargain that can be struck with those who pursue such aims.

In the current conflict with al Qaeda, I can offer no prediction about when this conflict will end, or whether we are, as Winston Churchill described it, near the “beginning of the end.”

I do believe that on the present course, there will come a tipping point – a tipping point at which so many of the leaders and operatives of al Qaeda and its affiliates have been killed or captured, and the group is no longer able to attempt or launch a strategic attack against the United States, such that al Qaeda as we know it, the organization that our Congress authorized the military to pursue in 2001, has been effectively destroyed.

At that point, we must be able to say to ourselves that our efforts should no longer be considered an “armed conflict” against al Qaeda and its associated forces; rather, a counterterrorism effort against individuals who are the scattered remnants of al Qaeda, or are parts of groups unaffiliated with al Qaeda, for which the law enforcement and intelligence resources of our government are principally responsible, in cooperation with the international community – with our military assets available in reserve to address continuing and imminent terrorist threats…

(Here Mr. Johnson considers legal issues in making the transition from war time to peace time.)

For now, we must continue our efforts to disrupt, dismantle and ensure a lasting defeat of al Qaeda. Though severely degraded, al Qaeda remains a threat to the citizens of the United States, the United Kingdom and other nations. We must disrupt al Qaeda’s terrorist attack planning before it gets anywhere near our homeland or our citizens. We must counter al Qaeda in the places where it seeks to establish safe haven, and prevent it from reconstituting in others. To do this we must utilize every national security element of our government, and work closely with our friends and allies like the United Kingdom and others.

Finally, it was a warfighting four-star general who reminded me, as I previewed these remarks for him, that none of this will ever be possible if we fail to understand and address what attracts a young man to an organization like al Qaeda in the first place. Al Qaeda claims to represent the interests of all Muslims. By word and deed, we must stand with the millions of people within the Muslim world who reject Al Qaeda as a marginalized, extreme and violent organization that does not represent the Muslim values of peace and brotherhood. For, if al Qaeda can recruit new terrorists to its cause faster than we can kill or capture them, we fight an endless, hopeless battle that only perpetuates a downward spiral of hate, recrimination, violence and fear.

“War” must be regarded as a finite, extraordinary and unnatural state of affairs. War permits one man – if he is a “privileged belligerent,” consistent with the laws of war — to kill another. War violates the natural order of things, in which children bury their parents; in war parents bury their children. In its 12th year, we must not accept the current conflict, and all that it entails, as the “new normal.” Peace must be regarded as the norm toward which the human race continually strives.

Right here at Oxford you have the excellent work of the Changing Character of War program: leading scholars committed to the study of war, who have observed that analyzing war in terms of a continuum of armed conflict — where military force is used at various points without a distinct break between war and peace — is counterproductive. Such an approach, they argue, results in an erosion of “any demarcation between war and peace,” the very effect of which is to create uncertainty about how to define war itself.

I did not go to Oxford. I am a graduate of a small, all-male historically black college in the southern part of the United States, Morehouse College. The guiding light for every Morehouse man is our most famous alumnus, Martin Luther King, who preached the inherent insanity of all wars. I am therefore a student and disciple of Dr. King – though I became an imperfect one the first time I gave legal approval for the use of military force. I accepted this conundrum when I took this job. But, I still carry with me the words from Dr. King: “Returning hate for hate multiples hate, adding deeper darkness to a night already devoid of stars … violence multiplies violence, and toughness multiplies toughness in a descending spiral of destruction … The chain reaction of evil—hate begetting hate, wars producing more wars—must be broken, or we shall be plunged into the dark abyss of annihilation.”

August 15, 2013

A welcome Presidential invitation (but please proceed even if there are no RSVPs)

Filed under: Intelligence and Info-Sharing,Legal Issues,Privacy and Security,Terrorist Threats & Attacks — by Philip J. Palin on August 15, 2013

AUGUST 16 UPDATE: Today the Washington Post reports on several hundred incidents of the NSA failing to conform with current regulations and legal boundaries for domestic surveillance.  This is where strong action by the executive — as outlined below — is most needed and can be most effective.

ORIGINAL POST:

Friday the President used the White House press room to announce and take a few questions on proposals to better balance civil liberties with digital surveillance.

Monday the Wall Street Journal editorialized that these proposals constitute a “retreat on his core powers as Commander in Chief.”  If I understand the editorial correctly, the WSJ perceives the President has sovereign authority under Article II, Section 2 to spy on us as much as he perceives the nation’s security might require.  Judicial oversight as currently provided by the Foreign Intelligence Surveillance Act is, in their view, unconstitutional.  Any due process is, it would seem, collaboration with our enemies.

On the left hand: Writing in The Atlantic, Conor Friedersdorf conducts an eviscerating exegesis of the rather brief — even bland — Presidential statement and concludes, “Obama is still lying, obfuscating, and misleading the American people. In doing so, he is preventing representative democracy from functioning as well as it might.”   He perceives a President corrupted by power and given over to condescension, setting the stage for our liberties to be lost forever.

There are of course judgments farther to the right and left of these still recognizably reasoned opinions.  But rather quickly “right” and “left” are lost to something closer to Freudian obsessions or the deepest mysteries of Jung’s collective unconscious.  Obama becomes a token or talisman or target of spiritual warfare and whatever he says is treated like a just-discovered manuscript in a Dan Brown novel.

My take is more prosaic.  The President — like all of us — is a creature of his prior experiences.  Among these are 1) a black man with insider knowledge of white America, 2) community organizer, and 3) lawyer.

If the first prior is having any influence here, it is expressed in the President’s perpetual pragmatism.  He intends to “get ahead” (what this means specifically depends on context).  To do so he needs to be realistic about the impediments or threats he will encounter.  He is predisposed to action that mitigates or obviates knowable problems. The surveillance programs (and the drone program and much more) inherited from his predecessor are adapted, expanded, and subjected to more detailed processes.

As a community organizer he is sensitive to matching his interventions to the values, aspirations, capabilities, and readiness of those he is trying to organize.  He can facilitate, provoke, propose… but it is up to the community to choose and sustain (or not).  Fundamental issues can be teed up, but it is the community’s role  – not his — to decide.  Notice how often, including in this instance, he unveils a process that tends to turn the initiative over to others.  He will advocate for certain principles or objectives, but if and how these are adopted is really up to others.

As a lawyer President Obama is inclined to procedural solutions: a task force, a privacy advocate, checklists, reviews, appeals…  Justice Frankfurter once wrote, “The safeguards of due process of law and the equal protection of the laws summarize the history of freedom of English-speaking peoples running back to Magna Carta and reflected in the constitutional development of our people. The history of American freedom is, in no small measure, the history of procedure.”  Whether or not the President knows the quote, he regularly demonstrates his concurrent view.

As a white man I have not needed to be quite so pro-active regarding threats and impediments.  My approach to management and leadership is similar to that of a community organizer. The successes tend, I am proud to say, to be substantive and long-lasting.  But failure is much, much more common.   I am personally impatient with procedure, but as a matter of human history I agree with Frankfurter (and the President) on its important role.

There are tangible threats to the United States which surveillance can help prevent and mitigate.  There is a profound threat to our liberty that emerges from government surveillance, especially in this digitally networked era.  Procedures are, probably, the most important part of any large bureaucracy’s effort to mitigate abuse of this unprecedented surveillance capability.

In a different time or place I might, despite all my failures, still advocate for community-based engagement with these treacherous issues.  Unfortunately, in this time and place if our civil liberties are to be reasonably preserved in face of these extraordinary technical means, strong and specific Presidential action will be needed.  Legislation would be better, but I don’t think it will happen.  Community consensus would be even better, but on this issue nothing even close to consensus is possible any time soon.

It is problematic. It is paradoxical.  But a community’s strength sometimes depends on individuals to sacrifice legitimate power in order advance what is best for the community.  On Monday the Wall Street Journal editorial board complained, “Mr. Obama invited Congress to tie him and future presidents down with new oversight and limits on a surveillance program…”  It is right to extend the invitation.  It will be necessary to do even more.

July 2, 2013

Where The Heck’s My Dec?

Filed under: Congress and HLS,Disaster,Legal Issues — by Christopher Bellavita on July 2, 2013

The post for Tuesday, July 2, 2013 was removed at the author’s request.

June 10, 2013

I am, after all, a republican

Filed under: Legal Issues,Media,Privacy and Security,Terrorist Threats & Attacks — by Philip J. Palin on June 10, 2013

Glenn Greenwald and his colleagues at The Guardian continue to demonstrate the power of  the old school “mainstream media” to set an agenda.   Now we are hearing from Greenwald’s NSA source who explains, “I’m willing to sacrifice all… because I can’t in good conscience allow the US government to destroy privacy, internet freedom and basic liberties for people around the world with this massive surveillance machine they’re secretly building.”

And so, perhaps inevitably, a complicated issue of ethics and politics of the highest order will be personalized and reduced to melodrama.  Which, at least, gives me permission to tell my story.

The only claim I have on anything truly scholarly is a sort of silver-age knowledge of the constitution of late-republican Rome.  This involves the period from about 133 BC to the rise of Augustus (27 BC) when constitutional structures imploded and produced the Empire.  As a young man I read entirely too much Cicero and have carried the burden into old age.  It is a story of freedom thoughtlessly and selfishly sacrificed.

As a result the claims of a “unitary executive” by various players in the George W. Bush administration caused me considerable concern.  A life-long Republican (capital R) I had supported John McCain in 2000 and expected to do so again in 2008.  But in conversation with his national security team (in which homeland security was entirely subsumed) I became increasingly alarmed.

It was not so much what they intended to do.  It was how and why they were going to do it.   The world had, it seemed to them, become too dangerous for due process.  It depended on a few good men (mostly good, mostly men) to do what was needed to defend the nation against attack.   Further, the nation they sought to defend was an abstraction of power and interests that did not, listening carefully, seem to have much at all to do with the Constitution.

So in early 2008 I decided to work for the once-upon-a-time lecturer on constitutional law at the University of Chicago, who — it seemed to me at the time — combined a kind of tough Niebuhrian realism with a disciplined self-restraint that reflected both the Founders and a good slice of Cicero.

Like our NSA contractor/whistleblower/hero/traitor — Mr. Snowden — I suffered the consequences of my choice.  My wife has made the point that if we had given the campaign what we lost because we joined the campaign I might have at least been made ambassador to some obscure corner of the world.  More to the point, a lifetime of personal relationships and professional networks was largely sacrificed.  Even my Dad was disappointed.

Since his election President Obama has been very tough on terrorism or, as he prefers, “violent extremism”.  Several times he has exceeded what I perceive to be his appropriate constitutional role.  Especially in these cases the President has tended to argue that the controversial decision is an exception-that-proves-the-rule.  It may be little more than a fig leaf, but I have appreciated the nod to constitutional decorum even as I recall Augustus was a master of the technique.

Potentially more substantive, the President’s May 23 National Defense University speech called for a more extensive legal framework  that would explicitly limit his own authority and that of future executives.  But other than the classified PPD and other gracious acts of executive self-restraint will anything really change? Right now the speech is as likely to become a footnote — another fig leaf — in future explanations of the eventual collapse of our Constitution under conditions of perpetual war.

In this context I have found the revelations of NSA spying on you and me to be cause for considerable celebration.

Based on what can be known today it would seem that:

  • The spying has been undertaken in accordance with the laws and Congressional oversight — such as it is — has been consistently facilitated.
  • The spying has been undertaken only after judicial review and authorization of narrowly written warrants.
  • The spying has been structured and organized specifically to limit when and how the information is used consistent with the judicial warrants and is extended only with further judicial review.
  • The spying has been exposed by the unofficial fourth branch for public consideration.
  • The spying has caused political enemies who sometimes seem to personally despise each other to share the same or proximate podiums to not only explain the due process exercised in this case but the mysteries of meta-data as well.

What a world!

I regret living in an age when so much of what I do is tracked — and even more is trackable — by a whole host of players.  This is an issue Cicero did not need to consider. It is a temptation to which neither Julius nor Augustus Caesar could succumb.   But this is our reality.  It is not a question of being tracked.  It is an issue of how and why… and what will be done with the results.

And in dealing with the wicked problem of terrorism and the temptation of digital tracking, what we are seeing unfold is the way our Constitution — formal and informal — is supposed to work.  We have elected agents to make judgments on our behalf.  Thanks to Madison and others we have structured our Constitution so that these agents compete with each other.  Through this competition of branches and parties and people a self-restraining, privacy- protecting, freedom-preserving process is cobbled together. Thanks to the First Amendment to our Constitution we have empowered informal agents to hold our elected agents accountable.

As a result, we are given the opportunity to consider difficult issues and to decide how our agents are behaving regarding these issues and whether or not we are prepared to allow them to continue to be our agents.  For me this is the nation.  This is what is worth defending.

March 9, 2013

The answer to that (specific) question is no

Filed under: Legal Issues — by Philip J. Palin on March 9, 2013

February 6, 2013

“The Department assumes the rights afforded by the Fifth Amendment’s Due Process Clause, as well as the Fourth Amendment, attach to a U.S. Citizen even while he is abroad.”

Filed under: Legal Issues,Radicalization,Terrorist Threats & Attacks — by Philip J. Palin on February 6, 2013

As you have probably already seen, Michael Isikoff at NBC News has obtained a Justice Department white paper that argues under what conditions it is lawful for the government to kill a US citizen.

You can download and read the entire document here:  020413_DOJ_White_Paper

The Department of Justice authors conclude, “that where certain conditions are met, a lethal operation against a U.S. citizen who is a senior operational leader of al-Qa’ida or its associated forces — a terrorist organization engaged in constant plotting against the United States — would not violate the Constitution.  The paper also includes an analysis concluding that such an operation would not violate certain criminal provisions prohibiting the killing of U.S. nationals outside the United States…”

The leaked document is only sixteen pages long.  It is thought to  summarize much more extensive legal briefs and studies.  It is worth your careful read before any of us begin our own analysis and commentary.

Here’s the original NBC News story:  Legal Case for Drone Strikes

Here’s a follow-on NBC News report on various reactions to the leaked report:  Legal Experts Fear Implications of Drone Memo

THURSDAY FEBRUARY 7 UPDATE:

According to the New York Times — an many other media — “The White House on Wednesday directed the Justice Department to release to the two Congressional Intelligence Committees classified documents discussing the legal justification for killing, by drone strikes and other means, American citizens abroad who are considered terrorists.”

“The White House announcement appears to refer to a long, detailed 2010 memo from the Justice Department’s Office of Legal Counsel justifying the killing of Anwar al-Awlaki, an American-born cleric who had joined Al Qaeda in Yemen. He was killed in a C.I.A. drone strike in September 2011. Members of Congress have long demanded access to the legal memorandum.”

“The decision to release the legal memo to the Intelligence Committees came under pressure, two days after a bipartisan group of 11 senators joined a growing chorus asking for more information about the legal justification for targeted killings, especially of Americans.”

FRIDAY, FEBRUARY 8 UPDATE:

Further attention — if not much more insight — is available from yesterday’s Senate confirmation hearing on the nomination of John Brennan.

Writing in TIME magazine Michael Crowley offers:

In one of the hearing’s most interesting exchanges, Republican Senator Susan Collins of Maine drew back further, asking Brennan whether some basic assumptions about the fight against al Qaeda should be challenged. Noting that the terror group continues to spread, Collins asked, “If the cancer of al Qaeda is metastasizing, do we need a new treatment?” Collins noted that even an experienced military official like former General Stanley McChrystal have begun wondering aloud whether America has become too reliant on drones, at the expense of breeding resentment and backlash within the Muslim world. (You can read about that and related issues in TIME’s recent drones cover story.)

“We have to be very mindful” of local reactions to drone strikes, Brennan answered. But he insisted that people in al Qaeda-infested areas have “welcomed” American strikes on terrorist leaders. It was another cautious and not terribly revealing answer. But Brennan’s response may have been less significant than the concern expressed by a senior Senator—a Republican no less—about America’s drone war. The Brennan hearing may have shed little light on Obama’s likely next CIA director. But it might have been a sign that, when it comes to our long counter-terror campaign, a long-acquiescent Congress is finally getting restless.

Mr. Brennan’s opening statement, video of the hearing and more is available from the Senate Select Committee on Intelligence website.

One brief excerpt from Mr. Brennan’s opening statement:

I have publicly acknowledged that our fight against al-Qa’ida and associated forces has sometimes involved the use of lethal force outside the “hot battlefield” of Afghanistan.  Accordingly, it is understandable there is great interest in the legal basis as well as the thresholds, criteria, processes, procedures, approvals, and reviews of these actions. I have strongly promoted such public discussion with the Congress and with the American people, as I believe that our system of government and our commitment to transparency demand nothing less.

Also available at the Committee website are Mr. Brennan’s answers to several pre-hearing questions.  On pages 24-30 there are several issues raised and responded to which relate to the government’s use of lethal force against US citizens suspected of threatening the United States.

In the February 21 edition of the New York Review of Books, David Cole sets-out thirteen questions for Mr. Brennan to answer.   Happily there are meaningful overlaps between the Cole questions and those posed by the Committee.

Major media is covering the give and take during the hearing, but a video of the entire hearing is also available at the Committee’s website.

Thoughtful people have critiqued Mr. Brennan’s answers to the Committee as demonstrating how to spend hours sounding responsive and say nothing.   To my ear the answers were careful, nuanced, sometimes Talmudic.   Mr. Brennan is especially keen to remind people that, “I am not a lawyer.”  But his answers can be lawyerly.  When the issues are as complex as those under consideration qualified responses are justified.

January 4, 2013

What is a nation of laws?

Filed under: Legal Issues,Terrorist Threats & Attacks — by Philip J. Palin on January 4, 2013

On Wednesday, January 2, Federal District Judge Colleen McMahon filed her decision in two Freedom of Information Act cases brought by the New York Times and American Civil Liberties Union.  The full decision is available from the Federal District Court website.

Below is a thousand word excerpt that I hope might motivate you to read — and perhaps comment here — on the full decision.

The issues which these cases and this decision highlight are fundamental to the American experiment in self-government.  These issues are not and have never been easy to resolve.  This is precisely why a vigorous and thoughtful dialogue on the issues is important.

In some contexts — marriage, parenting, worship and, I would argue, citizenship — it is often the honesty and quality of the dialogue (what is said and what is heard) that is much more helpful than agreement.  It is possible to share a sensibility even when we continue in specific disagreement.

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Broadly speaking, [the plantiffs] seek disclosure of the precise legal justification of the Administrations’s conclusion that it is lawful for employees or contractors of the United States Government to target for killing persons, including specifically United States citizens, who are suspected of ties to Al-Qaeda or other terrorist groups…

The FOIA requests here in issue implicate serious issues about the limits on the power of the Executive Branch under the Constitution and laws of the United States and if we are indeed a nation of laws, not of men.  The Administration has engaged in public discussion of the legality of targeted killing, even of citizens, but in cryptic and imprecise ways, generally without citing to any statute or court decision that justifies its conclusions.  More fulsome disclosure of the legal reasoning on which the Administration relies to justify the targeted killing of individuals, including United States citizens, far from any recognizable “hot” field of battle would allow for intelligent discussion and assessment of a tactic (like torture before it) remains hotly debated.  It might also help the public understand the scope of the ill-defined yet vast and seemingly ever-growing exercise in which we have been engaged for well over a decade, at great cost in lives, treasure, and (at least in the minds of some) personal liberty…

I find myself stuck in a paradoxical situation in which I cannot solve a problem because of contradictory constraints and rules — a veritable Catch-22.  I can find no way around the thicket of laws and precedents that effectively allow the Executive Branch of our Government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reasons for their conclusion a secret…

The United States has pursued members of Al-Qaeda and affiliated groups elsewhere in the world [outside Afghanistan], both in the adjacent country of Pakistan and far from any “hot” battlefield.  In recent years, it has targeted a number of such individuals for death and killed them, using both armed forces and unpiloted remotely controlled precision aircraft known as “drones.” The Obama Administration has publicly admitted that the Government is engaged in such operations:

So let me say it as simply as I can.  Yes, in full accordance with the law — and in order to prevent terrorist attacks on the United States and to save American lives — the United States Government conducts targeted strikes against specific al-Qa’ida terrorists, sometimes using remotely piloted aircraft, often referred to publicly as drones.

John O. Brennan, Ethics and Efficacy Speech (Apr. 30, 2012).

Al-Qaeda operative Anwar al-Awlaki was killed in late 2011.  speaking on September 30, 2011 the day of Al-Awlaki’s death, at the “Change of Office” Chairman of the Joint Chiefs of Staff Ceremony in Fort Myer, Virginia, President Obama described Al-Awlaki as follows:

Awlaki was the leader of external operations for al Qaeda in the Arabian Peninsula.  In that role, he took the lead in planning and directing efforts to murder innocent Americans.  He directed the failed attempt to blow up an airplane on Christmas Day in 2009.  He directed the failed attempt to blow up US cargo planes in 2010.  and he repeatedly called on individuals in the United States and around the globe to kill innocent men, women, and children to advance a murderous agenda.

At the time of his death, Al-Awlaki was not in or near the field of battle in Afghanistan, where active military operations were taking place.  He was located about 1500 miles from Afghanistan, in Yemen, a country with which the United States is not at war (indeed, which the United States counts as an ally).

Killed with Al-Awlaki was an individual named Samir Khan.  Al-Awlaki’s teenaged son, Abdulrahman Al-Awlaki, was killed in a separate strike in Yemen on October 14, 2011.

Al-Awlaki, his son, and Khan were all United States citizens…

The decision to target a United States citizen for death is made by the President on the recommendation of senior Government officials… According to the Attorney General of the United States and other senior Executive Branch officials, these decisions are made pursuant to a process that is constitutionally and statutorily compliant.  In particular, Government officials insist that a United States citizen can be targeted by the Executive Branch and still be accorded due process of law.

The Government’s vociferous insistence that its decisions to kill United States citizens are lawful, and most especially its references to due process, may seem odd in the context of war — although there is and long has been robust debate  about what to call the anti-Al-Qaeda operation, and whether anti-terrorist operations in countries other than Afghanistan and adjacent territory in Pakistan can fairly or legally be classified as a war… However, even if there were no such debate, it is not surprising that the Government feels somewhat defensive.  Some Americans question the power of the Executive to make a unilateral and unreviewable decision to kill an American citizen who is not actively engaged in armed combat operations against this country.  Their concern rests on the text of the Constitution and several federal statutes, and is of a piece with concerns harbored by the Framers of our unique form of Government…

The Framers took steps to address their fear in the document they drafted.  In particular, the Fifth Amendment to the Constitution provides that no person shall be “deprived of life… without due process of law.”  The words “due process of law” are not further defined in the the Constitution, or in the Bill of Rights.  However, “The first, central, and largely uncontroversial meaning of “due process of law,” the meaning established in the Magna Charta and applied vigorously by Coke against the first two Stuart Kings, was that the executive may not… restrain the liberty of a person within the realm without legal authority arising either from established common law or from statute.  In other words, executive decrees are not “law.”…

When a person is accused of committing a crime, and the Government has the power, upon conviction, to deprive him of life or liberty, the particular rights enumerated in the Fifth and Sixth Amendments (ranging from the right to indictment to the right to counsel) are recognized as setting the minimum guarantee of the Due Process Clause.

Read the full decision.

January 3, 2013

Due process: Collect, keep, and kill

No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land. (Clause 39, Magna Carta)

No person shall… be deprived of life, liberty, or property, without due process of law… (Fifth Amendment to the Constitution of the United States)

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Recent months have seen one-time expediencies dressed-up as new principles to frame the relationship between citizen and State.  Three examples:

On the Friday after Christmas the Senate reauthorized broad executive authority for  electronic surveillance and collection. The vote was 73-to-23 and extended for five years the Foreign Intelligence Surveillance Act. The House adopted the legislation earlier in the year.  On Sunday the President the signed the extension into law. Proposed amendments, including those offered by Senator Wyden,  that would have enhanced Congressional oversight of FISA were defeated.  FISA was originally intended to provide due process for the gathering of intelligence on non-citizens and so protect the privacy of citizens.  There has been increasing concern regarding how FISA methods now unintentionally — but perhaps quite widely — sweep up citizen communications as well.

According to a December 13, 2012 Wall Street Journal report, there may be good cause for concern.   In an exclusive investigative report, Julia Angwin found that new Department of Justice guidelines, “now allow the little-known National Counterterrorism Center to examine the government files of U.S. citizens for possible criminal behavior, even if there is no reason to suspect them. That is a departure from past practice, which barred the agency from storing information about ordinary Americans unless a person was a terror suspect or related to an investigation. Now, NCTC can copy entire government databases—flight records, casino-employee lists, the names of Americans hosting foreign-exchange students and many others. The agency has new authority to keep data about innocent U.S. citizens for up to five years, and to analyze it for suspicious patterns of behavior. Previously, both were prohibited.”

Meanwhile the White House is, according to several sources including Presidential adviser John Brennan, developing a legal and procedural framework for the deadly use of drones. Addressing the use of drones during an October 18 appearance on “The Daily Show,” President Obama said,  “One of the things we’ve got to do is put a legal architecture in place, and we need Congressional help in order to do that, to make sure that not only am I reined in but any president’s reined in terms of some of the decisions that we’re making.”  According to a May report in the New York Times, “Mr. Obama has placed himself at the helm of a top secret “nominations” process to designate terrorists for kill or capture, of which the capture part has become largely theoretical. He had vowed to align the fight against Al Qaeda with American values; the chart, introducing people whose deaths he might soon be asked to order, underscored just what a moral and legal conundrum this could be.”   Among the President’s decisions, presumably, was the targeted killing of Anwar al-Awlaki, a US citizen who was killed by drone-delivered Hellfire missiles on September 30, 2011 and his sixteen year-old son, also born in the US, who was killed in another drone attack two weeks later.  Both citizens were killed in Yemen.

The predominant motivation in each instance above — and others — is the protection of the American people and nation.  There is no imminent threat of Orwellian intention or intervention.

In each of these examples legislators and the executive are attempting to develop due process that is appropriate to their understanding of the present challenge.   (The judicial branch is poised to soon rejoin consideration of the issue.)

Nonetheless while it is, I suspect, the specific intention of no one, the space where individual liberty adjoins civil authority is being incrementally reshaped.  In the Anglo-American tradition there has long been in both theory and practice the presumptive primacy of individual initiative, what Blackstone termed “the absolute rights of man.”  The balance is shifting toward a presumed ability by the government to maintain order.

Perhaps this is the inevitable outcome of more and more diverse individuals living in dense proximity to each other.  Perhaps it is a prudent response to demonstrated risk.  Perhaps it reflects an emerging social consensus that liberty is less valued than previously.  Or we might be in the process of  redefining liberty.  These shifts might even be the accidental consequence of what Nassim Taleb has termed “naive interventionism”.  The preference, even obligation, to “do something” over doing nothing, even when the doing is non-productive or counter-productive.

Whatever the cause, the pattern can be perceived and seems to be persisting.

October 19, 2012

KSM and national security

Filed under: Legal Issues,Terrorist Threats & Attacks — by Philip J. Palin on October 19, 2012

The following is a statement, translated from Arabic, made by Khalid Sheikh Mohammed directed at judge (and US Army Colonel) James Pohl during pre-trial proceedings on Wednesday.  The defendant, often known as KSM, is accused of being the principal planner and controller of the 9/11 attacks.

KSM is  charged with committing  eight offenses: 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 or hazarding a vessel or aircraft; and terrorism.

Transcripts of the Military Commission’s proceedings related to Khalid Sheikh Mohammed are available at:  http://www.mc.mil/CASES/MilitaryCommissions.aspx

Yes. In the name of God, most graceful, the government at the end of the argument gave you an advice. They told you any decision you’re going to issue you have to keep in mind the national security and to remember that there were 3,000 people killed on September 11. And I would like to give you a similar advice.

Any decision you will take, you have to keep in mind that the government, that the government is using the definition of national security as it chooses. And this expression has a definition in the Military Commission’s Rules.

We have heard the expression of national security again yesterday and today about tens of times. And everyone use this expression as he or she chooses. But legislators and legal people who deal in the legal field, they have to differentiate between the politicians’ use of this word and the legal people’s use of this word.

When the government feels sad for the death or killing of 3,000 people who were killed on September 11, we also should feel sorry that the American government, who is represented by General Martins and others, (has) killed thousands of people—millions.

This definition is a resilient definition, lasting. Every dictator can put on this definition as they choose, as he chooses to step on every definition in this world, every person, and every law and every constitution.

With this definitions, many can evade the rule and also can go against it. Many can kill people under the name of national security and to torture people under the name of national security and to detain children under the name of national security, underage children.

I don’t want to be long, but I can say that the president can take someone and throw him in the sea under the name of national security. And so—well, he can also legislate the killings, assassinations under the name of national security, (of) American citizens.

My only advice to you, that you do not get affected by the crocodile tears. Because your blood is not made of gold and ours is made out of water. We are all human beings. Thank you.

The trial of KSM has been complicated by waterboarding and other “enhanced interrogation” of the defendant.   There have been several reports of KSM having confessed to his role in 9/11 and other conspiracies and attacks.

 

September 27, 2012

Remembering our mission

Filed under: International HLS,Legal Issues,Strategy — by Philip J. Palin on September 27, 2012

I am in New York for a few days.  I arrived Wednesday for private sector meetings on supply chain resilience, catastrophe preparedness, and related. The city is packed for the opening of the United Nations.

When I checked in the guy in front of me asked the desk clerk, “How many Presidents do you have staying here?”  ”Too many,” she replied.

My President’s speech on Tuesday received considerable media attention, but most of  the coverage I saw, heard, or read focused on either the Iranian nuclear issue or domestic political implications.  Following are a few consecutive paragraphs that have — at least for me — important homeland security implications.

Before these remarks the President held up Ambassador Chris Stevens as an example, condemned the attacks on US diplomatic facilities,  and called the video that catalyzed — or justified or created cover for — the violence “crude and disgusting.”  Then he offered an explanation of the American right of free speech blending principle with pragmatism:

I know there are some who ask why we don’t just ban such a video.  And the answer is enshrined in our laws:  Our Constitution protects the right to practice free speech.

Here in the United States, countless publications provoke offense.  Like me, the majority of Americans are Christian, and yet we do not ban blasphemy against our most sacred beliefs.  As President of our country and Commander-in-Chief of our military, I accept that people are going to call me awful things every day and I will always defend their right to do so.

Americans have fought and died around the globe to protect the right of all people to express their views, even views that we profoundly disagree with.  We do not do so because we support hateful speech, but because our founders understood that without such protections, the capacity of each individual to express their own views and practice their own faith may be threatened.  We do so because in a diverse society, efforts to restrict speech can quickly become a tool to silence critics and oppress minorities.

We do so because given the power of faith in our lives, and the passion that religious differences can inflame, the strongest weapon against hateful speech is not repression; it is more speech — the voices of tolerance that rally against bigotry and blasphemy, and lift up the values of understanding and mutual respect.

Now, I know that not all countries in this body share this particular understanding of the protection of free speech.  We recognize that.  But in 2012, at a time when anyone with a cell phone can spread offensive views around the world with the click of a button, the notion that we can control the flow of information is obsolete.  The question, then, is how do we respond?

It’s a question that is very much alive in the United States.   When more control of information is advocated, the justification usually involves some aspect of homeland security.  As Chris Bellavita recently reminded us, “the Preamble to the Constitution is especially relevant to homeland security.  It offers – in 29 words – a majestic vision of the homeland security mission.”   There can be trade-offs between security and liberty.   But the homeland that matters most is secured by preserving liberty.

August 10, 2012

Brennan defines “bad guys” (NYPD looks for bad guys)

Wednesday, John Brennan, the Assistant to the President for Homeland Security and Counterterrorism, spoke to the  Council on Foreign Relations.  His remarks focus on US operations in Yemen including the use of drones.  This is the latest in a series of extended statements by Mr. Brennan designed to explain and defend US policy regarding the lethal use of drone technology beyond Afghanistan.

Ritika Singh at LAWFARE has posted the first transcript I could find.

There is a Question and Answer session with Mr. Brennan that is considerably longer than his prepared remarks.  During this element of the program he engaged a range of issues, including Syria and cybersecurity… and bad guys.

While looking for the transcript, I stumbled across a very helpful consideration of the NYPD’s new “Domain Awareness System” at the Council on Foreign Relations website.  (If CFR can headline attention to NYPD technology projects,  I think HLSWatch can clearly address Yemen.)  Please see the CFR briefing by Matthew Waxman.

March 23, 2012

New NCTC guidelines for non-terrorism information

Thursday the Attorney-General signed out a 32 page document entitled: GUIDELINES FOR ACCESS, RETENTION, USE, AND DISSEMINATION BY THE NATIONAL COUNTERTERRORISM CENTER AND OTHER AGENCIES OF INFORMATION IN DATASETS CONTAINING NON-TERRORISM INFORMATION.

You can access the unclassified (thank goodness) document at the link embedded in the title.

The details deserve 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 page:

These Guidelines permit NCTC to access and acquire United States person information for the purpose of determining whether the information is reasonably believed to constitute terrorism information and thus may be permanently retained, used, and disseminated. Any United States person information acquired must be reviewed for such purpose in accordance with the procedures below. Information is ’1″easonably believed to constitute terrorism information” if, based on the knowledge and experience ofcounterterrorism analysts as well as the factual and practical considerations of everyday life on which reasonable and prudent persons act, there are facts giving rise to a reasonable, articulable suspicion that the information is terrorism information.”

For your reading pleasure.

March 12, 2012

Holder v. New York Times on Due Process

Filed under: Legal Issues,Radicalization,Terrorist Threats & Attacks — by Philip J. Palin on March 12, 2012

Last week HLSWatch reprinted Attorney General Eric Holder’s speech at Northwestern University’s School of Law.  In those remarks the Attorney General noted:

Some have argued that the President is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of al Qaeda or associated forces.   This is simply not accurate.   “Due process” and “judicial process” are not one and the same, particularly when it comes to national security.   The Constitution guarantees due process, not judicial process.

The lead editorial in yesterday’s (Sunday’s) New York Times maintains that judicial review is essential to the executive’s purposeful use of lethal force against a citizen.

Mr. Holder argued in his speech that judicial process and due process guaranteed by the Constitution “are not one and the same.” This is a straw man. The judiciary has the power to say what the Constitution means and make sure the elected branches apply it properly. The executive acting in secret as the police, prosecutor, jury, judge and executioner is the antithesis of due process.

The administration should seek a court’s approval before killing an American citizen, except in the sort of “hot pursuit” that justifies the police shooting of an ordinary suspect…

The complete editorial is available at: The Power to Kill.

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