Earlier today the US Court of Appeals for the Second Circuit released a decision that Section 215 of the USA Patriot Act cannot be used as the legal basis for bulk collection of domestic calling records. This would seem to put the entire program in legal jeopardy. A copy of the decision is available here.
May 7, 2015
November 26, 2014
Quin Lucie authored this post. Mr. Lucie is an attorney with the Federal Emergency Management Agency and received his masters degree in Homeland Security Studies from the Center for Homeland Defense and Security at the Naval Postgraduate School. The opinions of the author are his own and do not necessarily reflect those of FEMA, the Department of Homeland Security or the Federal Government.
A Quarter Century More?
Nearly 26 years after it was passed, it’s time to take another look at the Stafford Act.
November 23, 2014 was the 26th anniversary of Public Law 100-707, The Disaster Relief and Emergency Assistance Amendments of 1988. Probably doesn’t ring a bell does it? But if you’re reading this, you might know the name of the 1974 disaster relief statute it renamed, The Robert T. Stafford Act, or as most just call it, the Stafford Act.
The Stafford Act was the fifth major change to a series of Disaster Relief Acts beginning in 1950 and amended or replaced in 1966, 1969, 1970 and 1974. The Stafford Act itself has seen at least four significant amendments since 1988. However, none of these later changes was done holistically. They were all crafted in a near vacuum of each other.
In 1993 and 1994, partly in response to the abysmal response to Hurricane Andrew, Congress first amended the powers of the Civil Defense Act of 1950 and then completely removed them. Some of the preparedness authorities of the old act found their way into a new title to the Stafford Act. The Disaster Mitigation Act of 2000 added significant mitigation authorities. The Post-Katrina Emergency Management Reform Act of 2006 (PKEMRA), for the first time, explicitly authorized the activities of FEMA, though those changes appear in the Homeland Security Act, not the Stafford Act. In the Stafford Act, PKEMRA made subtle changes to its response authorities, such as allowing the President to provide assistance, after a declaration, without a specific request from a Governor. The Sandy Recovery Improvement Act of 2013 made significant reforms to the way public assistance programs are delivered to State, tribal and local governments and made tribal governments eligible to ask for disaster declarations on their own.
The result of these independent, and occasionally improvised changes has been predictable. There are now major parts of the nation’s most important disaster relief authorities that are either forgotten, misunderstood or no longer work as intended. The lack of national dialogue approaches three decades.
I’m not aware of a single person in FEMA, much less the Federal Government, outside of myself, who has taken the time to read the legislative history of the Civil Defense Act of 1950, much less understand the factors that led to its demise and reinstatement of part of it in the Stafford Act. Or know why it is the FEMA Administrator, not the President, who was given control over it. There are several parts that could be of significant use to national preparedness efforts, and at least one could provide a very significant source of authority for catastrophic relief efforts. However, these authorities remain outside of the mainstream of planning efforts and the knowledge of emergency managers.
“FEMA could develop an updated formula… to determine the capacity of jurisdictions to respond to those disasters.” So stated Mark E Gaffigan, Managing Director, Natural Resources and Environment Issues, U.S. Government Accountability Office at a hearing before the Senate Committee on Homeland Security and Governmental Affairs in February of this year. What Mr. Gaffigan failed to realize, even though he correctly labeled these formulas as recommendations, was the reasons they have not been updated in decades (Mr. Gaffigan said these fomulas have not been updated since 1986, I’m not sure that is correct – the particular regulation was last updated in January, 1990). Those reasons, which I spelled out in a post on this blog last year, were a direct result of Congress intentionally not wanting to reign in disaster declarations and to keep the criteria broad enough to allowed affected states and jurisdictions to lobby for a declaration.
No longer work as intended.
At that same February hearing, Collin O’Mara, Secretary of the Delaware Department of Natural Resources, spoke at length about how his state was not rewarded for significant pre-storm mitigation efforts it took, while New Jersey was rewarded with billions of dollars of assistance for failing to make similar efforts before Hurricane Sandy. It was clear from the testimony at this hearing that the Stafford Act, at least in parts, is no longer operating as intended.
In some cases, years of experience extracting Federal dollars under the law may have led to the exploitation of inefficiencies that can promote less than optimal mitigation strategies while discouraging more useful resilience policies. It probably now makes more sense for some state and local governments to avoid taking mitigation measures for certain risks, as they will be penalized or at least lack compensation for those measures, and instead wait for a future disaster and then use federal funding at no more than 25 cents on the dollar. In a future Stafford Act, a way needs to be found to reward the efforts of Delaware and Secretary O’Mara while incentivizing the next New Jersey to act before disaster.
These changes can be seen in real time in the States of Illinois and Pennsylvania. Illinois, who experienced several recent events where they did not receive a Federal disaster declaration, has seen legislation introduced in both its own legislature to provide state disaster assistance, and in the U.S. Senate by its two Senators to amend FEMA’s disaster declaration criteria. The proposed state law, last referred to a rules committee in April, is consistent with years of national disaster relief practice, namely that disasters should be handled locally, and then by the States before seeking Federal assistance. On its face, funds available under this law would be available immediately to local governmental bodies without waiting on the Federal government. If this reflects the consensus of the current Congress, it is this type of legislation that would presumably be encouraged and incentivized in a new Stafford Act. On the other hand, the legislation introduced by the two senators is a bit puzzling as it appears to treat FEMA’s regulations for disaster declarations as binding, when in fact they are only recommendations.
In Pennsylvania, there is a similar debate going on. Unlike in Illinois, Pennsylvania would make funds contingent on the fact areas eligible for assistance are not covered by a “Presidential disaster declaration.” This is different than the approach potentially taken by Illinois and could be seen as making Federal funding the primary source of disaster relief, rather than the State (Considering it was Pennsylvania’s own Tom Ridge who was the primary driver of the Stafford Act, it would be interesting for his perspective). Should this statute pass, the State would presumably then make grant assistance under this law unavailable to those in federally declared disaster areas. (After this post was written, a version of this statute was signed into law the last week of October).
During the debate over the first disaster relief act in 1950, members of Congress went so far as to ensure its more cynical legislators that under the act there would be “no new agencies or bureaus” authorized under this new law. In fairness it only took around 24 years before a bureau within HUD was solely dedicated to disaster relief and 29 years before the creation of FEMA.
There are two main questions Congress must ask of itself, constituents, and State, tribal and local governments. First, does the Stafford Act currently reflect consensus national priorities for the mitigation, response, and recovery from disasters and the funding of disaster relief? Second, does the Stafford Act, taken as a whole, incentivize the most (politically feasible) efficient strategies for mitigating for, responding to and recovering from disasters? If not, what are the more (most) efficient strategies and can they be adequately prescribed under the current framework of the Stafford Act, or should the Stafford Act be completely restructured?
While not a primary consideration, Congress should also look closely at the relationship between the Stafford Act and the Homeland Security Act. For instance, the primary agency to carry out the Stafford Act, FEMA, has its primary authorities found in the Homeland Security Act. The danger is that such a discussion might quickly bog down over how changes to these two laws might change committee jurisdictions. It might also fuel the underlying friction between “emergency management” and “homeland security” something that is probably continuation of the debate between what is “civil defense” and “all hazards” from decades before.
After six generations of being taken apart, amended and replaced, the Stafford Act, when seen up close, looks more like something found in the laboratory of Dr. Frankenstein, cobbled together from years of compromise and improvised in the wake of major disasters. Maybe it’s time to take another peek under the hood and see everything that has been connected to the engine. It’s only been 26 years.
November 22, 2014
In an unusual move, the administration has released the analysis of presidential authority undertaken by the Office of Legal Counsel in regard to the role and limits of the President to set priorities in the enforcement of immigration laws. Worth a careful read by all of us… on issues well-beyond immigration.
I will not have time to offer much more any time soon. Our friends at Lawfare have begun a conversation that should be illuminating. First up, Paul Rosenzweig on Executive Discretion and Immigration Law.
November 6, 2014
Tuesday oral arguments were heard by the Federal Appeals Court for the DC circuit in a key case related to NSA mass surveillance.
Last December, finding for the plaintiffs in Klayman v Obama, Federal District Judge Richard Leon wrote,
I cannot imagine a more “indiscriminate” and “arbitrary invasion” than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval. Surely such a program infringes on that “degree of privacy” that the Founders enshrined in the Fourth Amendment. Indeed, I have little doubt that the author of our Constitution, James Madison, who cautioned us to be beware “the abridgement of freedom of the people by gradual and silent encroachments by those in power,” would be aghast. (Prior attention by HLSWatch)
Judge Leon stayed his injunction of further surveillance of citizen phone records pending appellate review, given the national security implications and, what the Judge called, “novel” privacy implications of the case.
Josh Gerstein, writing in Politico of Tuesday’s proceedings, perceives:
During oral arguments Tuesday, three judges of the U.S. Court of Appeals for the D.C. Circuit seemed skeptical in various ways about the lawsuits that led to U.S. District Court Judge Richard Leon’s ruling last December that the NSA’s surveillance was likely unconstitutional.
Critics of the National Security Agency’s most embattled program harshly condemned the spying in a top appeals court on Tuesday. Judges, however, seemed largely skeptical of their claims that the spy agency’s bulk collection of Americans’ phone records was unconstitutional. Instead, they seemed to express a desire to reverse a lower court ruling nearly one year ago that called the NSA program “almost Orwellian.”
An audio recording of Tuesday’s Oral Arguments is available here. I have not yet seen a transcript. Writing at the always informative Lawfare blog, Wells Bennett provides his own summary of the arguments.
Mr. Bennett is less inclined than the reporters quoted above to hear a predisposition in the three judge panel’s line of inquiry. Bennett notes, “the day’s questioning was even-handed and vigorous, and exposed weaknesses in arguments advanced by both the government and plaintiffs alike…”
Before the end of the year appellate decisions are expected in three cases emerging from the Snowden revelations: Klayman v Obama, ACLU v Clapper, and Smith v Obama. If all meet with similar appellate findings, then no Supreme Court review is likely. If they disagree — and depending on the nature of the disagreement — the Supreme Court is more likely to take action to resolve.
Late last year, just before the Klayman decision, Edward Snowden commented to the Washington Post, “For me, in terms of personal satisfaction, the mission’s already accomplished,” he said. “I already won. As soon as the journalists were able to work, everything that I had been trying to do was validated. “
A buddy in the intelligence community insists, “Snowden has made all of us less secure.” A long-time lawyer complains of domestic surveillance, “It’s like an ulcer. Maybe it originated with external stress, but now it’s eating us from the inside.”
What’s the right balance? The courts are being asked to decide.
July 17, 2014
Four years ago (as of yesterday), David Barron, then Acting Assistant Attorney General and chief of the Office of Legal Counsel finalized his memorandum to the Attorney General RE: Applicability of Federal Criminal Laws and the Constitution to Contemplated Lethal Operations against Shaykh Anwar al-Aulaqi.
After being kept secret, the document was released last month. Some redacting does not undermine the integrity of the analysis. If you regularly read this blog, you ought take the time to read the memorandum. The link above will give you a pdf.
The US Court of Appeals for the Second Circuit made the document public in June as part of a court case. The Department of Justice did not contest the memo’s release as part of an effort to ease confirmation of Mr. Barron’s appointment to the First Circuit Court of Appeals. HLSWatch previously linked to the document but this is our first comment.
Mr. Barron — now Judge Barron — asks, is it an unlawful killing for a U.S. public authority to take premeditated lethal action against this specific U.S. national (Anwar al-Aulaqi) outside the territory of the United States when not in the heat of immediate combat?
No, the memorandum counsels, it would not be an unlawful killing. In the particular case of Anwar al-Aulaqi in mid-2010, given the preponderance of evidence, lethal action would be a reasonable act of self-defense undertaken in accordance with the law of war, not contrary to federal statutes, and consistent with the constitutional authority of the President in this case amplified by specific Congressional action.
The US-born self-proclaimed prophet of violent action against the United States was killed in a drone attack on September 30, 2011.
Does the question as posed above appropriately frame the legal context of the President’s decision to kill Anwar al-Aulaqi?
It is not inappropriate. But it is not necessarily dispositive.
Another question: Is secret deliberation by the Executive sufficient to fulfill the due process rights of citizens under the Constitution?
I perceive that secret processes undertaken only by the Executive, no matter how rigorous, do not meet an acceptable constitutional threshold for due process. Reading this once-secret memorandum reinforces my predisposition. While I can gin-up arguments against some specific findings of the memorandum, the legal and constitutional analysis is balanced and largely persuasive. If these findings had been made public in 2010 I would have almost certainly supported the findings and subsequent killing if part of a broader process of legal engagement.
It is the Executive exercising unilateral lethal power in secret that gives me profound pause. What can be undertaken in secret tempts authority to arbitrary and arrogant acts. The more elaborate and clinical the secret procedure the more it ends up smelling of attainder: guilt established by procedural writ rather than substantive findings.
In the case of al-Alaqi, I see no good cause for secrecy. His criminal behavior was notorious as early as 2006. He was known and known to be known. There were many good reasons to publicly proclaim this citizen as “outlaw”.
I can, however, imagine other cases where there is cause for authorities to not signal they are aware and watching. When there is a compelling case for secrecy in taking premeditated, carefully planned lethal operations against a citizen, it is then even more important the decision not be left to the Executive alone. The soon-to-be 800 years since the Magna Carta offer diverse methods for discrete due process. For several examples and thoughtful consideration, please see Due Process in the American Identity by Cassandra Burke Robertson.
Some readers — not unreasonably — will conclude from the 580 prior words that I am a co-conspirator in what Philip Bobbitt has called the “due process explosion” of the last generation. What do you want, I can hear you ask, a JAG officer assigned to every platoon? DHS General Counsel staff in jackboots and camouflage?
A joke that lawyers tell lawyers: What is the only place where due process is consistently and completely achieved? The answer: Hell. Ironic humor benefits from personal experience.
In his ultimately influential dissent in Poe v. Ullman, Justice Harlan argued:
Due process has not been reduced to any formula; its content cannot be determined by reference to any code. The best that can be said is that through the course of this Court’s decisions it has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society. If the supplying of content to this Constitutional concept has of necessity been a rational process, it certainly has not been one where judges have felt free to roam where unguided speculation might take them. The balance of which I speak is the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing.
In what many of us perceive will be a long-struggle with violent and shadowy adversaries, abetted by prolific opportunities for mayhem emerging of modern technologies, and often involving or implicating our neighbors, families, and ourselves, there is a need to renew the tradition or at least be mindful of what we are choosing to break with.
To its credit and as it ought, the Executive has been diligent in this task. The Judiciary is being responsive when called upon. It is the Legislature that seems mostly absent in renewing due process for our contemporary challenges.
You probably saw the public opinion polls showing attitudes toward Congress at historic lows. By design the Legislative branch is most reflective of the whole people. To make progress on due process — and other issues — it might be worth looking in the mirror and to your left and right. Might even be worth talking to yourself… but especially talking to your left and right.
June 23, 2014
In response to a FOIA-related court order a key Justice Department legal opinion has been released. The July 2010 memo was the basis for the government’s extrajudicial killing of an American citizen, Anwar al-Awlaki, in 2011. The Washington Post provides a PDF of the memo here.
April 23, 2014
A three-judge Court of Appeals for the second circuit has ordered the US government to release a redacted version of documents, “relating to targeted killings of United States citizens carried out by drone aircraft.”
The decision is narrowly framed as a matter of FOIA procedures and does not address the legality of the actual killing of United States citizens.
From the finding and order:
In resisting disclosure of the OLC-DOD Memorandum, the Government contends that making public the legal reasoning in the document will inhibit agencies throughout the Government from seeking OLC’s legal advice. The argument proves too much. If this contention were upheld, waiver of privileges protecting legal advice could never occur… Agencies seeking OLC legal advice are surely sophisticated enough to know that in these circumstances attorney/client and deliberative process privileges can be waived and the advice publicly disclosed. We need not fear that OLC will lack for clients.
Reading the decision, it is clear the 2013 leak and eventual release of a redacted Department of Justice White Paper (Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who Is a Senior Operational Leader of Al-Qa’ida or An Associated Force) seriously complicated the government’s attempt to resist these FOIA requests.
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
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
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
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. 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.
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, 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
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.
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
The post for Tuesday, July 2, 2013 was removed at the author’s request.
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
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.”
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.
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.