Homeland Security Watch

House Homeland Security Committee Chairman, Bennie Thompson, and Management, Investigations, and Oversight Subcommittee Chairman Christopher Carney are questioning DHS’s lack of communication with the presidential campaigns as was expected to be one of several efforts to smooth the presidential transition process for the Department. CQ reported this morning that a letter sent Friday from Thompson and Carney to Chertoff asked “why the department was confused” about whether DHS should contact the candidates. One reason may be some conflicting advice from the policy community and from the White House.

What started this debate was a hearing last week at which Undersecretary of Homeland Security for Management Elaine Duke told the Senate Homeland Security Subcommittee on Oversight of Government Management, that while the routine transition briefing books are being compiled for the presidential nominees, neither campaign has been contacted. She also noted that nor has either campaign reached out to them.

The implied concern is that the campaigns want to avoid being perceived as presumptuous by engaging executive agencies on the subject of transition planning. So why won’t DHS just reach out to them? The National Academy of Public Administration urged this, the DHS’s own Administration transition planning recommends it, and just about any pundit would suggest it goes without saying.

The problem may rest in a White House memorandum sent to all executive agencies – including DHS – on April 22 that requires they limit any contact with the presidential campaigns. The memorandum is from the President’s Counsel, Fred Fielding. DHS General Counsel, Gus Coldebella, distributed the memo to all DHS personnel two days later. The memo from Fielding explains in essence that no contact with the presidential campaigns may take place without White House approval from one of the following individuals:
• Chief of Staff to the President,
• Deputy Chief of Staff to the President for Policy,
• Deputy Chief of Staff to the President for Operations,
• Counselor to the President, or
• Assistant to the President for Strategic Initiatives and External Affairs

No wonder the Department of Homeland Security is reluctant to reach out. The campaigns won’t initiate contact for political reasons mentioned above. DHS is told not to share any information with the presidential campaigns that isn’t publicly available without going to the White House first.

This level of control is perhaps to be expected, but DHS is under unique demands to make sure that the incoming President’s team is ready to execute a seamless hand-off during a heightened level of risk to the homeland. It seems odd that the White House wouldn’t make a deliberate exception to these constraints in the case of DHS.

On September 14, 2001, President Bush issued Executive Order 13223, declaring a national emergency in response to the 9/11 terrorist attacks. It is a one-year declaration made under the National Emergencies Act (50 U.S.C. 1622(d)).

That emergency declaration comes with powers and authorities the President specifies to respond to the cause of the emergency, al-Qaeda’ terrorist threat in this case. The declaration was actually reinstated every year since. Last week, President Bush renewed the national emergency for yet another year. CRS did a study for the Congress outlining the powers that Bush invoked. These include:

• 10 U.S.C. 123. Authorizes the President, in time or war or national emergency declared by Congress or the President, to suspend the operation of any provision of law relating to the promotion, involuntary retirement, or separation of commissioned officers of the Army, Navy, Air Force, Marine Corps, or Coast Guard Reserve.

• 10 U.S.C. 123a. Authorizes the President, at the end of any fiscal year when there is in effect a war or national emergency, to defer the effectiveness of any end-strength limitation with respect to that fiscal year prescribed by law for any military or civilian component of the armed forces or of the Department of Defense.

• 10 U.S.C. 527. Authorizes the President to suspend the operation of three specified sections of Title 10, United States Code, concerning the authorized strength of commissioned officers on active duty in senior grades, the distribution of commissioned officers on active duty in general officer or flag officer grades, and the authorized strength of commissioned officers on active duty in general officer or flag officer grades.

• 10 U.S.C. 2201(c). Authorizes the President to make a determination that it is necessary to increase the number of members of the armed services on active duty beyond the number for which funds have been appropriated for the Department of Defense.

• 10 U.S.C. 12006. Authorizes the President to suspend the operation of three specified sections of Title 10, United States Code, concerning the authorized strengths of armed forces reserve commissioned officers in an active status, reserve general and flag officers in an active status, and filling senior Army and Air Force Reserve commissioned officer vacancies.

• 10 U.S.C. 12302. Authorizes the President to call members of the Ready Reserve (retired military persons) to active duty.

• 14 U.S.C. 331. Authorizes the Secretary of Transportation to order any regular officer of the Coast Guard on the retired list to active duty.

• 14 U.S.C. 359. Authorizes the Commandant of the Coast Guard to order any enlisted member of the Coast Guard on the retired list to active duty.

• 14 U.S.C. 367. Authorizes the Secretary of Transportation to detain enlisted members of the Coast Guard beyond their terms of enlistment.

• 10 U.S.C. 603 Authorizes the Secretary of Defense to appoint qualified persons to any officer grade in the armed forces.

President Clinton declared national emergencies to address threats posed by terrorists who threaten to disrupt the Middle East peace process by assisting in, sponsoring, or providing support to terrorist acts. President Clinton also invoked – as has Bush – the International Emergency Economic Powers Act (IEEPA). The IEEPA authorizes the President to regulate or prohibit any foreign bank transfers involving any foreign country or one of its citizens.

Letters from the Department of Homeland Security will start being mailed out the day after Labor Day (nice touch) to warn employers of the ~ 8 million workers in the U.S. that they must fire any employee without a valid Social Security number or risk criminal charges and fines. 

DHS Secretary Chertoff and Commerce Secretary Gutierrez announced on August 16 a series of border security and immigration measures under the titles e-Verify and Social Security No-Match rule.  The measures are intended to improve worksite enforcement and enhance current guest worker programs, among other things.  The Administration has described these efforts as the next best alternative to legislation that would have reformed several immigration polices had any legislation passed. 

The e-Verify program enables employers to check the work status of their employees online. The-Verify system compares information taken from the I-9 work eligibility verification form and matches it against the Social Security Administration’s database and the DHS immigration databases. The Social Security No-Match rule instructs an employer how to respond to a no-match letter from the Social Security Administration regarding an employee whose name and SSN do not match government records.  A mismatch can imply wrongdoing on the part of either the employee or the employer.  The new rule is intended to reduce fraudulent use of Social Security numbers for the purposes of gaining or providing jobs to illegal immigrants. 

An Administration Fact Sheet on this development is available here. 

The business community gave very tepid support to the Administration’s comprehensive immigration reform efforts when they were not flat out opposing it.  The enforcement of “E-Verify” is among the more invasive measures in the announcement.  This is the most recent incarnation of the Basic Pilot and the Employment Eligibility Verification System (EEVS).  E-Verify affects employers significantly by placing the burden on them to know whether they are in violation of the law and to take measures that either confirm an employee’s legal status (via the SSN) or unemploy those who are not legal or unable to prove their status.   

The E-Verify system will be a portal through which employers may submit an employee’s SSN and other identifiers (name, etc) to match against the Social Security Administration’s records.  If the SSA returns a “No-Match” letter, employers are required to cease employment within 90 days or face fines 25% higher than previously.  The E-Verify system is said to be challenged by an error rate ranging from 4%-11%.  The Administration’s plan calls for E-Verify to begin with all 200,000 federal contractors before expanding to states.  Even with this initial tier, the error rate risks significant false positives leading to inefficiencies for employers, unnecessary hardship for workers wrongly identified as unemployable, and the risk of legal challenges.  The immigration reform bill included a redress or repeal process, but it is unclear how E-Verify is prepared in this regard. 

The following table was created by Maggio Kattar, a law firm usually hired by the private sector to help them navigate immigration restrictions.  The table illustrates the no-match procedures and prescribed timeframes:

According to this framework, affected employees may continue to be employed. However, once an employer discovers that an employee is unemployable under the no-match procedure, the employer must terminate employment or face fines. 

DHS Chief Privacy Officer Hugo Teufel III last Friday announced that the Department has released four Privacy Act records involving DHS’s Automated Targeting System (ATS). These records have been posted to the department’s public Web site and were scheduled to appear Monday in the Federal Register.  The four records are an updated System of Records Notice (SORN), the Discussion of Public Comments Received on the SORN, a Notice of Proposed Rulemaking for Privacy Act Exemptions, and a Privacy Impact Assessment (PIA).  

After receiving hundreds of comments regarding the initial SORN published in November 2006, the department revised it in the following way:

•        ATS-P will retain the information for a far shorter period of time. The retention period is now 15 years (7 years active and 8 years dormant), a significant decrease from the proposed 40-year period.

•        Under ATS-P, the purposes for which Passenger Name Record data (PNR) may be used have been narrowed.

•        The SORN implements the department’s mixed system policy, which administratively extends the protections of the Privacy Act of 1974 to non-U.S. persons by providing access and redress to their PNR data.  

According to Teufel, DHS does not collect information on race, ethnicity, religion, or orientation, or make decisions based on such information, and to the extent such information may be provided by a carrier, the department filters that information.  More information about this announcement is available.

Looks like the U.S. and EU overcame the most recent tussle concerning how the two allies will share private or personal information in pursuit of terrorists (and other criminals, or course).  The press release from this afternoon is available here.  Following are the main points:

• The Department of Homeland Security will collect 19 types of PNR data.
• The data will be maintained for seven years in an active file, and eight years thereafter in a dormant file with limited access.
• How DHS collects PNR data from airline reservation systems changes, too. Air carriers will now transmit PNR data directly to DHS.
• European air carriers get legal assurance that they will not be in violation of EU privacy law.

New on the Federal Register today:

Semiannual Regulatory Agenda, Department of Homeland Security

Pages 71-84 of this accompanying document summarize DHS’s regulatory agenda and provide information on several key items (e.g. Real ID Act regulations) that are not discussed in the former document.

The major pending regulatory activities at DHS listed in two documents include:

● DHS NPRM on Public Transportation Security Grants: December 2006
● TSA Final Rule on TWIC: December 2006
● TSA Final Rule on Protection of Sensitive Security Information: December 2006
● TSA NPRM for Rail Transportation Security: December 2006
● TSA NPRM for the Secure Flight Program: January 2007
● USCIS NPRM on Religious Worker Visas: January 2007
● CBP Final Rule on Advanced Passenger Manifests: February 2007
● DHS NPRM for the use of Sensitive Homeland Security Information: February 2007
● USCG NPRM on the Long Range Tracking and Identification of Vessels: February 2007
● USCG NPRM for Vessel Notices of Arrival and Departure, and the Automatic Identification System: February 2007
● DHS NPRM on Driver’s License and ID Federal Standards (i.e. REAL ID Act): March 2007
● DHS NPRM on Safety Act-related changes to Homeland Security Acquisition Rules: March 2007
● CBP NPRM for Container Seals: April 2007
● DHS Interim Final Rule on Chemical Security Standards: April 2007

Update 12/9: Post modified to reflect information from second relevant document linked above.

RAND released a report on Monday entitled “Maritime Terrorism: Risk and Liability” which provides a comprehensive qualitative risk assessment of terror threats in the maritime domain (including container shipping, cruise lines, and passenger ferries) and discusses issues related to civil liability in maritime terrorism. The press release for the report highlights some of its key conclusions:

Cruise ships and ferry boats need more protection against terrorist attacks that could kill and injure many passengers and cause serious financial losses, according to a new RAND Corporation report.

“Attacks on cruise ships and ferry boats would meet the interrelated requirements of visibility, destruction and disruption that drive transnational terrorism in the contemporary era,” said Peter Chalk, one of the report’s co-authors. “Recognizing this is essential to any comprehensive regime of maritime security.”

The report concludes it is not adequate to base maritime counterterrorism efforts only on increasing port security and the security of cargo container ships, rail cars and trucks that transport goods into and out of United States ports.

“Focusing solely on securing the container supply chain without defending other parts of the maritime environment is like bolting down the front door of a house and leaving the back door wide open,” said Henry Willis, a RAND researcher and a co-author of the report.

The study by RAND, a nonprofit research organization, also says a maritime terrorist attack is likely to create complicated liability issues that will slow efforts to compensate victims of an attack.

“We need to examine closely the challenges that a maritime attack would create for our civil justice system,” said Michael Greenberg, another of the report’s authors. “Tort liability is supposed to compensate victims while providing appropriate security incentives for firms. But ambiguous liability standards in the maritime terrorism context raise the prospect that the civil justice system may neither be effective as a compensation mechanism, nor in generating clear incentives for the private sector.”

Overall, it’s a useful and relevant study, in particular the threat assessment in Chapter Two. You can download the full report at this link.

DHS has decided not to appeal to the Supreme Court regarding its ongoing legal dispute with federal government unions over collective bargaining rights at DHS, according to FCW:

Larry Orluskie, a DHS spokesman, said the decision came from the Justice Department’s Office of the Solicitor General late Sept. 25. The decision allows the agency to move forward to “pursue labor relations flexibilities rather than spending additional time in litigation,” Orluskie said.

“If we go to the Supreme Court, we’d go on and on and on,” he said. “What we’re going to do is engage with our other partners, with the components, OPM, sit down with the unions and consider all available options.”

MaxHR had been tied down in courts because of problems with ensuring collective bargaining rights for employees. The original court decision, in August 2005, blocked labor-relations portions of MaxHR and was eventually reaffirmed by an appeals court in June.

Unions applauded the decision and agreed with DHS on the need to move past the court battles.

“DHS has made the right decision — for itself, for its employees and for our nation,” said Colleen Kelley, president of the National Treasury Employees Union. The union led the fight against MaxHR in court. “It is now time for DHS to put this adversarial proceeding behind it and to join with NTEU in focusing solely on the agency’s critical mission of protecting the American people.”

I’m glad that DHS is finally dropping this case. The negative mood that this created on human capital issues at DHS over the last three years vastly overwhelmed any performance-related benefits that this plan might have generated. There need to be strong incentives - both carrots and sticks - for high performance at DHS, but it’s been clear for the last two years that this plan was not the right way to pursue this objective.

Breaking news this afternoon:

A federal judge in Detroit ordered a halt to the National Security Agency’s warrantless surveillance program, ruling for the first time that the controversial effort ordered by President Bush was unconstitutional.

U.S. District Judge Anna Diggs Taylor wrote in a strongly-worded 43-page opinion that the NSA wiretapping program violates privacy and free-speech rights and the constitutional separation of powers between the three branches of government. She also found that it violates a 1978 law set up to oversee clandestine surveillance.

The Justice Department said that it was appealing the decision and that the parties to the lawsuit had agreed to delay the judge’s order until the appeal could be heard.

Obviously this is only the start of the legal process on this question; I would expect this issue to go all the way to the Supreme Court, even if Congress authorizes the program. You can read the opinion here. And Memeorandum captures the blog reaction this afternoon.

Update 1 (8/17): I just read the opinion. One interesting implication is that even though the government presented additional classified details about the program to the judge, these details did not convince her that the Terrorist Surveillance Program was greater in scope than what is already publicly-known, with the possible exception of the case’s data mining claim, which she did throw out based on the invocation of the state secret privilege. Instead, she says that the key elements of the program are publicly known, in her denial of the request to dismiss based on the state secret privilege:

It is undisputed that the Defendants have publicly admitted to the following: (1) the TSP exists; (2) it operates without warrants; (3) it targets communications where one party to the communication is outside the United States, and the government has a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda. As the Government has on many occasions confirmed the veracity of these allegations, the state secret privilege does not apply to this information.

Update 2 (8/17): Cogent detailed analysis of the opinion from Glenn Greenwald.

From today’s New York Times:

Attorney General Alberto R. Gonzales on Monday ordered a side-by-side review of American and British counterterrorism laws as a first step toward determining whether further changes in American law are warranted.

The plot to blow up airliners bound from Britain to the United States has highlighted differences in legal policies between the two allies, with American officials suggesting that their British counterparts have greater flexibility to prevent attacks.

Newly revised British counterterrorism laws, for instance, allow the authorities to hold a suspect for 28 days without charges, where American law generally requires that a suspect held in the civilian court system be charged or released within 48 hours.

Homeland Security Secretary Michael Chertoff said in appearances on the Sunday morning news programs that he thought bringing American laws more closely into line with Britain’s, particularly regarding the detention of terror suspects without charges, could help deter threats at home.

U.S. officials should always look to what other countries are doing in terms of counterterrorism and homeland security for new ideas. But this is a narrow-minded exercise if it only focuses on the legal aspects of how the Brits operate, and not also the more important management-related issues (e.g. human capital management, communications and decision-making processes). I suspect that the most important secrets of their success can be found by asking questions such as the following:

• How do the British anti-terror agencies recruit, train, promote, and establish incentives for their employees?
• Are there clearly defined roles and responsibilities among the lead agencies?
• What mechanisms are in place to ensure that the various lead agencies cooperate and share information with one another?
• How is information shared back and forth between national and local officials?

Hopefully this type of ‘lessons-learned’ exercise will also take place. This report on the intelligence-sharing framework in the UK is a good place to start.

The Secrecy News blog at the Federation of American Scientists (FAS) reported today that FAS decided to remove a DHS report on MANPADS (which I wrote about last week) in response to a lthreatening letter from a DHS lawyer:

A July 31 Department of Homeland Security report to Congress on the status of defenses against shoulder-fired anti-aircraft missiles was removed from the Federation of American Scientists web site after DHS objected to its publication.

DHS urged that the unclassified report, marked “For Official Use Only,” be taken offline and, upon consideration, we agreed to do so.

“The Report has never been released by DHS to the public because it contains sensitive information such as the transition of military technology for potential civil use, systems performance of the prototype systems being developed by DHS and its partners, and the reliability of such prototype systems,” wrote DHS deputy associate general counsel William H. Anderson.

“Due to the sensitive nature of the Report, I request that your organization immediately remove the Report from its website.”

“If the Report is not removed from your website within 2 business days, we will consider further appropriate actions necessary to protect the information contained in the Report,” Mr. Anderson wrote in an August 9 letter.

The letter from DHS refers to DHS Management Directive 11042, which governs the control and distribution of sensitive-but-unclassified (including FOUO) materials from DHS. But this directive does not deal with legal controls on third-party dissemination of FOUO materials, so the DHS statement that “we will consider further appropriate actions” seems to me like a hollow threat. I’m surprised that FAS capitulated to this request, since there was nothing in the report that discussed system performance and vulnerabilities (the report mentions that a classified annex contains this information). And I’m surprised that DHS thinks that it’s even feasible now to control this information. After all, the report has already been downloaded thousands of times, is still available in a Google cache, and has now been widely reported on in the media.

Responding to public interest, the court that prosecuted Zacarias Moussaoui has created a webpage to host the hundreds of trial exhibits used by the prosecution and the defense in the case, including video clips, pictures, and the miscellany of modern life - invoices, credit card receipts, wire transfer documents, identification documents - that form a breadcrumb trail of evidence about the 9/11 plot and Moussaoui’s activities in the U.S. Many of these documents had already been posted at the RCFP’s excellent site during the trial, but this new site provides a more complete record of the trial documents. Kudos to the court for creating this site, and recognizing the important civic value of access to information about terrorism-related prosecutions, and by extension about the terrorist threats to the United States.

As noted last week, the final SAFETY Act regulations are now available on the Federal Register; a draft version had been posted on the DHS website last week.

The Department of Homeland Security quietly posted the final rule for the SAFETY Act on its website today, concluding a rule-making process that began in 2003. For more information on the SAFETY Act, which protects companies with homeland security-related technologies against terror attack liabilities, see the dedicated website for the program.

The Congressional Research Service released a timely report a few days ago on the issue of sending the National Guard to the US-Mexico border, available publicly for the first time here at HLS Watch:

RS22443: Border Security and Military Support: Legal Authorizations and Restrictions, May 23, 2006.

It provides a solid, fact-filled overview of the issue, looking at the impact of the Posse Comitatus Act in this case and examining how troops have been used to support counternarcotic efforts at the border in recent years.

The Boalt Hall School of Law at UC Berkeley has developed a webpage entitled “Disasters and the Law: Katrina and Beyond” that does an excellent job of compiling a collection of key government documents and research papers on the legal aspects of disaster response. For anyone who is focused on these issues, this site is well worth bookmarking.

FAS has put a new CRS report up on its site that is directly relevant to the recent stories on the NSA’s collection of domestic telephone records:

RL33424: Government Access to Phone Calling Activity and Related Records: Legal Authorities, May 17, 2006.

As is the CRS’s wont, it doesn’t come to any conclusions, but it does provide a solid backgrounder for people trying to understand the complex legal issues around this story.

The invaluable Moussaoui trial site at RCFP posted this document in the last few days, in which Moussaoui affirms that six people who the United States has in its custody played critical roles in the 9/11 plot:

• Khalid Sheikh Mohammed, the operational mastermind of the plot;
• Ramzi Bin al-Shibh, a member of the Hamburg cell and the key facilitator of the plot;
• Mustafa Ahmed al-Hawsawi, a financier of the 9/11 attacks;
• Ammar al-Baluchi, a travel and financial facilitator for the plot;
• Walid Muhammad Salih Bin al-Attash, a key deputy to Khalid Sheikh Mohammed;
• Mohammed Manea Ahmad al-Qahtani, the real “twentieth hijacker” whose entry into the United States was denied at Orlando airport.

I’m happy that the U.S. legal system has dealt with Moussaoui, and will be locking him away for life. But for all of his vileness, he was really only a bit player in al-Qaeda and tangential to the 9/11 attacks, in comparison with these six, all of whom bear direct responsibility, and are in U.S. custody today somewhere in the world, held captive in a shadowy, legal gray zone. Are we content to keep them in that condition for the rest of their natural lives? Or are we ever going to bring them to trial and prosecute them in the U.S. civilian or military legal systems for the murder of thousands on 9/11? The same question could be asked for the hundreds of other people detained at Guantanamo and elsewhere in the world.

There needs to be a re-engaged national debate on this question, weighing the possible short-term tactical benefits of holding these people versus the long-term strategic costs in terms of undermining our global reputation as a nation founded on the rule of law and reinforcing the “culture of grievance” that breeds terrorists in the Muslim world.

Update (5/5): Georgetown law professor David Cole tackles this subject in an op-ed in Friday’s Washington Post.

Moussaoui sentenced to life in prison. Alas, he won’t be getting his 70 virgins.

Another new Congressional Research Service report:

RL33353: Civilian Patrols Along the Border: Legal and Policy Issues, April 7, 2006.

The report provides an interesting overview of the legal and policy context in which the Minuteman Project and similar groups operate. And it summarizes current legislative proposals and legal authorities for civilian patrol activities at national borders.

Today’s big news was the decision by an Alexandria, VA jury that Zacarias Moussaoui is eligible for the death penalty. From the Washington Post:

The unanimous verdict in U.S. District Court in Alexandria means that Moussaoui’s death penalty trial will now move to a second phase, in which prosecutors will try to persuade jurors to vote for execution while defense lawyers seek to spare his life.

Reading the verdict outside the courthouse, court spokesman Edward Adams said, “By this verdict, the jury has found that death is a possible sentence in this case.”

As he was being led from the packed courtroom after the jurors had left, Moussaoui, wearing his habitual white knit cap and green prison jumpsuit, glared at the remaining spectators and yelled, “You’ll never get my blood! God curse you all!”

My impression of Moussaoui has changed significantly over the last few weeks; before I thought he was a buffoonish thug, but following his comments over the past two weeks I now see him as evil personified. I’m in complete emotional sympathy with the people who want him put to death. That said, I don’t think that would be the wisest outcome from the perspective of what’s best for the global war on terror. Additional legal appeals (perhaps all the way to the Supreme Court) will keep Moussaoui in the spotlight for years to come. And putting him to death is going to make him a martyr to many radical Muslims, and increase the efficacy of al-Qaeda’s recruiting pitch. Locking him up, throwing away the key, and forgetting about him is probably the strategy that the outcome that delivers the greatest security-related benefit to the United States.

I haven’t been writing about the Moussaoui trial on this site, primarily because I have no legal background, but today’s proceedings are nothing short of astounding. From the Post:

Zacarias Moussaoui testified in an Alexandria courtroom this morning that he was tapped by Osama bin Laden to hijack a plane and fly it into the White House as part of the terrorist attacks that claimed nearly 3,000 lives on Sept. 11, 2001.

Testifying at his own death-penalty trial, over the objections of his attorneys, Moussaoui said he had not known the precise date the attacks were to take place, but that he knew they would involve the White House, the World Trade Center and other targets.

He said he was supposed to head a five-man crew that also would have included Richard Reid, a British citizen who tried to set off explosives in his shoes aboard a transatlantic flight two months after the Sept. 11 attacks….

Questioned by defense lawyer Gerald Zerkin for less than 30 minutes, Moussaoui was asked: “Were you scheduled to be a pilot in the operation that was to be run on Sept. 11, 2001?”

He replied: “Yes. I was supposed to pilot a plane to hit the White House. I only knew about the two planes of the World Trade Center in addition to my own plane.”

Wow. There’s a chance that he’s lying to inflate his own importance in the al-Qaeda lore, but if this is true, it adds a whole new dimension to our understanding of 9/11.

The Defense Department released thousands of pages of records of transcripts of tribunal proceedings for Guantanamo detainees last Friday, as noted in the LA Times:

The records provide the most comprehensive view to date of the Guantanamo prison population, as well as an exhaustive catalog of the U.S. government’s charges against detainees who — in page after page of tribunal proceeding transcripts — protest their treatment and proclaim their innocence.

The records render portraits of more than 300 current and former detainees. Some described themselves as farmers or low-level Taliban foot soldiers; some were accused by their U.S. captors of having attended Al Qaeda training camps and of being associates of senior terrorist operatives.

These documents provide an opportunity for meaningful open-source analysis of terrorist omtivations and tactics - valuable information for people in state and local governments and the private sector who are trying to assess threats to critical infrastructure.

The American Bar Association released a report earlier in the month authored by their Hurricane Katrina Task Force which looked at legal authorities for disaster response. From the report:

The mission of the working group was to look at the over-arching question – were laws and regulations applicable to the response by state and federal officials sufficient to deal with this natural disaster? In assessing this, the working group addressed a number of issues and questions: Were decision makers at various levels of government cognizant of and able to use the authorities they had? If the laws were not adequate, how should gaps be filled and where should changes be made? If the authorities were sufficient, where should the emphasis be in the future to avoid the difficulties which occurred? Emergency authorities at both the federal and state level are often deliberately broad, so as to empower government and its officials to take needed actions. Thus, the fact that authorities lack specificity in some instances does not necessarily indicate an inadequacy of such authority; however, this common characteristic of emergency authorities places a higher burden on officials at all levels of government to ensure that these authorities can be implemented in the most effective way possible. Thus, the question becomes whether authorities were clarified in such a way as to be easily understood and implemented, not whether authority did exist.

And later, the report concludes:

At the federal level, the existing constitutional and statutes provide sufficient response authority. The Stafford Act and the Homeland Security Act of 2002 coupled with the National Incident Management System and the National Response Plan are adequate from an overall perspective. The issue for debate is whether the governmental statutory authorities at every level should be broad, with specificity left for plans, procedures and protocols – or whether the statutes and regulations are sufficiently specific to remove ambiguity and force responsibility and accountability. Not every situation can be anticipated by the enabling statutes, but officials must prepare for, and execute, executive authority and must be accountable for failure to do so.

These are some important issues to think about as Congress considers legislation to change the framework for disaster response this year.

Via the AP:

Two federal agencies agreed Tuesday to pay the American Civil Liberties Union $200,000 to settle a lawsuit brought to uncover information about the government’s no-fly list, which bars suspected terrorists from airliners….

In October 2004, documents that the FBI and Transportation Security Administration provided in the lawsuit revealed the government has “two primary principles” but no “hard and fast” rules for deciding who gets put on the secret list.

The article later notes those two principles:

One heavily redacted document says getting on a list is guided by two “primary” principles: Whether various intelligence agencies view an individual as a “potential threat to U.S. civil aviation,” and whether the agency requesting a listing has provided enough information to identify the person to be flagged at check-in.

These principles seems much too discretionary, although perhaps the redactions in the document hide some of the precise details. In any case, clear watch list standards and policies are needed if the government is going to achieve the objective of creating an effective watch list redress system by the end of 2006, as announced last week by Sec. Chertoff. It’s not going to be easy for DHS to build a redress system without clear standards and policies already in place that define and categorize how and why names were added to the list(s).

For more information, see the ACLU’s webpage on the case and this Oct. 2004 post at Secondary Screening.