Homeland Security Watch

  Committee of Five presents Declaration to the Second Continental Congress

A Declaration of the Representatives of the UNITED STATES OF AMERICA, in General Congress assembled.

When in the course of human events it becomes necessary for a people to advance from that subordination in which they have hitherto remained, & to assume among the powers of the earth the equal & independant station to which the laws of nature & of nature’s god entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the change.

We hold these truths to be sacred & undeniable; that all men are created equal & independant, that from that equal creation they derive rights inherent & inalienable, among which are the preservation of life, & liberty, & the pursuit of happiness; that to secure these ends, governments are instituted among men, deriving their just powers from the consent of the governed; that whenever any form of government shall become destructive of these ends, it is the right of the people to alter or to abolish it, & to institute new government, laying it’s foundation on such principles & organising it’s powers in such form, as to them shall seem most likely to effect their safety & happiness. prudence indeed will dictate that governments long established should not be changed for light & transient causes: and accordingly all experience hath shewn that mankind are more disposed to suffer while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. but when a long train of abuses & usurpations, begun at a distinguished period, & pursuing invariably the same object, evinces a design to subject them to arbitrary power, it is their right, it is their duty, to throw off such government & to provide new guards for their future security…

– + –

The complete first draft is available from the Library of Congress.

The final draft of the Declaration of Independence is available from the National Archives.

Yesterday, June 15, the United States and the European Union issued a joint statement on Guantanamo and “future counterterrorism cooperation.”  Most media are focusing on the implications for placing Guantanamo detainees.  It is reported that EU member states have agreed to receive fifty current detainees.

The Luxembourg declaration is also a mile marker for  negotiations that began even before the inauguration to ensure closer cooperation between Europe and the United States on a whole range of CT issues. 

The Guardian reports, European diplomats are ”saying that the aim was also to come up with a new transatlantic strategy on counter-terrorism, as well as on a broader joint agenda for fighting international organised crime, intelligence sharing, international travel security and data protection. The ambitious aims are bedevilled by legal wrangles and mismatches between US and European legal systems, with Europeans, for example, enjoying higher standards of privacy protection.”

Negotiations are continuing on a comprehensive CT agreement between the US and EU.  Some reports suggest progress is sufficient that it may be ready by the end of the year.

Yesterday’s agreement set-out principles on which the fuller agreement is expected to be based. “Efforts to combat terrorism should be conducted in a manner that comports with the rule of law, respects our common values, and complies with our respective obligations under international law, in particular international human rights law, refugee law, and humanitarian law. We consider that efforts to combat terrorism conducted in this manner make us stronger and more secure.”

The potential for greater cooperation between the US and EU is underlined by the first-ever EU-Pakistan summit which will begin tomorrow in Brussels. Taliban and al-Qaeda present a shared threat to the US, EU, and Pakistan. US military operations on the Afpak border (and incursions across the border) make a crucial contribution to containing — and eventually eliminating — this node of terrorist planning, training, and operations.

The same US operations complicate bilateral relations with Pakistan in a way that limits Washington’s ability to contribute to shaping a post-Taliban/after-al Qaeda future.  Greater involvement by the EU in supporting democratic and social resilience in Pakistan can pick up where the US cannot go.

In an interview with the Financial Times, “Shah Mahmood Qureshi, the (Pakistani) foreign minister… said Pakistan would need up to $2.5bn (€1.8bn, £1.5bn) in emergency relief and for long-term reconstruction of the Swat valley and the surrounding region, once the fighting between government troops and militants, now in its final stage, had ended. That figure compares to the $1bn in aid initially estimated by government officials. The warning comes as Pakistan widens its military offensive to other areas suspected of providing a haven to the Taliban, such as the Waziristan tribal region along the border with Afghanistan.”

The US and EU can benefit from collaboration in many other areas — intelligence sharing, border controls, planning, training,  joint exercises, and more – but especially as Pakistan’s military begins operations in South Waziristan, the potential in terms of this trilateral relationship is especially important.

James von Brunn, the alleged assailant in yesterday’s  fatal shooting of Stephen Johns at the Holocaust museum, has a long history of racist, anti-semitic, anti-government speech and action.  Would he have been a proper target for law enforcement intelligence gathering?

Mr. von Brunn is an 88 year-old,  military veteran with a prolific and, until today,  easy-to-access collection of writings attesting to his hatred of certain groups.  Many of these writings and rambling threats have been available at www.holywesternempire.org.  This morning the URL  announces: “HTTP 403 Forbidden.”  He is the author of a 1999 book entitled, Kill the Best Gentiles.

The Southern Poverty Law Center has listed Mr. von Brunn’s website among its large collection of “hate sites.”  The Anti-Defamation League has also monitored Mr. von Brunn. (See more from USA Today.) Would it be appropriate for local, State, or federal law enforcement agencies to collect and store similar information? Or does such information fall within the constitutional provisions of protected speech?

Arguably the most common legal standard for answering the question is 28 CFR, part 23 (or Title 28 of the Code of Federal Regulations, part 23).  This regulation was established, in part, to counter abuse of protected speech by law enforcement agencies in the 1960s and 1970s.

The core legal standard for gathering, collecting, and sharing information (or not) is set out as follows.

§ 23.20 Operating principles. (a) A project shall collect and maintain criminal intelligence information concerning an individual only if there is reasonable suspicion that the individual is involved in criminal conduct or activity and the information is relevant to that criminal conduct or activity. (b) A project shall not collect or maintain criminal intelligence information about the political, religious or social views, associations, or activities of any individual or any group, association, corporation, business, partnership, or other organization unless such information directly relates to criminal conduct or activity and there is reasonable suspicion that the subject of the information is or may be involved in criminal conduct or activity. (c) Reasonable Suspicion or Criminal Predicate is established when information exists which establishes sufficient facts to give a trained law enforcement or criminal investigative agency officer, investigator, or employee a basis to believe that there is a reasonable possibility that an individual or organization is involved in a definable criminal activity or enterprise. In an interjurisdictional intelligence system, the project is responsible for establishing the existence of reasonable suspicion of criminal activity either through examination of supporting information submitted by a participating agency or by delegation of this responsibility to a properly trained participating agency which is subject to routine inspection and audit procedures established by the project.

 In the case of Mr. von Brunn was there reasonable suspicion?  How about criminal predicate?  Were there a sufficient number of “trained law enforcement or investigative agency” personnel assigned to establish reasonable possibility?

I am not a trained law enforcement officer.  But I sometimes train such officers.  If I had, before yesterday’s attack, read Mr. von Brunn’s writings, I would not have perceived strong grounds for ”reasonable suspicion.”  I would have had difficulty reading much of the hate-filled, often turgid prose and would have quickly moved on to other targets of concern. (Even last evening, with the day’s events underlining the potential importance, it was a slog to read.)

If for some reason I was motivated to do additional research, I might have established “criminal predicate.”  In 1983 von Brunn was convicted of several charges and imprisoned for an armed attempt to “arrest” Paul Volcker and other members of the Federal Reserve Board.  But even with criminal predicate in hand, given the quarter-century elapsed and the age of the suspect, it is unlikely I would have established  “reasonable possibility.”

Which would have done nothing to save the life of Stephen Johns and — if not for the response of Mr. Johns and other security guards — my inaction could have led to the death and injury of many others at the museum.

I am not arguing for an easy answer.  I am suggesting the need to wrestle with a very tough question.  We can invest so much in defending pre-established positions that, too often, there is little energy left for crafting an imperfect, but principled solution.

Related background:

Russell Porter testimony: Report Card on Homeland Security Information Sharing

Practical Guide to Intelligence Led Policing

Intelligence Led Policing: New Intelligence Architecture

The Constitution Project: Liberty and Security

America’s growing surveillance state

Intelligence Agency Does Not Distinguish Between Terrorism and Peace Activism

(This event’s connection with the withdrawn DHS report on right-wing extremism is covered by Ed O’Keefe in this morning’s Eye Opener. And if you are looking for evidence of the energy invested in defending pre-established positions, check out the comments on O’Keefe’s report.)

UPDATE:

Museum Suspect’s Writings Had Not Triggered a Probe (Washington Post)

Shootings show threat of ‘lone wolf’ terrorists (Associated Press)

On Monday, nearly six years after being removed from the jurisdiction of US courts, alleged terrorist Ali Saleh Kahlah al-Marri appeared before US District Judge Michael Mihm.  Arrested by Peoria police and on the edge of being brought to trial, the Bush Administration had declared al-Marri an enemy combatant and removed him into military custody.  On February 26 a Federal Grand Jury returned new indictments against al-Marri.  The Obama administration has restored the suspect to civilian custody.  Yesterday al-Marri entered a plea of not guilty.  The trial is expected to take several weeks.

More from the Peoria Journal Star and New York Times.

On Friday the Supreme Court vacated the judgment of the 4th Circuit Court of Appeals in al-Marri v Spagone (see Certiorari order).  By vacating the 4th Circuit’s ruling the potential for its future use as a legal precedent is eliminated.  In this way the legal authority of the executive to indefinately detain without trial individuals legally resident in the United States is considerably weakened.

Late Friday, February 27, the Obama administration ordered that Ali Saleh Kahlah al-Marri be transferred into civilian custody and relocated from the Navy Consolidated Brig in Charleston, South Carolina.  The instruction came after action on Thursday by a federal Grand Jury in Peoria, Illinois indicting the suspect under terrorism conspiracy and material support statutes.

 Designated an ”enemy combatant” by the Bush administration, al-Marri, a dual citizen of Qatar and Saudi Arabia, has been in military custody since 2003.

While suspected of terrorism at the time of his Peoria arrest in December 2001, al-Marri was originally  indicted for credit card fraud, making false statements, and identity fraud.  For a time he was also held in civilian custody under material witness statutes.

In June 2007 the Fourth Circuit Court of Appeals found that al-Marri’s status as an enemy combatant does not preclude the right to challenge his accusers in the federal courts.  In particular the Fourth Circuit found, “we conclude that we must grant al-Marri habeas relief. Even assuming the truth of the Government’s allegations, the President lacks power to order the military to seize and indefinitely detain al-Marri.”

The United States Supreme Court has been scheduled to hear al-Marri’s appeal in April.  Friday Attorney-General Holder indicated the Solicitor-General will, based on these new indictments and transfer to civilian jurisdiction, petition for dismissal of al-Marri’s case before the Supreme Court.  Attorneys for al-Marri have said they will press for the Supreme Court case to proceed.

(On February 23 The New Yorker published a good overview of the al-Marri case by Jane Mayer.)

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.