No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The Fifth Amendment to the Constitution of the United States

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Because most readers of Homeland Security Watch are also  news-nerds you may have noticed we killed another US citizen recently. Abdulrahman al-Awlaki the sixteen year old son of Anwar al-Awlaki was killed during a drone attack in Yemen.   The young American was traveling with Ibrahim al-Banna, media chief of Al Qaeda in the Arabian Peninsula, the presumed target of the attack.

Abdulrahman al-Awlaki

Abdul had the bad luck of being in the wrong place at the wrong time, in the care of bad guys, and being the son of a very bad guy. As far as we know though, he was not directly involved in planning or implementing terrorist actions against the United States.  No legal action had been taken in his regard, certainly no Grand Jury indictment.

There are some rumors (but only rumors) that al-Banna was taking Abdul and a 17 year-old cousin (also killed) to visit the remains of his father.

The US government does not officially comment on our drone operations in Yemen (or Pakistan).  While we have acknowledged the death of both father and son, we did not discuss the means or our involvement in the means.

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I was surprised when reminded of the Bill of Rights use of “person” rather than “citizen.”   It has been an instructive surprise.

The differences between person and citizen have proliferated since the first amendments were adopted in 1791.   The French Revolution, the 14th Amendment, and increasing international mobility have all served to give enhanced attention to the  rights of citizenship.

But the Constitution still refers to persons.

The classical Latin persona was a  mask as used in Greek plays: A temporary and even misleading representation.  The early Christian church transformed our understanding of the word when Tertullian used it to explain the distinct “persons” of the Trinity.  Each person of the Trinity is a particular expression of an essential unity and substantive reality beyond the individual manifestation.

Through a complicated process of ecumenical councils, Medieval scholasticism, popular misunderstanding, and much more, Western culture came to view each individual as an expression of the divine.  This is the foundation of natural rights and the personhood of English Common Law.

The rise of nationalism has challenged the universalist claims of personhood.   Increasingly it is citizenship —  national identity — that matters, not some tendentious claim to being a child-of-God.

Congress is currently considering a new measure which would further diminish the personhood of non-citizens.    As adopted by the House of Representatives,  Section 1046 of the Defense Authorization Act reads,

After the date of the enactment of this Act, any foreign national, who–

(1) engages or has engaged in conduct constituting an offense relating to a terrorist attack against persons or property in the United States or against any United States Government property or personnel outside the United States; and

(2) is subject to trial for that offense by a military commission under chapter 47A of title 10, United States Code;

shall be tried for that offense only by a military commission under that chapter.

This section is causing consternation among some Senators and administration officials. The General Counsel for the Department of Defense has critiqued this legislation as follows:

Section 1046 of the House bill imposes an across-the-board requirement that, if military commissions jurisdiction exists to prosecute an individual, we must use commissions, not the federal courts, for the prosecution of a broad range of terrorist acts. Decisions about the most appropriate forum inwhich to prosecute a terrorist should be left, case-by-case, to prosecutors and national security professionals. The considerations that go into those decisions include the offenses available in both systems for prosecuting a particular course of conduct, the weight and nature of the evidence, and the likely prison sentence that would result if there is a conviction. A flat legislative ban on the use of one system – whether it is commissions or the civilian courts — in favor of the other is not the answer.

A weak procedural critique, it seems to me.

Since the Constitution was adopted “due process of law” has changed in a variety of ways.  Military commissions meet a minimum test of due process.  But it is very difficult to imagine James Madison smiling at the prospect of military officers being preferred as the agents of the judicial power set out in Article III.

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We are increasingly inclined to treat non-citizens as non-persons.  Our rights are less and less a matter of the dignity due any child of God.   For many, a non-citizen obviously does not deserve the rights of a citizen.  The non-citizen is inherently other and the other is innately a possible threat.  This is an entirely reasonable judgment based on a purely nationalist perspective.

Abdulrahman al-Awlaki, born in Colorado, fan of The Simpsons and Harry Potter, was a citizen.  Some would claim he was also a suspect other and potential threat.   His personhood?  His citizenship?  Nice abstractions for a courtroom perhaps, but distractions in the midst of deadly conflict… others would argue.

I am concerned that as the source of our rights shift from existential personhood to instrumental citizenship our sense of shared identity and common dignity is diminished and the very concept of fundamental rights is weakened.

The Constitution still refers to persons.

Friday evening John Brennan, Assistant to the President for Homeland Security and Counterterrorism, spoke to the Program on Law and Security at Harvard Law School.  Below is the full  transcript, with a few pleasantries taken off the top.

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Now, I am not a lawyer, despite Dan’s best efforts.  I am the President’s senior advisor on counterterrorism and homeland security.  And in this capacity—and during more than thirty years working in intelligence and on behalf of our nation’s security—I’ve developed a profound appreciation for the role that our values, especially the rule of law, play in keeping our country safe.  It’s an appreciation of course, understood by President Obama, who, as you may know, once spent a little time here.  That’s what I want to talk about this evening—how we have strengthened, and continue to strengthen, our national security by adhering to our values and our laws.

Obviously, the death of Usama Bin Laden marked a strategic milestone in our effort to defeat al-Qa’ida.  Unfortunately, Bin Laden’s death, and the death and capture of many other al-Qa’ida leaders and operatives, does not mark the end of that terrorist organization or its efforts to attack the United States and other countries.  Indeed, al-Qa’ida, its affiliates and its adherents remain the preeminent security threat to our nation.

The core of al-Qa’ida—its leadership based in Pakistan—though severely crippled, still retains the intent and capability to attack the United States and our allies. Al-Qa’ida’s affiliates—in places like Pakistan, Yemen, and countries throughout Africa—carry out its murderous agenda. And al-Qa’ida adherents – individuals, sometimes with little or no contact with the group itself – have succumbed to its hateful ideology and work to facilitate or conduct attacks here in the United States, as we saw in the tragedy at Fort Hood.

Guiding principles

In the face of this ongoing and evolving threat, the Obama Administration has worked to establish a counterterrorism framework that has been effective in enhancing the security of our nation.  This framework is guided by several core principles.

First, our highest priority is – and always will be – the safety and security of the American people.  As President Obama has said, we have no greater responsibility as a government.

Second, we will use every lawful tool and authority at our disposal.  No single agency or department has sole responsibility for this fight because no single department or agency possesses all the capabilities needed for this fight.

Third, we are pragmatic, not rigid or ideological – making decisions not based on preconceived notions about which action seems “stronger,” but based on what will actually enhance the security of this country and the safety of the American people.  We address each threat and each circumstance in a way that best serves our national security interests, which includes building partnerships with countries around the world.

Fourth—and the principle that guides all our actions, foreign and domestic—we will uphold the core values that define us as Americans, and that includes adhering to the rule of law.  And when I say “all our actions,” that includes covert actions, which we undertake under the authorities provided to us by Congress.  President Obama has directed that all our actions—even when conducted out of public view—remain consistent with our laws and values.

For when we uphold the rule of law, governments around the globe are more likely to provide us with intelligence we need to disrupt ongoing plots, they’re more likely to join us in taking swift and decisive action against terrorists, and they’re more likely to turn over suspected terrorists who are plotting to attack us, along with the evidence needed to prosecute them.

When we uphold the rule of law, our counterterrorism tools are more likely to withstand the scrutiny of our courts, our allies, and the American people.  And when we uphold the rule of law it provides a powerful alternative to the twisted worldview offered by al-Qa’ida.  Where terrorists offer injustice, disorder and destruction, the United States and its allies stand for freedom, fairness, equality, hope, and opportunity.

In short, we must not cut corners by setting aside our values and flouting our laws, treating them like luxuries we cannot afford.  Indeed, President Obama has made it clear—we must reject the false choice between our values and our security. We are constantly working to optimize both.  Over the past two and a half years, we have put in place an approach—both here at home and abroad—that will enable this Administration and its successors, in cooperation with key partners overseas, to deal with the threat from al-Qa’ida, its affiliates, and its adherents in a forceful, effective and lasting way.

In keeping with our guiding principles, the President’s approach has been pragmatic—neither a wholesale overhaul nor a wholesale retention of past practices.  Where the methods and tactics of the previous administration have proven effective and enhanced our security, we have maintained them.  Where they did not, we have taken concrete steps to get us back on course.

Unfortunately, much of the debate around our counterterrorism policies has tended to obscure the extraordinary progress of the past few years.  So with the time I have left, I want to touch on a few specific topics that illustrate how our adherence to the rule of law advances our national security.

Nature and geographic scope of the conflict

First, our definition of the conflict.  As the President has said many times, we are at war with al-Qa’ida. In an indisputable act of aggression, al-Qa’ida attacked our nation and killed nearly 3,000 innocent people.  And as we were reminded just last weekend, al-Qa’ida seeks to attack us again.  Our ongoing armed conflict with al-Qa’ida stems from our right—recognized under international law—to self defense.

An area in which there is some disagreement is the geographic scope of the conflict.  The United States does not view our authority to use military force against al-Qa’ida as being restricted solely to “hot” battlefields like Afghanistan.  Because we are engaged in an armed conflict with al-Qa’ida, the United States takes the legal position that —in accordance with international law—we have the authority to take action against al-Qa’ida and its associated forces without doing a separate self-defense analysis each time.  And as President Obama has stated on numerous occasions, we reserve the right to take unilateral action if or when other governments are unwilling or unable to take the necessary actions themselves.

That does not mean we can use military force whenever we want, wherever we want. International legal principles, including respect for a state’s sovereignty and the laws of war, impose important constraints on our ability to act unilaterally—and on the way in which we can use force—in foreign territories.

Others in the international community—including some of our closest allies and partners—take a different view of the geographic scope of the conflict, limiting it only to the “hot” battlefields.  As such, they argue that, outside of these two active theatres, the United States can only act in self-defense against al-Qa’ida when they are planning, engaging in, or threatening an armed attack against U.S. interests if it amounts to an “imminent” threat.

In practice, the U.S. approach to targeting in the conflict with al-Qa’ida is far more aligned with our allies’ approach than many assume.  This Administration’s counterterrorism efforts outside of Afghanistan and Iraq are focused on those individuals who are a threat to the United States, whose removal would cause a significant – even if only temporary – disruption of the plans and capabilities of al-Qa’ida and its associated forces.  Practically speaking, then, the question turns principally on how you define “imminence.”

We are finding increasing recognition in the international community that a more flexible understanding of “imminence” may be appropriate when dealing with terrorist groups, in part because threats posed by non-state actors do not present themselves in the ways that evidenced imminence in more traditional conflicts.  After all, al-Qa’ida does not follow a traditional command structure, wear uniforms, carry its arms openly, or mass its troops at the borders of the nations it attacks.  Nonetheless, it possesses the demonstrated capability to strike with little notice and cause significant civilian or military casualties.  Over time, an increasing number of our international counterterrorism partners have begun to recognize that the traditional conception of what constitutes an “imminent” attack should be broadened in light of the modern-day capabilities, techniques, and technological innovations of terrorist organizations.

The convergence of our legal views with those of our international partners matters.  The effectiveness of our counterterrorism activities depends on the assistance and cooperation of our allies—who, in ways public and private, take great risks to aid us in this fight.  But their participation must be consistent with their laws, including their interpretation of international law.  Again, we will never abdicate the security of the United States to a foreign country or refrain from taking action when appropriate.  But we cannot ignore the reality that cooperative counterterrorism activities are a key to our national defense.  The more our views and our allies’ views on these questions converge, without constraining our flexibility, the safer we will be as a country.

Privacy and transparency at home

We’ve also worked to uphold our values and the rule of law in a second area—our policies and practices here at home. As I said, we will use all lawful tools at our disposal, and that includes authorities under the renewed PATRIOT Act.  We firmly believe that our intelligence gathering tools must enable us to collect the information we need to protect the American people.  At the same time, these tools must be subject to appropriate oversight and rigorous checks and balances that protect the privacy of innocent individuals.

As such, we have ensured that investigative techniques in the United States are conducted in a manner that is consistent with our laws and subject to the supervision of our courts.  We have also taken administrative steps to institute additional checks and balances, above and beyond what is required by law, in order to better safeguard the privacy rights of innocent Americans.

Our democratic values also include—and our national security demands—open and transparent government.  Some information obviously needs to be protected.  And since his first days in office, President Obama has worked to strike the proper balance between the security the American people deserve and the openness our democratic society expects.

In one of his first acts, the President issued a new Executive Order on classified information that, among other things, reestablished the principle that all classified information will ultimately be declassified.  The President also issued a Freedom of Information Act Directive mandating that agencies adopt a presumption of disclosure when processing requests for information.

The President signed into law the first intelligence authorization act in over five years to ensure better oversight of intelligence activities.  Among other things, the legislation revised the process for reporting sensitive intelligence activities to Congress and created an Inspector General for the Intelligence Community.

For the first time, President Obama released the combined budget of the intelligence community, and reconstituted the Intelligence Oversight Board, an important check on the government’s intelligence activities.  The President declassified and released legal memos that authorized the use, in early times, of enhanced interrogation techniques.  Understanding that the reasons to keep those memos secret had evaporated, the President felt it was important for the American people to understand how those methods came to be authorized and used.

The President, through the Attorney General, instituted a new process to consider invocation of the so-called “state secrets privilege,” where the government can protect information in civil lawsuits.  This process ensures that this privilege is never used simply to hide embarrassing or unlawful government activities.  But, it also recognizes that its use is absolutely necessary in certain cases for the protection of national security.  I know there has been some criticism of the Administration on this.  But by applying a stricter internal review process, including a requirement of personal approval by the Attorney General, we are working to ensure that this extraordinary power is asserted only when there is a strong justification to do so.

Detention and interrogation

We’ve worked to uphold our values and the rule of law in a third area—the question of how to deal with terrorist suspects, including the significant challenge of how to handle suspected terrorists who were already in our custody when this Administration took office.  There are few places where the intersection of our counterterrorism efforts, our laws, and our values come together as starkly as it does at the prison at Guantánamo.  By the time President Obama took office, Guantánamo was viewed internationally as a symbol of a counterterrorism approach that flouted our laws and strayed from our values, undercutting the perceived legitimacy—and therefore the effectiveness—of our efforts.

Aside from the false promises of enhanced security, the purported legality of depriving detainees of their rights was soundly and repeatedly rejected by our courts.  It came as no surprise, then, that before 2009 few counterterrorism proposals generated as much bipartisan support as those to close Guantánamo.  It was widely recognized that the costs associated with Guantánamo ran high, and the promised benefits never materialized.

That was why—as Dan knows so well—on one of his first days in office, President Obama issued the executive order to close the prison at Guantánamo. Yet, almost immediately, political support for closure waned.  Over the last two years Congress has placed unprecedented restrictions on the discretion of our experienced counterterrorism professionals to prosecute and transfer individuals held at the prison.  These restrictions prevent these professionals—who have carefully studied all of the available information in a particular situation—from exercising their best judgment as to what the most appropriate disposition is for each individual held there.

The Obama Administration has made its views on this clear. The prison at Guantánamo Bay undermines our national security, and our nation will be more secure the day when that prison is finally and responsibly closed.  For all of the reasons mentioned above, we will not send more individuals to the prison at Guantánamo.  And we continue to urge Congress to repeal these restrictions and allow our experienced counterterrorism professionals to have the flexibility they need to make individualized, informed decisions about where to bring terrorists to justice and when and where to transfer those whom it is no longer in our interest to detain.

This Administration also undertook an unprecedented review of our detention and interrogation practices and their evolution since 2001, and we have confronted squarely the question of how we will deal with those we arrest or capture in the future, including those we take custody of overseas.  Nevertheless, some have suggested that we do not have a detention policy; that we prefer to kill suspected terrorists, rather than capture them.  This is absurd, and I want to take this opportunity to set the record straight.

As a former career intelligence professional, I have a profound appreciation for the value of intelligence.  Intelligence disrupts terrorist plots and thwarts attacks.  Intelligence saves lives.  And one of our greatest sources of intelligence about al-Qa’ida, its plans, and its intentions has been the members of its network who have been taken into custody by the United States and our partners overseas.

So I want to be very clear—whenever it is possible to capture a suspected terrorist, it is the unqualified preference of the Administration to take custody of that individual so we can obtain information that is vital to the safety and security of the American people.  This is how our soldiers and counterterrorism professionals have been trained.  It is reflected in our rules of engagement.  And it is the clear and unambiguous policy of this Administration.

Now, there has been a great deal of debate about the best way to interrogate individuals in our custody.  It’s been suggested that getting terrorists to talk can be accomplished simply by withholding Miranda warnings or subjecting prisoners to so-called “enhanced interrogation techniques.”  It’s also been suggested that prosecuting terrorists in our federal courts somehow impedes the collection of intelligence.  A long record of experience, however, proves otherwise.

Consistent with our laws and our values, the President unequivocally banned torture and other abusive interrogation techniques, rejecting the claim that these are effective means of interrogation.  Instead, we have focused on what works.  The President approved the creation of a High-Value Detainee Interrogation Group, or HIG, to bring together resources from across the government – experienced interrogators, subject matter experts, intelligence analysts, and linguists – to conduct or assist in the interrogation of those terrorists with the greatest intelligence value – both at home and overseas.  Through the HIG, we have brought together the capabilities that are essential to effective interrogation, and ensured they can be mobilized quickly and in a coordinated fashion.

Claims that Miranda warnings undermine intelligence collection ignore decades of experience to the contrary.  Yes, some terrorism suspects have refused to provide information in the criminal justice system, but so have many individuals held in military custody, from Afghanistan to Guantánamo, where Miranda warnings were not given.  What is undeniable is that many individuals in the criminal justice system have provided a great deal of information and intelligence—even after being given their Miranda warnings.  The real danger is failing to give a Miranda warning in those circumstances where it’s appropriate, which could well determine whether a terrorist is convicted and spends the rest of his life behind bars, or is set free.

Moreover, the Supreme Court has recognized a limited exception to Miranda, allowing statements to be admitted if the unwarned interrogation was “reasonably prompted by a concern for public safety.”  Applying this public safety exception to the more complex and diverse threat of international terrorism can be complicated, so our law enforcement officers require clarity.

Therefore, at the end of 2010, the FBI clarified its guidance to agents on use of the public safety exception toMiranda, explaining how it should apply to terrorism cases.  The FBI has acknowledged that this exception was utilized last year, including during the questioning of Faisal Shahzad, accused of attempting to detonate a car bomb in Times Square.  Just this week in a major terrorism case, a federal judge ruled that statements obtained under the public safety exception before the defendant was read his Miranda rights are, in fact, admissible at trial.

Some have argued that the United States should simply hold suspected terrorists in law of war detention indefinitely.  It is worth remembering, however, that, for a variety of reasons, reliance upon military detention for individuals apprehended outside of Afghanistan and Iraq actually began to decline precipitously years before the Obama Administration came into office.

In the years following the 9/11 attacks, our knowledge of the al-Qa’ida network increased and our tools with which to bring them to justice in federal courts or reformed military commissions were strengthened, thus reducing the need for long-term law of war detention.  In fact, from 2006 to the end of 2008, when the previous administration apprehended terrorists overseas and outside of Iraq and Afghanistan, it brought more of those individuals to the United States to be prosecuted  in our federal courts than it placed in long-term military detention at Guantánamo.

Article III courts & reformed military commissions

When we succeed in capturing suspected terrorists who pose a threat to the American people, our other critical national security objective is to maintain a viable authority to keep those individuals behind bars. The strong preference of this Administration is to accomplish that through prosecution, either in an Article III court or a reformed military commission.  Our decisions on which system to use in a given case must be guided by the factual and legal complexities of each case, and relative strengths and weaknesses of each system.  Otherwise, terrorists could be set free, intelligence lost, and lives put at risk.

That said, it is the firm position of the Obama Administration that suspected terrorists arrested inside the United States will—in keeping with long-standing tradition—be processed through our Article III courts.  As they should be.  Our military does not patrol our streets or enforce our laws—nor should it.

This is not a radical idea, nor is the idea of prosecuting terrorists captured overseas in our Article III courts.  Indeed, terrorists captured beyond our borders have been successfully prosecuted in our federal courts on many occasions. Our federal courts are time-tested, have unquestioned legitimacy, and, at least for the foreseeable future, are capable of producing a more predictable and sustainable result than military commissions. The previous administration, successfully prosecuted hundreds of suspected terrorists in our federal courts, gathering valuable intelligence from several of them that helped our counterterrorism professionals protect the American people.  In fact, every single suspected terrorist taken into custody on American soil—before and after the September 11^th attacks—has first been taken into custody by law enforcement.

In the past two years alone, we have successfully interrogated several terrorism suspects who were taken into law enforcement custody and prosecuted, including Faisal Shahzad, Najibullah Zazi, David Headley, and many others.  In fact, faced with the firm but fair hand of the American justice system, some of the most hardened terrorists have agreed to cooperate with the FBI, providing valuable information about al-Qa’ida’s network, safe houses, recruitment methods, and even their plots and plans.  That is the outcome that all Americans should not only want, but demand from their government.

Similarly, when it comes to U.S. citizens involved in terrorist-related activity, whether they are captured overseas or at home, we will prosecute them in our criminal justice system.  There is bipartisan agreement that U.S. citizens should not be tried by military commission.  Since 2001, two U.S. citizens were held in military custody, and after years of controversy and extensive litigation, one was released; the other was prosecuted in federal court.  Even as the number of U.S. citizens arrested for terrorist-related activity has increased, our civilian courts have proven they are more than up to the job.

In short, our Article III courts are not only our single most effective tool for prosecuting, convicting, and sentencing suspected terrorists—they are a proven tool for gathering intelligence and preventing attacks.  For these reasons, credible experts from across the political spectrum continue to demand that our Article III courts remain an unrestrained tool in our counterterrorism toolbox.  And where our counterterrorism professionals believe prosecution in our federal courts would best protect the full range of U.S. security interests and the safety of the American people, we will not hesitate to use them.  The alternative—a wholesale refusal to utilize our federal courts—would undermine our values and our security.

At the same time, reformed military commissions also have their place in our counterterrorism arsenal.  Because of bipartisan efforts to ensure that military commissions provide all of the core protections that are necessary to ensure a fair trial, we have restored the credibility of that system and brought it into line with our principles and our values.  Where our counterterrorism professionals believe trying a suspected terrorist in our reformed military commissions would best protect the full range of U.S. security interests and the safety of the American people, we will not hesitate to utilize them to try such individuals.  In other words, rather than a rigid reliance on just one or the other, we will use both our federal courts and reformed military commissions as options for incapacitating terrorists.

As a result of recent reforms, there are indeed many similarities between the two systems, and at times, these reformed military commissions offer certain advantages.  But important differences remain—differences that can determine whether a prosecution is more likely to succeed or fail.

For example, after Ahmed Warsame—a member of al-Shabaab with close ties to al-Qa’ida in the Arabian Peninsula—was captured this year by U.S. military personnel, the President’s national security team unanimously agreed that the best option for prosecuting him was our federal courts, where, among other advantages, we could avoid significant risks associated with, and pursue additional charges not available in, a military commission.  And, if convicted of certain charges, he faces a mandatory life sentence.

In choosing between our federal courts and military commissions in any given case, this Administration will remain focused on one thing—the most effective way to keep that terrorist behind bars. The only way to do that is to let our experienced counterterrorism professionals determine, based on the facts and circumstances of each case, which system will best serve our national security interests.

In the end, the Obama Administration’s approach to detention, interrogation and trial is simple.  We have established a practical, flexible, results-driven approach that maximizes our intelligence collection and preserves our ability to prosecute dangerous individuals.  Anything less—particularly a rigid, inflexible approach—would be disastrous.  It would tie the hands of our counterterrorism professionals by eliminating tools and authorities that have been absolutely essential to their success.

Capacity building abroad

This brings me a final area where upholding the rule of law strengthens our security—our work with other nations.  As we have seen from Afghanistan in the 1990s to Yemen, Somalia and the tribal areas of Pakistan today, al-Qa’ida and its affiliates often thrive where there is disorder or where central governments lack the ability to effectively govern their own territory.

In contrast, helping such countries build a robust legal framework, coupled with effective institutions to enforce them and the transparency and fairness to sustain them, can serve as one of our most effective weapons against groups like al-Qa’ida by eliminating the very chaos that organization needs to survive.  That is why a key element of this Administration’s counterterrorism strategy is to help governments build their capacity, including a robust and balanced legal framework, to provide for their own security.

Though tailored to the unique circumstances of each country, we are working with countries in key locations to help them enact robust counterterrorism laws and establish the institutions and mechanisms to effectively enforce them.  The establishment of a functioning criminal justice system and institutions has played a key role in the security gains that have been achieved in Iraq.  We are working to achieve similar results in places like Afghanistan, Iraq, Yemen, Pakistan, and elsewhere.

These efforts are not a blank check.  As a condition of our funding, training, and cooperation, we require that our partners comply with certain legal and humanitarian standards.  At times, we have curtailed or suspended security assistance when these standards are not met.  We encourage these countries to build a more just, more transparent system that can gain the respect and support of their own people.

As we are seeing across the Middle East and North Africa today, courageous people will continue to demand one of the most basic universal rights—the right to live in a society that respects the rule of law.  Any security gains will be short-lived if these countries fail to provide just that. So where we see countries falling short of these basic standards, we will continue to support efforts of people to build institutions that both protect the rights of their own people and enhance our collective security.

Flexibility—critical to our success

In conclusion, I want to say again that the paramount responsibility of President Obama, and of those of us who serve with him, is to protect the American people.  To save lives.  Each of the tools I have discussed today, and the flexibility to apply them to the unique and complicated circumstances we face, are critical to our success.

This President’s counterterrorism framework provides a sustainable foundation upon which this Administration and its successors, in close cooperation with our allies and partners overseas, can effectively deal with the threat posed by al-Qa’ida and its affiliates and adherents.  It is, as I have said, a practical, flexible, result-driven approach to counterterrorism that is consistent with our laws, and in line with the very values upon which this nation was founded.  And the results we have been able to achieve under this approach are undeniable.  We divert from this path at own peril.

Yet, despite the successes that this approach has brought, some—including some legislative proposals in Congress—are demanding that we pursue a radically different strategy.  Under that approach, we would never be able to turn the page on Guantánamo.  Our counterterrorism professionals would be compelled to hold all captured terrorists in military custody, casting aside our most effective and time-tested tool for bringing suspected terrorists to justice—our federal courts.  Miranda warnings would be prohibited, even though they are at times essential to our ability to convict a terrorist and ensure that individual remains behind bars.  In sum, this approach would impose unprecedented restrictions on the ability of experienced professionals to combat terrorism, injecting legal and operational uncertainty into what is already enormously complicated work.

I am deeply concerned that the alternative approach to counterterrorism being advocated in some quarters would represent a drastic departure from our values and the body of laws and principles that have always made this country a force for positive change in the world.  Such a departure would not only risk rejection by our courts and the American public, it would undermine the international cooperation that has been critical to the national security gains we have made.

Doing so would not make us safer, and would do far more harm than good.  Simply put, it is not an approach we should pursue.  Not when we have al-Qa’ida on the ropes.  Our counterterrorism professionals—regardless of the administration in power—need the flexibility to make well-informed decisions about where to prosecute terrorist suspects.

To achieve and maintain the appropriate balance, Congress and the Executive Branch must continue to work together.  There have been and will continue to be many opportunities to do so in a way that strengthens our ability to defeat al-Qa’ida and its adherents.  As we do so, we must not tie the hands of our counterterrorism professionals by eliminating tools that are critical to their ability to keep our country safe.

As a people, as a nation, we cannot—and we must not—succumb to the temptation to set aside our laws and our values when we face threats to our security, including and especially from groups as depraved as al-Qa’ida.  We’re better than that.  We’re better than them.  We’re Americans.

Thank you all very much.

Slavery still defiles the United States.

By some estimates (including figures from the CIA) as many as 50,000 people “are trafficked into or transited through the U.S.A. annually as sex slaves, domestics, garment, and agricultural slaves.”

The State Department has a lower figure. A few years ago, they reported “that 14,500 to 17,500 people, primarily women and children, are trafficked to the U.S. annually.”

Other people think the problem may be less significant than the 50,000 figure makes it appear.

“The discrepancy between the alleged number of victims per year and the number of cases [authorities] been able to make is so huge that it’s got to raise major questions,” said one criminologist. “It suggests that this problem is being blown way out of proportion.”

Or maybe something else:

“The biggest problem that we have combating these [sex trafficking] cases,” [a DHS official said], “is that once they hear the words ‘Immigration and Customs Enforcement,’ they immediately run. They do not trust us. They immediately think we are going to deport them.”

————–

I read a story Monday about something called T Visas.  The Trafficking Victims Protection Act… allows undocumented human trafficking victims to receive nonimmigrant status under some conditions, including agreeing to cooperate with law enforcement.

According to people familiar with the program, very few people are familiar with the program — victims or officials.

“Since T Visas became available in 2002, the U.S. Bureau of Citizenship and Immigration Services has been authorized to issue up to 5,000 a year — or enough for 10 percent of the 50,000 men, women and children trafficked into the U.S. for prostitution and forced labor each year, according to the U.S. Department of Justice.”

In the last decade, about 2300 T Visas were issued; in 2010, 447 victims received visas.

(You can find out more about this Department of Homeland Security, U.S. Citizen and Immigration Service program at this link.)

————–

Azriel James Relph, an NBC News reporter, described how one person found out about the DHS, USCIS program.  Here is an extended excerpt:

On a recent sweltering afternoon, two women sat at a restaurant table in a small American town, sharing conversation and a cookie and keeping cool. The normally busy eatery was quiet, but even if it had been packed they would have been the oddest couple in the room – a woman who came to this country illegally and a U.S. Immigration and Customs Enforcement agent.

….

“How’s your back? Is it treating you OK?” asked the agent.

“Very, very good,” replied the woman across the table in a heavy South American accent.

We can’t tell you their actual names. Special Agent Jones, her gold badge clipped to her belt and and ICE logo on her black government-issue polo shirt, often works undercover. Naming her could blow that. And her companion, whom we’ll call Laura, is a crime victim. Using her real name or showing her face could give her tormentors all they need to retaliate.

They are both women in their 30s, but the gray streaks running through Laura’s dark hair are suggestions of the pain she has endured.

Laura is a victim of human trafficking who risked her safety by testifying against the man who brought her to this country and forced her to work as a sex slave for at least seven years. Special Agent Jones was a part of the team that saved her.

….

Laura can’t remember some details of her ordeal, including how long ago she was smuggled into the U.S. — somewhere between 10 and 12 years ago, she reckons. But others — like how she got here — are seared into her memory.

She met a man in her home country when she was in her 20s. He swept her off of her feet, and told her he loved her. She took him to meet her family. When he asked her to go to the U.S. for six months, they cautioned against it, but she was in love and couldn’t say no. They boarded a flight north and only then, on the airplane, did he lay out what he really had in mind for her.

“You’re going to the United States,” she remembers him telling her, “to work like a prostitute.” Laura said she wanted to scream for help, but he told her to remember that he knew where her family was. “I have a lot of friends and I know where everybody lives,” he threatened.

It was a cold winter night when she landed in Washington, D.C. The man passed her off to a couple who took her directly to an old house. She laid awake all night in shock, listening to rats scrape around. All she could think about was how she wanted to phone her family — if only someone in this unfamiliar and unfriendly place could help her make a call.

But Laura had no allies in this frightening new land. She was now an unwilling sex worker in brothels catering to immigrant Latinos in Washington, D.C., Maryland, Atlanta and New York. She remained the “property” of her trafficker, who arranged her movements, as well as those of other women and girls he lured to the U.S. with similar false promises.

She remembers one especially horrific night in Maryland. “I slept with 103 men,” she says. “That is the worst day in my life.”

And she was not alone. “I remember, he say, ‘You no make money, because the other women [had sex with] 130.’ A lot of people don’t believe it, and say ‘No, it’s impossible.’”

Not only is it possible, it happens all the time, all across America, according to Bradley Myles, executive director of Polaris Project, a nonprofit that operates the National Human Trafficking Resource Center.

“Basically there’s this whole sex trafficking network that exists in the United States, and it predominantly targets and victimizes women and children from Latin American countries,” Myles said.

Fear of incarceration due to her undocumented status and concern for the safety of her family kept Laura from attempting escape or contacting authorities. But one day, that fear turned into hope, when Special Agent Jones came through the brothel door.

…

Three years ago, after approximately eight months of surveillance and undercover investigation — including late-night stakeouts, digging through trash, getting evidence any way they could — Jones and fellow ICE agents approached a house on a quiet street in an average American suburb and knocked on the door. They knew that the front door was not shielding a family sitting around a dining room table discussing their day, but a brothel where women and girls as young as 14 were being forced to have sex with “Johns” who paid $25 for 15-minute sessions. The women and girls worked all day and night, and almost never saw a penny.

…

On the day of the raid, Laura sat on a couch in the living room, where men awaited their 15-minute sessions, watching television. After seven years in the brothels she was no longer in high demand. New women and girls were constantly being brought in. The younger and fresher the faces, the more popular they were with Johns. The man she had fallen for all those years before in her home country still found a use for her though; she worked as the maid for this brothel.

She heard a knock on the door, peered out the window and saw the police. She didn’t say anything — she just started to cry as she opened the door for them.

Laura said she hadn’t cried about her situation in years. “You know, at one point you can’t cry,” she said. “You cry no more.” But as she realized what was about to happen, the tears came rushing back. “Crying because I am too happy — not afraid — because I knew that this is over.”

What happened next is a blur, but she remembers that the first person she saw come through the door was Jones. The officers told her they had arrested her trafficker. She asked if she was going to jail. They told her no.

The years of slavery had taken a physical and emotional toll on Laura.

“When we rescued her she appeared substantially older than her age,” said Jones. “She had a lot of baggage. A lot of mental and emotional distraughtness.”

…

Jones hoped to secure her cooperation as the prosecution built its case against her trafficker and the network he was part of. But her captors had told Laura over and over not to trust law enforcement, and she had no idea if she could really believe anything that an ICE agent was telling her.

“When I first met Laura, she didn’t trust us,” said Jones. “She actually made the case harder by saying that the other women that we rescued were all doing it voluntarily, that her trafficker was innocent. But that is usually the way these victims have been brainwashed to believe. It’s classic Stockholm Syndrome.”

Jones was patient. As one of the oldest victims, Laura’s testimony was crucial to the case. She decided to show her what her trafficker had deprived her of, and give her a taste of freedom.

“So we put her in a position where she could continue to thrive and see where she’s going to go,” she said. She arranged for Laura to get temporary status to stay in the country legally. She put her in touch with a relief agency that helped her find work, housing and mental health care. As Laura started to heal, Jones stayed in touch and kept asking for her cooperation, promising that her newfound freedom could be permanent. But Laura continued to resist.

…

After three years, Laura finally walked into the courtroom where her trafficker sat — the man she once thought she loved — and testified about her ordeal.

“I remember the day, but I no remember what I say,” she said, “because I so nervous.”

Her trafficker was found guilty of human trafficking. He is in federal prison now, and after five years, he will be deported to his home country. He is also required to pay restitution to Laura and the other nine women and girls he was convicted of enslaving

Working human trafficking cases, Jones has found an even stronger connection to her work. “These girls can be anybody’s daughter, anybody’s sister,” she said. “When I look at these girls — that could have been me.”

————–

My first thought after I read this story was sometimes DHS gets it right.

I talked about this case with a friend who works for the federal government and who knows a lot about trafficking.  I asked him what he thought about the story.  Here’s what he said.

————–

Trafficking is one area the United States is getting more right than most places and one where we have demonstrated world-wide leadership.

DHS getting it right? Being that they have the lead, I suppose, but do we need a DHS to get this one right? Not so sure.

As a nation, the US really has driven the modern anti-trafficking movement. Fall of the Wall, Globalization, Explosion of Internet really brought it to light. It has been a bipartisan effort beginning with President Clinton, continued by President Bush under whom the Trafficking Victims Protection Act (TVPA) was signed into law, and since continued by President Obama.

Though it has been a bipartisan effort, the political left seems to focus more on forced labor and the political right on sex-trafficking.  The disparity can be so severe that our State Department under different party affiliations disagrees as to which is the greater cause of trafficking, by a wide amount.

But the US is not alone on the dispute as to what is trafficking. Much like discussions about what are inalienable human rights, there are still disagreements and a variety of different definitions for human trafficking world-wide.

On this point the US adopted the force, fraud, coercion, under 18 rubric for the TVPA.  There is no movement (across borders, state or national) required for human trafficking.

At first the TVPA required the State Department to rank all countries on their anti-trafficking efforts, and then tie US aid and funding to those efforts.

As you can imagine, this can become extremely political, very quickly; particularly in strategic parts of the world.

Initially, the US did not rate itself, but now it does. This is a good thing and has led to positive steps in the US.

There are Americans who believe we need strong international laws and that the US needs to buy into the laws. From that perspective, the US prescriptively set the bar and put people on notice regarding anti-trafficking efforts.

However, when we did that, very few states had human-trafficking laws on the books. In ten years, more than forty states put anti-trafficking laws on the books.  These laws complement the federal laws regarding trafficking. Penalties supporting these laws are much more severe.  This increases the cost criminals face doing business and is a legitimate part of doing business.

But it might lead one to say (much like the immigration laws) how can the feds and the states both have human trafficking laws? There are a lot of legal issues around that question, but it does create a gap.

It is true there is an apparent discrepancy between estimated trafficking numbers and actual criminal prosecutions brought.

I believe this is a result of the force, fraud, coercion requirement. Those are really hard things to prove save for the really egregious cases.

Look at the parties involved in the sex cases. Are the Johns going to appear as a fact witness? Of course not, we don’t even arrest them.

The women … I can’t even begin to put my mind around the psychological components to this: PTSD rates that are as high as combat veterans. They just want it to end.  They don’t care if someone is prosecuted or not. Think battered spouse.  Think rape victims.

My colleague just had a successful prosecution of a violent rape where the women failed to report it for over two years. She had been tasered and then raped, and she thought somehow she was to blame for being so foolish to get into that situation.

Many people make the argument that the women choose to get into the pay for sex game and then end up in a bad situation they choose not to get out of.  So they make two bad choices: getting into the game in the first place and then not walking away when they could. Thus, no force, fraud, or coercion, and no human trafficking, just bad choices.

I don’t know. On the labor side, one might similarly argue that a migrant worker knows they are coming to the US to work (the job may not be what they were promised or believed, but they know that is a reality).  They know it is illegal to do so.  They know they are going to be paid less than a US citizen.  They probably know it will be less than what they have been promised.  And they know their living conditions might be substandard.  No matter what they have been promised, they realize this.  Nevertheless, they still choose to come here and work because it beats the alternative.

Choices all around, right? Or force, fraud, and coercion?

DHS getting it right?

They are the current instrument.  The United States is getting it right.

A mixed bag of relatively recent homeland security items that may have escaped attention.

Dirty Bombs

The Newshour on PBS recently aired a short segment on “How Tough is it to Build a Dirty Bomb.”  If you are interested in a dirty bomb primer, you could do a whole lot worse.  The video and transcript can be found here:

http://www.pbs.org/newshour/bb/science/jan-june11/dirtybombs_02-08.html

The piece is a good, basic bit of reporting with an interesting interview with the man once referred to as the “Radioactive Boyscout.”  However, it would have been helpful if the reporter had pushed NYPD representatives to justify continued spending on the Securing the Cities effort instead of considering alternative means of dealing with the threat of dirty bombs.

Al Jazeera

During this tumultuous period in the Middle East, U.S. print and cable news services have scrambled to provide coverage in countries where they previously had little infrastructure.  In stark contrast, Al-Jazeera focuses its reporting on events in the region and was well positioned to respond to the string of fast breaking events.  However, very few U.S. cable companies carry the station and this led to a huge spike in traffic to Al Jazeera’s English website.

Some argue that the station is simply a platform for anti-U.S. and anti-Semitic views while others insist it is a serious news organization that allows distasteful commentators air time.  In a recent Boston Globe op-ed, former DHS Assistant Secretary Juliette Kayyem argues that the public should be allowed access to the vital reporting from that region Al Jazeera provides.  She acknowledges the less savory aspects of the station, but feels it should be left to the public to decide what and when to tune into any particular media.

While US news corporations scrambled to get people and equipment to the region, AJE was already there, at the forefront of documenting the Egyptian government’s atrocities and demise, so much so that AJE’s offices in Egypt were raided and its journalists detained.

According to Deutsche Welle:

German security officials conducted raids on two alleged Islamist groups in three states on Tuesday, suspecting the groups were involved in anti-constitutional activities. Authorities searched property belonging to the groups Invitation to Paradise (EZP in German), with offices in Moenchengladbach and Braunschweig, and the Islamic Cultural Center of Bremen (IKZB in German), in the city-state on the North Sea coast, as well as the private residences of some members.

A spokesman for the German Interior Ministry, explained:

EZP and IKZB are suspected of acting against the constitutional order by planning to create an Islamic theocracy in Germany. Salafists understand the Islamic religion to be an ideology of order and a system of law that is incompatible with parliamentary democracy. According to Salafist ideology, the laws can only be from God (divine sovereignty) and can not be made by the people… Salafi Islamist networks such as these organizations are opposed to liberal democracy and as such the laws-of-association can apply. For an embattled democracy, it is necessary — without waiting for the jihad to emerge in the form of armed struggle — to take action against anti-constitutional organizations. (Original German press release is available from the Ministry of Interior.  Warning: I translated this myself and my German is even more amateur than my Greek.)

The Interior Ministry emphasized there is no evidence or accusation that the suspects were planning terrorist activity.  Rather, the charge being investigated is the purposeful undermining of German constitutional principles.

I cannot find a bill of particulars and my inquiries to the German Embassy in Washington have not yet been answered.  But it seems likely action is being taken under section 90b or section 92 of the German Criminal Code relating to Crimes against Peace, High Treason and Endangering the Democratic Rule of Law.  If correct, this is a significant twist in the German anti-terrorism strategy.  This may be the first time these provisions have been applied to Islamic organizations.  The decision of the Ministry to target and reference “Salafist” groups is  worth particular note. (In 2008 Khalil Al-Anani, then with the Brookings Institution, provided a brief backgrounder on Salafism.)

The chapter entitled Crimes against Peace, High Treason and Endangering the Democratic Rule of Law is the so-called “Special Part” or “anti-Nazi section” of the criminal code.  Section 92 reads:

(1) Within the meaning of this law, a person undermines the continued existence of the Federal Republic of Germany if he causes the abolition of its freedom from foreign domination, the destruction of its national unity, or the separation of one of its constituent territories.

(2) Constitutional principles, within the meaning of this law, shall be:

1. the right of the people to exercise state power in elections and ballots and through particular organs of legislative, executive and judicial power and to elect parliament in general, direct, free, equal and secret elections;

2. the subjection of legislation to the constitutional order and the subjection of the executive and judicial power to law and justice;

3. the right to form and exercise a parliamentary opposition;

4. the replaceability of the government and its responsibility to parliament;

5. the independence of the courts; and

6. the exclusion of any rule by force and decree.

(3) Within the meaning of this law:

1. efforts against the continued existence of the Federal Republic of Germany shall be such efforts, the supporters of which work toward undermining the continued existence of the Federal Republic of Germany (subsection (1));

2. efforts against the security of the Federal Republic of Germany shall be such efforts, the supporters of which work toward undermining the external or internal security of the Federal Republic of Germany;

3. efforts against constitutional principles shall be such efforts, the supporters of which work toward destroying, invalidating or undermining a constitutional principle (subsection (2)).  (The German Criminal Code is available in an official translation.)

Number 3 immediately above strikes me as the most likely legal basis for conducting the raids and collecting evidence.

In October Chancellor Angela Merkel gave a speech which seems to have presaged this new legal strategy.  According to a Reuters report (I do my own translations only as a last resort):

“Now we obviously also have Muslims in Germany. But it’s important in regard to Islam that the values represented by Islam must correspond with our constitution,” said Merkel.

“What applies here is the constitution, not sharia.”

Merkel said Germany needed imams “educated in Germany and who have their social roots here” and concluded: “Our culture is based on Christian and Jewish values and has been for hundreds of years, not to say thousands.”

The Chancellor’s words are now being put into action.

Friday evening Attorney-General Holder spoke to the annual dinner in San Francisco of the Muslim Advocates.   Applause greeted many of his comments, including:

There can be no “us” or “them” among Americans. And I believe that law enforcement has an obligation to ensure that members of every religious community enjoy the ability to worship and to practice their faith in peace, free from intimidation, violence or suspicion. That is the right of all Americans. And it must be a reality for every citizen. In this nation, our many faiths, origins, and appearances must bind us together – not break us apart. Our justice system must be used to empower, not to exclude or target. And security and liberty must be guideposts – not opposing forces – in ensuring safety and opportunity for all.  (Read his prepared remarks)

The audience of mostly Muslim lawyers was less pleased with the Attorney-General’s defense of “sting operations” directed against potential terrorists.

Some have expressed concerns about the recent charges brought against Mohamed Osman Mohamud in Portland, Oregon, for his alleged involvement in planning – and attempting to execute – a terror attack during a Christmas Tree-lighting celebration.

Mr. Mohamud’s arrest was the result of a successful undercover operation – a critical and frequently used law enforcement tool that has helped identify and defuse public safety threats such as those posed by potential terrorists, drug dealers and child pornographers for decades. These types of operations have proven to be an essential law enforcement tool in uncovering and preventing potential terror attacks.

Since 2001, more than 400 individuals have been convicted of terrorism and terrorism-related violations in federal courts. And in those terrorism cases where undercover sting operations have been used, there is a lengthy record of convictions.

The use of sting operations has been effective in flushing out several freelance operators.  There has, however, been concern that such tactics have amplified the actual threat presented by several suspects.  This was previously discussed at HLSWatch in regard to the wanna-be Portland Christmas Tree bomber. (Here and here.)

Saturday in Stockholm two explosions were linked to threats emailed to a Swedish news agency and others. It appears a vehicle-bomb caught fire but did not fully detonate, while nearby an apparent  suicide bomber killed himself, perhaps earlier than he intended.  While both blasts occurred in a busy shopping area only two others were slightly injured.

According to the BBC:

Police are investigating a set of e-mails sent shortly before the blasts threatening attacks because Sweden had sent troops to Afghanistan. Sweden has some 500 soldiers deployed in Afghanistan as part of the international military force.

The e-mails, with MP3 audio files in Swedish and Arabic, were sent to the Swedish security service and the TT news agency. They called for “mujahideen” – or Islamist fighters – to rise up in Sweden and Europe, promising Swedes would “die like our brothers and sisters”.

They also attacked the country for caricatures of the Prophet Muhammad drawn by Swedish artist Lars Vilks.

The investigation of the Stockholm bombings is still in its earliest stages, but media reports suggest that Taimour Abdulwahab al-Abdaly, a 29-year-old Iraqi Swede was acting alone.  According to coverage of the Swedish blasts in The Guardian (UK):

“The worrying thing about this development is that there is almost zero chance of finding lone jihadists like this before they strike, and that – as each is acting alone – there can be greater numbers of attacks,” said Claude Moniquet, head of the European Strategic Intelligence and Security Centre in Brussels.

Well… Mr. Holder might point to the Portland suspect, two recent arrests in Virginia and Maryland, and the product of other sting operations in the United States.  

Sting operations — like most police tactics — work best when tough procedures and protocols, combined with professional supervision, and the highest prosecutorial standards eliminate short-cuts and give the suspects plenty of space for extracting themselves.  When this is done and the suspects demonstrate not just a readiness for pulling the trigger but a commitment to doing so, I would rather sting than be stung.

   Thomas More confronting Cardinal Wolsey

Yesterday Dan O’Connor offered a comment in the form of a YouTube link.  According to the stats package only two people clicked on the link.  I was one of those.  Looks like Bill Cumming was the other.  I think the three minute link — to a biopic of a late Medieval/early Renaissance politician and lawyer —  is worth your time and relevant to our times… that, as always, try men’s souls.  The link is at the close of this post.

The video is an excerpt from “A Man for All Seasons.”  The man is Sir Thomas More — aka St. Thomas More –  an ambitious, sometimes ruthless, intolerant, repressive, and even cruel political leader who is also remembered as a model jurist, loving father and principled martyr to freedom of conscience.  I believe in a God of paradoxes, More is one of my proofs.

The linked video shows More at his best.  But it is not merely Hollywood hagiography.  More actually wrote, “I would uphold the law if for no other reason but to protect myself.“  The scriptwriter is quoting. (More on More is available from Luminarium.)

In our discussions regarding Mr. al-Awlaki we have disagreed regarding the sources, nature, and meaning of the law. The contributors (discussants?)have tended to perceive those of opposite opinion to be misquided and, even, potentially dangerous.  But we have not questioned the motivations of our opposites nor have we dismissed their arguments.  Rather than arguing, we are engaging in argumentation.   In this attitude and discipline we uphold the law and embrace the opportunity for the law to save us — individually and collectively – when each one of us inevitably chooses what is wrong.

Please view the brief link at: http://www.youtube.com/watch?v=WMqReTJkjjg

Safety from external danger is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give way to its dictates. The violent destruction of life and property incident to war; the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty, to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they, at length, become willing to run the risk of being less free. The Federalist No. 8, p. 33 (Hamilton)

–+–

The President will not confirm or deny, but it is likely a secret document has authorized agents of the government to kill Anwar al-Awlaki, a citizen of the United States (shown above).  Mr. al-Awlaki has not — yet — been charged with crimes against the United States.  No court hearing or other aspect of regular due process has been undertaken to consider charges against the accused.

No matter how else we might disagree, I hope we can all agree that unilateral action by the executive to kill a citizen is a serious matter deserving careful consideration by citizens.

Last weekend a number of citizens gave the issue more careful attention than is typical of the blogosphere.  See context and comments at: al-Alwaki and us: Where do the rights of citizenship end?

In these comments — and elsewhere — I perceive four frames-of-reference being applied to the prospect of the President’s men or women killing our fellow citizen:

1. What is the most pragmatic choice? What decision and action is most likely to reduce the immediate threat of Mr. al-Awlaki?

2. What is the most ethical choice? What is most likely to reinforce sustainable relationships? (Some of the relationships are international, some interpersonal, some are relationships between values, others…?)

3. What is the best legal approach? What principle and/or precedent and/or argument preserves or advances an appropriate balance of liberty and security?

4. What is the best political choice? What decision-making and action-taking process is most likely to sustain democratic principles and practices under duress?

I understand the responsibilities of citizenship include listening to my government, listening to my fellow citizens, observing reality as best I can, and applying my values and reason to reach a decision — or identify further information needed to reach a decision or to justify a non-decision – which I should then communicate to my fellow citizens for their consideration.

Since the weekend I have tried to behave as a citizen and have concluded: 

• There is sufficient pragmatic justification for the executive to take unilateral action to kill Mr. al-Awlaki.  
• There is a substantial ethical justification for lethal action.  I can imagine a thoughtful chief executive feeling ethically compelled to take such action.
• The authorization to kill a citizen without judicial review is almost certainly illegal and unconstitutional.
• The political implications of unilateral lethal action by the executive against a citizen depend a great deal on what happens in the future and how the decision is used by others.

In other words, for me it is a split decision. (The confines of a blog — with any hope of being read — make it difficult to justify these conclusions.  But in links provided at the close of this post I point you to sources that had particular influence on my deliberations.)

This deliberating has, however, helped identify criteria by which I could square these four frames and reach a more coherent decision.   The legal framework for extraordinary executive action of this sort must be made much more explicit.   It is the secrecy of the executive in this matter that most offends our legal standards and generates the greatest potential for profound political mischief.

There is an urgent need — and the case of Mr. al-Awlaki presents the opportunity — to establish a new body of law that much more clearly and precisely sets out due process appropriate for the so-called Age of Terror or this Long War or our struggle against violent extremism.  Whatever we call this challenge,  we are faced with “continual effort and alarm attendant on a state of continual danger” and we do not need Alexander Hamilton (or even Lee Hamilton) to tell us why this is a threat. 

Among the strongest nations, once liberty is earned it is seldom taken away by outsiders.  But mortgaging liberty on a false promise of security is a recurring tale.  Too often the debt is called.   In his big, difficult, and wonderful book Terror and Consent, Philip Bobbitt writes,

The states of consent must develop rules that define what terrorism is, who is a terrorist, and what states can lawfully do to fight terrorists and terrorism. Unless we do this, we will bring our alliances to ruin as we appear to rampage around the world, declaring our enemies to be terrorists and ourselves to be above the law in retaliating against them. We will become, in the eyes of others, the supreme rogue states and will have no basis on which to justify our actions other than the simple assertion of our power. At the same time, we must preserve our open society by careful appreciation of the threat that terror poses to it and not by trying to minimize that reality or to appease the sensibilities of people who would wish it away… We must do this because an open society depends upon a government strong enough and foresighted enough to protect individual rights. If we fail to develop these legal standards, we will find we are progressively militarizing the domestic environment without having quite realized that we are at war. And, when a savage mass strike against us does come, we will react in a fury that ultimately does damage to our self-respect, our ideals, and our institutions (p. 394).

To avoid this self-generated harm there is a need for legislative action prior to the savage mass strike (or cumulative small strikes?).  What is effective and appropriate due process for a “state of continual danger”?  

An explicit legal structure and set of procedures is needed.  I advocate developing this through legislative action — as opposed to judicial action — to more fully expose issues involved.   The legislative process is much more adept at educating and involving citizens.  Through the legislative process we are more likely to cultivate the attitude of readiness and resilience that is most conducive to preserving our liberties.

The upcoming lame-duck session of Congress would be an opportune moment to open hearings on reforming due process guarantees for the present age.

For further consideration:

Pragmatic arguments

Times Topics: Anwar al Alwaki

Who is the world’s most dangerous man?

Anwar al Awlaki: the new Osama bin Laden?

Ethical arguments

Moral Man and Immoral Societyby Reinhold Neibuhr

The Irony of American Historyby Reinhold Neibuhr

Act and Being by Dietrich Bonhoeffer

Legal arguments

Executive Order 11905, Section 5, paragraph g: Prohibition of Assassination. No employee of the United States Government shall engage in, or conspire to engage in, political assassination.

Authorization for the Use of Military Force, September 18, 2001

Hamdi et al v. Rumsfeld (I was especially taken by the Scalia dissent.)

Political arguments

Terror and Consent by Philip Bobbitt

The Federalist Papers by James Madison, Alexander Hamilton, and John Jay

Second Treatise of Government by John Locke

Source: Cohort Zero at http://www.cohortzero.com/

I spent last weekend attending a course on mediation in the hopes of learning skills that might prove useful in crisis management and public engagement since these processes often become framed not just as failures but as conflicts as well. Although familiar with the field before taking the course, the two days of instruction and practical role play were a pleasant reminder that we always have alternatives to thinking and acting in the ways we usually do. At the same time, I was reminded that breaking old habits of mind is an acquired skill that requires lots of patience and practice.

Most of the alternatives to conventional conflict adjudication and resolution don’t just seem messy, time consuming and inefficient, they really are! Talking with one another and taking the time to appreciate others’ positions is terribly difficult, especially when we know we are right to begin with. But the sometimes “irrational” solutions that arise from alternative dispute resolution process often lead to genuine reconciliation, which in the end begs the question whether the adversarial win-lose approaches typical of other proceedings is not only irrational but unjust as well.

Something surprising often happens when we engage in open, honest and ongoing dialog with the objective of finding something of benefit to all parties, especially those experiencing differences with one another. We learn that other people face many of the same difficulties we do. And their bad decisions and actions, like our own, sometimes result from the best intentions, distractions or plain old poor execution. In other words, we are not the only people who have trouble dealing with uncertainty, time pressure, ill-informed or poorly articulated expectations and competing objectives. And we are not the only ones who have trouble accepting the consequences of our actions, especially when they fall short of what we want.

An effective mediator recognizes the importance of remaining neutral and letting the parties find their own ways to solutions that might otherwise never surface. Often this involves validating their feelings, expressing empathy for their position, clarifying their issues and interests and summarizing what they said. Taking the time to do these equally with each party also helps model for the participants the behaviors that will lead them to find a satisfying resolution of their own making.

The instructor for my course — a middle-aged Israeli woman who was drafted at 18 years of age to serve as combat nurse in both the Golan Heights and West Bank just before the outbreak of the Yom Kippur War– seems particularly well-equipped to appreciate both the subtleties of these techniques and the genuine importance of their application to conflicts among people, whether they involve individuals, institutions or cultures. For the past 20 years, she has mediated a bewildering array of disputes ranging from the petty to the preposterous to the truly ponderous. In the process, she has acquired a deeper understanding not only of conflicts among human beings, but also of the conflicts within herself and by extension in each one of us.

As we talked throughout the two days, it became clear that she still holds very strong views about the conflicts in the Middle East. But she also made it clear that she is far more aware of the ways others see them too. As such, she is not one to advocate for, much less favor, quick fixes. I could not help but wonder how useful her input and that of others like her might be if they were given the mantle of resolving the dispute between Arabs and Israelis rather than relying on leaders whose vested interests in maintaining the power of the state and their own power often leads them to narrow conceptions of what’s workable.

As I contemplated the questions posed by Phil Palin on Sunday and thoughtfully debated by several of us over the past couple of days, I wondered what our discussions could achieve and whether similar efforts if engaged by a wider audience could actually create a more peaceful world. The course helped answer this question as well.

Change, whether from a state of conflict or chaos, to something more stable, even comfortable, requires participants to engage their heads, hearts and hands. Every conflict involves substantive issues. Often the absence of procedural fairness inhibits resolution, and adds to the frustration or fear of future consequences that brings people to impasse. It may be possible to resolve the issues at the center of a conflict without addressing the interests underlying the participants’ positions. But avoiding the hard work of examining participants’ emotions, biases and the values that inform them often leaves everyone wondering whether anything really changed. We all need answers to the why, what and how questions before committing ourselves to which direction we will go.

Some people cannot or will not participate in mediation. People who lack self-awareness or a capacity for empathy cannot engage mediation in any meaningful way. Yet that does not mean we, as their adversaries, lack alternatives, it just makes finding them, negotiating them and implementing them that much more difficult as we carry water for both (or all) sides.

During his campaign for the presidency, Barack Obama was widely criticized for suggesting we could and should engage those with whom we find ourselves in conflict. Those who struggled to accept his stance became all the more uncomfortable, if not incensed, when he received the Nobel Peace Prize for little more than suggesting we might make the world a more just and peaceful place by doing so consistently. Very soon afterward, the President was ridiculed by the right for suggesting that empathy was an essential quality in a supreme court justice.

Mediation is an intensely practical pursuit, not some sort of intellectual fantasy or philosophical exercise. It accepts that getting something better for each and every party often means one or more party must accept something less than that to which they might otherwise consider themselves entitled. Getting better results for all often involves accepting something less for ourselves rather than extracting something more from others.

Whether we want to see peace in the Middle East, improved employment prospects at home, an end to Congressional gridlock or a more equitable, efficient and accessible health care system for ourselves and our fellow citizens, we may have no better option than ending our obsession with and insistence upon justice. As we consider alternatives to the conflicts preoccupying us today, we would do well to talk with one another about how we might live if we were simply fair.

Further reading:

Dworkin, Ronald (2008). Is Democracy Possible Here? Principles for a New Political Debate. Princeton University Press.

Habermas, Jurgen (1984). The Theory of Communicative Action (Volume 1): Reason and the Rationalization of Society. Beacon Press.

Habermas, Jurgen (1987). The Theory of Communicative Action (Volume 2): Lifeworld and Systems: A Critique of Functionalist Reason. Beacon Press.

Rawls, John (1971). A Theory of Justice. Belknap Press.

Anwar al-Awlaki is a citizen of the United States.  He has publicly advocated violence against the United States.  He has been directly linked to – and taken responsibility for — several murderous attempts against US citizens, including the shootings attributed to Nidal Hasan at Ft. Hood, Texas.  Mr. al-Awlaki — currently assumed to be operating out of Yemen — is perceived by many as a significant emerging leader of anti-US terrorist operations. 

It is widely understood the President has authorized lethal action against Mr. al-Awlaki.  Some have argued that the current military offensive in Yemen, largely funded and otherwise supported by the United States,  among other purposes seeks to capture or kill the rogue citizen. The father of Mr. al-Awlaki has petitioned the federal district court in Washington D.C. to enjoin the extra-judicial killing of his son.

According to several news reports, earlier today the US Department of Justice invoked the state secrets doctrine in seeking to have the father’s lawsuit dismissed.  This doctrine was recently sustained in a major decision of the typically “liberal” Ninth Circuit Court of Appeals.

The American Civil Liberties Union and the Center for Constitutional Rights are representing the father.  In response to today’s Justice Department action the civil rights groups released a statement saying, “The idea that courts should have no role whatsoever in determining the criteria by which the executive branch can kill its own citizens is unacceptable in a democracy… In matters of life and death, no executive should have a blank check.”  In late August the ACLU and CCR argued, “It is well established that the government cannot use extrajudicial killing to punish people for past acts, but only to prevent grave and imminent threats.”

I cannot yet find online access to the court documents.  If you know where to get access, please let us know by leaving a comment.

Thanks to the Great Gray Lady — and her reporters and webmasters – you can access the DOJ Motion to Dismiss at http://graphics8.nytimes.com/packages/pdf/world/26AlAulaqi_MTD.pdf

The Times report on the legal action, written by Charlie Savage, is headlined: State Secrets Cited in Effort by White House to Block Suit. 

The Center for Constitutional Rights provides background on the Plantiff’s case and the original complaint and motion (scroll to the bottom) at http://ccrjustice.org/targetedkillings

Fair warning to those ready to comment on this issue.  I will “unapprove” any comment that does not demonstrate evidence of having read the MTD or otherwise gives attention to the substantive concerns on both sides of this case.  Regular readers know I tend to be rather stubborn on the rights of citizenship.  I bring that bias to this issue, but bias is not enough.  There is too much noise to just generate more noise.   A close reading and analysis of the contending issues would certainly be worthwhile.

The Sunday business section of The New York Times featured a long article by Peter S. Goodman looking for lessons in the ruins of the failed crisis management efforts of Toyota, BP and Goldman Sachs (among others). Sadly, the piece overlooked the most important lesson we could take from these debacles: Look before you leap.

Goodman’s informants, like too many others, describe the jobs of crisis management practitioners from the limited perspective of what happens after the crisis become apparent to others. This narrative suggests effective crisis managers do little more than help their clients or bosses face facts, accept responsibility and chart a clear and direct course to safe ground. For this reason alone, they start from the flawed premise that the primary objective of crisis management is to protect — or failing that to restore — the tarnished image of the poor company and its executive whose best laid plans somehow went awry despite their best intentions.

To the extent that this position represents crisis management orthodoxy, it casts the affected company in the position of victim not villain. Sadly, most crises cannot be resolved by sinking to such simple tactics, especially when real victims are left with little recourse but to lick their wounds and hope someone will come along to make them whole again sooner rather than later.

Crisis management is not — or should not be — a separate and distinct discipline occupied predominantly by flaks and fixers. Clearly, many who labor under this label have little more to recommend them than their experience spinning for others or keeping them out of courtrooms rather than actually taking responsibility. Real crisis managers though are closely related to risk managers and emergency managers, both of whom take a comprehensive approach to their fields, which requires them to consider ways of preventing and mitigating harm before things start to become unwound.

Emergency managers think in terms of risk reduction, readiness, response and recovery (or prevention/mitigation, preparedness, response and recovery if you prefer). Crisis managers would do well to think in terms of awareness, ambiguity, adaptation and accountability. Conventional crisis management as practiced by spinmeisters and pettifoggers focuses on the external side of the crisis management diagram.

Crisis managers cannot, however, afford to overlook internal dynamics any more than they can afford to worry so much about what people will think tomorrow that they fail to do something constructive today. As such, crisis managers can play important roles helping organizations design effective monitoring systems that anticipate problems, amplify weak signals, appreciate their salience and ask (or inquire) actively what can go wrong and what should be done to avoid or control it. When problems emerge, effective crisis managers seek to promote and institutionalize organizational learning from the outset rather than rushing to deflect responsibility or avoid accountability.

Goodman and his experts wonder whether the problem is not what people could have done to avoid the problems they created, but whether the consequences of bad decisions are sometimes so riveting or revolting they make it impossible to change the subject. If that’s true in any way whatsoever, then those responsible for the decisions that led to these disasters should have considered such possibilities before things started going wrong.

How, you wonder, could anyone have foreseen such devastating effects from the actions of these companies and their executives? In hindsight, as Goodman and his experts note, it is all too clear that all these situations were both foreseeable and avoidable. But let’s give them the benefit of the doubt, if only as a thought experiment, to see what would happen if we assumed everyone did everything they could to prevent these disasters from happening. Why should this have stopped them from asking what they would do if their assumptions proved incorrect?

This is not such a far-fetched idea. Building codes require designers to consider the effects of earthquakes, which people cannot prevent. But they also require designers to protect a building from fire, which the occupants presumably can control. That’s right, we do not allow people to assume they will always be successful avoiding or controlling fire hazards. We require people to pursue fire prevention measures diligently. At the same time, we still require the same people to take reasonable precautions against the outbreak of fire so people can escape without injury and any fire can be controlled before spreading to the property of others.

We apply very similar logic to many other complex risks. When the stakes are big enough or the consequences terrible enough we ask people to do everything they can to avoid a problem while still taking precautions against its occurrence. Often these added investments prove unnecessary, but we rarely consider them entirely unwise.

Any company, institution or individual unable or unwilling to take a comprehensive approach to managing its crisis exposure leaves no one else to blame. We cannot blame the regulator or the consumer. We cannot assume bad things sometimes happen to good people. We can only make sure we hold good people accountable for becoming better people when they make big mistakes so others won’t have to suffer the same fate in the future.

On the eve of Independence Day — on one of the most beautiful afternoons of the year so far — long-time contributor William R. Cumming has raised an intriguing issue regarding an instruction released by President Obama. 

The issue was a particular concern of the Founders and deserves our continued vigilence.  I happen to disagree with Bill’s interpretation, but I cannot claim the President’s language or intent is altogether clear.  So we begin with the President’s words and then continue to Bill’s and my own. 

The White House

 June 30, 2010

Memorandum from the President on the Long-Term Gulf Coast Restoration Support Plan

SUBJECT: Long-Term Gulf Coast Restoration Support Plan

The oil spill in the Gulf of Mexico is the worst environmental disaster America has ever faced. The oil spill represents just the latest blow to an area that has already suffered significant hardship. In addition to fighting the spill, conducting environmental cleanup, and ensuring such a crisis does not happen again, we must help the Gulf Coast and its people recover from this tragedy. A long-term plan to restore the unique beauty and bounty of this region is therefore necessary.

As I announced on June 15, 2010, and pursuant to the authority vested in me as President by the Constitution and the laws of the United States of America, I assign to the Secretary of the Navy (Secretary) the responsibility to lead the effort to create a plan of Federal support for the long-term economic and environmental restoration of the Gulf Coast region, in coordination with States, local communities, tribes, people whose livelihoods depend on the Gulf, businesses, conservationists, scientists, and other entities and persons as he deems necessary. In addition to working with these stakeholders, the Secretary shall coordinate, as appropriate, with the heads of executive departments and agencies, as well as offices within the Executive Office of the President (collectively, executive branch components).

Specifically, I direct the following:

Section 1. As soon as possible, the Secretary shall develop a Gulf Coast Restoration Support Plan (Plan), based on the following principles:

(a) The Plan shall provide a comprehensive assessment of post-spill needs, as well as a proposal for Federal assistance in the overall recovery of the region.

(b) The purpose of the Plan shall be to develop an approach that will ensure economic recovery, community planning, science-based restoration of the ecosystem and environment, public health and safety efforts, and support of individuals and businesses who suffered losses due to the spill.

(c) The Plan shall take into account resources already available to respond to the oil spill, and complement the on-going oil spill response efforts. The Secretary will also coordinate, as needed, with the State, Federal, and tribal trustees who have responsibility for directing the natural resource damage planning process under the Oil Pollution Act and other applicable law.

(d) The Plan shall identify long- and short-term objectives and, where applicable, how the achievement of these objectives will be measured.

Sec. 2. (a) This assignment is prescribed as an additional responsibility of the Secretary in accordance with section 5013 of title 10, United States Code. This additional responsibility may not be delegated under section 5013(f) of title 10, United States Code. (b) To assist in accomplishing the directive in section 1 of this memorandum, executive branch components shall make available information and other resources, including personnel, deemed by the Secretary to be necessary for development of the Plan.

Sec. 3. (a) Executive branch components shall carry out the provisions of this memorandum to the extent permitted by law, subject to the availability of appropriations, and consistent with their statutory and regulatory authorities and their enforcement mechanisms.

 (b) Nothing in this memorandum shall be construed to impair or otherwise affect: (i) authority granted by law to an executive department, agency, or the head thereof; or (ii) functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(c) This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person. Nothing in this memorandum shall relieve or otherwise affect the obligations of any responsible party under the Oil Pollution Act or other applicable law.

Sec. 4. The Secretary is hereby authorized to publish this memorandum in the Federal Register.

Signed/ BARACK OBAMA

–+–

Commenting on a prior post Mr. Cumming wrote:

Yes and the oldest and richest democracy (Republic) has now celebrated July 4th by putting the US Navy in charge of long term recovery in the Gulf of Mexico. The militarization of US domestic policy continues apace just as in foreign policy and relations. Salute that flag!

To which I replied:

Bill, Where did you see the US Navy assignment? I know about Secretary Mabus’ assignment. But I have perceived that as separate from his SecNav role — and much more connected to his background as a former Governor of Mississippi. If that’s wrong, want to know more.

Mr. Cumming responded:

Presidential proclamation published in Tuesday’s Federal Register. Sent it to you and will send again. John Paul Jones to the rescue!

To which I responded:

Bill, thanks for resending the reference. For the benefit of other readers a web version is available at:
http://www.whitehouse.gov/the-press-office/memorandum-president-long-term-gulf-coast-restoration-support-plan

As you know, I share your concern regarding militarization of government operations. As such, it is certainly appropriate to raise the concern in this case.

I would offer, however, that based on the (little) I know and my own reading of the President’s memorandum, I understand that Secretary Mabus is, essentially, being seconded from his current role as SecNav to a leadership position for both the National Security Staff and Domestic Policy Staff.

This is my reading of the intent of the following:

In addition to working with these stakeholders, the Secretary shall coordinate, as appropriate, with the heads of executive departments and agencies, as well as offices within the Executive Office of the President(collectively,executive branch components).

The reference to Executive Office of the President includes both NSS and DPS, especially a well-established recovery working group spanning the two EOP functions.

I agree the situation is ambiguous. I bet there will be some SecNav staff involved. And this is another example of an increasing tendency for us to turn to military resources (active or retired) for commmand and operational competence. It is a worrisome trend.

Mr. Cumming respectfully disagreed:

Having read thousands of these memos it looks like a formal delegation of authority to me. See 3 USC Section 301. By passes SECDEF and others. But hey Phil you could be right and only a designation.

As always I could be wrong but a designation names a person while a delegation names a postion. Basic black letter ADMINISTRATIVE LAW.

I guess this WH knows the difference and did what they wanted to do (accomplish)! Even though Roy Mabus is former governor in a Gulf Coast state I could name perhaps a 100 others better qualified to save the states of Florida, Alabama, Mississippi, Louisiana and TEXAS. In fact why not George W. Bush, tan, rested and ready? Give him a chance to redeem his Katrina castrophic efforts! This is not a joke. At least he is not eligible for re-election [but of course Jeb is also tan, rested and waiting his turn)! Hey this is a bipartisan or non-partisan response effort correct?

To which I offered a sort of rebuttal:

I will further note that Title 10 USC, section 5013 (f) as referenced in the President’s memorandum reads:

The Secretary of the Navy may assign such of his functions, powers, and duties as he considers appropriate to the Under Secretary of the Navy and to the Assistant Secretaries of the Navy. Officers of the Navy and the Marine Corps shall, as directed by the Secretary, report on any matter to the Secretary, the Under Secretary, or any Assistant Secretary.

The President’s memorandum explicitly excludes delegation under paragraph 5013 (f), which — at least in my reading — is the White House effort to give the former Governor, who happens to be SecNav, an additional duty, but to avoid militarizing the additional duty.

I wonder if there might not have been a less ambiguous way of accomplishing the same thing, but there seems to me a pretty clear and appropriate effort to focus this additional role outside the Department of the Navy.

–+–

Before retirement Bill Cumming was a long-time lawyer with the US government.  I am neither a lawyer nor an experienced government official. If you have further insights — or suggestions — please add your comments.

In 2005, Stewart Baker joined the Department of Homeland Security as Assistant Secretary of Policy for the entire Department of Homeland Security under Secretary Michael Chertoff. The position, which evolved from the Assistant Secretary for Border and Transportation Security Policy and Planning position, has the following responsibilities, according to the DHS website:

• Leads coordination of Department-wide policies, programs, and planning, which will ensure consistency and integration of missions throughout the entire Department.

• Provides a central office to develop and communicate policies across multiple components of the homeland security network and strengthens the Department’s ability to maintain policy and operational readiness needed to protect the homeland.

• Provides the foundation and direction for Department-wide strategic planning and budget priorities.

• Bridges multiple headquarters’ components and operating agencies to improve communication among departmental entities, eliminate duplication of effort, and translate policies into timely action.

• Creates a single point of contact for internal and external stakeholders that will allow for streamlined policy management across the Department.

Baker would hold the position for the next four years, tackling a variety of issues from border and travel to cybersecurity and the Committee on Foreign Investment in the United States (CFIUS) to bioterrorism.  In his upcoming book, Skating on Stilts: Why We Aren’t Stopping Tomorrow’s Terrorism, Baker offers an intriguing view of our homeland security posture that ties back to the central theme that technology is both our savior and our enemy as it empowers not only us but our foes.  Coming from Baker, who has been described by the Washington Post as “one of the most techno-literate lawyers around,” the analysis of homeland security technology from a policy/legal prism is refreshing.  This is not a Luddite’s view of why technology harms, but an expert’s finely woven story of “how the technologies we love eventually find new ways to kill us, and how to stop them from doing that.”

A subtheme throughout the book is that information sharing, or lack thereof, has hindered our nation’s efforts to fight terrorism, especially when “privacy” has played a role.  In setting up a discussion of what led to his time at DHS, Baker recounts some of the failures leading up to 9/11, including the information sharing wall put up at the Department of Justice between intelligence and law enforcement elements of the agency, as well as challenges at the Foreign Intelligence Surveillance Court. His view is of someone who has spent time in the intelligence world as the General Counsel of the National Security Agency and as General Counsel of the Robb-Silberman Commission investigating intelligence failures before the Iraq War. The account dives into the intricacies of Justice and its overseers, as well as how bureaucracy and personalities can so easily define our government’s most sensitive policies.

The book then looks at his days at DHS and attempts to strengthen border and travel programs and policies for acronym-named programs, including Passenger Name Records (PNR), the Visa Waiver Program (VWP), Electronic System of Travel Authorization (ESTA), Western Hemisphere Travel Initiative (WHTI), and Computer Assisted Passenger Pre-Screening System II (CAPPS II),  among others.  If you have ever doubted Washington’s love of acronyms and initialisms, this read will certainly change your mind.

In evaluating efforts in the aviation space, Baker is critical of a number of groups that he deems to have stood in the way of the Department’s mission during his tenure, including the private sector, European governing bodies, bureaucrats, Congress, and privacy/civil liberties groups, all of whom he argues are all about the status quo and not open to change.  Some of his criticisms are valid while others seem to simplify the views of the various actors.  For example, in dismissing some of the tourism industry’s concerns related to travel policies, he argues that the industry did not want innovation in government security on the border. Having been in the trenches at the U.S. House Homeland Security Committee during many of these debates, I would argue that the balancing of the numerous parties’ interests and concerns was not always that simple or easy to discern, especially when assessing the right security path forward.  Some programs mentioned in the book, such as WHTI, succeeded, in part, because they were implemented once necessary infrastructure had been deployed.

His strongest concerns are reserved for privacy and civil rights advocates and the government policies they either tout or hate.  There is a great deal of skepticism for “hypothetical civil liberties” and “hypothetical privacy concerns,” without evidence of demonstrated abuses by the government. He cites numerous incidents, some of which certainly demonstrate the tension between privacy and security co-existing.  A few of the examples he uses have even been explored here at HLSWatch, including complaints about whole body imaging machines in airports.  See, e.g. The Right to Be Left Alone (October 27, 2009) and “Where are all the white guys?” (November 10, 2009). Reading the book, privacy and civil liberties supporters may find it hard to balance Baker’s call for imagination when tackling homeland security policy and decisionmaking without calling for a similar level of creative thinking when addressing how those policies and decisions will affect privacy and civil liberties.

The book goes on to describe how the Department and Administration tackled (or failed to tackle) cybersecurity and biosecurity and the differences between the approaches. In both sections, privacy and information sharing are undercurrents, though we also see some interesting discussions of such topics as patent protections, self-regulation, and the evolution of security in each of these areas.  The discussions are intriguing and provide both a history and analysis of why we are where we are on those issues.   The cybersecurity and related CFIUS discussion brought back some memories to this self-proclaimed cybergeek, including some of my first interactions with Baker when he was in private practice and I was at the Justice Department.

One last observation: while the focus on the book is obviously on the time that Baker served at the Department under Secretary Chertoff, it leaves much to the imagination of what work Secretary Ridge and his team- from their early days in the White House after 9/11 until the changing of the guard to Secretary Chertoff – undertook and how that may have contributed to some of Secretary Chertoff’s and Baker’s successes, challenges, and mindset.  In addition, despite the focus on privacy and civil liberties, there is little mention of the other DHS offices, including the Privacy, Civil Liberties, and General Counsel’s offices, who may have been engaged in many of the battles noted by Baker. The book is not lacking in detail or intrigue because of these exclusions, though I wonder how they affected the decisions of Baker and his policy team. Perhaps these items are the subject of another book for another time.

Stewart Baker provides insight into a D.C. perspective of homeland security and the struggle of a Department to tackle technology, privacy, and information sharing. The book provides some valuable lessons for those who are on the frontlines of homeland security policy as they attempt to tackle future threats. For an observer of homeland security development, Skating on Stilts: Why We Aren’t Stopping Tomorrow’s Terrorism is a must-read. The book will be released on June 15th and is available for pre-order on Amazon.com.  In the meanwhile, excerpts from the book and other missives from Baker can be found at a blog with the same name, http://www.skatingonstilts.com/.

Earlier this week, I wrote - Is the Internet Creating Terrorists? – in recognition of the modern Internet’s 25th birthday.  In that piece, I asked whether the Internet has enabled terrorists to increase their recruiting efforts and what does it mean for law enforcement.  Yesterday, Christopher Bellavita wrote an interesting related piece, Could terrorists on the internet be the next dot com bubble?, exploring Marc Sageman’s book Leaderless Jihad, and its analysis of potential Internet radicalization.  Chris’ conclusion, if I may simplify,is that there may be less of a link between the Internet and radicalization than expected.  He approached the issue from a different angle than I did – reviewing, in part, the lack of a correlation between countries that access extreme websites and countries that produce foreign fighters.   He does caution that without a critical analysis of claims and evidence demonstrating that the Internet is creating terrorists, we may end up wasting resources on the wrong problem.

So, what is the federal government doing to analyze the use of the Internet as a potential terrorist recruitment, dissemination, and tool for terrorism? Obviously, with proper procedures and legal process, the government can monitor non-public sites promoting criminal behavior.  We will leave out of the discussion scenarios of what our cloak and dagger friends may be doing.

Also not discussed here are the legislative and legal procedures at the federal level for tracking an individual’s use of the Internet if criminal or security implications exist.  The intricacies of surveillance policy – bother criminal and intel-related – is a topic that alone fills many a blog.

Instead, this post focuses on what potential government action exists to address the potentially offending websites that are disseminating terrorist information and/or inciting terrorist activity.  In doing so, I admittedly am taking a simplified approach to a complicated subject but hope to at least start a dialogue on the issue.

As far as I am aware, there is no public analysis that explores the degree to which the U.S. is generally monitoring public websites and communications on open blogs, social networks, and the like, though we know such efforts are underway in some form or fashion.  Just last month, the Department of Homeland Security undertook a Privacy Impact Assessment for the “Office of Operations Coordination and Planning, 2010 Winter Olympics Social Media, Event Monitoring Initiative.” The PIA assessed a number of DHS activities in preparation for the Vancouver Olympics, including the monitoring of social media websites (including this site) to “provide situational awareness and establish a common operating picture.”

In 2008, the Senate Committee on Homeland Security and Governmental Affairs released a report, Violent Islamist Extremism, The Internet, and the Homegrown Terrorist Threat,  which touched upon the government’s response capability.  The report stated:

Despite recognition in the [National Implementation Plan] that a comprehensive response is needed, the U.S. government has not developed nor implemented a coordinated outreach and communications strategy to address the homegrown terrorist threat, especially as that threat is amplified by the use of the Internet. According to testimony received by the Committee, no federal agency has been tasked with developing or implementing a domestic communications strategy.

Shortly after the report was released, Committee Chairman Joe Lieberman sent a letter to Google Chairman and CEO Eric Schmidt saying that the company needed to take extensive steps to remove videos from YouTube that promoted terrorism.  While YouTube is hardly a terrorist-sponsored site in and of itself,  Lieberman found that some videos posted on the sharing site “provide weapons training, speeches by Al-Qaeda leadership, and general material intended to radicalize potential recruits.”  While Google removed a number of videos that violated its own guidelines,  Lieberman continued to raise concerns with additional videos that remained on the site.

Lieberman’s actions were met with criticism from civil rights and First Amendment advocacy groups, who saw it as an attack on the First Amendment and the Constitution. Others balked at the potential for censorship of content on the Internet.

The First Amendment, at least with regards to acting on and removing materials from sites, is one of the biggest challenges facing the federal government.  Those hosting websites may loathe removing or censoring sites without some legal process served by authorities,  a process that requires a determination of a specific illegal act, or without a clear violation of their contractual agreements with site owners.   In looking at the offending act for terrorist sites, part of the challenge goes back to an issue that Homeland Security Watch discussed in great detail several weeks ago – what is terrorism and what constitutes a criminal (or national security) act?  Do lone wolf sites suffice?  Does it have to be linked to a terrorist group?  How does the government meet the threshold of a terrorist act when it involves online speech?

Of course, there may be ways to avoid the “what is terrorism” definition for potential acts by looking at other laws, especially if criminal activity is evident.  For example,  in 1996, Senator Diane Feinstein included in the Omnibus Anti-Terrorism Act a provision that required the Justice Department to produce a report analyzing the extent to which bomb-making instructions are available in the U.S. via various forms of media.  The Justice Department issued a report in April 1997 stating that laws restricting the dissemination of the media could be constitutional if narrowly-crafted.    Senators Feinstein and Orrin Hatch included an amendment on the Violent and Repeat Juvenile Offender Accountability and Rehabilitation Act that prohibited teaching or showing how to make explosives with the intent that the information will be used to  commit a federal crime.   Consequently, if a potential terrorist site shows how to make explosives and IF intent can be shown that the site’s owners planned for individuals to use that information to commit a violent crime, then legal process could be attainable.  Likewise, if specific links to fraud, money laundering, or inciting specific incidents of violence are evident, there potentially could be legal action in those cases.

Even then, however, if the sites are hosted outside the U.S., the issues become murkier and require international cooperation, perhaps with nations with different norms, standards, and definitions of criminal and national security acts than the U.S.

Complicating the situation even more — if  a site is successfully knocked off a hosting company’s server,  it is very easy to migrate and move a site to a new location.  Indeed, in testimony before Lieberman’s Committee in May 1997, Lt. Col. Joseph H. Felter, U.S. Army director of the Combating Terrorism Center at the U.S. Military Academy, testified that “[a]ttempts to shut down websites have proven as fruitless as a game of whack-a-mole.”

The government actions above, however, assume that law enforcement or security officials want a site to be removed. There may be instances where the preferred action is to leave something up as it may be valuable for intelligence or evidence gathering reasons.

Tackling terrorism online is not one that the U.S. alone is facing.  Just last month, the United Kingdom’s Association of Chief Police Officers created a unit for fighting online terrorism activity, complete with a portal for citizens to report suspected sites.  Other nations that do not provide the same free speech protections have taken similar actions for a variety of criminal security activities, including those related to hate speech.

In short, the challenges for government action against terrorist sites “generally” are many and raise serious constitutional and legal hurdles, both here and abroad.  Of course, we still most determine the extent to which terrorism-promoting sites are a problem – and that, in and of itself, may be our biggest challenge.

Today marks the opening of the RSA Conference where geeks and cyberwonks gather in San Francisco for five days of information security overload.  The conference, started in 1991 as a conference where approximately 50 cryptographers gathered to talk shop, is expecting more than 11,000 attendees this year and includes 250 sessions across 18 tracks.   Since 1995, the conference has focused on a unique theme to highlight a “significant historical contribution to or illustration of cryptography, mathematics, or information security.”  This year’s theme is the Rosetta Stone, designed to remember “the Rosetta Stone’s legacy to modern Egyptology and its lasting message on the power of collaboration.”

Expect a good share of government officials – from the Department of Homeland Security to the FBI to the White House to the Department of Defense to Congress – to be wandering around the conference.   DHS Secretary Janet Napolitano and FBI Director Robert S. Mueller are both slated to speak.  According to a release from conference organizers, Napolitano will “speak to the impact of information security on today’s society and how cybersecurity will continue to be a key area of focus for the Department of Homeland Security in the coming years,” while Mueller will “detail cyber threats through the years – from criminal threats like computer intrusions and identity theft to the use of the Internet by extremists and hostile foreign powers.”  Will be interesting to learn what insight each offers on the growing cybersecurity challenge and what is being done within the government to address that challenge.

Also slated to speak is Howard Schmidt, the recently appointed  “cyberczar” or, if you prefer, his official title – “White House Cybersecurity Coordinator, National Security Council, Executive Office of the President.”  Schmidt will give a keynote and, according to the conference schedule, will be busy participating in a number of other events, including a town hall sponsored by the Business Software Alliance.  In many ways, RSA represents a coming out for Schmidt. He has appeared and spoken at some DC-oriented events but this is (I believe) the first time he has been in a national venue and the first time where experts and industry will get a public account of what to expect from the Obama Administration on cybersecurity going forward.  It is big task but, as a veteran and well-respected expert on cybersecurity (including public-private partnerships), Schmidt should be up to the task.

Other big-name former government officials who have tackled cybersecurity are also plentiful. Schmidt’ predecessor (at least in an acting status), Melissa Hathaway, is slated to speak on a panel on “Delivering a Unified and Resilient National Cyber Security Framework” and former DHS Secretary Michael Chertoff and the first cyber-czar under President Clinton, Dick Clarke, are also on the agenda.

Moving from wonks to lawyers (if there is really a difference), back in D.C., the American Bar Association will be hosting its Fifth Annual Homeland Security Law Institute.  Chaired by Joe D. Whitley, former General Counsel of DHS, the conference gathers together practitioners  to examine legal issues surrounding various homeland security areas.  Among the panels topics:  homeland defense, international issues, chemical and personnel security, supply chain, CFIUS, immigration, detention of terror suspects, cybersecurity, privacy, homeland security grants, and H1N1.

Among the keynote speakers – Senator Susan Collins, Ranking Member of the Senate Committee on Homeland Security and Government Affairs Committee,  W. Craig Fugate, the Administrator of  FEMA, and New York Police Commissioner Ray Kelly.

Two very different conferences offering different perspectives on how to address homeland security problems.  Stay tuned to any announcements or surprises that might come from either conference.

The incident yesterday in Austin, Texas raises questions on what is terrorism or, more specifically, what is domestic terrorism.  Reports have varied on whether yesterday’s attack, in which 53 year old Andrew Joseph Stack III – after setting fire to his house  crashed a Piper Cherokee PA-28 into a building housing nearly 200 IRS employees, is an act of terrorism.  He left behind a suicide note, ranting about taxation in the U.S. and the IRS.

In a statement, the Department of Homeland Security said “”At this time, we have no reason to believe there is a nexus to terrorist activity. We continue to gather more information, and are aware there is additional information about the pilot’s history.”  The White House gave a more tempered answer, with White House Press Secretary Robert Gibbs telling reporters,  “I am going to wait, though, for all the situation to play out through investigation before we determine what to label it.” Austin Police Chief Art Acevedo called the incident “a criminal act by a lone individual.”  Meanwhile, Congressman Michael McCaul (R-TX), a Member of the House Homeland Security who represents the area hit,  suggested it was an act of terrorism, saying, “We saw a deliberate and intentional attack against a federal building,” he said. “It’s something that’s exposed a weakness we haven’t seen since 911… that airplanes can fly into buildings.”

For what it is worth, the New York Times ran a piece entitled “In Plane Crash Coverage, Networks Use the Word ‘Terrorism’ With Care,” detailing how the various outlets used and didn’t use the word terrorist and criminal.

So was the incident a terrorist attack?

Under Section 802 of the USA Patriot Act, a person engages in “domestic terrorism” if he commits an act “”dangerous to human life”" that is a violation of the criminal laws of a state or the United States, if the act appears to be intended to:  (i) intimidate or coerce a civilian population; (ii) influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination or kidnapping.  Additionally, the acts have to occur primarily within the territorial jurisdiction of the United States.

At face value – the incident would appear to fit within what is a very broad definition of terrorism.  Let’s take a look:

• Stack flew his plane into a building — an act that is certainly “dangerous to human life” and “a violation of criminal laws.”
• It is arguable that he was trying to influence the policy of the government or, more likely, affect the conduct of the government by mass destruction.  In his suicide note, he says “Violence not only is the answer, it is the only answer.”  He also says, in referring to the IRS and taxation, “I am finally ready to stop this insanity. Well, Mr. Big Brother IRS man, let’s try something different; take my pound of flesh and sleep well.”

Of course, the bigger question – does it really matter how this incident is labeled?  The individual committing the act perished in the attack.   The definition of domestic terrorism is relevant mostly to the legal means of gathering information in the investigation, allowing for the seizure of assets, disclosure of educational records, and, ironically, the disclosure of taxpayer information. It also has implications for living individuals who have been labeled as terrorists, including the banning of their ability to handle sensitive biological materials. In this case, the  act, however you want to label it, has been committed.   Many of the materials above could assumingly be gained through the criminal process.

So does it matter?  Besides the statistical notekeeping on incidents, we also must think of the psychological effects of whether the act is criminal or terrorist and how that affects the citizenry’s behavior. There have been studies on these issues and I would welcome comments from those who are experts or more knowledgeable about this effect.

One last note –  the incident could also raise questions about the Federal Protective Services, which has long been responsible for the protection of government buildings and has faced numerous personnel, morale, and operating challenges within DHS.  To be fair, however, how the FPS could have prevented a plane crash into a building in its current operational mode, is hard to say.   In any event, expect hearings and assessments on how to better protect  government buildings around the country.