Cuba Isn’t Worth the Headache. But See Colombia.

When ‘Cuba’ and ‘national security’ are mentioned in the same sentence, they tend to be followed by phrases like ‘refugee wave,’ ‘Marxist revolutionaries’ and ‘missile crisis.’ The steps towards normalization of relations with the old Communist foe have caused reactions as varied as the embargo is old, but the ship has set sail and Americans should start accepting that this country’s future with Cuba is going to look a lot different than it did to their parents. Or grandparents. Or great-grandparents. Continue reading “Cuba Isn’t Worth the Headache. But See Colombia.”

United States Sanctions on Iran after the Nuclear Deal

The Iran Nuclear Arms Deal is a landmark, but this deal has been heavily criticized due to the United States economic penalties toward Iran. The circumstances in Iran has put the United States in a difficult situation as they have had to rely on sanctions to deter Iranian actions, but Iran has complied with the deal and expects more of an economic boom. This has led other countries in Europe and Asia uncertain whether to deal in legal business with Iran due to United States laws in sanctions and financial regulations.

The Iran Nuclear Deal stated that Iran would sacrifice two-thirds of its ability to enrich uranium, which is used to make the core of a nuclear bomb, and to be monitored by the International Atomic Energy Agency (IAEA).[1] Iran would agree to IAEA inspectors monitoring its nuclear plants and other facilities. Once the IAEA has confirmed that Iran has taken these steps, America would lift nuclear-related economic sanctions.[2] These sanctions include oil embargos and financial restrictions.[3] By lifting these economic sanctions, it was estimated $100 billion of frozen Iranian assets would be released. Iran would remain subject to a United Nations arms embargo for five years.[4]

The United States government has engaged in foreign trade with Iran even though it has forbidden most American commerce with Iran.[5] The United States implements sanctions through the Treasury Department Office of Foreign Assets Control (OFAC).[6] These sanctions apply to United States companies, and anyone in the United States.[7] If companies in the Untied States were to trade with Iran they could be fined and prosecuted for civil violations that do not require a showing of intent or knowledge, and are punishable by heavy penalties.[8]

These sanctions and regulations have caused uncertainty for Asian and European government and companies doing legal business due to the fear of being prosecuted by the United States.[9] Since United States banks can not do business in Iran, there is a prohibition of transactions in dollars.[10] This is a large issue as it is a main business currency through the United States financial system.[11] This causes international banks hesitant in processing Iranian transactions, due to fear that the United States prosecuting these banks because of sanctions they have implemented in Iran.

Even though some sanctions have been lifted it is not clear what type of trading is still allowed with Iran.[12] Furthermore, Iran’s action in the area is seen as hostile. They continue to test ballistic missals.[13] The United States fears that these ballistic missals could be used one day to deliver a nuclear payload.[14] Even though these tests are not covered by the nuclear deal the United States has responded by placing sanctions on Iranian business and individuals but not on the nation.

United States sanctions upon Iran have caused fear of prosecution to business and banks that deal with Iran. This in some ways has caused Iran not to see the large economic boom they expected. Due to Iran’s continued ballistic testing in the area, and fear that these missals could one day carry a nuclear payload, the United States has sanctioned Iran even more. This causes the United States to be in a precarious situation as one of the reasons to the nuclear deal was to help Iran get its economy back on track, but at the same time the United States must implement sanctions on hostilities, and walking away from the deal would cause further destabilization in the area.

 

[1] David Blair, A Summary of the Iran Nuclear Deal, (Jul. 14, 2015), http://www.telegraph.co.uk/news/worldnews/middleeast/iran/11739214/A-summary-of-the-Iran-nuclear-deal.html

[2] Id.

[3] Id.

[4] Id.

[5] U.S. Census Bureau, Trade in Goods with Iran, (Dec. 12, 2015), https://www.census.gov/foreign-trade/balance/c5070.html

[6] Alacra Compliance Primer, Enforcement Actions for U.S. Sanctions Violations Offer Lessons for Compliance, (Sept. 14, 2014), https://www.alacra.com/alacra/help/alacracomplianceprimer3.pdf

[7] Id.

[8] Id.

[9] Matthew Lee, Analysis: Iran Nuclear Deal Puts U.S. in Bind Amid Criticism, (Apr. 11, 2016), http://abcnews.go.com/Politics/wireStory/analysis-iran-nuclear-deal-puts-us-bind-amid-38301740

 

[10] PRESSTV, Banks still afraid of US fines to process Iran deals, (Mar. 23, 2016), http://www.presstv.com/Detail/2016/03/23/457187/Banks-still-afraid-of-US-fines-to-process-Iran-deals/

[11] Id.

[12] Tom Arnold and Jonathan Saul, Iranians Exasperated as U.S. sanctions frustrate deal making, (Mar. 22, 2016), http://www.reuters.com/article/us-iran-trade-finance-idUSKCN0WO1Y3

[13] Fox News, Iran to US: Missile Program “not open to negotiation,(Apr. 10, 2016), http://www.foxnews.com/us/2016/04/10/iran-says-missile-program-is-not-negotiable.html

[14] Id.

When Free Speech Becomes Material Support: § 2339 and the Private Sector’s Role in Combatting Terrorist Social Media Propaganda

It is well documented that ISIS and other terrorist organizations have made great use of social media platforms to advance their propaganda and to recruit. In response, the United States government has increased its pressure on the private sector to take a more active stance in flagging and removing terrorism-related content. [1] However, the response from the major social media forums has been hesitant. There are two issues that will predominate in the debate of how to combat the social media recruitment techniques of terrorist organizations. First, to what extent can and will social media companies go to root out terrorist-recruitment content and user accounts; and second, will the United States be able to effectively identify and prosecute users who post content deemed to be supporting or advocating terrorist organizations.

At the heart of the tensions concerning removal of social media content is the debate over free speech and consumer privacy against combatting the proliferation of terrorist propaganda. Social media sites like Twitter promote themselves as a global platform of free thought and exchange, and it is perhaps because of this outspoken stance that Twitter has been the primary forum for the spread of terrorist propaganda. [2] However, Twitter has in recent months taken precautions to combat this propaganda campaign, deactivating nearly 125,000 user accounts it had deemed affiliated with supporting terrorism in a six-month span. [3] Twitter has also expanded its review board and now claims to suspend accounts on an hourly basis in order to effectively respond to complaints or flagged materials in a shorter amount of time. [4] Major social media sites, because they are comprised of user-generated content, respond to complaints or flags and then review the posts before taking them down. Twitter released an official comment on February 5, stating, “There is no ‘magic algorithm’ to find tweets and no set standard for determining if it is promoting terrorism.” [5]

Congressional response has been mixed. Rep. Adam Schiff of California and member of the House Permanent Select Committee on Intelligence called Twitter’s announcement “a very positive development.” [6] In stark contrast is Rep. Ted Poe, who criticized tech companies such as Facebook, Instagram, and Twitter for being hesitant to act. He stated “To put it bluntly, private American companies should not be operating as the propaganda megaphone of foreign terrorist organizations…” [7]

The most immediate concern is whether social media companies’ decision to engage in this review process presents First Amendment issues. The slow response to the rise of extremist groups using social media is largely a result of hesitancy to clamp down on free speech and the difficulty in creating standards of review to determine which posts and accounts to take down. [8] Even if the social media companies decide to strengthen their stance against potential terrorist recruitment accounts or posts, the potential exists for the to open new accounts and continue to post terrorism-related content until that new account is flagged and removed.

An alternative method that the United States has already begun to explore is to prosecute users identified as American citizens who promote terrorism-related posts and tweets under 18 U.S.C. § 2339. The statute states that it is unlawful for “Whoever provides material support or resources… knowing or intending that they are to be used in preparation… [for aiding terrorist organizations].” [9] The relevant definition of material support provided in § 2339b refers to “any means any property, tangible or intangible, or service… expert advice or assistance.” [10] Expert advice and assistance is defined as “advice or assistance derived from scientific, technical or other specialized knowledge.” [11] The statute has most often been used to prosecute United States citizens providing financial, military, and strategic support to identified terrorist organizations, but Assistant Attorney General for National Security John Carlin has recently stated the potential exists for using the law to prosecute online media content deemed to provide “technical expertise” to a designated terrorist organization. [12]

However, recent case law developments could frustrate attempts to prosecute those who post content sympathetic to a terrorist organization. In the 2010 Supreme Court case Holder v. Humanitarian Law Project, United States citizens and domestic organizations had sought to provide support for lawful activities of two organizations that had been designated as foreign terrorist organizations. [13]. The organizations sought injunction against the enforcement of the § 2339 on the grounds that it violated their First Amendment right of freedoms of speech and association, and also that it failed for vagueness. [14] The Court upheld the statute based only on the fact that the plaintiffs were clearly engaging in training through its work with the two groups that would constitute expert advice and assistance. [15] The Court noted that the statute only reaches material support when the activity is coordinated with or under the direction of a designated foreign terrorist organization; independent advocacy that might be viewed as promoting the group’s legitimacy is not covered. [16] To succeed in prosecuting United States citizens based on the Court’s holding in Holder, the content must be more specific than a generalized tweet of support or sympathy. Thus, the fact that a message could be used as a general recruitment tool is unlikely to meet the legal standard fashioned in Holder and thus will be protected as political speech under the First Amendment.

Ultimately, the private sector’s current hesitance and the judicial constraints on § 2339 limit the effectiveness of the current tools to fight against the ISIS and terror-affiliates social media propaganda campaign. Whether additional legislation will be adopted to effectuate more progress in the anti-ISIS campaign on the social media front is uncertain at this time. However, given the current landscape, a more coordinated effort with the private sector and exploring legislative options will likely be the starting point for a strategy moving forward.

 

 

 

 

[1] Damian Paletta, U.S. Working on Plan to Scrutinize Social Media in Visa Review, W.S.J., 14 Dec. 2015. Available at http://www.wsj.com/articles/u-s-working-on-plan-to-scrutinize-social-media-in-visa-reviews-1450122633?mod=djemalertNEWS.

[2] Scott Higham & Ellen Nakashima, Why the Islamic State Leaves Tech Companies Torn between Free Speech and Security, Wash. Post, 16 July 2015. Available at https://www.washingtonpost.com/world/national-security/islamic-states-embrace-of-social-media-puts-tech-companies-in-a-bind/2015/07/15/0e5624c4-169c-11e5-89f3-61410da94eb1_story.html?km&kmap=1

[3] Yoree Koh, Twitter Suspends 125,000 ISIS-Related Accounts in Six Months, W.S.J., 5 Feb. 2016. Available at http://blogs.wsj.com/digits/2016/02/05/twitter-suspended-125000-isis-related-accounts-in-six-months/

[4] Jessica Guynn & Elizabeth Weise, Twitter Suspends 125,000 ISIL-Related Accounts, U.S.A. Today, 5 Feb. 2016. Available at http://www.usatoday.com/story/tech/news/2016/02/05/twitter-suspends-125000-isil-related-accounts/79889892/

[5] Id.

[6] See Footnote 3.

[7] Candice Lanier, Free Speech or Material Support to Terrorists? Twitter Begins Cracking Down On Hateful Tweets, Medium Corp. 20 Apr. 2015. Available at https://medium.com/@CandiceLanier/http-betanews-com-2015-04-17-twitter-moves-non-us-accounts-to-ireland-away-from-the-nsa-ee6b3027df57#.mceh4wq1y.

[8] See Footnote 3.

[9] 18 U.S.C. §2339(a) (West 1996).

[10] § 2339(b).

[11] Id.

[12] See Footnote 7.

[13] Holder v. Humanitarian Law Project, 561 U.S. 1, 9-10 (2010).

[14] Holder, 561 U.S. at 10-11.

[15] Holder, 561 U.S. at 22-23.

[16] Holder, 561 U.S. at 32.

iConstitution: How Apple is using the Constitution as a basis for its argument against the FBI

It’s quite difficult to imagine exactly what the Framers of the Constitution would think of the construal of their document to protect the locked-away iMessages and data of the San Bernardino terrorists. Yet, the principles of the Constitution that Apple is using to rebut the arguments of the FBI protect the rights of the individual to privacy and due process in a succinct and powerful manner.[i]

Primarily at play are the First and Fifth Amendments, but Apple also relies upon an argument against the All Writs Act of 1789.[ii] The FBI is using the All Writs Act as its source of authority for the court order compelling Apple to create a new version of its operating system that would make it easier to access the iPhone’s password-protected data.[iii] Apple fears that the creation of such software would not only threaten the privacy of all Apple users, but would also place an undue burden on the company to either destroy the program after the FBI uses it or keep and protect it against the certain multitude of attempts by “criminals, terrorists, and hackers” to steal the software. [iv]

Apple’s First Amendment argument relies upon the established classification of computer code as speech.[v] The First Amendment, as it pertains to this issue, prohibits the making of any law abridging free speech.[vi] In this instance Apple argues that its interests are protected because the Supreme Court has clearly decided that First Amendment protections apply when the government attempts to compel speech.[vii] Apple cites Riley v. Nat’l Fed. of the Blind of N.C., Inc., which upholds the idea that the court must scrutinize attempts by the government to compel speech, and it will be allowed only when the request is of a scope narrow enough to obtain a compelling state interest.[viii] The FBI, Apple argues, does not meet this standard because it has produced nothing more than mere speculation of potentially relevant information on the phone.[ix] Further, any relevant information may be encrypted using non-Apple software in secure communication applications.[x]

The Fifth Amendment’s Due Process Clause is applied in an attempt to protect Apple from governmental conscription.[xi] The Fifth Amendment’s Due Process Clause states, “[n]o person shall … be deprived of life, liberty, or property without due process of the law…”[xii]Apple argues that a court order compelling the company to create a backdoor that unlocks the San Bernardino terrorists’ phone violates its Due Process because the government would be depriving Apple of its liberty.[xiii] The government cannot force a private company to perform actions that are excessively burdensome and “contrary to the company’s core principles,” and Apple contends that the FBI’s request that Apple creates software that allows access to this iPhone cannot succeed due to this protection.[xiv]

With respect to the FBI’s use of the All Writs Act, Apple maintains that the FBI’s order violates the two requirements developed through common law that are pursuant to all orders.[xv] The Act requires that orders “must not adversely affect the basic interests of the third party or impose an undue burden.”[xvi] Apple alleges that the FBI’s order fails the first requirement because it has a powerful interest in protecting its security systems and all Apple customers depend on the company for their privacy.[xvii] The FBI’s order fails the second requirement too, argues Apple, because Apple would be forced to create a program that undermines the security features the company spent years developing.[xviii] Further, if Apple is compelled to create such software, it would open the floodgates to a large number of parties seeking similar software.[xix] Apple would be forced to either build and destroy software for each phone they are compelled to break open or safeguard the software against certain numerous attacks by parties with dubious intentions, both of which are alleged to be an undue burden on the company.[xx]

Apple presents itself as the hero of the rights of private companies to protect personal privacy against valid governmental concerns. The company does not seek to negate the FBI’s need to access the San Bernardino terrorists’ iPhone data, but rather hopes to preserve and protect the rights of individuals at the cost of burdening the government. Apple’s reliance on integral amendments to the Constitution serve to bolster its stance and prove that though dated, the Constitution’s elasticity allows its application to the technological intricacies of the current times. The argument is powerful, but the FBI’s reliance upon the All Writs Act and public safety concerns may outweigh Apple’s protection of privacy.

 

[i] Apple Inc.’s Mot. to Vacate Order Compelling Apple Inc. to Assist Agents in Search, and Opposition to Govt.’s Mot. to Compel Assistance, 32:5.

[ii] Id.; Id. at 14:13,14.

[iii] Id. at 14:13,14.

[iv] Id. at 25:6-9.

[v] Id. at 32:15,16 (citing sources that treat computer code as speech under the First Amendment).

[vi] U.S. Const. amend. I.

[vii] Mot. to Vacate, 32:21,22.

[viii] Id. at 32:22-6 (citing Riley v. Nat’l Fed. of the Blind of N.C., Inc., 487 U.S. 781,796 (1988)).

[ix] Id. at 33:3-6.

[x] Id. at 33:8-10.

[xi] Id. at 34:10,11.

[xii] U.S. Const. amend. V.

[xiii] Mot. to Vacate, 34:14-17 (citing Costanich v. Dep’t of Soc. & Health Servs., 627 F.3d 1101, 1110 (9th Cir. 2010).

[xiv] Id.

[xv] Id. at 23:8,9 (citing United States v. Hall, 582 F. Supp. 717, 719 (E.D. Va. 1984).

[xvi] Id.

[xvii] Id. at 23:11-16.

[xviii] Id. at 23:20-22.

[xix] Id. at 24:6-8.

[xx] Id. at 24:17-19, 25:1,2.

 

 

 

National security trumps your constitutional rights, at least civilly

The D.C. Circuit recently held in Meshal v. Higgenbotham [1] that an individual cannot sue federal officials for damages stemming from illegal detention practices if the detention occurred abroad. Though the court’s reasoning might have been legitimate, it was also conflated.

The case was brought by an American of Egyptian descent who traveled to Somalia in 2006. When he attempted to leave after fighting broke out in the country, he was detained by U.S.-Kenyan-Ethiopian forces near the Kenyan border [2]. The F.B.I. further detained Meshal over a span of months, using “illicitly questionable” interrogation practices with the understanding that Meshal might be linked to al Qaeda. After he was eventually released, Meshal brought a lawsuit under the 1971 U.S. Supreme Court case, Bivens v. Six Unknown Agents, which allows private individuals to sue the federal government for certain violations [3].

The court regarded the mistaken detention as embarrassing, but ultimately rejected Meshal’s claim, citing to “special factors”. It specifically turned to the upset of the balance of powers. First, Congress has not spoken on the issue. There is nothing in Bivens  that allows the claim to extend extraterritorial under the facts of Meshal’s case. Second, the court noted it was not apt to rule on issues of national security, an area designated to the executive. The court stated, “while Bivens remedies for ill-executed criminal investigations are common, extraterritorial application is virtually unknown.” Further, it continued, “such a different context requires us to think anew.”

While it is reasonable that the court should not rule in an area that Congress has not spoken, the argument that national security is ‘new’ to the court is unfounded. So is the argument that inquiring into national security cases in itself pose a security threat. The dissent noted the majority was wrong to say inquiring into national security cases is a national security risk due to discovery having the potential to disclose sensitive information. [3] The dissent pointed to examples of instances where the court ruled on sensitive information. For example, some cases that press close on national security issues, the prosecution will attempt to protect certain documents from disclosure to defense. The court ultimately makes a decision as to whether the prosecution can instead provide summaries of what the documents purport to say, in order to protect the nation’s security interests. [4]. It almost seems that the court noted national security to bolster the decision to not recognize that someone who experiences torture deserves damages.

Despite this contradiction, perhaps a larger issue is that neither the majority nor the dissent acknowledged that constitutional violations in nearly the exact same instances have been recognized by this court, just not for monetary damages. In criminal cases, the court is not hesitant to consider cases deeply embedded in national security. For example, in 2010, the D.C. Circuit in al-Qurashi v. Obama, 733 F. Supp. 2d 69, 78 (D.D.C. 2010) [5] addressed the defendant’s argument that his statement made to a U.S. government agent in Pakistan was obtained in violation of his Due Process rights. While the court ultimately concluded the fact pattern indicated the statement was voluntary and not obtained in violation of his rights, the court recognized that constitutional rights applied to non-U.S. citizens abroad and it also was willing to consider the facts involved in an alleged mistreatment case abroad.

Despite the valid reason for not venturing into an area where Congress has yet to speak, the opinion implies that even if Congress did act, the court is nevertheless ill-equipped to hear a case that involves national security. The reasoning contradicts the reality that dealing with constitutional cases involving national security is not ‘anew’ to the courts and it is a reality that parallels the increasing awareness of international law and the involvement of the United States abroad. In failing to provide Congress with positive assurance that it can handle a claim like Meshal’s if given the opportunity, it is plausible that Congress may not act. Perhaps the United States is not ready to face the possibility that top U.S. officials may be prosecuted in their own country, not only for justified military attacks that inadvertently kill an American, but for any remote effect his or her action may have on an American abroad. Regardless, it is surprising that the court did not highlight the unfortunate predicament, nor its inability in the current situation to protect the people from our own government’s illegal torture abroad–the very same government that regards ‘liberty’ as its citizen’s most guarded right.

Citations:

[1] Meshal v. Higgenbotham, — F.3d —, 2015 WL 6405207 (D.C.C. October 23, 2015).

[2] Noah Feldman, Bloomberg View, Judges open black hole in Americans’ rights abroad. (October 30, 2015).

[3] Zoe Tillman, Legal Times, D.C. Circuit Divides Over American’s Claims of Torture. (October 23, 2015).

[4] David Mulock, Jurist, Objecting to Secret Evidence Under FISA. (February 24, 2012).

[5] al-Qurashi v. Obama, 733 F. Supp. 2d 69, 78 (D.D.C. 2010).

[6] United States v. Clarke, 611 F. Supp. 2d 12, 16 (D.D.C. 2009).

[7] Noah Feldman, Bloomberg View, Judges open black hole in Americans’ rights abroad. (October 30, 2015).