What happened to NSA reform and where does it go from here?

Over eighteen months have passed since Edward Snowden first disclosed the extent of the National Security Agency’s (NSA) surveillance programs. [1] Snowden revealed two main programs: the business records program that includes phone history collections, and the PRISM program that collects information about electronic communications. The business records program operates under Section 215 of the PATRIOT Act. [] PRISM operates under Section 702 of the Foreign Intelligence Surveillance Act (FISA). [3] In the aftermath of the disclosures, over a dozen bills were introduced in the Congress to reign in the NSA. [4] In May of 2014, the House passed a limited version of the USA Freedom Act, which shifted the burden for preserving phone records to telecommunication companies; notably, by the time the House voted on a final version, the bill had lost the support of privacy advocates and the technology community. [5] The Senate has not voted on the bill. [6]

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The reform proposals vary in detail but mainly focus on 1) narrowing requirements for Section 215 collection orders; 2) increasing disclosure from the Foreign Intelligence Surveillance Court (FISC), the government, and companies compelled to produce records; and 3) reforming the FISC’s makeup and procedures. [7] The complexity of the competing interests makes reforming the entire process very difficult. For example, just one specific reform proposal—making hearings before the FISC an adversarial process—is littered with complicated constitutional and policy implications. []

In the upcoming Congress with majorities in both chambers, Republicans may choose to focus on the economy, national security, health care, and immigration and the border before deciding to tackle NSA reform. At the very least, cohesion is needed between the various positions espoused by party leaders. Key Republicans have staked positions ranging from complete overhaul, to minor reforms, to maintaining the status quo. [9] [10] [11] [12]

Additionally, recent turmoil in the Middle-East and the increased focus on terrorism may have dampened the swell of public anger with the surveillance programs. A common argument of program supporters is that the only demonstrable harm of the surveillance is the fact that collections occurred. [13] Whether that is true may be debatable; but a divided Congressional leadership and an uptick in anti-terrorism sentiment do not likely bode well for significant NSA reform in the Congress.

So it appears for now the issue is left to the courts. Two notable cases are currently before U.S. circuit courts. In the D.C. Circuit, a three-judge panel just heard oral arguments in Klayman v. Obama on November 4th. [14] In the 2nd Circuit, a three-judge panel heard oral arguments in ACLU v. Clapper on September 2nd. [15]. The D.C. Circuit is considering a district court decision finding Section 215 likely unconstitutional, while the 2nd Circuit is considering a district court decision upholding the surveillance programs.

Both cases highlight the principles arguments of each side. The government argues that the plaintiffs in each case do not have standing because they cannot point to specific harm. The government next argues that the call history is voluntarily submitted to third party companies and is thus unprotected by legal interest. [16] For this argument the government relies on the 1979 Supreme Court case Smith v. Maryland, where the Court held that dialed phone numbers could be obtained by police without a warrant. [17] Finally, the government stresses in both cases that the collections are of metadata and not of content. [18]

The advocates argue that the pervasive and indiscriminate collection of data, approved by a court (the FISC) that only hears the government’s side of the argument, is in itself a violation of the Constitution. [19] They define the analysis of metadata as the equivalent of searching content. [20] The advocates also point to previous violations of FISC orders by the NSA as a key reason for stronger minimization procedures. [21]

Two proximate and likely distinguishable circuit court rulings could very well provoke consideration by the Supreme Court. In addition to those two cases, telecommunication companies have, while taking some criticism for complying with the records orders, also opposed the NSA programs in several instances. Facebook, Microsoft, Google, Yahoo, and Twitter have all challenged compulsion orders or fought for more disclosure. [22] [] [] [25] [26]

With comprehensive reform looking more complicated in Congress than last year after the Snowden disclosures, Americans will be anxious to see the pending opinions by the D.C. Circuit and 2nd Circuit Courts of Appeals.

[] ANDREW NOLAN ET AL., CONG. RESEARCH SERV., R43260, INTRODUCING A PUBLIC ADVOCATE INTO THE FOREIGN INTELLIGENCE SURVEILLANCE ACT’S COURTS: SELECT LEGAL ISSUES (2013).

Image courtesy of DonkeyHotey via Flickr (license)

Article 2(4) and the Rise of the Non-State Actor

In 1993, Samuel Huntington published The Clash of Civilizations. Huntington theorized that nation states will remain powerful actors in world affairs, but the principal conflicts of global politics will occur between nations and groups of different civilizations. While Huntington’s theory is not perfectly applicable to the world today, it is not without salience. A considerable portion of contemporary conflict arises from the action and reaction to non-state actors.

The rise of the non-state actor in global conflict is problematic because it threatens the integrity of certain aspects of the UN Charter which was written, drafted, and ratified during a time when the “principal conflicts of global politics” were between nation states. The UN Charter, Art 2(4) reads: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” Contemporary national security concerns put significant stress on this section of the charter. Targeted killing and capture may be the most effective and efficient form of defense the United States has against non-state aggressors such as al-Qaeda, but such practice often conflicts with Article 2(4).

Article 2(4) does not permit the targeted killing or capture of individuals residing in other states without consent, as such use of force would violate the other state’s sovereignty. However, in instances of targeted killing or capture, the United States has generally circumvented the issue of state sovereignty by relying on the 2001 Authorization for the Use of Military Force (AUMF) or Article 51 of the UN Charter.

Washington asserts the “right to self-defense” under Article 51 permits the killing or capture of high-level al-Qaeda operatives in other states, regardless of that state’s consent. This broad interpretation of Article 51, as well as assertions of justification under domestic law (AUMF), suggests the rise of non-state actors makes state sovereignty and Article 2(4) only a secondary concern.

On October 5, 2013, U.S. forces captured al-Qaeda leader Nazih Abdul-Hamed al-Ruqai, commonly known as Abu Anas al-Liby outside of Tripoli. Anas al-Liby is accused of masterminding the bombing of U.S. embassies in Kenya and Tanzania in 1998. Subsequently, he was indicted in a federal court in Manhattan and placed on the FBI’s most wanted list. Washington’s assertion that al-Liby was a “legal and appropriate target” is valid; given the charges against al-Liby, the United States had the right and the obligation to take the necessary steps to apprehend him. Under domestic law, the United States committed no error in his capture. Furthermore, a broad interpretation of Article 51 might also affirm the legality of this capture. Given al-Liby’s alleged involvement in past attacks and his association with al-Qaeda, the United States could argue the capture was a necessary and proportionate force made in self-defense.

However, under Article 2(4), al-Liby’s capture loses international legality. Libya is a member state of the United Nations, making the use of force by another state in Libyan territory absent Libya’s consent expressly prohibited by Article 2(4). In al-Liby’s case, the issue of consent is unsettled:  Libya maintains that it did not authorize the “kidnapping” of al-Liby, while U.S. officials suggest that Libya did consent to the capture operation. By contrast, a failed raid targeting al-Shabab leader, Ahmed Godane, in Somalia coincided with the raid in Libya but had the express consent of Somalia’s prime minister.

At best the international legality of al-Liby’s capture is unclear under Article 2(4).  Yet according to legal scholar, Stephen Vladeck, “[T]he legality of the raid under international law shouldn’t—and almost certainly won’t—bear on the ability of the United States to try al-Libi in a criminal court”. Vladeck supports this statement by citing the Ker-Frisbie doctrine, which holds that criminal suspects cannot object to how they got into court, even if there are international law concerns with the means by which they were captured.

Using domestic law to circumvent an international standard that does not effectively consider current international circumstances may very well be the best way to serve U.S. national security concerns. However, such a practice sets a precedent that the U.S. doesn’t necessarily want other states to follow. While the increasingly salient role of non-state actors in global conflict puts pressure on Article 2(4), state sovereignty is still an important concern. In some situations, such as the capture of al-Liby, breaking from the language of Article 2(4) supplies the best remedy for a security threat. Nonetheless, the circumvention of Article 2(4) creates legal ambiguity around an international standard that carries with it significant national security interests.

Are you safer on flights? Maybe not…

[twitter name=”name”]Since 2001 the United States has taken many precautions to guard against another similar tragedy from occurring. One of those changes was the institution of the Federal Flight Deck Officer Program (FFDO) in which airline pilots can volunteer to undergo training to carry a gun in the cockpit during flights in an effort to prevent a hijacking.

While there has been wide support for this program from both Republicans and Democrats alike, President Obama’s latest proposed budget for 2013 is cutting much of the funding for the program. “As recently as last March, Homeland Security Secretary Janet Napolitano voiced support for the program, agreeing with Rep. Chip Cravaack, R-Minnesota, a former airline pilot and FFDO, that it was a vital part of the country’s layer defenses.”

This program received $25 million in the 2012 budget but under the proposed 2013 budget, the funding was cut in half, down to $12 million. The program currently costs $15 per flight for an armed pilot. This program is much cheaper to administer than the Federal Air Marshall Service which currently has a budget of $964 million. Under the 2013 budget, the Federal Air Marshall Service also suffered a cut of 4%, equaling $927 million. This

cut was justified because of “efficiencies and program changes that leverage other aviation security system enhancements, allowing for more efficient mission deployments focused on high-risk flights”.

This is a shocking cut to many in the aviation field and security proponents because it was known to be a quite popular, effective and rather safe program which was an efficient use personnel and funds. This program acted as a substitute to a Federal Marshall on-board a flight but this program offered a wider array of flights the safety and protection that an armed pilot offers against the fear

of hijacking by terrorists. This severe cut in the program’s budget sends a message to not only pilots but the American people that the safety of flights is not important enough to allocate an adequate budget to run the program effectively. Hopefully President Obama will reconsider this budget cut before his final budget goes into effect for 2013.

To read more about the cuts in the Flight Deck Officer Program, go to: http://www.cnn.com/2012/02/13/us/budget-cuts-armed-pilots/index.html

Picture from:
http://www.wired.com/autopia/2012/01/armed-airline-pilots-want-authority-beyond-cockpit/

First Guantánamo Detainee Tried in Federal Court is Aquitted

The first former Guantánamo detainee to be tried in federal court, Ahmed Khalfan Ghailani, was convicted of one count of conspiracy to destroy government buildings and property.  He was acquitted of the other 280 charges, all stemming from the 2008 bombings of U.S. Embassies in Tar es Salaam, Tanzania and Nairobi, Kenya, which killed 244 people, including 12 Americans. Ghailani could be sentenced to 20 years to life.

This first case of a detainee being tried in a federal court exposed many of the difficulties that the Obama administration will face if it wants to close the Guantánamo detention facility and try the detainees in federal courts, rather than military commissions.  Unlike the Commission that tried detainees such as Omar Khadr, which used the flexible evidentiary standards of the military commission system, prosecutors in federal courts must adhere to strict evidentiary rules.  Hussein Abebe is a government witness who would have testified that Ghailani had purchased the TNT used to blow up the Tanzanian embassy.  However, interrogators in a CIA black site, one in which Mr. Ghailani was being held, found the identity of Abebe while being what defense attorneys say was torture.  Additionally, the government chose not to introduce statements made by Mr. Ghailani while in CIA custody and while at Guantánamo, statements the prosecution said amount “to a confession,” because the statements were “coerced” and “inadmissible,” according to the defense.

Read more at New York Times.

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Imam Involved in NYC Plot Pleads Guilty; Ordered to Leave Country

An Afghanistan-born imam linked to the suspects in an aborted suicide bomb plot against New York City subway stations will not serve jail time, but was ordered to leave the country within 90 days. On Thursday Ahmad Afzali pleaded guilty to lying to the FBI during the investigation into the NYC subway bomb plot.

Afzali was sentenced to time served, four days, although he faced up to six months after pleading guilty.

Speaking emotionally to the court, he said, ”Honest to God, it was never my intention to help those idiots for what they do in the name of Islam,” he said, referring to the terrorist suspects.

The imam said he had wanted to help authorities in the investigation of the threat but lied under grilling by the FBI about his phone conversations with admitted al-Qaeda associate Najibullah Zazi. Afzali lied when he said he never told Zazi that he was under surveillance in New York.

He said he is going to spend as much time as possible with his family before leaving. He does not expect to return to Afghanistan, where he left as a child with his family, but he is not sure where he will go. If Afzali does not leave the country within 90 days, he will be deported to Afghanistan.

The judge noted he is not allowed to return without special permission from the U.S. government.

Authorities sought help last fall from the imam, a previously reliable police source, as they scrambled to thwart the plot by Zazi, a Colorado airport van driver who is the principal suspect in the case.

Two other men suspected of direct roles in the plot, Adis Medunjanin and Zarein Ahmedzay, have pleaded not guilty to charges they sought to join Zazi in what prosecutors described as three coordinated suicide bombing attacks on Manhattan subway lines.The attacks were planned to be around the eighth anniversary of the Sept. 11 attacks.

Prosecutors say the attacks were modeled after the July 2005 bombings on the London transit system, in which four suicide bombers killed 52 people and themselves in an attack on three subway trains and a bus in London.

Police apprehended  Zazi’s car as it entered New York in September.

Another suspect was recently arrested in Pakistan.

See NPR.