Tag: civil liberties

June’s Cato Unbound: The Snowden Files, One Year Later

This month at Cato Unbound, we’re discussing Edward Snowden’s NSA revelations.

We mostly know the story, but it bears repeating: One year ago this week, Glenn Greenwald wrote a news story that would change the world forever. In it, we learned that the National Security Agency had been secretly collecting enormous amounts of telephone metadata on what were presumably ordinary American citizens. The agency had done so without a warrant and without suspicion of any indiviudal person. The revelation changed forever how Americans think about national security, privacy, and civil liberties in the digital age.

More revelations soon followed. Among many others, these included NSA surveillance of web activitymobile phone location data, and the content of email and text messages. The NSA also conducted many highly embarrassing acts of surveillance against allied or benign world leaders, including German Chancellor Angela Merkel and the conclave that recently elected Pope FrancisIt had subverted commonly used encryption systems. It had co-opted numerous tech companies in its plans. Its leaders had repeatedly lied to, or at the very least misled, the U.S. Congress

How far should surveillance go? What has been the value of the information gained? What have we given up in the process? What are the risks, should malign actors ever get their hands on the controls of the system?

We are able to ask these questions today because of one individual: Edward Snowden, a systems administrator for the NSA who chose to make public the information to which he had access. We have no choice now but to debate it. That’s simply what democracies do whenever such momentous information becomes public.

Joining us at Cato Unbound this month are four individuals with extensive knowledge in the fields of national security and civil liberties: Cato Senior Fellow Julian Sanchez, Brookings Institution Senior Fellow Benjamin Wittes, Georgetown University Professor Carrie F. Cordero, and independent journalist Marcy Wheeler. Each brings a somewhat different perspective on the matters at hand, and we welcome them all to what is sure to be a vigorous debate.

Richard Epstein’s Ricochet Post on the NSA

Over at the Ricochet website, Richard Epstein elaborates on his defense of the NSA surveillance programs that were recently exposed by Edward Snowden.  In this post, I want to scrutinize some of Epstein’s observations and arguments.

Epstein begins by waving off the track record of government abuse generally.  Forget about the recent IRS scandal and the Associated Press wiretaps, he says, we must focus instead on the “parts of the government” that are organized to address terrorist activity.  According to Epstein, those parts of the government “seem to have performed well.”  Thus, he concludes, we should have confidence in the federal government’s efforts to stop terrorists.

Let’s take a closer look at the “parts of the government” that address terrorism:

•    The Federal Bureau of Investigation:  The Inspector General of the Department of Justice found that between 2003 and 2007, the FBI violated the law or government policies as many as 3,000 times as agents collected phone and financial records.  A few years later, another investigation found that the FBI repeatedly broke the law while monitoring telecommunications.  Major telecom companies had their employees detailed to work in FBI office space and they would respond to very informal verbal requests for phone records, including the “calling circles” of certain reporters.  One FBI agent said it was like having an ATM next to his desk.

•    The Central Intelligence Agency: It is still hard to believe that the American government hid prisoners from the Red Cross and engaged in torture, but it happened.  In 2005, CIA Director Porter Goss went on a TV show and said “What we do does not come close to torture … We do debriefings.”  The American public was repeatedly misled about the prisoner policies, but we later learned about the “black sites” and “ghost prisoners.”  The CIA also destroyed audio and video tapes of its interrogation practices even after the federal courts issued orders to preserve such evidence.

•    The Pentagon:  We have also seen problems in the U.S. military.  The Pentagon kept a database of persons who protested against the Iraq war.  We also know that American prisoners, such as John Walker Lindh and Jose Padilla, were badly mistreated while in military custody.  And those were among the most highly publicized cases.  (The treatment of Bradley Manning is worth mentioning even though he is not an accused terrorist.)  For the non-publicized cases, let’s just recall the letter from U.S. Army Captain Ian Fishback to Senator John McCain: “Despite my efforts, I have been unable to get clear, consistent answers from my leadership about what constitutes lawful and humane treatment of detainees. I am certain that this confusion contributed to a wide range of abuses including death threats, beatings, broken bones, murder, exposure to elements, extreme forced physical exertion, hostage-taking, stripping, sleep deprivation and degrading treatment. I and troops under my command witnessed some of these abuses in both Afghanistan and Iraq.”   

A Brief Civil Liberties Quiz

See if you can spot the civil-liberties victory:

  1. The Supreme Court says the government can put your DNA in a national database, even if you were wrongly arrested.
  2. The State of Mississippi imposes mandatory collection of the DNA of babies born to teenage moms, neither of which is suspected of a crime.
  3. The Department of Justice is tracking and threatening to prosecute reporters, for the crime of reporting.
  4. The National Security Agency is collecting everyone’s phone records, even if they suspect you of nothing.
  5. The U.S. Senate kills a bill that could lead to a registry of law-abiding gun owners.

Answer: #5. 

Those crazy senators are looking less crazy all the time. 

The President’s Drone Memo

Yesterday, a memo describing the president’s legal justifications for drone attacks against U.S. citizens was obtained and published by NBC’s Michael Isikoff. The memo is a disturbing assertion of discretionary executive power that should concern and frighten all Americans. Unfortunately, the secretive use of drone attacks is one of the few areas of bi-partisan consensus in this highly divisive town, and the public still seems to resoundingly support current counter-terrorism policies.

Not being a foreign policy expert, I will not get into the broader questions of counter-terrorism policies. I agree, as I think most Americans would, that there are times in which the government can justifiably use lethal force against even its own citizens. As always, however, the devil is in the details, and here the details are encapsulated in the broad, discretionary language of the memo. Abstractly agreeing that there are times where a killing is justified does not answer who will determine when to use such force, what standards they are expected to uphold, and what possibilities of review exist for mistakes.

These standards—the “who,” the “how,” and the “possibility of review”—are at the core of the Western legal tradition. Putting process—that is, how something is determined—on equal level with substance—what is determined—is one of the Western legal tradition’s most important contributions. The goal of a legal system is not just to reach the correct result, but to reach that result via a just, open, and reviewable process. Fundamentally, these principles are concessions to our inevitable predilection for errors in thinking, judgment, and fact-gathering. The lynching of an obviously guilty child molester is problematic not just because of the disturbing result, but for how that result was determined.

Those are the principles that we should hold dear when analyzing the memo. Perhaps every drone attack has been the correct call (something we know isn’t true), and high-level officials certainly care about civilian casualties. Nevertheless, if we believe in the principles of the Western legal tradition, we shouldn’t okay with this power if it were in the hands of Mother Theresa.

Guns in the Capital City

During his news conference yesterday, President Obama said he was interested in more firearms research and warned that those who opposed his legislative agenda might try to “gin up fear.”  Those are interesting claims.  Let’s take a brief look at some recent history here in the District of Columbia.

In 2007, when a federal appellate court ruled that DC’s strict gun control laws were unconstitutional, then-Mayor Adrian Fenty told reporters he was “outraged.”  The idea that DC residents could keep a gun in their home for self-defense, he feared, would bring more crime and violence.  Mayor Fenty and the city’s lawyers appealed the Heller case to the Supreme Court, but lost.

It’s been several years since that landmark legal battle – so what happened?  

In yesterday’s Wall Street Journal, a former DC prosecutor wrote:

Since the gun ban was struck down, murders in the District have steadily gone down, from 186 in 2008 to 88 in 2012, the lowest number since the law was enacted in 1976. The decline resulted from a variety of factors, but losing the gun ban certainly did not produce the rise in murders that many might have expected. The urge to drastically restrict firearms after mass murders like those at Sandy Hook Elementary School last month and in Aurora, Colo., in July, is understandable. In effect, many people would like to apply the District’s legal philosophy on firearms to the entire nation. Based on what happened in Washington, I think that would be a mistake. Any sense of safety and security would be a false one.

Romney Sidesteps Questions on Locking Up Citizens

That’s the  story in today’s Washington Times.

Here’s an excerpt:

Mitt Romney sidestepped questions Wednesday about whether he would have signed the National Defense Authorization Act (NDAA) that authorizes the indefinite detention of terror suspects, including American citizens, saying he didn’t have enough information on the law.

Responding to a question at a town hall style meeting at a large manufacturer here, the Republican presidential nominee said he will take a look “at that particular piece of legislation” and said that when it comes to the issue of indefinite detention he would try to strike a balance between protecting personal liberties and protecting the nation from terrorist attacks.

“Detain”  and “detention”  are  euphemisms for “jail” and “imprison.”  Don’t fall for that.

More here and here.

Eleven Years after 9/11, Terror Effects Persist

A couple of years ago, Cato published a book, Terrorizing Ourselves, that critically examined American counterterrorism efforts.

Since that time, the United States was able to put Osama bin Laden to rest. But even this dramatic and yearned-for development, already the stuff of fable, hasn’t been able to temper the level of self-terrorization in the American public.

I’ve been sorting through poll data about terrorism from 9/11 to the present day. Although there are some temporary bumps and wiggles in reaction to events during the course of those 11 years, there has been very little, if any, decline in the degree to which Americans express anxiety about terrorism.

That is, for the most part there has been little change since late 2001 in the numbers who say they are worried that they will become a victim of terrorism, consider another major attack in the near future to be likely, are willing to trade civil liberties for security, have confidence in the government’s ability to prevent or to protect them from further terrorism, or think the United States is winning in the war on terrorism.

I have written a fuller account here in Sunday’s Philadelphia Inquirer. And there are some more extensive ruminations on what I call the “terrorism delusion” in the current International Security. That article deals with the exaggerations of the threat presented by terrorism and with the distortions of perspective these exaggerations have inspired—distortions that have in turn inspired a determined and expensive quest to ferret out, and even to create, the nearly nonexistent. It also supplies a quantitative assessment of the costs of the terrorism delusion.

Several of the poll trends I use for my conclusions are posted here.

As the Inquirer piece points out, the lack of change is quite remarkable given that no Islamist terrorist has been able to detonate even the simplest of bombs in the United States, there has been no sizable attack in the country, bin Laden is dead, alarmist hype coming out of Washington has declined (though Harvard continues to give it the old college try), and an American’s chance of being killed by a terrorist is about one in 3.5 million per year.

I conclude in the Inquirer piece that it seems to suggest that the public is

likely to continue uncritically to support extravagant counterterrorism expenditures including incessant security checks, civil liberties intrusions, expanded police powers, harassment at airports, and militarized forays overseas if they can convincingly be associated with the quest to stamp out terrorism.

Both pieces use a quote from anthropologist Scott Atran: “Perhaps never in the history of human conflict have so few people with so few actual means and capabilities frightened so many.” Much of that fright, it appears, has proven to be perpetual.

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