Tag: Counterterrorism

The Police Don’t Need More Power to Target Muslims

In the wake of the terrorist attacks in Brussels this week, presidential candidate and senator Ted Cruz called for increased law enforcement activity in American Muslim communities:

 We must empower law enforcement to patrol and secure Muslim neighborhoods before they become radicalized.

Pressed to clarify his remarks, Sen. Cruz called for the resurrection and nationalization of a now-defunct NYPD surveillance program directed at the Muslim community in and around New York City.  He argued that the “successful” program was shut down due to an excess of political correctness, leaving New Yorkers more vulnerable to the threat of terrorism.

The problem: even ignoring political correctness, the NYPD program was a failure by any reasonable standard.

In the aftermath of 9/11, the NYPD established a surveillance-based Demographics Unit.  The goal of this unit was to “map” certain (almost entirely Muslim) communities in and around New York City, placing them under expansive police surveillance in order to sniff out would-be terrorists before they could launch attacks.   

To achieve this mandate, the police infiltrated mosques, set up surveillance cameras around Muslim-owned businesses and residences, went undercover to monitor everyday conversations, and even infiltrated student groups at schools as far away as Yale and the University of Pennsylvania in order to monitor what students talked about, who they spoke to, and how often they prayed. 

The end result of years of Demographic Unit surveillance on American Muslims was… nothing. 

No convictions, no prosecutions, and, according to Assistant Chief Thomas Galati, not even a single legitimate lead. 

That’s not to say there were never any terrorist threats in New York during this time period, only that the expansive “patrolling and securing” of Muslim neighborhoods failed to produce any actionable intelligence about them.  A 2013 New York Magazine article contains an illustrative example: 

In September 2009, the National Security Agency intercepted an e-mail from a taxi driver named Najibullah Zazi to an e-mail address linked to one of Al Qaeda’s most senior leaders. The message contained the line “the marriage is ready.”

Marriage and wedding were among Al Qaeda’s favorite code words for attacks, referring to the day that a suicide bomber met his brides, the maidens of the hereafter.

Trying to ascertain the scope of the plot, the NYPD searched the files of the Demographics Unit. Even though the rakers had canvassed Zazi’s neighborhood daily, and had even visited the travel agent where he bought his tickets between New York and Colorado, there was not a single piece of useful information. “There was nothing,” said [NYPD Lt. Hector] Berdecia. 

In 2011, the Associated Press began publishing an in-depth exposé on the program, which spawned calls for reform and a wave of litigation against the city. By the time Bill de Blasio took office as mayor in 2014, the program had largely wound down, and the unit was eventually disbanded entirely.

There is little evidence that program made New Yorkers any safer. What the program undoubtedly did is cost millions of tax dollars and thousands of law enforcement man-hours that could have been spent investigating actual criminal behavior. 

Sen. Cruz’s campaign also claimed that the end of the program made it more difficult for the NYPD to work with the Muslim community: 

In New York City, Mayor de Blasio succumbed to unfounded criticisms and eliminated the efforts of law enforcement to work with Muslim communities to stop radical Islamic terrorism. 

According to the NYPD itself and advocates within the New York Muslim community, the opposite is true. The NYPD program understandably alienated the local Muslim community and generated immense distrust between Muslim Americans and law enforcement.

While there is scant evidence that the NYPD program generated much in the way of actionable intelligence, it did generate civil rights and constitutional litigation against New York City.  Several suits have been settled, with costs ranging in the millions of dollars.

Meanwhile, another suit in New Jersey remains on the docket. Last October, the Third Circuit Court of Appeals issued a strongly worded opinion reinstating a lawsuit against the NYPD surveillance program, invoking several of the darkest civil liberties violations in our history to explain why the suit should proceed:

No matter how tempting it might be to do otherwise, we must apply the same rigorous standards even where national security is at stake. We have learned from experience that it is often where the asserted interest appears most compelling that we must be most vigilant in protecting constitutional rights. “[H]istory teaches that grave threats to liberty often come in times of urgency, when constitutional rights seem too extravagant to endure.”

[…]

Today it is acknowledged, for instance, that the F.D.R. Administration and military authorities infringed the constitutional rights of Japanese-Americans during World War II by placing them under curfew and removing them from their West Coast homes and into internment camps. Yet when these citizens pleaded with the courts to uphold their constitutional rights, we passively accepted the Government’s representations that the use of such classifications was necessary to the national interest. […] In doing so, we failed to recognize that the discriminatory treatment of approximately 120,000 persons of Japanese ancestry was fueled not by military necessity but unfounded fears.

[…]

What occurs here in one guise is not new. We have been down similar roads before. Jewish-Americans during the Red Scare, African-Americans during the Civil Rights Movement, and Japanese-Americans during World War II are examples that readily spring to mind. We are left to wonder why we cannot see with foresight what we see so clearly with hindsight – that “[l]oyalty is a matter of the heart and mind[,] not race, creed or color.” 

Recycling failed, constitutionally-dubious policies is not a solution to terrorism, nor is singling out a largely law-abiding minority community for even more invasive government surveillance than it already endures.  Police are already empowered to investigate criminal activity, and to patrol any neighborhood they like. But the power to select entire neighborhoods or communities for intense police surveillance based solely on the ethnicity or religion is a power the police don’t need and shouldn’t have. 

For its part, the NYPD now seems to agree

What the President Said about ISIS, and What I Heard

It seems particularly appropriate, on this 13th anniversary of the 9/11 attacks, to ponder anew what counterterrorism steps are prudent and effective, and what measures are reckless and counterproductive.

With this in mind, I was moderately inclined to go along with President Obama’s plan to attack the Islamic State in Iraq and Syria (ISIS), provided that he defined a limited and achievable set of goals, and therefore established limits on the size and scope of the U.S. military mission.

But when the president says this:

“We will hunt down terrorists who threaten our country, wherever they are.” 

I hear this:

“All that we have to do is to send two mujahedeen to the furthest point east to raise a piece of cloth on which is written al Qaeda, in order to make generals race there to cause America to suffer human, economic and political losses without their achieving anything of note…”

Though they didn’t race there, a team of U.S. special forces eventually made their way to Pakistan and pumped a couple of bullets into bin Laden, so he’s not making these videos any more. That seems worthy. If we can repeat these sorts of operations elsewhere, and shut up a few more loudmouths, we should.

But the larger point stands. We shouldn’t terrorize ourselves. We shouldn’t exaggerate the threat posed by terrorism. And we shouldn’t react in ways that feed the terrorists’ narrative, or serve the terrorists’ goals.

Libertarians Shouldn’t Want Perfect Security—Reply to Professor Epstein

I was pleased to see last week that Professor Epstein had penned a response to my criticism of his recent piece on Hoover’s Defining Ideas in which he argued against treating protection of civil liberties and privacy as “nonnegotiable” in the context of counterterrorism. It is not the disagreement that is pleasing, of course, but the opportunity to air it, which can foster discussion of these issues among libertarians while illustrating to the broader world how seriously libertarians take both security and liberty.

What’s most important in Professor Epstein’s rejoinder is what comes at the end. He says that I should “comment constructively on serious proposals” rather than take an a priori position that civil liberties and privacy will often impede expansions of government power proposed in the name of counterterrorism.

I believe that Professor Epstein and I share the same prior commitments–to limited government, free markets, and peace. Having left it implicit before, I’ll state that I, too, believe that protection of life and property is the primary function of the state. But I also believe that excesses in pursuit of security can cost society and our liberties more than they produce in benefits.

Some years of work on counterterrorism, civil liberties, and privacy bring me to my conclusions. I had put in a half-decade of work on privacy before my six years of service on the Department of Homeland Security’s privacy advisory committee began in 2005. While interacting with numerous DHS components and their programs, I helped produce the DHS Privacy Committee’s risk-management-oriented “Framework for Privacy Analysis of Programs, Technologies, and Applications.” From time to time, I’ve also examined programs in the Science and Technology Directorate at DHS through the Homeland Security Institute. My direct knowledge of the issues in counterterrorism pales in comparison to the 30+ experts my Cato colleagues and I convened in private and public conferences in 2009 and 2010, of course, but my analysis benefitted from that experience and from co-editing the Cato book: Terrorizing Ourselves: Why U.S. Counterterrorism Policy is Failing and How to Fix It.

Whether I’m operating from an inappropriate a priori position or not, I don’t accept Professor Epstein’s shift of the burden. I will certainly comment constructively when the opportunity arises, but it is up to the government, its defenders, and here Professor Epstein to show that security programs are within the government’s constitutional powers, that such programs are not otherwise proscribed by the constitution, and that they cost-effectively make our society more secure.

The latter two questions are collapsed somewhat by the Fourth Amendment’s requirement of reasonableness, or “fit” between means and ends when a search or seizure occurs. And to the extent I can discern the program that Professor Epstein prefers, I have commented on it as constructively as I can.

Rand Paul’s “Teachable Moment”

On the U.S. government’s targeted killing and drone-bombing program, in the past I have harped on the fact that despite the discrete and immediate effects of disrupting terrorist activity, no expert can conclusively answer whether such tactics materially reduce the threat of terrorism. But don’t just take my word for it:

  • General James E. Cartwright, the retired, former vice chairman of the Joint Chiefs of Staff, has said about drones undermining America’s long-term battle against extremism, “We’re seeing that blowback…If you’re trying to kill your way to a solution, no matter how precise you are, you’re going to upset people even if they’re not targeted.”
  • General Stanley McChrystal, the retired, former commander in Afghanistan, has said about drones and anti-American sentiment, “The resentment created by American use of unmanned strikes … is much greater than the average American appreciates. They are hated on a visceral level…”
  • And John Bellinger, a former State Department legal adviser in the George W. Bush administration, has said that one day, drone strikes might “become as internationally maligned as Guantanamo.” 

Today, in a piece for U.S. News and World Report, I write about yet another relevant factor in the drone debate beyond the scope of the aforementioned issues: the Congressional prerogative to limit executive war powers. It explains why Senator Rand Paul (R-KY) should keep fighting the good fight for more transparency over the program:

Today, our commander in chief, through a secretive decision-making process based on classified evidence, has declared the right to use lethal force against anybody, anytime, anywhere on earth. Although Paul’s effort to shine a harsh light on targeted killings has thus far been commendable, he has squandered many opportunities to explain how we get back to the constitution-based system he champions. In this respect, the liberty movement has been right to hold his feet to the fire. Thus, here comes the “teachable moment.”

Check it out

Karzai’s Latest Outrageous Comment

Yesterday, Afghan President Hamid Karzai alleged that the United States and the Taliban are “working in concert to convince Afghans that violence will worsen if most foreign troops leave.” His accusation exposes a strange irony. Karzai not only supports U.S. forces in Afghanistan after 2014, but also disparages that presence to evade his own failings. 

Since 2001, senior U.S. officials have tethered our military might to the sick man of Central Asia. In 2004, President George W. Bush pledged America’s “ironclad commitment” to help Karzai’s country succeed. In 2010, President Obama made clear that the U.S. role in Afghanistan “is a long-term partnership.” 

President Karzai codified those pledges last May by concluding the Enduring Strategic Partnership Agreement between the Islamic Republic of Afghanistan and the United States of America. Despite his history of hindering U.S.-backed anti-corruption investigations, denouncing the international community, and claiming the U.S. ferried Taliban to the north in order to spread violence, he eagerly signed an Agreement that commits the U.S. government to Afghanistan’s future. It provided for the possibility of a U.S. troop presence until 2024, and a long-term framework for training Afghan security forces and targeting al Qaeda. 

Washington’s devotion to nation building still holds fast despite Karzai’s inability to fulfill its lofty expectations. As former U.S. ambassador to Kabul Karl W. Eikenberry bluntly warned his superiors in November 2009, Karzai “is not an adequate strategic partner.” 

Certainly, the United States is not blameless for Afghanistan’s downward spiral—it took responsibility back in 2001 to rebuild the war-ravaged country and then shifted its attention and resources in 2003 to invade and occupy Iraq. Yet, the endemically corrupt Karzai regime and its band of thugs and cronies are also culpable. 

Ample reporting on Afghan corruption need not be repeated here. More to the point, Karzai fails to appreciate the way in which his poor governance vindicates insurgent propaganda and drives many Afghans to fight. A widespread perception of the central government’s massive corruption delegitimizes the state and inspires the sense of injustice that makes the Taliban appear as an effective alternative. Apart from Karzai himself, Afghan police are notorious for perpetrating crimes they are supposed to be stopping, such as corruption, theft, kidnapping, murder, and child abuse. Meanwhile, the Afghan army, long hailed as the mission’s shining success story, is rife with factionalism and patronage networks that could splinter the institution along political and ethnic lines. Foreign policy planners in Washington overlooked the second- and third-order consequences of their attempts to build a strong central government that wields a monopoly on the legitimate use of force. 

As the Democratic majority staff of the Senate Foreign Relations Committee admitted two years ago, “Foreign aid, when misspent, can fuel corruption, distort labor and goods markets, undermine the host government’s ability to exert control over resources, and contribute to insecurity.” (Emphasis mine.] 

Perversely, the corruption of the Afghan central government and the failures of the foreign-led nation-building project feed off one another in disturbing symbiosis. The Washington Post hasreported that foreign military and development spending provide roughly 97 percent of Afghanistan’s gross domestic product, fomenting fears that withdrawal will push the Afghan economy into depression. The alternative to popping that foreign aid bubble, some argue, would be to commit several hundred thousand troops and decades of attention, resources, and patience to transform Afghanistan’s deeply divided society into a stable, non-corrupt, electoral democracy. Of course, such success would hardly be guaranteed and assumes we possess the local knowledge as well as the cultural and religious legitimacy to operate indefinitely in a country notoriously suspicious of outsiders and largely devoid of central authority. 

Over twelve years of nation-building has had little success in creating an economically viable Afghan state, much less a self-sustaining Afghan security force. Indeed, nation building has propped up an erratic and unreliable regime whose behavior feeds the insurgency’s momentum. 

Policymakers must reject the flawed premise on which their policies rest. They must overcome their tendency to overestimate the strategic importance of a small, underdeveloped country to the narrower and more achievable goals of disrupting terrorist networks and preserving U.S. national security.

Rand Paul and Jim Webb on Congress’s Abdication of Foreign Policy Power

John Brennan’s confirmation as CIA director displayed Congress’s disinterest in checking the president’s runaway security powers. Two months ago, when I wrote an article with the unwieldy title, “Will Obama’s Brennan Pick Shed Some Much Needed Light on Drones?” I wouldn’t have guessed that the answer would be yes; it will bestir Congress to finally force the administration to say clearly that it does not reserve the right to kill Americans at home with drone strikes, insofar as they are not engaged in combat. That statement came only thanks to whomever leaked the Justice Department’s summary memo on the topic, Brennan and Attorney General Eric Holder’s impolitic reluctance to articulate limits on the president’s power to kill Americans by calling them terrorists, and, of course, Sen. Rand Paul’s (R-Ky.) resulting filibuster. The Senate predictably left Brennan’s other sins against civil liberties mostly unexamined. 

Paul’s hard-won “toehold of constitutionality” isn’t much to cheer about, even if we add to the spoils the administration’s vague agreement to be more open about its legal rationale for placing people on kill lists. This minimal defense of civil liberties and congressional privilege is what got Republican senators like Marco Rubio of Florida and Ted Cruz, Jr. of Texas, who seem to support unfettered executive discretion to kill in the name of counterterrorism outside the United States, to support the filibuster. 

Even that was too much restraint for the neoconservative right. Sen. John McCain (R-Ariz.) read on the Senate floor a Wall Street Journal editorial calling Paul’s effort a stunt meant to “fire up impressionable libertarian kids” and assuring us that those targeted by drones here or abroad will be “enemy combatants.” McCain and the Journal spectacularly miss Paul’s point: the issue is whether the president should make that designation, chucking due process rights, without being checked by another branch of government. 

As McCain amigo Sen. Lindsay Graham (R-S.C.) noted, the Republican caucus’ flirtation with civil libertarianism seems a situational consequence of partisanship. The same goes for Democrats. Were it President McCain doing what Obama is, far more than two Democratic senators (Jeff Merkley of Oregon and Pat Leahy of Vermont) would have voted against Brennan. During his filibuster, Paul asked what happened to the Senator Obama of 2007, who opposed torture and war by executive fiat. Paul suggests that those views were products of Obama’s then circumstance: not being president. Even that may be too generous. As I wrote in a recent book review concerning Obama’s counterterrorism record, “even when he took office, there was ample evidence that his dovish positions would not outlast their political convenience.” 

We can hope, I suppose, that Paul’s stance will increase Congress’s willingness to assert its constitutional war powers. Although he did not, as far as I know, propose specific restrictions on the use of military force outside of the United States, Paul did complain that the 2001 Authorization of Military Force against the perpetrators of the September 11 attacks and those that harbored them has become a permanent warrant for almost limitless executive war powers, a kind of escape hatch from the Constitution opened by presidential utterance of the word “terrorist.”

Why the United States Might Never Leave Afghanistan

In autumn 2001, America’s initial purpose in Afghanistan—which made perfect sense—was to destroy or incapacitate al Qaeda and punish the Taliban government that hosted it. This was accomplished 11 years ago. Today, the purpose of the U.S. mission is ill-defined, but clearly involves nation building. What the coalition desperately needs is an achievable, realistic endgame, not an indefinite timeline that commits thousands of U.S. troops to Afghanistan until or beyond 2024.

A common argument is that America and its allies must create an effective Afghan state that can rule the country and prevent the return of the Taliban and, by extension, al Qaeda. Aside from the fact that al Qaeda can exist anywhere, from Hamburg to Los Angeles, it’s not at all clear that the coalition can either eradicate the Taliban or come close to creating an effective Afghan state.

As a Department of Defense Report declared earlier this year, “The Taliban-led insurgency remains adaptive and determined with a significant regenerative capacity, and retains the capability to emplace substantial numbers of [improvised explosive devices] and conduct isolated high-profile attacks that disproportionately field a sense of insecurity.”

Arguments that the coalition must eradicate the Taliban lose sight of what the term “insurgency” actually means. Guerillas typically fight when the opportunity is ripe. They can melt easily into a population, making it difficult for conventional troops to distinguish friend from foe. Combined with the Afghan insurgency’s ability to retreat to sanctuaries in Pakistan, coalition gains can be quickly undone by such systemic factors that make insurgents resilient. Additionally, reporters Dexter Filkins and Kelly Vlahos provide excellent analyses that draw out the ethnic divisions and political factionalism posed by Afghan warlords, many of whom are regrouping and could potentially touch off a civil war in the years ahead.

As for the common contention that America must stay until Afghans can police and govern themselves, the current state of Afghan institutions ensure that it would take a decade or more before coalition forces could withdraw, with little promise of success.

detailed report released last year by the Commission on Wartime Contracting found that the U.S. government contracted for dozens of clinics, barracks, hospitals, and other facilities that exceed Afghan funding capabilities. For instance, the $82 million Afghan Defense University will cost $40 million a year to operate, which is well beyond the Afghan government’s financial capacity to sustain, according to DoD officials. Long-term operations, maintenance, and sustainment costs for the Afghan National Security Forces could continue through 2025. Similar findings were uncovered by auditors at the Office of the Special Inspector General for Afghanistan Reconstruction.

The expectation is that the United States will maintain a presence of some 10,000 personnel in Afghanistan after 2014, while the World Bank estimates that Afghanistan will need $3.9 billion a year through 2024 for economic development. Ironically, when foreign policy planners in Washington make clear that they never intend to abandon Afghanistan, it’s their ambition to create a centralized state that will perpetuate that country’s dependency on foreigners.

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