Tag Archives: ACLU

Targeted killing of U.S. citizens lawful, says Holder, but critics pounce


Attorney General Eric Holder announced last week that U.S. citizens are not exempt from being targeted by the government. (Office of the Attorney General)

WASHINGTON – The U.S. government has the right to kill terrorists overseas if they pose an imminent threat and can’t be captured – even if they are American citizens, Attorney General Eric Holder said last week in a major address in Chicago.

Leading civil liberties groups say the administration should involve courts in setting standards for when it is legal to kill terrorists before decisions are made to use lethal force, but other legal scholars assert that providing due process, especially to U.S. citizens, does not necessarily mean providing a judicial process.

Holder’s assertion was the Obama administration’s most weighty justification for armed drone strikes against a terrorist target, specifically a “senior operational leader of al-Qaida or associated forces.” Though Holder didn’t mention anyone by name, the statement comes just months after the government targeted Anwar al-Awlaki, a senior al-Qaida operative in Yemen and an American citizen. Al-Awlaki, who was born in New Mexico, was killed in an unmanned drone strike in September.

“It’s clear that United States citizenship alone does not make such individuals immune from being targeted,” Holder said in a speech at the Northwestern University School of Law. “But it does mean that the government must take into account all relevant constitutional considerations with respect to United States citizens – even those who are leading efforts to kill innocent Americans.”

Holder’s speech is a welcome step toward transparency, said Nathan Wessler, the national security fellow with the American Civil Liberties Union’s National Security Project. But, he added, it’s nowhere near sufficient in opening up the targeted killing program to public scrutiny.

“When we’re talking about killing U.S. citizens, there’s no chance to make it better after they’re dead,” Wessler said. “So it’s very important that courts are involved to help set the standards under which the government can use lethal force, and to evaluate whether they’ve observed the constitution after they carry out a strike.”

Targeted killings are constitutional, Holder said, because they afford targets the due process mandated in the Fifth Amendment, which says that the government may not deprive a citizen of his or her life without due process of law.

Holder argued that the “thorough and careful review” that the government engages in to determine whether a U.S. citizen is a lawful target amounts to due process. He made a distinction between due process and “judicial process,” maintaining that “where national security operations are at stake, due process takes into account the realities of combat.”

Examples of due process without judicial involvement can be found throughout U.S. law, said Charles Stimson, a senior legal fellow at the conservative Heritage Foundation. If the military wants to discharge a soldier, for instance, judge advocate generals, the military justice system’s judiciary, have to review the facts in the case. Though the soldier isn’t tried through the court system, Stimson said the offender has been afforded due process that is “fully consistent with” the constitution.

The Geneva Conventions stipulate that targeted killings are only legal in the context of “armed conflict.” Because the U.S. is engaged in armed conflict with terrorists, Holder said, the government’s targeted killing program complies with international law.

Holder acknowledged that the war the U.S. is waging on terrorists isn’t a conventional one with a set battlefield. Al-Qaida operates out of Afghanistan, he said, but the U.S. can’t afford to limit its self-defense to that battlefield. Holder alluded to al-Alwaki’s Yemeni group, noting that “al-Qaida and its associates have directed several attacks – fortunately, unsuccessful – against us from countries other than Afghanistan.”

“We are at war with a stateless enemy, prone to shifting operations from country to country,” he said. “Our government has both a responsibility and a right to protect this nation and its people from such threats.”

As a lawyer in the Israel Defense Forces, Amos Guiora sat at the table during counterterrorism discussions, helping make decisions in targeted killing cases. Now a law professor at the University of Utah, Guiora said Holder should have done a better job of defining exactly what constitutes a legitimate target. Without a “criteria-based approach” to targeted killing, he said, the government could apply the policy far too broadly.

“We need to have narrow, as in precise, articulations of these definitions in order to ensure that we’re not engaging in, for lack of a better term, overkill,” Guiora said. “And if you have loosey-goosey standards devoid of strictness, then what you ultimately have is a policy of obtuseness which lends itself to abuse.”

Wessler also worries that, devoid of public debate and judicial scrutiny, targeting American citizens will give the government too much power.

“The administration is asking the public just to trust it when it comes to protecting the rights of U.S. citizens who are targeted with lethal force,” Wessler said. “But that can’t be enough.”

Because terrorists who can be lawfully targeted pose an “imminent threat” to national security, Holder said capture can be a “time-sensitive” issue.

“It is preferable to capture suspected terrorists where feasible — among other reasons, so that we can gather valuable intelligence from them — but we must also recognize that there are instances where our government has the clear authority — and, I would argue, the responsibility — to defend the United States through the appropriate and lawful use of lethal force,” Holder said.

The legal authority to capture and detain is the same legal authority to target and kill, Stimson said. Once the government determines a terrorist is a lawful target, it’s up to the president to make a policy decision: capture or kill.

“This administration, because detention has proven, at least in their minds, to be difficult, has chosen to kill rather than capture,” Stimson said. “They prefer justice from 30,000 feet instead of capturing them, lawfully detaining them, lawfully taking them to Guantanamo, giving them an attorney and giving them access to our federal courts through habeas. And that’s a policy decision.”

It’s a decision, Stimson said, that the next administration can easily reverse – or enhance. With an ever-evolving terrorist threat, Holder is adamant that the power to target U.S. citizens is indispensable.

“This is an indicator of our times – not a departure from our laws and our values,” Holder said. “For this administration – and for this nation – our values are clear.”

 

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Blogger challenges TSA body scanners, renews constitutionality issue

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WASHINGTON – On March 3, Jonathan Corbett sewed a pocket on the side of his shirt, placed a metal carrying case inside and stepped in line to walk through a body scanner at the Fort Lauderdale-Hollywood International Airport in Florida – betting that the metal case would not be detected.

Corbett, an engineer and “TSA Out of Our Pants!” blogger, was running an experiment. He theorized that because the Transportation Security Administration’s imaging technology shows the human body as white and all metallic objects as black against a black background, concealing objects on the side of the body would make them “invisible.” He wanted to see if his metal carrying case on the side of his shirt would pass undetected by the body scanners.

“I was totally nervous,” he said. “I didn’t have a machine in advance to test it on at home or anything.”

He made it through, and  ran the same test the next day at Cleveland-Hopkins International Airport through a millimeter wave scanner, one of the TSA’s latest models of imaging machines.

Corbett posted a video on March 6 titled “How To Get Anything Through TSA Nude Body Scanners,” detailing how he seemed to have outsmarted the TSA’s machines. The video quickly picked up steam on the Internet, drawing more than 1 million viewers on YouTube within a week and propelling Corbett into the media spotlight.

Corbett sued the TSA in November 2010 after the administration adopted the scanners, but the court case over the constitutionality of body scanners has proceeded slowly since then. To speed up the process and eliminate body scanners’ use for airport security, he had the idea that “if these body scanners were proven completely ineffective, the TSA would have to stop using them.”

But the TSA is skeptical of his claims.

“The video is a crude attempt to allegedly show how to circumvent TSA screening procedures,” the TSA said in an official statement released March 8. “TSA conducts extensive testing of all screening technologies in the laboratory and at airports prior to rolling them out the field…It is completely safe and the vast majority use a generic image that completely addresses privacy concerns.”

Questionable Effectiveness

At its surface, Corbett’s findings tackle questions over the machine’s technology, which are consistent with previous studies done by the U.S. Government Accountability Office and other agencies that have also looked into the efficiency of body scanners, according to Jay Stanley, a senior policy analyst at the American Civil Liberties Union.

“The effectiveness of the body scanners is highly questionable,” Stanley said. “What we’ve been saying since the beginning is that the costs and benefits of this technology don’t match up.”

The GAO reviewed the machines after a bombing attempt on Christmas Day 2009 by the “underwear bomber,” saying, “While officials said [the scanners] performed as well as physical pat downs in operational tests, it remains unclear whether the advanced imaging technology would have detected the weapon used in the December 2009 incident.”

(Shirley Li/Medill)

Reacting to Corbett’s video and defending the ability of the body scanners to detect explosives, TSA blogger Bob Burns explained on the administration’s official blog that the machines are just “one layer of our 20 layers of security…and is not a machine that has all the tools we need in one handy device. We’ve never claimed it’s the end all be all.” The post also pointed out that travelers can opt out of going through the body scanner and receive a pat-down instead.

The TSA uses two types of body scanners: backscatter X-ray machines by companies like Rapiscan Systems, and L-3 Communications’ newer millimeter wave device, both of which produce the white-on-black image Corbett tested. The former uses X-rays, while the latter bounces wave energy off the traveler’s body to detect anomalies.

Rapiscan released a statement on the video, assuring travelers the machines are effective.

“The threat detection capabilities of the Rapiscan Secure 1000 system have been extensively tested by the TSA, the UK Home Office, and other government security agencies,” the Rapiscan statement read. “These tests have demonstrated that the Secure 1000 is able to detect a wide range of metallic and non-metallic items regardless of where they are concealed on a person’s body.”

Privacy Questions and Government                                                                      

Still, privacy advocates and others have criticized the technology as invading people’s privacy because they show a person’s nude body in determining whether the travelers have concealed items that could be security threats.

Corbett’s ultimate goal is not just to disprove the technology’s effectiveness, but to raise the issue of privacy with body scanners and the TSA security system.

“The initial thought was definitely the privacy concerns,” he said. “Essentially the TSA is saying, ‘If you want to fly, we’re either going to give you a virtual strip search or pat down your genitals or both.’ Those don’t seem like acceptable options.”

“They’re extremely intrusive technology,” Stanley said. “The basic concern is that they are highlyviolative of privacy and at the same time appear to be of questionable effectiveness, which leads us to wonder if they’re worth the tradeoff.”

Though the TSA dismissed the video in its blog post and statement, the scale of the response to the post shows Americans more aware of the discrepancies in aviation security, said Corbett.

“I think more and more Americans are saying, ‘Why are we doing this? Why are we letting our families be photographed naked, or our children be touched inappropriately in ways that no one is allowed to touch them, but because they have a TSA badge this is somehow acceptable for our safety?’” Corbett said. “More and more Americans are starting to stand up and say no as the horror stories continue to come out.”

According to Stanley, the body scanners will likely stay in use, despite Corbett’s efforts. However, he said the government should pay more attention to the flaws in the technology.

“The government is a big battleship, and it changes course only gradually,” Stanley said. “I think that one thing is clear is that they need to get rid of all scanners that don’t provide the body outline…We certainly hope that the TSA goes in that direction, and the government needs to invest more money into getting the basics of security rights.”

As for Corbett, the blogger said the TSA’s reaction shows the administration’s “arrogance,” and pointed out that the administration did not deny his attempt exposed a flaw in their system. In a blog post on Saturday, Corbett said he will file a Freedom of Information Act this week for a copy of the security video of him walking through the scanners as further proof, and encouraged his readers to talk about the issue with their senators and congressmen.

“Right now, the ball is still in the TSA’s court,” Corbett said. “It’s been incredible to see that Americans are now wise to what the TSA is doing and doesn’t like it.”

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Proposals to extend Patriot Act provisions advance

Leahy's proposal to extend the Patriot Act

A screen shot of Sen. Patrick Leahy's, D-Vt., bill to extend three controversial provisions of the Patriot Act until December 2013.

WASHINGTON — The Senate Judiciary Committee voted Thursday to extend three contentious Patriot Act provisions until the end of 2013, and place a sunset on another section covering the use of National Security Letters while adding oversight authority to monitor surveillance tools.

The bill is sponsored by committee Chairman Patrick Leahy, D-Vt., and is one of several multiple-year extension proposals of the Patriot Act provisions up for debate. At the end of 2013, the provisions would “sunset” or expire.

Approved by a 10-7 vote, the legislation would extend Patriot Act authorities to use roving wiretaps on multiple electronic devices and to obtain court-approved access to business records deemed relevant to terrorist investigations.

It also would continue the authority to conduct secret surveillance of “lone wolf” terrorism suspects who are not Americans. These are alleged terrorists who don’t operate as part of al Qaeda or other terrorist groups.

The panel’s decision to sunset National Security Letters in December 2013 as well represents an attempt to appease civil liberties groups, who are frustrated by the lack of checks and balances on the provisions.

The letters have gained notoriety because they compel businesses to turn over customer records without probably cause or judicial oversight, and are often accompanied by gag orders.

Leahy said the bill strikes a balance between national security and civil liberties interests, but sunsets aren’t enough, said Michelle Richardson, legislative counsel at the American Civil Liberties Union.

“We are not asking that they sunset, we are asking that they be amended,” Richardson said. “We’ve been asking for the same thing for 10 years—that reasonable checks and balances be put into these tools so they can no longer be used to collect information on innocent people or people who aren’t suspected of doing anything wrong.”

Richardson said the increased congressional oversight in Leahy’s extension is not a permanent solution.

“For us oversight does not take the place of substantive amendments in the law,” she said.

Whether the provisions actually would be at risk of expiring depends on whether Congress would take any further action before the deadline. That’s the catch with sunset provisions. So far the government has acted every time, keeping much of the 2001 law intact and effectively creating a sense of permanency.

Congress first reauthorized the Patriot Act with a pair of bills passed in 2005 and 2006, reasoning it was still needed to effectively fight terrorism. When the three controversial provisions came up for renewal in 2010, President Barack Obama signed a one-year extension. And before they would have expired last month, lawmakers quickly tacked on another 90-day extension.

This series of short-term extensions has kept the Patriot Act alive and most likely such extensions will continue to be approved, said Paul Rosenzweig, former deputy assistant secretary for policy in the Department of Homeland Security.

“Some in the Republican side say let’s stop doing this,” Rosenzweig said. “Let’s just get it done and make it permanent. I think that that’s a question for the debate going forward.”

Sen. Dianne Feinstein, D-Calif., chairman of the Senate Intelligence Committee, has introduced legislation that would extend the three expiring provisions through 2013 with no opportunity for amendment. Her proposal does not include the oversight included in Leahy’s bill.

The third major proposal is co-sponsored by Sen. Chuck Grassley, R-Iowa, and Senate Minority Leader Mitch McConnell, R-Ky. It would permanently extend the provisions.

Meanwhile former CIA Director Michael Hayden has come out against any efforts to restrict Patriot Act provisions.

In a Washington Post opinion piece he co-authored with former Attorney General Michael Mukasey, they said, “The wall between intelligence-gathering and criminal investigation, thought before Sept. 11 to have been required by statute or the Constitution, but realized afterward to have been unnecessary, will be rebuilt.”

Leahy’s bill now goes before the entire Senate for a vote. Whatever the outcome, Rosenzweig said the Patriot Act is not dead yet.

“Reviving it in some form will happen, it’s really just a question of exactly what deal gets cut,” he said.

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The FBI and counterterrorism

FBI directors decided years ago that they would take a different approach in the fight against terrorists; rather than anticipating a court case during their investigation of suspects, as they had done for decades, the FBI would proceed with the understanding that these cases may never go to court, because of their sensitive nature, but nevertheless their agents would act as though they might someday. Partly as a result, FBI agents have had an outstanding record of clean interrogations and have rarely been accused of mistreating suspects who are in their custody.

Nevertheless, the FBI’s counterterrorism world is complicated, as a recent ACLU case demonstrates, and it may be undergoing some changes. The ACLU “is seeking records from more than two dozen FBI offices around the nation about the collection and use of race and ethnicity data in local communities,” according to CNN.

ACLU attorneys are concerned about the possibility of racial profiling, particularly since an FBI guidebook describes maps of “’so-called ‘ethnic-oriented’ businesses, behaviors, lifestyle characteristics and cultural traditions in communities with concentrated ethnic populations.” The lawsuit raises questions – first, whether or not the FBI agents are continuing to maintain their rigorous legal standards during investigation and whether they would be able to use the evidence in a courtroom. And, second, about the FBI’s ongoing campaign to solicit information from local Arab-American communities.

Nobody has been more concerned about the rise in homegrown terrorism than Arab-American business leaders in cities like Detroit, with its large Arab-American population, and, as they have explained to me, would gladly help the FBI ferret out suspects within their midst. However, the business leaders would like to be treated as friends and allies during the search for terrorists – rather than as mere interpreters or, even worse, as suspects themselves.

The relationship between Arab-American leaders and FBI agents has been tense since 9/11, and the ACLU case is likely to make things worse. It is now up to the FBI to tamp down the controversy over their investigative techniques and to maintain support among Arab-American leaders and others who may be able to help identify people who will someday become radicalized. The FBI has enjoyed high standing in the counterterrorism world, and now they are being put to a test.

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Civil rights groups urge Pentagon to rethink ban on Guantanamo reporters

A group of civil rights and military groups sent a letter to the Pentagon Wednesday, May 12, urging Department of Defense officials to reconsider their decision to ban four reporters from the pre-trial hearings of Guantánamo detainee Omar Khadr.

As previously reported, Carol Rosenberg of the Miami Herald, Michelle Shephard of the Toronto Star, Paul Koring of the Globe & Mail, and Steven Edwards of Canwest Newspapers, were banned from covering the hearings for revealing the name of a witness.  The Pentagon said publishing the name violated previously agreed upon rules that prevent identifying protected witnesses.

“We consider this move by the Department of Defense not only runs counter to the U.S. administration’s stated commitment to transparency in government, but will also bring the military commissions into further disrepute, internationally and within the U.S.,” said the letter from the American Civil Liberties Union, Human Rights First, Human Rights Watch, Amnesty International and the National Institute of Military Justice.

It explains that the name of the witness has been public since 2005 when he was “the subject of a widely publicized military court-martial” and an on-the-record interview with Michelle Shephard of the Toronto Star in 2008. Shepard is one of the four banned reporters.

Banning the four reporters is “motivated by a clampdown on informed media reporting rather than the protection of classified or confidential information,” the letter said.

“Because the proceedings are based at Guantánamo and are open only to a select number of journalists, military personnel and NGO observers, continuing access to these proceedings by knowledgeable and experienced reporters – such as the four here – is even more important than it would be in an ordinary federal trial, open to the general public,” the letter said.

The complete letter on is available from the ACLU website (PDF).

Further reading: Omar Khadr’s prosecution pushes the limits of international law

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Four reporters banned from military commission proceeding at Guantanamo Bay

News outlets reported that the Pentagon banned four reporters, one American and three Canadians, from covering pre-trial hearings of Guantánamo detainee Omar Khadr.

The Washington Post blog, SpyTalk, reported that the four reports, Carol Rosenberg of the Miami Herald, Michelle Shephard of the Toronto Star, Paul Koring of the Globe & Mail, and Steven Edwards of Canwest Newspapers, were banned because they “revealed the name of a former U.S. interrogator whose name is under protective order — but is widely known.” The Pentagon said publishing the name violated previously agreed upon rules that prevent identifying protected witnesses.

The American Civil Liberties Union, in a published statement, said the  “identity of the interrogator had already been disclosed in previous news reports, including an on-the-record interview the interrogator gave to Shephard in 2008.” Politico reported that Pentagon spokesman Col. David Lapan, when asked why reporters were being punished for reporting a name already made public, said any previous stories or interviews were irrelevant.

“That doesn’t change the fact that his identity was protected in the courtroom during this hearing,” Lapan said.

Jameel Jaffer, ACLU Deputy Legal Director, said that punishing reporters for disclosing information already publicly available:

is nothing short of absurd – any gag order that covers this kind of information is not just overbroad but nonsensical. Plainly, no legitimate government interest is served by suppressing information that is already well known. We strongly urge the Defense Department to reconsider its rash, draconian and unconstitutional decision to bar these four reporters from future tribunals. If allowed to stand, this decision will discourage legitimate reporting and add yet another entry to the long list of reasons why the military commissions ought to be shut down for good.

Politico reported that Lapan told the news outlets they may appeal to the deputy assistant secretary of defense for media operations, Bryan Whitman. According to the Post, Mindy Marques, managing editor at The Miami Herald, said they would appeal.

Further reading: Washington Post SpyTalk, Politico article, ACLU statement

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What's domestic terrorism anyway?

CHICAGO — What’s a domestic terrorist? Is it Joe Stack, who crashed his plane into an IRS office in February? Is it Scott Roeder, who was recently convicted of shooting a doctor who practiced late-term abortions last year? Is it Timothy McVeigh, who was executed for blowing up a federal building in Oklahoma City in 1995?

Agreement on a precise definition is hard to come by.

“Terror’s a weapon, and it’s used by a variety of actors,” said Thomas Mockaitis, a history professor at DePaul University and author of the book “The ‘New’ Terrorism: Myths and Reality.” “Criminals use terror. It’s a weapon used to spread fear. Governments use it, insurgencies use it and what I call extremists use it.”

In 2001, the USA PATRIOT Act defined domestic terrorism as “activities that involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any state; appear to be intended to intimidate or coerce a civilian population; to influence the policy of a government by mass destruction, assassination, or kidnapping; and occur primarily within the territorial jurisdiction of the United States.”

“[That definition is] useful to a point, but to some degree, a street gang in Chicago could engage in the same behavior, and it really isn’t a terrorist group,” Mockaitis said.

But Mockaitis said the federal government doesn’t use one particular definition.

“There are between nine and 15 [definitions], depending on the agency, and they tend to be so broad they become almost anything.”

The ACLU criticized the law’s definition in 2002, saying it was expanded to allow the federal government more investigatory leeway.

“The definition of domestic terrorism is broad enough to encompass the activities of several prominent activist campaigns and organizations,” the ACLU wrote on its website. “Greenpeace, Operation Rescue, Vieques Island and WTO protesters and the Environmental Liberation Front have all recently engaged in activities that could subject them to being investigated as engaging in domestic terrorism.”

One expert said the pursuit of political gain is a defining attribute of domestic terrorism.

“I think that most people would say that terrorists have a political philosophy,” said Charles E. Tucker Jr., executive director of the International Human Rights Law Institute at DePaul University.

Tucker said domestic terrorism has been a problem in the United States for at least a century. But he said the line has blurred between terrorism and organized crime.

“Once upon a time, we referred to these domestic folks as anarchists,” he said.

Mockaitis said the biggest domestic threats right now are hate groups, militias and individual actors. The FBI calls these individuals “lone offenders,” though Mockaitis said members of this category are more “sociopaths” than terrorists.

“In every society, you’ve got disgruntled people,” he said. “The question is who mobilizes them for what purpose?”

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How much privacy are you willing to sacrifice for airline safety?

CHICAGO — Privacy or civil liberties? That is the question airline travelers will soon have to answer for themselves.  At least that is how the ACLU paints the picture.

Security at airports is at an all-time high following the failed Christmas Day airline bombing and body scanners are leading the charge to beef up airport security.  With plans to buy 1,000 scanners over the next two years, the TSA hopes to prevent future Christmas Day bombing incidents and sees these scanners as the best course to prevent such incidents.

While the reasoning that scanners will detect explosives and save lives seems straightforward, the ACLU says there are more shades of gray to that picture.  

Immediately following the attempted Christmas Day bombing, the ACLU released multiple press releases saying the spread of body scanners is not the appropriate response; that the technology is an invasion of privacy; and the effectiveness of this technology isn’t strong enough to warrant such an invasion.

Gary Daniels, the associate director of the Ohio ACLU, echoes those sentiments.

“There are less invasive was to keep people safe,” Daniels said.  “This is a virtual strip test.  People don’t realize the level of invasiveness [of the body scanners].”

Daniels continued saying, “There is no right to fly.  But the question is should we be making as difficult as possible to fly.  That seems to the TSA’s and government’s default setting right now.”

However, a recent March 31 Unisys Security Index survey reported that 93 percent of Americans are willing to sacrifice some level of privacy and 65 percent of Americans said they are willing to cooperate with airport body scans.

Mark Cohn, the vice president of Enterprise Security at Unisys Cooperation, said that these results were not a shock to them.

“This is not surprising,” Cohn said.  “People are pretty concerned with safety.  There must be a balance between risk and reward.  People realize they have to give up some privacy for security.”

Cohn also stressed the fact that there seems to be a level of trust among consumers and the TSA and thus there is a higher acceptance rate of security protocols such as the body scanner.

But Cohn said that the body scanner is just one piece to the puzzle.

“It is not the answer to all threats,” Cohn said.  “[The body scanner] complements the other layers of technology.  There can’t be a fixed protocol with airport security.  A mix of technologies creates the greatest, most effective defense.”

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