Homeland Security Unplugged?

From the producers of Big Brother, comes a new "unscripted" television series called Homeland Security USA, which begins its 13-week run on the ABC network on January 6 at 8 p.m. eastern time. This latest addition to the reality genre, according to news reports, "tracks the efforts of the federal workers responsible for safeguarding the nation's airports, borders, waters and any place else threats arise." Here's a promo from YouTube:

UPDATE: New York Post TV critic Linda Stasi gives the show a less than ringing endorsement here.

Holder's Controversial Pardon Recommendations

Following up on an earlier post, The Hartford Courant weighs in on the AG nomination.

Martial Law for Game-Changing Strategic Shocks?

One of the government's prime constitutional responsibilities is to insure domestic tranquility. Against this backdrop, New York Post financial columnist John Crudele is concerned that martial law might be invoked in the event of a further domestic economic meltdown or other forms of "strategic shock." The 52-page monograph he's referring to, which apparently was a lump of coal in his Christmas stocking, was released by the U.S. Army War College's Strategic Studies institute, and can be downloaded here. The report warns military decisionmakers (presumably USNORTHCOM) to prepare for the inevitability of future disruptive, unconventional shocks, i.e., the so-called Known Unknowns. In pertinent part, the author says that...

Widespread civil violence inside the United States would force the defense establishment to reorient priorities in extremis to defend basic domestic order and human security. Deliberate employment of weapons of mass destruction or other catastrophic capabilities, unforeseen economic collapse, loss of functioning political and legal order, purposeful domestic resistance or insurgency, pervasive public health emergencies, and catastrophic natural and human disasters are all paths to disruptive domestic shock...A whole host of long-standing defense conventions would be severely tested. Under these conditions and at their most violent extreme, civilian authorities, on advice of the defense establishment, would need to rapidly determine the parameters defining the legitimate use of military force inside the United States.

The military has increasing played a major role in disaster relief, but the kind of doomsday scenario outlined in the monograph raises a host of legal issues, under the Posse Comitatus Act and other laws.

DHS Presents 5-Year Threat Analysis

The Associated Press claims to have gotten its hands on a 38-page internal "Homeland Security Threat Assessment" covering the next five years. According to an AP article published on Christmas Day, the report's findings suggest that the "terrorism threat to the United States will be driven by instability in the Middle East and Africa, persistent challenges to border security and increasing Internet savvy" by terrorist groups. DHS considers a WMD attack to be the gravest threat, and "intelligence officials also predict that in the next five years, terrorists will try to conduct a destructive biological attack," according to the AP article. The document also forecasts a greater likelihood of cyber attacks over the next five years "as hacking tools become more sophisticated and available."

Fort Dix Plotters Found Guilty

This week, a federal jury in Camden, New Jersey found five men planning to mount a terrorist attack against soldiers at the Fort Dix military base guilty of conspiracy, but not guilty of attempted murder. The men, Muslim immigrants who lived in the Philadelphia/South Jersey area, face an April 2009 sentencing where they could get life. Recall that the plot was uncovered by a Circuit City employee who notified authorities about some suspicious video footage. Subsequently, "the FBI asked two informants — both foreign-born men who entered the U.S. illegally and had criminal records — to befriend the suspects. Both informants were paid and were offered help obtaining legal resident status. During the eight-week trial, the government relied heavily on information gathered by the informants, who secretly recorded hundreds of conversations." The jury rendered its verdict on December 22 after about a week of deliberations.

Meet the New Boss...

Despite being a border-state governor, Janet Napolitano (the Democrat tapped to head the Dept. of Homeland Security) has given a lot of lip service to border security, but not much more, other than vetoing numerous border-enforcement measures coming out of her state legislature. Of course, there has also been a generous amount of lip service on this subject from Republicans at the state and federal levels, too. Yet The New York Times editorial board sees it another way:

If Gov. Janet Napolitano of Arizona is confirmed as homeland security secretary, she will leave behind a state in full Republican control, with immigration zealots embedded in both house of the Legislature, and not enough moderates to go around. This is the down side of President-elect Barack Obama's decision to bring Ms. Napolitano to Washington...Ms. Napolitano's successor as governor would be the secretary of state, Jan Brewer, a Republican who is expected to be far more willing to sign whatever tough immigration measures get to her desk.

Of course, it could also be argued that the Times editorial board is embedded with open-border zealots who opposed even the most reasonable legislation to protect America's borders. A federal agency chief is to a large degree more like a mouthpiece or figurehead for polices crafted by the White House, with the actual work carried out by the behind-the-scenes staff, including the career civil service employees. But be that as it may, given the recent horrific events in Mumbai, let's hope the incoming administration is serious about border security. Homeland security and border security, two sides of the same coin, aren't they? The general election campaign offered the American people virtually no discussion of immigration, legal or illegal--one of many missed opportunities. During the primary season, Obama came out in favor of drivers' licenses for illegal aliens, however, so draw your own conclusions.

Separately, incumbent DHS Secretary Michael Chertoff announced on December 17 that the government has completed 500 miles of the long-delayed fencing along the Southwest border, and that the administration expects to have at least 600 miles completed by Obama's January 20th inauguration.

In the meantime, Attorney General designee Eric Holder may run into some difficulties in the confirmation process over his involvement with eleventh-hour Clinton administration pardons while then serving as deputy attorney general. Questions have been raised over his role in the controversial pardons of fugitive financier Marc Rich and well as 16 FALN terrorists. It's also interesting how the candidate of "change" has tapped so many Clinton retreads for his Cabinet.

Reality TV?

Hill Street Blues on steroids. That's how we would describe The Shield, which recently ended its seven season, 88 episode run. Shot documentary style with mostly hand-held cameras, The Shield definitely pushed the envelope for basic cable in its gritty and sometimes gruesome content. It provided more compelling television content than the Sopranos in its latter stages, even though The Shield aired on the FX network and never achieved the audience of the HBO series.

If you're unfamiliar with The Shield, it followed the activities in and around an inner-city police station house known as "the Barn," situated in the fictional Farmington district of Los Angeles. The creator of The Shield apparently got his inspiration from the Rampart Division police scandal in LA.

The show was exciting and intense. But keep in mind that the viewer has to suspend disbelief, because the whirlwind of events in the Barn during one eight-hour shift might take months or years to resolve, even if they ever occurred in the real world.

The excellent ensemble cast was led by a bulked-up Michael Chiklis who portrayed the rogue detective and master manipulator Vic Mackey, the head of the corrupt but effective anti-gang "Strike Team." Mackey was the ultimate take-no-prisoners, anti-hero who managed to scheme and navigate the gauntlet of the streets, the law enforcement bureaucracy, and his complicated family life, and who among other things killed a fellow officer who was going to blow the whistle on the Strike Team's crooked dealings. This act, occurring in the very first episode, and the ensuing cover up, in part drove the show and the relationships of the original Strike Team members and their adversaries on both sides of the law for its entire run. As the Wikipedia summary puts it, the Mackey character "steals from drug dealers, beats and tortures suspects, and has committed murder more than once." To say that the show posed legal, ethical and moral issues is putting it mildly.

Unlike the gripping intensity of most episodes, the series finale seemed a little flat (as these finales often are), leaving a few loose ends in the various plot threads. Moreover, despite Internet speculation, the expected bloodbath never materialized, leaving most of the characters intact--raising the possibility that The Shield could be brought back as either a theatrical or TV movie. In fact, there has even been some talk of a spin-off featuring Det. Dutch Wagenbach, the barn's somewhat awkward but earnest criminal profiler and "Everyman," as convincingly portrayed by Jay Karnes.

Over the run of the show, the Strike Team found itself the subject of numerous ongoing internal investigations (no surprise there). Although the team managed to wriggle off the hook time and again, the handwriting was on the wall that Mackey was going to be thrown off the force. In the final season, Mackey wormed his way into a job with Immigration and Customs Enforcement (ICE) by orchestrating the bust of a major Mexican drug cartel. As part of this arrangement, ICE also gave him full immunity for all of his past acts, albeit without knowing the full ramifications of said deal. After signing the apparently binding deal, he put all his transgressions (a long litany) on tape in the ICE offices, including the murder of the fellow officer.

While acknowledging that it's just an over-the-top (but very watchable) TV show, this turn of events raised a number of questions. First, we wondered whether in general, such a blanket immunity deal was plausible or even feasible in the real world? And would a murder confession vitiate any immunity agreement? Do the feds have the authority to "shield" Mackey or his cohorts from state crimes? Could Mackey's recorded statements be used as evidence against the other surviving member of the original Strike Team, Vic's loyal foot-soldier and usually stoic "partner in crime," Det. Ronnie Gardocki (David Rees Snell), who was busted by the LAPD in the final minutes of the series finale.

We asked several expert criminal law bloggers what they thought about how this immunity arrangement might or might not affect the prosecution of either of the two Strike Team detectives.

Kent Scheidegger of the Crime and Consequences blog told us that "An immunity agreement with a federal agency cannot confer 'transactional immunity'--a complete exemption from prosecution--for a state crime. There may be limitations on use of the person's statement, both directly and derivatively, but if the state authorities can produce evidence from demonstrably independent source, they can go ahead."

Attorney Michael Kraut who writes the Los Angeles Criminal Defense Attorney blog responded that "The short answer is ICE is a federal agency and they my not grant state immunity, only immunity for federal crimes. Murder is a state crime unless the victim is a federal agent."

LA attorney Dmitry Gorin suggested that the authorities "would almost never do this" but noted that one officer in the Ramparts scandal "got a deal to implicate his former partners with understanding that he would not be prosecuted for the crimes he confessed to." This officer was prosecuted on other charges, however, but received a lesser sentence.

And Joel Jacobsen of the Judging Crimes blog noted that "in general terms what you describe isn't rare. As for the partner getting blindsided that the other criminal made a deal with authorities first--that happens ALL the time. You don't want to be the last one standing when the music stops. Prosecutors try to make deals with the less-culpable criminals in order to nail the more-culpable, but it's sometimes hard to figure out in advance who's who. Vic's statements could be used against his ex-partner/fall guy only if Vic himself testifies in court. That's the holding of 2004's Crawford v. Washington. No, a murder wouldn't vitiate the immunity agreement, if it's really written as broadly as you suggest. Judges would enforce the deal as written. (That's why immunity agreements aren't, or shouldn't be, written so broadly.) The feds couldn't shield Vic from state prosecution. They don't have that power. Without researching the matter, I think it's doubtful that he could prevent state prosecutors from using the immunized statements as evidence against him, but it's not out of the question."

In any event, The Shield DVDs are highly recommended, especially for the show's rich characters and dialogue, with the advisory that the content is for adults only.

Foreign Warrantless Surveillance Was Reasonable

A three-judge panel of the U.S. Court of Appeals for the Second Circuit has turned away the appeal on 4th Amendment and other grounds by three Al Qaeda operatives sentenced to life for conspiracy in the August 7, 1998 bombings of American embassies in Kenya and Tanzania.

The authorities may lawfully conduct searches and electronic surveillance against United States citizens in foreign countries without a warrant, a federal appeals court panel said on Monday [November 24], bolstering the government’s power to investigate terrorism by ruling that a key constitutional protection afforded to Americans does not apply overseas.

In criminal law parlance, improperly obtained evidence is considered the so-called "fruit of the poisonous tree," and as such, must be thrown out as an illegal search and seizure. In a lengthy opinion for the court that denied an attempt by the defendants so suppress evidence used against the defendants at their trial in U.S. District Court, Judge Jose A. Cabranes wrote that...

First, there is nothing in our history or our precedents suggesting that U.S. officials must first obtain a warrant before conducting an overseas search...Second, nothing in the history of the foreign relations of the United States would require that U.S. officials obtain warrants from foreign magistrates before conducting searches overseas or, indeed, to suppose that all other states have search and investigation rules akin to our own...Third, if U.S. judicial officers were to issue search warrants intended to have extraterritorial effect, such warrants would have dubious legal significance, if any, in a foreign nation...Fourth and finally, it is by no means clear that U.S. judicial officers could be authorized to issue warrants for overseas searches...For these reasons, we hold that the Fourth Amendment’s Warrant Clause has no extraterritorial application and that foreign searches of U.S. citizens conducted by U.S. agents are subject only to the Fourth Amendment’s requirement of reasonableness.

The Court found the challenged surveillance reasonable under the 4th Amendment for the following reasons:

First, complex, wide-ranging, and decentralized organizations, such as al Qaeda, warrant sustained and intense monitoring in order to understand their features and identify their members...Second, foreign intelligence gathering of the sort considered here must delve into the superficially mundane because it is not always readily apparent what information is relevant...Third, members of covert terrorist organizations, as with other sophisticated criminal enterprises, often communicate in code, or at least through ambiguous language...Fourth, because the monitored conversations were conducted in foreign languages, the task of determining relevance and identifying coded language was further complicated....Because the surveillance of suspected al Qaeda operatives must be sustained and thorough in order to be effective, we cannot conclude that the scope of the government’s electronic surveillance was overbroad.

The court conceded that while the intrusion into the privacy of one of the defendant's was great, the need for U.S. counter-terrorism authorities to intrude was "even greater." The defendant in question, a naturalized U.S. citizen and close associate of Osama Bin Laden, sought to suppress evidence gathered from the search of his Nairobi home and surveillance of his Kenyan landline and cell phones. The full, three part opinion in In re Terrorist Bombings of U.S. Embassies in East Africa, Docket # 01-1535-cr(L), can be found here.

Thanksgiving Eve Musings

This blog's charter allows us to on occasion veer off into other legal issues apart from homeland security. So what better time than on Thanksgiving Eve. Did you know that Canada celebrates its own Thanksgiving in mid October? In any event, speaking of Canada (and the possible connection with festive eating), that country's Supreme Court ruled on November 19 that obese people have the right to two seats for the price of one on domestic flights. Actually, the High Court let stand a lower court ruling to that effect, but the net result is the same.

This is the type of legal dispute that stirs up profound mixed emotions, like the 2001 Casey Martin case. In general, we don't favor government intervention into how businesses manage their internal operations. Yet, this news report cites individuals with severe arthritis or hormonal disorders that will be legitimately helped by this decision. And airplane seats are not roomy to begin with for any passenger. On the other hand, for the ordinary overweight person, if there is such a thing, wouldn't it be better to seek remedies through diet, nutrition, and exercise rather than through the courts? How many other travelers will be prevented from getting a ticket on a flight under this new policy? And to what extent will this mandate undermine the airline industry's already shaky financial viability? The news article also identifies at least one practical problem in terms of implementation: "A possible sticking point is how to decide when obesity is a disability. The agency has recommended the airlines adopt a policy used by Dallas-based Southwest Airlines, which gives a free seat to people who are too big to lower their armrest." Unfortunately, courts are often ill-equipped or unwilling to address real-world implementation or the associated unintended consequences.

Here in the states, the number of overweight persons seems to be, well, expanding. At least that's what the media says, but visiting any mall or other public gathering place seems to provide empirical evidence. This reminds us of a seemingly unrelated issue: the syndicated courtroom shows on television. In virtually all of those shows, the television judge hearing the cases--complaints that originated in Small Claims courts around the country--showboats, grandstands, and yells at the litigants. Note that these proceedings are technically binding arbitration hearings; the parties have agreed to drop their actual Small Claims case in the original jurisdiction in order to get the case heard on TV by an arbitrator (typically a former judge) but with the trappings of a court trial

The one exception seems to be Marilyn Milian, a former state circuit judge from Miami, who currently presides over The People's Court. (The New York Times called the show "quick and dirty justice served up for mass consumption." Judge Milian often says on the show that she administers "rough justice".) Okay, so she also showboats, grandstands, and yells at the litigants, and she sometimes even prevents the parties from introducing all of their evidence. Yet, the show is unusually informative for the viewer in that Judge Milian takes the time to explain how the principles of law apply to each case (as does the TMZ guy who does the wrap-around commentary in Times Square). She even discusses how the law of the parties' jurisdiction--which may differ in certain respects from general legal principles--applies to their case. So amidst the fender benders, shady contractors, and jilted lovers fighting over the eternal question of loan vs. gift, you can really learn a lot about law from that program.

But, we have noticed that somewhere in the range of roughly 60-70% of the litigants seem to be, well, noticeably overweight. So is there an odd correlation between Small Claims and large bodies, or is the show merely a cross-section of the real America?

Federal Jury: Charity Guilty on All Counts

On November 24, a Dallas federal jury found the Holy Land Foundation and five of its organizers guilty on 108 separate charges connected with illegally funnneling at least $12 million to Hamas, the Palestinian terrorist organization. The government's first attempt at prosecuting the charity ended in a mistrial in 2007. This jury rejected defense claims that the now-defunct foundation, which U.S. officials shut down in 2001, was a legitimate charity. According to the Dallas Morning News...

The verdicts are a major triumph for the outgoing administration of President George W. Bush, whose efforts at fighting terrorism financing have been troubled. Two other similar high-profile prosecutions targeting supporters of Palestinian militants have ended in acquittals, deadlocked juries or convictions on lesser charges...

Terrorism experts say Monday's verdicts demonstrate that complicated terrorism financing cases can be successfully prosecuted in American criminal courts. The verdicts also lend credibility to the Treasury Department's oft-criticized program of designating terrorist entities and freezing assets.

The verdict "sends a crystal-clear message that the United States will neither allow itself to serve as a cash cow for terrorist groups nor allow the charitable sector to be abused by groups financing terrorism under the cover of charity," said Matt Levitt, a Hamas expert and former high-ranking government intelligence official who testified in both trials.

The convictions were a culminaton of a 15-year investigation. The Holy Land Foundation was once the largest Islamic charity in the U.S. The U.S. State Department has formally designated Hamas as one of 44 foreign terrorist organizations.

Not All Detainees Victims of Circumstance

As a follow on to the previous post, the New York Times--perhaps the most fierce critic of Bush Administration homeland security policies--suggested on the day before the election that maybe, just maybe, some of the Gitmo detainees deserve to be there after all:

They were called the Dirty 30 — bodyguards for Osama bin Laden captured early in the Afghanistan war — and many of them are still being held at Guantánamo Bay, Cuba. Others still at the much-criticized detention camp there include prisoners who the government says were trained in assassination and the use of poisons and disguises...an extensive review of the government’s military tribunal files suggests that dozens of the roughly 255 prisoners remaining in detention are said by military and intelligence agencies to have been captured with important terrorism suspects, to have connections to top leaders of Al Qaeda or to have other serious terrorism credentials...The next president will have to contend with sobering intelligence claims against many of the remaining detainees...But as a new administration begins to sort through the government’s dossiers on the men, the analysis shows, officials are likely to face tough choices in deciding how many of Guantánamo’s hard cases should be sent home, how many should be charged and what to do with the rest.

Obama Advisors Craft Plan for Gitmo Detainees

The Associated Press is reporting that the Obama administration plans to close the Guantanamo Bay detention center and bring suspected terrorists to the U.S. for trial.

Under the plan being crafted inside Obama's camp, some detainees would be released and others would be charged in U.S. courts, where they would receive constitutional rights and open trials. But, underscoring the difficult decisions Obama must make to fulfill his pledge of shutting down Guantanamo, the plan could require the creation of a new legal system to handle the classified information inherent in some of the most sensitive cases. Many of the about 250 Guantanamo detainees are cleared for release, but the Bush administration has not able been to find a country willing to take them.

Not all Democrats are on board with creating a new legal system for the detainees. And Republicans such as Senate Judiciary Committee member John Cornyn of Texas believe that treating terrorism as a mere crime would be a "colossal mistake."

According to the senator, "It would be a stunning disappointment if the one of the new administration's first priorities is to give foreign terror suspects captured on the battlefield the same legal rights and protections as American citizens accused of crimes." Sen. Cornyn added that the Senate overwhelmingly passed a nonbinding resolution last year opposing bringing detainees here. Obama failed to vote on the resolution, however.

Leaving aside the politics, campaign promises, and the symbolism, as a practical matter is it really a good idea from a security standpoint to bring these detainees to the U.S. mainland? Given the existing security problems within America's overcrowded jails, do we want these individuals mixing with the general prison population? Would those terror suspects found not guilty then be released into the local community? It's all well and good to advocate "change," but protecting the American people must remain the highest priority.

The procedures for conducting the trials themselves raises a host of practical problems, as the AP article indicates: "Evidence gathered through military interrogation or from intelligence sources might be thrown out. Defendants would have the right to confront witnesses, meaning undercover CIA officers or terrorist turncoats might have to take the stand, jeopardizing their cover and revealing classified intelligence tactics."

According to an July 2007 account in the Australian press, at least at least 30 former Guantanamo Bay detainees have been killed or recaptured after apparently resuming their terrorist activities following their release.

Court Blocks Release of 17 Detainees

On October 7, U.S. District Court Judge Ricardo M. Urbina, relying on the Supreme Court's Boumediene decision, ordered the release of 17 ethnic Chinese Muslims, known as Uighurs, from their Guantanamo Bay incarceration. The judge's order required the government to set the detainees free on U.S. soil. In fact, the judge ordered the men brought to his D.C. chambers so he could essentially release them personally. Some of the men received weapons training at Afghan camps affiliated with al Qaeda or the Taliban and were captured near Tora Bora in 2001 or 2002. While they are apparently no longer considered enemy combatants, their legal status remains in limbo. According to the Wall Street Journal...

They exist in a legal netherworld, however, because no one will accept custody. The U.S. will not repatriate the Uighurs to China, where they are considered separatists and are likely to be imprisoned, or worse. Five were released to Albania in 2006, but the State Department has not been able to persuade other countries, which fear reprisals from Beijing, to take in the rest. While their situation is unfortunate, the choice is between continuing to hold them at Gitmo in special housing or releasing them here.

The judge's order was short lived. Following an emergency appeal by the Justice Department, the U.S. Court of Appeals for the District of Columbia Circuit temporarily reversed ("stayed" in legal terms) Judge Urbina's order the next day. On October 20, a three-judge panel on the court ruled in a 2-1 decision that the men would continue to be held in custody in Gitmo pending oral arguments before all 12 D.C. Circuit judges on November 24. This is called an "en banc" hearing. The text of the opinion is not yet available online.

In legal papers, lawyers for the detainees said that no harm will come to the public and certainly no irreparable harm to the government should the prisoners be set free. ("Irreparable harm" is the legal measuring stick used to determine the appropriateness of an court-ordered injunction or restraining order.)

The Journal article opines that given the approximately 270 remaining Gitmo detainees who are or will be challenging their detention in federal court, "in some ways this case is unique, though that does not make Judge Urbina's decision--and the precedent it sets--any less dangerous...the practical question is: What happens to such terrorists if they're cleared for release by the likes of Judge Urbina? If no country will accept them, the real possibility exists that they will be released domestically. Judge Urbina's decision certainly makes that more probably, even if it is disguised in the exceptional, hard-luck case of the Uighurs."

Judge Urbina is a Clinton appointee. As the choice of a new President looms, it's worth keeping in mind that when it comes to the nomination and confirmation of federal judges in particular, elections have consequences.

Court Upholds Alien Monitoring Program

In a decision released today, a federal appeals court said that the post-911 "Special Call-In Registration Program" for non-immigrant aliens was lawful. The now-suspended program (see DHS fact sheet) required males over age 16 from 24 majority Muslim countries, plus North Korea, who had not qualified for permanent residence, to appear before immigration authorities for registration, fingerprinting, and to submit documents to prove they were here legally. Four individuals who Immigration Judges and the Bureau of Immigration Appeals had deemed deportable (i.e., they were determined to be illegal aliens) challenged the program on constitutional, statutory, and procedural grounds. In a 44-page decision in Rajah et al. v. Mukasey, the Manhattan-based U.S. Court of Appeals for the Second Circuit rejected their claims. "The September 11 attacks were facilitated by violations of immigration laws by aliens from predominantly Muslim nations. The Program was clearly tailored to those facts," the court wrote. One of the men will get a new hearing on his deportation order, however.

Will Hamdan Be Cut Loose?

Salim Hamdan, otherwise known as Guantanamo Bay detainee #149, became the first war-crimes defendant tried by the a U.S. military commission since World War II. About a month ago, the military tribunal convicted him of providing material support to terrorism, but acquitted him on more serious charges of conspiracy to commit terrorism. His sentence was 5-1/2 years in prison (prosecutors sought 30 years to life), and with time served, he will become eligible for release in early January 2009.

The six-member military jury found the evidence did not support prosecution claims that Hamdan, who was Osama bin Laden's driver, was a hard-core terrorist rather than a low-level functionary in al Qaeda's motor pool. Hamdan was also the plaintiff in the 2006 Hamdan v. Rumsfeld case in which the Supreme Court declared that the president's military tribunal's were unlawful in that they violated the Uniform Code of Military Justice and the Geneva Convention. In the fall of 2006, Congress passed the Military Commissions Act which crafted new rules for such tribunals. There has been no shortage of legal wrangling over the treatment and status of enemy combatants, most recently in the form of the Boumediene v. Bush case, decided June 12, 2008, where the Supreme Court ruled in a 5-4 decision that constitutionally guaranteed right of habeas corpus review applies to persons held in Guantanamo and to persons designated as enemy combatants on that territory. In other words, Gitmo detainees can file habeaus corpus petitions in civilian court to challenge their detention.

Jonathan Mahler, author of a book about the Hamdan case, writes that "It remains unclear whether he was a dedicated lieutenant of bin Laden's-'a body man for bin Laden,' as one of the government lawyers once described him to me--or, as his defense lawyers claim, little more than a lowly foot soldier."

But numerous news outlets have reported that Hamdan, a Yemini national, won't be going home anytime soon. According to the Wall Street Journal ...

The Bush administration maintains it can hold prisoners classified as unlawful enemy combatants, such as Mr. Hamdan, indefinitely. Under this policy, Mr. Hamdan won't necessarily be released when his sentence ends. Rather, the government may decide to continue imprisoning him on grounds that he remains a threat.

Court Rejects 9/11 Lawsuit against Saudis

A federal court has dismissed a lawsuit by the powerhouse Philadelphia Cozen O'Connor law firm that sought money damages from Saudi Arabia's government and several senior Saudi officials for their alleged involvement in 9/11. Brought primarily on behalf of insurers who have paid out billions in ground zero claims, the lawsuit alleged that the Saudi government and the named officials provided financial and logistical support to Al Qaeda in the run-up to the attacks.

The Manhattan-based U.S. Court of Appeals for the Second Circuit ruled that the defendants were "immune" from the lawsuit under the Foreign Sovereign Immunities Act, which generally prevents foreign governments and their officials from being sued in U.S. courts. The FSIA law provides an exception from the immunity provisions for state-sponsored terrorist acts, however. Despite the belief among many intelligence observers that the Saudis are heavily involved in terrorism funding, the U.S. State Department (for geopolitical or other reasons) has never designated Saudi Arabia as a state-sponsor of international terrorism. As a result, the court ruled that it lacked "subject matter jurisdiction" over the case.

According to the court, "Although the FSIA did open an an avenue of redress for certain individual victims of state-sponsored terrorism, it did not delegate to the victims, their counsel and the courts the responsibility of the executive branch to make America's foreign policy response to acts of terrorism committed by a foreign state, including whether federal courts may entertain a victim's claim for damages." The case is In Re Terrorist Attacks on September 11, 2001, Docket No. 06-0319-cv(L), 8/14/08.

The three-judge panel made no factual findings per se in the case; its opinion was based merely on what amounts to a "mechanical" application of a federal statute. Although the mainstream media often fails to explain this to the public, courts often duck or postpone the big issues presented by a case by ruling on more narrow, procedural grounds.

For now, the defendants are off the hook. But the plaintiffs are considering appeal to the U.S. Supreme Court, or perhaps a request for a rehearing in front of the full Second Circuit bench. In the meantime, claims against other defendants, such as the Saudi-owned National Commercial Bank, are apparently still active; shortly after the appeals court ruling, Cozen O'Connor filed for additional "discovery" (i.e., requests for documents and other information) from the bank.

A summary of the lawsuit's extensive procedural history can be found here.

New FBI Investigation Guidelines

The New York Times is reporting that the U.S. Justice Department has a tentative plan to allow FBI agents "to open a national security or criminal investigation against someone without any clear basis for suspicion."

The plan has not yet been made public, but Congress received a private briefing about it in July. In a August 20 letter to Attorney General Michael Mukasey, four Senate Democrats claim that the plan "might permit an innocent American to be subjected to such intrusive surveillance based in part on race, ethnicity, national origin, religion, or on First Amendment activities."

However, Attorney General Mukasey gave a speech last week in which he indicated that the FBI would still need a valid purpose to investigate and that the proposal "clarifies the rules by which the FBI conducts its intelligence mission."

The AG is scheduled to respond to lawmakers' questions about the plan at a September 17 Congressional hearing. The guidelines are on hold until then.

Separately, President Bush has issued a very detailed Executive Order (as a revision to an earlier White House pronouncement) clarifying and perhaps expanding the cooperative roles and obligations of the various intelligence agencies in counter-terrorism activities. Among other things, it gives (or reaffirms) the Director of National Intelligence overall responsibility for ensuring a network of relationships, guidelines, procedures so that U.S. intelligence activities overseas and at home (including at the state and local levels) get coordinated, de-conflicted, and integrated. The order specifically states that "The United States Government has a solemn obligation, and shall continue in the conduct of intelligence activities under this order, to protect fully the legal rights of all United States persons, including freedoms, civil liberties, and privacy rights guaranteed by Federal law."

Sen. McCain on Privacy vs. Security

During last night's presidential forum at Saddleback church (which was televised by CNN), Rick Warren asked Senator McCain what takes precedence when the right to privacy and the right to national security collide. The Senator responded as follows:

It does collide and there are always competing priorities. We must preserve the privacy of all of our citizens as much possible because that's one of the fundamental and basic rights we have...but the point is we have now had technological advances over the last 20 or 30 years in communications that are remarkable. It's a remarkable ability that our enemies have to communicate so we have to keep up with that capability. I mean, there is too many ways and -- through cyberspace and through other ways -- that people are able to communicate with one another. So we are going to have to step up our capabilities to monitor those. Sometimes there are calls from outside the United States, inside the United States, there is all kinds of communications of every different kind. So you need congress to work together you need a judiciary that will review these laws that we pass and at the same time, it's just an example of our failure to sit down, Republican and Democrat, and work these things together for the good of the nation's security. Instead of this constant fighting which, according to our director of national intelligence, until we finally reached an agreement not long ago was compromising our ability to keep America from attack. And so there is a constant tension. It is changing with changes in technology and we have to stay up with it.

Time constraints prevented Warren from posing the same question to Senator Obama. The CNN website has the full video of the forum.

Revised Surveillance Measure Becomes Law

Some degree of conflict between privacy/civil liberties concerns and terrorism prevention and deterrence is inevitable. This comes to the surface because protections for personal privacy and freedom from government intrusion into our privacy (or freedom from intrusion by telemarketers or identity thieves for that matter) is something we all cherish. Privacy and civil liberties must be reasonably safeguarded even in a heightened homeland security environment.

On July 9, 2008, after prolonged Capitol Hill deliberations and dealmaking, President Bush signed HR 6304, the FISA Amendments Act of 2008 (also known as Public Law 110-261), into law after it finally won approval by both houses of Congress. The law, which overhauls the technologically primitive 1978 FISA Act, was passed in the nick of time for national security officials, since many of last year’s authorized wiretaps were due to expire in August, which could have put the intelligence community back to square one in terms of ongoing operations. The law is said to be the most significant expansion of the government's surveillance powers in a generation.

The FISA law is by no means your light summer reading. As the National Journal said in a very helpful tutorial, "it is a dense, often opaque, and patchworked set of new authorities that has puzzled even the few people who can actually call themselves FISA experts."

In the July 10 signing ceremony, the president commented that:

The bill will allow our intelligence professionals to quickly and effectively monitor the communications of terrorists abroad while respecting the liberties of Americans here at home. The bill I sign today will help us meet our most solemn responsibility: to stop new attacks and to protect our people...Last year Congress passed temporary legislation that helped our intelligence community monitor these communications. The legislation I am signing today will ensure that our intelligence community professionals have the tools they need to protect our country in the years to come...this law will protect the liberties of our citizens while maintaining the vital flow of intelligence. This law will play a critical role in helping to prevent another attack on our soil.

Some civil liberties groups and privacy advocates have been less than sanguine about the new law. They have vigorously insisted that the legislation violates the 4th Amendment’s prohibition against unreasonable searches and seizures.

For example, the Electronic Frontier Foundation, a proponent of digital freedom, claimed the law is a “full frontal assault on the Constitution,” and that it “betrays the spirit of 1776 by radically expanding the president’s spying powers and granting immunity to the companies that colluded in his illegal surveillance program.” The ACLU and other groups expressed like-minded sentiments.

Similarly, The New York Times editorial board argued that the law will serve to “wrench American’s civil liberties back to where they were in the days before Watergate, when the United States government listened to our phone calls whenever it wanted.”

In general, it feels inappropriate to dismiss these concerns out of hand, especially since there is always potential for abuse, particularly in the hands of an unscrupulous future administration. And virtually very law (even those seemingly benign or mundane) has loopholes and unintended consequences, let alone subject to "unique" court interpretations from sometimes grandstanding judges.

But doesn’t it seem that a lot of the opposition--to this point anyway--has more of a theoretical flavor to it as it applies to the ordinary, law-abiding citizen? One of the senators who supported the legislation said that the average American has nothing to fear from this broadening of the executive branch’s surveillance powers unless “you have Al Qaeda on your speed dial.”

And if the civil liberties absolutists are concerned about personal privacy, what about all the people walking through airports or down the street voluntarily giving up intimate details of their lives as they shout into their cell phones in public?

Separately, the last thing the court system and the overall economy really needs is for tort lawyers to move beyond class-action lawsuits against e.g., McDonalds, Starbucks, and Sears among others, for their real or imagined commercial sins, and set their sights on telecommunications carriers. When the trial lawyers get involved in a big way, it may be less about the Constitution and pen register and more about the cash register.

Most wiretaps (certainly an old-school term in the wireless era) will still have to be approved by the FISA court, and the authorities will still need a court order to listen in on a U.S. person, regardless of that person's location. Certain additional oversight mechanisms within all three government branches are incorporated into the new law. For what it's worth, one of its provisions states that the program “may not intentionally target any person known at the time of acquisition to be located in the United States.”

The law also allows for warrantless listening with the probable-cause approval of the U.S. attorney general for up to seven days in an emergency when intelligence officials are in hot pursuit of foreign intelligence information. After that, homeland security officials must petition the FISA court for a warrant. As a check on future administrations, the law reaffirms that the FISA process is the “exclusive” or only means by which electronic surveillance for intelligence purposes and the domestic interception of electronic communications can be conducted.

Critics of the surveillance program often cite the famous Ben Franklin quote that “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety,” in support of their point of view, although they often leave out the key words essential and a little temporary.

However, putting aside this use of editorial license, let’s remember that the contemporary threat comes from those with highly sophisticated technology and weaponry rather than flintlock muskets, and therefore these legal measures, and whatever trade-offs might be required, seem to be necessary for homeland security. As flawed as the legal system often is, the law needs to attempt to keep pace with changing technology. And as the National Journal points that FISA does not apply to domestic criminal surveillance, only to foreign spies and terrorists

As an Associated Press article explained:

The original FISA law required that the government to get wiretapping warrants for each individual targeted from inside the United States, on the rationale that most communications inside the U.S. would involve Americans whose civil liberties must be protected. But technology has changed. Purely foreign communications increasingly pass through U.S. wires and sit on American computer servers, and the law has required court orders to be obtained to access those as well.

Opponents of the measure will be challenging the constitutionality of its provisions in federal court, so it still remains to be seen to what extent the new law will be fully implemented. Who knows--the court challenges might still be pending when the FISA amendments expire on December 31, 2012.

[originally posted 8/8/08, 6:49 a.m. Reposted 8/9/08]