Investigating and prosecuting Edward Snowden is a priority, but it should not distract from the far more important issues raised in the past week. Although some Americans may be unnerved by the details of the National Security Agency’s surveillance efforts, the more troubling revelations are that relevant members of Congress may not have been adequately briefed on the programs and that the Foreign Intelligence Surveillance Court seems willing to accept a broad and aggressive reading of the N.S.A.’s authority under the Foreign Intelligence Surveillance Act. Secrecy is necessary for national security programs, but so too is democratic accountability.
In March, Director of National Intelligence James Clapper told a Senate Committee that the National Security Agency does not “collect any type of data” on Americans, at least “not wittingly.” Recent leaks about NSA surveillance activity suggest this was not true. Here is Clapper’s exchange with Senator Wyden from the March hearing:
Senator Wyden: “Last summer the NSA director was at a conference and he was asked a question about the NSA surveillance of Americans. He replied, and I quote here, ‘… the story that we have millions or hundreds of millions of dossiers on people is completely false.’
“The reason I’m asking the question is, having served on the committee now for a dozen years, I don’t really know what a dossier is in this context. So what I wanted to see is if you could give me a yes or no answer to the question: Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?”
Clapper: “No, sir.”
Wyden: “It does not.”
Clapper: “Not wittingly. There are cases where they could inadvertently perhaps collect, but not wittingly.”
In a recent interview with NBC News (via Yahoo News), Clapper defended his response:
I have great respect for Sen. Wyden. I thought, though in retrospect, I was asked [a] ‘When are you going to stop beating your wife’ kind of question, which is … not answerable necessarily by a simple yes or no,” Clapper said.
“So I responded in what I thought was the most truthful, or least untruthful, manner by saying ‘no,’” Clapper said, indicating that he did not consider it “collection” unless government officials actually reviewed the content of the communications. The NSA program, regarding phone records, scoops up “metadata”—phone numbers called, duration of calls, location and the like.
There have been some interesting disclosures in the past week or so about the extent of federal government surveillance. Could there be still more to come? On Friday, the Department of Justice filed a motion opposing public release of a 2011 Foreign Intelligence Surveillance Court decision declaring some aspect of National Security Agency surveillance under the FISA Amendments Act to be unconstitutional or otherwise illegal. The motion is in response to a suit by the Electronic Frontier Foundation that grows out of Freedom of Information Act requests about NSA surveillance. David Corn has more here. [...]
In his speech on drones and the War on Terror today President Obama made many valid points. But he also continued to elide some key issues. On the plus side, Obama correctly emphasized that the use of drones against terrorists is not inherently illegal nor immoral, that drones are often more discriminating and less likely to inflict civilian casualties than other military tactics, and that US citizens can be legitimate targets when they become enemy combatants.
Unfortunately, Obama also continued to dance around the more problematic aspects of his drone policy: who decides whether a particular individual being considered as a potential target is really a member of Al Qaeda and how much evidence is needed to back up such a determination? I emphasized these issues in my recent Senate Judiciary Subcommittee testimony on drones and here. Here are the most relevant parts of Obama’s speech on these questions:
In the Afghan war theater, we must — and will — continue to support our troops until the transition is complete at the end of 2014. And that means we will continue to take strikes against high value al Qaeda targets, but also against forces that are massing to support attacks on coalition forces. But by the end of 2014, we will no longer have the same need for force protection, and the progress we’ve made against core al Qaeda will reduce the need for unmanned strikes.
Beyond the Afghan theater, we only target al Qaeda and its associated forces. And even then, the use of drones is heavily constrained. America does not take strikes when we have the ability to capture individual terrorists; our preference is always to detain, interrogate, and prosecute. America cannot take strikes wherever we choose; our actions are bound by consultations with partners, and respect
The credibility of NGOs like Human Rights Watch depends on their being above and apart from the conflicts they monitor – to not take sides. Human Rights Watch has been criticized by many, including its founder, for giving up all objectivity an adopting an anti-Israel campaign.
Their grudge against Israel has been clear for a while, and David Bernstein has written about it frequently here.
Now, we find evidence of direct personal animus. A news story reveals a private Facebook group whose members include a medley European journalists, NGO officials, and far-left activists. Recently the group turned to discussing an Israeli government report that the famous killing of a Palestinian boy at the start of the Second Intifida was in fact staged. Not only was he not shot by Israel, as much prior evidence suggested, he appears not to have been killed at all. (It would not be the last time Palestinians elaborately staged deaths for PR purposes.)
The issue is not the IDF report, but the comments made about it by Peter Bouckaert, HRW’s Emergencies Director (responsible for civilians in wartime, according to his twitter page). He wrote: “Typical IDF lies. As usual, it takes them a long time to really build up the falsehood.”
He goes on the complain that the New York Times coverage of the Israeli report will be used by supporters of Israel.
I previously criticized HRW for releasing reports on alleged Israeli crimes without waiting for the IDF’s comments - now we know: why wait for a “typical lies” that just build up the more time they get? Seriously, HRW should reveal what reports the “emergencies director” was involved in writing.
Academic writing on human rights and international law often treats groups like HRW as custodians of the truth, and [...]
Just in time for President Obama’s big speech Thursday at the National Defense University on counterterrorism policy and strategy, Commentary Magazine has made available early my June cover article, “The Case for Drones.” (Available free and not behind the subscriber wall.) It’s a long essay arguing that drones are both effective and ethical, and addressing a number of the objections to each of those propositions.
The article has a particular audience in mind. It is aimed at conservatives and Republican members of Congress especially, to remind them that their sometimes knee-jerk attacks on the “imperial” Obama presidency risks one major piece of national security that the Obama administration has got well and truly right. There’s no lack of imperial presidency, abuse of power material for conservatives to work with- pick your issue this week – but this particular issue is one where, if conservatives look down the road, they ought to see that any president, Republican or Democrat, will need to have available the national security tools of drone warfare and national security. It would be a remarkably foolish thing if, by inattention or inappropriate and merely reflexive attacks on the Obama administration’s drone policy, Republicans in Congress wound up permitting drone warfare to be made politically, morally, or legally illegitimate – just as a future Republican president enters office and discovers that, yes, there are terrorist threats best addressed by drones. Congressional Republicans, in the midst of the many abuse of power hearings, ought nonetheless to be scheduling hearings to invite current and former administration officials to reiterate their legal views on drone warfare, with the express purpose of standing with the President on this tool of national security and its permanent, legal, and legitimate place.
In a thoughtful post below, Orin suggests that we don’t know enough about the federal government’s seizure of the AP’s records. As Orin notes, the Justice Department has special rules for this sort of thing. Yet there are reasons to doubt whether the government followed these rules. Among other things, the government is required to take ” all reasonable steps to attempt to obtain the information through alternative sources or means,” including attempts at negotiations with the media source before any request for a subpoena is made, unless the Assistant Attorney General concludes such negotiations would pose a “substantial threat” to the investigation.
This is hardly the first time the federal government has investigated the leak of national security information in the past dozen years, and yet this is the first time a seizure of this scope has been reported. The AP’s letter of protest certainly suggests this was an unprecedented seizure with serious implications for the AP’s newsgathering operations across a range of areas, and that the requisite efforts to obtain the necessary information through other means were not undertaken.
Perhaps the AP is wrong on these points, and perhaps DoJ did everything that is required. If so, there might not be cause for outrage. But that would hardly make this a “non-story.”
UPDATE: To place this in further context, it’s worth remembering the FBI has a history of obtaining phone records without following the relevant guidelines.
SECOND UPDATE: Another reason I don’t believe this is a “non-story” is because seizures of this sort have potentially significant implications for newsgathering organizations. Further, insofar as the relevant guidelines vest the Justice Department with substantial discretion, how such discretion is used is a matter of significant import. I agree with Orin that it’s possible that the Justice Department acted properly here (though [...]
The AP reports:
The Justice Department secretly obtained two months of telephone records of reporters and editors for The Associated Press in what the news cooperative’s top executive called a “massive and unprecedented intrusion” into how news organizations gather the news.
The records obtained by the Justice Department listed outgoing calls for the work and personal phone numbers of individual reporters, for general AP office numbers in New York, Washington and Hartford, Conn., and for the main number for the AP in the House of Representatives press gallery, according to attorneys for the AP. It was not clear if the records also included incoming calls or the duration of the calls.
In all, the government seized the records for more than 20 separate telephone lines assigned to AP and its journalists in April and May of 2012. The exact number of journalists who used the phone lines during that period is unknown, but more than 100 journalists work in the offices where phone records were targeted, on a wide array of stories about government and other matters.
UPDATE: More from BLT here. It’s important to note that this is not the first time the federal government has obtained phone records in this manner. It is, however, one of the few (if only times) the seizing of such records has become public.
Rep. Mac Thornberry (R-Texas), member of the US House of Representatives Armed Services Committee, plans to introduce a bill that would increase Congressional oversight over kill-capture operations conducted outside of Afghanistan by the US military. University of Texas law professor Robert Chesney discusses the proposed legislation over at Lawfare, and gives a section by section commentary. Whether this is an important step or not depends on one’s starting point, of course; I agree with Chesney that it is a big deal and a welcome step to regularizing . (Though if one’s view is that all these operations are unlawful, or that they require judicial oversight, or something else, whether from the Left of the Democratic Party or what we might call the Pauline wing of the Republican Party, then you won’t be much moved.)
Seen within the framework of US law and oversight of overseas use of force operations, this is an important step. A couple of observations. First, this (soon-to-be) proposed legislation is with respect to operations conducted by the US military under US Code Title 10; it does not cover CIA activities, which are already subject to oversight and reporting under US Code Title 50. Second, it covers US military operations with respect to the lines of oversight running back to the Armed Services committees; essentially it increases the role of the Armed Services committees in oversight of US military operations in what it defines as “Sensitive Military Operations” – which in practice means clandestine Joint Special Operations Command (JSOC) activities. It does not alter the existing oversight processes of Congressional intelligence committees governing covert action as defined in US Code Title 50, but extends and increases oversight over military operations. Why this focus on military operations conducted by JSOC?
Counterintuitive as many might find it, [...]
My written testimony on the use of drones for targeted killing in the War on Terror submitted for yesterday’s hearing the Senate Judiciary Subcommittee on the Constitution, Civil Rights, and Human Rights is now available here. You can view the video of the oral testimony (both mine and the other witnesses) here. I will post links to the other witnesses’ written testimony when and if they become available.
UPDATE: The written testimony of all the witnesses is now available here (see list of their names off to the right).
A video of my and other witnesses’ oral testimony on the use of drones for targeted killing in the War Terror, before the Senate Judiciary Subcommittee on the Constitution, Civil Rights, and Human Rights is now available here (just click on “webcast”). It was interesting for me to see that there was a broad consensus among the academic and ex-military witnesses on two key points: that the use of drones for targeted killing of terrorists is not inherently illegal or immoral, and that we need stronger safeguards to ensure that we are limiting drone strikes to legitimate military targets. It seems to me that many of the senators who asked questions – both Democrats and Republicans – were also sympathetic on these points. Whether this will lead to appropriate reforms remains to be seen.
I will try to post my written testimony by tomorrow.
UPDATE: You can also watch the hearing at the C-SPAN site here, though there are a few technical problems in that video that I noticed.
UPDATE #2: I do want to clarify one unfortunately ambiguous aspect of an answer I gave to a question by Sen. Michael Lee around 2:07:00 of the video at the Subcommittee website. I mentioned there that the Israeli government government has a judicial review mechanism for considering the legality of targeted killing decisions. I should have made clear that the Israeli system, as outlined in the Israeli High Court of Justice’s 2006 decision on the legality of targeted killing, establishes after-the-fact judicial review rather than judicial review in advance, of the kind contemplated in proposals to create a FISA-like court to review targeting decisions aimed at US citizens in advance. Both Sen. Lee’s question and the part of my answer that mentions Israel were ambiguous on the issue of [...]
For those who may be interested, on Tuesday at 4 PM, I will be testifying at a hearing on “Drone Wars: The Constitutional and Counterterrorism Implications of Targeted Killing,” held by the Senate Judiciary Subcommittee on the Constitution, Civil Rights, and Human Rights. My testimony will focus primarily on the issues addressed in this post. You should be able to watch the hearing on C-SPAN and possibly at the Subcommittee’s website linked above.
I was only very recently invited to participate in this hearing, and I am not sure who all the other witnesses will be. But I do know that Prof. Rosa Brooks of Georgetown will be one of them, and that Senator Rand Paul is going to make a statement before the Subcommittee at the start of the hearing.
UPDATE: The complete witness list is now available here. It is as follows:
General James Cartwright
United States Marine Corp (Ret.)
National Security Studies Program
New America Foundation
Professor of Law
Georgetown University Law Center
Colonel Martha McSally
United States Air Force (Ret.)
Professor of Law
George Mason University School of Law
Arlington, VA [...]
Two Chechen Islamist terrorists have succeeded in turning Boston, America’s cradle of liberty, into a prison. Just when we had gotten used to obscene lines and searches at airports as the price we pay for safety, the lockdown of Boston illustrates the extent to which civil liberties are at stake in the war on terror. Since 9/11, there has been an ongoing debate about the protection of the rights of suspected terrorists. But today’s events show that its is not just the civil liberties of terrorists at stake, but also those of millions of innocent civilians.
If Boston is “closed” for just six hours, that is 175000 man days of functional house arrest; roughly as many as would be required to keep everyone in Guantanamo confined for a year or two. No doubt the police overreaction will be severely criticized in coming days, but largely on policy grounds, not civil rights grounds.
Yet such freakouts are nothing compared to what is in store if the the Marathon bombing means that Chechen jihadis has come to U.S. shores. The Chechens mounted one of the most vicious terror campaigns ever against Russia in the 1990s, blowing up apartment buildings, and launching massive attacks on theaters and even schools. They are known as among the most violent and dedicated terrorists in the world. They can be found fighting in Libya, Syria and every other major jihadi campaign. Though usually they have to sneak into the target countries, rather than coming on a visa as the Boston bombers apparently did.)
Russia only succeeded in suprresing the Chechen Islamists with extremely brutal tactics that would never find support in the U.S – essentially leveling the Chechen capital. Yet dealing with such a threat would also be impossible with a politically correct approach to counter-terror that, [...]
This Wednesday, April 10, at 12 PM, I will be taking part in an event on the legal and policy issues surrounding the use of drones in the War on Terror, at George Mason University School of Law. I will be on a panel with my GMU colleagues Jeremy Rabkin and Nathan Sales. The event is sponsored by the GMU Muslim Students Association and by Students for Liberty. It will be held in Room 120. [...]
The American Civil Liberties Union (ACLU) sued the Central Intelligence Agency (CIA) under the Freedom of Information Act (FOIA) seeking information about drone strikes. The CIA filed a so-called “Glomar response,” refusing to confirm or deny the existence of material responsive to the ACLU’s request. The ACLU then sued, and the district court granted summary judgment to the CIA. Today, however, in ACLU v. CIA, the U.S. Court of Appeals for the D.C. circuit reversed, rejecting the CIA’s justification of its Glomar response. As the court explained:
The CIA has proffered no reason to believe that disclosing whether it has any documents at all about drone strikes will reveal whether the Agency itself — as opposed to some other U.S. entity such as the Defense Department — operates drones. There is no doubt, however, that such disclosure would reveal whether the Agency “at least has an intelligence interest in drone strikes.” . . . The question before us, then, is whether it is “logical or plausible,” . . . for the CIA to contend that it would reveal something not already officially acknowledged to say that the Agency “at least has an intelligence interest” in such strikes. Given the extent of the official statements on the subject, we conclude that the answer to that question is no. . . .
Given . . . official acknowledgments that the United States has participated in drone strikes, it is neither logical nor plausible for the CIA to maintain that it would reveal anything not already in the public domain to say that the Agency “at least has an intelligence interest” in such strikes. . . . The defendant is, after all, the Central Intelligence Agency. And it strains credulity to suggest that an agency charged with gathering intelligence affecting