Intelligence Surveillance Research Articles

Settled Law in Unsettling Times: A Lockean View of the War on Terror

Settled Law in Unsettling Times:A Lockean View of the War on Terror Clement Fatovic (bio) As is often the case with ideals, professions of support for the rule of law have been much more widespread than agreements on its meaning during the so-called war on terror. Even though debates over the use of indefinite detentions, military commissions, "enhanced" interrogation techniques, warrant-less wiretaps, and other controversial policies are sometimes portrayed in the media as disputes between those who insist on following established laws at all costs and those who view established laws as obstacles to critical national security interests, both the proponents and the critics of these practices can make reasonable claims that the law is on their side. There is undoubtedly a mixture of hypocrisy, cynicism, and grandstanding in some of these invocations of the law, but everyone seems to agree that in a liberal democratic society it is difficult—if not impossible—to justify any policy, program, or measure that lacks a solid basis in law. Whether sincere or not, everyone appears to accept that law is the only legitimate basis for government action. However, there is a historical and theoretical tradition within liberalism originating with John Locke that justifies the use of extralegal action in certain circumstances. Locke's account of the extralegal power he calls "prerogative" may provide insights into the meaning and limits of the rule of law in dealing with extraordinary challenges. Legality and Legitimacy in the War on Terror A good part of the debate over the war on terror has focused on the legality of policies adopted by the Bush administration—many of which have actually been continued with little change by the Obama administration.1 Criticisms that many anti-terrorism policies violate the rule of law range from cautious claims they "often skirt the legal perimeter"2 to furious charges that they are "plainly illegal."3 For instance, some note that the use of waterboarding violates a variety of laws against torture, including the Eighth Amendment's prohibition against "cruel and unusual punishment," Common Article 3 of the Geneva Conventions, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and 18 U.S.C. §§ 2340–2340A. Opponents also argue that the Bush administration had circumvented the procedural requirements established by the Foreign Intelligence Surveillance Act of 1978 and simply ignored the prohibition against indefinite detentions "except pursuant to an act of Congress" mandated by the Non-Detention Act. Critics often point to court decisions in Rasul v. Bush (2004), Hamdan v. Rumsfeld (2006), Boumediene v. Bush (2008), and other high-profile cases invalidating elements of the government's detention policies as vindication of their arguments that many aspects of the war on terror have been illegal. Contrary to assertions that the Bush administration exhibited utter disregard for the law in its efforts to prevent "another 9/11," there is evidence that the Bush administration actually took an "excessively legalistic" approach in seeking to justify some of the most controversial policies it adopted in the first few years after the attacks.4 Even Justice Department lawyers who raised moral or political objections to the use of harsh interrogation tactics agreed "the methods themselves were legal."5 This is not to say that the law was never distorted (e.g., on prohibitions against torture) or ignored (e.g., through presidential signing statements), but that administration officials vigorously defended counter-terrorism policies within the framework of existing laws they believed were amenable to an expansive understanding of unilateral executive power. Even former deputy assistant attorney general John Yoo, who has complained that "many people have an exaggerated view of the role of law" when it comes to dealing with the threat of terrorism, has consistently maintained that the anti-terrorism policies adopted in the wake of September 11 are lawful.6 Likewise, former Vice President Dick Cheney, who has been the most outspoken defender of the Bush administration's policies, has followed Yoo's lead in arguing that officials had sufficient legal authority to intercept communications involving suspected terrorists, detain them indefinitely, and use "enhanced" methods of interrogation. As Cheney explained in a nationally televised speech, "In seeking...

Damascus: A Geographical Field Note*

Thanks to Google Earth and other geovisualization programs, anyone with access to computers and high-speed Internet connections can view urban scenes in a way our forebears could only dream of, with a sometimes illusory sensation of knowing all there is to know about life down below because it can be in computerized rendering: an unmatched perspective on the workings of cities. The satellite image, however, is a veneer, a pattern, a protective shield that covers strata such as social forces or economic tectonics. To crack the veneer and peer inside, the geographer must investigate and corroborate from the ground, employing the gently oblique-angled perspective of the observer on foot. The value of being on the ground with a traditional terrestrial perspective awaits its renaissance. I made this discovery on a research trip to Damascus in the summer of 2005. I sought population data from the 2004 Syrian census, and I also wanted to explore housing conditions and investigate the role of GIS in the governance of Damascus and its municipalities. Very little has been written about control of geospatial data in authoritarian states (for general discussions, see Coleman 2004; Coaffee 2005). By extension, I was on a mission to test an approach to ground-based research that consists of interpretation in the field, analysis of statistical data, and use of remotely sensed information. Like other rapidly growing cities in the developing world, Damascus is a city of contrasts: minarets and satellite dishes; stone hovels tumbling down bleached white hills; souks and cafes; churches and Soviet-style apartment blocks. Damascus is a destination of Saudi shoppers, Hezbollah guerrillas, and Iraqi refugees--all under the ever-present watch of Syrian security personnel (Figures 1 and 2). [FIGURE 1 OMITTED] [FIGURE 2 OMITTED] As an urban and population geographer, I am interested in both pattern and process in metropolitan settings. Through my work as a census technical advisor, I have seen firsthand the ability of GIS--or, more broadly, geospatial technology--to improve urban governance in the case of Amman, Jordan, a wired city that exemplifies postmodern Arab identity. King Hussein's legacy of highway flyovers and unveiled women--not to mention seamless intelligence surveillance--marks the relative stability of the kingdom in what Jordanians know too well as a bad neighborhood regionally. The question of Syria's recent interest in GIS, and the irony of its apparent success given the closed nature of the Syrian government, stands in opposition to the culture of sharing embodied by Jack Dangermond's Environmental Systems Research Institute, in which networks of computers and skilled practitioners carry the day with intraorganizational communication and problem solving. I was continually astonished while in greater Damascus, meeting with the local GIS consulting company, the Syrian Central Bureau of Statistics, and the Ministry of Local Administration and Environment. Syrians were solving some of their urban-related problems using technology that was barely accessible to them (due to an ongoing U.S.-led embargo), working in obscurity to address issues surrounding the stressed urban environment. Much of the government work relating to geospatial technology in Damascus is done in secret by an agency called the General Establishments Survey, which owns all data layers but about which little is known (Mott MacDonald 2003). Much of what I gleaned about geospatial development in Syria came through conversations with consultants affiliated with one or more of the private companies operating in Damascus. Out of respect for their continued success in obtaining government work in an official culture that repeatedly crosses the line from bureaucratic paranoia into vindictive retribution, I have changed their names and obscured their affiliations. THE ENIGMA OF ARRIVAL Geospatial technology and governance change in the Middle East were not foremost in my mind as my airplane descended into Damascus. …

“Backlash” and Its Utility to Political Scientists

The global warming backlash, the managed care backlash, the Bush backlash, the corporate backlash, the 9/11 backlash, the Obama backlash, the Clinton backlash, the Foreign Intelligence Surveillance Act (FISA) bill backlash, the antigay backlash, the immigration backlash, the backlashes against globalization, student testing, the social, economic, and political progress of Latinos, African Americans, and Asian Americans, and, central to this “Critical Perspectives,” the backlash against the feminist movement—these were just some of the many politically related backlashes that appeared when I performed a general Google search of the words: “backlash” and “politics” in July of 2008.

The Bush-Cheney administration's assault on open government

Introduction 1 Freedom of Information Act in Retreat 2 Overturning the Presidential Records Act 3 Challenging the GAOs Statutory Powers 4 Defeating the Federal Advisory Committee Act 5 Subverting the Foreign Intelligence Surveillance Act Notes Bibliography

Libraries and the USA PATRIOT Act: Values in Conflict

ABSTRACT The USA PATRIOT Act (USAPA) celebrated its sixth anniversary in 2007 as an omnibus measure for granting expanded authority to federal officials for monitoring and intercepting communications in all formats. The great majority of USAPA is now permanent law, with only two of its original 16 sections operating under sunset clauses. One of those sections is the controversial 215, which grants greater access to “any tangible item” via Foreign Intelligence Surveillance Act (FISA) request procedures. Librarians interpreted that clause to include their records on patron activity and have therefore vigorously protested the federal government's challenge to their professional ethics and their patrons' privacy. It is a measure of their successful resistance that Section 215 remains open to review until 31 December 2009 and that the federal government felt obliged to specifically cite libraries as exempt from being issued National Security Letters (NSL). It is a measure of how far libraries have yet to go that the federal government still claims libraries are not “electronic communication service providers” and therefore not eligible to be served with NSLs, a position not held by any other concerned entity. As in so many other aspects of American culture since 11 September 2001, the struggle between individual liberties and national security continues.

Applied Multi-Dimensional Fusion

The purpose of the Applied Multi-dimensional Fusion Project is to investigate the benefits that data fusion and related techniques may bring to future military Intelligence Surveillance Target Acquisition and Reconnaissance systems. In the course of this work, it is intended to show the practical application of some of the best multi-dimensional fusion research in the UK. This paper highlights the work done in the area of multi-spectral synthetic data generation, super-resolution, joint fusion and blind image restoration, multi-resolution target detection and identification and assessment measures for fusion. The paper also delves into the future aspirations of the work to look further at the use of hyper-spectral data and hyper-spectral fusion. The paper presents a wide work base in multi-dimensional fusion that is brought together through the use of common synthetic data, posing real-life problems faced in the theatre of war. Work done to date has produced practical pertinent research products with direct applicability to the problems posed.

Can the President Read Your Mail? A Legal Analysis

As a new President faces a whole host of civil liberties issues upon taking office, one that looms large is communications privacy. Still unresolved from the previous administration are the legality of President Bush's so-called Terrorist Surveillance Program and the constitutionality of the Foreign Intelligence Surveillance Act. Embedded in those important questions is a question about the sanctity of the nation's oldest and most venerable means of long-distance communications, the mail. That question is whether the government may open first-class mail without a warrant and, if so, under what circumstances. In this short article, I analyze the regulatory, statutory, and constitutional issues related to that question. I conclude that the statutory prohibition on mail opening only applies to mail matter that falls into the category of - which, roughly speaking, is defined as a message or communication or correspondence. The prohibition on mail opening does not apply to mail matter other than correspondence, such as bombs, anthrax or any ordinary good. The statute bars the opening of letters without a warrant, subject only to one relevant exception: the physical searches provisions in the Foreign Intelligence Surveillance Act (FISA). The government may not open letters without either a warrant or following the procedures set forth in FISA. There is no exigent exception for letters, though the government may temporarily detain a letter for the purpose of obtaining a warrant.On the other hand, the government may open other mail matter without a warrant subject only to the strictures of the Fourth Amendment. The Fourth Amendment does contain an exigent exception to the ordinary rule that a warrant is required. Thus, scenarios that might involve hazardous materials such as anthrax or a ticking time bomb would in many circumstances fall into this exception.

Presidential Authority to Gather Foreign Intelligence

President George W. Bush has claimed inherent constitutional authority to collect foreign intelligence on his say‐so alone in contravention of the warrant requirements stipulated in the Foreign Intelligence Surveillance Act of 1978 (FISA), as amended six times since 9/11. The constitutionality of FISA, however, is incontestable. It is justified by the Necessary and Proper Clause of Article I, section 8, clause 18 in light of the massive foreign intelligence abuses compiled during forty years of absolute executive power. FISA leaves the separation of powers undisturbed. It regulates only a microscopic percentage of foreign intelligence collection. To sustain President Bush's constitutional claims would “trust me” the measure of our civil liberties, not the checks and balances intended by the Constitution's architects.

Domestic Surveillance for International Terrorists: Presidential Power and Fourth Amendment Limits

After 9/11, the President authorized the National Security Agency to conduct warrantless electronic surveillance of American residents. Critics of this so called Terrorist Surveillance Program (TSP) say it violates the Foreign Intelligence Surveillance Act of 1978 (FISA) and the Fourth Amendment. Defenders of the TSP counter that, regardless whether it violates FISA, it falls within the President's congressionally irreducible power to protect national security and within the relaxed Fourth Amendment governing national security searches. This article focuses on the overlooked connection between the issues of whether the TSP (1) falls within the President's powers; or (2) violates the Fourth Amendment. The article concludes that the President has inherent power to authorize surveillance -- even surveillance that violates a generally valid Act of Congress, such as the FISA -- when such surveillance is reasonably necessary to respond to a genuine national security emergency. Further, a genuine national security emergency will ordinarily bring warrantless electronic surveillance within the exigent circumstances doctrine of the Fourth Amendment, as modified by the special needs doctrine. This connection between presidential power to ignore an Act of Congress and to act unfettered by traditional Fourth Amendment restrictions is not mere coincidence. Both the separation-of-powers doctrine and Fourth Amendment doctrine limit executive power but carve out an area in which the President may act free of ordinary constraints when necessary to protect the nation. The article applies this analysis to the TSP from its inception to its current status under the Protect America Act of 2007.

Rethinking Foreign Intelligence Surveillance

This précis is abstracted from the “The Ear of Dionysus: Rethinking Foreign Intelligence Surveillance,” to be published in the Yale Journal of Law and Technology (forthcoming spring 2007).

Prometheus embattled: A post-9/11 report card on the National Security Agency

Five years after the tragic events of September 11, 2001, the National Security Agency (NSA) has risen to the position of being the largest and most powerful intelligence agency in the US. Working in close conjunction with its English-speaking partners overseas, NSA is today the most prolific producer of top-quality intelligence information reaching senior US government policymakers and field commanders. But press reports over the past year concerning the Agency's controversial domestic eavesdropping program and problem-plagued modernization effort, have raised serious questions once again about the competency of the Agency's long-troubled management practices, as well as whether NSA, at the behest of the Bush administration, exceeded its legal authority by extending its operations into the US for the first time since the mid-1970s in contravention of the Foreign Intelligence Surveillance Act (FISA) of 1978.

Domestic Spying: Presidential Power and Fourth Amendment Limits

This article examines the recently disclosed, presidentially authorized program of warrantless electronic surveillance by the National Security Agency (NSA). Critics of the program say it violates the Foreign Intelligence Surveillance Act of 1978 (FISA) and the Fourth Amendment. Supporters counter that it falls within the President's congressionally irreducible power to protect national security and within the relaxed Fourth Amendment constraints for national security searches. This article focuses on an aspect of the controversy to which neither critics nor supporters have paid much attention: the connection between the issues of whether the NSA program violates FISA and whether it violates the Fourth Amendment. The article concludes that the President can authorize surveillance that violates FISA when such surveillance outside FISA is reasonably necessary to respond to a genuine national security emergency. That same emergency will ordinarily bring the surveillance within the exigent circumstances doctrine of the Fourth Amendment, as modified by the special needs doctrine. This overlap between presidential power to ignore an Act of Congress and to act free of traditional Fourth Amendment constraints is not mere coincidence. Both the separation of powers doctrine and Fourth Amendment doctrine limit executive power but carve out an area in which the President may act free of ordinary constraints to protect the nation. The analysis underlying this conclusion is more nuanced (and stakes out a more moderate position) than that offered by most critics and supporters of the NSA program. The analysis may, therefore, supply a legal foundation for principled and politically feasible legislative reform.

Unitary Executives, Rhetorical Histories, and the National Security Agency's Strategic Remembrances of the Foreign Intelligence Surveillance Act (FISA)

Unitary Executives, Rhetorical Histories, and the National Security Agency's Strategic Remembrances of the Foreign Intelligence Surveillance Act (FISA)

Longitudinal Assessment of Community Psychobehavioral Responses During and After the 2003 Outbreak of Severe Acute Respiratory Syndrome in Hong Kong

In previous literature, the stability and temporal evolution of psychobehavioral responses to an outbreak remained undefined, because of the exclusively cross-sectional nature of such study designs. Using random-digit dialing, we sampled 4481 Hong Kong residents in 6 population-based surveys that were conducted at different times during and after the 2003 outbreak of severe acute respiratory syndrome (SARS). Respondents' State-Trait Anxiety Inventory score (range, 10-40) showed a decreasing temporal trend, from a high mean value of 24.8 during the peak of the Amoy Gardens outbreak to a postepidemic mean baseline value of 14.5. Those who perceived a higher likelihood of contracting or dying of SARS had significantly higher anxiety scores. Female respondents, individuals aged 30-49 years, and individuals with only a primary education or less were predisposed to greater anxiety. There was a positive dose-response gradient between anxiety level and uptake of personal protective measures. Males respondents, individuals at the extremes of age, and individuals with lower educational levels were less likely to engage in self-protective behavior. The presence of symptoms was the only consistent predictor for greater use of health services. There was remarkable stability in the magnitude and the direction of associations between predictors and outcomes over time. Our findings can assist in modifying public service announcements in the future, which should be tailored to psychobehavioral surveillance intelligence to achieve the desired behavioral outcomes. Future research should explore the use of more-sophisticated techniques, including structural equation modeling and game-theoretical frameworks, to analyze population psychology and behavior, and it should integrate such findings with transmission dynamics modeling.

Autonomous acoustic sensing on mobile ground and aerial platforms

Acoustic sensor systems on the ground and/or in the air can be used effectively for autonomous and remote intelligence surveillance and reconnaissance (ISR) applications. Acoustic sensors can be used as primary sensors and/or secondary sensors to cue other higher-resolution sensors for detection, tracking and classification of continuous and transient battlefield acoustic events such as ground vehicles, airborne aircraft, personnel, indirect fire, and direct fire. Current collaborative research activities at ARL in acoustic sensing from mobile ground platforms such as HMMWVs and small robotic vehicles [P. Martin and S. Young, Proc. of SPIE Defense & Security Symposium, 2004] and from aerial platforms such as UAVs and balloons [Reiff, Pham et al, Proc. of the 24th Army Science Conference, 2004] demonstrate practical performance enhancements over fixed ground-based platforms for a number of ISR applications. For both mobile ground and aerial platforms, self-generated noise (flow noise and platform noise) is problematic but they can be suppressed with specialized windscreens, sensor placement, and noise cancellation technology. Typical acoustic detection and processing results for mobile platforms are compared and contrasted against fixed ground-based platforms.

Does (Should) the Patriot Act Raze (or Raise) the Wall Between Foreign Intelligence and Criminal Law Enforcement?

This article analyzes statutory foundation of the between foreign intelligence and criminal law enforcement. The wall arose from case law interpreting Foreign Intelligence Surveillance Act of 1978 (FISA). The case law held that government cannot conduct electronic surveillance under FISA for of investigating and prosecuting crime. The Department of Justice adopted procedures to implement primary purpose test. Those procedures came to be known as the and came to be cited as one factor for United States' failure to prevent 9/11 terrorist attacks. After 9/11, Congress amended FISA in Patriot Act to eliminate primary purpose test and thereby, supposedly, tear down wall. According to recent decision of Foreign Intelligence Surveillance Court of Review (FISA Court of Review), however, Patriot Act actually created a statutory wall between foreign intelligence and law enforcement that did not exist before. This article concludes that both case law and FISA Court of Review have misinterpreted FISA. The original FISA did not impose a primary purpose test, but it did permit government to use FISA surveillance to investigate and prosecute crime only if government intended prosecution to serve one or more of five foreign intelligence purposes identified in FISA. To ensure that government does not use FISA surveillance for prosecution as an end in itself, courts can review government's intended use of information sought by FISA surveillance. The Patriot Act confirms courts' authority to conduct such review, but it also relaxes standard of judicial review associated with primary purpose test.

The USA PATRIOT Act, the Foreign Intelligence Surveillance Act, and Information Policy Research in Libraries: Issues, Impacts, and Questions for Libraries and Researchers

While the USA PATRIOT Act has altered how certain types of federal intelligence investigations affect libraries, the act also greatly alters how researchers can study information policy issues related to libraries. To date, the gravity and scope of the act's implications for researchers of library services, resources, operations, and policies have not been discussed widely. Researchers now must account for questions they cannot ask, or may not be able to ask, during the course of information policy research related to libraries. This article examines how the multiple impacts of the USA PATRIOT Act on libraries extend to researchers of library services, resources, operations, and policies, placing the current situation in historical context. These limitations, in turn, affect all libraries, as the findings of information policy research often have serious implications for the functions of libraries. This article discusses the myriad issues and research questions created by the USA PATRIOT Act for researche...

The Fine Line between Security and Liberty: The "Secret" Court Struggle to Determine the Path of Foreign Intelligence Surveillance in the Wake of September 11th

The structure of the United States federal court system can be considered common knowledge: the Supreme Court sits atop a pyramid of lower circuit courts and trial courts, all of which are, for the most part, open to the public. Until 2002, most Americans were unaware of the existence of a "secret" court whose sole duty is to review and approve applications authorizing foreign intelligence surveillance conducted by the Executive Branch. The year 2002 was an unprecedented year for the Foreign Intelligence Surveillance Court ("FISC"),3 and the statute that created it, the Foreign Intelligence Surveillance Act of 1978 ("FISA").4 For the first time in FISA's twenty-three year history, FISC denied an application for electronic surveillance and the Foreign Intelligence Surveillance Court of Review ("Court of Review") was convened to hear its first appeal.5

Judicial Review and the War on Terrorism

This article examines the role of the federal courts in the war on terrorism, and contrasts the different judicial roles in reviewing decisions about the conduct of war abroad and within the United States. It explains that judicial refusal to adjudicate questions concerning the initiation and conduct of the war abroad is consistent with a narrow view of judicial review and the political question doctrine. Because the Constitution allocates different war powers to the President and Congress, allowing them to shape warmaking through the interaction of these powers, there is no single, constitutionally-required process for making war that requires judicial enforcement. This view has been borne out in practice, as most recently demonstrated in the wars in Afghanistan and Iraq. The paper also reviews the role played by federal courts with regard to the domestic effects of war, particularly when the war involves American citizens as enemies or when operations occur within the territory of the United States itself. It illustrates the wartime role of judicial review by examining cases arising from the current war against the al Qaeda terrorist organization. In the context of surveillance, the federal courts have granted warrants under the Foreign Intelligence Surveillance Act (FISA) using more flexible standards than exist for a normal search warrant, to permit surveillance of terrorist suspects. With American citizens detained as enemy combatants, the courts have entertained habeas corpus petitions, but have followed a deferential standard of scrutiny for the executive branch's war making decisions. These cases show that while the courts have exercised judicial review over the consequences of the decision to go to war, they have adopted a more flexible, deferential standard of review than would apply to normal, peacetime governmental actions, in order to accommodate the imperatives of conducting war. Thus, judicial review may apply to domestic wartime measures, but in a manner that provides options to the political branches for the conduct of the war, rather than simply serving as a negative check on government action.

A Sense of Purpose: The Role of Law Enforcement in Foreign Intelligence Surveillance

A Sense of Purpose: The Role of Law Enforcement in Foreign Intelligence Surveillance