of the American Society for Information Science and Technology          Vol. 28, No. 4          April / May 2002

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Information and the War Against Terrorism

Part IV: Civil Liberties versus Security in the Age of Terrorism

by Lee S. Strickland

Lee S. Strickland, J.D., visiting professor, College of Information Studies, University of Maryland, can be reached by e-mail at lee.karen.strickland@worldnet.att.net

In Part I of this series (ASIST Bulletin, December/January 2002) we considered information and information network theory as the primary, offensive war tools in the War against Terrorism while in Part II (February/March 2002) we addressed the critical question as to whether American intelligence and law enforcement, with their information collection, exploitation and use responsibilities, were positioned to protect the public. Part III (February/March 2002) began to answer that question by considering the newly enacted USA Patriot Act. Today, in Part IV, we complete that answer with a survey of other legal provisions as well as new security-related practices in government and business as security competes with civil liberties.

Other Laws vis--vis Terrorist Interdiction and Prosecutions

The 4th Amendment Overseas. One change proposed by the Administration in the USA Patriot Act but rejected by Congress would have allowed for use in U.S. courts of a foreign government's intercept of a U.S. citizen's communications even if there were a "violation" of the citizen's rights. This rejection, however, does not change established Constitutional law that is very relevant to the war for both citizens and aliens.

First, the search and/or seizure provisions of the 4th Amendment do not apply to aliens overseas, even for activities conducted by U.S. government officers and even if the person is brought to this country for trial. See, for example, United States v. Verdugo-Urquidez , 494 U.S. 259 (1990) holding that 4th Amendment protection applies at the time, location and object of the seizure and only to "the people," meaning generally U.S. citizens.

Second, the 4th Amendment warrant provisions also do not apply overseas to U.S. citizens when a person is acting on behalf of a foreign power. See, for example, United States v. Bin Laden, et al., 126 F.Supp.2d 264 (S.D.N.Y. 2000) upholding, in the case involving the garage bombing of the World Trade Center, warrantless searches overseas of U.S. citizens to the extent the searches are (1) authorized by the President or the Attorney General, (2) target foreign powers or their agents and (3) meet a reasonableness requirement.

How do we thus reconcile the language rejected in the Patriot Act with this established Constitutional law? For the average American citizen there are two circumstances of potential concern. The first is incidental collection by the United States in the course of an unrelated intelligence activity. Here, generally, incidental interception during an otherwise lawful surveillance does not violate the 4th Amendment, and indeed Executive Order 12333 specifically authorizes the collection, use and dissemination of incidentally obtained information that may indicate involvement in activities that may violate federal, state, local or foreign laws. The second circumstance is collection by a foreign intelligence service that is subsequently provided to the United States. Here also there is likely no Constitutional issue assuming that there was no complicity on the part of the United States authorities in collection.

A related Constitutional issue is also relevant in the war against terrorism 5th Amendment challenges to statements made by suspected terrorists. Here the law is somewhat different and the courts have held that the violation of the privilege against self-incrimination begins when a defendant's statements are used against him in a U.S. court proceeding and not when law enforcement officials obtain the information. As such, aliens and citizens who are the present subject of a U.S. criminal proceeding are protected by the privilege against self-incrimination and the use of information acquired from the subject overseas is subject to the Miranda rule. Thus, by way of examples, the bin Laden court has allowed statements without Miranda rights made while detained but not arrested, noting that the statements were not "coerced or otherwise induced through the misconduct of the officials involved," notwithstanding the fact that the defendant may have cooperated because of his fear of local police. The same court, however, in the context of two alien defendants who had been arrested by Kenyan police, found a violation and thus excluded statements made prior to advise-as-to-rights and suggested that the standard "advice of rights" form used by U.S. law enforcement officials for overseas interrogations was facially insufficient because it gave the impression that the suspect could not consult with an attorney, either retained or appointed.

Department of Justice Legal Initiatives. Beyond established Constitutional law, there are other legal provisions of note as a result of initiatives by the Department of Justice. One of the most controversial has been the change of rules regarding the monitoring of detainee-lawyer talks. Until now, communications between a person and his or her attorney were generally considered sacrosanct under the Constitution. Indeed, even communications between an inmate convicted of a felony and his or her attorney have been exempt from the usual monitoring of social phone calls to and visits at federal prisons. Attorney General (AG) Ashcroft's order of October 31, 2001 allows such monitoring without a court order whenever the AG certifies "that reasonable suspicion exists to believe that an inmate may use communications with attorneys or their agents to facilitate acts of terrorism." In addition, it also changes the definition of inmate previously covering only people in custody of the Bureau of Prisons to include anyone "held as witnesses, detainees or otherwise" by any federal authority. To date there has been significant opposition from a wide spectrum of the political sphere that includes the ACLU and Senator Leahy. In response, the department has promised procedural safeguards to protect the Constitutional right of counsel to include actual notice as well as the use of a special "taint team" to insulate the information from prosecutors. But this has not satisfied critics who find especially objectionable the extension of this rule from convicted persons to anyone in custody for any reason. Challenges are expected given that this order perilously invades the protections of the 6 th Amendment.

The Attorney General has also ordered another provision, little noticed, regarding "special administrative measures" that can be imposed on certain inmates. They include solitary confinement, interception of all mail and prohibitions on visitors and telephone calls. These have been extended from their previous 120-day period to a one-year period and subject to renewal indefinitely. Little is known about the application of these rules at this point in time.

And, with information the key not only to prevention but also prosecution, the Administration has considered the future form of prosecution military tribunals in lieu of civil courts. In my judgment there is every legal and practical rationale for this change. First, waging war against the people of the United States is not dysfunctional societal crime properly addressed by our criminal code. To the contrary, the Constitution of the United States was entered into by and protects the civilized people of the United States by granting them a panoply of rights. It has never been deemed to protect those sworn to destroy the people of the United States in their homes and on the field of battle. Second, the law and precedent strongly support military tribunals from the trial and execution for the Lincoln assassination conspirators to the more recent secret trials of German saboteurs at the Department of Justice during World War II. And third, there is every reason to expect that criminal trials would risk intelligence sources and methods, martyrdom and a public spectacle unsuitable for what is, in all reality, an extension of the battlefield.

On the Matter of Military Tribunals

According to Stewart Baker, former general counsel of the National Security Agency: "We have judicialized more aspects of human behavior than any civilization in history, and we may have come to the limit of that." Similar thoughts come from Dave McIntyre, former dean of the National War College: "On the high seas if you saw a pirate, you sank the bastard. You assault pirates, you don't arrest pirates."

President Bush authorized the military tribunal solution by military order of November 13, 2001. Although the ACLU has criticized the order as "deeply disturbing" and inconsistent with ideas "central to our democracy," the relevant point is that this solution has been recognized and affirmed by the courts from the founding of our Republic.

  • Foreign nationals are subject to the order to the extent the President has "reason to believe" they are or were members of al-Qaeda or took part in any manner in "international terrorism" against the United States or knowingly harbored such people. However, traditionally, the standard for military tribunals has been more clearly defined offenses (for example, targeting of civilians, genocide or similar crimes against humanity). Here, the scope is broad and somewhat vague since the law of war vis--vis terrorism is not well defined. Moreover, there are additional provisions that suggest the jurisdiction could cover any other offenses committed by the subject individual.
  • The order includes not only those captured on the foreign field of battle but any foreign national living or resident in the United States or elsewhere, whether legally or illegally, regardless of the time frame in which their now-defined offenses took place. Arguably, a permanent resident alien who supported al-Qaeda years ago in any manner could be made subject to the order.
  • The order focuses initially on and authorizes the military detention of anyone meeting the definition. It then allows but does not require a military trial. Arguably, as such, there could be indefinite detention without trial as took place in the United Kingdom in the 1970s during the worst of the Irish terrorism.
  • The order attempts to foreclose judicial review of any action by stating that anyone subject to the order "shall not be privileged to seek any remedy" in any court. This language was modeled on a similar order by President Roosevelt that allowed military trials of German saboteurs. However, even in those circumstances, the U.S. Supreme Court reviewed the convictions in the context of a habeas corpus petition.

World War II Precedents for Military Trials: Ex Parte Quirrin, et al.

The Supreme Court case, Ex Parte Quirin, et al., 317 U.S. 1 (1942), that approved the military trial of the Germans, is instructive today. Initially, the Court found that the law since the founding of our government distinguishes between lawful combatants subject to capture and detention as prisoners of war under terms of international agreements and unlawful combatants subject to trial and punishment by military tribunals for their unlawful acts such as surreptitious entry into enemy territory without uniform and with the intention of destruction of life and property. Indeed, it held that unlawful belligerents could include U.S. citizens who had associated with the military activities of a foreign power.

The Justices, however, declined to state the extent of the circumstances under which the President, using his Constitutional authority as Commander-in-Chief, could create military commissions without Congressional legislation, or, the extent to which the President might define the scope of authorized commissions. Today, the general Congressional authorization relied upon by the Supreme Court in 1942 is found at 10 U.S. Code Section 831 and specifically continues the historical authority of "military commissions . . . with respect to offenses that by . . . law of war may be tried by military commissions." However, what Congress has granted generally may be revoked or more specifically defined today.

Lastly, the Justices held that no provision of the President's order could preclude the civil courts from reviewing the constitutionality of the order in general or its application to given individuals in particular. Thus, even where judicial review is precluded by the terms of a given law, the courts may still consider the constitutionality of the statute or action in general, but will not consider or re-examine the merits of the case in particular.

There is little doubt that a full and fair hearing could be had under the military order even with the trial rules modified as necessary (for example, no hearsay rule since the war makers have killed many of the very people with direct knowledge). But the political criticism from varied quarters may be a primary reason for the lack of any commission trials to date. Some critics have focused on the point that the order, while Constitutional in concept, was crafted with language that is too imprecise and broad. Others have focused on the lack of clearance and consultation with Congress. The use of commissions thus remains an open question.

A New World of New Security Processes

Much has been written about key policy issues such as the federalization of air security and the creation of a dedicated counter-terrorism agency points that are well taken and that have been implemented in part. However, beyond the new laws and policies that we have considered, how will technology affect the functions of government and business and, in turn, affect our Constitutional expectations? This discussion will consider some new tools and, more specifically, their application in particular to the required re-engineering of the immigration system.

Security vs. Privacy: Perhaps the largest question raised by the terrorist attack is how our nation will balance security against our constitutionally based individual freedom and liberty in the future. Do we move dramatically perhaps to electronic identification, electronic tracking of citizen movements and even to electronically tracked money? While these issues are often addressed separately in discussions today, they are inextricably intertwined. The first, electronic identification, has most recently been discussed in the context of a "national identification card" that could take the form of a smart card with a computer chip containing biometric data to validate that the holder is the person so identified.

Such devices are known as radio frequency identification tags and operate using inductive coupling. They contain a computer chip and antenna that are powered by a magnetic field emitted by a remote reader. When activated, the antenna transmits pre-programmed data from the chip to the reader, which in turn may control physical or electronic access or simply store a record of the visit. Of perhaps greater concern are newer tags that operate using capacitive coupling. They can be printed on paper with magnetic ink and are powered by electrostatic charges from the reader. They are cheap and could be ubiquitous placed on all types of items but the reader must be in close proximity. The concern is that their use on potentially dangerous or controlled goods could permit a technology-based "search" by police in excess of that permitted today. However, the courts might not approve such use after the recent decision in United States v. Kyllo, 533 U.S. 27 (2001). In this case involving warrantless thermal imaging of residences, the Supreme Court held: "When the Government uses a device that is not in general public use, to explore details of a private home that would previously have been unknowable without physical intrusion, the surveillance is a 4th Amendment search and is presumptively unreasonable without a warrant."

A minimum first level of implementation has been proposed by the American Association of Motor Vehicle Administrators, which has offered a plan for upgrading state drivers licenses. I submit there should be little legal or policy disagreement since we have today a de facto national ID system with, of course, abysmal security and horrific potential for abuse the state drivers license and the social security card. In essence, a single number permits the possessor to access the totality of information about a citizen in government and private databases. A replacement incorporating biometric identification and the technical potential to compartmentalize personal data should be welcomed.

In reality, I believe that the critical question becomes not initial collection in itself but rather the maintenance, consolidation, data mining and dissemination for other, perhaps unknown, purposes. Most commentators have focused on the instant of collection, but if that engenders privacy concerns, consider how the maintenance and uncontrolled use of thousands of such records over time might impact an individual's privacy. What this tells us is that any such system must be tightly and legally constrained in the way that it maintains, consolidates and disseminates data.

For example, a system modeled on the federal Privacy Act of 1974 with its concept of compartmented, identified databases each with proscribed accesses, uses, maintenance and dissemination rules could provide comprehensive security for personal data and allow citizens to understand and manage their data. While there would be some complexity, given the partial integration of federal, state and private data, the benefits of increased security and privacy could be immense. And without consideration and legal controls, we may expect industry to devise its own systems and rules of operation.

One open question is the manner of employment of this technology since it could move from knowing use to widespread, unwitting recording (tracking). While this is not dissimilar from today's environment where police officers and security cameras monitor our movements, it presents significant issues of consent. A second open question is whether such cards would be required; perhaps they would not be mandatory, simply required if one wanted to drive a car, ride public transport or enter most government or private buildings. Most likely, political pressures would ensure that the cards would not be mandatory. However, the failure to have a card could subject the person to frequent police inquiry under the Supreme Court's decision in Terry v. Ohio, 392 U.S. 1 (1968), that approved warrantless "stop and frisk" of "suspicious individuals" by police officers, subject of course to a "reasonableness" requirement.

In addition to enhanced individual data security and privacy, I submit that such secure documents offer two additional and not insubstantial civil liberties benefits. First, they eliminate the problem of subjective enforcement of the laws with such a system, no citizen or legal resident would be challenged because of their physical appearance or other unconstitutional reason. Second, they provide a substantial improvement in citizen privacy given the reduced need to conduct intrusive searches in many instances, such as airports or public gatherings presenting significant public safety issues.

Lastly, we should recognize that, in point of fact, such a data system could be implemented, at least in part, through the current technology of video cameras and face recognition software the functional and legal equivalent of the current practice of human policing effected, of course, through the subjective lens of each officer. To date, face recognition systems have been deployed generally with some success in Tampa, and most recently in the city of Virginia Beach, Virginia, and at the airport for Fresno, California.

As a further note, the leading makers include Visionics Corp. and ViisageTechnology. Of course, the maximum effectiveness would require incorporation of government-maintained data and that may present privacy issues without legislation. Are they perfect? Of course not, but the response is simply an alarm for closer human inspection.

Information and the Immigration Process. While technology and surveillance practices may enhance our security, we must also focus on reducing the threat ab initio, which means a fundamental rethinking of the immigration system. And that rethinking, in turn, means re-engineering the collection and use of information in the immigration system.

In my judgment, and with agreement from more and more of the political spectrum, the national immigration management process is fatally flawed. Today, the granting of visas is based on the absence of derogatory information indicating ties to terrorist activities and not the existence of positive information to confirm that admission would be in the interests of the United States. By positive information, I mean the type and extent of data compiled over time on individuals in the United States that is required for the issuance of documents ranging from a passport to a credit card.

Positive Data

The need for the requirement of the existence of positive data is confirmed by the cases of the 19 hijackers identified as participants in the events of September 11, 2001. All had been granted U.S. visas; only a few had been able to secure a credit card. While any system may be subverted, the commercial practices in the United States for granting credit and other benefits look to the existence of multiple data elements to validate the applicant's true identity. Most credit card fraud arises from the appropriation of a valid, documented identity, not the creation and passing off of a new identity. And if we combined this current process with biometric identification at point of use, credit card fraud would drop dramatically. Similarly, if we used positive data as well as biometric data, visa fraud would likewise largely disappear.

Basically, all visa applications are simply checked against a watch list maintained by the Department of State that contains 5.7 million names for foreign nationals who may be inadmissible for reasons ranging from visa problems to known terrorist associations. This system, known as the Consular Lookout and Support System, or CLASS, became mandatory several years ago after the known terrorist Sheik Omar Abdel Rahman was granted a visa, entered the United States and then directed the 1993 bombing of the World Trade Center. He was subsequently convicted of his crimes in 1995, but Congress was outraged at the ease by which known terrorists could enter the United States. The real focus of our immigration system is weeding out people intending to settle illegally in the United States, not those who might wage war against our country and our people.

The shortcomings? First, there is not full and seamless data integration (sharing) between national terrorism-related information systems; for instance, the Department of State has no access to the FBI's criminal database (NCIC) and only limited interfaces with the Immigration and Naturalization Service and Customs systems. Second, the systems look only for name matches against a defined list of offenders or excludees. They generally contain no information on people for whom there is suspicion based on contacts or relationships with suspect people or organizations. Third, there is no inclusion of wide-ranging information from foreign immigration and security services clearly the best source on external threats. Fourth, there is no requirement for the existence of positive data in any form to confirm the true existence of the individual including biometric data thus greatly facilitating the successful use of newly created identities. And fifth, there is no mechanism to track foreign nationals who legally enter the United States and thus no means to identify those who subsequently violate the terms of their visas or who are subsequently determined to pose a national security threat. In coming issues, we will explore this problem in more detail and propose a detailed policy and technical solution that could begin to be implemented within 90 days.

Some metrics are instructive. There are more than 50 categories of non-immigrant visas, ranging from documents for ships' crews to diplomats, from students to tourists to business. The fact that all 19 of the September 11, 2001, hijackers held the most common visas tourist or student illustrates both the ease of acquiring visas and the difficulty of identifying the few dangerous individuals from the millions of legitimate foreign arrivals. Last year, the Department of State issued 7.1 million visas, and the rejection rate is relatively low for example it was only 12% in Saudi Arabia with approximately 75,000 applications. And, an even larger number of arrivals, some 17 million per year, come from 29 countries where no visa is required, such as Canada, England and France, which allow entry for up to three months.

A Concluding Thought

The war against terrorism will be long and there will be a great political temptation to confuse our limited tactical victory to date with a strategic victory over terrorism and state sponsorship of terrorism in general. State-of-the-art weapons and information technology have dismantled the most visible parts of the Taliban and al-Qaeda but the central leadership of both organizations remains as do the tentacles of allied groups worldwide. Ultimate success in this war will depend on new strategies as discussed but, in doing so, we must balance security and civil liberties cognizant that there are no absolutes. "It is obvious and unarguable that no governmental interest is more compelling than the security of the Nation [and while] the Constitution protects against invasions of individual rights, it is not a suicide pact." (Haig v. Agee, 453 U.S. 280 (1981)). Establishing that reasonable balance is our task.

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