Surveillance or Security?: The Risks Posed by New Wiretapping Technologies (39 page)

In the 1972 Brazenburg v. Hayes decision,' the Supreme Court found that
First Amendment protections did not excuse a reporter from testifying
before a state or federal grand jury. The court ruled that a reporter can be
subpoenaed by grand juries for information about criminal activities: the
identity of a source, notes from an interview, or other data that may be
useful to law enforcement. Yet, the Court noted that "news gathering is not
without its First Amendment protections."' Recognizing the lack of clarity
in its response, it suggested that a situation in which the courts would be
"embroiled in preliminary factual and legal determinations" as to whether
a reporter should be subpoenaed would put the courts in the position of
making law, which would be inappropriate.' The Court suggested that
working within the confines of the First Amendment, state legislatures could
craft laws regarding reporters' privilege; Congress could as well.7 As of this
writing, thirty-five states and the District of Columbia have done so; Congress has periodically discussed the issue but has not passed legislation.

Because of concerns that the prosecutorial power of the government not
prevent a reporter from broadly covering controversial public issues, the
Code of Federal Regulations restricts the government's ability to investigate
journalists. In particular, before law enforcement attempts to acquire telephone toll records of any member of the media, all reasonable alternative
investigative approaches must first be tried.' The chilling effect that government investigations might have on journalists' ability to gather information
is viewed as sufficiently reprehensible that no one less than the attorney
general can approve the issuing of a subpoena for telephone records.

This makes the actions of the FBI in obtaining phone records of New
York Times and Washington Post reporters outside the rule of law inexplicable. According to the 2010 DoJ Inspector General report, an assistant
U.S. attorney assigned to a leak investigation discussed the possibility of
acquiring subpoenas for the reporters' phone records with the FBI agent
assigned to the case. Although both DoJ employees knew that attorney
general approval was required to obtain the records, they thought it was
reasonable to find out if the information would be available from the
communications service providers at the Communications Analysis Unit
(CAU). An FBI special agent, who was a liaison to the CAU, was asked to
inquire about this.

Shortly afterward, without further prompting by the liaison agent, the FBI
agent in the CAU issued an exigent letter asking for records on nine telephone numbers, seven of which belonged to reporters at the New York
Times and the Washington Post (the other two were described as belonging
to the suspected leakers). Although the original request was for a sevenmonth period, the exigent letter to the telephone company had no such
date limitations. The analyst duly searched and supplied records on twentytwo months worth of phone calls and returned transactional data on
sixteen hundred phone calls. These were put into a database available for
searching by authorized FBI personnel.9 This was not the only incident in
which the telephone-company employees in the CAU supplied information about reporters' calls absent a subpoena."

Such actions have a chilling effect on the press by making it harder for
reporters to ensure anonymity for their sources. As Jed Rubenfeld has
observed,

The Fourth Amendment is not violated by searches and seizures that make criminals
insecure. It is violated by searches and seizures that rob the law-abiding of their
security.... The Fourth Amendment exists not to increase marginal criminality,
but to give people the security they need to exercise the freedoms that the state's
prohibitory laws leave open to them (including but not limited to their constitutional freedoms of speech, of religion, and so on)."

The reporters had not broken the law, but the FBI's actions intruded upon
society's ability to have a free press. The FBI has a sworn responsibility to uphold the Constitution; in this case, it failed that responsibility. In so
doing, it damaged the ability of reporters to do their job, the ability of the
American public to have access to information, and the belief that the U.S.
government obeys the rule of law.

9.2 The Value of the Rule of Law

Rule of law matters. Consider, as an example, Northern Ireland. Ireland
was partitioned in 1920 over the objections of the Catholic minority in
the north. The Catholics sought a single nation, while the Protestantswho were a majority in the north-preferred partition and rule under the
British Crown.12 In the late 1960s, thousands of British troops came to
Northern Ireland in response to civil unrest. Originally they were welcomed by the beleaguered Catholic minority; the situation rapidly changed.

Beginning in the summer of 1971, British troops began to exercise the
Special Powers Act, a 1922 law that allowed them to indefinitely intern
anyone suspected of attempting to damage the public peace. This included
the Irish Republican Army (IRA), which supported a single, all-Ireland, state
and who had initiated much of the violence. Applying the Special Powers
Act to suspected IRA members, the British interned almost three thousand
people in two days alone.13 This was a tremendous number in a nation of
1.5 million; if the same ratio had been applied in the United States after
September 11, this would have meant arresting and indefinitely jailing over
half a million people. As one might expect, this action turned public
opinion against the British and in favor of the opposition.14

Bloody Sunday, a 1972 protest in which British troops fired on unarmed
citizens at the end of a civil protest, killing thirteen and wounding fifteen,
was a singular turning point for the Catholic population. Despite strong
evidence to the contrary, the government inquiry that followed stated the
troops had fired only when fired on and cleared the soldiers of blame. The
government whitewash strongly contributed to a public sense of its illegitimacy in Northern Ireland.15 The law had not protected the people on
Bloody Sunday, and there was no legal redress afterward.

After a quarter century of violence, the political scene began to shift; in
the 1990s peace agreements came into place. Significantly, in 1999, the
British government opened a new inquiry into the events of Bloody
Sunday; this took over a decade to complete and was made public in June
2010. The new report put clear blame on the British soldiers for what Prime
Minister David Cameron called "unjustified and unjustifiable" shootings,
a remarkably strong response from the British government. "What happened should never, ever have happened," the prime minister told the House of
Commons.16

By 2007 the Republic of Ireland had removed unification from its constitution, and the IRA had decommissioned its military branch and rid
itself of weapons. In a power-sharing arrangement between Protestants and
Catholics, Northern Ireland became self-governing.

Rule of law buys trust. The new inquiry into the events of Bloody
Sunday was an important factor in making the British government a credible partner in the peace process. The same need for rule of law has been
evidenced in many nations at many times-for example, by the Truth and
Reconciliation Commission in South Africa, which bore witness to crimes
committed under apartheid, and by the Gacaca Courts in Rwanda, which
did the same for the 1994 Rwandan genocide.

In Northern Ireland, British unwillingness to obey the rule of law in the
early years of the "Troubles" enhanced the IRA's ability to recruit followers.
Such coercive and counterterrorist behaviors by the government may
alienate important ethnic and religious groups.17 The suspension of the
rule of law is often, in the long run, entirely counterproductive.

This may well be the case with the warrantless wiretapping promulgated
under the Bush administration. This tapping, predicted to result in overcollection,18 did so.19 Expressing concern that the Protect America Act would
cause collection of legitimate communications, Congressman Rush Holt
observed that his Arab-American and Muslim constituents would think
they were the law's targets.20 What problems might ensue from such
estrangement? People who are already somewhat disenfranchised can be
pushed over the edge by activities that appear to violate their rights. This
is an inherent danger of government's warrantless wiretapping.

The insidious leak of terrorist investigative techniques to ordinary criminal cases worsens this situation. Counterterrorism laws are typically passed
during times of heightened tension, yet often their extraordinary powers
are subsequently applied to run-of-the-mill cases.21 For example, "sneakand-peek" warrants, search warrants permitting a search to proceed without
first notifying the owner or occupier of the premises, were authorized
under the USA PATRIOT Act, but in 2008 were used 65 percent of the time
in drug cases. Only 1 percent of the sneak-and-peek warrants were employed
in terrorism case S.22

In multiple cases the FBI used exigent letter requests for CDRs without
any justification. Some information obtained through these then made
their way into FISA Court applications. The FBI deemed this "nonmaterial"
from the point of view of the FISA Court's Rules of Procedure.23 Such actions undermine the public's faith in the government. James Baker, the
DoJ counsel for intelligence policy during the Bush administration, has
asserted that "[FISA] worked in the 20th century; it works today."" The
faith of Americans in their government underlies civil society, and the
distrust created by going outside FISA creates risks. Undermining the trust
with marginalized groups within society may well attenuate the very security surveillance seeks to protect.

This has certainly happened on the international side. Few have arguments against tapping to find terrorists, but tapping communications of
the UN Secretary General in order to manage a Security Council vote in
favor of an invasion of Iraq in 200325 is quite another story. By violating
international norms and putting the United States in a poor light, the
action is likely to have been counterproductive to long-term U.S. interests.
As Harvard Kennedy School professor and journalist Samantha Power has
observed, "meeting [unconventional] threats [such as Al-Qaeda] will sometimes entail using military force, but it will almost always require mustering global cooperation.... [There are] security consequences to the loss
of respect for the United States around the world: the US requires the
assistance of others to aid in combating terrorism, halting nuclear proliferation, and reversing global warming."26

Cybersecurity is one place where international cooperation is very
important. A 2009 National Research Council report on cyberwar stated
that "a predominantly military approach to national security is too narrow,
and ... the United States would be well served by a much broader strategy
that puts hearts, minds, and ideas at its center."27 Rule of law is as important internationally as it is domestically.

With those concerns in mind, I turn to domestic terrorism.

9.3 Who Are the Terrorists?

Domestic terrorism is not new to the United States. The country suffered
racial terrorism under the Ku Klux Klan (founded in 1866); faced terrorism
by German saboteurs, who were seeking to disable military production
prior to the U.S. entry into World War I28 and who caused far greater
destruction than the actions of September 11; and underwent the violence
of the urban riots in Los Angeles, Detroit, Newark, Washington, DC, and
other cities in the 1960s. U.S. domestic terrorism has been spawned by
multiple groups. Since the late 1970s, abortion clinics have been the site
of arson, bombings, and other violent attacks. Violent right-wing antigovernment groups have been active since the early 1990s and helped fuel Timothy McVeigh's bombing of the Murrah Building in Oklahoma City.
Until the September 11 attacks, this was the most destructive terrorist act
to occur in the United States. For present purposes, I will focus on violent
Islamic fundamentalists.

For several years after September 11 it seemed as if the United States
was immune to the homegrown terror besetting Europe. Yet while the U.S.
experience of greater economic and social integration occurring for secondand third-generation immigrants contrasts with the European one, Muslims
in the United States are still susceptible to the radical message of the jihadists. A New York City Police report analyzing the homegrown threat concluded that "Muslims in the U.S. are more resistant, but not immune to
the radical message."29

New York City, the financial, cultural, and immigrant center of the
United States, is often the target. As Mayor Michael Bloomberg put it,
"When we catch somebody, a bad guy, around the world, they have a
map of New York City in their pockets. They don't have a map of other
places."" So shortly after September 11 the New York City Police
Department (NYPD) hired an ex-CIA deputy director of operations to help
broaden their work from fighting crime to protecting against terrorist
activities.31

Studying both European- and U.S.-based terrorist groups, including
those behind the March 2004 attacks on the Madrid train station and the
July 2005 attacks on the London transit system, as well as those whose
attacks were thwarted like groups in Amsterdam, Melbourne and Sydney,
and Toronto, the NYPD saw the process of jihadist revolution 12 as a
funnel,33 with four clear stages on the way to radicalization:

Preradicalization The individual is relatively "ordinary"; nothing untoward has occurred. The individual may be living in an ethnically isolated
community.

Self-identification The individual begins to explore the jihadist ideology.
There may be a personal crisis, a death in the family, a job loss, that
prompts this search for identity. He-and almost all members of violent
Islamic fundamentalist groups are male-begins to associate with others
with the same increasingly fervent interest.