Surveillance

by Joseph Jerome

Whenever an American citizen interacts with her government, the government’s first concern is increasingly ascertaining whether that individual is a terrorist. The Wall Street Journal’s Julia Angwin reports that top intelligence and law enforcement officials met in March to establish new rules permitting the National Counterterrorism Center (NCTC) “to create a government dragnet, sweeping up millions of records about U.S. citizens -- even people suspected of no crime.”  Flight records, the names of Americans hosting foreign-exchange students, and even casino-employee lists can be stored for up to five years, analyzed for suspicious behavior, and shared with foreign governments all in the name of fighting terrorism.

According to Angwin, the impetus of the program came in the wake of Umar Farouk Abdulmutallab’s failed Christmas Day 2009 bombing. After President Obama directed government agencies to send NCTC any and all leads on terrorist threats, the Department of Homeland Security provided NCTC with a vast database of information on the condition that any data of innocent U.S. persons be purged within 30 days. The tiny, unknown NCTC was unable to process the number of leads it received, so its solution was to seek unlimited access to any government information with no time limits imposed on the data’s analysis and study. 

“All of this happened in secret,” the ACLU’s Chris Calabrese bemoans. “No public debate or comment and suddenly, every citizen can be put under the terrorism microscope.”

by Jeremy Leaming and Dipal Shah

At a New York Law School symposium examining the impact the 9/11 terrorist attacks have had on civil liberties, John Yoo, former George W. Bush administration attorney who wrote memoranda supporting torture of military prisoners, declared that in the years since the devastating events “civil liberties have grown quite a bit.” Yoo, now a law professor at UC Berkeley Law School, added that civil liberties in the country had been bolstered “because government has been primarily kept out of the way.”

It was a statement that likely left some of the panelists wondering whether Yoo was being intentionally provocative. Indeed as noted time and again by the Center for Constitutional Rights, Human Rights First, Bill of Rights Defense Committee and law professors like Georgetown’s David Cole, a much stronger argument can be made that too often efforts to advance national security have trumped protections of civil liberties and the humane and lawful treatment of military prisoners.

The New York Law School Review’s “visual scholarship project” created a short -- less than 14 minutes -- video highlighting some of that symposium and including additional discussions with legal scholars and advocates such as ACS President Caroline Fredrickson, Fordham Law School Professor Martin Flaherty, and Ohio State University law school Professor Peter M. Shane. Watch the NYLS Law Review video here or see below. 

Shane, for instance said, he has knocked the Bush administration “for always saying that if anyone kind of pushed back against harsh interrogation techniques or rendition they would always say ‘well you want just want the law enforcement paradigm.’ And there’s this kind of attempt always to sort of cast people who are asking questions about particular policies as if they were somehow soft on terrorism, at best, and unpatriotic at worst.”

Although President Obama, very early in his term, signed an order banning torture of military prisoners, many civil liberties groups blast his administration for following too much of his predecessor’s actions in this area. For instance, the Obama administration has invoked the so-called state secrets privilege to shut down actions brought by prisoners challenging their imprisonment, and has failed to close Guantánamo Bay, where prisoners are still indefinitely held. (Recently another prisoner died there; he was the ninth to do so. The Center for Constitutional Rights in a Sept. 10 press statement called on the administration to “conduct a full and impartial investigation, and treat the body and the family with all proper respect, none of which, regrettably, has consistently occurred in the past.”) Attorney General Eric Holder has also been criticized for failing to prosecute any of the CIA or military officials allegedly involved in torture of military prisoners.

Shane, in his interview with the NYLS Law Review, said Americans, and possibly people in general, “are often too quick to accept that there is a tradeoff between these two things [national security and civil liberties]; that somehow to be more secure is to be less free.”

Fredrickson, again for NYLS Law Review, said, “Many would argue that civil liberties are actually a core part of the national security that we give our nation, and that only when we have protections for what we believe are our vital rights as Americans are we actually able to keep ourselves safe.”