The "War on Terror" and Prevention: Improving the Domestic Paradigm for the Digital Age

Harvey Rishikof

The Caveats

One of the more unfortunate analogies of the post 9/11 era is the alleged hunt "to connect the dots" to thwart any future terrorist attack on continental United States, (CONUS). At the outset one must begin with the premise that given the openness of modern society it is virtually impossible to stop all terrorist attacks. The recent histories of Spain, Great Britain, Israel, and France make this premise painfully clear.

Further, any analysis of the cargo shipping industry and its current state of protection, as documented by Stephen Flynn from the Council on Foreign Relations, should underscore his message that resiliency of our infrastructure, not prevention alone, must be the wise policy in the area of combating terrorism. With these caveats in mind, what is the state of the domestic paradigm for investigation of terrorism in the digital age and how can the US improve on it?

Fourth Amendment, data mining, executive authority, war paradigms, due process, and judicial review:

The current situation is one of a state of flux. It is often said that the US constitution is a document of enumerated powers, separation of powers, emergency powers, and protected rights. The attack on 9/11 has tested competing constitutional theories over where authority lies among these competing powers to respond to the threat of terrorism. Over the last six years this debate has spawned a flurry of legislation, reforms, and new institutions – e.g., the PATRIOT Act, Intelligence Reform Acts, a new Department of Homeland Security, a new Director of National Intelligence, a new National Security Branch for the Federal Bureau of Investigation, a secret surveillance program, a new Homeland Security Council, and the most recent Protect America Act. Currently, debate swirls around the new proposed legislation titled Restore Electronic Surveillance That is Overseen, Reviewed and Effective (RESTORE).

Given all these changes, has the US improved detection, prevention, and response? In short, is more institutional change needed? Moreover, has the US appropriately resolved the tension between civil liberties and investigation? The short answer to these questions is that more change is required and civil liberties have not been adequately protected.

Over the next few decades there will be certain technological constants. Increasingly, the private sector – telecommunications companies, banks, insurance companies, and credit card companies, etc., will be amassing ever larger and more detailed information data banks on US citizens. These ever growing data banks will be subject to even more powerful "search engines" that will able to be "banged" for more connections, relations, and ties. It will be the private sector, and not the government, that will be the repository of this critical information.

The logic of the ‘data bank banging’ argument is that finding terrorists in a sea of information is analogous to the Cold War problem of trying to find Soviet submarines hidden in plain view in the ocean. The solution was to monitor the ocean under normal circumstances and then to register "disturbances." In fighting terrorism the analogy is that a group involved in a conspiracy would emit "patterns of behavior" or "signatures" that would similarly "disturb" the regular flow of commercial behavior. These "patterns" could be identified and algorithms could be fashioned to pick them out of the sea of "normal" commercial transactions. To be successful though, a "sea" of information is required to analyze. This approach was behind the Total Information Program established at the Department of Defense that caused a political firestorm. In the end the Congress requested that the program be stopped – but the logic of the approach continues.

If prevention, however, is the goal of the state, then timely information to thwart actions is the key of success. The current debate over the RESTORE legislation is a perfect example of this issue of data mining and prevention. The new National Security Letters, for example, granted to the FBI under the PATRIOT legislation, allow local agents to request data, without any court order, from the private sector. But what should be the proper legal procedure to access these data banks? Should the executive branch on its own authority be able to request the records in order to search them? Should the private companies that cooperate be able to be sued, or should these cooperating corporate entities be granted immunity from lawsuits? What level of suspicion should be required before access is granted to these data bases – individual, as traditionally required by the Fourth Amendment, or a more general class identification, e.g. all the records from all the hotels in Las Vegas where a threat to the city is suspected? The RESTORE debate is wrestling with these questions.

Politically, the constitutional question that will continue to bedevil any regime to combat terrorism will be where does the constitutional authority lie and what should be the role of the courts in the process? Proponents of a strong executive argue that when the state is at war, which the war on terrorism is, the commander-in-chief has constitutional authorization to initiate terrorist surveillance programs based on his inherent authority. This inherent authority trumps all restraints, even if the Congress has legislated in the area, and has mandated judicial review of the process.

Opponents to this position reason that this is a congressional prerogative and once the Congress has established the rules to govern the situation, the president is bound to follow them, or risk censure, or even impeachment. For this view of constitutional power, unchecked executive power in the defense of liberty results in the Palmer raids of the 1920’s, the miscarriage of justice under the McCarthy era in the 1950’s, and the violations of civil liberties uncovered by the Church Committee in the 1970’s. In fact, to many it was these very executive violations that spurred the Congress to pass the Foreign Intelligence Surveillance Act (FISA) in 1978.

FISA, however, was drafted in an era before the technological revolution of the Internet and when a separation of domestic and foreign arenas was taken for granted. At the heart of the FISA legislation was the distinction between a US citizen and a non-US citizen. In many ways technology, the US/non-US citizen distinction, and the separation of domestic and foreign spheres has been undermined by the evolution of communication and the nature of the evolving threat. FISA envisioned a world of states v. states, not a world of stateless actors working in cooperation to attack CONUS, with some of the enemies potentially being US citizens. This type of threat that has been successful in Spain and Great Britain is a challenge to the old order and legal structures.

FISA’s solution was to involve the federal judiciary to curtail executive power in this area. In a system parallel to the criminal process, where search warrants requiring probable cause of a crime obtained from a federal judge are needed, FISA requires probable cause of a "foreign agent" before surveillance can be established. The lack of US status became the critical threshold before monitoring could take place. What has changed for proponents of executive power to argue that the judiciary should not be involved in this procedure?

The position to exclude the judiciary in the process of monitoring surveillance rests on arguments of constitutional authority and necessity. First, proponents argue that the US is at war and this authority to protect is a presidential right that cannot be curtailed. If the president approves the authorization it is constitutionally appropriate under his emergency war powers. Second, proponents believe that judges lack the institutional competence to second-guess the executive on its judgments when the US is at war, and when protection of the homeland is paramount. Third, in this era of technological information -- speed, surveillance, and data mining -- are the keys to prevention, and, proponents argue, this too is beyond the judiciary’s competency. The world of exploiting information has changed and the judicial review is not useful, since a deliberative procedure is the antithesis of prevention based on speed of action and establishing connections.

The response to these arguments is a flat rejection of the premises of each of the positions. Philosophically, supporters of the judiciary are wedded to the Madisonian principle of checks and balances. No branch, when civil liberties are involved, should be granted sole authority. To this school, terrorism is more of a criminal matter than one of war. This approach has been taken by Europe where expanded criminal statues to combat terrorism have been passed. For the Madisonian proponents, the judiciary should be second-guessing the executive. This school points to the violations of the FBI in using National Security Letters, as documented by the Inspector General of the Department of Justice in his recent report, to underscore why the judiciary must be part of the process. Finally, on the issue of speed, the proponents for the role of judges reason there are ways to expedite the processes. After the fact, once decorum has been reestablished, a backward-looking review under judicial scrutiny can be undertaken to right any wrongs.

Where does this leave the US for the next decades? Many of the deficiencies that existed in the pre 9/11 world continue in the post 9/11 world, and more reform is needed. The process for these reforms should be open and engender robust debate. Perhaps the best way to approach such a daunting task is to propose a number of principles and standards to guide the process.

1) More institutional reform is needed for the Intelligence Community, (IC) and the law enforcement community. The creation of the DNI has not resulted in the coordination that many had hoped for. The need for better collection, analysis, and dissemination of information still plagues the IC. Reforms at the FBI have not quelled the voices for a MI5 equivalent, or a dedicated domestic intelligence service for the US. Recent IG reports detailing FBI failures have only fueled this fire. In addition, better delineation of the role of military intelligence and its relation to its civilian counterparts requires more analysis. Also, better connectivity to the private sector and better acquisition policies are desperately needed to upgrade government capabilities. One option is to create a National Commission which would draw on expertise from both sides of the political aisle, the private sector, and the legal defense bar to craft a long-term reform package to balance the equities of the parties involved in prosecuting the war on terror.

2) The debate over executive authority and congressional reticence must come to an end. The assertions of presidential authority excluding Congress and barring Congress from helping to shape and structure the surveillance programs has helped to generate unnecessary suspicion and rancor. A way must be fashioned to generate a better working relationship between Congress and the Oval Office. There must be adequate due process protections built into reforms to satisfy traditional concerns of privacy.

3) The judiciary must be part of the review process whenever surveillance of US or non-US parties is involved. As the government increasingly relies on the private sector to gather data, and then uses this data for ever increasing sophisticated data mining, judicial supervision should be part of the process. As more intrusive technological tools become available, reform packages must include more resources for robust IG investigations. Perhaps even a federal terrorist court should be created to concentrate expertise with due process, as had been done in civil law countries.

4) Controversial reforms should include, where reasonable, "sunset provisions" so the Congress can revisit the reforms to evaluate whether or not the changes are achieving the results that had been hoped for.

In the end, it is unclear how long this terrorist threat will last. Defeating terrorism will require a political solution, not a kinetic or law enforcement tool. These traditional tools of force will slow down a terrorist threat but not stop it. A new foreign policy and a new international collective security regime is the long-term solution to terrorism. The US can play "whack-a-mole" with terrorists and increasingly place our society under 24/7/365-day surveillance, issue national bio-metric identity cards, lock down borders with new technologies, tag all moving objects, and monitor all transactions, but the cost will be a way of life even with judicial supervision.

Unfortunately, failing states will continue to create potential havens for terrorist networks and illicit behaviors. Unless and until the US creates a global response to these international social disasters, it will only be one step ahead of the potential terrorist threat. Domestic and international distinctions are being eroded by modern globalism as non-state actors acquire the technology to strike CONUS for revenge and effect. Computer vulnerabilities are the latest dependency that is driving national security planners to develop new protections.

It would be a tragedy if the post hoc explanations that emerge in the coming years are that some of today’s threats were put in the "too hard box," leaving future generations to grapple with the missed opportunities of generations past, and an even more compounded threat to the US, the international community, and the environment.•

Harvey Rishikof is Professor of Law, former Chair, Department of National Security Strategy, National War College.  The views expressed in this article are those of the author and do not reflect the official policy or position of the National Defense University, the National War College, the Department of Defense, or the U.S. Government.