More on balancing terrorism investigation and civil liberties

[nerdgirl 0]

I thought of NickDG’s Thread on “Pssst, Hey Kid, Need a Bomb . . . ?” when I read what I thought were a couple very interesting Op-Eds in Sunday’s NY Times. Both made explicit or implicit cases for prioritizing domestic intelligence investigations and law enforcement over civil liberties. (To be explicit on my part, “interesting” does not necessarily equal agree or disagree in whole or parts.)

What the two Op-Ed writers discuss both relates to the Zazi case as well as actions by domestic intelligence and law enforcement … but is more wide-ranging than the specific question Nick asked, i.e., why I made a separate thread.

Playing Chicken With Suicide Bombers by “John Farmer Jr., a former attorney general of New Jersey, is the dean of the Rutgers School of Law at Newark and the author of ‘The Ground Truth.’”

“As a society, we have weighed the risks to public safety in curtailing police power against the risks to public liberty of allowing too much police power. The balance we have struck is reflected in our constitutional protections. The question posed by terrorism, however, is whether the stakes — possibly tens of thousands of deaths — are sufficiently higher to alter that balance in favor of greater government power.”

“The larger issue raised here is whether there is a viable alternative to the nerve-racking game of chicken that law enforcement must play in terrorism cases. The obvious — though extremely unpopular — alternative is the passage of a preventive detention statute.

“Such statutes have been upheld in the context of people with a demonstrated proclivity toward violent conduct, like sexual predators; the concept could be adapted, in a way that withstands constitutional scrutiny, to cover people with a demonstrated proclivity toward terrorism. That approach would give law enforcement additional means to disrupt potential terrorist plots. It has the virtue of honesty, obviating the strained and sometimes disingenuous use of material-witness and false-statement statutes that are now frequently used to arrest and hold suspected terrorists, and would remove the temptation to criminalize conduct that borders on free speech.

“Still, preventive detention is hardly a panacea. What should the burden of proof be in using 'civil commitmen'” regarding terrorism? When should that burden be adjusted, if ever? How often would a subject’s status be reviewed? How long may someone be held? There is, moreover, something about detaining someone before he has committed an offense that runs counter to our core constitutional values.”

What do folks think of Mr. Farmer's ideas? As a country have the memories of 9-11 faded, are we fatigued (justifiably?) by anti-terrorism efforts (e.g., TSA security theater), are we fatigued by suspected excesses in the name of counter-terrorism, or are we just pre-occupied with other domestic politics (recession & health care)?


And

The Hatfields and McCoys of Counterterrorism by “Michael A. Sheehan is the former deputy commissioner for counterterrorism at the New York Police Department and former ambassador at large for counterterrorism at the State Department.” (He served in both Pres Clinton’s and Pres GW Bush’s administrations in different capacities.)

“So, what lessons can we draw from this case [Zazi] regarding the state of our counterterrorism efforts in New York and nationwide? First and most obvious, we must remain vigilant and aggressive in finding domestic terrorist cells.

“Second, we are reminded that intelligence operations using telephone intercepts and informant networks are the key to foiling Al Qaeda. There are limits to defensive strategies in our major cities: barriers, detection devices and uniformed patrols have their role, but in a sprawling city like New York the only real way to prevent a terrorist attack is to penetrate the cell before it can act.

“We have apparently thwarted Al Qaeda’s effort to attack us again, one of many such instances over the last eight years. Our domestic investigators must stay focused in their relentless pursuit of terrorist cells in America. Their ability to do their job should not be watered down by lawmakers or their departments.

“At the same time, the men and women of the New York Police department must be careful to minimize mistakes and to stay clearly within the law when they investigate United States citizens and residents. But given a choice — and there are always choices made every day in this city by investigators on the street — we should err on the side of action, not passivity. Mr. Zazi and his deadly bomb recipes remind us why.”

What Mr. Sheehan somewhat dismissively, imo, calls ‘passivity’ is respect for civil liberties.

From what I have seen, & I’m not following the domestic case *that* closely, it does not appear to me that anyone’s civil liberties were violated in the investigation and arrest of Mr. Zazi. There are a couple dozen suspected &/or unindicted co-conspirators, and it’s unclear to me whether “internecine conflict” (to use Mr. Sheehan’s phrase) between the NYPD and FBI was the problem (i.e., did someone ‘jump the gun’ to get credit?) or something else.

Anyone who’s ever worked in any capacity with the NYPD knows that they can make skygods look humble. Most of the time, they’re also really good at what they do. (There are notable & quite public exceptions.)

/Marg

Act as if everything you do matters, while laughing at yourself for thinking anything you do matters.
Tibetan Buddhist saying

[lawrocket 3]

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Playing Chicken With Suicide Bombers by “John Farmer Jr., a former attorney general of New Jersey, is the dean of the Rutgers School of Law at Newark and the author of ‘The Ground Truth.’”
“As a society, we have weighed the risks to public safety in curtailing police power against the risks to public liberty of allowing too much police power. The balance we have struck is reflected in our constitutional protections. The question posed by terrorism, however, is whether the stakes — possibly tens of thousands of deaths — are sufficiently higher to alter that balance in favor of greater government power.”

THis is the thing. It does not seem that political leaders are interested in amending th Constitution. Instead, they are seeking to reinterpret it in a matter consistent with their objectives.

If a Constitution is static (it still means what it has always meant) then the answer is gonna be pretty clear in the vast majority of cases. If, however, the Constitution is truly "living and breathing" and subject to reassessment/reinterpretation depending on the idee du jour then the Constitution provides no problem.

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the concept could be adapted, in a way that withstands constitutional scrutiny, to cover people with a demonstrated proclivity toward terrorism.

The problem is that such a concept is susceptible to arbitrary considerations of what is "demonstrated proclivity toward terrorism." Would that mean having a Ron Paul Bumper Sticker? Or own a firearm? Has a copy of the Anarchist Cookbook? Speaks Farsi? Has PTSD? Has been convicted of a violent act? Has been suspected of domestic violence? Etc.

Too often, this "demonstrated proclivity" can be defined by subjective biases.

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What should the burden of proof be in using 'civil commitmen'” regarding terrorism? When should that burden be adjusted, if ever? How often would a subject’s status be reviewed? How long may someone be held?

This is the biggest indication of danger that I can see. The burden is not anything objective. The burden will be changed based upon the subjective beliefs of whomever is in charge.

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What do folks think of Mr. Farmer's ideas?

They are sadly popular. However, his ideas, though abhorrent to me, seem more measured than Mr. Sheehan:

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But given a choice — and there are always choices made every day in this city by investigators on the street — we should err on the side of action, not passivity.

Here is a cop suggesting that no punches be pulled! If you think a person might be a terrorist, but may be an innocent citizen, act now! We can't risk that the person may do something. Ruined lives are okay, because the danger justifies it.

The issue is that context has been lost. The country was founded by "revolutionaries." The King always had threats to worry about. The King would take no issue for the protection of his subjects with eliminating threats.

Those who spoke against the king were subject to arrest. Hence, first amendment.
Those who were armed may rise up against the king. Hence the 2nd Amendment.
The King could order troops quartered in peacetime with a private citizen. Hence the 3rd.
Searches and seizures occurred regularly, regardless of cause. Hence the 4th.
Etc.

The easiest way to damage civil liberties is by airing a threat. Perceived threats become real. Real threats are huge threats. We capture "terrorists" and let the people know we've gotten bad guys out of circulation, thus ensuring that the people know that the minor inconveniences they face are worth it because they are balanced by the benefits received.

Think of it like government payouts. The government concentrates a benefit on one group while spreading the cost to a much larger one - such that the cost becomes almost unnoticeable.

So a group of citizens experience minor indignities. It is okay, because they aren't even noticed. Meanwhile, those minor indignities prevented a major terrorist plot - like we found a kid who would plant a bomb we gave him.

I guess it'd be Henry Patrick today, and he would say, "Take my liberty or else I'll get blown up!"

My wife is hotter than your wife.

[Beachbum 0]

and to continue in that vein, only a bit less veiled ...

The past admininstration removes some rights for those reasons ...

The current one allows the loss of those rights to stand, or furthers them ...

The next administration continues the trend ...

Result is that the public loses rights over a period of time that eases people into it slowly, such that most barely notice the changes. Young people never knew the former liberties, so don't miss them ... and the trend continues.

As for your mention of the interpretation of the constitution ... a common political practice these days. I've seen it in action here in Texas. Any time following an interpretation of a law as originally framed conficts with their goals, legislators want to (and mostly get away with doing!) interpret laws based on today, without regard for the context in time that caused the law to come into existence. A long winded way to say they're twisting their forerunner's words to their own ends, I guess!

The really sad part is that with both the liberties being lost and the laws being distorted, most people either don't take the time to notice, or just don't seem to care.

As long as you are happy with yourself ... who cares what the rest of the world thinks?

[cliffwhite 0]

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and to continue in that vein, only a bit less veiled ...

The past admininstration removes some rights for those reasons ...

The current one allows the loss of those rights to stand, or furthers them ...

The next administration continues the trend ...

Result is that the public loses rights over a period of time that eases people into it slowly, such that most barely notice the changes. Young people never knew the former liberties, so don't miss them ... and the trend continues.

As for your mention of the interpretation of the constitution ... a common political practice these days. I've seen it in action here in Texas. Any time following an interpretation of a law as originally framed conficts with their goals, legislators want to (and mostly get away with doing!) interpret laws based on today, without regard for the context in time that caused the law to come into existence. A long winded way to say they're twisting their forerunner's words to their own ends, I guess!

The really sad part is that with both the liberties being lost and the laws being distorted, most people either don't take the time to notice, or just don't seem to care.

Good points ,Beachbum,
I guess the thing to remember is that regardless of what legislation may be enacted, your Rights are always that.., Your Rights!
So are you going to make a stand and protect them ,or are you going to go along meekly and not cause even a ripple?

Because the time is now,Beachbum. It's put up or be put down.

Blues,
Cliff

"Military men are dumb ,stupid animals to be used as pawns for foreign policy." - Henry Kissenger

2muchTruth

[jgoose71 0]

There is no question that if it wasn't for the Patriot Act, we never would have caught Zazi. I think in today's world there does need to be some kind of program in place.

Under the patriot act, a person is not out there listening to every conversation in existence. Instead, a computer program "Red Flags" pre-determined suspect behavior. If Zazi hadn't been flagged making trips to Pakistan, who knows what would have happened.

Because of my line of work, I know from time to time I got people looking over my shoulder when I get on line to research chemical weapons, Home Made Explosives, Biological agents, etc. However, I know the kind of damage some of this stuff can do and how easy it is to make, and I want my friends and family protected, so I am OK with it.

The problems come when the government starts restricting activities and people. Monitoring is one thing, restricting is another. Like I've said before though, my opinion is slightly biased. Take it for what it is worth.

"There is an art, it says, or, rather, a knack to flying. The knack lies in learning how to throw yourself at the ground and miss."
Life, the Universe, and Everything

[nerdgirl 0]

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There is no question that if it wasn't for the Patriot Act, we never would have caught Zazi. I think in today's world there does need to be some kind of program in place.

What was the specific aspect that was permissible via the USAPATRIOT Act that was not permissible without it in the Zazi case? I honestly don’t know. Can you cite or explain it?

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Because of my line of work, I know from time to time I got people looking over my shoulder when I get on line to research chemical weapons, Home Made Explosives, Biological agents, etc. However, I know the kind of damage some of this stuff can do and how easy it is to make, and I want my friends and family protected, so I am OK with it.

Cool! Then it sounds like you and I should be able to talk with each other. What do you think about Zazi’s reported synthetic methodology for TATP?

/Marg

Act as if everything you do matters, while laughing at yourself for thinking anything you do matters.
Tibetan Buddhist saying

[nerdgirl 0]

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Playing Chicken With Suicide Bombers by “John Farmer Jr., a former attorney general of New Jersey, …. “As a society, we have weighed the risks to public safety in curtailing police power against the risks to public liberty of allowing too much police power. The balance we have struck is reflected in our constitutional protections. The question posed by terrorism, however, is whether the stakes — possibly tens of thousands of deaths — are sufficiently higher to alter that balance in favor of greater government power.”

If a Constitution is static (it still means what it has always meant) then the answer is gonna be pretty clear in the vast majority of cases. If, however, the Constitution is truly "living and breathing" and subject to reassessment/reinterpretation depending on the idee du jour then the Constitution provides no problem.

What role does precedent play?

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the concept could be adapted, in a way that withstands constitutional scrutiny, to cover people with a demonstrated proclivity toward terrorism.

The problem is that such a concept is susceptible to arbitrary considerations of what is "demonstrated proclivity toward terrorism." Would that mean having a Ron Paul Bumper Sticker? Or own a firearm? Has a copy of the Anarchist Cookbook? Speaks Farsi? Has PTSD? Has been convicted of a violent act? Has been suspected of domestic violence? Etc.

Concur. … … >

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However, his ideas, though abhorrent to me, seem more measured than Mr. Sheehan:

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But given a choice — and there are always choices made every day in this city by investigators on the street — we should err on the side of action, not passivity.

Here is a cop suggesting that no punches be pulled! If you think a person might be a terrorist, but may be an innocent citizen, act now! We can't risk that the person may do something. Ruined lives are okay, because the danger justifies it.

The issue is that context has been lost. The country was founded by "revolutionaries." The King always had threats to worry about. The King would take no issue for the protection of his subjects with eliminating threats.

Good point. When speaking about successful insurgencies and failed counterinsurgencies I like to invoke reference to what I somewhat cheekishly call the “ALO, the American Liberation Organization” better known as the Revolutionary “Sons of Liberty.” During the American insurgency (aka Revolutionary War), local militias (one might call them local insurgent groups) were very important. They enabled one of the most important colonist victories in the south, i.e., the North Carolina mountaineers (largely of Scot ancestry) who defeated the Tories at Battle of King’s Mountain in 1780. We’re not only a nation of revolutionaries; we’re a nation founded on an insurgency … one that had extraordinarily good strategic communications.

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The easiest way to damage civil liberties is by airing a threat. Perceived threats become real. Real threats are huge threats.

What do you propose as a solution? There isn’t an easy one. (There are some dumb ones, e.g., “kill all the terrorists.”) I lean in favor of transparency. Is it possible in today’s media sensationalized and politicized media lens to air a threat/bring sunlight on it without it being over-sensationalized?

How do we prioritize what are “real threats” (existential threats) versus what is “hype”? E.g., I think terrorist EMP is the latest over-hyped threat out there; there’s a bunch of other folks (some who are pretty smart), who think it’s the biggest terrorist threat to America. Every couple months I have someone come to me earnestly asserting that we need to regulate nanotechnology. (Who is “we” varies, from US EPA to new international arms control treaty.) A good portion of the time, the basis for their arguments are grey goo, self-assembling nanobots, or molecular manufacturing, a la Michael Crichton's fiction novel Prey.

For me, it has a lot to do with acceptable level of risk at a personal level. I acknowledge that I may be willing to accept more risk than others. Beyond that, at a policy level, I think about probability versus consequence.

Regardless, lots of meaty stuff that matters about which to think!

/Marg

Act as if everything you do matters, while laughing at yourself for thinking anything you do matters.
Tibetan Buddhist saying

[nerdgirl 0]

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Result is that the public loses rights over a period of time that eases people into it slowly, such that most barely notice the changes. Young people never knew the former liberties, so don't miss them ... and the trend continues.

On some small scales, but ones that might be seen as signifcant symbolically, this has already happened.

People used to be able to go into the Pentagon unescorted. Not all of it. But parts of The Building were accessible to the general public. Public buses & taxis used to run under one of the E-ring sections to an open-air section between corridors. People used to cut through the Capitol Building. One can't do either anymore.

/Marg

Act as if everything you do matters, while laughing at yourself for thinking anything you do matters.
Tibetan Buddhist saying

[lawrocket 3]

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What role does precedent play?

Stare decisis is extremely important to those who are constructionists. However, a living, breathing Constitution supports a mistrust of precedent. An "activist court" is usually one that overturns or ignores precedent. All it takes is a court that considers a line of cases to be unwise in present circumstances to make something Constitutional.

Adherence to precedent led to FDR's plan to stack the court, for example.

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Concur. … … >

So you stole mine, eh?

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The easiest way to damage civil liberties is by airing a threat. Perceived threats become real. Real threats are huge threats.

What do you propose as a solution? There isn’t an easy one. (There are some dumb ones, e.g., “kill all the terrorists.”) I lean in favor of transparency. Is it possible in today’s media sensationalized and politicized media lens to air a threat/bring sunlight on it without it being over-sensationalized?

Because politics is based on popularity, it is nearly impossible in the political arena.

My proposed solution is to act consistently with the Constitution (I.e., get warrants for wiretaps) but that would be called fiddling while Rome burned. A wimp.


[Reply]How do we prioritize what are “real threats” (existential threats) versus what is “hype”?...
For me, it has a lot to do with acceptable level of risk at a personal level. I acknowledge that I may be willing to accept more risk than others. Beyond that, at a policy level, I think about probability versus consequence.

Yes. Prioritize. I like "Give me liberty or give me death." I prefer to be left alone. I don't want there to be "your client is a suspected terrorist. Tell me what you know. No, privilege doesn't apply. You have the right to remain silent." The Fox news reports an attorney has been arrested in connection with a terror plot to blow up the Pacific Stock Exchange.

Trust me - the People would love it! They nailed a terrorist and attorney. Even if I didn't know anything and I advised the guy in a consult about an eviction.

There is suspicion on all. Much like infiltrationof demonstrators in the 60's. J Edgar Hoover would nod in appreciation at what is going on now. Terrorism is really awesome for police powers!

[Reply]Regardless, lots of meaty stuff that matters about which to think!

/Marg

"Think" being the operative word. Policy is being made based on "feel" - that feeling being fear. Get em scared and they'll get in line.

My wife is hotter than your wife.

[Beachbum 0]

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Result is that the public loses rights over a period of time that eases people into it slowly, such that most barely notice the changes. Young people never knew the former liberties, so don't miss them ... and the trend continues.

On some small scales, but ones that might be seen as signifcant symbolically, this has already happened.

People used to be able to go into the Pentagon unescorted. Not all of it. But parts of The Building were accessible to the general public. Public buses & taxis used to run under one of the E-ring sections to an open-air section between corridors. People used to cut through the Capitol Building. One can't do either anymore.

/Marg

You're right ... the entire D.C. area is a very good example. I remember being able to park right on the mall back in the 70's. I hadn't been back up there until a couple of years ago. I was expecting changes, but not as severe as I encountered. The capitol of the land of the free ... all barricaded in!!

As for the "release without sensationalism" thought ... that WAS a rhetorical question, right?? ... ;) ...

As long as you are happy with yourself ... who cares what the rest of the world thinks?

[Beachbum 0]

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Good points ,Beachbum,
I guess the thing to remember is that regardless of what legislation may be enacted, your Rights are always that.., Your Rights!
So are you going to make a stand and protect them ,or are you going to go along meekly and not cause even a ripple?

Because the time is now,Beachbum. It's put up or be put down.

As far as I'm concerned, it's BEEN that time for many years. I've always tried to do my part, but getting the attention of people who don't want to know, or be bothered to think for themselves is a very tall order!!!

As long as you are happy with yourself ... who cares what the rest of the world thinks?