Domestic surveillance successfully checks terror incidents now. Prefer longitudinal studies



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Data must be Aggregated



Individual company data can’t solve – multi-company data must be aggregated


Shea ‘14

At the time of this testimony, Teresa Shea was the director of signals intelligence, or SIGINT, which involves intercepting and decoding electronic communications via phones, email, chat, Skype, and radio. Ms. Shea graduated from the Georgia Institute of Technology with a Bachelor of Science degree in Electrical Engineering. She earned her Master of Science Degree in Electrical Engineering from Johns Hopkins University. Ms. Shea is a graduate of the National Security Studies Leadership Program at the Maxwell School, Syracuse University. She also attended the Intelligence Community Program at the Kellogg School of Management. Ms. Shea joined the NSA workforce in 1984 as an Electrical Engineer where she developed technical solutions to SIGINT requirements. Since then she has served as project engineer, program manager, technical director, and line manager in the Signals Intelligence Directorate and its predecessor organizations. Ms. Shea participated in the NSA Graduate Fellowship Program and was selected to be a Director’s Fellow. Since her tour as a Director’s Fellow, Ms. Shea has served in multiple management positions. Ms. Shea was the Chief of Tailored Access Operations group within the Data Acquisition organization in the Signals Intelligence Directorate. Amicus Brief for Smith v. Obama – before The US District Court for THE DISTRICT OF IDAHO – December 20th – This cite is a bit tricky to find – it was submitted within the addendum section of Acting Assistant Attorney General Branda’s Amicus Brief in the matter of Smith v. Obama – before the United States Ninth Circuit Court of Appeals. Her testimony concludes with “I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge”. Jan 23rd - It is towards the bottom of a lengthy addendum section – https://www.eff.org/document/governments-smith-answering-brief

49. An advantage of bulk metadata analysis as applied to telephony metadata, which is interconnected in nature, is that it enables the Government to quickly analyze past connections and chains of communication. Unless the data is aggregated, it may not be feasible to detect chains of communications that cross communication networks. The ability to query accumulated telephony metadata significantly increases the NSA's ability to rapidly detect persons affiliated with the identified foreign terrorist organizations who might otherwise go undetected.

Meta-data must be aggregated. Alternatives hamper counter-terror efforts.


Shea ‘14

At the time of this testimony, Teresa Shea was the director of signals intelligence, or SIGINT, which involves intercepting and decoding electronic communications via phones, email, chat, Skype, and radio. Ms. Shea graduated from the Georgia Institute of Technology with a Bachelor of Science degree in Electrical Engineering. She earned her Master of Science Degree in Electrical Engineering from Johns Hopkins University. Ms. Shea is a graduate of the National Security Studies Leadership Program at the Maxwell School, Syracuse University. She also attended the Intelligence Community Program at the Kellogg School of Management. Ms. Shea joined the NSA workforce in 1984 as an Electrical Engineer where she developed technical solutions to SIGINT requirements. Since then she has served as project engineer, program manager, technical director, and line manager in the Signals Intelligence Directorate and its predecessor organizations. Ms. Shea participated in the NSA Graduate Fellowship Program and was selected to be a Director’s Fellow. Since her tour as a Director’s Fellow, Ms. Shea has served in multiple management positions. Ms. Shea was the Chief of Tailored Access Operations group within the Data Acquisition organization in the Signals Intelligence Directorate. Amicus Brief for Smith v. Obama – before The US District Court for THE DISTRICT OF IDAHO – December 20th – This cite is a bit tricky to find – it was submitted within the addendum section of Acting Assistant Attorney General Branda’s Amicus Brief in the matter of Smith v. Obama – before the United States Ninth Circuit Court of Appeals. Her testimony concludes with “I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge”. Jan 23rd - It is towards the bottom of a lengthy addendum section – https://www.eff.org/document/governments-smith-answering-brief



63. If the telephony metadata are not aggregated and retained for a sufficient period of time, it will not be possible for the NSA to detect chains of communications that cross different providers and telecommunications networks. But for the NSA's metadata collection, the NSA would need to seek telephonic records from multiple providers whenever a need to inquire arose, and each such provider may not maintain records in a format that is subject to a standardized query. 64. Thus, the Government could not achieve the aforementioned benefits of Section 215 metadata collection through alternative means.

Vigilance

Terrorists’ perception of surveillance effectively deters terrorist communication – the plan makes effective regrouping more successful


Rascoff 14 (Samuel J. Rascoff, Associate Professor of Law, Faculty Director, Center on Law and Security, New York University School of Law, “COUNTERTERRORISM AND NEW DETERRENCE,” http://www.nyulawreview.org/sites/default/files/pdf/NYULawReview-89-3-Rascoff_0.pdf2014)

An open question - an answer to which requires more empirical data - is whether the government's prosecution of relatively amateur would-be terrorists based on stings is likely to be effective in deterring better-trained terrorists. n109 But it bears remembering that the viability [*855] of the deterrence-based account of stings does not depend on who is prosecuted. The mere fact of prosecution can alter terrorists' perceptions of future success by implying a pervasive surveillance network n110 facilitated by technology. n111 As Alex Wilner observed of Canadian counterterrorism, the fact that the country's "intelligence community clearly has the means and the tools to uncover plots expeditiously" creates an "overwhelming perception ... that terrorists are unlikely to evade Canada's watchful eye." n112 In sum, the meaning of a sting operation and subsequent trial must include the strategic benefits of revealing the fact of undercover surveillance as well as the normative costs implied by widespread surveillance. n113 This in turn illustrates the [*856] complicated relationship between transparency and secrecy entailed by new deterrence. C. Psychology and Strikes New deterrence also enriches understanding of the role of fear and emotion in counterterrorism. Terrorism aims at communicating vulnerability and sowing distrust; violent attacks are, in a sense, means to bring about these more intangible objectives. n114 (Thus, building sufficient social resiliency to withstand terrorist attacks, as new deterrence counsels, deprives terrorists of an important goal, even when an attack succeeds. n115) But fear n116 and distrust are also part of the counterterrorism repertoire. n117 Inevitably this fact raises serious [*857] normative issues. First is the foundational question of what it means for the state to manage terrorist risk through the potentially widespread, deliberate employment of fear. n118 Rich sociological and historical literature attest to the emotional costs of aggressive national security tactics. n119 Second is a concern about the distribution of fear and whether the government considers race and religion when employing it. n120 My central point here, however, is not normative so much as conceptual: Whereas policymakers, lawyers, and the general public often define counterterrorism as the sum of so many violent interventions, new deterrence reminds us that counterterrorism also operates in a psychological register. Unlike traditional deterrence, which conveys its message through fear of being caught and punished, new deterrence relies on a wider and subtler range of official modalities that go to the likelihood of terrorist success. For example, the government may aim to demoralize an adversary by telegraphing the state's overwhelming might. The state might do so by "spreading false or exaggerated rumors of the [*858] existence of sting operations," n121 sowing a sense of distrust within a cell by implying that one among them is on an official payroll, or even conveying an image of officials as irrational and prone to unmeasured violence. n122

Detection



( ) Meta-data boost terror detection – it’s a vital complimentary tool.


Shea ‘14

At the time of this testimony, Teresa Shea was the director of signals intelligence, or SIGINT, which involves intercepting and decoding electronic communications via phones, email, chat, Skype, and radio. Ms. Shea graduated from the Georgia Institute of Technology with a Bachelor of Science degree in Electrical Engineering. She earned her Master of Science Degree in Electrical Engineering from Johns Hopkins University. Ms. Shea is a graduate of the National Security Studies Leadership Program at the Maxwell School, Syracuse University. She also attended the Intelligence Community Program at the Kellogg School of Management. Ms. Shea joined the NSA workforce in 1984 as an Electrical Engineer where she developed technical solutions to SIGINT requirements. Since then she has served as project engineer, program manager, technical director, and line manager in the Signals Intelligence Directorate and its predecessor organizations. Ms. Shea participated in the NSA Graduate Fellowship Program and was selected to be a Director’s Fellow. Since her tour as a Director’s Fellow, Ms. Shea has served in multiple management positions. Ms. Shea was the Chief of Tailored Access Operations group within the Data Acquisition organization in the Signals Intelligence Directorate. Amicus Brief for Smith v. Obama – before The US District Court for THE DISTRICT OF IDAHO – December 20th – This cite is a bit tricky to find – it was submitted within the addendum section of Acting Assistant Attorney General Branda’s Amicus Brief in the matter of Smith v. Obama – before the United States Ninth Circuit Court of Appeals. Her testimony concludes with “I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge”. Jan 23rd - It is towards the bottom of a lengthy addendum section – https://www.eff.org/document/governments-smith-answering-brief

53. Furthermore, the Section 215 metadata program complements information that the NSA collects via other means and is valuable to NSA, in support of the FBI, for linking possible terrorist-related telephone communications that occur between communicants based solely inside the U.S. 54. As a complementary tool to other intelligence authorities, the NSA's access to telephony metadata improves the likelihood of the Government being able to detect terrorist cell contacts within the U.S. With the metadata collected under Section 215 pursuant to FISC orders, the NSA has the information necessary to perform the call chaining that can enable NSA intelligence analysts to obtain a much fuller understanding of the target and, as a result, allow the NSA to provide FBI with a more complete picture of possible terrorist-related activity occurring inside the U.S.

Communication-Based Surveillance



Communication-based Counter-Terror Ops key. It’s more effective than alternate forms of counter-terrorism.


Lewis ‘14

James Andrew Lewis is a senior fellow and director of the Strategic Technologies Program at the Center for Strategic and International Studies in Washington, D.C., where he writes on technology, security, and the international economy. Before joining CSIS, he worked at the US Departments of State and Commerce as a Foreign Service officer and as a member of the Senior Executive Service. His diplomatic experience included negotiations on military basing in Asia, the Cambodia peace process, and the five-power talks on arms transfer restraint. Lewis received his Ph.D. from the University of Chicago. “Underestimating Risk in the Surveillance Debate” - CENTER FOR STRATEGIC & INTERNATIONAL STUDIES - STRATEGIC TECHNOLOGIES PROGRAM – December - http://csis.org/publication/underestimating-risk-surveillance-debate



America’s size and population make it is easy to disappear into the seams of this sprawling society. Government surveillance is, with one exception and contrary to cinematic fantasy, limited and disconnected. That exception is communications surveillance, which provides the best and perhaps the only national-level solution to find and prevent attacks against Americans and their allies. Some of the suggestions for alternative approaches to surveillance, such as the recommendation that NSA only track “known or suspected terrorists,” reflect both deep ignorance and wishful thinking. It is the unknown terrorist who will inflict the greatest harm.

Surveillance of communication info is key to check terror risks


Clarke ‘13

(et al; This is the Final Report and Recommendations of The President’s Review Group on Intelligence and Communications Technologies. President Obama ordered a blue-ribbon task force to review domestic surveillance. This report releases the findings of that group. The report was headed by five experts – including Richard Alan Clarke, who is the former National Coordinator for Security, Infrastructure Protection, and Counter-terrorism for the United States. Other expert contributors include Michael Joseph Morell, who was the deputy director of the Central Intelligence Agency and served as acting director twice in 2011 and from 2012 to 2013 and Cass Robert Sunstein, who was the Administrator of the White House Office of Information and Regulatory Affairs in the Obama administration and is currently a Professor of Law at Harvard Law School. “LIBERTY AND SECURITY IN A CHANGING WORLD” – December 12th, 2013 – Easily obtained via a google search. https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0CB4QFjAA&url=https%3A%2F2Fwww.whitehouse.gov%2Fsites%2Fdefault%2Ffiles%2Fdocs%2F2013-12 12_rg_final_report.pdf&ei=Db0yVdDjKIKdNtTXgZgE&usg=AFQjCNH0S_Fo9dckL9bRarVpi4M6pq6MQ&bvm=bv.91071109,d.eXY)

The national security threats facing the United States and our allies are numerous and significant, and they will remain so well into the future. These threats include international terrorism, the proliferation of weapons of mass destruction, and cyber espionage and warfare. A robust foreign intelligence collection capability is essential if we are to protect ourselves against such threats. Because our adversaries operate through the use of complex communications technologies, the National Security Agency, with its impressive capabilities and talented officers, is indispensable to keeping our country and our allies safe and secure.

Expansive Domestic Communication Surveillance is key to check terror risks.


Small ‘8

MATTHEW L. SMALL. Small wrote this paper as part of studies at the United States Air Force Academy. This paper was completed with guidance from Dr. Damon Coletta – a professor at the US Air Force Academy. He holds a Ph.D. in Political Science from Duke and a Masters in Public Policy from Harvard. This paper was also completed with guidance from Dr. Gary Donato – who is a Lecturer of Global Studies at Bentley University. – “His Eyes are Watching You: Domestic Surveillance, Civil Liberties and Executive Power during Times of National Crisis” – 2008 – available at: http://cspc.nonprofitsoapbox.com/storage/documents/Fellows2008/Small.pdf



Very soon after the terrorist attack of September 11th, 2001, President Bush authorized the NSA to conduct warrantless wiretaps on the communications of American citizens. The agency monitored communications from phone numbers of suspected al Qaeda affiliates (Risen and Lichtblau 2005). The calls that the NSA monitored originated in the United States and ended overseas but still involved American citizens. Bush asserted that it was necessary to move quickly to gain information on other suspected terrorist and/or terrorist activities (Risen and Lichtblau 2005). Officials close to the president claimed these actions successful in averting terrorist attacks as in the case of Iyman Faris, an Ohio trucker and naturalized citizen who intended to bring down the Brooklyn Bridge (Risen and Lichtblau 2005). Similar to the warrantless wiretaps, President Bush authorized the collection of phone records of millions of Americans from major phone companies such as AT&T and Verizon (USA Today [Washington], 11 May 2006). The records contain the communications of suspected terrorists or terrorist affiliates within the US. Even though these appear to be the under the same issue concerning the right to privacy, each act must be approached separately. In light of historical precedence, legislation enacted at the time, and the nature of the threat the US faces, President Bush’s actions are more than justified. From Washington on, presidents have invaded citizens’ privacy by authorizing surveillance of communications. Washington did not provide detailed accounts of his domestic surveillance to the Continental Congress, nor did Lincoln ask the permission of Congress to intercept wire communications within the US. Instead, each president assumed it as part of their powers as Commander-in-Chief and protectors of the rule of law. In comparison, Bush’s actions are actually restrained. At the least he is recognizing the existence of legislation restraining the use of wiretaps and attempting to fit the urgent need for information within its confines.14 In Woodrow Wilson’s case, Congress actually gave him the power to essentially search and seize international communication. Presidents from Harry S. Truman to Lyndon B. Johnson authorized the warrantless monitoring of communications by the NSA and FBI to combat dissension and subversion by Communist sympathizers. Although illegal, presidents even used the CIA to carry out many of these same activities. President Bush simply followed the same course of action as his predecessors, a logical course considering the nature of the threat. Terrorists can come in all forms and can easily manifest within the United States. Intercepting communications serves as one of the best and only ways to prevent these attacks from occurring. Herein lays the justification for legislative expansion of executive power.

Eliminate bulk collection



Plan goes beyond the status quo and ELMINATES bulk collection. That boosts the risk of terror episodes


Lewis ‘14

James Andrew Lewis is a senior fellow and director of the Strategic Technologies Program at the Center for Strategic and International Studies in Washington, D.C., where he writes on technology, security, and the international economy. Before joining CSIS, he worked at the US Departments of State and Commerce as a Foreign Service officer and as a member of the Senior Executive Service. His diplomatic experience included negotiations on military basing in Asia, the Cambodia peace process, and the five-power talks on arms transfer restraint. Lewis received his Ph.D. from the University of Chicago. “Underestimating Risk in the Surveillance Debate” - CENTER FOR STRATEGIC & INTERNATIONAL STUDIES - STRATEGIC TECHNOLOGIES PROGRAM – December - http://csis.org/publication/underestimating-risk-surveillance-debate



What is left out of this picture (and from most fictional portrayals of intelligence analysis) is the number of false leads the analysts must pursue, the number of dead ends they must walk down, and the tools they use to decide that something is a false lead or dead end. Police officers are familiar with how many leads in an investigation must be eliminated through legwork and query before an accurate picture emerges. Most leads are wrong, and much of the work is a process of elimination that eventually focuses in on the most probable threat. If real intelligence work were a film, it would be mostly boring. Where the metadata program contributes is in eliminating possible leads and suspects. This makes the critique of the 215 program like a critique of airbags in a caryou own a car for years, the airbags never deploy, so therefore they are useless and can be removed. The weakness in this argument is that discarding airbags would increase risk. How much risk would increase and whether other considerations outweigh this increased risk are fundamental problems for assessing surveillance programs. With the Section 215 program, Americans gave up a portion of their privacy in exchange for decreased risk. Eliminating 215 collection is like subtracting a few of the random pieces of the jigsaw puzzle. It decreases the chances that the analysts will be able to deduce what is actually going on and may increase the time it takes to do this. That means there is an increase in the risk of a successful attack. How much of an increase in risk is difficult to determine, but this is crucial for assessing the value of domestic surveillance programs.

Stricter Court review



Stricter Court review Link. Plan imposes stricter law enforcement warrants on intel agencies. That slows counter-terror operations to the point of failure.


Yoo, 13

John Yoo. Alma mater: Harvard University (B.A. 1989), Yale Law School (J.D. 1992). Yoo has been a professor at the University of California, Berkeley, School of Law since 1993. “Ending NSA Surveillance is not the answer”. National Review - 8/16/13 - www.nationalreview.com/corner/356027/ending-nsa-surveillance-not-answer-john-yoo



We should be careful not to put the NSA in an impossible position. Of course, we should be vigilant against the administrative state in all of its tangled tendrils, especially its collection of taxes (the IRS scandal) and enforcement of the laws (Obama’s refusal to enforce Obamacare and immigration law). The problem here, however, is that we are placing these kinds of domestic law-enforcement standards on a foreign intelligence function. With domestic law enforcement, we want the Justice Department to monitor one identified target (identified because other evidence gives probable cause that he or she has already committed a crime) and to carefully minimize any surveillance so as not to intrude on privacy interests. Once we impose those standards on the military and intelligence agencies, however, we are either guaranteeing failure or we must accept a certain level of error. If the military and intelligence agencies had to follow law-enforcement standards, their mission would fail because they would not give us any improvement over what the FBI could achieve anyway. If the intelligence community is to detect future terrorist attacks through analyzing electronic communications, we are asking them to search through a vast sea of e-mails and phone-call patterns to find those few which, on the surface, look innocent but are actually covert terrorist messages. If we give them broader authority, we would have to accept a level of error that is inherent in any human activity. No intelligence agency could perform its mission of protecting the nation’s security without making a few of these kinds of mistakes. The question is whether there are too many, not whether there will be any at all. Domestic law enforcement makes these errors too. Police seek warrants for the wrong guy, execute a search in the wrong house, arrest the wrong suspect, and even shoot unarmed suspects. We accept these mistakes because we understand that no law-enforcement system can successfully protect our communities from crime with perfection. The question is the error rate, how much it would cost to reduce it, the impact on the effectiveness of the program, and the remedies we have for mistakes. Consider those questions in the context of the NSA surveillance program. The more important question is not the top of the fraction but the bottom — not just how many mistakes occurred, but how many records were searched overall. If there were 2,000 or so mistakes, as the Washington Post suggests, but involving billions of communications, the error rate is well less than 1 percent. Without looking at the latest figures, I suspect that is a far lower error rate than those turned in by domestic police on searches and arrests. To end the NSA’s efforts to intercept terrorist communications would be to willfully blind ourselves (disregard) to the most valuable intelligence sources on al-Qaeda (now that the president won’t allow the capture and interrogation of al-Qaeda leaders). The more useful question is whether there is a cost-effective way to reduce the error rate without detracting from the effectiveness of the program, which, by General Keith Alexander’s accounting, has been high. Increasing judicial oversight might reduce errors — though I am dubious — but in a way that would seriously slow down the speed of the program, which is all-important if the mission is to stop terrorists. And perhaps Congress should think about ways to remedy any privacy violations in the future. But to end the program because it does not have an error rate of zero is to impose a demand on the NSA that no other government program, foreign or domestic, military or civilian, could survive.

Stricter legal standards



Court action and stricter standards create legal uncertainty – hampering the government’s counter-terror interests.


Branda ‘14

(et al; JOYCE R. BRANDA, Acting Assistant Attorney General, BRIEF FOR THE APPELLEES - Amicus Brief for Smith v. Obama – before the United States Ninth Circuit Court of Appeals. “Amici” means “friend of the court” and – in this context - is legal reference to the Reporters Committee – October 2nd – “She” is not gendered language in this instance – as the particular plaintiff identified as a “she”. https://www.eff.org/document/governments-smith-answering-brief)



Plaintiff does not address how she has a privacy interest in business records produced pursuant to congressionally authorized judicial orders. She does, however, argue that she has a privacy interest in telephony metadata, and that Smith is distinguishable. Pl. Br. 15-26. Those arguments do not withstand analysis. First, plaintiff suggests that it “obvious[ly]” makes a difference that “[t]he surveillance in Smith continued for three days,” whereas under the Section 215 program the government obtains and retains business records containing telephony metadata over a longer time period. Pl. Br. 16. But the greater time over which metadata may be collected does not validly distinguish Smith, which held that individuals lack a privacy interest in any of the telephony metadata voluntarily transmitted to a telephone company because the company’s customers “voluntarily convey[] those numbers to the telephone company” and because “‘a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.’” California v. Greenwood, 486 U.S. 35, 41 (1988) (quoting Smith, 442 U.S. at 743-44). That holding did not depend on the number of days the pen register operated, and any other rule would inject needless uncertainty into an area in which certainty is crucial to enable government personnel to implement these rules in the field. See, e.g., Atwater, 532 U.S. at 347.

Secrecy/Open Courts

State secrets are vital to preventing terrorism — open-proceedings reveal critical national intelligence information.


Barnsby 12 — Robert Barnsby, Associate Professor of Law at West Point University, Former Lecturer in Law at Williams and Mary College, J.D. from the U.S. Army General and Staff College, 2012 (“So Long and Thanks for All the Secrets: A Response to Professor Telman,” University of Alabama Law Review, Vol. 63, accessible online via subscribing institution to Lexis-Nexus, accessed on 6-20-15)

A. The Impossibility of Un-Ringing the Bell



Obviously, if discovery reveals state secrets, a result which the entire rule is designed to prevent, then discovery cannot proceed (i.e., if it does, and sensitive information is released, we cannot unring the bell). Indeed, "it would be absurd to accept an interpretation" of SSP that results in the government "possessing the legal authority" to assert the SSP during litigation "but lacking the legal authority" to assert the SSP during discovery in anticipation of the very same litigation. Significant and critical intelligence vulnerabilities can result when "other critical, sensitive means of gathering intelligence," including "specifics on the means and methods of intelligence collection... [the list of] nations involved in supporting U.S. efforts at combating terrorism, [and the actual names] of informants," are revealed in court.

One needs to look no further than the first World Trade Center bombing case in the 1990s for a perfect example of the damage done to national security through the course of normal litigation. In that instance, trial discovery and the concomitant public airing of important intelligence information put al Qaeda on notice of United States intelligence on its network and, specifically, led Osama bin Laden to go into hiding. Through normal discovery rules requiring the government to put defendants on notice regarding unindicted co-conspirators, "al Qaeda acquired valuable intelligence from the [conspiracy trial of ten al Qaeda terrorists in 1995]." n98 As former Attorney General Michael Mukasey stated in a recent Wall Street Journal article, "bin Laden knew not only that [the United States] knew about him but also who else they knew about." In this way, al Qaeda gathered extremely valuable information from the 1995 trials; having access to this intelligence clearly did not hurt the terror group's ability to inflict the devastating attacks of September 11, 2001. Again, this is something we may be willing to accept in our system--as the 1995 trials were public--but at the same time can clearly be a vulnerability to our national defense. If, however, the government is not allowed to protect national security-related information through the SSP in its current form, the situation will be exacerbated. In particular, bad actors and weak states can make up for deficiencies in their intelligence-gathering abilities by gaining "secrets" from the government's inability to invoke the SSP.

In the current armed conflict, the adversary represents a significant threat to the United States and its citizens. Indications and warnings of hostile activity are huge aspects of intelligence. The 9/11 attacks were a U.S. intelligence failure in this regard. Put simply: when you advertise the subject matter at which you are looking, you will tip off to potential adversaries the importance of possessing this same knowledge. Revealing information in open court can, therefore, risk the lives of those fighting in ongoing hostilities. Without getting into any classified areas of discussion, Foreign Intelligence Services (FIS) are continually monitoring our sources, methods, location, personnel, technology, scientific data, and economic information at all times.



As the landmark 1976 Senate Committee Report on Intelligence Activities and Rights of Americans, known as the Church Report, noted, "[a] tension between order and liberty is inevitable in any society. A Government must protect its citizens from those bent on engaging in violence and criminal behavior . . . and other hostile foreign intelligence activity." Perhaps we will be fortunate, and no information will be revealed during civil litigation. But there is no reason to take this chance, particularly during times of armed conflict when our nation's security--and the safety of the individuals in this great nation--depends on it. As foremost academicians acknowledge, "the conflict with Al Qaeda and its affiliates may last decades." n102 Several aspects of intelligence and, by extension, warfighting, will be affected if the government is unable to put an end to litigation through the SSP. These effects include not only the actual information revealed in the litigation, which may help enemy efforts, but also several other less readily apparent effects, which may result without continued use of the SSP in its current form. It is these second- and third-order effects to which this paper now turns.

Any release of information of the sort involved in Jeppesen Dataplan will have a chilling effect on informants or the entities with whom they are cooperating. Neither they, nor other individuals or the countries for whom they work will want to work with us. Courts have themselves recognized that "[e]ven a small chance [of risked outing] . . . could . . . cause sources to 'close up like a clam.'" Relatedly, we need to protect those who do business with our intelligence agencies--particularly those who follow the laws and regulations overseeing their activities--or they will never have any incentive to do business with us. Additionally, coordination with host nation forces is increasingly required for our intelligence collection efforts. These efforts will be undermined if sources and techniques are revealed. Thankfully, to this point, the majority of these collaborative efforts with other nations and their intelligence agencies have generally worked, as evidenced by the astounding accomplishment of ultimately locating and killing Osama bin Laden in 2011.

Deference

Deference is vital to national security — courts empirically fail to protect national interest.


Allen 08 — John M. Allen, Associate Professor of Law at the University of Suffolk, J.D. from the University of Suffolk, 2008 (“Expanding Law Enforcement Discretion: How the Supreme Court's Post-September 11th Decisions Reflect Necessary Prudence,” University of Suffolk Law Review, Vol. 41, accessible via subscribing institution to Lexis-Nexus, accessed on 6-20-15)

III. Analysis

A. Prevention Becomes the Norm

The September 11th attacks demonstrated the importance of improving national security. Changes followed in almost every area of government; defense spending surged, the government established the Department of Homeland Security to act as federal overseer of national security, Congress created the Office of the Director of National Intelligence to ensure the sharing of intelligence across agencies, Congress also founded the Transportation Security Administration to implement more effective airline security procedures, and state and local governments instituted emergency measures and greater security procedures. The devastation of the September 11th attacks also led courts to scrutinize cases involving law enforcement and national security. Although many of the cases did not directly address terrorism issues, they did consider constitutional concerns regarding search warrants, evidentiary issues, and broader police discretion pertaining to homeland defense and security. As evidenced by Moussaoui's unsearched laptop, the nation's rigid obedience to legal restraints and civil liberties is strong. Rigid adherence to these legal precedents, however, prevents the discovery of invaluable information or may hinder time-sensitive investigations. The use of the criminal justice system alone to handle terrorism's potential for disaster is unworkable. The current tension concerns proactively preventing terrorism without compromising personal liberties. In instances where national security demands an exception, the Supreme Court recognized that constitutional protections may yield to more effective measures of prevention.

B. Supreme Court Case Review Grants Greater Latitude to Law Enforcement

Following the September 11th attacks, the Supreme Court considered cases involving immigration, border searches, home searches, searches authorized by warrant, alien and enemy combatant detention, and suspicionless searches of categorized individuals. The looming threat of terrorism and the attacks of September 11th influenced the Court's decisions demonstrating their respect for law enforcement interests and personal liberties. The Court's decisions afforded greater flexibility for law enforcement officers to exercise more subjective discretion with regard to security, protection, and policing issues. The Court supported the subjective judgments of law enforcement officers and valued their training and experience while appreciating larger national security concerns. Giving up some liberties in this troubling time, however, does not have to be a dreadful reality but is instead a necessary step in establishing measures to maintain America's freedom and national security. The Supreme Court's reformation in thinking demonstrates a change in perspective that now permits certain laws to directly reflect the current political realities. Overemphasis on individual privacy will unduly constrain law enforcement because the United States needs effective policies to prevent future terrorism and avoid reversion back to the restraining procedures that inhibit antiterrorism measures. The need for these changes in critical law enforcement sectors is necessary to ensure greater national protection against future attacks.

Moussaoui's laptop was afforded protection beyond necessary constitutional mandates. Given the current status of America's national security, the reasonableness of the necessity to search his laptop is apparent in hindsight. Changes in the Supreme Court's attitude toward law and enforcement were necessary following the security threats presented by recent terrorist attacks.


Deference decreases the risk of terror — executive decision making is vital to national security.


Yoo and Ku 06 — John Yoo, Emanuel Heller Professor of Law at the University of California, Berkley, Visiting Scholar at the American Enterprise Insititute, J.D. from Yale University — Julian Ku, Maurice A. Deane Distinguished Professor of Constitutional Law, J.D. from Yale University, 2006 (“Hamdan v. Rumsfeld: The Functional Case for Foreign Affairs Deference to the Executive Branch,” Constitutional Commentary, Vol. 23, accessible online at http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1508&context=facpubs, accessed on 6-19-15)

The Case for Deference

Congress is confident that it can predict the enemy's strategies and tactics, a rule based delegation makes little sense. Finally, the costs of errors in war are extremely high. Delegation by strict rule will produce higher rates of error than a standard. Given the lives that could be lost and the damage to national security that could be suffered from mistaken policies, it seems clear that the area of war requires delegations which provide the executive branch with broad discretion.

Hamdan, by contrast, applies the opposite principle. It imposes a requirement that Congress act through rules when it attempts to delegate its powers in war to the President. It effectively rejected the standards approach exemplified by the AUMF and Hamdi. The Court's clear statement rule, however, does not appear to promote any specific policy which is explained as being more important or valuable than flexibility in wartime. As William Eskridge and Philip Frickey have observed, clear statement rules embody policy choices by the Court, such as the rule of lenity's protection for criminal defendants. If anything, they have argued, in past cases the Court had applied clear statement rules to protect the executive's prerogatives in managing foreign affairs. Hamdan fails to explain what policy value is enhanced by reversing this rule to impose a clear statement rule on wartime policy, and why that value outweighs the benefits of flexibility in war decisions.



Hamdan does not bode well for the United States's ability to wage war effectively. It increases the costs of conducting hostilities by making it more difficult for the President and Congress to cooperate. Congress may enumerate powers more specifically, but at the cost of flexibility-presidential ability to shape decisions to the circumstances at hand will be constrained. Or, as it did in the Military Commissions Act of 2006, Congress may largely restore the President's discretion to run military commissions, but it will do so at the cost in time and energy of developing and enacting complicated legislation. Indeed, without congressional action, Hamdan would have simply resulted in blocking war crimes trials altogether, leaving enemy combatants detained for the duration of the conflict.

*Hamdan=Hamdan v. Rumsfeld — Supreme Court ruling on a 5-4 that an executive court marshal in Guantanamo was illegitimate — breaking the deference doctrine.


PRISM

PRISM key to fighting terror


Carafano, 13 (James J. Carafano, Ph.D, he is Vice President for Defense and Foreign Policy Studies at The Heritage Foundation, Aug 6th 2013, “PRISM is Essential to U.S. Security in War Against Terrorism”, http://www.heritage.org/research/commentary/2013/8/prism-is-essential-to-us-security-in-war-against-terrorism ) CW

"Our intelligence professionals must be able to find out who the terrorists are talking to, what they are saying, and what they're planning," said the president. "The lives of countless Americans depend on our ability to monitor these communications."¶ He added that he would cancel his planned trip to Africa unless assured Congress would support the counterterrorism surveillance program.¶ The president was not Barack Obama. It was George W. Bush, in 2008, pressing Congress to extend and update reforms to the Foreign Intelligence Surveillance Act (FISA). He was speaking directly to the American public, in an address broadcast live from the Oval Office.¶ How times have changed.¶ Back then, the President of the United States willingly led the fight for the programs he thought necessary to keep the nation safe. Now, our president sends underlings to make the case. ¶ In distancing himself from the debate over PRISM (the foreign intelligence surveillance program made famous by the world-travelling leaker Edward Snowden), President Obama followed the precedent he established in May at the National Defense University.¶ There, he spoke disdainfully of drone strikes, the authorization to use military force against terrorists, and the detention facilities at Guantanamo Bay. All three are essential components of his counterterrorism strategy.¶ In distancing himself from his own strategy, Obama hoped to leave the impression that he is somehow above it all. He has dealt with the Snowden case the same way. When asked while traveling in Africa if he would take a role in going after the leaker, the president replied "I shouldn't have to."¶ The White House's above-it-all attitude sends seriously mixed messages to the American people, who are trying to figure if the government's surveillance programs are legal and appropriate.¶ Congress has not been much better.¶ The authority for PRISM is in FISA Section 702. Congress debated these authorities in 2007 and again when the program was reauthorized in 2008.¶ Senate Majority Leader Harry Reid, D-Nev., surely remembers the controversy. He wrote President Bush: "There is no crisis that should lead you to cancel your trip to Africa. But whether or not you cancel your trip, Democrats stand ready to negotiate a final bill, and we remain willing to extend existing law for as short a time or as long a time as is needed to complete work on such a bill." Evidently, Reid must have felt the authorities granted under Section 702 received a full and sufficient hearing.¶ Most current members of Congress were seated under the dome during the 2008 debates. They had every opportunity not just to read the law, but to be briefed on the program by intelligence officials before voting on the bill. For them to act shocked at the scope of the program today rings about as hollow as Obama's expressed disdain for the operations he oversees.¶ The reality is that Congress and the administration share responsibility for these programs. If they want to change or modify them, who's stopping them?¶ If changes are made, however, they should to be made for the right reason. Leaders must never compromise our security for political expediency.¶ At least 60 Islamist-inspired terrorist plots have been aimed at the U.S. since the 9/11 attacks. The overwhelming majority have been thwarted thanks to timely, operational intelligence about the threats. Congress should not go back to a pre-/11 set of rules just to appeal to populist sentiment. Congress and the White House have an obligation to protect our liberties and to safeguard our security -- in equal measure. Meeting that mission is more important than winning popularity polls.

FISA Courts



FISA Courts are too slow for modern counter-terror operations.


CFR ‘13

(The Council on Foreign Relations (CFR) is a United States nonprofit organization, publisher, and think tank specializing in U.S. foreign policy and international affairs. Its membership has included senior politicians, more than a dozen Secretaries of State, CIA directors, bankers, lawyers, professors, and senior media figures – December 18, 2013 – Modified for potentially objectionable language - http://www.cfr.org/intelligence/us-domestic-surveillance/p9763)



The Bush administration maintained that the Foreign Intelligence Surveillance Act (FISA) was an outdated law-enforcement mechanism that was too time-consuming given the highly fluid, modern threat environment. Administration officials portrayed the NSA program as an "early warning system" (PDF) with "a military nature that requires speed and agility." Moreover, the White House stressed that the program was one not of domestic surveillance but of monitoring terrorists abroad, and publicly referred to the operation as the "Terrorist Surveillance Program." Opponents of the program referred to it as "domestic spying."

FISA courts move too slowly to effectively detect terrorism — warranting makes terror attacks extremely likely.


Yoo 14 — John Yoo, Emanuel Heller Professor of Law at the University of California, Berkley, Fellow at the American Enterprise Institute, 2014 (“The Legality of the National Security Administration’s Bulk Collection Program,” Journal of Law and Policy, Summer, accessible online via subscribing institution to Lexis-Nexus, accessed on 6-21-15)

As the United States fought the Afghanistan and Iraq wars, and continues to pursue al Qaeda groups in the Middle East and Africa, it captured al Qaeda laptops, cell phones, financial documents, and the other signs of modern high-tech life. This gave intelligence officers information on dozens or hundreds of e-mail addresses, telephones, bank and credit account numbers, and residential and office addresses used by their network. To exploit this, U.S. intelligence services must follow those leads as fast as possible, before the network of al Qaeda operatives can migrate to a new leader. An e-mail lead can disappear as fast as it takes someone to open a new e-mail account.



FISA, and the law enforcement mentality it embodies, creates several problems. FISA requires "probable cause" to believe that someone is an agent of a foreign power before one can get a warrant to collect phone calls and e-mails. An al Qaeda leader could have a cell phone with 100 numbers in its memory, ten of which are in the United States and thus require a warrant. Would a FISA judge have found probable cause to think the users of those ten numbers are al Qaeda too? Probably not. Would our intelligence agencies even immediately know who was using those numbers at the time of captured al Qaeda leader's calls? The same is true of his e-mail, as to which it will not be immediately obvious what addresses are held by U.S. residents.

In our world of rapidly shifting e-mail addresses, multiple cell phone numbers, and Internet communications, FISA imposes slow and cumbersome procedures on our intelligence and law enforcement officers. These laborious checks are based on the assumption that we remain within the criminal justice system, and look backwards at crimes in order to conduct prosecutions, rather than within the national security system, which looks forward in order to prevent attacks on the American people. FISA requires a lengthy review process, in which special FBI and DOJ lawyers prepare an extensive package of facts and law to present to the FISC. The Attorney General must personally sign the application, and another highranking national security officer, such as the President's National Security Advisor or the Director of the FBI, must certify that the information sought is for foreign intelligence. Creating an existing database of numbers that can be quickly searched can allow the government to take advantage of captured al Qaeda numbers abroad, before the cells within the United States break their contacts.

TSA

The TSA combats terror


DHS, 14 (Website of Department of Homeland Security, Sep 10th 2014, “Preventing Terrorism and Enhancing Security”, http://www.dhs.gov/preventing-terrorism-and-enhancing-security ) CW

Secure Flight: Fulfilling a key 9/11 Commission recommendation, DHS fully implemented Secure Flight in 2010, in which TSA prescreens 100 percent of passengers on flights flying to, from, or within the United States against government watchlists before travelers receive their boarding passes. Prior to Secure Flight, airlines were responsible for checking passengers against watchlists. Through Secure Flight, TSA now vets over 14 million passengers weekly.¶ Enhanced Explosives Screening: Prior to 9/11, limited federal security requirements existed for cargo or baggage screening. Today, TSA screens 100 percent of all checked and carry-on baggage for explosives. Through the Recovery Act and annual appropriations, TSA has accelerated the deployment of new technologies to detect the next generation of threats, including Advanced Imaging Technology units, Explosive Detection Systems, Explosives Trace Detection units, Advanced Technology X-Ray systems, and Bottled Liquid Scanners.¶ Strengthening Surface Transportation Security¶ Visible Intermodal Prevention and Response Teams: TSA has 25 multi-modal Visible Intermodal Prevention and Response (VIPR) Teams working in transportation sectors across the country to prevent or disrupt potential terrorist planning activities. Since the VIPR program was created in 2008, there have been over 17,700 operations performed.¶ Baseline Surface Transportation Security Assessments: Since 2006, TSA has completed more than 190 Baseline Assessments for Security Enhancement for transit, which provides a comprehensive assessment of security programs in critical transit systems.


DOD

DOD surveillance can detect terrorist activities


Ahmed 14 (Nafeez, British author, investigative journalist, and international security scholar, “How the Pentagon Exploits ISIS to Kill Surveillance Reform and Re-Occupy Iraq,” Counterpunch Weekend Edition September 26th-28th, http://www.counterpunch.org/2014/09/26/how-the-pentagon-exploits-isis-to-kill-surveillance-reform-and-re-occupy-iraq/) aj

Pentagon spokesperson: Minerva research needed to predict groups like ISIS. According to Tucker, the US Department of Defense’s Minerva “program managers feel that the rise of IS, and the intelligence community’s inability to anticipate it, imbues their work with a timely importance.” He quotes Fitzgerald who tells him: “Recent security issues such as the emergence of terror groups like ISIS… highlight the type of critical knowledge gaps that Minerva research aims to address.” Big Data, writes Tucker, has provided an ideal opportunity to innovate new ways of predicting the future. “It’s an excellent time for data-driven social science research,” he observes. “But is the military the best outfit to fund it at its most innovative?” Citing a speech last week by CIA director John Brennan, Tucker points out that the sort of research being supported by Minerva is about closing “a big gap” in “intent intelligence” – the capacity to predict human intent. The elephant in the room, however, is that the US intelligence community did anticipate the rise of IS. There is now mounting evidence in the public record that President Obama had been warned of a major attack on Iraq by IS extremists.

Freedom Act

FREEDOM Act revisions exacerbate terror


West 6/3 (Angus West, reporter, Media Equalizer, “Boston terror cases cited as evidence for USA Freedom Act,” http://mediaequalizer.com/angus-west/2015/06/boston-terror-cases-cited-as-evidence-for-usa-freedom-act) aj

Two Boston terrorism cases were cited as evidence by Republicans that revisions in the USA Freedom act undermine US security. Boston’s ongoing terrorism investigation of Usaamah Rahim, who was shot to death by police in Roslindale Tuesday and was suspected of ties with ISIS, and the Tsarnaev case were cited by Republicans who want the National Security Agency (NSA) phone-data gathering program continued as proof NSA needs continued access to metadata on Americans’ phone records — not new limits under the USA Freedom Act. President Obama signed the USA Freedom Act after the US Senate passed the bill 67-32 Tuesday, providing the NSA with the green light to resume an anti-terror surveillance program but only with a court order and individual warrants. Although two unfortunate events made Boston central in this debate over how the government should balance surveillance and security, Republicans said the Boston cases showed that the program is needed. “You can’t hide from the fact that this program enabled us to thwart terror attacks here and abroad, and that this program (was used) to figure out whether the Tsarnaev brothers had an international connection that directed that horrific event at that marathon,” said U.S. Sen. Richard Burr (R-N.C.), chairman of the Senate Select Committee on Intelligence. U.S. Sen. Dan Coats (R-Ind.), who also sits on the committee, referenced the ongoing investigation of Usaamah Rahim’s case, saying that others would be ready “to take up arms, or to create a bomb, or to pick up a knife and bring harm to Americans in the name of support for jihad.”“We just see more and more references to these types of attacks,” Coats added. “Unfortunately we are at a period of time where one of the methods that we have to try to stop these threats is no longer in operation.”
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