Domestic surveillance successfully checks terror incidents now. Prefer longitudinal studies



Download 1.16 Mb.
Page2/23
Date conversion13.05.2016
Size1.16 Mb.
1   2   3   4   5   6   7   8   9   ...   23

turns case

privacy

Terror disad turns the Aff – spikes surveillance.


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 government should base its decisions on a careful analysis of consequences, including both benefits and costs (to the extent feasible). In many areas of policy, public officials are increasingly insistent on the need for careful analysis of the consequences of their decisions and on the importance of relying not on intuitions and anecdotes, but on evidence and data, including benefits and costs (to the extent feasible). In the context of government regulation, President Ronald Reagan established a national commitment to careful analysis of regulations in his Executive Order 12291, issued in 1981. In 2011, President Barack Obama issued Executive Order 13563, which renewed and deepened the commitment to quantitative, evidence-based analysis, and added a number of additional requirements to improve regulatory review, directing agencies “to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible” in order to achieve regulatory ends. A central component of Executive Order 13563 involves “retrospective analysis,” meant to ensure not merely prospective analysis of (anticipated) costs and benefits, but also continuing efforts to explore what policies have actually achieved, or failed to achieve, in the real world. In our view, both prospective and retrospective analyses have important roles to play in the domain under discussion, though they also present distinctive challenges, above all because of limits in available knowledge and challenges in quantifying certain variables. Before they are undertaken, surveillance decisions should depend (to the extent feasible) on a careful assessment of the anticipated consequences, including the full range of relevant risks. Such decisions should also be subject to continuing scrutiny, including retrospective analysis, to ensure that any errors are corrected. As we have seen, there is always a possibility that acquisition of more information—whether in the US or abroad—might ultimately prove helpful. But that abstract possibility does not, by itself, provide a sufficient justification for acquiring more information. Because risk management is inevitably involved, the question is one of benefits and costs, which requires careful attention to the range of possible outcomes and also to the likelihood that they will actually occur. To the extent feasible, such attention must be based on the available evidence. Where evidence is unavailable, public officials must acknowledge the limits of what they know. In some cases, public officials are reasonably attempting to reduce risks that are not subject to specification or quantification in advance. In such cases, experience may turn out to be the best teacher; it may show that programs are not working well, and that the benefits and costs are different from what was anticipated. Continued learning and constant scrutiny, with close reference to the consequences, is necessary to safeguard both national security and personal privacy, and to ensure proper management of the full range of risks that are involved. Finally, in constructing oversight and monitoring of intelligence agencies and particularly of surveillance, the US Government must take care to address perceptions of potential abuse, as well as any realities. To maintain and enhance the required level of public trust, especially careful oversight is advisable. For reasons that we have outlined, it is always challenging to strike the right balance between the often competing values of national security and individual liberty, but as history teaches, it is particularly difficult to reconcile these values in times of real or perceived national crisis. Human nature being what it is, there is inevitably a risk of overreaction when we act out of fear. At such moments, those charged with the responsibility for keeping our nation safe, supported by an anxious public, have too often gone beyond programs and policies that were in fact necessary and appropriate to protect the nation and taken steps that unnecessarily and sometimes dangerously jeopardized individual freedom. This phenomenon is evident throughout American history. Too often, we have overreacted in periods of national crisis and then later, with the benefit of hindsight, recognized our failures, reevaluated our judgments, and attempted to correct our policies going forward. We must learn the lessons of history. As early as 1798, Congress enacted the Sedition Act, now widely regarded as a violation of the most fundamental principles of freedom of expression. Nor is the historical verdict kind to a wide range of liberty restricting measures undertaken in other periods of great national anxiety, including the repeated suspensions of the writ of habeas corpus during the Civil War, the suppression of dissent during World War I, the internment of Japanese-Americans during World War II, the campaign to expose and harass persons suspected of “disloyalty” during the McCarthy era, and the widespread and unlawful spying on critics of the government’s policies during the Vietnam War. It is true that when the nation is at risk, or engaged in some kind of military conflict, the argument for new restrictions may seem, and even be, plausible. Serious threats may tip preexisting balances. But it is also true that in such periods, there is a temptation to ignore the fact that risks are on all sides of the equation, and to compromise liberty at the expense of security. One of our central goals in this Report is to provide secure foundations for future decisions, when public fears may heighten those dangers. With respect to surveillance in particular, the nation’s history is lengthy and elaborate, but the issues in the modern era can be traced back directly to the Vietnam War. Presidents Lyndon Johnson and Richard Nixon encouraged government intelligence agencies to investigate alleged “subversives” in the antiwar movement. The Federal Bureau of Investigation (FBI) engaged in extensive infiltration and electronic surveillance of individuals and organizations opposed to the war; the Central Intelligence Agency (CIA) monitored a broad array of antiwar organizations and activities, accumulating information on more than 300,000 people; and Army intelligence initiated its own domestic spying operation, gathering information on more than 100,000 opponents of the Vietnam War, including Members of Congress, civil rights leaders, and journalists. The government sought not only to investigate its critics on a massive scale, but also to expose, disrupt, and neutralize their efforts to affect public opinion.

National Security interests outweigh the Aff’s privacy concerns.


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 - https://www.eff.org/document/governments-smith-answering-brief)



In light of the imperative national-security interests the program serves and the numerous privacy protections that the statute and the Foreign Intelligence Surveillance Court require the government to observe, the program is reasonable under the Fourth Amendment. See U.S. Const. amend. IV. That reasonableness standard requires balancing “the promotion of legitimate governmental interests against the degree to which [any search] intrudes upon an individual’s privacy.” Maryland v. King, 133 S. Ct. 1958, 1970 (2013) (citation and internal quotation marks omitted). The interest in preventing terrorist attacks by identifying and tracking terrorist operatives is a national security concern of compelling importance. See Haig v. Agee, 453 U.S. 280, 307 (1981) (“no governmental interest is more compelling” than national security); In re Directives, 551 F.3d 1004, 1012 (FISC-R 2008) (“the relevant governmental interest—the interest in national security—is of the highest order of magnitude”). The Section 215 bulk telephony metadata program enhances the government’s ability to uncover and monitor known and unknown terrorist operatives who could otherwise elude detection, and has meaningfully contributed to counterterrorism investigations. SER 20-26, ER 74-76. Any Fourth Amendment privacy interest implicated by the Section 215 program, in contrast, is minimal. The governing Foreign Intelligence Surveillance Court orders strictly limit review and analysis of the metadata, and there is no nonspeculative basis to believe that any information concerning plaintiff’s calls—or those of the vast bulk of other telephone subscribershas been or will ever be seen by any person. See King, 133 S. Ct. at 1979-80 (finding no Fourth Amendment violation where safeguards limiting DNA analysis to identification information alone reduced any intrusion into privacy); Bd. of Educ. v. Earls, 536 U.S. 822, 833-34 (2002) (no Fourth Amendment violation where restrictions on access to drug testing results lessened intrusion on privacy); Vernonia Sch. Dist., 515 U.S. at 658 (no Fourth Amendment violation where student athletes’ urine was tested for illegal drugs and not for any medical condition); Sitz, 496 U.S. at 450-51 (no Fourth Amendment violation where safety interests served by drunk-driving checkpoints outweighed motorists’ interests in driving without being stopped). The government obtains telephony metadata in bulk to preserve the information for future analysis based on a reasonable, articulable suspicion; the information is then only accessed as part of the highly restricted querying process, which requires judicial approval.

Terrorism risk outweighs the specific privacy interest at hand


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 - https://www.eff.org/document/governments-smith-answering-brief)

There is no basis for plaintiff’s request for the extraordinary remedy of preliminary injunctive relief. The Section 215 telephony metadata program serves important national security interests, and courts are rightly sensitive to the risks of handcuffing the government’s efforts to prevent harm to the Nation. Plaintiff claims to suffer irreparable harm from this anti-terrorism program, but waited six months after filing her complaint before seeking preliminary relief. Plaintiff has at most a minimal privacy interest in having metadata about her calls removed from the Section 215 database, one that is outweighed by the public interest in maintaining the program’s important capabilities in combating the continuing terrorist threat.

Neg’s terror disad on-point outweighs privacy advantage.


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 - https://www.eff.org/document/governments-smith-answering-brief)



The balance of equities and the public interest also tip markedly in the government’s favor. Any privacy interest plaintiff has at stake here is surely minimal, particularly given the remote likelihood that metadata pertaining to her calls would ever be reviewed by a human analyst. On the other side of the ledger, the government has a substantial interest in continuing the Section 215 program, a valuable program in the government’s antiterrorism arsenal, for reasons already explained.

Security interests of this program outweigh privacy concerns.


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 - https://www.eff.org/document/governments-smith-answering-brief)



Even if obtaining bulk telephony metadata from the business records of telecommunications companies were a Fourth Amendment “search,” it would nevertheless be constitutionally permissible. The Fourth Amendment bars only unreasonable searches and seizures, and the Section 215 telephony-metadata program is reasonable under the standard applicable to searches that serve “special needs” of the government. See, e.g., Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 653 (1995). The national security and safety interests served by the Section 215 program are special needs of the utmost importance that go beyond ordinary law enforcement needs. See Nat’l Treasury Emps. Union v. Von Raab, 489 U.S. 656, 674 (1989) (noting “national security” interest in deterring drug use among Customs Service employees); United States v. U.S. Dist. Court (Keith), 407 U.S. 297, 322-23 (1972); Cassidy v. Chertoff, 471 F.3d 67, 82 (2d Cir. 2006); MacWade v. Kelly, 460 F.3d 260, 270-71 (2d Cir. 2006) (citing Sitz, 496 U.S. at 444). Plaintiff agrees that the special-needs doctrine applies where compliance with “the warrant and probable-cause requirements” is “impracticable.” Pl. Br. 29. That standard governs here because, as the government has shown and the Foreign Intelligence Surveillance Court has repeatedly concluded, the Section 215 bulk telephony-metadata program provides an efficient means to identify otherwise-unknown associations (within one or two steps of contact) with telephone numbers and other selectors that are reasonably suspected of being used by terrorist organizations. The bulk collection of metadata allows the government to identify connections using retrospective analysis of calls that occurred before the relevant terrorist connection became known. The Foreign Intelligence Surveillance Court orders authorizing the Section 215 bulk telephony-metadata program permit the government to retain a historical repository of up to five years’ worth of telephony metadata, cutting across multiple providers, for intelligence analysis purposes that could not be accomplished as effectively, if at all, with more targeted investigative tools, such as probable-cause warrants. SER 20-26, ER 74-76. Under current law, “serving the phone companies with demands for records relating to particular terrorism suspects,” Pl. Br. 34, does not allow the historical analysis conducted under the Section 215 program to occur as effectively. SER 25.
1   2   3   4   5   6   7   8   9   ...   23


The database is protected by copyright ©essaydocs.org 2016
send message

    Main page