Legal issues arising from “double-hatted” roles in national security

National Security is mainly regulated by Title 10, which doles out the roles of manning, training and equipping the uniformed military, and Title 50, which defines various other roles, including the intelligence community.
However, recently news stories have shed light on how often national security roles are being “double-hatted”.

An essay by P.W. Singer on the Armed Forces Journal (“Double-hatting around the law: The problem with morphing warrior, spy and civilian roles”) reports  and comments on three examples of this phenomenon. First, the Senate was recently asked to promote Army Gen. Keith Alexander, who already had a job leading the NSA, to be commander of the new Cyber Command. Secondly, it is reported that more than 120 airstrikes, carried out by Predator and Reaper aircraft into Pakistan against al-Qaida, the Taliban and other militant leaders, were mot conducted by the Air Force, but by the CIA; according to the author double-hatting the CIA into a war-fighting command was an expedient to avoid a public debate about the use of force in another country. Finally, Singer mentions “the continual spate of private contractors popping up in unexpected (and traditionally governmental) national security roles”, as a mean to avoid “harder decisions about shifting roles and missions”.

The author of the essay warns against this phenomenon, by saying that double-hatted roles risk “flouting the intent, if not the letter, of the most important legal codes that originally divided out roles in realms of policy and war”.

With respect to the three examples mentioned, Singer highlights the following shortcomings:

Double-hatting the NSA and military Cyber Command has raised deep concerns about the militarization not just of cyberspace, but of an intelligence agency’s core function of collection and analysis. By contrast, double-hatting the CIA into an operational air war command means its director (a former congressman from California) and his general counsels now handle not only weapons of war, but also issues of war, such as operational concept and strategy, rules of engagement, etc., that they do not have the background or mandate to perform. (…)
And finally double-hatting civilian contractors into government jobs has repeatedly led not only to money gone missing and embarrassing episodes of contractors gone wild, but also places the contractors themselves into roles of war for which their legal status remains murky.

Thai protest leaders charged with terrorism

Eleven leaders of bloody, anti-government protests could face the death penalty after being charged Tuesday with terrorism. The Criminal Court denied bail  for the 11 who were taken to a Bangkok prison after being charged with committing, threatening to commit and supporting terrorist acts. While the charges carry a maximum penalty of death, executions are rare in Thailand.

The leaders, including Veera Musikapong and Nattawut Saikua, had been  detained since surrendering to the government on May 19 following weeks of clashes between so-called Red Shirt protesters and security forces in which nearly 90 people were killed and more than 1,400 injured.

Maoists ‘killed’ in India’s operation in Jharkhand

Police in the north-eastern Indian state of Jharkhand say they have killed 10 Maoist rebels.

Eight rebel camps were destroyed during what is being described as a major offensive in the Borahat jungles of West Singbhum district, officials said.

Six policemen injured in the operation were airlifted to hospital, police said.

Authorities have been under pressure following a wave of Maoist-led violence in recent months.

In late May, more than 145 people were killed when a train crashed in neighbouring West Bengal state after Maoist rebels allegedly sabotaged the rail track.

Indian forces launched the offensive in what is known as the “red
corridor” – a broad swathe of territory in rural eastern and central India where the Maoist rebellion has been gathering strength.

Nearly 50,000 federal paramilitary troops and tens of thousands of policemen are taking part in the operation in several states, including Jharkhand.

In April, 76 paramilitary troops were killed in an ambush – the single deadliest attack on the Indian security forces by the rebels.

Prime Minister Manmohan Singh has described the Maoist insurgency as India’s biggest internal security challenge.

First Swift Agreement approved between the US and the EU

MEP Jan Albrecht posted the agreement on his blog. Read it here.

Earlier this week Commissioner Malmström had said that the talks had yielded “considerable improvements” over an interim deal that was rejected by the Parliament in February. Malmström said that the draft agreement contained “significantly stronger” guarantees on data protection and opportunities for rectifying or erasing inaccurate data.

Though the new agreement expressly precludes data mining (art.5.3), it still allows for the sending of data “in bulk” – which will prove to be one of hardest selling points of the agreement to the European Parliament. The Parliament earlier has expressed its reservations about the sending of bulk data to the U.S. The major stumbling block is article 12:

Article 12: Monitoring of Safeguards and Controls
1. Compliance with the strict counter terrorism purpose limitation and the other safeguards set out in Articles 5 and 6 shall be subject to independent monitoring and oversight. Such oversight, subject to appropriate security clearances, shall include the authority to review in real time and retrospectively all searches made of the Provided Data, the authority to query such searches and, as appropriate, to request additional justification of the terrorism nexus. In particular, independent overseers shall have the authority to block any or all searches if it appears that one or more searches have been made in breach of Article 5.

2. The independent oversight shall also include the ongoing monitoring of compliance with and reporting on all safeguards set out in Articles 5 and 6.

3. The oversight described in paragraphs 1 and 2 shall be subject to ongoing monitoring, including of the independence of the oversight described in paragraphs 1 and 2, by an independent person appointed by the European Commission, with the modalities of the monitoring to be jointly coordinated by the Parties. The Inspector General of the U.S. Treasury Department will ensure that the independent oversight described in paragraphs 1 and 2 is undertaken pursuant to applicable audit standards.

As Statewatch points out:

Financial data from the EU is opened and searched by US agencies using specialists “tools” (highly sophisticated computer programmes) – which only the USA has access to. In simple terms US agencies get a “packet” of personal financial data from the EU which they “open” and then “select” the data on specific names. But the EU cannot check the names selected – as it has no access to the “tools” – and therefore cannot exercise its right to “safeguards” and “controls” by “blocking” the inclusion of specific individuals.

Other new developments:
Under the new agreement, Europol  will verify and approve US requests for data on bank transfers. (articles 4.3 4.5).

Where data concerns a citizen or resident of an EU member state, the sharing of leads with third countries will require the consent of the member state concerned.

Importantly, EU citizens will have access to administrative redress under the agreement, which also provides the possibility of judicial redress.

Article 18.2
Any person who considers his or her personal data to have been processed in breach of this Agreement is entitled to seek effective administrative and judicial redress in accordance with the laws of the European Union, its Member States, and the United States, respectively. For this purpose and as regards data transferred to the United States pursuant to this Agreement, the U.S. Treasury Department shall treat all persons equally in the application of its administrative process, regardless of nationality or country of residence. All persons, regardless of nationality or country of residence, shall have available under U.S. law a process for seeking judicial redress from an adverse administrative action.

The draft agreement also includes the possibility of EU establishing its own TFTP, with the US authorities assisting in its creation and development.

Article 11: Cooperation with Future Equivalent EU System

1. During the course of this Agreement, the European Commission will carry out a study into the possible introduction of an equivalent EU system allowing for a more targeted transfer of data.

2. If, following this study, the European Union decides to establish an EU system, the United States shall cooperate and provide assistance and advice to contribute to the effective establishment of such a system.

3. Since the establishment of an EU system could substantially change the context of this Agreement, if the European Union decides to establish such a system, the Parties should consult to determine whether the Agreement would need to be adjusted accordingly. In that regard, U.S. and EU authorities shall cooperate to ensure the complementariness and efficiencies of the U.S. and EU systems in a manner that further enhances the security of citizens of the United States, the European Union, and elsewhere. In the spirit of this cooperation, the Parties shall actively pursue, on the basis of reciprocity and appropriate safeguards, the cooperation of any relevant international financial payment messaging service providers which are based in their respective territories for the purposes of ensuring the continued and effective viability of the U.S. and EU systems.

Behavioral Profiling at Airports

Nature ask itself the question: is it possible to know whether people are being deceptive, or planning hostile acts, just by observing them?

Some people seem to think so. At London’s Heathrow Airport, for example, the UK government is deploying behaviour-detection officers in a trial modelled in part on SPOT. And in the United States, the DHS is pursuing a programme that would use sensors to look at nonverbal behaviours, and thereby spot terrorists as they walk through a corridor. The US Department of Defense and intelligence agencies have expressed interest in similar ideas.

Yet a growing number of researchers are dubious — not just about the projects themselves, but about the science on which they are based. “Simply put, people (including professional lie-catchers with extensive experience of assessing veracity) would achieve similar hit rates if they flipped a coin,” noted a 2007 report1 from a committee of credibility-assessment experts who reviewed research on portal screening.

“No scientific evidence exists to support the detection or inference of future behaviour, including intent,” declares a 2008 report prepared by the JASON defence advisory group. And the TSA had no business deploying SPOT across the nation’s airports “without first validating the scientific basis for identifying suspicious passengers in an airport environment”, stated a two-year review of the programme released on 20 May by the Government Accountability Office (GAO), the investigative arm of the US Congress.

Commentary from the MindHacks blog. H/T to Bruce Schneier.

Does Europe need ‘homeland security’?

In this new document from Security and Defence Agenda Commissioner Malmström is quoted as saying that with the adoption in February 2010 of a new internal security strategy, the EU has begun taking steps towards unifying European security.

“We do not, however, have to copy our friends in the US,” she said. “We are 27 countries that all work slightly differently and we already have mechanisms in place to ensure the EU’s security. What I am doing is to look at how we can further improve relations, including between the existing agencies.”

Profiling in the European Union: A high-risk practice

New IN:EX/CEPS publication. Download it here.

Abstract:

Profiling through predictive data mining is already a reality worldwide, including in the European Union. This modern technique relies on the massive processing of personal data in order to identify patterns that allow for the automatic categorisation of individuals. Yet no satisfactory debate is taking place on how the use of profiling in this particular area can encroach upon the fundamental rights and freedoms of individuals, argue the authors of this INEX Policy Brief.

Dinler et al. vs the City of New York: court rules City can withold surveillance data of political protests

A three-judge panel of the United States Court of Appeals for the Second Circuit ruled that New York City can keep secret about 1,800 pages of records detailing the Police Department’s surveillance and tactical strategy in advance of protests at the 2004 Republican National Convention. Releasing the documents “could undermine the safety of law enforcement  personnel and would likely undermine the ability of a law enforcement  agency to conduct future investigations,” including future surveillance efforts centered on terrorism suspects, according to the 43-page decision, written by  Judge José A. Cabranes.

More than 1,800 people were arrested and fingerprinted during the convention, but lawyers for the New York Civil Liberties Union group, representing some of those arrested, were seeking the documents to see how and why arrests were made and what information the police may have had before they made the arrests.

Christopher T. Dunn, the associate legal director of the New York Civil Liberties Union, said it was a mistake to conflate the department’s antiterrorism efforts with its operation to covertly observe groups involved in public protests at political events.

Mr. Dunn said he was concerned that the police would use the decision to clamp down on peaceful protests in New York.

“What has been so deeply troubling has been the city’s continued effort to depict demonstrators as terrorists,” Mr. Dunn said. “The convention protests were entirely peaceful, and we believe that the reports we sought would have revealed that the Police Department was fully aware that the protests would be peaceful.”

Mr. Dunn added, “The real tragedy in today’s ruling is that it may further embolden the police to play the terrorism card in trying to suppress lawful protest.”

American man in limbo on no-fly list

A 26-year-old Muslim American man has been put on the non-fly list, after spending 18 months in Yemen before heading home to Virginia in early May. Yahya Wehelie has been stopped by FBI agents while he was changing planes in Cairo. Agents told him he was on the no-fly list and questioned him about his contacts with another American in Yemen, one accused of joining Al Qaeda and fatally shooting a hospital guard.

Yahya Wehelie and his parents say he has no radical views, despises Al Qaeda and merely wants to get home to complete his education and get a job.

For six weeks, Mr. Wehelie has been in limbo in the Egyptian capital.  But after many hours of questioning by F.B.I. agents, he remains on the no-fly list. When he offered to fly home handcuffed and flanked by air marshals, Mr. Wehelie said, F.B.I. agents turned him down.

Yahya Wehelie’s younger brother, Yusuf, 19, who was stopped with him in Cairo, faced a shorter but even more harrowing time in Egypt. Questioned first by the F.B.I., Yusuf was later held for three days by Egyptian security officers, blindfolded, chained to a wall and roughed up before being allowed to travel home May 12, he said in an interview.

Mr. Wehelie’s case both the aggressive response of American counterterrorism officials to recent close calls with major terrorist plots, and the daunting challenge, both for people like Mr. Wehelie and for their F.B.I. questioners, of proving that they pose no security threat.

Accused after the Dec. 25 near-miss of failing to keep the would-be bomber off the plane to Detroit, the government’s Terrorist Screening Center has since doubled the no-fly list to 8,000 names, according to a counterterrorism official who discussed the closely held numbers on the condition that he not be identified.

The American Civil Liberties Union says it has been contacted by a dozen people who say they have been improperly placed on the no-fly list since December, half of them Americans abroad

(h/t Georgetown SLB)