Parliamentary oversight of security and intelligence agencies in the EU

One of the reasons for the lack of posts on this blog the past months is that I co-authored this large study (446 pages), together with Aidan Wills, for the European Parliament’s Civil Liberties, Justice and Home Affairs Committee (LIBE). The study came out today, and also includes a number of attachments written by national intelligence oversight bodies.
Abstract: This study evaluates the oversight of national security and intelligence agencies by parliaments and specialised non-parliamentary oversight bodies, with a view to identifying good practices that can inform the European Parliament’s approach to strengthening the oversight of Europol, Eurojust, Frontex and, to a lesser extent, Sitcen. The study puts forward a series of detailed recommendations (including in the field of access to classified information) that are formulated on the basis of indepth assessments of: (1) the current functions and powers of these four bodies; (2) existing arrangements for the oversight of these bodies by the European Parliament, the Joint Supervisory Bodies and national parliaments; and (3) the legal and institutional frameworks for parliamentary and specialised oversight of security and intelligence agencies in EU Member States and other major democracies.

We will present the study at the LIBE Committee at 15h on Monday the 3d of October. An Interparliamentary Committee Meeting on  “Democratic Accountability of the Internal Security Strategy and the Role of Europol, Eurojust and Frontex” will be held on Wednesday 5 October from 15.00 to 18.30 and on Thursday 6 October from 9.00 to 12.30 in the Hemicycle of the Paul-Henri Spaak building of the European Parliament as well, which is open to the public. You can register for this meeting until the 29th of September.

CCR sues ‘Guantanamo North’ detention facilities in Aref et al v. Holder

NPR has a story about the “Communications Management Units” in Terre Haute, Ind., and Marion, Ill. The special detention unit in Terre Haute contains 50 cells housing some of the people the U.S. describes as the “country’s biggest security threats”, including John Walker Lindh. The units’ population has included men convicted in well-known post-Sept. 11 cases, as well as defendants from the 1993 World Trade Center bombing, the 1999 “millennium” plot to bomb the Los Angeles airport, and hijacking cases in 1976, 1985 and 1996. The Bureau of Prisons says a total of 71 men now live in the units.

Guards and cameras watch the CMU inmates’ every move. Every word they speak is picked up by a counterterrorism team that eavesdrops from West Virginia. Restrictions on visiting time and phone calls in the special units are tougher than in most maximum security prisons. Prisoners in the CMU, alone out of all general population prisoners within the federal system, are categorically banned from any physical contact with visiting friends and family, including babies, infants, and minor children. To further their social isolation, the BOP has placed severe restrictions on their access to phone calls and work and educational opportunities.

According to CCR:

“Adding to the suspect nature of these units, upwards of two-thirds of the prisoners confined there are Muslim – a figure that over-represents the proportion of Muslim prisoners in BOP facilities by at least 1000 percent. Many of the remaining prisoners have unpopular political views, including environmental activists designated as “ecoterrorists.”

When the Terre Haute unit opened in December 2006, 15 of the first 17 inmates were Muslim. AAlexis Agathocleous, a lawyer at the Center for Constitutional Rights:

“We were concerned about what appears to be racial profiling and also a pattern of designations to the CMUs of people who have spoken out at other prison units and advocated for their rights and have taken leadership positions in religious communities in those other prisons,” he says. They are segregated from other prisoners because officials worry that they could recruit other inmates for terrorism or direct people in the outside world to commit crimes.

Civil rights groups have filed lawsuits however that accuse the two U.S. facilities of some of the same due process complaints raised by people at Gitmo.Prison officials opened the first CMU with no public notice four years ago, something inmates say they had no right to do under the federal law known as the Administrative Procedures Act. Unlike prisoners who are convicted of serious crimes and sent to a federal supermax facility, CMU inmates have no way to review the evidence that sent them there or to challenge that evidence to get out. Also, as word got out that the special units were disproportionately Muslim,
civil rights lawyers say, the Bureau of Prisons started moving in
non-Muslims. According to CCR:

“Five CMU prisoners and two of their spouses (who, along with their children, have been subjected to draconian rules governing visitation and phone calls) have joined the lawsuit as plaintiffs. All five men confined in the CMU have been classified as low or medium security, but were designated to the CMU despite their relatively, and in two cases perfectly, clean disciplinary history. Not a single one has received discipline for any communications-related infraction within the last decade, nor any significant disciplinary offense.

Like all CMU prisoners, the men received no procedural protections related to their designation, and were not allowed to examine or refute the allegations that led to their transfer. They are also being held indefinitely at the CMU without any meaningful review process. They expect to serve their entire sentences in these isolated and punitive units.

Predictably, the lack of procedural protections has allowed for an unchecked pattern of discriminatory and retaliatory designations to the CMU. Rather than being related to a legitimate penological purpose or based on substantiated information, our clients’ designations were instead based on their religious and/or perceived political beliefs, or in retaliation for other protected First Amendment activity.

American University law professor Stephen Vladeck reviewed NPR’s findings. He says he has some questions about the secrecy surrounding the units and whether the prison is sending the right people there.

“I think the real question is, what are the constraints and how are we sure that the right people are being placed in these units and not the wrong ones?” Vladeck says.

“Mixing prisoners from different backgrounds who actually don’t necessarily live up to those criteria I think is troubling,” Vladeck adds, because it means some inmates might not belong there, and others who do belong may not be getting the attention they deserve.

Documents:

Federal judge dismisses government surveillance suit for lack of standing

[JURIST] A judge for the US District Court for the Northern District of California granted summary judgment Monday in favor of the government in CCR v. Obama, ruling that the Center for Constitutional Rights (CCR) lacked standing to challenge the legality of information obtained by Bush-era warrantless surveillance programs. CCR argued that the Terrorist Surveillance Program (TSP) and Protect America Act (POA), which allowed the National Security Agency (NSA) to wiretap suspected terrorists without a warrant, chilled the CCR’s ability to speak freely with its clients and probably intercepted communications that were subject to the attorney-client privilege. Judge Vaughn Walker, noting that the TSP was discontinued in 2007 and the POA expired in 2008, ruled that CCR lacked standing to challenge the programs since it could not show its communications had actually been intercepted as required to state a claim under the Foreign Intelligence Surveillance Act (FISA) or that it had suffered any harm.

Walker explained:

“In short, plaintiffs have not shown that they personally have suffered some actual or threatened injury as a result of the putatively illegal conduct, especially in light of the clear precedent requiring that the allegations of future injury be particular and concrete. Plaintiffs have therefore failed to establish standing for their First Amendment claim” [citations omitted]. CCR Senior Attorney Shayan Kadidal expressed displeasure with the ruling, saying [press release], “It is astonishing that President Obama’s administration continues to fight to hold on to the fruits of a patently illegal surveillance program, even where that surveillance was directed at attorneys engaged in suing the government.”

DC Circuit: No need to release full info on high value detainees (ACLU v. U.S. Dep’t of Def)

(ASIL) The U.S. Court of Appeals for the District of Columbia has upheld a lower court ruling in favor of the U.S. government regarding the release of documents related to fourteen “high value” detainees held at the U.S. Naval Base in Guantanamo Bay. The request for the release of the documents was filed by the American Civil Liberties Union (ACLU) under the Freedom of Information Act (FOIA).

The U.S. government had released redacted versions of the documents requested by the ACLU; however, information regarding the capture, detention, and interrogation of the detainees was not released. The government defended its actions on the basis that the information in question was properly withheld under FOIA exemptions, which allow the withholding of government information related to “intelligence sources and methods.” The district court granted the government’s motion for summary judgment, finding the government in compliance with FOIA. The ACLU appealed.

During the appeal, President Obama issued three Executive Orders on detention and interrogation and declassified and released four Department of Justice memoranda on the legality of enhanced interrogation techniques. In addition, information regarding treatment of “high value” detainees was leaked, and a CIA report on the CIA’s interrogation techniques was released. These changes prompted the Court of Appeals to remand the case back to district court to “provide the CIA with the opportunity to ‘reprocess’ the requested documents.” The result was the release of a complete combatant status review tribunal transcript and revision of redactions of five other transcripts. The government again filed a motion for summary judgment, which the district court granted, and again, the ACLU appealed.

In a detailed discussion of FOIA and the relevant exemptions, the Court of Appeals rejected all of the ACLU’s claims, including that the information requested has already been declassified and is publically available; that the interrogation techniques and confinement methods were “prohibited” by the President; that the government could not classify information “derived from the detainee’s personal observations and experiences;” and that the release would not endanger national security.

Comment on Lawfare blog here.

New JSOC centre must oversee growing use of special anti-terrorism operations

AP reports that the Obama administration has ramped up its secret war on terror groups with a new military targeting center to oversee the growing use of special operations strikes against suspected militants in hot spots around the world.
Run by the U.S. Joint Special Operations Command, the new center would be a significant step in streamlining targeting operations previously scattered among U.S. and battlefields abroad and giving elite military officials closer access to Washington decision-makers and counterterror experts, the officials said.

The center aims to speed the sharing of information and shorten the time between targeting and military action, said two current and two former U.S. officials briefed on the project. Those officials and others insisted on condition of anonymity to discuss the classified matters.

The new center is similar in concept to the civilian National Counterterrorism Center, which was developed in 2004 as a wide-scope defensive bulwark in the wake of the Sept. 11, 2001 attacks to share intelligence and track terrorist threats.

But the new military center focuses instead on the offensive end of counterterrorism, tracking and targeting terrorist threats that have surfaced in recent years from Pakistan to Yemen and Somalia and other hot zones. Its targeting advice will largely direct elite special operations forces in both commando raids and missile strikes overseas.

The data also could be used at times to advise domestic law enforcement in dealing with suspected terrorists inside the U.S., the officials said. But the civilian authorities would have no role in “kill or capture” operations targeting militant suspects abroad.

The center is similar to several other so-called military intelligence “fusion” centers already operating in Iraq and Afghanistan. Those installations were designed to put special operations officials in the same room with intelligence professionals and analysts, allowing U.S. forces to shave the time between finding and tracking a target, and deciding how to respond.

At the heart of the new center’s analysis is a cloud-computing network tied into all elements of U.S. national security, from the eavesdropping capabilities of the National Security Agency to Homeland Security’s border-monitoring databases. The computer is designed to sift through masses of information to track militant suspects across the globe, said two U.S. officials familiar with the system.

Several military officials said the center is the brainchild of JSOC’s current commander, Vice Adm. Bill McRaven, who patterned it on the success of a military system called “counter-network,” which uses drone, satellite and human intelligence to drive operations on the ground in Iraq and Afghanistan.

While directly run by JSOC, the center’s staff is overseen by the Pentagon, while congressional committees have been briefed on its operations, officials said.

Over the past year, the numbers of special operations forces and commando raids against militants have surged in Afghanistan. Two strike forces have grown to 12, according to an intelligence official who spoke on condition of anonymity to discuss classified matters.

“We’ve gone from 30-35 targeted operations a month in June 2009 now to about 1,000 a month,” said NATO spokeswoman Maj. Sunset Belinsky. “More than 80 percent result in capture, and more than 80 percent of the time we capture a targeted individual or someone with a direct connection.”

How does it work?

McChrystal’s intelligence chief, Brig. Gen. Michael Flynn, recognized early innovations by special operations forces in the field and then refined the intelligence sharing process among the military into the “counter-network” system.

Under that system, U.S. special operations forces have acted as police crime scene investigators, quickly combing for evidence after capturing or killing their targets. They bring their data back to a team of defense intelligence analysts who work with interrogators questioning captured suspects. Their teamwork, officials said, speeds up the targeting of new terror suspects.

Similarly, the military’s new targeting center near Washington will rely on a steady flow of information and evidence from the field, which will then by analyzed by special operations experts and their civilian counterparts.

A tip from Africa that suspected militants are planning a strike in the United States, for example, would lead to the names of those suspects being fed into the cloud-computing network. The computer would compare the information with U.S. and international border and flight information, mined from the database of watch lists from the Counterterrorism Center, DHS and the FBI.

If the targets surface overseas, for example, in a country such as Somalia, where special operations forces have already staged snatch-and-grab raids against militants, the military forces would likely be chosen to pursue the targets.

But if the suspected militants turned up inside the U.S., the FBI and other domestic law enforcement would take the lead, officials said.

Israeli High Court Justices deny petition requesting Shin Bet statistics about extent of regulation

The Israeli High Court of Justice denied on Tuesday a petition filed against the Shin Bet and the Prime Minister’s Office requesting information regarding the extent to which a regulation preventing Palestinian detainees from consulting with an attorney is being applied. The High Court justices agreed with the State’s stance that revealing such information has the potential to harm State security.

The petition was filed by the Movement for Freedom of Information and the human rights group Yesh Din requesting to reveal Shin Bet statistics regarding the use of the regulation during 2004-2008. According to the petitioners, even though the Shin Bet is not included in the Freedom of Information law, “there hasn’t been any attempt to expose some of the data in such a way that will balance between the State’s security and the freedom of information.”

High Court Justice Neal Hendel ruled that “the detailed explanations provided by the authorities have convinced me that accepting the petition, completely or partially, might give an opening that will eventually and unintentionally assist hostile factors who wish to harm the State in some way.”

Hendel added: “I was convinced this fear isn’t theoretical, but real and proven.” However, he did go on to criticize the Shin Bet, saying: “It’s not right that the issue of preventing attorney-detainee visits isn’t supervised.”

JASON: Science of Cyber Security Needs More Work

Secrecy News reports that the JASON defense advisory panel has just produced a new report (pdf) on the science of cyber security.

The JASON report began by noting that “A science of cyber security has to deal with a combination of peculiar features that are shared by no other area of study.”

“First, the background on which events occur is almost completely created by humans and is digital.  That is, people built all the pieces.  One might have thought that computers, their software, and networks were therefore completely understandable.  The truth is that the cyber-universe is complex well beyond anyone’s understanding and exhibits behavior that no one predicted, and sometimes can’t even be explained well [after the fact],” the report said.

“Second, cyber security has good guys and bad guys.  It is a field that has developed because people have discovered how to do things that other people disapprove of, and that break what is thought to be an agreed-upon social contract in the material world.  That is, in cyber security there are adversaries, and the adversaries are purposeful and intelligent.”