Catch Them, but Do Not Watch Them!

Walid Phares is outraged that the administration is not doing enough electronic surveillance within U.S. borders and believes the press is missing the boat in its coverage.

. . . I was surprised as I continued reading the AP report that it did not criticize the administration for not doing enough surveillance of terror-related activities but for doing too much, or as it was framed in the media later: Spying on U.S. citizens! The argument was coined in pure theoretical – albeit erroneous- sculpture: The president was ordering spying on Americans, inside the country. Hence, he had – according to some – broken the law. Reading and listening to the surreal new debate, I thought of how al-Qaeda must be laughing. In one of his caves in middle earth, Osama bin Laden and Ayman Zawahiri must be in disbelief, yelling, “By Allah, had we known we were barely monitored; we could have pulled out the big one!”

But America’s political debate is happening on a different planet: it’s about L.A. Law, finding scandals, and who can get a story out; regardless of reflecting on what we’ll need to do to win the War on Terror. The new “story” was given a title before it is investigated: it is spying on Americans rather than being about gathering information on terrorists. So if the terrorists happen to be U.S. citizens (a citizenship Jihadists can obtain swiftly) their status of terrorist is overridden by their legal status. But the critics stated that it is not about the War on Terror, but about civil liberties. A president must use the FISA Act’s process: ask a special court for authorization to wiretap a suspected terrorist.

Furthermore, he believes the legal debate is misframed:

During wartime, the military engages in searches and surveillance without a warrant. We do not, for example, require the armed forces to seek a warrant when it conducts visual or electronic surveillance of enemy forces or of a battlefield, or when it searches buildings, houses, and vehicles for the enemy. Nor must military operations within the United States operate under a different rule.

The question is clear: Are we or are we not at war with the terrorists? Osama bin Laden declared that war in 1998. The bipartisan 9/11 Commission wondered why the previous administration refused to do so and the incumbent held off until October 2001. The jihadists are present within the U.S., including those who carry U.S. passports. So are other terror jihadists in Spain, Britain, Holland, or France. By pure rationale, the U.S. government has the duty to use all means (approved by war conventions) to resist the penetration and infiltration of the United States. Doing otherwise is unlawful, unconstitutional, and more importantly to the detriment of the security, and therefore the liberty of the American people. But regardless of any general legal argument, attorney John Yoo provides us with a technical legal provision. He writes:

“Therefore, if al-Qaeda forces organize and carry out missions to attack civilian or military targets within the United States, government surveillance of terrorists would not be law enforcement so much as military operations. In such circumstances, when the government is not pursuing an ordinary criminal law enforcement objective, the Fourth Amendment requires no search warrant.”

Phares contends that the terrorists are now in a much better position than they were when the NYT story on this came out last week:

Meanwhile, al-Qaeda is learning more about our system – not about the fact that the U.S. government has been monitoring them, but how little it has done and how easy it is to attack these measures within the U.S. system. The terrorists in charge of penetrating U.S. national security are better off this week than last. They would have learned how many times the president has authorized exceptional surveillance; they would have understood why the pressure was higher on terror between 2001 and 2005; and above all they would have realized that politicians in America (and their academic advisors) are detached from the reality of the post-9/11 world.

Al-Qaeda knew it was under surveillance in America, but it didn’t know much about that system. Soon, it will know and will use this knowledge to its advantage. While some among us are rotating their pre-9/11 planet back in time, future jihad is railing against another of its enemies’ fatal weaknesses.

With some caveats, I agree.

The fact that the enemy is a hard one to defeat is not a blanket rationale for suspending the rights of Americans. It is, however, cause for understanding that those charged with protecting us might push the envelope.

I disagree, for example, with the creation of the TSA and the intrusive searches people under zero suspicion are forced to undergo to exercise their right to travel. Such searches would seem to violate the plain meaning of the 4th Amendment, although the courts have upheld them and the public largely accepts them. And that’s true even though there is no evidence–unlike the NSA case–that the searches have deterred a single terrorist act.

Presidents are, like all citizens, required to obey the law of the land. If the NSA were spying on the political opponents of the Bush administration or even if it were spying on U.S. citizens with the intent to gather information for use in criminal prosecution, it would be a serious matter. As I understand the facts of this case, though, the president has authorized only spying on non-citizens in cases where at least one party to the conversation was outside the country. Further, the intent was to gather information to thwart terrorist attacks, not prosecute criminals.

As I’ve written repeatedly, we need more information here to properly understand the administration’s rationale for doing the eavesdropping without asking for FISA warrants. My strong suspicion is that there is a reasonable explanation. It would be quite helpful if it were forthcoming.

Previously at OTB:

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Beth Malek says:

    Great comments from James. I’d like to add few points.

    You wrote

    “that Walid Phares is “outraged” that the administration is not doing enough electronic surveillance within U.S. borders and believes the press is missing the boat in its coverage.”

    In fact, as I read Dr Phares book Future Jihad, I don’t think it is about “outrage” but about thorough analysis of what should be done. Phares analysis calls for a global restructuring of the conflict with the Jihadists. He is calling for a new legal framework instead of stretching the old one. However, I agree with you that he feels the media, and particularly academic haven’t yet absorbed the whole picture of the Jihadist strategies.

    YOu wrote: “

    The fact that the enemy is a hard one to defeat is not a blanket rationale for suspending the rights of Americans.”

    See this is where many among us are not understanding what Phares and others are trying to say. If you read his book, you realize that his theory is different. He doesn’t believe that we need to make any concession on any right at all. Just the opposite, he believes that no right should be suspended. But he suggest we create a special legal category regarding Jihadism. So Americans who aren’t Jihadists do not have to suffer because of the War on Terror.

    When you write that

    it is however, cause for understanding that those charged with protecting us might push the envelope

    . thatis not what Phares is calling for. He is calling for a two tracks solution. Full rights for American citizens, and a campaign against Terror Jihadists.

    You wrote:

    I disagree, for example, with the creation of the TSA and the intrusive searches people under zero suspicion are forced to undergo to exercise their right to travel. Such searches would seem to violate the plain meaning of the 4th Amendment, although the courts have upheld them and the public largely accepts them

    . That’s precisely the Phares theory. We, as Americans do not need to suffer because of these measures, the Terrorists should be the ones to be contained. The question is how to detect the terrorists while leaving Americans enjoyiong their freedoms. Well, it is special legislation

    You wrote righfully:

    Presidents are, like all citizens, required to obey the law of the land. If the NSA were spying on the political opponents of the Bush administration or even if it were spying on U.S. citizens with the intent to gather information for use in criminal prosecution, it would be a serious matter.

    That’s the right point. That’s what most Americans agree on. And that’s why anti-terrorist measures should not target the public, but the terrorists or suspects

    YOu wrote:

    As I understand the facts of this case, though, the president has authorized only spying on non-citizens in cases where at least one party to the conversation was outside the country. Further, the intent was to gather information to thwart terrorist attacks, not prosecute criminals

    . Yes, the President measures were targeting suspects located inside the country with ties outside the country. But Phares book contend that this isn’t the parameter. For al Qaeda has cells inside the country too. The parameter has to be Jihadi or not Jihadi, not inside the country or outside it.

    Beth Malek. Member. Futurejihad.com

  2. James Joyner says:

    Beth,

    I haven’t read the book, so am just going by the article itself.

    There’s a distinction to be made between citizens and non-citizens and criminals and non-criminals. I’m not sure how one makes the distinction between jihadis and non-jihadis, though, if that means that the latter group is deemed not to have rights.

  3. ken says:

    Only cowards surrender their rights and freedoms to the Bush soviet style government based upon governmental propoganda.

  4. anjin-san says:

    Considering how often Bushites call anyone who disagrees with them a “terrorist” right hear on this blog, I don’t think it is hard to see why a very strong dose of caution is called for when going down this road.

  5. Herb says:

    Ken:

    You talk about cowards, You have never served a single hour in the service of our country, You stood tall and waved the white flag long ago. Your opposition to Bush and the war is well documented here on OTB and you have shown everyone here how cowardly you are. I bet you have worn out at lest 3 to 4 white flags in your quest to fullfill your hate Bush and anti war agenda.

    Anjin: I don’t recall anyone calling you a terrorists here on this blog, but you have been called a terrorists supporter due to your current attitude of praising terrorists attacks while attempting to further and justify your Hate Bush agenda.

  6. legion says:

    The number of basic concepts Phares fails to comprehend is truly staggering. To begin with, this entire dust-up is _not_ over the complaint that the US is performing “too much” surveillance, it’s over the fact that the gov’t is blatantly, and with utter disregard to Constitutional procedure, _ignoring_ established law in the _method of performing_ their surveillance.

    Even if Phares considers the laws being violated to be ‘quaint’ and ineffective, it is absolutely intolerable to allow the Executive to arbitrarily determine, with no oversight or public debate, which laws it will summarily ignore.

    Not to mention,

    During wartime, the military engages in searches and surveillance without a warrant. We do not, for example, require the armed forces to seek a warrant when it conducts visual or electronic surveillance of enemy forces or of a battlefield, or when it searches buildings, houses, and vehicles for the enemy. Nor must military operations within the United States operate under a different rule.

    WTF?!? Dude. “Military operations within the United States” do indeed operate under a different rule – it’s called posse comitatus. There are things the military is simply not allowed to do within the confines of the US without _very explicit_ orders and authorization. Unchecked abuse of civilians by a military seeking out subversives, you might recall, is one of the specific reasons we rebelled from England and _created the United States in the first place_.

    Finally, his entire thesis of creating a separate “track” of justice and rights for “jihadists” is utterly infantile. It’s one thing to define a category of individuals that wish our nation harm & should be harshly dealt with, but how exactly does one distinguish a ‘jihadist’ from an ordinary citizen? I’ve seen lots of picture of terrorists and terror suspects, but amazingly, not one of them had a little neon ‘T’ floating over his head. As neear as I can make out, Mr Phares would propose we simply put _everyone_ under total survellance, and only arrest those people who look suspicious.

  7. Anderson says:

    Orin Kerr’s analysis is up at the VC, if anyone’s interested.

  8. ken says:

    Orin Kerrs argument comes down to this: Since custom officials can search for contrabrand at the borders then US citizens can be searched within the borders without regard to the fourth admendment. Since it doesn’t apply in the first case it doesn’t apply in the second case either.

    Why do conservatives hate America? Why are conservatives such sniviling cowards?

  9. anjin-san says:

    Herb,

    Please show one posting where I “praised a terrorist attack”. If you can’t please shut up.

  10. […] Joyner at OTB is a bit more cautious: As I’ve written repeatedly, we need more information here to properly understand the administration’s rationale for doing the eavesdropping without asking for FISA warrants. My strong suspicion is that there is a reasonable explanation. It would be quite helpful if it were forthcoming. […]

  11. […] Outside the Beltway links to a commentary piece by Walid Phares who believes the U.S. is not doing ENOUGH eavesdropping. Indeed, testifying to the House Select Committee on Intelligence on October 30, 2003 on “Collecting Intelligence under the law,” former DOJ attorney John Yoo wrote: […]

  12. Beth Malek says:

    Comment
    James wrote:

    There’s a distinction to be made between citizens and non-citizens and criminals and non-criminals. I’m not sure how one makes the distinction between jihadis and non-jihadis, though, if that means that the latter group is deemed not to have rights

    .
    It is not about a distinction between two types of people but an ideology which should be rendered illegal, like Nazism, or violent racism. People are not born Jihadi, but individuals are indoctrinated and recruited. One makes a decision to “become” a Jihadi based on the teachings by Wahabism, Salafism and Khumeinism. The idea is that ordinary citizens shouldn’t be sanctioned because of the crimes committed by individual Jihadis.

    Rebuttal
    Legion writes “pompusly” that

    what Phares fails to comprehend is truly staggering. Legion says it is about ignoring established law in the method of performing their surveillance.

    What is staggering is Legion’s inability to comprehend the Jihadi argument. Phares and others, argument is not about ignoring established law. He is not inside the Administration, speaking on its behalf. He advances two points, ignored by M Legion. One is that monitoring the Jihadists is equivalent to monitoring a foreign power’s deployment inside the country at a time of war. Unless M Legion doesn’t believe we are at War. The al Qaida Jihadists believe so, and are acting as such. Two, Phares argument is to strenghten the application of laws, instead of stretching them as is the case now, regardless of the war powers concept. He is suggesting that a special legislation to legislate this particular war is needed, because of the nature of the enemy, who do not abide by any international law.

    M Legion refers to the concept of

    Unchecked abuse of civilians by a military seeking out subversives

    . Precisely, the debate is about the subversives not the civilians. The suggestion is exactly that: not to allow the subversive to hide under the civilian.

    Legion goes on to state that Phares “entire”

    thesis of creating a separate “track” of justice and rights for “jihadists” is utterly infantile

    . Obviously, attorney Legion doesn’t get it yet. He uses words not used in the debate such as a separate track. These are Legion’s words of course. What was discussed was a new legislation, not a separate track. But M Legion is in a hurry for doctrinal indictment rushing to qualify other people’s ideas as “infantile.” Hence elevating himself to the level of a higher caste of political scientists and legal authorities perhaps. I don’t know.

    M Legion asks, fairly so:

    but how exactly does one distinguish a ‘jihadist’ from an ordinary citizen

    This would be his only sound question. It denotes his little intellectual experience with the subject of Jihadism. As I answered above, one doesn’t distinguish between an ordinary citizen and a Jihadist. If both are US citizens, both are ordinary citizens. Jihadism is acquired as an ideology and a practice. Same logic as for Nazism, fascism, racism, etc. As far as to how “detect” Jihadism within a social group, there is a whole method of inquiry. It depends on the level, on the infiltration and activities aimed at harming civil society by the Jihadists. That matter, precisely, is what Phares is suggesting to debate in Congress.

    M Legion concludes that

    Mr Phares would propose we simply put everyone under total survellance, and only arrest those people who look suspicious

    . Obviously, with this allegation, made up by M Legion, we understand that his notes are less to debate the issue than to obscure it. A good subversive but unsuccessful tactic. Readers, includng on this blog aren’t naive nor idiotic. You create new words and comment on them. Dr Phares said just the opposite: He argues that we should not put everyone under surveillance just because there are few Jihadists. But only put the terrorist linked elements under monitoring. What is strange in M Legion’s remarks is that he (or she) insist on “hiding” the Jihadists “within” the citizenry and use words such as “suspicious” etc, to deter people from understanding the tactics of the subversives. Bottom line, M Legion’s arguments are

    a. Abusive, ficticious and intellectually subversive
    b. An attempt to deflect the subject and divert it from its essence.
    c. He doesn’t even touch upon the Jihadists but insist on inserting them deeply in the national and social tissue of the nation
    d. But finally fails to do all of the above.