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The Problems with Counterterrorism Stings: A Response to Samuel Rascoff

In his guest post yesterday, NYU Law Professor (and former director of intelligence analysis for the NYPD) Samuel Rascoff defends the US’s use of sting operations as a counterterrorism tool on three grounds: (1) even if we may have entrapped some individuals who would never have committed a terrorist offense, such initiatives have a deterrent effect on others; (2) if we had fewer sting operations, we might well have more intrusive surveillance, because the state needs some way to identify and disrupt potential threats; and (3) sting operations are not unique to counterterrorism operations, but a central feature of criminal law enforcement more generally, and especially in the war on drugs. Each of Rascoff’s points is well-taken, but I don’t think they add up to a defense of the kind of sting operations the United States has let loose on its Muslim communities.

Even if we granted Rascoff’s three points, would that justify these cases, which I write about in an article on the New Yorker website, which was in turn based on an extensive, and damning Human Rights Watch report on the many abuses of “preventive” terrorism prosecutions targeted against the American Muslim community More info »

Why (Some) Secrecy is Good for Civil Liberties

A few weeks back, Ben Wittes wrote a controversial post over at Lawfare on the latest Snowden disclosures, arguing that, “If you’re okay with dumping in the lap of a journalist 160,000 of the most personal conversations a signals intelligence agency can collect, then stop whining to me about ‘bulk’ or ‘mass’ collection.”  As Ben subsequently clarified, his point was not to criticize Snowden for possibly violating the Privacy Act, but to flag what he perceived as the hypocrisy of various media outlets and privacy and civil liberties groups in not criticizing these disclosures—and in thereby appearing to endorse the view that transparency of secret government programs is an unmitigated good. After all, secrecy and privacy are, in many ways, two sides of the same coin—such that those who believe in the virtues of the latter should have a modicum of appreciation for the government’s need for the former in at least some cases.

Indeed, whatever the merits of that specific episode, it illuminates a larger problem that both of us have observed not just in the ever-ongoing dialogue over surveillance reforms after and in light of the Snowden disclosures, but in public discourse over national security law, more generally: That, far too often, proposals to reform government counterterrorism and national security programs are demanding transparency in lieu of accountability—and missing the critical point that the former is just one (of several) means for achieving the (more important) latter. Part of this conflation may come from the different interests of the critics—some of which (e.g., civil liberties groups) may be anti-secrecy and pro-privacy; and some of which (e.g., the media) may be anti-secrecy and anti-privacy.

Regardless of the cause of this trend, by insisting upon greater transparency as a goal unto itself, critics have missed (or wrongly rejected) two separate, but closely related points.  First, recent revelations to the contrary notwithstanding, meaningful accountability of secret government programs is possible even without wide-scale transparency.  Second, there is an array of circumstances in which properly accountable government secrecy is not anathema to civil liberties—and where transparency, as such, might actually compromise individual rights. This is especially true where the government is protecting the confidentiality interests of third parties (e.g., under the Privacy Act), but it may also be true in at least some cases in which the government is protecting its own secrets.

Simply put, comprehensive transparency is neither normatively desirable nor practically achievable in the national security and counterterrorism spheres.  Instead, as we aim to show in this post, true progressive reform in the national security space should be focused first and foremost on measures that will increase accountability, a goal to which increased transparency is only one of a number of potential routes—and, indeed, one with which such transparency is sometimes at odds.  To unpack this argument, we focus on the two most significant external mechanisms for ensuring accountability of government national security programs: judicial review (Part I) and congressional oversight (Part II).  After summarizing the critiques of the status quo, we explain why increased transparency—even if a necessary means of improving accountability—won’t be sufficient, before highlighting what we view as the better way forward.

More info »

European Court of Human Rights rules against Poland in CIA “black site” case

The European Court of Human Rights has handed down its much-awaited judgments in the cases of Abd al-Rahim al-Nashiri v. Poland and Abu Zubaydah v. Poland. The cases were brought on behalf of Guantánamo detainees against Poland in relation to its involvement in the CIA’s rendition, detention and interrogation program, and, in particular, allowing the operation of a CIA “black site” on its territory. The Court ruled that Poland violated the substantive and procedural aspects of the detainees’ right to be free from torture or inhuman or degrading treatment or punishment (Article 3, ECHR). The Court also found violations of, among other rights, Articles 5 (liberty and security), 8 (private and family life), and 13 (effective remedy) of the European Convention on Human Rights.

Stay tuned for more analysis at Just Security.

Just Security is Hiring

In what is certainly a bittersweet announcement, next month I will be moving to San Francisco and returning to private practice.  As a result, in late August, I will be stepping down as Managing Editor of Just Security.  This means that Just Security is looking for my replacement and is currently accepting applications for the managing editor position now through August 7th.  The full job posting is available below the fold. Please do forward this opportunity to any great candidates who you think would be interested.

It’s been a pleasure working with the entire Just Security team and interacting with so many of our readers.  I’m very grateful to have been a part of this wonderful group.

More info »

News Roundup and Notes: July 24, 2014

Before the start of business, Just Security provides a curated summary of up-to-the-minute developments at home and abroad. Here’s today’s news.

Counter-terrorism cases

In the cases of two Guantánamo detainees, Abd al-Rahim al-Nashiri and Abu Zubaydah, the European Court of Human Rights has ruled that Poland violated, among others, the substantive and procedural aspects of the detainees’ right to be free from torture or inhuman or degrading treatment or punishment. The cases were brought against Poland in relation to its complicity in the CIA’s rendition, detention and interrogation program, by allowing the operation of a CIA “black site” on its territory.


U.S. Secretary of State John Kerry has returned to Cairo following a one-day visit to Israel and the West Bank, and is now reportedly “ramping up efforts” to reach a ceasefire agreement [Haaretz]. However, Hamas leader Khaled Meshaal said that Hamas “reject today… and will reject in the future” any ceasefire proposal unless their demands to lift the blockade against the Palestinian enclave are considered [Al Jazeera]. The death toll currently stands at 718 Palestinians and 32 Israelis, with over half killed since the Israeli ground incursion began [Haaretz].

Yesterday, President Obama spoke with John Kerry to discuss the ongoing crisis, noting that Kerry “has been engaged with the Israelis, Palestinians, Egyptians, Europeans, the UN, the Arab League, Qatar, Jordon, Turkey, and the United Arab Emirates” to determine how to bring an end to the conflict [The Hill’s Amie Parnes].

The U.S. FAA has lifted the temporary ban on flights into Israel that was imposed after a rocket landed close to Tel Aviv’s Ben Gurion Airport on Tuesday [Reuters’ Nidal Al-Mughrabi and Dan Williams]. More info »

Guest Post: Sting Operations and Counterterrorism: What’s Really at Stake?

Attorney General Eric Holder was in Europe last week, touting the virtues of American-style counter-terrorism, including the prominent use of stings operations against would-be terrorists. According to the New York Times, Holder’s remarks were offered against a backdrop of deepening fears in European capitals about the potential for veterans of the ongoing hostilities in Syria returning home and deploying their battle-tested techniques against civilian populations. Rather than wait for hardened terrorists to acquire training overseas, Holder offered, better to thwart them preemptively by engaging in sting operations that target individuals aiming to fight in Syria in the first place.

That stings would achieve prominence in American counter-terrorism is unsurprising. For one thing, as experts in comparative criminal law like Jackie Ross have shown, American prosecutors are generally more bullish on stings than European counterparts, who, for reasons of law and institutional culture, regard them with skepticism. For another, the domestic terror threat in parts of Europe is significantly more developed than in the United States. There are now approximately 3,000 European passport holders fighting in Syria and Iraq. In the time that it took Najibullah Zazi to drive from Denver to New York, a fighter could drive from Aleppo to Budapest. What that means is that European officials are relatively more consumed than American counterparts in keeping up with, and tabs on, trained militants.   Orchestrating American-style sting operations is, in a sense, a luxury they cannot afford.

But for all that American counter-terrorism officials employ and champion stings, their use has generated significant pushback from certain civil libertarians. In books and reports, commentators and advocates have questioned the utility and morality of these operations, and advocated for more robust application of entrapment defenses.   As of this week, Human Rights Watch and the Columbia Law School Human Rights Institute have entered the conversation with their jointly published Illusion of Justice: Human Rights Abuses in US Terrorism Prosecutions.   (The report actually discusses a host of issues at the intersection of criminal justice and American counter-terrorism but my focus in this post is on the issue of stings).

Like the previous critical treatments of the issues, the report levels a powerful charge against the government: Officials, when they engage in counter-terrorism stings, are solving a problem of their own creation, turning teenage losers into would-be terrorists and then congratulating themselves when the bogus bombs agents have supplied don’t blow up. Indeed, the report contends that stings undermine security, by alienating potentially cooperative Muslim community members who increasingly regard the police and prosecutors with suspicion and are therefore less minded to collaborate in the overall maintenance of security.

But for all the important questions about official practices that critics raise, they have tended to ignore some hard questions about the use of stings and the tradeoffs they entail. More info »

Major New United Nations Report Rebukes Five Eyes’ Attempts to Weaken Digital Privacy Rights

The Office of the United Nations High Commissioner for Human Rights (OHCHR) released a significant report last week analyzing the meaning of the human right to privacy in relation to electronic surveillance.  Until recently, human rights-based analysis of electronic surveillance has been notably under-developed, and the report is a valuable contribution to a growing field.  The report, “The right to privacy in the digital age,” expresses strong conclusions about a number of the fiercely debated surveillance issues of the last year, yet has received minimal coverage or analysis.  In this post, we highlight a few of the issues which would be of particular interest to Just Security readers.  At the end, we also raise some of the issues left unresolved in the OHCHR report.

1. Background to the report and U.S. attempts to weaken resolution language. The report was prepared pursuant to UN General Assembly resolution 68/167, which requested OHCHR to report on the right to privacy in the context of surveillance, digital communications, and the collection of personal data.  Germany and Brazil introduced a first draft of that resolution in October 2013 following the Snowden revelations. The General Assembly passed a revised resolution in December 2013 without a vote, but only after the United States and some of its Five Eyes allies lobbied– with some success – to water down some of the resolution’s language, particularly with respect to the extraterritorial obligations of states to respect privacy rights and around the rights implications of mass surveillance.  As we explain below, U.S. attempts to weaken the resolution language did not carry through to the OHCHR report.

2. The interception or collection of metadata may interfere with the right to privacy.  The report explicitly rejects the claim that, unlike content data, the collection or interception of metadata More info »

News Roundup and Notes: July 23, 2014

Before the start of business, Just Security provides a curated summary of up-to-the-minute developments at home and abroad. Here’s today’s news.


Palestinian President Mahmoud Abbas has backed Hamas demands for an end to the economic blockade of Gaza as a necessary ceasefire condition [BBC]. U.S. Secretary of State John Kerry landed in Israel this morning and is meeting with UN Secretary General Ban Ki-moon [New York Times’ Michael R. Gordon].  The death toll now has reached 650 Palestinians and 29 Israelis [Haaretz].

Secretary General Ban Ki-moon has called on an end to the fighting in the region and a return to dialogue to addressunderlying issues “so we are not back to the same situation in another six months or a year” [UN News Centre].

The U.S. has barred flights into Ben Gurion International Airport in Tel Aviv for at least 24 hours after a rocket hit one mile from the airport [Wall Street Journal’s Joshua Mitnick et al]. A number of European airlines have also suspended flights. Meanwhile, former New York City mayor Michael Bloomberg announced that he planned to fly to Israel last night in protest of the FAA’s ban on flights into Tel Aviv, saying he wished to “show solidarity with the Israeli people and to demonstrate that it is safe to fly in and out of Israel” [Washington Post’s Sean Sullivan].

The Israeli military has resumed a practice of punitive demolitions on the West Bank, intended to discourage support for Hamas [Washington Post’s Sudarsan Raghavan].

The Wall Street Journal (Joshua Mitnick and Asa Fitch) reports on the sustained public support in Israel for the military operation in Gaza evidenced by the high attendance at funerals of Israeli soldiers in recent days.

The Washington Post (Adam Taylor) writes on the mounting anger against the Israeli Defense Forces because of their decisions to target certain buildings in Gaza, including a number of hospitals.

The New York Times discusses the details surrounding the Gazan tunnels, the destruction of which Israeli claims is the reason for their ground offensive in the region.

The Associated Press writes on the online battle over public opinion where both Israel and Palestine are “attempt[ing] to direct the tone of the fighting.”

Mohammed Omer [New York Times] explores the impact of the Israeli offensive on Gaza, suggesting “this cycle of violence, punitive and disproportionate as it is, can lead only to an Islamic State in Iraq and Syria-type extremism among the Palestinians.” More info »

Dan Markel (1972-2014)

After a brutal weekend, I’m ready to offer a couple of thoughts about my friend Dan Markel.  So many others have offered moving tributes to Dan since the senseless tragedy of his death, including Steve Vladeck, Orin Kerr, his PrawfsBlawg colleagues, and his home institution.  I encourage you to read them all.

During most of our friendship, I was a “+1” at the various law professor conferences and gatherings.  I was in private practice, then worked in congressional oversight, then moved into White House Counsel’s Office.  At one point, I flew from D.C. to Tallahassee on weekends, where Caprice Roberts and our infant son had moved during a semester visit at Florida State University College of Law.  Dan and I had a ton of common friends.  We shared delight in our boys and our role as fathers.  Over the years, Dan and I also had scores of conversations about criminal and constitutional theory.

Much of what others have written about Dan rings true.  He was affectionate: doling out hugs or – as Zak Kramer reminded us on Facebook – offering a dap and a hearty “Bam Bam Bizzle.”  Dan was generous at welcoming professors into the academy but unsparing in his critiques of their work.  I have a few funny recollections on the unsparing end of the spectrum.

About a decade ago during a group dinner, Dan was pressing Caprice about the thesis of one of her law review articles.  Caprice was still thinking through some of the thornier issues in a great paper, but Dan was just all over her.  Finally, exasperated, he boomed, “Look, if you aren’t willing to deliver your thesis in a sentence starting ‘I argue…’ then you don’t have something worthy of publication or defense.”  Ever since, we routinely go through a What Would Dan Say? analysis of our writing.

After I had taught courses in presidential powers and federal criminal law as an adjunct, I started to entertain thoughts of joining the academy.  Dan encouraged me to develop a scholarly agenda and start writing.  At the time, I felt overburdened managing work and grad school.  Dan was, shall we say, nonplussed.  He took ideas so seriously that he would basically tell you to “get back to me when you have a serious job” even when you were one of the President’s lawyers.

Then, I took a tenure-track job.  A little over a year ago, Dan and I were playing with our boys at a pool.  I had started to write my first law review article for my tenure file and I wanted to share the concept with Dan.  As soon as I started into my thesis, Dan put his hand up and said: “Stop.  I don’t want to hear anything until you have at least 15 pages down on paper.  New scholars need to discipline themselves to write.  Then, I’ll be willing to talk.”  I was, how shall I say, off-put.  I found it irritating that he would decline to have a conversation along the lines we had been doing for years and insulting that he was overtly asserting his academic seniority even though we were friends and contemporaries.  As I look back on that conversation, though, I realize that the Mr. Miyagi treatment was a sign of Dan’s respect.  To Dan, I had finally gotten a serious job, and that meant ideas were no longer the stuff of poolside idle chit-chat.

So, Dan, in this paper, I argue that you expressed love even when it was tough.  I argue that I will do what I can to honor your legacy.  I argue that the world was brighter with you in it.

Guest Post: The PCLOB Report and Eight Questions About Section 702

Note: The views expressed below are my own and do not necessarily represent the views of PCLOB or its other Board members.

On July 2, Professor Jennifer Granick posed the question: “Did PCLOB Answer My Eight Questions About Section 702?” She concludes that her questions went largely unanswered in the Privacy and Civil Liberties Oversight Board’s report (hereinafter, “PCLOB report”) issued earlier that day, on the surveillance program operated under Section 702 of the Foreign Intelligence Surveillance Act. As explained below, I challenge that assessment. The PCLOB’s report offers what I believe to be the most detailed account anywhere of how an active intelligence program currently works in practice. The Board pushed hard to declassify a great deal about the Section 702 program, and this effort was largely successful: our report led to the declassification of a substantial amount of information regarding the program’s operation. I recommend that anyone interested in the Section 702 program carefully read our full – and very long – report. While the Board was given complete access to information and personnel involved in the Section 702 program, it is true that some aspects of the program’s operation remain classified. Therefore, Professor Granick may not find that all of her questions have been fully answered.

What follows are Professor Granick’s original eight questions with responsive information and recommendations found in the report. More info »