Tag: US citizens

Finding a Balance: Privacy and Safety

by Leo Mata

5 APR 2017

Considering the most recent release of information by WikiLeaks, and the ongoing 2016 election investigation, it seems as apt a time as ever to reevaluate the right of privacy and how far it truly protects the individual. In the United States, while the right to privacy is not specifically mentioned in the Constitution, the Supreme Court has looked to various amendments to establish this right through decades of court jurisprudence. In contrast, the right to privacy has been enshrined in at least 170 constitutions across the globe. Moreover the United Nations Special Rapporteur on the right to privacy, Joseph Cannataci, has stated that “[article] 12 of the UNDHR and [article] 17 of the ICCPR do not state that the right to privacy is a right which is only enjoyed by the citizens of one’s own state.” So, it should not matter whether your own country has a constitutional provision safeguarding individual privacy, as long as that country has signed onto the Universal Declaration of Human Rights or the International Covenant on Civil and Political Rights. Yet, it is worth noting that even within each of these avenues for protection, constitutional or treaty based, there are limits to the protection. The line for protection is usually drawn around the ideas of unlawful interference or arbitrariness. The important question here, then, is: How do we balance our need to prevent attacks by foreign agents and our right to privacy?

Looking at the United States, we can track a variety of spying scandals as examples. The idea of spying on U.S. citizens is neither uncommon or unheard of. The Federal Bureau of Investigation (FBI) in its history has tracked such notable figures as Rev. Martin Luther King Jr. and Eleanor Roosevelt, and was implicated, along with other agencies, in the Watergate scandal. The government said it monitored Rev. King out of fear that his movement was being infiltrated by communists, and this reasoning was enough for the Attorney General to approve monitoring. In the modern era, combating foreign actors is often the guise under which government agencies justify domestic spying. Learning from our past mistakes, the United States established the FISA Court which is designed to act as a safeguard against unnecessary intrusions into our lives while allowing the government to monitor for foreign intelligence purposes. However, despite this level of protection there have been numerous reports of the National Surveillance Agency (NSA) acting beyond their legal scope. So, we must ask, is the FISA Court a sufficient level of protection against the abuse of an individual’s right to privacy? Even the Court itself has acknowledged it has a limited ability to protect our right to privacy.

The recent trove of documents released by WikiLeaks identify methods, such as the installation of spyware into your smart TV or smart phone, that the Central Intelligence Agency (CIA) could use to gather information. The idea that the CIA can hack into devices is nothing new, spying is in fact what their job entails as a means of protecting the United States, but when placed side by side with a history of abuse, it is hard to not fear a violation of privacy. This has, justifiably, put many on edge. However, it is important to note that the tools released are older and have reportedly been patched by the respective technology companies.

Putting the WikiLeaks release aside, there seems to be little concern from the public over what U.S. intelligence agencies do in their efforts to conduct foreign surveillance. However, what has raised some concerns is when foreign surveillance includes the surveillance of U.S. citizens. Recently, this has come to the attention of many Americans with the announcement that surveillance of U.S. citizens occurred while intelligence agencies monitored Russian communications during the 2016 election. It should be noted that this type of surveillance on U.S. citizens falls into a category known as incidental collection. While incidental collection is nothing new, the ongoing 2016 election investigation has resulted in the release of names and information of U.S. citizens. The disclosure of personal information has caused some people to worry that the intelligence community is not protecting our information as closely as they contend. However, this is the FISA Amendments Act doing exactly what it is designed to do. While incidental surveillance will always be an issue if surveillance exists, the recent focus on it is more relevant than ever as the FISA Amendments Act is set to expire on December 31, 2017. This presents an opportunity for Americans to voice their concerns and either continue down the path we are on, or request that changes be made.

For some, these methods of spying and releasing of personal information will create paranoia, for others anger, but for most they will create no disruption to their daily lives. Each of these responses alone demonstrates a failure within our society. In the face of the ever-growing foreign threats, it is of the utmost importance that we have a conversation about how we combat it. As members of society do we not owe a duty to one another to prevent harm from befalling us? If so, to what length does that duty extend? Should the government be given greater leeway in protecting civilians from terrorism, or would we rather risk greater harm for greater privacy? Is it enough to leave it to private companies to push back against government intrusions? If history is any indicator it seems that our privacy rights will continue to give way to combat the grave threats before us. To prevent this seemingly inevitable future, as we move forward in our efforts to protect Americans—and whatever the next threat may be—the logic behind the need for surveillance should not go unchallenged or be considered infallible. Just because the right to privacy was not designed to be an absolute right does not mean it should be cast aside.

Leo Mata is a J.D. student at Texas Law, Rapoport Center Fellow, and a member of the 2016-2017 Working Paper Series Editorial Committee.

Violence Committed by Americans against (Foreign) Americans

by Dr. Barbara Harlow

10 DEC 2015

Mark Danner’s portrayal of the muted denunciation of human rights abuses during the now more than decade-long U.S.-led global “War on Terror” and the remission of the once honorable paradigm of the exposure of injustice leading to redress were especially poignant reminders of the current crisis in humanitarian thought and activism. In her post, Natalie Davidson speculates that the lack of public protest and political accountability derives from the fact that the abuses “mainly affect foreigners living outside U.S. territory.” That explanation, however, is complicated, if not obviated, by the death-by-drone of Anwar al-Awlaki (also al-Aulaqi) in Yemen on 30 September 2011. Awlaki, a U.S.-born and U.S.-educated radical Muslim preacher, had been the target of a protracted mission to eliminate him, in an operation code-named “Objective Troy.” In his recent book, which takes its title from that code-name, prize-winning journalist Scott Shane reads that assassination mission to “eliminate” the compatriot as a near-epic mortal combat between the “president” and the “terrorist,” assisted by none other than the “drone.” Barely two weeks after his own violent demise, Awlaki’s teenaged son Abdulrahman was also killed while eating at an outdoor café in Yemen (some say accidentally, others aver the teenager’s alleged own “radicalization” as the rationale), again in a lethal drone strike. He, too, was a U.S. citizen.

In April 2014, the U.S. District Court in Washington D.C. granted the defendants’ “motion to dismiss” in the case of Nasser al-Aulaqi v Leon Panetta et al. (2012). Represented by the American Civil Liberties Union (ACLU), with the Center for Constitutional Rights (CCR), Nasser al-Awlaqi, father of Anwar and grandfather of Abdulrahman, had charged the named U.S. officials with the unlawful deaths and extrajudicial executions without “charge, trial, or conviction” of his near relatives. The senior al-Awlaki had brought a similar charge in an earlier case against Barack Obama, Leon Panetta (director of the CIA), and Robert Gates (Secretary of Defense) for violations of the Fourth Amendment of the U.S. Constitution prohibiting “unreasonable seizure.” His claim in Al-Aulaqi v. Obama (2010) that “targeted killing” of U.S. citizens violated the Constitution had likewise been dismissed, with the Court noting in a lengthy opinion that the plaintiff’s claims raised “non-justiciable political questions.”

The District Court’s repeated, if predictable, dismissals have so far failed to galvanize concerted rejoinders from a larger U.S. citizenry. Yet, the case of Anwar al-Awlaki, the death by drone of the imam and his son, and their elder’s enduring insistence on the rule of law and the integrity of the U.S. Constitution have not been dismissed from either the political annals of contemporary history or their popular cultural re-enactments. In Dirty Wars, Jeremy Scahill’s 2013 monumental account of the construction of “the world as a battlefield” and George W. Bush’s and Barack Obama’s nefarious waging of the “global war on terror,” Scahill interweaves Nasser al-Awlaki’s personal struggle for justice for his son and grandson with what Scahill calls the “story of how the United States came to embrace assassination as a central part of its security policy” and the “story of the expansion of covert U.S. wars.” The latter includes imbroglios that feature “stories of insiders who have spent their lives in the shadows,” or, in the words of Dick Cheney, “on the dark side.” This storied history of Anwar al-Aulaki’s political odyssey and ensuing family saga is also featured in Shane’s Objective Troy (2015). The book narrates the parallel lives of Barack Obama and Anwar al-Aulaki, although, as Shane tellingly if cynically admits in his Prologue, the two “men would never meet, except virtually, clashing in the battleground of ideas, where the cleric’s mastery of the internet would serve his jihadist cause, and violently, when Obama dispatched the drones that carried out Awlaki’s execution.”

Scahill is adamant, even against the opinionated rulings of the U.S. District Court and the apparent lack of interest on the part of Awlaki’s “fellow Americans,” that “Awlaki’s case would cut to the heart of one of the key questions raised by the increasing role targeted assassinations were playing in U.S. foreign policy. Could the American government assassinate its own citizens without due process?” And Shane predicts that Awlaki would become a “bigger brand,” a veritable living legend, given that, as the investigative journalist describes the phenomenon, “One factor in the dark portrayal of drones [is] that stories trump facts in the human imagination, and drone strikes produced compelling stories.”

If the story has not compelled the political or legal change that some might have anticipated, Anwar al-Awlaki’s biographically tragic fate has served, whether in sinister martyrdom or with heroic mien, as legal – and cultural – precedent, as drones themselves are set to become the very stuff of the contemporary international thriller. Indeed, in Drone (2013), the first of political scientist Mike Maden’s fictional Troy Pearce trilogy, the protagonist – a former U.S. government employee and current CEO of a “private security firm specializing in drone technologies” – explains that “a considerable plurality of Americans on both sides of the political spectrum were still troubled by the use of lethal force against American citizens without benefit of trial, whether or not drones were used, even if the threat was imminent and catastrophic.” The same issue, however paraphrased, will haunt Maden’s two subsequent Troy Pearce novels, Blue Warrior (2014) and Drone Command (2015). It also underwrites former National Coordinator for Security, Infrastructure Protection and Counter-terrorism Richard A. Clarke’s Sting of the Drone (2014) and Washington Post columnist David Ignatius’s Bloodmoney: A Novel of Espionage (2012).

It would seem after all, as Natalie Davidson has noted, that if “Danner asks how we can return to legality,” it is all the more the case that “the story he tells can also be understood as one in which law, with its indeterminacy and malleability, its sometimes absurd fictions and bureaucratic vocabulary, plays a key role in reassuring government officials that even acts such as torture and execution are acceptable” (emphasis added). In a world where legal and political discourse are imbued with fictions that enable violence, might fiction ironically be the most promising arena in which to challenge targeted killing?

Perhaps not. Jeremy Corbyn might not write international thrillers but the newly elected British Labour leader did protest strenuously – to the thrill of some of his constituents and the indignant ire of others – the death-by-U.S.-drone of one of his compatriots. Mohammed Emwazi, also known as “Jihadi John,” was slain in November 2015 in the targeted killing of a British citizen, a deed that the nation’s Prime Minister, David Cameron, had condoned as committed in “self-defense.” Cameron’s reference to self-defense echoed the rationalizations of his U.S. counterparts in their rendition of ratiocination in the waging of the “forever war” executed by UAVs (“unmanned aerial vehicles”) or, as some weapons analysts and “whodunnit” fans might prefer, RPAs (remotely piloted aircraft). Whether disarticulated in legal language or spellbound through generic whodunnit intrigues, the questions persist, “loiter” in drone-speak. Might the still muted decibels of denunciation yet become a mobilized chorus of dissent and resistance? What would such a raucous uproar require? And will the culprits at last be brought to justice?

Barbara Harlow is the Louann and Larry Temple Centennial Professor of English Literatures at the University of Texas at Austin and is on the WPS Editorial Committee. She is the author of Resistance Literature, Barred: Women, Writing, and Political Detention, After Lives: Legacies of Revolutionary Writing, and co-editor of Imperialism and Orientalism: A Documentary Sourcebook and Archives of Empire: Vol I and Vol II.