an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
A new domestic intelligence network has made vast amounts of data available to federal and state agencies and law enforcement officials. The network is anchored by “fusion centers,” novel sites of intergovernmental collaboration that generate and share intelligence and information. Several fusion centers have generated controversy for engaging in extraordinary measures that place citizens on watch lists, invade citizens’ privacy, and chill free expression. In addition to eroding civil liberties, fusion center overreach has resulted in wasted resources without concomitant gains in security.
We began our work by holding (along with Priscilla Regan of GMU) a roundtable on fusion centers in April, 2009. Citron convened a panel on fusion centers at AALS in New Orleans. Since then, we've repeatedly found ourselves astonished by the pace of advances in domestic intelligence operations. In roughly reverse chronological order:
1) The Obama administration is now pushing for "Congress to require all services that enable communications — including encrypted e-mail transmitters like BlackBerry, social networking Web sites like Facebook and software that allows direct “peer to peer” messaging like Skype — to be technically capable of complying if served with a wiretap order." The insistence on a "backdoor" here recalls the UAE/Saudi ban on Blackberrys---not exactly regimes the US should be emulating. Julian Sanchez and the ACLU provide more background. 2) Back in 2003, an official at an "anti-terrorism center" commented that "You can almost argue that a protest against [a war on terror] is a terrorist act." Citron and I discuss the quote in our article, and I for one thought it was a relic of the "bad old days" of Bush-Cheney. The following story suggests I was wrong:
The FBI executed six search warrants in Minneapolis . . . including homes of political activists, in connection to a terrorism investigation. . . . A SWAT team, accompanied by the FBI, knocked on Kelly's door about 7 a.m. and Kelly's partner answered, [Kelly's Attorney Ted] Dooley said. "They said they had a search warrant," he said. "She asked to see it, she couldn't read it through the peephole, so they busted down the door. The door flew across the room and broke a fish tank. There are now eight FBI agents in the apartment, going through every piece of paper in there, and all the books."
What's particularly striking here is that the raid came the same week as the DOJ Inspector General criticized the investigation of Greenpeace, The Catholic Worker, and the Thomas Merton Center, as the Boston Globe notes:
The report chastised the bureau for having a “weak’’ rationale for some of its investigations; investigating where there was “little indication of any possible federal crimes’’; and extending “the duration of investigations involving advocacy groups or their members without adequate basis.’’ The agency was also taken to task for improperly retaining information about the targeted groups in its files and for classifying investigations of peace groups “under its ‘Acts of Terrorism’ classification.’’ These are serious abuses. Using anti-terrorism laws to target domestic protest organizations is redolent of the actions of the Justice Department against law-abiding protesters during World War I and the Vietnam War — actions that are rightly remembered as disgraceful.
Citron and I discuss an incident in Maryland where "fifty-three nonviolent political activists were classified as “terrorists,” including two Catholic nuns and a Democratic candidate for local office."
3) The Top Secret America series shows that the same concerns Eisenhower had about the military-industrial complex apply to an ever-expanding surveillance-industrial complex. Given the military's important role in the political economy of innovation in the US, we need a lot more research on how much of its investment is being directed toward programs designed to classify and investigate US citizens.
4) Finally, for those interested in a more personal account about the dangers of out-of-control law enforcement, I highly recommend this podcast. While I don't have too much sympathy for the man at the center of the first story, the second one about a police vendetta against a whistleblower is genuinely frightening. The accompanying series in the Village Voice has a sad, Kafkaesque leitmotif: the very "scientific policing" programs that are supposed to incentivize police forces to work harder and smarter are also creating pressures to "pump up" numbers of nuisance crimes and underreport violence. It's a lot easier to harass loiterers than it is to get to the bottom of serious crime---just as it is easier to keep tabs on Quakers than it is to develop "HUMINT" that can provide reliable information on a serious terrorist group.
There are many other stories I could include. But for now, I'll close with the thoughts Citron and I use to end our article:
Someone must “watch the watchers,” especially when surveillance is based not merely on a single agency database, but on a vast reservoir of public and private data. Without immutable audit-enabling technology, fusion centers will remain black boxes, preventing effective oversight. They will pair ever more pervasive surveillance with aggressive deflection of inquiries about it. A no-holds-barred assault on terror cannot become the template for ordinary law enforcement without seriously disrupting the balance of power between police and citizen, government and the governed.
We need to do a lot more to ensure that a growing law enforcement apparatus is itself respecting the law.