Page 141 - Privacy in a Cyber Age Policy and Practice

BALANCING NATIONAL SECURITY AND INDIVIDUAL RIGHTS 129

the guarantee of a speedy trial all undermine the fight against terror-
ism. Counterterrorism requires time to decipher the terrorists’ records,
to prevent other attacks that might be underway, and to capture other
members of the cell before they realize that one of their members has
been apprehended. Also, security demands that authorities do not
reveal their means and methods; therefore, one often cannot allow ter-
rorists to face their accusers. (Imagine having to bring in a CIA agent
or Muslim collaborator that the United States succeeded in placing high
in al Qaeda’s command in order to have him testify in open court in the
United States.)
Furthermore, a law enforcement–based approach to surveillance that
requires individualized suspicion is not an effective means of preventing
terrorism. As John Yoo points out, “detecting al-Qaeda members who have
no previous criminal record in the United States, and who are undeterred
by the possibility of criminal sanctions, requires the use of more sweeping
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methods,” such as those adopted by the NSA. Next, the nature of the evi-
dence likely to be presented in a terrorist trial is problematic. Much of it is
classified and highly sensitive, which puts the government in the position of
having to choose between jeopardizing national security in order to gain a
conviction or letting terrorists off easy, if not completely, lest they give away
vital sources and methods. When Mounir el-Motassadeq, a member of the
Hamburg cell that included four 9/11 hijackers, was brought to trial in Ger-
many for abetting mass murder, his conviction was successfully appealed
and a judge ordered his immediate release because without being able to
verify the statements made by the prisoners there was not “sufficient proof
in either direction.” 58
To avoid all these traps, the government, when forced to deal with terror-
ists through civilian courts, often turns to plea bargaining. It is estimated that
over 80 percent of the guilty terrorist convictions achieved in civilian courts
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since 2001 have been the result of plea bargains. Although guaranteeing a
guilty verdict, plea deals result in light sentences. 60
In short, there seem to be strong arguments that curbing terrorism
justifies additional and, above all, different security measures than those
employed in going after criminals. These arguments do not justify any
particular security measure or surveillance program, but rather, sup-
port the category of extraordinary public safety measures to which they
belong. Thus, arguments put forward in this chapter in support of NSA
surveillance do not necessarily support surveillance conducted for other
reasons, such as counternarcotics law enforcement missions by the Drug
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Enforcement Administration or the FBI. An examination of the two
specific programs under consideration, the phone surveillance program
and PRISM, follows.