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Category: Military Law

Surveillance State Accelerates: Fusion Centers and Beyond

My co-blogger Danielle Keats Citron and I have recently posted our draft article on “fusion centers” (forthcoming in the Hastings Law Journal). As we state in the abstract:

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.
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War-Gaming CyberStruggle, Circa 1999

Given recent debates over the size of the threat posed by cyberwar, I thought I’d mention the following simulation that was done by the RAND Corporation in 1999. The excerpt is from Brian Persico’s article Under Siege: The Jurisdictional And Interagency Problems Of Protecting The National Information Infrastructure, in the CommLaw Conspectus:

The object of the study was to assess the decision making process during a major hypothetical “information warfare” attack launched against the United States during a crisis in the Persian Gulf region. Based upon the RAND Corporation’s projected trends in the world’s geopolitical balance of power, the exercise’s scenario was based upon a fictitious split between members of the Organization of Petroleum Exporting Countries (“OPEC”) over levels of oil production. Simultaneous with the study’s fictitious disruption in relations, simulated infrastructure break-downs occurred in Saudi Arabia, Egypt, and the United States.

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Civilian Control and the Unitary Executive

Who sets military policy under our constitutional system? The answer is one that is (largely) free from any ambiguities of constitutional interpretation: the President is Commander in Chief. Beginning with the President, our constitutional tradition has firmly entrenched the idea of military policy chosen by politically accountable civilian actors. Although controversial expansive domestic law enforcement powers have been asserted by the past Administration under the Commander in Chief power to conduct activities such as electronic surveillance of Americans outside of statutory authorization, there has never been any doubt about the President’s authority over military policy. In this, the executive is truly unitary. This unity is why General McChrystal’s comments, and those of his staff, are so abrasive. They suggest a lack of respect for this fundamental feature of our system and a division within the executive branch that should not exist. Add to that, the increased politicization of military officers, and we get a glimmer of shifting attitudes and priorities within our constitutional system that we would do well to confront.

Writing in the L.A. Times, Bruce Ackerman proposes creating a presidential commission on civil-military relations tasked with formulating a new canon of military ethics to clarify principles of constitutional governance in the modern world, and writes about these issues in his forthcoming book. Given the enormous amount of national resources the military consumes, and given the ability of policy to follow resources, the militarization of our politics risks distorting the order of priority in constitutional governance. Do military officers exist to serve civilian leaders and national policy, or do civilian leaders and national policy exist to serve military interests? The answer should be clear, but the more military officers become active in everyday politics—and I take McChrystal and his staff to be openly doing just that in its most bare-knuckled form—the more we risk inverting the proper answer. I would not be the first to observe that the rationality of war has a way of organizing the rationality of everyday political practice. Military interests all too easily can become the interests of all political policy. Civilian control of the military, however, at least guarantees that such rationality will be employed by politically accountable actors, making possible alternative ways of organizing our collective political life. General McChrystal’s actions, and those of his aides, challenged these settled constitutional governing principles. It is therefore good for the nation that McChrystal resigned today—but this is not enough.  I think it is important to implement something like Ackerman’s proposal to avoid relying on faith that McChrystal’s case is sui generis and does not reflect growing  attitudes and  tendencies within the military that might further distort the rationality of our politics and the integrity of our constitutional system.

Update after the break.

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