A Course Correction for Homeland Security: Curbing Counterterrorism Abuses

In the wake of 9/11, Congress estab­lished a new cabinet agency with a singu­lar mission: to keep the coun­try safe from terror­ism. The Depart­ment of Home­land Secur­ity (DHS) brought together 22 agen­cies with dispar­ate func­tions under one roof. Two decades on, it struggles to carry out its work effect­ively and equit­ably.With the Home­land Secur­ity Act of 2002, Congress tasked the new depart­ment with keep­ing the coun­try safe from terror­ist attacks. DHS carved out a role for itself in two main areas: part­ner­ships with state, local, tribal, and territ­orial author­it­ies and screen­ing of trav­el­ers and immig­rants.Section I of this report iden­ti­fies the agency's coun­terter­ror­ism collab­or­a­tions with state and local author­it­ies and private firms. These programs have routinely surveilled Amer­ican Muslims, trau­mat­iz­ing entire communit­ies and cast­ing them as hotbeds of terror­ism. DHS agents have deployed these very tools against protest­ors, activ­ists, and journ­al­ists.Section II turns to travel and immig­ra­tion screen­ing programs. DHS has accu­mu­lated vast stores of inform­a­tion about people who travel into, out of, and over the United States. The Trans­port­a­tion Safety Admin­is­tra­tion (TSA) and Customs and Border Protec­tion (CBP), among other DHS compon­ents, use this data to draw infer­ences about them, docu­ment their move­ments, and subject them to warrant­less searches and inter­rog­a­tions. Agents do all of this without suspi­cion of poten­tial wrong­do­ing. Unsur­pris­ingly, reports of reli­gious or ethnic profil­ing are common.Section III analyzes DHS's over­sight infra­struc­ture. Three primary offices — the Privacy Office, the Office for Civil Rights and Civil Liber­ties (CRCL), and the Office of Inspector General (OIG) — have curbed some of the depart­ment's trans­gres­sions. But they have allowed many other civil rights and civil liber­ties viol­a­tions to continue.Finally, this report iden­ti­fies five aven­ues for reform: stronger safe­guards against profil­ing; better protec­tions for privacy and free expres­sion; rigor­ous eval­u­ations of program effic­acy; mean­ing­ful trans­par­ency about data hold­ings and the implic­a­tions DHS programs have for civil rights and civil liber­ties; and more robust internal over­sight. Forth­com­ing Bren­nan Center reports will delve into these recom­mend­a­tions in greater detail

Beyond the War on Terrorism: Towards the New Intelligence Network

In Terrorism, Freedom, and Security, Philip B. Heymann undertakes a wide-ranging study of how the United States can - and in his view should - respond to the threat of international terrorism. A former Deputy Attorney General of the United States Department of Justice ( DOJ ) and current James Barr Ames Professor of Law at Harvard Law School, Heymann draws on his governmental experience and jurisprudential background in developing a series of nuanced approaches to preventing terrorism. Heymann makes clear his own policy and legal preferences. First, as his choice of subtitle suggests, he firmly rejects the widely used metaphor of the United States engaging in a war on terrorism. Heymann views this mental model and the policies it spawns or is said to justify as, at best, incomplete, and, at worst, ineffective in preventing terrorist attacks and harmful to democracy in the United States (pp. 19-36). Second, Heymann advocates the paramount importance of intelligence to identify and disrupt terrorists\u27 plans and to prevent terrorists from attacking their targets (p. 61). Heymann observes that the United States needs both tactical intelligence to stop specific terrorist plans and strategic intelligence to understand the goals, organization, resources, and skills of terrorist organizations (p. 62)

The Controversies over Data Mining and Warrantless Searches in the Wake of September 11

In 2004, the Congress voted to end funding for a Defense Advanced Research Projects Agency (DARPA) data mining program called Total Information Awareness (TIA) that was supposed to be used for preventing terrorist attacks. Because this was not the only data mining project established by the U.S. government after September 11, this paper examines the likely impact of the TIA cancellation on future efforts. It summarizes the controversy over warrantless wiretaps in the more recent past and then turns to the broader question of the tradeoffs between privacy and security.Indiana Universit

Beyond the War on Terrorism: Towards the New Intelligence Network

In Terrorism, Freedom, and Security, Philip B. Heymann undertakes a wide-ranging study of how the United States can - and in his view should - respond to the threat of international terrorism. A former Deputy Attorney General of the United States Department of Justice ( DOJ ) and current James Barr Ames Professor of Law at Harvard Law School, Heymann draws on his governmental experience and jurisprudential background in developing a series of nuanced approaches to preventing terrorism. Heymann makes clear his own policy and legal preferences. First, as his choice of subtitle suggests, he firmly rejects the widely used metaphor of the United States engaging in a war on terrorism. Heymann views this mental model and the policies it spawns or is said to justify as, at best, incomplete, and, at worst, ineffective in preventing terrorist attacks and harmful to democracy in the United States (pp. 19-36). Second, Heymann advocates the paramount importance of intelligence to identify and disrupt terrorists\u27 plans and to prevent terrorists from attacking their targets (p. 61). Heymann observes that the United States needs both tactical intelligence to stop specific terrorist plans and strategic intelligence to understand the goals, organization, resources, and skills of terrorist organizations (p. 62)

Quis Custodiet Ipsos Custodes? Limits on Widespread Surveillance and Intelligence Gathering By Local Law Enforcement After 9/11

In the decade since the terrorist attacks of September 11, 2001, local law enforcement has become the front line in the nation’s counterterrorism strategy. This involvement has not come without controversy. As part of these counterterrorism efforts, police departments have begun to establish widespread surveillance and intelligence-gathering networks to monitor Muslim and other ethnic neighborhoods in the hopes of stopping the next terrorist attack at its source. Such surveillance does not necessarily run afoul of the Constitution, and both our political environment—in which voters demand that the government stop terrorism at all costs—as well as unprecedented levels of federal funding to fight terrorism have made these surveillance programs an attractive option for local law enforcement. But the same programs risk compromising citizens’ civil liberties and damaging police relationships with ethnic communities. This Comment analyzes whether and how a balance might be struck between national security and individual civil liberties interests, and offers a model statutory solution drawn from police surveillance in a non-terrorism- related context as one possible way forward

Ethical, Legal, and Social Issues In Homeland Security – What They Are and How to Address Them

Homeland security is a nationwide effort, including all of government across federal, state, local, territorial and tribal tiers; the public and the private sector, and the whole community, with each single citizen. The overarching homeland security vision comprises safeguarding the American way of life and is embedded into the goals of the National Security Strategy that include respect for universal values at home and abroad. It thus is evident that ethical, legal, and social-or ELSI-issues are important to consider. This chapter discusses the origins and essence of ELSI and explores ELSI integration into everyday homeland security. Two defining debates are reviewed: homeland security legislation (specifically the USA Patriot Act of 2001 and the USA Freedom Act of 2015) and domestic surveillance, with related use of technology such as drones. Subsequently, the relevance of ELSI is summarized across prevention, protection, mitigation, response, and recovery missions. After adding some examples of how ELSI are addressed in other countries\u27 civil security policy, best practices to effectively address ELSI, as well as limitations of ELSI integration in homeland security, are discussed