American Civil Liberties Union

(Originally posted on the Charity & Security Network.)

The recent spate of terrorist incidents and arrests involving Americans has policy-makers and security professionals scrambling to find a future-seeing Precog to help them identify so-called "homegrown terrorists" before they act, like in the movie Minority Report.

The news that the NSA and Google are working on a deal for the military agency to help protect the information giant's data networks comes at a time when the NSA is angling to get a major piece of cybersecurity action.

The only problem is, despite what the agency would have us believe, the NSA is mainly a spy agency, not a cybersecurity agency. The agency's website says:

(Originally posted on Daily Kos.)

Remember Esequiel Hernandez, Jr.? "Junior," as he was known, was an American teenager shot and killed in 1997 by U.S. Marines as he tended a flock of goats near his home one evening in Redford, Texas. The Marines, fully armed and dressed in camouflage ghillie suits, were operating on U.S. soil as part of a covert counter-drug mission supporting the Border Patrol. They were not supposed to come into contact with civilians; rather they were just to observe and report what they saw to the Border Patrol. But Junior had a .22 caliber rifle with him, and it appears he fired at least one shot from it that evening. What he was shooting at isn't clear. The Marines looked more like tumbleweeds than men, and none of them were hit. But as war-fighters, Marines are trained to engage a threat until it is destroyed, without asking a lot of questions. While this mission orientation is essential in combat, it is a poor fit with the shades-of-gray world of domestic policing. In any event, they followed their military "rules of engagement," advanced their position and returned fire, killing Junior with a bullet to the chest.

The reason I bring this incident up is that it demonstrates the risks of using military forces in domestic law enforcement missions. From their colonial experience, the framers of the Constitution recognized the threat a standing army posed to democracy, and they sought to establish a government that guaranteed civilian control over the military. This ideal was finally codified after the Civil War through the Posse Comitatus Act, which prohibited the Army from engaging in law enforcement activities.

The Posse Comitatus Act should have prevented what happened to Junior. But Congress has weakened Posse Comitatus over the years to involve the military in drug enforcement, border control and all sorts of other "domestic support" operations. Today, the number of domestic missions the military is accepting and the number of troops it is deploying inside the U.S. is drastically increasing, making future tragedies like Junior's only more likely.

(Originally posted on Daily Kos.)

In the weeks leading up to the September 11, 2001 terrorist attacks, FBI officials denied a New York agent’s request to start looking for a known al Qaeda operative who had entered the United States, in what the 9/11 Commission would later call a clear misunderstanding of the law (PDF). The agent sent an angry e-mail warning that “someday someone will die.” At the same time an FBI supervisor in Minneapolis, stymied from pursuing a Foreign Intelligence Surveillance Court order to search Zacharias Moussaoui’s computer by headquarters officials who later admitted to that they did not know the legal standard necessary to obtain one, shouted that he was trying “to stop someone from taking a plane and crashing it into the World Trade Center.”