Panel examines the balancing of civil liberties and national security

The Colorado Statesman

The topic of threats to domestic security and how they are balanced with civil liberties was addressed last week at the University of Denver during a well attended forum sponsored by the Counterterrorism Education Learning Lab (CELL). The panel of leading experts was moderated by Ambassador Christopher R. Hill, dean of the Josef Korbel School of International Studies at the University of Denver.

In opening remarks made at the July 16 event, it became evident at the onset that not only was the subject highly complicated, but very fluid, as well.

Hill, former ambassador to Iraq and South Korea, caustically noted that he thought things might have quieted on the foreign front after such an eventful last year.

Ambassador Christopher R. Hill, dean of the Josef Korbel School of International Studies at the University of Denver, left, moderates a discussion July 16 on the balance between national security and civil liberties with panelists Matthew G. Olsen, director of the U.S. National Counterterrorism Center, James Jay Carafano, vice president of foreign and defense policy at The Heritage Foundation, and Samuel J. Rascoff, faculty director at the Center of Law and Security at NYU School of Law. The forum was sponsored by the Counterterrorism Education Learning Lab.

“I thought everything should calm down,” he began. Afterall, the Arab Spring had resolved some major issues abroad. Syria was on its way to participatory democracy, and “I was especially optimistic about Egypt,” Hill pointed out.

Attorney Steve Farber of Brownstein Hyatt Farber Schreck chats with Denver Post Publisher Dean Singleton on July 16.

How quickly things change.

Larry Mizel, founder of The Counterterrorism Education Learning Lab and Doug Seserman of the Allied Jewish Federation of Colorado, visit with Brent Morse before the start of the CELL’s panel.

On the home front, it’s been an equally difficult year, Hill said, with the Boston Marathon bombings in April and “thanks to Mr. Snowden, in this case we have reality imitating a movie — he is living in an airport.”

Melanie Pearlman, executive director of The CELL, welcomes guests to the July 16 forum at the University of Denver.

And now the U.S. government must manage the fallout as well as deal with recurring issues of national security threats, Hill said.

Colorado Attorney General John Suthers, left, visits with Ambassador Christopher R. Hill, dean of the Josef Korbel School of International Studies at the University of Denver during a pre-event reception.

The panel consisted of Matthew G. Olsen, director of the National Counterterrorism Center; James Jay Carafano, Ph.D, vice president of foreign and defense policy studies for the Heritage Foundation; and Samuel J. Rascoff, faculty director on the Center of Law and Security at NYU School of Law.

Julie Hill, center, wife of Ambassador Christopher Hill, visits with Cunningham Fire Chief Jerry Rhodes of Denver at the VIP reception preceding the panel at the University of Denver on July 16.
Photos courtesy of Eric Stephenson Photography

Olsen talked about the dynamic times confronting us, and told the audience of about 1,100 at the Newman Center for Performing Arts that the topic of Guantanamo Bay is still highly controversial.

“The President said he’s serious about closing Guantanamo Bay, but he’s not really serious,” suggested Carafano. “Guantanamo Bay is about geography. Talking about moving real estate doesn’t really address core issues.”

Rascoff was more blunt.

“Guantanamo is a red herring of an issue,” he stated. The issue is not what to do with that piece of real estate, not what to do with the geography or detainees, but what is the nature of the authority possessed by the government to detain people in trying to combat counterterrorism issues?

Hill asked panelists whether they think the Boston Marathon bomber, Dzhokhar Tsarnaev, should be tried by a military tribunal.

Rascoff said the U.S. courts most certainly can handle the case, especially since exceedingly powerful statutes have been passed over the last few generations. “We’re not talking about mealy-mouthed prosecutors,” Rascoff reminded, rather about a full court press of vast American resources vested in the Department of Justice, not the Pentagon or CIA. “Our prosecutors are plenty capable,” he added, of “getting results and putting guys away” in an even worse place like “Supermax” in Florence, Colo.

Another topic broached by moderator Hill concerned the pipelines from Libya and Syria into other countries and how terrorists are indoctrinated there. Carafano explained that West Point has actually studied people going into Iraq to determine the purpose of their trip, how they came in, what were their jobs. They found all types of people, from skilled physicians to unskilled laborers, even massage therapists and actors, Carafano said. “It was an incredible illustration of this capacity to set up these [terrorist] networks and to find people who are angry and want to kill and maim in the name of a cause and get them to a country.”

Rascoff talked about findings from the New York Police Department’s intelligence division which examined what type of person would succeed as a terrorist. The key point in making such a determination was whether the “wannabe” terrorist had participated in training on the front. “There is a marked difference about getting radicalized on the Internet and someone who has put on fatigues and taken up arms,” he said.

Rascoff also told about how New York City has spearheaded a highly aggressive program to serve as a deterrent to terrorist attacks. New Yorkers will frequently see a caravan of police cars driving around the city with their sirens blasting basically as a show of force. “Guys dressed up in SWAT gear will be descending all sorts of iconic places for no rhyme or reason,” Rascoff added, other than to highlight their presence.

Rascoff mentioned the successful capture of the Times Square bomber in the summer of 2010 as an example of the public’s sophistication about the issue. It wasn’t just luck that a local street merchant helped disarm the situation by reporting what he saw to the authorities. “That’s the American public being sensitized by the issue,” Rascoff said.

Hill asked about the nature of the various programs and the authority that allows them.

Olsen, director of the National Counter-terrorism Center, talked about two programs that were recently exposed by the leaks from the NSA. First, there is a provision of the Patriot Act called 215 which authorizes the government to collect business records. Only the numbers called and the duration of the calls can be examined, not the content, Olsen explained. And once the information has been collected, Olsen continued, it can only be accessed by analysts from the NSA who would have to demonstrate that the basis for looking into the phone data was reasonably tied to terrorism investigations.

That was the case with Najibullah Zazi, an Afghan-American living in Aurora, Colo. “Once they identified the connection to terrorists overseas, NSA took the phone number connected to Zazi and connected it to Al Qaeda operative and ran that number against their data base,” Olsen said.

Zazi was arrested in September 2009 as part of the U.S. Al Qaeda group accused of planning suicide bombings on the New York City Subway system. He pleaded guilty to conspiring to use weapons of mass destruction, conspiring to commit murder in a foreign country, and providing material support to a terrorist organization in 2010 and is serving a life sentence.

The other program applies to content of Internet communications adopted by Congress. It authorizes the government to collect the content of communications of non-residents overseas.

The 702 law, Olsen explained, is about 4th Amendment privacy guarantees. While the 4th Amendment to the Bill of Rights explicitly says searches must be reasonable, “what was reasonable in 1978 might not be considered reasonable today.”

Olsen said the U.S. Foreign Intelligence Surveillance Court court offers an independent check on whether the government has the right to obtain information. It is a robust procedure, he said, but acknowledged that the issue of balance is always in question.

Roscoff said he appreciates the level of secrecy of the FISA court — “we can’t give away the game” — but thinks it rather strange that there is a parallel universe of law being made by tribunal without outside lawyers being able to observe the process fully.