Useful Fools

Bruce Schneier is a cryptologist and security “expert”. He’s generally a very smart guy, but he seems to let his passion for privacy and distrust of government get in the way of reason. His latest Cryptogram publication is an example. It analyzes the three Supreme Court rulings on war detainees and finds all appropriate from a security standpoint. In other words, the granting of habeas corpus rights to foreign illegal-combatant prisoners at Guantanamo magically improves our security.

Yeah, I didn’t believe it either.

Counter arguments are below, followed by an argument for the pre-emptive involvement of civil liberties sensitive technicians in the design of some inevitable systems.

The U.S. Supreme Court recently decided the three legal challenges to the Bush administration’s legal maneuverings against terrorism. These cases have been endlessly debated on legal and civil liberties grounds. They were decided, mostly, in favor of presumption-of-innocence and due process.

But I want to talk about how important the decisions are to our nation’s security. Security is multifaceted; there are many threats from many different directions. It includes the security of people against terrorism, and also the security of people against tyrannical government.

The three challenges are all similar, with slight variations. In one case, the families of 12 Kuwaiti and two Australian men imprisoned in Guantanamo Bay argue that their detention is an illegal one under U.S. law. In the other two cases, lawyers argue whether U.S. citizens — one captured in the U.S. and the other in Afghanistan — can be detained indefinitely without charge, trial, or access to an attorney. In all these cases, the administration argues that these detentions are lawful, based on the current “war on terrorism.” The complainants argue that these people have rights under the U.S. Constitution, rights that cannot be stripped away.
There is one very critical difference: two of the cases involved US citizens detained on US soil. The third did not.
There are some very broad security issues at work here. The Constitution (which includes the Bill of Rights) was designed to ensure the security of people: American citizens and visitors. Its limitations on governmental power are a security measure. Its enshrinement of human rights is a security measure. These measures were developed in response to colonial tyranny by Britain, and have been extended in response to abuses of power within our own country. Laws mandating speedy trial by jury, laws prohibiting detention without charge, laws regulating police behavior — these are all laws that make us more secure. Without them, government and police power remains unchecked.
These laws are to make Americans and visitors in America more safe. They are not to make those who fight us in foreign lands safer. Making the Kuwaitis and Australians who were captured fighting us on foreign soil safer is the realm of international law, which in this case gives us the right to shoot these individuals outright.

The case of Jose Padilla is a good illustration. Arrested in Chicago in May 2002, he has never been charged with a crime. John Ashcroft held a press conference accusing him of trying to build a “dirty bomb,” but no court has ever seen any evidence to support this accusation. If he’s guilty, he deserves punishment; there’s no doubt about that. But the way to determine guilt or innocence is by a trial on a specific indictment (charge or accusation of a crime). Without an indictment, there can be no trial, and the prisoner is held in limbo.

Surely none of us wants to live under a government with the right to arrest anyone at any time for any reason, and to hold that person indefinitely without trial.

The Bush administration has countered that it cannot try these people in public because that would compromise its methods and intelligence. Our government has made this claim before, and invariably it turned out to be a red herring. In 1985, retired Naval officer John Walker was caught spying for the Soviet Union; the evidence given by the National Security Agency was enough to convict him without giving away military secrets. More recently, John Walker Lindh — the “American Taliban” captured in Afghanistan — was processed by the justice system, and received a 20-year prison sentence. Even during World War II, German spies captured in the U.S. were given attorneys and tried in public court.
Here is a logic error - deriving a major principle from a couple of examples. Just because it is possible to try some people without disclosing too much classified information does not make that true in all cases. Furthermore, how many cases were not prosecuted because of the security risks? Our government (not just “the Bush administration”) has had a lot of concern about security risks from trials, which is one reason the non-US prisoners were kept off of US soil. It takes only a little imagination to create likely scenarios where prisoners are not prosecuted because of the security risks involved. This has already happened. In the case of illegal combatants, the only safe alternative may be summary execution.

Schneier should understand that some prosecutions do indeed require disclosure of classified information. He should also know that lawyers for prisoners will have access to that material. There has recently been a case of an attorney illegally passing information from a terrorist in jail to others outside. Imagine that attorney with classified information.

Lets put the shoe on the other foot: does Schneier trust our background check system to adequately vet the lawyers for the accused with regard to exceedingly sensitive information? It’s the same system that gave a top security clearance to John Walker. So our security expert is saying that we can try these terrorists in public without loss of security? Has he ever held a security clearance?
We need to carry on these principles of fair and open justice, both because it is the right thing to do and because it makes us all more secure. The United States is admired throughout the world because of our freedoms and our liberties. The very rights inherent in these Supreme Court cases are the rights that keep us all safe and secure. The more our fight against terrorism is conducted within the confines of law, the more it gives consideration to the principles of fair and open trial, due process, and “innocent until proven guilty,” the safer we all are.
The idea that fair and open justice always makes us more secure is simply illogical - it is emotion and idealism talking. It is a general principle of democratic government, but is not a principle of war-fighting. It is certainly normally a good idea (constitutionally required), but not when dealing with foreign nationals on foreign soil.
Unchecked police and military power is a security threat — just as important a threat as unchecked terrorism. There is no reason to sacrifice the former to obtain the latter, and there are very good reasons not to.
This is an absolutist viewpoint, and it is not necessarily correct. First, it is a false choice - by unchecked he is really talking about something much more narrow. Second, in some circumstances, the protections of the courts are inappropriate - that is why we have provisions for martial law.

However, it is appropriate to protect our citizens and visitors from this when possible by appropriate legal means, and martial law is a last resort. But the important case in this whole discussion deals with foreigners, captured on foreign soil and kept on foreign soil. The Supreme Court, rejecting precedent, has handed all the prisoners at Guantanamo the right to file habeas corpus petitions. This is, to put it mildly, damaging to our efforts in the war against Islamofascim. But Schneir never mentions this issue, instead dwelling on the more obvious and far less controversial issues of those captured or kept on American soil. He is, by this conflation of cases, implying that giving the prisoners at Guantanamo the right to file habeas corpus petitions makes us more secure. That is utter nonsense! It is one thing for the court to extend its authority to them (by reinterpreting sovereignty for this case to include land under indefinite least), but to assert it increases our security is pathetically wrong.

It is appropriate for US citizens on US soil to be have the ability to file habeas corpus petitions, even though Abraham Lincoln suspended that right during the civil war, and the US took many German-Americans prisoners in World War II and treated them as POWs, not citizens.

But for non-citizens, captured on foreign soil, who have never touched US soil, the court (approved by Schneier) says that they should also be able to file habeas corpus petitions (which implies the provision of counsel). It is inappropriate of Schneier to not address this specific aspect but rather conflate rules protecting Americans with rules protecting our enemy, who never touch American soil..

Most Americans would not object to our soldiers being able to take illegal foreign combatants as prisoners for interrogation, without giving these foreign terrorists the constitutional protections of US citizens. Even if we sometimes made mistakes - war does have inevitable collateral damage.
The ruling mayl leave our forces with the choice of simply executing the captives on the spot or bringing them in and giving them a lawyer, say, in the remote regions of Afghanistan. Now currently, the ruling only covers Guantanamo Bay, but it points out that aliens anywhere can sue, prisoners or not. Furthermore, prisoners who are taken will be able to disrupt interrogation through the use of these rights.

The principle of “giving quarter” in the laws of war is relatively new, and was tied to rights and responsibilities of captors. This ruling may very well put our soldiers in the position where they are ordered to not give quarter, but rather shoot surrendering enemy, because of the reduced value of captives with excess rights. I have spoken today with three people who have taken prisoners in war. Two indicated this would probably reduce the numbers of prisoners taken (as opposed to killed). The third wasn’t sure.

Neither the justices nor Schneier are likely to have any experience with interrogation. I have been trained in resisting interrrogation under torture (SERE school, Warner Spings, CA), and I know if I could have demanded a lawyer in the middle of interrogation, it would have been a very different situation.

Schneier, through his praise of these rulings, shows favor for excess rights to illegal combatant prisoners, and somehow imagines that this improves our security!

Like so many civil libertarians, a hypothetical risk (or in the case of foreigners, no risk at all to America) takes on more importance than the very real risk of terrorism and the necessary techniques for dealing with it. He properly maintains certain rights are part of security, and then quietly agrees that they should be allowed for foreigners on foreign soil. This quiet confusion of protection of the American public with protection of oversease non-American captives cannot go unchallenged.

Perhaps Schneier can use his expertise at security to tell us how to fight terrorism without being able to conduct effective interrogations of foreigners.

The over-reaction to the Abu Ghraib incident has already damaged our interrogation capabilities. The new court-ordained rules will make it worse.
An opponent using terrorism requires more surveillance and interrogation than any other kind of enemy. Here we are, 3 years after the most devastating attack in US history, and we are adding legal burdens to our security agencies. Why don’t we just hold the doors for the terrorists as they waltz in and kill a hundred thousand people? It is similar to our reluctance to profile based on obvious grounds such as middle eastern nationality - the same sort of lack of common sense too common in this war.

Furthermore, the fear of the government is overblown, based on past American history, and as far as foreign prisoners not on US territory is concerned, absurd. In a number of major wars, there have been temporary reductions of rights, and yet in these areas Americans now have more rights than they ever had. Handing power to governments is always dangerous, but the first reason for giving power to a government is protection against enemies, foreign and domestic. When people start fearing what the government might do more than a clear and present enemy, to the point of obstructing common sense abilities (withholding of rights for foreigner enemies, and suspected enemies, who are not on our own soil), one has to ask how they can possibly contribute to the war effort.

This reminds me of when a noted civil liberties expert, asked his first though on 9-11, said “what is going to happen to our freedoms?” That person is out of touch. I fear Schneier is also.

Needless to say, the Supreme Court is also a bit insane on this issue, but that seems to be the norm for them these days.

Civil Liberties advocates need to get ahead of events.

There are many, especially on the Internet and in blogspace who are deeply distrustful of the government, to the extend of wanting to hobble it in critical functions necessary for improving safety in the war on terror. Some of these people are civil liberties experts, and others are technical experts such as Bruce Schnier.

What they fail to realize is that future terrorist attacks, which are inevitable, will lead to demands for rapid improvements in security. These may include technological measures (such as national ID cards) and human security means (roadblocks, checkpoints, etc). When that happens, those who have spent their time attacking government attempts (such as the Patriot act) or praising restrictions on government action (such as this case) are going to find their worst fears enacted, without their input.

They need to recognize that when something horrible happens, people will demand results, quickly, and they aren’t going to give the slightest consideration to the naysayers. That is human nature.

Civil libertarians and technologists with strong interests in that area (which appears to apply to Schneier) need to anticipate the systems that may be needed. They need to use their imagination. What will the populace demand if suicide bombers start exploding randomly in shopping malls? What will they demand if food supplies are poisoned? How about if airplanes start exploding in flight? What if there are occasional releases of Sarin gas, derived from binary shells found in Iraq? Try to imagine these issues, instead of focusing on John Ashcroft as the enemy.

People will want protection and security. One can quote Ben Franklin at them forever, and it won’t make any difference. They are going to demand protection immediately.

Civil libertarian technicians such as Schneir need to stop saying “it won’t work” to the sorts of things that are going to be demanded, and start figuring out how it can be made to work. All the arguments in the world are not going to stop, for example, national ID cards if all hell breaks loose. So how about approaching it from a positive and creative standpoint (there are some benefits)? How about computerized camera systems?

I ask readers: which is better, a national ID card system where industry experts like Schneier have had a lot of input - before the system is demanded, or one which is dreamed up by a bunch of government IT and police types?