Measures to fight terrorism have drastically increased since 9/11. To prevent similar events the government has attempted to utilize methods that include the mass surveillance of Americans. But, the legitimacy of these tactics have raised objections from civil liberty groups. 

Keynote speaker Jeffrey Rosen, a law professor at George Washington University, legal affairs editor of The New Republic and a non-resident senior fellow at the Brookings Institution. PHOTO: Natasha Dado/TAAN

The Wayne State University Law Review presented “9/11 and the Legal Landscape: A Decade Later” at its annual symposium on Feb. 4 inside WSU’s Spencer M. Partrich Auditorium. The second of the three panels covered civil liberties and counterterrorism and featured speakers Barbara McQuade, U.S. attorney for the Eastern District of Michigan, Marc Rotenberg, president of the Electronic Privacy Information Center and adjunct professor at Georgetown University Law Center, Susan Ginsberg, non-resident fellow at the Migration Policy Institute and Kary L. Moss, executive director of the American Civil Liberties Union of Michigan.

McQuade says the U.S. Department of Justice is concerned about the radicalization of young people and home grown terrorism. “These are growing issues of growing concern and we feel duty bound to prevent attacks from occurring from people who are home grown terrorists. But at the same time how do we do that in a way that respects our constitution and people’s privacy rights as           Americans. It is a great challenge,” McQuade said.  

Representative Peter King, Republican of New York has scheduled hearings to investigate whether there is hidden radicalism within the Muslim American community and mosques.  McQuade says what King may be forgetting is the fact that not all terrorists are Muslims and Arabs.  She gave examples of home grown terrorist attacks that don’t involve Arab Americans including the fatal shooting in Tuscon, Arizona, the attempt to blow up the Islamic Center of America in Dearborn and the recent Detroit Police precinct shooting.  “So looking only at mosques or in the Middle Eastern community is perhaps overlooking. Instead of looking at profiles of people with ethnicity and religion looking at peoples conduct is a more predictable indicator,” she said. “I also want to add that the most notorious terrorist in the country was not a Muslim but Timothy McVeigh.”

Two controversial measures taken to prevent terrorist attacks are the use of FBI informants being recruited to seek radicalization in mosques, and sting operations.

Informants are used in various instances including corruption, drug and organized crime cases. People often become informants because they’re patriotic, think it’s exciting, are seeking financial compensation or have been accused of a crime and want to get their sentence reduced.  

“Are informants being used in mosques? Yes they are. But I think there is a perception they are used in a widespread way and that the FBI is sending informants into every mosque in America and fishing around for information. And I can tell you that is absolutely not the case. It’s used rarely, and when it is, it’s because there is information that illegal activity is occurring in a mosque just as it occurs in all other segments of the community,” McQuade said.

The FBI’s guidelines on investigations prohibits informants from going into mosques to observe basic rights that are protected by the first amendment such as worshiping. Most radicalization is occurring on the internet and in prisons. The FBI is more focused on that, than mosques according to McQuade. 

 Mohamed Osman Mohamud, who allegedly sought to blow up a van during a Christmas tree lighting ceremony in Portland, Oregon was caught on the internet making statements about wanting to kill Americans. Mohamud was introduced to an undercover FBI agent who selected the target, date, method and provided him with the fake explosive device. Sting operations similar to this have raised serious concerns.

 Some attest the incidents wouldn’t occur if the FBI wasn’t involved. McQuade says in all sting operation cases it’s never proven that it’s the FBI’s fault.  “In not a single one of those cases has that defense been successful. When someone is intent on killing people and has expressed that desire, I think the government has an obligation to do all it can to prevent such an attack.  Again sting operations have been effective in preventing attacks before they occur,” she said.

In sting operation cases the government must show the idea was in the defendants head before there was ever any intervention from it. To prove that, the undercover agent will give the defendant an opportunity to withdraw on tape prior to the attack.  Mohamud was asked whether he was certain he wanted to go through with the plan, and told there would be lots of dead people. But he still insisted, saying he was certain he wanted everyone at the ceremony to be killed.

To track and monitor terrorists and other threats to national security the project Total Information Awareness was proposed after 9/11. Under the TIA computer databases would be created to collect and keep private information on every American. The information would be obtained from personal credit card and medical records, phone calls, emails, social networks and other sources without requiring a search warrant. 

Public objection eventually led to the failure of TIA. Supporters claimed it would help prevent another 9/11 from occurring and make the world a safer.  Rotenberg says he became skeptical about the proposal because people may have been charged with crimes they didn’t commit if the data wasn’t accurate, complete or timely.  “The question is what type of technologies should we permit in the post 9/11 America,” he said.

Another idea developed to prevent terrorism after 9/11 that collapsed too was an identification proposal. Its provisions required Americans to present their drivers license when entering courts, sports stadiums and other places according to Rotenberg who  said he opposes airport body scanners. 

A FOIA request on the body scanners was submitted to the Transportation Security Administration and approved. 

“We were concerned about the effectiveness of the techniques and the impact on privacy,” he said. Government documents from the FOIA show the devices are designed by the TSA to restore naked images of a person’s body. “The second thing we learned from our documents is that they were not designed to detect the powder explosive Mr. Umar Farouk Abdulmutallab used on Dec. 25 or the shoe bomber,” Rotenberg said. The devices were used to detect plastic explosives and types of materials with sharp edges that medal detectors don’t. “Having learned this we said what’s the point. What’s the point of employing these devices that are so invasive the agency won’t even tell the truth to the American public, and that are so ineffective they don’t even respond to the threat your saying they will,” Rotenberg said.   The airport body scanners gained public support after Abdulmutallab attempted to set off explosives sewn to his underwear on a Northwest Airlines flight from Amsterdam to Detroit Christmas day 2009.

The TSA quietly decided the devices would become the primary screening technique in U.S. airports and no opportunity for the public to comment or debate was given Rotenberg says.  About 50 immigration and civil rights organizations placed their names on a letter that was submitted to U.S. Secretary of Homeland Security Janet Napolitano on issues concerning the body scanners, but she never replied. The second letter to Napolitano was also ignored.

 The symposium brings leading scholars from across the country to discuss a timely and relevant legal issue. The keynote speaker was Jeffrey Rosen, law professor at George Washington University and legal affairs editor of The New Republic and a non-resident senior fellow at the Brookings Institution. Other panel speakers included Professor Heidi Kitrosser, University of Minnesota Law School, Professor Robert Turner, University of Virginia School of Law, Joshua Dratel, founder and president of the Law Offices of Joshua L. Dratel PC, Professor Jules Lobel, University of Pittsburgh School of Law, Andrew McCarthy, contributing editor with National Review Online, Jonathan Hafetz, Seton Hall Law School, Bill Goodman, partner, Goodman and Hurwitz and Rohn Rizzo, senior council, Steptoe and Johnson LLP, and former chief legal officer at the Central Intelligence Agency.