Killing or Capturing a Terrorist?

Today, the CIA and U.S. military managed to kill Anwar al-Awlaki with a missile strike from an unmanned drone.  His death, and those of the terrorists/bodyguards with him in his convoy is another victory in the war against those who use a peaceful faith as an excuse to foment violence in pursuit of a political cause.

I noticed an article in the New York Times today that discussed the debate continuing in political, legal, and public forums about what the 'proper' course of action is in dealing with people like al-Awlaki.

The options for dealing with terrorists like al-Awlaki are pretty straightforward.  Kill or capture them.  The instance of al-Awlaki presents a different issue in the minds of some - he was an American citizen.

As an American citizen, some people offer the opinion that al-Awlaki should have been treated differently.  He should perhaps have been captured by local law enforcement, the civil rights we all enjoy as citizens preserved and protected.

The Obama Administration obviously thought differently, and as it has done since the beginning of President Obama's Presidency, it has continued (and argued for in court) most of the Bush Administration's policies in what is now called the War on Al-Qaeda.

Let's consider the premise of capturing al-Awlaki or another U.S. citizen operating overseas to further the aims of a terrorist organization carrying on a war against America.  If this terrorist is living and conducting his operations in the United Kingdom, then capturing him becomes a relatively simple thing, conducted within the rule of law.  The UK has an excellent police force, not to mention MI-5 (the domestic security service, a well established court system, and a system of government from the local to the national level that is largely uncorrupted and supported by the people.   All of this presents a permissive environment within the UK that would enable the arrest, interrogation, and trial of such a person, under the rule of law.  Nice and comparatively neat, isn't it?

Now we need to consider the more realistic scenario.  Most of these terrorists, be they Americans, Yemenis, Afghanistanis, or Iraqis, usually work in countries like Somalia, Yemen, the uncontrolled border of Afghanistan and Pakistan, etc.  In many of these cases, there is no rule of law as we understand and experience it here in the West.  No strong system of courts.  No well trained and professional modern police or internal security force with well trained forensic scientists to back them up.  Even worse, no supportive population of citizens to set the conditions to allow those kinds of institutions to flourish, and thus create a more supportive population of citizens.

Terrorists operate in these areas precisely because the conditions in these nations make it easier for them to operate and in some cases enable or aid them (like the Pakistani ISI).  It cannot be reasonably argued that the U.S. could approach the government or internal security services (assuming they exist at all) for assistance and permission to arrest, and then deport a terrorist.  It is likely the target of such an arrest would be tipped off by members of the government or internal security services (either for money or because of some ideological sympathy).  Further, attempting to make a case in a U.S. court room against such people, where the rules of evidence are very strict, would be impossible for a couple of reasons.  It would require the compromise of U.S. intelligence sources and methods, which would endanger American security; and collecting evidence on a battlefield or in a non-permissive environment in any country would never be able to meet the standards of evidence required in a U.S. courtroom. 

This issue will undoubtedly continue to be debated, but we are left with the only practical option, one the Bush Administration started, and the Obama Administration has expanded upon - send in the drones or the Special Forces and kill them.

Friend and Ally, or an Enemy We Choose to Tolerate?

For the past few days, the major media outlets have been reporting something (again) that should not come as a shock to our nation, and I'm sure is no surprise to the U.S. military or intelligence community.   Pakistan is not really a good ally, or perhaps even a trusted partner in the U.S. effort to create a stable Afghanistan and eliminate the Taliban and Al-Qaeda presence or influence there or within its own borders in the Federally Administered Tribal Areas.

The Pakistani government routinely chastises the U.S. for conducting drone attacks on Taliban, Al-Qaeda, or militant leaders within the Tribal Areas.  Leaders who cross the border regularly from Pakistan into Afghanistan to coordinate attacks against U.S. and Afghan forces.  Admiral Mullen, outgoing Chairman of the Joint Chiefs was the first senior U.S. government official to actually call out the Pakistani Inter-Services Intelligence (ISI) organization as being a supporter of the attack on the U.S. Embassy last week during his testimony before the Senate Armed Services Committee. 

It gets worse.  Remember where we found Usama Bin Laden?  That's right.  In Pakistan.  A little town called Abbottabad that just happens to be where a large number of Pakistani military senior officers retire to, and home of the Pakistani Military Academy.   You may also remember that we did not tell the Pakistani government that we were sending an armed assault force into their sovereign territory to capture or kill Bin Laden.  That in itself proves the point.  Pakistan is not really our full ally or trusted friend, despite the political rhetoric from U.S. and Pakistani governments since 9/11.

If they were, we would have briefed the Pakistani government on Bin Laden's location, asked for permission to send in a team to capture him, and they would have agreed, or at the very least assaulted the house themselves and turned him over to us.   That's what we do when we deal with an ally or friendly nation, because we know they would be happy to accommodate the request of a friend.

Instead, we sent our Special Operations Forces to sneak into Pakistan with stealth helicopters, staged a daring raid in the middle of the night, killed Bin Laden, took everything we could of intelligence value, and snuck out again, leaving the Pakistanis a destroyed stealth helicopter.  The remains of which they probably allowed nations like China and Russia to examine and sample, for a small fee of course, before they let us come pick up the parts.

Pakistan has obviously decided that it isn't interested in being a full partner in dealing with Al-Qaeda, the Taliban, and the remaining insurgents in Afghanistan.  In fact, the Haqqani network, probably the biggest threat to the U.S military and U.S. goals in Afghanistan at the present time, in spite of being strongly supported by the U.S. during the Soviet occupation of Afghanistan, is allegedly now supported by the Pakistani ISI.  

It's past time the U.S. began to cut back massively on our aid to Pakistan, and hold the Pakistani government directly responsible for the ISI's actions by revealing what it knows about the ISI's activities that work to undermine U.S. and Afghan efforts to keep Afghanistan on a path to self determination and governance.  

The Stingray & the 4th Amendment

There is a very interesting article today in the WSJ on the Stingray and the implications of its use against U.S. citizens.

The Stingray is basically a small suite of equipment and antennas that are used to create a vehicle borne mobile cell phone tower.  FBI agents or other law enforcement personnel can utilize the Stingray to track a cell phone that is powered on, whether the phone is in use (making a call or sending a text) or not.

Here's the short version of how without all the geek-speak.   First of all, you need to remember that your cell phone is a radio (actually as many as six different radios, but that gets too geeky to explain).   In order for the cell phone you have in your pocket, purse, or hanging on your belt to work properly, it needs to know which cell tower is closest to it.  Knowing that, the phone can communicate, via the built in radio, with the tower giving it the strongest signal.  As you walk or drive, the phone switches from the tower you were using that is now getting farther away, to the next closest tower as the signal from it gets stronger.  When the phone talks to the tower, it uses its unique (in the whole world) electronic identity to identify itself to the tower (actually, to the telephone network the tower connects your phone to).  The tower (and the telephone network behind it) knows how many phones it can reach, and 'talk' to, to allow you to make calls, send text messages, surf the web, etc.

This is where the Stingray comes in.  If a law enforcement agency can determine the electronic identifier your phone has assigned to it, they can go to a judge, apply for a search warrant, and then use the Stingray to find, and if needs be, track you.

They (law enforcement) load your phone's unique electronic identifier into the Stingray, then drive around in the vicinity of where they suspect you are, waiting for your phone to 'talk' to the Stingray.  Why would your phone talk to the Stingray instead of the cell tower nearby?  Because the Stingray broadcasts the same beacon a cell tower does, but because it's closer to your phone than the tower is, the signal appears stronger to the phone, and the phone is designed and programmed to lock on to the strongest signal.  After your phone is 'hooked' by the Stingray, then it's just a matter of old fashioned direction finding to track you and your phone.

(For those of you more technically inclined, yes I omitted a large amount of technical and procedural detail on purpose.)

I think the technology is very impressive and presents a number of advantages for law enforcement and other applications.  Having said that, it does create a 4th Amendment search and seizure issue for the courts, which will undoubtedly take time to resolve and yet again proves that the creation and interpretation of technology law lags behind the speed of technology.

It's illegal to wiretap someone's conversations without a court order.  Is it illegal to use what could be argued as the 'publicly available functions' of your phone to track you, particularly once you are outside your home, walking around in public?   Do you have a right to privacy if your phone is powered on, no matter where it (and you) are?

This technology, much like the similar controversy over law enforcement attaching GPS devices to suspect's vehicles to track their movements, will be a debate within the legal system worth watching.