Dan­ger­ous state eavesdropping

Pakistan Observer - - OPINION - Noah Feld­man

THE US govern­ment claims the right to eaves­drop at will on a cit­i­zen’s email if he or she is writ­ing to some­one who lives abroad. Now it wants to be able to use those emails to con­vict the per­son send­ing them of a crime. That’s what’s hap­pen­ing to Aws Mo­hammed You­nis alJayab — and he’s not the only one. The le­gal ba­sis is the 2008 Amend­ment Act to the For­eign In­tel­li­gence Sur­veil­lance Act, which says the govern­ment may mon­i­tor com­mu­ni­ca­tions from within the US to for­eign­ers abroad, or vice versa, with­out first ob­tain­ing a war­rant to au­tho­rise the sur­veil­lance.

No court has yet re­viewed the law’s con­sti­tu­tion­al­ity be­cause un­til 2013 the govern­ment didn’t tell any­one that it had been do­ing this. The Supreme Court ruled in 2013 that no one had le­gal stand­ing to chal­lenge the law based merely on the spec­u­la­tion that it might be ap­plied to them. Jayab is dif­fer­ent. The govern­ment can charge him with a crime only by us- ing ev­i­dence gath­ered from his in­ter­cepted emails. So it’s put him on no­tice that it in­tends to rely on ma­te­rial col­lected with­out a war­rant per the FISA. That gives Jayab stand­ing to chal­lenge the law.

The al­leged facts of Jayab’s case are telling. The Sacra­mento, Cal­i­for­nia, res­i­dent came to the US as a refugee from Iraq in 2012. Ac­cord­ing to the govern­ment, while liv­ing in Ari­zona and Wis­con­sin, he emailed with ji­hadis in Syria about go­ing there to fight. The emails in­di­cated he had been there be­fore. And sure enough, in 2014, Jayab trav­elled to Turkey and from there crossed into Syria to fight along­side sev­eral groups, al­legedly in­clud­ing An­sar al-Is­lam, a Kur­dish ji­hadi group that has since merged with Is­lamic State.

In the­ory, Jayab could be charged with ma­te­rial sup­port for ter­ror if it could be proven that he re­ally fought with An­sar al-Is­lam, a des­ig­nated ter­ror­ist group for pur­poses of that law. But ei­ther the govern­ment doesn’t want to charge him with that crime for tac­ti­cal reasons, or it’s afraid it doesn’t have enough di­rect ev­i­dence to prove it. In­stead, the govern­ment called Jayab in for an in­ter­view with US Cit­i­zen­ship and Im­mi­gra­tion Ser­vices af­ter his re­turn to the US in 2014. They asked him whether he’d been a mem­ber of a rebel group or sup­ported ter­ror. He said no, and claimed to have done noth­ing more than visit his grand­mother in Turkey on the trip.

The govern­ment then charged Jayab with the crime of ly­ing to govern­ment of­fi­cials. Its ev­i­dence comes from his emails to Syria when he was in the US and re­sponses he re­ceived. Ob­tained un­der the FISA with­out a war­rant, they are the heart of the govern­ment’s case. To be sure, in the light of the Paris and Brus­sels at­tacks, the US needs some way to lock up po­ten­tial ji­hadi ter­ror­ists who may have been trained abroad to com­mit at­tacks here. But re­ly­ing on war­rant­less wire­tap­ping isn’t it.

There is a rea­son that war­rant­less wire­taps usu­ally are in­ad­mis­si­ble in court. They count as searches for pur­poses of the Fourth Amend­ment. Re­quir­ing a war­rant be­fore law en­force­ment is al­lowed to lis­ten in is a ba­sic el­e­ment of our mod­ern right to pri­vacy. What’s more, the Con­sti­tu­tion doesn’t say that my pri­vacy stops when I am speak­ing to some­one who hap­pens to be out­side the US. The found­ing fa­thers surely wouldn’t have ex­empted letters sent from abroad if they were read within the US. The Fourth Amend­ment pro­vides for the right of “the peo­ple” to be free of un­rea­son­able searches and seizures. That need not ap­ply to per­sons out­side the US. But it should ap­ply to ev­ery­one who is here, and we shouldn’t lose our pri­vacy rights just be­cause we’re talking across bor­ders.

It’s harder to say with cer­tainty that the govern­ment should al­ways be barred from such in­ter­cepts when they’re made purely for in­tel­li­gence pur­poses. Say the govern­ment is lis­ten­ing to the phone of some­one in Syria and that per­son gets a call from the US — the govern­ment shouldn’t have to stop lis­ten­ing. But charg­ing a US res­i­dent in US court on the ba­sis of war­rant­less searches of com­mu­ni­ca­tions while the res­i­dent was in the US goes too far. The govern­ment should find an­other way to hold Jayab if he is dan­ger­ous, such as charg­ing him with a crime that can be proved with­out vi­o­lat­ing his rights — and ours. — Cour­tesy: The Ja­pan Times

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