Fighting Today's Terrorists With Yesterday's Rules

We need new regulations to modernize the fight against terrorism.

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In the early 1970's, the Watergate scandal was a huge moment for U.S. intelligence: The rules and definitions were rewritten (and in some cases written down for the first time) concerning the collection, retention and sharing of that category of national security information called "intelligence." This was formalized alongside the basic roles and missions of the various U.S. intelligence agencies, e.g., the CIA, National Security Agency, Defense Intelligence Agency and part of the FBI.

Also in the 70's, and because of the abuses documented by the extensive Church (Senate) and Pike (House) Committee investigations - and the clear need for continuous oversight - the House created the House Permanent Select Committee on Intelligence and the Senate formed the Senate Select Committee on Intelligence.

Then, in 1978, the Foreign Intelligence Surveillance Act was passed into law, and has been amended several times since, notably in 1994 to include "physical searches" and in 2008 to include the recently outed (thanks to the media and Edward Snowden) terrorist surveillance program.

Understandably, a clear distinction between foreign and domestic operations and activities was originally written into our laws and regulations, and generally, a higher threshold for the surveillance of domestic threats was required.

[See a collection of editorial cartoons on the NSA.]

This policy is implemented throughout our intelligence legislative and regulatory environment with the concept of "U.S. persons." However, it's a much larger category than many might think, and includes anyone – regardless of their citizenship, foreign affiliations, sworn loyalties or nationality - who is here legally and also includes organizations comprised substantially of U.S. persons.

So, if our intelligence agencies wanted to target a foreign person, activity or function, they could do it with a showing or recital of that basic connection; however, if the target was a U.S. person - even one located permanently overseas - a higher standard or threshold was required. This made sense in the 1970's, and especially in the wake of Watergate.

Enter the dangerous era of world-wide terrorism, and we quickly begin to deal with the unpleasant reality of ubiquitous (and borderless) terrorist activity, e.g., fund raising, propaganda, conspiracies and even actual attacks, carried out against us by our own people – while some were U.S. citizens, even more were foreign nationals who were here legally.

[See a collection of political cartoons on immigration.]

Accordingly, we are now at another historically critical time and must consider the idea – along with all the other issues raised by the recent revelations – of describing all legitimate intelligence targets primarily by their activity rather than by their status as "U.S. persons" or not.

In fact, three years ago, I wrote:

 [M]any would argue that the whole concept of "U.S. Persons" is anachronistic in this day of "foreign-affinity terrorism" — these are the U.S. citizens who become active in foreign based terrorist organizations, or adopt its ideology, with the intention of carrying out terrorist acts in or against the U.S.

At the minimum, it seems very appropriate for both the President and the Congress, regardless of the party politics involved, to review the entire issue set associated with the idea of "U.S. Persons" and determine if changes in law, regulations and internal procedures are needed to address these new and very dangerous threats to our homeland.

[See a collection of political cartoons on defense spending.]

The recommendation: In addition to the other issues raised by the revelations of Edward Snowden's purloined and published classified material, our Congress should consider doing away with – or substantially revising - the concept of "U.S. Persons" in our public laws and implementing regulations.

Recent cases in point: 1) People like cyber thieves/spies Snowden and Manning - with access to our most sensitive classified information, 2) the very deadly "local" Boston Marathon bombers, and 3) who knows how many other similar internal plots at work against us right now. Why should these clearly defined categories of extremely dangerous national security threats continue to be  protected by rules written during the Cold War - and long before the deadly realities of terrorism and insider cyber theft came home to our country?

Daniel Gallington is the senior policy and program adviser at the George C. Marshall Institute in Arlington, Va. He served in senior national security policy positions in the Office of the Secretary of Defense, the Department of Justice, and as bipartisan general counsel for the U.S. Senate Select Committee on Intelligence.

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