August 05, 2016

Border security inadequate protection against terrorist threats, say panelists

The United States shares 7,000 miles of land border with Canada and Mexico, as well as rivers, lakes and coastal waters. While these borders are vital economic gateways that see trillions of dollars in trade and travel each year, they are also an important defense against the illegal movement of weapons, drugs, contraband and people.

An ABA Annual Meeting session on Aug. 4, “U.S. Border Wars: Preventing Terrorism and Protecting Children,” sponsored by the Judicial Division’s National Conference of the Administrative Law Judiciary, dealt with many of the details of border security—including use of the borders as a defense against terrorist threats.

Defining the threat, Mohammed M. Hafez, associate professor in the Department of National Security Affairs at the Naval Postgraduate School in Monterey, Calif., and a specialist on foreign fighters and suicide bombers, described three models of terrorist radicalization and activation:

1. The “9/11” model, in which foreign professional terrorists connect with local enablers;

2. The “inside-out” model, in which homegrown extremists acquire skills abroad and then return to attack; and

3. The “Boston Marathon” model, in which local individuals inspired by extremist groups carry out attacks without much assistance from abroad.

“The United States is mainly vulnerable to the third model, whereas Europe is vulnerable to the latter two,” Hafez said. “Securing the U.S. borders will likely do little to stem the threat of violent extremism based on the threat emanating from within,”

Moderator Judson Scott, a retired federal administrative law judge/retired Navy rear admiral, agreed. “Border security plays a role in our security, but may no longer be an effective barrier to stopping this new style of domestic attacks.”

“Terrorism has many avenues into our country, including at the border. We have closed some avenues better than others, and today’s favored avenue may not be tomorrow’s,” said panelist William Chip of Covington & Burling, describing the problem with current protections.

Scott acknowledged the role of the Foreign Intelligence Surveillance Court in border protection.

A member of the U.S. Foreign Intelligence Surveillance Court, Judge James P. Jones, a U.S. district judge in Virginia, said, “Earlier this year, the Director of the Administrative Office of the U.S. Courts published the first of what will be an annual public report on the FISC's activities. This report indicates that the FISC is carefully considering the government's applications and rejecting, modifying, or approving the requests in accordance with its statutory duty."

Jones also noted that some refer to the FISC as "the most powerful court you've never heard of," and that in a typical week he receives several dozen requests for surveillance from the government."

"I'm not criticizing the court [FISC], but I think they've been given a task [ruling on mass surveillance issues] not appropriate for a self-governing democracy," said panelist Cindy Cohn of the Electronic Frontier Foundation, an organization dedicated to defending civil liberties in the digital world.  She noted that earlier in its existence, the FISC was limited to a much more narrow focus, ruling on individual surveillance requests.

As the United States seeks more robust protections, Cohn and Hafez agreed on the need for cost-benefit analyses, balancing the need to protect our citizens while also safeguarding their privacy.

In the questions period, Municipal Court Judge Richard Ginkowski of Pleasant Prairie, Wisc., told a chilling tale of a 15-year-old before him on truancy charges who, it turned out, was making bombs in his basement and in communication with ISIS.

Panelists also included H. Alexander Manuel, an administrative judge at the U.S. Department of Housing and Urban Development.