The Soufan Group Morning Brief



In a case that could have broad implications for privacy rights in the digital age, a majority of Supreme Court justices voiced concerns on Wednesday about the government’s ability to track cellphone users through records kept by their wireless providers. Courts have traditionally ruled that citizens cannot expect privacy after they have given up their data to a third party, such as a phone company. Yet justices on both sides of the ideological spectrum said rapid advances in technology make decades-old precedents inadequate. “Most Americans, I still think, want to avoid Big Brother,” said Justice Sonia Sotomayor.

The case, Carpenter v. United States, was brought forward by a Michigan man, Timothy Carpenter, who was convicted of robbing a string of Radio Shack and T-Mobile stores after FBI agents used three months of cellphone records to show that he was near each store at the time of the crimes. Carpenter said the evidence should be thrown out because the FBI did not get a search warrant.

Justice Department lawyer Michael Dreeben told the court that no search warrant was needed, because cellphone customers are aware that phone company will keep records of their calls and willingly give up any claim of privacy to it. But Chief Justice Roberts questioned how voluntarily people surrender that information. “You really don't have a choice these days if you want to have a cellphone,” he said. Nate Wessler, an ACLU lawyer who appeared before the court, said the Fourth Amendment requires police to either request warrants before they can access location data, or limit requests to a more specific period of time. He said the phone company records give the government “a veritable time machine, the ability to press rewind on someone’s life and learn where we’ve been far into the past.” Washington Post, NBC News, The Verge, USA Today

Members of Congress confronted FBI Director Christopher Wray on Wednesday over an FBI intelligence report that said that black extremists were targeting law enforcement because of police abuses in minority communities. Wray met with the Congressional Black Caucus for on Capitol Hill to discuss its members’ concerns about the report, which grouped together blacks who have espoused violent ideologies, some of whom went on to attack the police, under the term the “Black Identity Extremist” movement.

Representative Hakeem Jeffries (D-NY) said Wray struggled to defend the report’s analysis and could not identify a single black identity extremist group. “He was asked to publicly clarify that there is no scintilla of evidence, as far as we can tell, to provide an example of the black identity extremist movement or any groups that fall in that category,” Rep. Jeffries said. “That clarification should be made publicly, it seems to many of us, and not privately behind closed doors.” Hina Shamsi of the ACLU said the FBI was “linking disparate conduct and unconnected groups to come up with a manufactured black race-based ideology for suspicion and investigation.” She added, “we’ve seen this kind of shoddy analysis and bias-based conclusions all too often, applied to African-Americans, Muslim-Americans, environmental activists and others.” New York Times, Newsweek

U.S. lawmaker says House intel panel near consensus on NSA spy program: Members of the U.S. House of Representatives Intelligence Committee are close to an agreement on how to overhaul a controversial NSA surveillance program — Section 702 of the Foreign Intelligence Surveillance Act — the top Democrat on the panel said Wednesday. Rep. Adam Schiff (D-CA) said he had proposed a compromise that would let intelligence agencies query a database of information on Americans in national security cases without a warrant, but would require a warrant to use the information in other cases, such as those involving serious violent crimes. “This would prevent law enforcement from simply using the database as a vehicle to go fishing, but at the same time it would preserve the operational capabilities of the program,” Rep. Schiff told reporters. Reuters

Judge to hear ACLU challenge over U.S. citizen held as enemy combatant: A federal judge will consider Thursday whether the ACLU can intercede to offer legal services to a U.S. citizen who has not asked for its help but is being held in military custody as an enemy combatant since his capture in Syria in mid-September. The ACLU says the Trump administration should not be able to hold the unidentified man in custody without filing charges against him. The group wants permission to inform him of his right to a lawyer and to represent him. Government lawyers say the ACLU cannot intervene on behalf of someone it has no relationship with. The Supreme Court in 2004 ruled that while the government has the authority to detain U.S. citizens as enemy combatants, they must be given the chance to challenge their detention. Washington Times

White House defends Trump’s anti-Muslim Trump retweets: White House Press Secretary Sarah Huckabee Sanders defended President Donald Trump’s decision to retweet a series of anti-Muslim videos from a British far-right account on Wednesday morning, telling reporters he circulated them to start a conversation about border security and immigration. The videos, posted by Britain First, purport to show Muslims assaulting people and smashing a statue of the Virgin Mary. A spokesperson for British Prime Minister Theresa May that Trump was “wrong” to retweet anti-Muslim videos, adding that Britain First organization “seeks to divide communities through their use of hateful narratives which peddle lies and stoke tensions.” CNN, CBS News

Donald Trump Jr. to talk to House Intelligence Committee behind closed doors: Donald Trump Jr. has agreed to meet with the House Intelligence Committee as soon as next week, giving lawmakers their first opportunity to question President Donald Trump’s eldest son over his contacts with Russians during the 2016 campaign. The testimony, scheduled for December 6, comes as Trump Jr. has faced growing questions on Capitol Hill about a June 2016 meeting at Trump Tower where he met with Russian operatives after being promised compromising material on then-candidate Hillary Clinton. CNN, The Hill

Mueller’s investigators question Kushner about Flynn, Russia: President Donald Trump’s son-in-law Jared Kushner met this month with investigators working with Special Counsel Robert Mueller to answer questions about former National Security Advisor Michael Flynn. The questions focused on a meeting in December between Kushner, Russian Ambassador to the U.S. Sergey Kislyak, and Flynn. In a statement, Kushner's lawyer said, “Mr. Kushner has voluntarily cooperated with all relevant inquiries and will continue to do so.” New York Times, BBC News

Hours after North Korea launched its most powerful intercontinental ballistic missile to date, Kim Jong Un declared that his country had “finally realized the great historic cause of completing the state nuclear force.” North Korean officials have said they will not negotiate with the U.S. until the nuclear program is complete, leading some to suggest that Kim’s statement may open the door to diplomacy — but experts say there remain several variables and unknowns that cast doubt on North Korea’s capabilities.

In the aftermath of  the launch, President Donald Trump pledged on Twitter to enact a new round of “major sanctions” on North Korea after a phone call with Chinese President Xi Jinping. U.S. Ambassador to the UN Nikki Haley said Trump told Xi to cut off oil supplies to North Korea. Earlier in the day, the White House confirmed in a statement that Trump “emphasized the need for China to use all available levers to convince North Korea to end its provocations and return to the path of denuclearization.” A State Department official added that the U.S. is working with partner countries at the UN and in one-on-one conversations to increase maritime interdictions in order to tighten existing sanctions. The Hill, ABC News
New York Times: Washington Eyes a Cold War Strategy Against North Korea
USA Today: North Korea Releases Dozens of Images of New ICBM
CBS News: Russia Accuses U.S. of Deliberately Provoking North Korea

Theresa May urges Saudi Arabia to avert Yemen catastrophe: British Prime Minister Theresa May on Thursday called on Saudi leaders to ease a blockade on Yemen to in order to “avert a humanitarian catastrophe,” echoing recent urgent appeals from the UN. The Saudi-led coalition in Yemen has only partially lifted a crippling aid blockade, which was imposed earlier this month in response to a missile fired by Houthi rebels that was intercepted near Riyadh airport. May met with Saudi King Salman and Crown Prince Mohammed bin Salman late on Wednesday during a three-day tour of the Middle East. “The prime minister made clear that the flow of commercial supplies on which [Yemen] depends must be resumed if we are to avert a humanitarian catastrophe,” her office said. AFP, Al Jazeera

Clashes kill four in Yemen capital as anti-Saudi alliance frays: Four supporters of Yemen’s former president Ali Abdullah Saleh were killed in clashes with their supposed allies from the Houthi movement in the capital Sana’a on Wednesday. The fighting around the city’s main mosque complex underlined deepening rifts between the armed groups who have together confronted a Saudi-led alliance since 2015. Reuters

For Westerners imprisoned in Iran, new signs of a deal: Nearly two years after a group of American captives in Iran was freed when the nuclear accord took effect — in return for the release of a group of Iranians held in the U.S. — there is speculation that another prisoner exchange may be sought. Tehran says at least 14 Iranians have been unfairly imprisoned or prosecuted by the U.S. or its allies, mostly on what they call specious accusations of sanctions violations. In what was widely seen as telegraphing a possible prisoner exchange last week, Iranian state television broadcast reports on two Western prisoners held in Iran. At least four American citizens and two permanent residents of the U.S. are known to be held in Iranian prisons. New York Times

UK counterterror police make arrests as alleged plot is foiled: UK counterterrorism officials said they have foiled a terror plot on Wednesday after arresting two men. The plotters, thought to have been inspired by ISIS propaganda, had been planning to carry out attacks in London and Birmingham. Counterterror officials said it was one of the more serious plots they had seen this year. Officials believe the UK has foiled nine terror plots foiled since March 2017. The threat of attack is at its worst ever level, according to MI5 director general Andrew Parker. The Guardian, The Telegraph
The national security emergency we’re not talking about: “It is simply a fact that the United States relies on diplomacy as our first line of defense,” former Secretary of State Madeleine K. Albright writes in the Washington Post. “Change within the Foreign Service and the State Department’s civil service is not unusual. In fact, the system is designed to bring in fresh blood on a regular basis. There is, however, a big difference between a transfusion and an open wound.”

An American held as an ISIS suspect deserves a prompt hearing: “[T]he government has already won a far more important and alarming victory: It has avoided even a preliminary judicial hearing in the case for 11 weeks. Where the liberty of American citizens is concerned, the courts can — and must — move faster,” Stephen I. Vladeck writes in the New York Times. “After all, without the judicial review that the government has so far been able to avoid, how can we be so sure that the prisoner is, in fact, an ‘enemy combatant?’ And what’s to stop the government from holding any of us without charge for 11 weeks, as well?”

Don’t fall for the hype: how the FBI’s use of Section 702 surveillance data really works: “As Section 702 approaches its end-of-the-year expiration date, some members of Congress have introduced renewal legislation that would require the FBI to obtain a search warrant supported by probable cause before the FBI can view the contents of these communications,” Asha Rangappa writes in Just Security. “Unfortunately, though, this proposal – like almost of all critiques of the FBI’s use of 702 data – rest on incorrect factual premises of how 702 data is actually obtained, maintained, and accessed by the FBI, and on a lack of understanding of how FBI investigations work in general.”

Donald Trump has been torture for foreign correspondents in Russia: “It has never been harder to be a foreign correspondent in post-Cold War Russia than it is now, and not just for the obvious reasons,” Amie Ferris-Rotman writes in Foreign Policy. “It’s not only the Russian government’s worsening secrecy and mistrust...It’s also the cognitive dissonance now inherent to our work. Amid the investigation into alleged collusion between U.S. President Donald Trump’s election campaign and the Kremlin, public demand for reporting on Russia has never been higher — but it’s nearly impossible for any journalists in Russia to add substance to the story that’s on everyone’s mind.”

How America Can Avoid War, Stay Strong, and Keep the Peace
A Conversation with Author
Tuesday, Dec. 5
Fordham Law School

For cutting-edge analysis of the geopolitical events shaping global affairs, read today’s TSC IntelBrief.

d9159016-293d-4362-b051-583f3002984a.png 112d8d75-5f85-4066-ab4c-fbc9e2273744.jpg

Center on National Security
Fordham University School of Law
150 W. 62nd St. 7th Floor
New York, NY 10023 US
Copyright © 2016 Center on National Security, All rights reserved.