On December 6, 2007, the Central Intelligence Agency publicly disclosed that in 2005 it had destroyed videotapes of CIA interrogations of alleged terrorist Abu Zubaydah conducted in 2002 and asserted that the destruction was “in line with the law.” The disclosure resulted in calls for congressional investigations; a motion for contempt in a Freedom of Information Act (FOIA) suit by the American Civil Liberties Union (ACLU); emergency motions in Guantánamo detainee cases; questions about the case of Zacharias Moussaoui; and an angry op-ed from the chairmen of the 9/11 Commission. The crux of these public reactions – as with the criminal investigation that resulted – was primarily the narrow issue whether the destruction of the tapes was illegal because they were relevant to pending or foreseeable cases or investigations.
The practical consequence of the Constitutional Court’s balancing approach to maintain both security and liberty has been a shifting jurisprudence, a fact that is bound to buoy and bother American conservatives and progressives in equal measure. There is something in the Court’s cases for both camps. Before 9/11, the Court deferred to the legislature’s attempts at promoting security. This inclination, however, changed dramatically in the post-9/11 period. In a string of cases the Court has consistently invalidated national security legislation for failing to adequately take account of constitutionally protected liberty interests.
The Internet seems to offer the promise of everything to everyone. For global and local business, it lowers costs while increasing innovation, invention, effectiveness, and efficiencies. For wealthy and poor economies alike, the Internet greatly expands markets for products and services. For peoples free and repressed, it provides an inlet and an outlet of expression. For large and small communities, whether living in urban centers or outlying regions, the Internet enables control over critical power, transportation, water, and sewerage systems.
Lest we forget, for sophisticated criminals, terrorists, warmongers, and spies, the Internet also offers the chance of a lifetime to cheat, steal, and strike from afar with little money, covered tracks, and enormous real world impact. While the ability to use the same technology for positive or destructive ends is neither new nor momentous, it is necessary to consider whether the rapid adoption of the Internet has provided so considerable an asymmetric advantage to our adversaries that it can change the course of American history. In this regard, when we consider the intent and capabilities of our enemies, we cannot underestimate them or, as the 9/11 Commission found in a different context, suffer from failures in imagination, policy, capabilities, or management.
Thus our future remains uncertain. Based on our increasing reliance on networks to drive our economy and support our health, welfare, communications, and security, certain questions loom large. For example, can our enemies control whether, how, and when our systems operate and our vital services get delivered? Are our personal and business records, corporate intellectual property, and state secrets routinely exposed or imperceptibly altered?1
Unfortunately, the answers to these questions not only remain unknown, they perhaps are unknowable. Therefore, it is difficult to provide our nation’s government leaders, corporate executives, shareholders, and citizens with reasonable assurance that our computer systems have not been…