Jane Harman Now Targeting Individual CyberTargets with Drone Court

Jane Harman’s advocacy for a drone court suffers from the same problem I touched on here (and will lay out at more length in the next day or so): before you can have a Drone and/or Targeted Killing Court, you need some law the court will apply. Harman seems to envision just applying the standards the Executive — not Congress — came up with, which isn’t how Schoolhouse Rock taught me the government is supposed to work.

Congress, in her model, would just be fully apprised of what goes on in the Drone and/or Targeted Killing Court, not write law to limit what can be approved.

But I’m more interested — alarmed, really — by the way Harman seamlessly adds cybertargeting to her advocacy.

The FISA court, renamed the CT Court, could also oversee drones and cyber. A FISA court application must show that specific individuals are connected to a foreign power – which is defined, in part, as a group engaged in international terrorism. Drone and cyber applications could (1) list the individual/cyber target against whom the lethal operation is directed and (2) submit a finding of probable cause that the individual/cyber target is connected to a foreign power, is in a senior operational capacity and poses an imminent threat of violent attack against the United States.

Approved applications for drone strikes and cyberattacks would need to be renewed after a certain period, and discontinued if evidence is presented that the targets no longer meet the criteria. [my emphasis]

Granted, it would have been nice if the government had had to go to a court to explain why a publisher like WikiLeaks should be targeted with a persistent DNS attack, assuming that’s what happened. But given that both our FISA targeting and our targeting killing targeting probably allow for far too much abuse of the First Amendment, I’m not convinced the FISA Court would have noted the problem with that incident of prior restraint.

More generally, though, isn’t Harman’s neat inclusion of cyber targeting here a hint that our cyberattacks have gone beyond just Iran and WikiLeaks?

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

15 replies
  1. Teddy says:

    You are not still following the Schoolhouse Rock Model of Governance, and nothing you say can make me think you are.

    Can’t kid a kidder.

  2. SpanishInquisition says:

    “FISA court application must show that specific individuals are connected to a foreign power – which is defined, in part, as a group engaged in international terrorism”

    Does that mean someone like a Greenpeace executive could be hit? I don’t see the relationship between foreign power and international terrorism…this just seems to blur the distinction between state and non-state actors.

  3. peasantparty says:

    “More generally, though, isn’t Harman’s neat inclusion of cyber targeting here a hint that our cyberattacks have gone beyond just Iran and WikiLeaks?”

    Good Gobs of Goose Grease! (wink)

  4. joanneleon says:

    Is she talking about killing hackers here?

    “Drone and cyber applications could (1) list the individual/cyber target against whom the lethal operation is directed”

    At first I thought it meant that they’d specify someone they intend to hit with a cyber attack, not a Hellfire missile. But this is talking about lethal operations.

  5. x174 says:

    Harman defended the Bush administration’s use of international (cross-border) warrantless wiretapping through the National Security Agency, saying: “I believe the program is essential to U.S. national security and that its disclosure has damaged critical intelligence capabilities.”(Wikipedia).

    Oh, that Jane Harman, the intellectual.

  6. x174 says:

    Following reports in April 2009 of her conversations being recorded without her knowledge, she appeared to take a different stance regarding wholly domestic wiretaps. (Wikipedia)

    Oh, that Jane Harman, the crusader for privacy!

  7. what constitution says:

    So Jane figures that if they bought off on killing Americans overseas for hatin’ ‘Murika, it’s just such a short little step to killin’ anyone, wherever, for messin’ with ‘puters in a bad way. Next stop, speeding. Then littering. Then rooting for the Cubs. We’re only, after all, haggling over price once the main principle is established.

    Actually, it would be nice to ask Jane where she thinks the “line” is where people should “still” be entitled to be tried, allowed to confront witnesses against them, have a jury of peers — any of those quaint old notions. Apparently, however, none of those things are necessary if somebody might be contemplating using a computer to bad ends.

    In the meantime, the palpable overreaching in this proposal only demonstrates the wisdom of the Constitution in preventing a government from presuming to decide which “crimes” it would, and which it would not, allow to be subjected to rules of prosecution subject to a presumption that people have rights which the government cannot ignore.

  8. Kathleen says:

    Jane “waddling on over” Harman at it again.
    News alert:
    ’5 Broken Cameras’ director detained in LAX on way to Oscars

    37 years ago Vanessa Redgrave spoke out when she was receiving her Oscar about how “Zionist thugs” were protesting her and her film Palestine. She was basically run out of Hollywood. Now a Palestinian’s film 5 Broken Cameras up for an Oscar but the film maker detained at the LAX airport. America and the I lobby

  9. Kathleen says:

    This program will be live in 15 minutes on the Diane Rehm show. Hope some of you brilliant EW folks call, or contact the show with your well informed comments and questions.

    15 minutes will be on air

    Jess Bravin: “The Terror Courts: Rough Justice At Guantanamo Bay”
    In the aftermath of the Sept. 11 attacks, the U.S. rounded up hundreds of suspected terrorists in Afghanistan and around the world. Many ended up at a special military detention center in Guantanamo Bay, Cuba, where they would face what officials called “rough justice.” Instead of trials in military, federal or state courts, enemy aliens would be prosecuted by military commissions subject to the president’s command. Wall Street Journal correspondent Jess Bravin and Lt. Col. Stuart Couch, former senior prosecutor in the Office of Military Commissions, describe the complex ethical and legal challenges dogging the Guantanamo Commissions.
    Join the show:

    [email protected]
    Find us on Facebook
    Follow us on Twitter

  10. emptywheel says:

    @SpanishInquisition: Actually,the target just has to be foreign, not tied to a foreign power. She’s bullshitting there.

    And yes, a Greenpeace exec can be hit. Julian Assange and everyone he has spoken to can be. My mother in law can be.

  11. pdaly says:

    Jane Harmon interviews Janet Napolitano (broadcast 1/2013 on c-span).

    Harmon refers to cyberwarfare/etc with the shortened term “Cyber.” Her first question to Napolitano is what a cyber 9/11 would look like. Napolitano mentions electric grid as first exampe. Neither brought up California “brown outs” caused by greedy energy companies as an example of cyber 9/11.

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