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The National Security Clinic is a clinic at The University of Texas Law School where students work on cases relating to national security and terrorism.
For example, we have represented people who are detained in Guantanamo Bay in their Habeas Corpus proceedings in federal court.
We are currently representing a non-profit corporation that has been accused of material support of terrorism.
We're interested in cases where constitutional principles are at stake and where things like fundamental principles like due process of law are at play.
And what we try to do is defend the rule of law, making sure that in criminal prosecutions and in other proceedings,
people's constitutional rights are protected to the maximum extent while the collective norms of security are also pursued.
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So the word "privacy" is not actually found in the Constitution, but we have decades, if not much more, of jurisprudence
that tells us that the right to privacy comes from different places, including the Fourth Amendment to the U.S. Constitution.
The Fourth Amendment tells us that we have the right to be free of unreasonable searches and seizures.
So, for example, when we're stopped by the police, they usually have to have a reason to stop us,
or if we're asked questions by law enforcement, they have to have some reasons to ask us questions.
It's always true that whenever you come into the United States from an international border,
the government has the right to look through your belongings to check that your papers are in order and,
for example, to verify that you are a U.S. citizen and that you have the right to enter back into the country.
It's also true that when you come into an international border, whether it's an airport or- or a highway crossing,
the government has the right to do a routine check of your bags or your other belongings.
That's to make sure that there's no contraband that you're bringing into the country, whether it be agricultural contraband or something much more dangerous than that.
And then, there is also the right to be anonymous in public sometimes.
So for example, public video surveillance has been one of the areas of expanding technology where both the government and civil liberties activists
have struggled to find a balance between making sure that we are surveilling, not just for the sake of surveillance,
but for some actual law enforcement purpose, and at the same time, that we're not subjecting everyone to being tracked all the time.
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In January of 2009, President Obama said he wanted to close Guantanamo by January of 2010, and now that deadline has been missed.
And from the perspective of advocates for the detainees, this is a very unfortunate thing,
because Guantanamo has, of course, come to stand for some of the worst human rights violations in our time.
More importantly, what it means is this: many people who have been ordered freed by U.S. courts,
so people who have won their court cases in which courts looked at all the evidence and said
"I just don't think this person is dangerous, and I don't think this person is an enemy combatant, or whatever new term the Obama administration is using,"
those people are still in jail, and that's a very disturbing phenomenon because in this country we hold very dearly to the principle that
nobody should be deprived of their personal liberty without the due process of law, and we are allowed to go to court and challenge our detention.
That's the writ of habeas corpus, and what the Supreme Court has told us is that that applies across the board to people,
not just U.S. citizens, not just people who are detained within the four corners of the continental United States.
People have a lot of misinformation about Guantanamo and about the people who are detained in Guantanamo
that go back to the original sort of propaganda and information that was laid out by the Bush administration at the beginning of the so-called War on Terror.
And so, a lot of people don't know, for example, that three dozen men have been cleared for release, have been told by courts
"yes, I don't think you did anything wrong and I don't think you are going to be dangerous, so you are free to go," and yet, are still sitting in prison.
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Each evolution of technology really calls for an evolution in the law.
The Transportation and Security Administration has been wanting to use whole-body scanners at airports in a response to the "Christmas Day Bomber,"
and what the TSA said publicly was, these body scanners would've caught something like that, because the scanners allow you to look underneath someone's clothing.
So these whole-body scanners paint, essentially, a picture of the naked human body,
but what they don't do is, they don't pick up items that might be stored in body cavities, whether inside your mouth or somewhere else. So they're not fool-proof.
So really, over-reliance on one set of technologies or one particular type of technology can't help us.
So a bunch of privacy activists asked the TSA, "do these scanners store information? Can they transmit images of naked bodies somewhere else
or are you just making sure that you scan and then that information goes away?
So that you don't have a picture of my naked body that stays with you, or that gets sent out to someone else, or God forbid, put up on the Internet."
And the original answer from the TSA apparently was
"no, no, no, we turn all of those storage capacities off. It can't be stored. It can't be transmitted. A hundred percent no."
And then what the privacy activists uncovered, through a Freedom of Information Act request, was that
in fact, the machines were made capable so that you can store images, and you can transmit those images and share those images.
It's always a challenge for the government to be transparent to the public about the ways in which it uses technology, while at the same time
keeping what it needs to keep secret in order to make the law enforcement activities as effective as possible. That's a tension that exists.
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Well, one of the wonderful things about our system in this country is that the Constitution has as full force in times of war as it does in times of peace.
And both legal jurists as well as lawmakers have recognized that fidelity to constitutional principles is what makes us so great,
and it's what makes us secure, not only in our individual rights and in our individual privacy interests for example, but collectively as well.
I think we have to be cognizant of the fact that we face real dangers out there,
and we want our government to be doing what it can with effective technologies to counter some of the threats that are out there.
On the other hand, I think, as good citizens, we all know where we hit that point where we feel a little uncomfortable, or where we think
"hey I'm not so sure that, even if this helps a little bit, that this is right,"
that we might be sacrificing too much in the way of our civil rights and our civil liberties, and perhaps for ineffective reasons.
It is the job of the government and the job of us as responsible citizens to make sure that that line is drawn between, for example,
public surveillance, video surveillance, photo surveillance and our privacy in a way that makes us feel comfortable.
And that doesn't mean that we're making the country less secure.
What it means is that we're challenging the government to make sure that the use of the technology is both effective and responsible
in a way that doesn't trample on our constitutional liberties.
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