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Revealing A Necessary Evil: The United States Must Continue To Use Some Form of Domesticated Counter-Terrorism Program by Daniel R. Godefroi
Revealing A Necessary Evil: The United States Must Continue To Use Some Form of Domesticated Counter-Terrorism Program by Daniel R. Godefroi
Daniel R. Godefroi*
INTRODUCTION
ragedy often strikes the news when members of military service are
T killed overseas.1 These heroes willingly fight for the general welfare
and safety of United States citizens.2 They know of the dangers and
risks that they have courageously opened themselves up to when
preparing for battle. Unfortunately, on December 2, 2015, tragedy struck
innocent civilians on United States soil.3 Two individuals, armed with
automatic weapons and pipe bombs, walked into a holiday party in San
Bernardino, California and took the lives of fourteen unsuspecting
individuals, and injured an additional twenty-two.4 The victims of this
attack did not sign up to be put in harm’s way.5 An act of terrorism found
them in a place they considered safe — inside the boundaries of the United
* Juris Doctor, New England Law | Boston (2017). B.A., Political Economy, Georgetown
University (2011). I would like to thank my family for their unwavering and continuous
support, as well as the Associates and Editors of the New England Law Review for their
dedication and hard work in editing and improving this paper.
1 See, e.g., Megan Crigger & Laura Santhanam, How Many Americans Have Died in U.S.
Wars?, PBS NEWSHOUR (May 24, 2015, 4:19PM), https://perma.cc/55FN-W4DR.
2 See id.
3 See Everything We Know About the San Bernardino Terror Attack Investigation So Far, L.A.
TIMES (Dec. 14, 2015, 4:03 PM), https://perma.cc/ULU6-DRDE.
4 Id.
5 See id.
51
52 New England Law Review [Vol. 52|1
States.6
Of late, extremist terrorist organizations focused their hatred towards
the United States.7 It would be foolish to think that the possibility of a
large-scale terrorist attack is not possible on domestic soil.8 America will
not soon forget the horror of the events that took place on September 11,
2001.9 These attacks, carried out by Al Qaeda and its leader Osama bin
Laden, tragically affected tens of thousands of American families.10 Since
its inception in 1999, ISIS has been inflicting gruesome acts of terror
worldwide,11 including the attack in San Bernardino.12 The safety of
American lives against radical terrorist groups has never been in more
jeopardy than the present.13
With safety remaining an issue,14 in June 2013, information unfolded
that the NSA had been collecting phone records of millions of Americans
on domestic soil.15 Edward Snowden, a contracted employee of the NSA,
gained access to sensitive information after realizing the extent to which
the agency had stretched its authority.16 The importance of this information
was immediately downplayed by American leadership.17 However, now
6 See id.
7 See Ryan Browne, Top Intelligence Official: ISIS to Attempt U.S. Attacks This Year, CNN
(Feb. 9, 2016, 2:39 PM), https://perma.cc/W5EZ-6R5U.
8 See id; Thomas Peele, Terrorism Poll: After San Bernardino Attack, 71 Percent of California
Voters Believe Another Attack is Likely, MERCURY NEWS (Aug. 11, 2016, 11:10 PM),
https://perma.cc/3LQ5-QZXN.
9 See 9/11 Attacks, HISTORY.COM, https://perma.cc/3J8H-WRW4 (last visited July 11, 2017).
10 Id.
11 See Tim Lister et al., ISIS Goes Global: 143 Attacks in 29 Countries Have Killed 2,043, CNN
(Jan. 16, 2017, 3:02 PM), https://perma.cc/J3BK-SHM3; Karen Yourish, et al., Where ISIS Has
Directed and Inspired Attacks Around the World, N.Y. TIMES (Mar. 22, 2016),
https://perma.cc/4BSX-BQCE; Paris Attacks: What Happened on the Night, BBC NEWS (Dec. 9,
2015), https://perma.cc/E4B5-JJ7X.
12 Michael S. Schmidt & Richard Pérez–Peña, F.B.I. Treating San Bernardino Attack as
The NSA was originally created for the United States to reveal enemy
18 See Malia Zimmerman, Feds Release New Evidence, Seek Link Between San Bernardino
Attack, Prior Terrorist Plot, FOX NEWS (Jan. 29, 2016), https://perma.cc/PM3B-YS42.
19See Geoffrey R. Stone, The View From Inside the NSA Review Group, 63 DRAKE L. REV. 1033,
1035–36 (2015) (“[I]nternational terrorists today can inflict massive damage, using not only
conventional but possible also chemical, biological, and even nuclear weapons. Such attacks
can not only cost billions of dollars of damage and cause thousands of deaths, but they can
also change our culture in fundamental ways by leading us to sacrifice ever more of our civil
liberties and privacy in the quest for national security. The costs of failing to prevent such
attacks, I thought, would be staggering” (internal citations omitted)).
20 See Peter M. Shane, Foreword: The NSA and the Legal Regime for Foreign Intelligence
Surveillance, 10 I/S: J.L. & POL’Y FOR INFO. SOC’Y 259, 292 (2015) (“[O]ur history after 9/11
reinforces the fundamental point that the public is more vigilant about its civil liberties when
it feels safe. The argument, in short, is that without security, there is no liberty.”); Browne,
supra note 7; Peele, supra note 8.
21 See Nathan A. Sales, Domesticating Programmatic Surveillance: Some Thoughts on the NSA
Controversy, 10 I/S: J.L. & POL’Y FOR INFO. SOC’Y 523, 524 (2015) (“The recently disclosed NSA
surveillance programs . . . aim at . . . harnessing the power of big data to detect nascent threats
before they can do harm—and raise the same vital questions about how to balance the
competing demands of national security on the one hand and privacy and civil liberties on the
other.”).
54 New England Law Review [Vol. 52|1
codes during World War II.22 Jurisdictionally, the NSA operates under the
authority of the military, and reports to the director of national
intelligence.23 Unfortunately, the events that took place on September 11
proved that the information the agency had been receiving was not
sufficient to protect the safety of thousands of innocent victims. 24 Within
weeks, Congress implemented the Patriot Act.25 However,
counterintelligence was a focus stemming from before the Patriot Act’s
existence.26 The Foreign Intelligence Surveillance Act (FISA) was enacted
decades prior.27
22 Anna S. Persky, Cover Blown: NSA Surveillance and Secrets, 28 WASH. LAW. 23, 25 (2014)
(explaining the rationale for President Truman’s creation of the NSA in 1952).
23 Id.
24 See Michael T. McCarthy, Recent Developments: USA Patriot Act, 39 HARV. J. ON LEGIS. 435,
436 (2002).
25 Id. at 435 (citing Pub. L. No. 107–56, 115 Stat. 272 (2001)).
26 See Persky, supra note 22; see also Casey J. McGowan, The Relevance of Relevance: Section
215 of the USA PATRIOT Act and the NSA Metadata Collection Program, 82 FORDHAM L. REV.
2399, 2410 (2014); Michael J. Woods, Counterintelligence and Access to Transactional Records: A
Practical History of USA PATRIOT Act Section 215, 1 J. NAT’L SEC. L. & POL’Y 37, 40 (2005).
27 McGowan, supra note 26.
28 Woods, supra note 26 (explaining that in the 1960s–1970s, there were very few standards
Down: Secret Surveillance After the Terror, 57 U. MIAMI L. REV. 1147, 1148 (2003)); Woods, supra
note 26 (alluding to the fact that the executive branch was taking more control over counter-
terrorism activities).
30 McGowan, supra note 26 (justifying the potential breach to privacy by stressing the
for criminal activity.32 FISA was intended to provide a clear dividing line
between foreign intelligence and law enforcement, as “privacy intrusions
are limited to the collection of information for foreign intelligence
purposes.”33
Governing the activities under FISA is the Foreign Intelligence
Surveillance Court (FISC).34 By design, the judges appointed to the FISC
must reside within twenty miles of the District of Columbia. 35 This court
has the power to “hear applications for and grant orders approving
electronic surveillance anywhere within the United States but may not hear
an application that was previously denied by another FISC judge.”36 When
necessary, one can appeal decisions made by the FISC to the Foreign
Intelligence Surveillance Court of Review. 37 This panel of three judges has
the jurisdiction to review any denied FISC application. 38
FISA was not widely recognized until the horrific events of September
11.39 It was drafted based off the technology available prior to 1978, 40 and
follows “cumbersome procedures on our intelligence and law enforcement
officers.”41 From 1979-2000, the FISC received about 600 warrant
applications for electronic surveillance every year, and never rejected a
single application.42 However, following the September 11 attacks, the FISC
the court includes eleven district court judges appointed by the chief justice of the United
States, who must represent at least seven of the federal circuits).
35 § 1803(a).
37 McGowan, supra note 26, at 2411 (citing William C. Banks, And the Wall Came Tumbling
Down: Secret Surveillance After the Terror, 57 U. MIAMI L. REV. 1147, 1171 (2003) (describing the
Foreign Intelligence Surveillance Court of Review as the nation’s most secret appellate court,
which only meets on rare occasions)).
38 § 1803(b); McGowan, supra note 26, at 2411.
39 McGowan, supra note 26, at 2412 (citing Stephen J. Schulhofer, The New World of Foreign
42 McGowan, supra note 26, at 2412 (citing Foreign Intelligence Surveillance Act Court Orders
The goals of the Patriot Act were to provide law enforcement with
more thorough investigatory tools and to deter terrorist attacks from taking
place.49 The Act encouraged the expansion of what the government could
investigate by defining what constituted domestic terrorism.50 Per the Act,
domestic terrorism “includes any dangerous acts that ‘appear to be
attacks which would have been useful in preventing the attacks, if better communication
between agencies was available).
46 Persky, supra note 22 (“One major problem was a gap in the ability to quickly make
connections between phone numbers used by individuals inside the U.S. to phone numbers of
people outside the U.S. who are associated with terrorism.”) (quoting Carrie F. Cordero,
adjunct professor and director of National Security Studies at Georgetown University Law
Center).
47 McCarthy, supra note 24, at 435 (citing Pub. L. No. 107–56, 115 Stat. 272 (2001)).
49 See BERNARD D. REAMS, JR. & MICHAEL P. FORREST, USA PATRIOT ACT: A LEGISLATIVE
The USA Patriot Act: Civil Liberties, the Media, and Public Opinion, 30 FORDHAM URB. L.J. 1429,
1430 (2003) (citing USA PATRIOT Act, Pub. L. No. 107–56, § 802, 115 Stat. 376 (2001)).
2017] U.S. Domestic Counter-Terrorism Programs 57
51 Abdolian & Takooshian, supra note 50 (quoting USA PATRIOT Act of 2001, Pub. L. No.
Down: Secret Surveillance After the Terror, 57 U. MIAMI L. REV. 1147, 1166 (2003)).
55 50 U.S.C. § 1861(a)(2)(B) (2012); McGowan, supra note 26, at 2413 (elaborating that if the
subject of the investigation is a U.S. citizen, then there must be more information than
activities protected by the First Amendment).
56 50 U.S.C. § 1861(b)(2)(A); McGowan, supra note 26, at 2413.
57 McGowan, supra note 26, at 2414.
58 McGowan, supra note 26, at 2415; see James F. McHugh, Book Review, 97 MASS. L. REV.
19, 19 (2015) (reviewing GLENN GREENWALD, NO PLACE TO HIDE: EDWARD SNOWDEN, THE NSA
AND THE U.S. SURVEILLANCE STATE (2014)).
59 McHugh, supra note 58.
60 Devon Ombres, NSA Domestic Surveillance from the PATRIOT ACT to the Freedom Act: The
Underlying History, Constitutional Basis, and the Efforts at Reform, 39 SETON HALL LEGIS. J. 27, 28
(2015), https://perma.cc/P8G6-KPHJ.
61 See McHugh, supra note 58, at 20; CITIZENFOUR, supra note 15.
58 New England Law Review [Vol. 52|1
The first major revelation by Snowden was a FISC order served upon
Verizon,70 one of America’s largest communications companies.71 The
62 See The Whistleblower, supra note 15; CITIZENFOUR, supra note 15 (depicting the steps
Snowden took in order to ensure his safety prior to revealing the information, including use of
encrypted email systems, lying to his girlfriend about his activities, and traveling to Hong
Kong where the secret meetings took place between Snowden and journalists from The
Guardian and The Washington Post).
63 The Whistleblower, supra note 15; CITIZENFOUR, supra note 15 (displaying, ironically,
65 See supra note 61 and accompanying text; see 50 U.S.C. §1851 (2014).
67 See, e.g., McHugh, supra note 58, at 20 (“That revelation [of Snowden being the leaker]
produced a furious media search to locate Snowden and, ultimately, to his departure from
Hong Kong. His immediate destination turned out to be Moscow, where, in August, 2014, he
was granted a three–year visa that keeps him in a limbo status until his ultimate destination is
determined.”); Shane, supra note 20, at 284–85 (aggregating some of the more significant
documents leaked by Snowden in addition to the general information regarding the
programs); CITIZENFOUR, supra note 15 (showing Snowden unable to pass through customs in
Moscow for several weeks after the United States government revoked his passport).
68 See Stone, supra note 19, at 1042 (discussing that the use of these counter–surveillance
programs must be governed by a set of rules); Sales, supra note 21, at 535 (stressing the
importance of allowing the public to participate in debates for the use of these programs).
69 See generally Sales, supra note 21 (emphasizing the importance of governmental use of
Program, 12 COLO. TECH. L.J. 309, 313 (2014); Greenwald, NSA Collecting Phone Records supra
2017] U.S. Domestic Counter-Terrorism Programs 59
note 15; CITIZENFOUR, supra note 15. See generally 50 U.S.C. §1861 (2014) (allowing the
government to have access to certain business records for purposes of intelligence
investigations).
71 See Freiwald, supra note 70.
72 E.g., Joseph D. Mornin, NSA Metadata Collection and the Fourth Amendment, 29 BERKELEY
TECH. L.J. 985, 993–94 (2014) (quoting Amended Memorandum Opinion at 2 n.2, In re
Application of the Fed. Bureau of Investigation for an Order Requiring the Production of
Tangible Things from [Redacted], No. BR 13–109 (FISA Ct. Aug. 29, 2013)); Freiwald, supra
note 70 (quoting Secondary Order, In re Application of the Fed. Bureau of Investigation for an
Order Requiring the Production of Tangible Things, No. 13–80, slip. op. at 2 (FISA Ct. Apr. 25,
2013)).
73 Freiwald, supra note 70, at 314.
74 Freiwald, supra note 70, at 314.
75 Mornin, supra note 72, at 995.
76 Mornin, supra note 72, at 995; Freiwald, supra note 70, at 314–15.
77 Mornin, supra note 72, at 995.
78 Mornin, supra note 72, at 995.
79 Mornin, supra note 72, at 995.
80 Mornin, supra note 72, at 995.
60 New England Law Review [Vol. 52|1
enactment of the USA Freedom Act of 2015.81 Many view the new
legislation—which was intended to be more protective of individual
rights82—to be a positive scheme change. 83 However, a cumulative decrease
in collected data from the loss of such an important counter-terrorism tool
will surely lead to a higher risk of terror acts taking place on American
soil.84
Snowden also unveiled that the NSA was utilizing a program called
PRISM to obtain information from citizens.85 PRISM was given authority
under section 702 of the FISA in 2008.86 The program allows for
governmental access to domestic Google and Yahoo accounts, 87 in a similar
manner to data-mining programs.88 Specifically, under this program:
[T]he NSA targets specific non-Americans who are reasonably
believed to be located outside the country, and also engages in
bulk collection of some foreign-to-foreign communications that
happen to be passing through telecommunications infrastructure
in the United States.89
81 McHugh, supra note 58, at 21; Erin Kelly, Senate Approves USA Freedom Act, USA TODAY
Act . . . . It does not enhance the privacy protections of American citizens. And it surely
undermines American security by taking one more tool from our warfighters at exactly the
wrong time.”) (quoting Mitch McConnell).
85 See Sharon D. Nelson & John W. Simek, Edward Snowden’s Impact: How Will NSA
Revelations Affect the Legal Profession?, 74 OR. ST. B. BULL. 19, 20 (2014); Ombres, supra note 60, at
32; Persky, supra note 22, at 26; Sales, supra note 21, at 526; see also McHugh, supra note 58, at 20;
CITIZENFOUR, supra note 15.
86 McHugh, supra note 58, at 20. See generally CITIZENFOUR, supra note 15 (chronicling
Edward Snowden’s revalation of the NSA surveillance program known as PRISM, among
others).
87 See Nelson & Simek, supra note 85; Ombres, supra note 60, at 32; Persky, supra note 22, at
26; Sales, supra note 21, at 526; Shane, supra note 20, at 284 (elaborating that the Government
also analyzes information from Microsoft, Facebook, PalTalk, YouTube, Skype, AOL, and
Apple); see also McHugh, supra note 58, at 20; CITIZENFOUR, supra note 15.
88 See Sales, supra note 21, at 526 (citing Barton Gellman & Laura Poitras, U.S., British
Intelligence Mining Data from Nine U.S. Internet Companies in Broad Secret Program, WASH. POST
(June 7, 2013), https://perma.cc/2A2D-Z7Z6).
89 Sales, supra note 21, at 526.
90 See Sales, supra note 21, at 526–27.
2017] U.S. Domestic Counter-Terrorism Programs 61
President Obama has publicly showed strong support for the exposure
of the Section 215 and PRISM programs. 98 In support of the revelations, he
articulated, “I welcome this debate. And I think it’s healthy for our
democracy. I think it’s a sign of maturity because probably five . . . six
years ago, we might not have been having this debate.”99 On the contrary,
others have been outspoken about the harm Snowden’s leaks have done to
the security of the United States.100 Individuals in high-ranking counter-
terrorism units have publicly expressed the harm to national security that
Snowden’s actions have caused.101 Ultimately, justification for counter-
Accomplishment: Questioning the National Security Agency’s Metadata Program, 10 I/S: J. L. &
POL’Y FOR INFO. SOC’Y 407, 407 (2015).
99 Id. (quoting President Barack Obama, Statement by the President at the Fairmont Hotel,
these disclosures have caused significant and irreversible harm to the security of the nation.’”)
(citing Billy Kenber, Outgoing Director Robert S. Mueller, III Tells How 9/11 Reshaped FBI Mission,
WASH. POST. (Aug. 22, 2013), https://perma.cc/UHH2-SH7W).
102 See id. at 410–11 (2015) (quoting Jim Harper, John Mueller, & Mark Stewart, Comments
on Notice of Proposed Rulemaking: Passenger Screening Using Advanced Imaging Technology, TSA–
2013–0004 (RIN 1653–AA67), CATO INST. (June 21, 2013), https://perma.cc/Q6H2-JXTW).
103 See Sales, supra note 21, at 532 (“The critical question is how to take advantage of its
potentially significant national security benefits without running afoul of fundamental civil
liberties and privacy values.”). See generally Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138
(2013) (holding that FISA did not purport an injury on the plaintiff when collecting data);
Klayman v. Obama, 957 F. Supp. 2d 1 (2013), rev’d, 800 F.3d 559 (2015) (examining how the
district court determined the collection of metadata to be an “arbitrary invasion” of privacy);
Elizabeth Atkins, Spying on Americans: At What Point Does the NSA’s Collection and Searching of
Metadata Violate the Fourth Amendment?, 10 WASH. J.L. TECH. & ARTS 51 (2014); Randy Barnett,
Why the NSA Data Seizures are Unconstitutional, 38 HARV. J.L. & PUB. POL’Y 3 (2015); Ted
Claypoole, Constitutionality of NSA Cybersurveillance: Early Cases Split Between Privacy and
Counterespionage, 10 SCITECH LAW. 10 (2014); Mastracci, supra note 49; Mueller & Stewart, supra
note 98.
104 See Barnett, supra note 103 (stating that—statutory authority aside—the surveillance
programs breach the protected expectation of privacy); see also Atkins, supra note 103, at 70–74
(discussing recent challenges to the use of these programs); Greenwald, NSA Collecting Phone
Records, supra note 15.
105 Stone, supra note 19, at 1041 (“The Review Group found no evidence that the NSA had
should be adopted through open and transparent debates that allow an informed public to
meaningfully participate. The systems also should be operated in as transparent a manner as
possible.”); Stone, supra note 19, at 1042 (“The future of our nation depends not only on the
NSA doing its job, but also on the existence of clear, definitive, and carefully enforced rules
and restrictions governing its activities.”); see Mueller & Stewart, supra note 98 (clarifying that
2017] U.S. Domestic Counter-Terrorism Programs 63
absolutely necessary for the general welfare and safety of the United States
to prevent terrorism.107
while the point of their Note was not to get caught up in the secrecy of the program—there is
a debate in the overall secrecy of the programs run by the NSA).
107 See generally Sales, supra note 21 (emphasizing that these surveillance techniques can be
data mining techniques to capture insights that may assist the legitimate needs of law
enforcement. But queries may also expose a great deal of private information about innocent
people.”); Sales, supra note 21, at 531–41 (discussing many structural considerations that
should be emphasized to ensure the safety of the collected data).
112 See CITIZENFOUR, supra note 15 (“The NSA has built the world’s largest repository for
intercepted communication in Bluffdale, Utah.”); see also Sales, supra note 21, at 531–41.
113 Mark D. Young, National Insecurity: The Impacts of Illegal Disclosures of Classified
Information, 10 I/S: J. L. & POL’Y FOR INFO. SOC’Y 367, 368 (2015).
114 See Sales, supra note 21, at 540–41.
115 See Mornin, supra note 72, at 1000 (“Metadata can expose private information on three
distinct levels: first, records of individual calls; second, a caller’s records collected over time;
and third, an aggregation of many callers records.”) (internal citation omitted); Sales, supra
note 21, at 536 (explaining the concept of an “anti–mission–creep” principle and how it should
be enforced in counterterrorist programs).
116 Sales, supra note 21, at 536 (“Bulk data collection should only be used to investigate and
64 New England Law Review [Vol. 52|1
could lead to an even stronger public outcry.117 Because of this potential for
abuse, there should be no exceptions to using the information solely for
national security interests.118 However, when weighing the interests
between overall public safety and individual privacy—the need for these
programs justifies the collection of potentially sensitive information to
prevent deadly attacks from organizations that wish harm upon
Americans.119
Operational concerns with the collection of data are also warranted —
including both external and internal oversight. 120 Perhaps more important
still are the ideas of minimization requirements and technological
safeguards.121 Minimization requirements set limits on an acceptable use of
the data, including the approved length of time to retain such information
and permissible scope of use.122 Technological safeguards additionally offer
protection by restricting access to information as well as tracking where it
goes.123 The government should be taking every precaution in keeping this
information safe—however, that does not seem to be the case.124 A failure
to keep information safe will create more public concerns about privacy
interests.125 Yet, as long as the NSA can protect their collected data, they
can justify its bulk collection.126 Ultimately, it is necessary for the
prevent terrorism, espionage, and other serious threats to the national security. It should be
off limits in regular criminal investigations.”).
117 Sales, supra note 21, at 532 (“The possibility of abuse makes it critical to establish a set of
other national security perils can be so significant that we as a nation may be willing to
sanction extraordinary investigative techniques like bulk data collection.”).
120
Sales, supra note 21, at 536–40.
121
Sales, supra note 21, at 540–41.
122 Sales, supra note 21, at 540 (“Minimization rules limit what the government may do
with data that does not appear pertinent to a national security investigation—e.g., how long it
may be retained, the conditions under which it will be stored, the rules for accessing it, the
purposes for which it may be used, the entities with which it may be shared and so on.”).
123
Sales, supra note 21, at 540–41.
124
Max Cherney, The FBI Says It Can’t Find Hackers to Hire Because They All Smoke Pot, VICE:
MOTHERBOARD (May 21, 2014, 11:05 AM), http://motherboard.vice.com/read/the-fbi-cant-find-
hackers-that-dont-smoke-pot [https://perma.cc/XMF6-2MNH] (explaining that qualified
computer experts seek employment elsewhere where they can get higher pay and less
restrictions).
125 See Claypoole, supra note 103, at 25.
126 See Yoo, supra note 40, at 325. See generally Sales, supra note 21 (discussing the dynamics
2017] U.S. Domestic Counter-Terrorism Programs 65
they have a tendency to overreact under the concept of “better safe than sorry”).
131 Stone, supra note 19, at 1033–34.
132 Stone, supra note 19, at 1036 (quoting JACK GOLFSMITH, THE TERROR PRESIDENCY 73
(2007)).
133 Stone, supra note 19, at 1036.
66 New England Law Review [Vol. 52|1
quintessential importance.134
Not only have attacks become increasingly more difficult to identify,135
the potential damage that can be inflicted upon unsuspecting victims can
be catastrophic.136 Modern day technology allows for terrorists to inflict
damage on a terrifying level.137 Developments in chemical, biological, and
nuclear weaponry can lead to thousands of deaths and can cause billions of
dollars in damage.138 Failing to prevent an attack on this scale would have a
catastrophic effect on American society.139 Failure to prevent such an attack
is not an option.140
Additionally, terrorists using modern technology are able to
communicate with one another from all over the world. 141 It is essential to
maintain a process of defending our nation against terrorist threats. 142
Stressing the necessity of protection:
An effort to prevent attacks on the scale of 9/11 . . . might yield
meaningful information only once in a decade. Failing to prevent
such an attack, though, would be catastrophic. Thus, the
[counter-terrorisms programs were] analogous to a fire alarm in
one’s home. It might save your life only once a decade, but that
doesn’t mean you toss it out.143
142 See id. at 1050 (emphasizing the harm of an attack using modern technology).
143 Id.
144 See generally Sales, supra note 21 (clarifying the necessity to use counter–terrorism
programs). See also Stone, supra note 19, at 1050 (determining that the potential value to a
properly run counter–terrorism program is immense).
2017] U.S. Domestic Counter-Terrorism Programs 67
CONCLUSION
The section 215 and PRISM programs should have never been carried
out in secrecy.148 Edward Snowden was selfless in uprooting his entire life
in order to inform the public about the two programs. 149 Although these
programs are far from universally accepted,150 the potential prevention of
terrorist attacks in the United States makes them necessary. 151 Americans
are not immune from another high-impact attack on home soil.152 With the
likely probability that an attack is imminent, 153 extreme counter-terrorism
measures, such as the Section 215 and PRISM programs must be taken. 154
Programs of this nature are necessary for ensuring the safety of American
lives against extremist terrorist groups.155
151 Browne, supra note 7; Peele, supra note 8; Stone, supra note 19, at 1035–36; Sales, supra