The Islamic State Makes Electronic Surveillance Respectable Again

What a difference a year makes.

Last September, Brazilian President Dilma Rousseff captured the world’s mood when she opened the U.N. General Assembly with a withering rebuke of America’s massive electronic surveillance program.

On Wednesday, President Barack Obama, fresh from ordering up airstrikes against Islamic extremists in Syria, will strike a different tone, calling on the international community to ramp up surveillance of legions of foreign jihadists fighting alongside the self-styled Islamic State in Syria and Iraq.

And he is likely to find a receptive audience.

The U.N. Security Council is poised to endorse a U.S.-drafted resolution that would require governments to grant law enforcement authorities wider scope to monitor and suppress the travel and other activities of suspected local jihadists.

European powers such as Belgium, Britain, France, and Germany are updating their laws and policies to strengthen government monitoring authority and, if necessary, to prevent anyone suspected of pursuing military glory in battlefields from Somalia to the Middle East from traveling. From the White House Tuesday, Obama drove home the message, saying that the United States and 40 allies aim "to cut off ISIL’s financing; to counter its hateful ideology; and to stop the flow of fighters into and out of the region." (The Islamic State is also known as ISIL and ISIS.)

British officials proposed a law that would strip suspected terrorists of their U.K. citizenship, rendering them stateless. The French government can now seize suspected militants’ passports or identification cards. For those who return from fighting abroad, numerous European law enforcement agencies are looking to trace them.

"If they come back, you have to have very tight surveillance because these people are dangerous — very dangerous," French Foreign Minister Laurent Fabius said Monday at the Council on Foreign Relations.

Fabius said his government wants to connect with suspected militants’ friends, family, and neighbors. "You have to establish a channel between the families and the authorities in order to make it possible for the families … to alarm" the authorities, he said.

The debate in France and other European countries reflects the degree to which discussions about surveillance on the continent no longer fixate on the NSA’s massive electronic spying that contractor Edward Snowden revealed when he leaked the spy agency’s internal documents.

Americans are also less worried about privacy now, according to Stephen Vladeck, a law professor at American University.

The USA Freedom Act, which would restrict the NSA’s prying, is stalled in the Senate. "There was a lot of movement on surveillance reform in Congress … but it has been totally overtaken by ISIS," Vladeck said. "The Senate will still have to pass something, but the urgency is gone." The House already approved its version of the bill.

The West has moved from a "reactionary punishment paradigm to a prevention paradigm," he added. Governments must "strangle" terrorist assets and "restrain" their physical movement. However, "many of the restraints don’t come with [legal] safeguards" built into the traditional criminal justice system, he said.

NATO Secretary-General Anders Fogh Rasmussen said that the West’s largest security alliance is strengthening its own intelligence cooperation to confront the threat posed by foreign fighters returning to the United States and Europe from the Middle East and elsewhere. Rasmussen, a former liberal Danish prime minister, said he recognizes the risks of curtailing civil liberties.

"We are struggling with that issue," he said in an interview. "The mood is clear that we are faced with a clear and real threat from these foreign fighters and that we need to take measures to counter that threat, including through intensified exchange of intelligence and information. But of course the mood is still and will, I think in democratic societies, always be that you will need to strike the right balance [between] on the one hand the necessary surveillance but on the other hand also civil liberties. That goes without saying but that’s not easy; it’s really not easy."

Human rights groups criticize the resolution pending before the U.N. and say Western governments are exaggerating ISIS’s threat, at least in the United States, and that the proposal could lead to racial profiling of Muslim communities.

"[T]here is still more chance of dying from a mis-hit golf shot than from an ISIS attack in the United States," said Richard Barrett, a counterterrorism analyst at the New York-based Soufan Group who previously tracked Islamic terrorists for the U.N. Security Council. Barrett said the U.S. resolution comes close to "cutting across civil liberties and individual rights…. I think the freedom to travel is a basic freedom."

He also predicted that the resolution’s warning to avoid racial profiling will be ignored.

"I wouldn’t be surprised if most people with long beards and skullcaps will be taken out of line before the guy with the polo shirt."

Andrea Prasow, deputy Washington director at Human Rights Watch, said the proposal is "rampant" with potential due-process violations.

"Nowhere does it articulate by what process would [suspects] be denied of their right to travel," she said. And some provisions "promote the idea that people can be prosecuted for their thoughts and their beliefs, but not their actions. It does not articulate any actual criminal conduct as a prerequisite for detention."

Matthew Waxman, a Columbia University law professor, says the "huge debates" in Europe about excessive American espionage seem "to be muted now." Whether that’s "because they were simply overtaken by the hotter issues of the day or whether internal discussion of the threat is actually suppressing some of the concerns about intelligence activities" is unclear.