National security experts say serious threats from cyber and Internet terrorism that crosses geographic boundaries are rendering traditional methods of law enforcement and tracking elusive.

“Instead of a linear threat, we have diversified threats coming from all over,” said David S. Kris, the assistant attorney general for National Security at the U.S. Department of Justice.  “Organizations and individuals have become self-radicalized over the Internet, with aspirations to exert force on the United States and our interests outside.”  Kris noted that many are less organized and trained than traditional terrorists; however, they leave fewer footprints online, making it more difficult to decipher where threats are originating and how to effectively deal with them.

Speakers — all from federal agencies charged with national security — were part of the 20th Annual Review of the Field of National Security Law held at the Renaissance Hotel in Washington, D.C. on Nov. 4 and 5.

Robert Liff, general counsel of the Office of the Director of National Intelligence, noted that the legal framework in the United States is not keeping pace with the threats.  He likens the legal challenge to running as fast as you can to stay in the same place, in part because the delineation of power between intelligence agencies and law enforcement can be ambiguous.  Liff and others on the panel reinforced the necessity of having a dynamic legal framework in order to meet national security needs.

Because state boundaries and specific terrorist organization lines have become clouded, in many instances it is difficult to decide which law enforcement agency has jurisdiction over a given threat. 

”The president needs to decide which tool to use in different circumstances,” said Robert J. Eatinger Jr., acting deputy general counsel for Operations, CIA.  “Our policies need to be broad, permitting flexibility in our response,” he added.  “There is no clear rule book for intelligence,” Eatinger recommends law enforcement agencies work with Congress to engage “smartly and safely to sharpen tools in order to keep up with the changing security threat picture.”

Different agencies need to work together to enhance security and protect the U.S. against cyber threats,” said Joseph Maher, deputy general counsel, U.S. Department of Homeland Security, who noted that terrorists go to great lengths to avoid security and tracking measures on the Internet and in cyberspace. They do not employ techniques that any one agency can protect against.  

According to the panel, issues of cyber security and the corresponding evolving threats continue to be a growing problem for the United States. In order to effectively mitigate these threats, more clarity in the law is needed, and guidelines for federal agencies need to be updated so that responsibilities can be better coordinated.  

Speakers were part of the 20th Annual Review of the Field of National Security Law on Nov. 4-5 co-sponsored by the American Bar Association Standing Committee on Law and National Security, the Center for National Security Law at the University of Virginia School of Law, and the Center on Law, Ethics and National Security at Duke University School of Law.

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American Bar Association
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