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Blum Paper Explores Unused CT Laws

Lawmakers rushed to pass legislation in the wake of the Sept. 11 attacks to calm an anxious population.

Ten years on, however, some hotly debated counterterrorism laws have gone unused. And that could lead to security gaps, argues Stephanie Blum in a paper to be published in March in the Lewis and Clark Law Review.

Blum is a 2008 graduate of the Naval Postgraduate School Center for Homeland Defense and Security, an attorney with the Office of General Counsel at the Department of Homeland Security, and an adjunct law professor and instructor at Michigan State University.

Her latest academic paper continues with themes she began writing about while a CHDS student, which she has parlayed into a book, book chapters and academic journal articles.

While much has been written about counterterrorism laws that are used, Blum wanted to investigate unused counterterrorism laws. She found that the Alien Terrorist Removal Court, a section of the Patriot Act, and the so-called "lone-wolf" amendment to the Foreign Intelligence Surveillance Act (FISA), while highly touted by backers have never been used by the government.

"If you look at the rhetoric before these laws were passed, different lawmakers emphasized the unique threat posed by terrorists and how these tools were going to be essential in meeting the terrorist threat. But then these tools are not used at all," Blum said. "I wanted to explore this disconnect and see if there were any patterns or explanations for their non-use in order to draw insights for future counterterrorism policies," Blum explained. "There are a lot of laws that don’t get used – adultery, jaywalking – but terrorism is a significant threat facing this nation and if Congress is spending time and resources enacting laws premised on this threat, but then the executive branch fails to use them, it calls into question whether the government understands the threat and the tools needed to combat it."

She found the trio of laws falls into a murky legal milieu: Some argue the tools are not being used because the measures give suspects too many rights, while others contend the measures would be found unconstitutional were they ever challenged in court. The latter led to the title of the article, "’Use It and Lose It: An Exploration of Unused Counterterrorism Laws and Implications for Future Counterterrorism Policies."

"You have these competing simultaneous narratives of the laws providing both too few and too many rights," Blum notes. "Perhaps these laws were compromised to death."

For instance, the Alien Terrorist Removal Court, which pre-dates the Sept. 11 attacks by five years, has gone unused. Blum recalled that when this act was revisited by Congress post-9/11, some House members believed the act did not provide enough due process protections and wished to revise it. In the Senate, conversely, some members felt the act provided too much protection for suspected alien terrorists making it unworkable. Neither version passed but they demonstrate these competing narratives.

These competing narratives are more than a curiosity; Blum believes that the lack of finely tuned, useful legislation could result in a security gap. This occurs notably with the FISA lone-wolf amendment, which only applies to foreign nationals and not U.S. persons (i.e. citizens or legal permanent residents). "One of our biggest threats is lone-wolves and that of course includes U.S. persons, just think about the Fort Hood shootings in November 2009 that was perpetrated by a citizen," Blum explained. "I think if we need the flexibility that the lone wolf amendment provides – that the government insists we need – then it should be broadened to encompass lone wolves who are U.S. persons," Blum said. On the other hand, she concedes that the lone wolf amendment may not be needed at all because a traditional criminal warrant is sufficient. Her concern is with treating lone wolves differently based on whether they are U.S. persons. "It is the status quo position that seems so unsatisfactory," she noted. She acknowledges that broadening the lone wolf amendment to encompass U.S. persons would be met with strenuous opposition but she thinks it would be constitutional.

This journal article follows similar themes Blum has written about in the past. She expanded her CHDS thesis into a book, titled "The Necessary Evil of Preventive Detention in the War on Terror, a Plan for a More Moderate and Sustainable Solution" (Cambria Press, November 2008). Her time at CHDS whetted an untapped appetite for writing, especially on homeland security topics. Her academic writing "is a way to continually learn," she noted.

"I had never written any kind of published article before," Blum recalled. "Of course I had written many legal briefs. But CHDS opened my eyes to academic writing and since my thesis and book; I know that I will continue to write the rest of my career. It is sort of like a new hobby."