Vo.4-Moshirnia-Final

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2013 / Valuing Speech and OSINT in the Face of Judicial Deference 402 Content was coded into video type, content properties, verbal expressions/quotations, and technical features (such as the use of logos). The study established a standard structure for these videos, identifying typical images (specifically transport vehicles and military convoys that are the frequent targets of insurgents), quotations, and identifiers. 94 The effort may lead to a more systematic means of identifying jihadi videos and their origin. Semantic Analysis. Researchers have examined the most frequent words and word-combinations used in particular jihadi forums. 95 By identifying the diction most employed by groups, researchers have taken steps to create automated detection systems which will flag particular forums for review and use language as predictors of imminent events. Social Network Analysis. Links between terrorist web pages, blogs, and discussion forums can be visualized and analyzed in order to detect intergroup cooperation and alliances. 96 While terrorist affiliations are often uncertain, webmining may establish patterns of mutual assistance or antagonism between groups, providing the intelligence community with greater insight into field operations. Web Browsing Pattern Analysis. While monitoring the access points of known terrorist web sites may detect terrorist users, this resource intensive practice is not feasible in part due to floating IP addresses. 97 Instead, researchers have developed models for wide area network monitoring in which a detection system identifies suspected terrorists by analyzing the informational content of websites that those individuals access. 98 Such a method is less likely than direct site monitoring to result in false positives, because cross-referencing has a higher rate of detecting terrorist users who 94 Id. at 277–83. 95 Ahmed Abbasi & Hsinchun Chen, Analysis of Affect Intensities in Extremist Group Forums, in TERRORISM INFORMATICS, supra note 93, at 285 . 96 V. Burris, E. Smith, & A. Strahm, White Supremacist Networks on the Internet, 33.2 SOC. FOCUS 215–35 (2000). 97 Yuval Elovici et al., Content-Based Detection of Terrorists Browsing the Web Using an Advanced Terror Detection System (ATDS), in 3495 INTELLIGENCE AND SECURITY INFORMATICS LECTURE NOTES IN COMPUTER SCIENCE 244, 366 (2005). 98 Id. at 371.
403 Harvard National Security Journal / Vol. 4 access a large amount of clustered suspect content, for example accessing bomb making sites, jihadi sites, and maps of military deployment. 99 These techniques provide multiple avenues to predict and combat terrorism, demonstrating the importance of content rich data. OSINT, be it based on modern automated datamining or traditional human driven analysis, relies on a rich environment of open information. Chilling the production of this information thwarts these valuable efforts, which by some accounts provide the great majority of our actionable intelligence. While the popular consciousness imagines that our intelligence results from secret agents and clandestine meetings, our vital intelligence flows instead from journalists, researchers, and academics. Unfortunately, recent legal positions by the U.S. Government and decisions by the Supreme Court threaten to chill the very speech that forms the foundation of our intelligence analysis. In doing so, the decision harms our nation’s capacity for intelligence gathering and heightens the security threats we face. III. Recent Government Positions Threaten to Chill Valuable Intelligence The Government’s and the Court’s recent legal stances are intended to chill sources of open source intelligence involving terrorists themselves, foreign reporters, and domestic individuals who have had contact with foreign terror organizations. In the trial and appeal of al-Qaeda propagandist, Ali Hamza Al-Bahlul, the Government has advanced the theory that no part of the First Amendment reaches enemy aliens tried in an American courtroom. 100 The chilling effects of HLP are exacerbated by the trial of Al-Bahlul. Taking these precedents together, a future court could merge the broad definition of material support with a solicitation charge decoupled from First Amendment limitations. That is, if the Court may disregard the First Amendment in solicitation cases involving foreign combatants and in material support cases involving Americans who have associated with terrorists, the Government will be emboldened to ignore First Amendment concerns in crimes involving the solicitation of material support for terrorism. The Government has also detained and threatened 99 Id. 100 Reply Brief for Government/Appellee, Al Bahlul v. United States, CMCR (No. 09-001), *5 (2009), available at http://www.defense.gov/news/2%20- %20Prosecution%20Reply%20Brief%20(30%20OCT%2009)%20(58%20pages).pdf [hereinafter Bahlul Reply].
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