Vo.4-Moshirnia-Final

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2013 / Valuing Speech and OSINT in the Face of Judicial Deference 388 HLP not only appears to be constitutionally dubious, but it will also likely decrease the ability of the intelligence community to fight the war on terror. Deviating from established jurisprudence to protect § 2339B will likely rob us of valuable OSINT at exactly the time when the need for OSINT is most acute. Fear of terrorism and a desire to defer to the executive caused the Court to underestimate the dangers of chilling domestic and foreign speech, including—most ironically—speech that is necessary to advance counterterrorism initiatives. 8 These policies threaten academics, journalists, and other individuals with access to terrorists groups who produce OSINT, a vital stream of information for a domestic understanding and prosecution of the war on terror. 9 While each of these positions is individually harmful, in combination they will exact far more damage on the Government’s intelligence efforts. Part II of this Article details the vital importance of OSINT in the war on terror, repeated Congressional findings of the same, and recommendations for stronger OSINT collection, analysis, and dissemination. 10 Part III of this Article explores three recent examples—two by the Executive Branch and one by the Supreme Court—of government actions that disrupt OSINT. The three examples discussed in Part III are (1) the Executive Branch’s view that “incitement” speech—a category of speech that receives no First Amendment protection—is broader in scope in the context of an enemy alien’s solicitation trial; (2) the Executive Branch’s treatment and detention of foreign reporters; and (3) the Supreme Court’s adoption of an expansive definition of a material support statute in Holder v. Humanitarian Law Project. 11 This case is given special attention because it provided the Court with an opportunity to value speech and because recent jurisprudence counseled a different result. Part IV of this Article discusses the dangers of chilling both domestic and foreign speech and why this chilling implicates OSINT. 12 Part V of this Article discusses the possible 8 For the proposition that these holdings arise out of a desire to defer to the executive see, for example, HLP, 130 S. Ct. at 2727–30. See also id. at 2727 (finding that “evaluation of the facts by the Executive, like Congress’s assessment, is entitled to deference”). 9 Brief for the Academic Researchers and the Citizen Media Law Project as Amici Curiae Supporting Respondents/Cross-Petitioners, Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010) (Nos. 08-1498, 09-89) 2009 WL 4271309 [hereinafter CMLP Brief]. 10 Infra text accompanying notes 14–99. 11 Infra text accompanying notes 100–257. 12 Infra text accompanying notes 258–288.
389 Harvard National Security Journal / Vol. 4 impact of the positions of the Government on Crisis Mapping, a technology greatly aiding intelligence gathering and the coordination of humanitarian efforts. 13 Part VI concludes, arguing that the Court should have halted the governments continued policy of chilling speech. The Court’s flirtation with a return to the tradition of restricting speech out of blind deference to military concerns has far reaching implications for how we approach the First Amendment, foreign policy, journalism, human rights, military intelligence and national security. II. The Importance of OSINT While the Government surely intends to increase U.S. security by limiting speech activities tied to terrorism, the removal of vital intelligence sources will put the United States in a more vulnerable position. This Part provides a definition of OSINT, a history of the United States’ approach to gathering this valuable intelligence, and the particular importance of OSINT in the war on terror. Separately, this Part provides an introduction to Crisis Mapping, perhaps the most powerful new use of OSINT that assists in intelligence gathering and coordinating humanitarian assistance. OSINT is defined as “the systematic collection, processing, analysis and production, classification and dissemination of information derived from sources openly available to and legally accessible by the public in response to particular Government requirements serving national security.” 14 OSINT is commonly derived from newspapers, journals, radio, television, and the Internet. 15 Analysts and military commanders estimate that 80 to 90 percent of U.S. intelligence comes from open sources. 16 13 Infra text accompanying notes 289–369. 14 FLORIAN SCHAURER & JAN STORGER, OSINT REPORT 3/2010 2 (2010). 15 See RICHARD A. BEST, JR. & ALFRED CUMMING, CONG. RESEARCH SERV., RL 34270, OPEN SOURCE INTELLIGENCE (OSINT): ISSUES FOR CONGRESS, 5–6 (2007), available at http://www.fas.org/sgp/crs/intel/RL34270.pdf, [hereinafter CRS REPORT]. See also Noah Shachtman, All-Seeing Blimp on the Rise, http://noahshachtman.com/blog/page/63 (quoting Rear Adm. Ronald Henderson, deputy director of operations for the Joint Staff, “I spend a lot of time watching TV because—if you think about it—it’s the best intelligence network in the world”). 16 See NORTH ATLANTIC TREATY ORGANIZATION [NATO], OPEN SOURCE INTELLIGENCE READER 17 (2002); Robert David Steele, Open Source Intelligence, in STRATEGIC INTELLIGENCE: THE INTELLIGENCE CYCLE 98 (Loch Johnson ed., 2007).
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Vo.4-Moshirnia-Final

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