Argument

Uncivil Society

Why Egypt's new law regulating NGOs is still criminal.

On June 4, an Egyptian criminal court sentenced 43 people to prison on charges of membership in illegal organizations. It was a familiar scenario for anyone who worked on human rights under Hosni Mubarak, when activists regularly criticized the roundup of hundreds of Muslim Brotherhood members and their prosecution on the same charges. This time, however, the defendants were Egyptian and international staff of U.S. and German nongovernmental organizations. International law is clear on the issue: Membership in an unregistered organization should not in and of itself amount to a crime.

Yet the Egyptian presidency's latest draft of the new law governing NGOs would not prevent a repeat of the June 4 verdict. The presidency claims that the new draft law has no criminal penalties, yet this is misleading. The draft clearly states that the law's penalties would not supersede the harsher penalties in the penal code. By this means, the draft law incorporates the vague language of the penal code criminalizing "membership in an illegal organization," allowing staff of these organizations to be charged with a crime for simply going into the office.

The presidency's May 29 draft is better than an earlier horrific draft from the Justice Ministry, and the draft has improved somewhat over the past two months. The draft, however, is still deeply repressive and violates Egypt's international obligations. This is a technical, not a political, assessment. The key test of an association law is whether organizations will be able to operate freely, without interference from the executive, and independently, with access to funding to enable their survival.

I have followed the passage of this NGO law for two years. Initially, I was cautiously optimistic because the first draft produced in April 2012 by the Freedom and Justice Party, the Muslim Brotherhood's political party, was relatively liberal. By this February, however, when the party submitted its new draft eight months into President Mohamed Morsy's rule, it became clear that the party had changed course. The new draft incorporated some of the worst language on foreign organizations and foreign funding taken from the draft prepared by the Social Affairs Ministry, long a front for the security agencies that monitor NGOs.

The presidency's draft would reinforce and formalize state control over NGOs by empowering the authorities to deny them access to both domestic and international funding. Last week, when I spoke at a side event at the U.N. Human Rights Council in Geneva, the U.N. special rapporteur on freedom of association stressed that the right of association goes hand in hand with, and depends on, the right to access funding. The presidency's draft law would give the Egyptian government unlimited power to object to any group's domestic fundraising or its right to obtain foreign funds.

The draft law would also give the authorities complete discretion to object to any of the activities of Egyptian and international organizations. If the organization did not comply, the government could take it to court.

Contrary to what a representative of the Egyptian presidency has claimed, the authorities' discretion to object is unlimited in both these provisions. The only requirement is that the objection must be "justified." Under Mubarak, the government's security agencies would often refuse human rights organizations' requests to seek foreign funding to carry out projects on torture, citing unexplained "security reasons" -- and this was deemed sufficient.

The draft law contains no safeguards if the government should decide to cripple an organization working, say, on projects related to early marriage or the rights of religious minorities, by consistently denying it access to funding. Egypt's own human rights community will be particularly vulnerable. Foreign funding has always been its lifeline because, under Mubarak, Egyptian businessmen didn't dare fund a human rights organization.

In contrast, when it comes to the registration of Egyptian groups, the draft law is an improvement on the existing law. It states that the government may only object on two grounds: if the group is involved in military activities, or if its activities are for profit. Had the presidency wished to ensure transparency and protect civil society groups from arbitrary interference, it could have similarly limited to these specific grounds the authorities' power to object to organizations' activities.

The presidency's draft reflects deep-seated official paranoia about the role of international organizations in Egypt. That paranoia also surfaced during the 2011 uprising, when the military raided a key human rights organization, the Hisham Mubarak Law Center, and detained 27 human rights defenders. Later that year, the authorities carried out the raids and investigations of the NGOs that ended in the 43 sentences handed down on June 4. By treating NGO staff as potential foreign agents, this draft law marks the latest example of this unfortunate trend.

International law does not allow governments to discriminate between domestic and international NGOs that are operating legally in their respective countries. The draft law, however, would establish a special committee, whose members would probably include Egypt's security agencies, to "monitor" foreign organizations. The committee could arbitrarily limit international groups' activities on vague grounds such as "national sovereignty" -- an accusation frequently used against groups that criticize rights abuses in Egypt.

The draft even insists that any Egyptian organization wishing to cooperate with an international organization must notify the authorities beforehand. It must also seek the authorities' permission before it can join an international organization or entity. Failure to do so would make the organization liable for penalties, including a court order that the group should suspend its activities or, ultimately, face dissolution.

Egypt's transition has been a messy process in which successive governments, including Morsy's, have failed to make crucial institutional reforms or address issues of accountability and social justice. Police abuses continue: Egypt has witnessed rising deaths in custody and excessive use of force in dealing with public protests, and there has been continuing impunity for police and military crimes. Criminal defamation and blasphemy prosecutions are also rising, and Egypt's parliament is in the process of drafting a repressive demonstrations law that would give the police overly broad discretion to violently disperse demonstrations.

Two years ago, Egyptians stopped being afraid of the police state that Mubarak had erected. This fact still provides the greatest hope that they will persist in demanding social justice, reform, and accountability from their government -- through their elected representatives but also collectively, through groups ranging from small neighborhood associations to high-profile human rights organizations.

A liberal NGO law is key to protecting the human rights community's ability to operate freely. It is also key to empowering development organizations of the sort that Egypt desperately needs, as the economic crisis continues to inflict grave harm on the country's poor. This is ultimately a political choice for the Egyptian president. He can still change course.

EPA/KHALED ELFIQI

National Security

Hoovered

How J. Edgar laid the groundwork for the NSA's surveillance state.

As the controversy surrounding the revelation that the National Security Agency (NSA) has been collecting metadata regarding the telephonic and Internet activities of average Americans continued to swirl out of control -- including the name and video confession of the admitted leaker -- the following question was posed to me: "How do I communicate with folks without having it casually Hoovered up by the NSA?"

Ignoring for a moment the slander involved in invoking both the names of the former FBI director and the renowned international vacuum company in connection with the most recent intelligence security debacle, the quick answer to the question is: "You can't." Absent the use of one-time encryption on closed communication systems, both the Internet and virtually all telephonic conversations are capable of being intercepted.

In fact, all types of electronic data are collected, collated, stored, and analyzed for retrieval by almost every modern industry in existence. It is not just the NSA that is doing the mass collection of data. Everyone is tapping into metadata, toll records, Internet data logs, credit reports, and public databases that collect millions of mundane bits of information. Doctors, lawyers, credit agencies, banks and real estate brokers, and every city, state, and federal government agency that regulates our lives collect and store digital information about all of us. The information they collect is there for the asking and can be purchased by anyone.

If this sounds onerous and Orwellian to you, it is simply because of the erroneous belief that collecting metadata is intrusive and a violation of privacy rights. After all, the United States has a long-standing tradition of resisting government intrusion into private lives. But the collection of metadata has been conducted as long as there have been companies willing to do the collecting.

Before there was Google, there were reverse telephone directories, reverse address books, business locator encyclopedias, tax records, and voter registration rolls -- along with myriad private services that would research a name, address, or telephone number for you. Reporters of a certain vintage will remember all of these data-collection tools. The key to understanding modern data collection is that (1) everyone is doing it and everyone is in the data, and (2) publicly available information about known or potential bad guys collected by both government and non-governmental companies is how modern-day investigators, including the FBI, solve crime. That is a fact. And if it makes you uncomfortable, perhaps you should emulate Ted Kaczynski, become a neo-luddite, and live the rest of your life in a remote Montana cabin writing manifestos in long-hand or on a typewriter. Living as a hermit is about the only way that you will avoid the digital collection onslaught that has become part of modern daily life.

In the current dust-up involving the NSA, people seem to be offended that it is the government using the data. They seem to miss the point that government isn't actually doing the collecting; the metadata is merely being provided pursuant to legal court order after first being collected by both the telephone companies and Internet service providers. Both industries have way more information about you than the government has ever sought to collect.

There have been many good articles describing the legal rationale for the NSA's collection of the data, including one by Stewart Baker, former general counsel for the agency. I will not attempt to repeat the legal or civil libertarian counterarguments here that have been made by others far more informed than me. Rather, since Americans can't avoid the collection of our digital signatures by either the government or private corporations that knowingly sell it to anyone willing to pay a fee, perhaps it's time to take a closer look at exactly how the government uses the information that it has "Hoovered," in order to help lower our collective anxiety about Big Brother.

By mentioning Hoover, my questioner reminded me of a little-remembered fact about the late director that may provide some background and insight into the current controversy and how American investigators, primarily the FBI, use information collected by the NSA. Prior to obtaining his law degree and becoming director of the FBI, J. Edgar Hoover was a clerk at the Library of Congress.

There he learned that the collating and cross-referencing of information for easy recovery was important, and easy access by FBI investigators to law enforcement intelligence was what was needed to solve crime on a national scale. He later adapted what he learned at the Library of Congress for use in the FBI's manual records management systems. As a young FBI agent -- before computerized databases or even cell phones -- I recall being issued red and blue pencils to mark documents for indexing in the FBI's non-digital records system. Director Hoover recognized the investigative value of information contained in FBI files and designed a system wherein both field office and bureau file numbers were recorded on index cards along with whether the name being indexed was a "main subject" or merely a reference within the file. This system allowed clerks in any field office to connect bits of information back to the subject's main file, which might be in a different office. It was a slow and laborious system, but very effective for tracking information across multiple field offices, states, and FBI headquarters.

Library science is also the perfect metaphor for making sense of the way the NSA uses metadata to protect the United States. The explanation for why -- if not technically how -- the NSA was collecting and using this data is important to understanding the potential for abuse that seems to be at the center of the controversy. In a way, the NSA functions like a giant reference library for the entire intelligence community, collecting books of information and electronic data on foreign individuals and corporations around the world. The books of information on foreigners are available to be checked out by any member of the intelligence community that has the proper clearance and a need to know the information. Members of the intelligence community request specific books on foreigners, and if the book doesn't exist in the current catalog, the NSA library will attempt to obtain it.

Initially, the NSA was restricted to only collecting on foreign individuals and scrupulously avoided any collection that included Americans or domestic surveillance. All of that changed with the passage of the Patriot Act in 2001. We now know that the NSA library has been obtaining and cataloging encyclopedias of information about U.S. persons -- loosely defined as U.S. citizens, permanent resident aliens, and U.S.-based corporations -- pursuant to a Foreign Intelligence Surveillance Act (FISA) court order since at least 2008. Like any good reference library, however, the collection of books on American citizens has been segregated into a special restricted access section that could only be accessed with a library card, consisting of a FISA court order. They could not be checked out and no one at the library was allowed to read the books or even acknowledge the existence of this special collection. The names on the books in the collection were kept secret.

Initially, the FBI was only allowed to place requests with the reference librarian to check the catalog for foreign names. To gain access to a book about Americans in the special access collection, the FBI had to rely on the reference librarian at the NSA to determine if a foreign target was providing content to one of the books in the American section and relay that information to them. Then -- and only then -- could the FBI use that information to obtain a FISA court order and read the book on the American citizen.

Further information from the American books -- content or interception of real-time conversations -- would require another probable cause statement and affidavit to the Foreign Intelligence Surveillance Court essentially proving that the U.S. individual was being directed by a foreign power. The person could not just be a member, associate, or affiliate, but had to be an actual agent of a foreign power, before any actual interception of content or conversations could take place.

That very restrictive process to access the NSA library on U.S. metadata by the FBI continues today.

How do FBI agents and other investigators use metadata in their investigations? For the investigator, information is fundamental. The ability to query a known or suspected terrorist telephone number and get back all of the numbers he or she has called in the past three to six months or longer is a tremendous investigative advantage. The data assists the investigator in focusing his efforts on the most likely suspects and associates of the actual target for asset or informant development, to locate other possible suspects, or as a cooperating witness against the actual target of the investigation.

Metadata may narrow the suspect pool from over a thousand suspects to maybe a half dozen or more, certainly a more manageable number. It is important, however, to remember that data absent content -- that is the actual conversation between two individuals -- is of limited probative value. It only provides items of lead value and correlation, not evidence of a crime, although analytical products can sometimes be used as circumstantial evidence at trial. Metadata is primarily used to establish reasonable suspicion for opening a case and occasionally probable cause to request legal process to obtain further information from the NSA.

In my career, I have had several opportunities to work with the NSA and metadata, but pre-9/11, FBI investigations utilizing NSA data only targeted known or suspected foreign terrorist groups or members, never U.S. persons. The standard for investigating a U.S. person was significantly higher, requiring probable cause to obtain a FISA wiretap warrant.

In the 1980s, I investigated the American end of a known foreign terrorist group. The problem then -- as is frequently the case now -- was that all of the American suspects were either naturalized U.S. citizens or U.S. persons. It made the investigation significantly more difficult because the use of any invasive extraordinary techniques like wiretaps or surreptitious searches required the FBI to meet the highest probable cause standards. And when one of the subjects of the investigation had what a national security lawyer at the Department of Justice referred to as a "Damascus conversion" and claimed to no longer be a member of the group being investigated, that ended the wiretap.

Today, the NSA neither provides information on U.S. persons, nor targets them for data interception absent a court order. If the FBI requests information on a U.S. person, what is often returned by the NSA consists of an affirmative or negative response that the signals intelligence being requested -- usually a telephone or credit card number -- exists in their database. It is then up to the FBI to develop the probable cause necessary to obtain a court order or warrant to obtain the actual information from the NSA. While creative writing can be used to develop probable cause -- and was sometimes suggested by more senior agents -- my boss at the time used to say, "You can't make chicken salad out of chicken shit." The evidence either existed or it didn't, and no agent worth his salt would really bet his badge and credentials by stretching the truth to make up probable cause when discovery of the fabrication would surely result in dismissal and prosecution.

Now that the leaker has been revealed to be Edward Snowden, a 29-year-old contractor for Booz Allen, the true problem of a digital library of information on Americans comes to light. That is, anyone with access to the NSA library can steal a book about Americans and publish the information if they choose to do so. The irony of the situation involving Snowden is that, if he is convicted, it will be based, at least in part, on his own telephonic communications and Internet data logs compiled by the NSA and provided to the FBI in response to a FISA court order -- exactly the way the domestic digital collection system involving the investigation of Americans is supposed to work. Snowden's revelations have also proven that we have crossed the digital Rubicon; there is no going back to a time when FBI and NSA files were manual and reasonable internal security measures were sufficient to safeguard our individual privacy.

It's time to learn to either live with it, or legislate the collection of metadata by the government into oblivion and risk the inherent consequences of that decision. The choice is yours.

BENOIT DOPPAGNE/AFP/Getty Images