February 17, 2006
Security, Privacy and Civil Liberties in Post 9/11 America
Senator Wyden Speaks at the Stanford University Law School SymposiumRemarks as prepared for delivery Good afternoon. You're all very good to come out to sit in a dark classroom this afternoon to listen to a Friday Filibuster, when you'd probably all rather be heading to the slopes at Lake Tahoe for a long weekend of skiing. Or perhaps quail hunting, though I hear that's a pretty dangerous sport these days.It is so great to be back on The Farm today. I have many great memories of my time at Stanford, and so any excuse to come back here, like the invitation to speak as part of your symposium, is most welcome.It's particularly refreshing to get out of the halls of Congress and come talk with folks like you, who spend every waking hour studying and exploring the cutting edge of the law. It really informs the national debate and highlights the critical issues our country faces today. I appreciate the invitation, your warm welcome, and I am glad to be with you today.INTRODUCTIONThe students and faculty at Stanford, and in particular, here at the Law School, are uniquely positioned to shape the national debate going on across our country today about striking the right balance between security and civil liberties. It's a tough line to walk, and those of us in Congress and in the Federal government welcome your insights, analyses and contributions to the debate.Today I want to talk for a few minutes about the landscape that policymakers and academics face in the United States today with respect to the delicate balance between security and civil liberties. Then I want to share with you the need for what I call a new accountability in our government to match the new flexibility of authorities that's needed to fight terrorism in the post 9-11 era.There's no greater concern facing us all today than trying to strike the right balance between safeguarding America's national security, on the one hand, and ensuring the protection of the civil liberties and privacy rights that have made our country a beacon of freedom and hope for centuries. Above all, to strike the right balance between security and civil liberties means striking the right balance between priorities in our own government - between secrecy and openness.This is not just an abstract concept - it potentially affects every single one of your lives in this room. Today, there are two big stories in the news about the nation's struggle to strike this balance: NSA wiretapping and the renewal of the USA PATRIOT Act. Both of these major issues in Washington affect the lives of every American citizen, and go directly to the heart of this big public debate on security.Most Americans, myself included, would not quarrel with the idea that our intelligence agencies need to gather information about countries and groups that wish to harm the United States or American citizens. We want to be able to find out what our enemies are doing, where they are doing it, and what their future plans are. The crucial question, of course is this: How can we give the Executive branch this authority without just telling them to pick up every American by the ankles and shake them to see what falls out of their pockets? And how can we make sure that we listen to terrorists' phone calls, and keep elderly people in your local community from having their library records searched and tracked? The Congress, and the country as a whole, is struggling at this very moment to figure out what the right balance is. The challenge in this is to fight terrorism ferociously and use all of the tools at our disposal to track our enemies, without setting up a police state where the government tracks each and every novel your grandmother reads.In this long national debate, we do know one thing: in order to provide both security and civil liberties successfully we must abandon the prevailing "either-or paradigm." Under this old paradigm, either security can be enhanced, or privacy preserved, but not both. Abandoning this paradigm is more complicated than simply heightening vigilance on both "sides" of this stark equation. The United States can fight terrorism aggressively without cannibalizing fundamental freedoms in the process. Of course, it's challenging. The harsh reality is that from expanded governmental authority to new technologies, from information-sharing to classification, every necessary aspect of fighting terror at home has the potential to undermine essential rights. This balance is what's really at the heart of the recent revelations about secret NSA wiretapping that Congress has now decided to investigate. British Home Secretary Charles Clarke said it well after the London transit bombings of July 2005, when he said "every intelligence question is also a civil liberties question."I believe very strongly that it's possible to provide for our national security and allow for good intelligence collection - much of which by design must be done in secret - without throwing the civil liberties of our citizens in the trash can. Those of us who bear responsibility for providing for our national security must understand that one cannot come with out the other. If civil liberties are not prominent in our thinking and our governing, our efforts could result in the demise of the uniquely American freedoms we seek and hope to maintain. At the same time, those of us who both prize and vigorously defend civil liberties must do so while at the same time recognizing that a proliferation of security failures would diminish Americans' true freedom. And it would do so to a degree beyond any law. Ultimately, advocates and policymakers alike must agree to a basic premise to ensure the safety and liberty of all Americans: the security of the nation and the protection of individual freedoms are not mutually exclusive.NEW ACCOUNTABILITYSo, what lies ahead? I've told you that, as a nation, we need to strike the right balance between security and civil liberties. But how should we do it?As I said earlier, I think few would quarrel with the idea that the President needs to have the authorities necessary to fight terrorism ferociously in the post 9/11 era. This authority includes using new tools properly and having the ability to move quickly to meet and preempt threats made to America and its citizens. Many of these tools, naturally, require a high degree of secrecy.But in return the American people and their elected representatives deserve a kind of 'new accountability'. Recent revelations, such as the NSA wiretapping story, or the possible misuse of intelligence in the run-up to the Iraq war, highlight the need for a 'new accountability.' As Americans, we will never be able to simply sit back and completely trust that the Administration is doing its job as it should be, no matter who is in the White House or how much we like them. Indeed, it would be irresponsible to do so. Why? First and foremost, because people aren't perfect. People make mistakes. But also, because history has shown that sometimes the people who make their way into the highest offices in the land are not always completely honorable all of the time. And when the shroud of secrecy serves as a way of life in waging the war on terrorism, the opportunity exists for the line between right and wrong, between legal and illegal, to become blurred.As long as our nation has secret programs, they will require vigilance. As a nation, we need to make all aspects of government as transparent as possible. A democratic republic like ours depends on it. Surely, when you deal with intelligence programs, some things have to be done in secret, and every citizen can't always see what's going on. But their elected representatives should. The American people deserve nothing less. The next question, of course, is what would this look like? With new flexibility to be tough on terror and security, must come better accountability. And this means three things:First, The President and those in the executive branch need to follow the law. I welcome a debate about what the law should BE, but once we decide as a nation, the President needs to follow the law. The NSA wiretapping revelations have highlighted the question about whether the Administration has followed the law; there should be no doubt that the law must enable the Executive Branch to fight terrorists effectively; but once the law is set, everybody knows what it is, and everybody follows it.Second, as a country, we need to improve the declassification system in our country. Too much information is kept secret for political purposes. Too much information is kept from the American people that they need and deserve to know about their security. New accountability means shining more sunlight on the generally dark, secretive nature of the intelligence community generally. Increasingly, information is classified that our citizens have a right to know. Governor Kean, the Chair of the 9-11 Commission, has said that as much as three-quarters - three-quarters - of the classified materials he reviewed for the commission should not have been classified in the first place. The CIA initially blacked out more than 50 percent of the Senate Select Committee on Intelligence report on Iraq's WMD programs and links to terrorist groups. The National Archives' Information Security Oversight Office reported 14.2 million classification actions in 2003 - twice the number recorded 10 years earlier.Consider one, particularly egregious example: during the bipartisan, bicameral Congressional investigation into 9/11, our inquiry told the inspectors general of several intelligence agencies to issue individual reports about accountability. The CIA Inspector General took nearly three years to finish his investigation. But in the end, he produced a high quality report that makes a number of worthwhile recommendations. A report of this significance should clearly be accompanied by an unclassified version, with the sensitive security information removed. Why? So that the American public has the benefit of the Inspector General's perspective on 9/11, and so the public can decide whether the report's recommendations have been carried out in a satisfactory manner.Incredibly, the CIA has not yet released an unclassified version of this report, and despite multiple requests from Congress, it will not even say whether it intends to ever release it. It seems inappropriate to leave decisions like this entirely up to people who might be held accountable if it was released appropriately. That's why I worked with my colleagues on a bipartisan basis to get the Public Interest Declassification Board up, running and funded - to give the Congress an independent place to appeal classification decisions. The Administration did not include the Declassification Board in its budget request for 2006, but my colleagues and I worked to give the Board money to operate. It's my hope that we will soon have an independent body that we can turn to, when we feel information is being classified for inappropriate reasons. Third, we need more and better oversight over our security and intelligence operations. Congress has a job to do, and Americans expect us to keep tabs on the Administration, whoever the President, whatever the party. Congress should constantly double check the work of the Administration, to make sure it's being done effectively, it's being done right, and that they're not doing anything illegal or improper. A recent example of Congress engaging in good oversight, and struggling to find the balance on security and civil liberties, is the story of the Pentagon's Total Information Awareness program, or TIA. Three months after passage of the PATRIOT Act in 2001, the Defense Department's Defense Advanced Research Projects Agency (DARPA) created a new entity called the Information Awareness Office (IAO). This office was designed to bring together a number of projects already in play at DARPA and to provide a home for a new "program of programs" called "Total Information Awareness" (TIA). In the fall of 2002, news reports detailed how technologies planned under TIA would help the intelligence community "mine" government and commercial databases. They would be looking for transactions and patterns that might point to terrorists living in our midst. Of course, there was good reason to seek this kind of technological advantage. Prior to 9/11, U.S. intelligence had connected multiple September 11th hijackers to al-Qaeda, and had information that these individuals possessed U.S. visas. However, this information was not collected in any single database, or even in the hands of any single agency, and disseminated nationwide. If it had been, future hijackers who were stopped by authorities in Maryland and Florida might have been scrutinized more carefully, possibly leading to the detection or disruption of their plot.The goal of spotting terrorist planning and activity clashed with the prospect of the government snooping on millions of law-abiding citizens in the process. TIA was roundly criticized by a diverse list of conservative and liberal interest groupsAnd, one of the most troubling aspects of the proposal was the person in charge of it: Admiral John Poindexter. Of course Poindexter was a veritable poster boy for government secrecy run amok. It made Congressional oversight for the American people immediately uncertain.Congress had mandated a report on a program called "Total Information Awareness," but DARPA took pains at the outset to correct what had been a major cosmetic problem: the chilling nature of the program's name. "Total Information Awareness," became "Terrorism Information Awareness" - ostensibly to reflect more accurately the program's goals. But it was clearly changed to calm fears the government might have access to tons of personal information as well. More to the point, however, the report effectively made the case for TIA tools, but it repeatedly ducked the privacy concerns that actual deployment of those tools would raise. It was filled with vague answers about what seemed to be clear legal restrictions. It left a bad taste in many of our mouths in Congress. And all to the tune of tens of millions of taxpayer dollars, which could be spent to fund those technologies only to find they could never be deployed or used properly under existing law. Ultimately, Senate appropriators, alerted to the potential dangers of TIA, called for the closure of the Information Awareness Office and the de-funding of TIA's most troubling proposals. And as that legislation moved forward, the exposure of a little-known component of TIAwhich, ironically, had no privacy or civil liberties concerns attachedserved as the final nail in the program's coffin. An egregious provision - the "Futures Markets Applied to Prediction" (FutureMAP) component of TIA - would have allowed anonymous traders to purchase futures on suggested terrorist events. As you might imagine, gambling on American security was not well received, and ultimately forced the shutdown of that TIA component within 24 hours of its exposure. But just because TIA went away, doesn't mean we have seen the end of privacy rights being intruded upon unnecessarily in the name of boosted security. Last July, the Government Accountability Office found that the Transportation Security Administration (TSA) had violated the Federal Privacy Act. The TSA has been testing its "secure flight" screening program by comparing passenger information from airlines with additional information from commercially available databases. After this was made public, TSA immediately reiterated its intention to use commercially available data in its screening efforts. The conclusion here, again, is that clearly, the need for Congressional vigilance didn't evaporate with TIA. The need for new and responsible approaches to balance valuable security technology with privacy and civil liberties concerns persists as well. TIA's overreach has inspired a number of better designed and targeted initiatives to create the kind of information sharing among government agencies that is an essential part of counterterrorist strategy. Subsequently, the Senate Intelligence Committee and the full Congress approved legislation to establish a national database to collect and analyze information regarding international terrorism suspects. The database law provides an excellent example of how to strike the proper balance between security and privacy rights. As evidence suggests that an individual is involved in terrorism, information is collected and entered into the database, which is now operated by the FBI as part of its Terrorist Screening Center. Once there, this information can be accessed by all of the relevant law enforcement and intelligence officials. The United States should not be obligated to forgo the benefits of technology in the war on terror to satisfy privacy concerns. On the contrary, it is the job of Federal policymakers to ensure the aggressive and responsible use of technology to safeguard the American people. And we have seen here how the right balance can be reached.PATRIOT ACTTo illustrate why it's so important that we change and modernize our thinking, and create a kind of 'new accountability,' I want to share with you a bit of the history on the reauthorization of the USA PATRIOT Act. It, perhaps more than anything else, crystallizes the debate - and a legislative and power struggle to create more flexibility and accountability. Of course only time will tell whether we got this balance right.In the days of shock that followed 9-11, Congress agreed to a number of immediate changes to existing law to boost our national security. Congress passed sweeping legislation that transformed immigration, criminal justice, domestic and international finance, and, of course, domestic surveillance law. In doing so, we were placing security measures above all other considerations. In some cases, we granted the government powers that had been expressly rejected before - and we did this just four weeks after 9-11.Many who voted for this legislation, including myself, did so with serious concerns regarding its implications on privacy and civil liberties. We voted for the bill knowing that immediate changes were needed to fight a terrorist threat clearly active inside America's borders. But the scope and capabilities of these changes were frighteningly unknown. Consider one:A provision that goes to the heart of this debate is the so-called "library records" provision. It modified the Foreign Intelligence Surveillance Act (FISA) to make it easier to obtain warrants from the Foreign Intelligence Surveillance Court for "business records" and other similar items. Prior to the PATRIOT Act, FBI agents who wanted to get records held by a third party were required to present information that indicated that the person whose records they were trying to get was a terrorist or a spy. The library records provision lowered the standard to let the FBI simply assert that the records are sought for an investigation to protect against international terrorism. It also expanded the scope of warrants from "records" to "any tangible item." This made it possible for FBI agents to obtain a secret warrant to seize not only library records, but also medical records, tax records, video rental transactionsessentially anything at allsimply by claiming some relevance to an investigation.The PATRIOT Act did include some safeguards, however. The main one was a sunset provision applied to 16 of the law's most controversial provisions, including the two I just outlined. These sunset provisions set expiration dates on portions of the law that were recognized as being particularly sweepingor particularly susceptible to abuseso the provisions' impact on privacy and civil liberties could be fully considered again in 2005.I am sure many of you followed - and continue to follow - the debate that's occurred in Congress over reauthorizing the PATRIOT Act. In fact, distance from the attacks of 9-11 made the PATRIOT Act's resolution less clear. The benefits of calm, hindsight and case law prompted many members of Congress to seek a better balance between protecting Americans' security and protecting their privacy rights and civil liberties. And the continuation of the terrorist threat pointed others toward even stronger government powers to investigate and stop extremist violence.Proposals to strengthen privacy protections in a renewed PATRIOT Act included a number of ideas, such as modifying the standards for FISA warrants. Some wanted to add requirements that the FBI explain why records would be relevant to an investigation instead of simply stating that they are. Others suggested setting a higher bar for obtaining particular sensitive records, such as credit information or medical records - and many people proposed increasing reporting requirements to expose any pattern of abuse that might develop. The "sunset" issue also figured prominently in efforts to safeguard privacy, whether that meant allowing controversial provisions to expire or setting new end dates for additional provisions of the law.Just this week, it was announced that a compromise had been reached on the renewal of PATRIOT Act. It now appears that it will be extended, with some modest changes to the most controversial surveillance provisions. It is important to note, especially at a time when Washington is all about Republicans versus Democrats, Conservative versus Liberal, that party-line politics did not dictate support for or opposition to renewal of the law. And of course, the resolution of the debate was deeply complicated by the NSA wiretapping revelations that were first reported by the New York Times on the eve of a key Senate vote. One could easily argue that this story played an instrumental role in the success of the filibuster that members of the Senate mounted in December. The issues raised by the wiretapping story - the balance between security and civil liberties, and the accountability of the Executive branch - have certainly shaped the debate. The PATRIOT Act now appears to be headed for reauthorization, although it remains to be seen whether policymakers have gotten the balance right. What IS clear is that same tensions that existed during the drafting of the original persist, and if anything, are starker today. CONCLUSIONI want to close with a couple of thoughts: the government's responsibility to increase security and its latitude to impact individual freedoms were increased exponentially by the attacks of September 11 and by the laws passed in the aftermath of that day. At the same time, Americans are rightly concerned when they hear that the Federal government is potentially listening in on their private phone conversations. Americans are rightly concerned when their personal information is stored - and then used - in government databases, without their knowledge or consent. Americans are rightly concerned that their government be able to use all of the tools at its disposal, including intelligence gathering tools that often require a high degree of secrecy, in order to provide for the security of their families.In a democratic republic like ours, the government has a responsibility to the American people. It is not just about providing for our security at any cost. The American people are best served - that is to say they can be safer, and more certain of their individual rights and freedoms - by the strongest possible allegiance to openness and by the fullest possible acceptance of accountability.The difficult questions that define the national debate over security and liberties in our nation today will never be settled permanently. And in an increasingly complex world of new threats, and as American's anti-terror efforts evolve, new ambiguities will arise all the time. No single solution will end this debate, which brings us back to Stanford Law School this afternoon. The best approach, then, is for policymakers to apply intellectual rigor to each new dilemma. Students and stewards of the law - like you - stand at the crossroads of this debate. Your insights, appreciation of the law, in both theory and in practice, help policymakers understand and develop the principles that should guide us forward.And the issues you're examining during this symposium will doubtless provide some much-needed answers; and I can assure you many of us are listening to you with great interest.The tragedy of the September 11 attacks would be compounded by a wholesale shift away from the principles that make America great in an effort to make America impenetrable. Sacrifices must be made, and compromises must be struck, but leaders must not let the debris of our shattered safety occlude the path to sound public policy. If that happens, far more than security will be lost. What Americans are so frequently told about the war on terror is absolutely true: freedom itself is at stake - our freedom.Thank you very much, and I welcome your questions.
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