Prepared Statement of Vice Chair Lee
Hamilton
and Commissioner Slade Gorton
National Commission on Terrorist Attacks upon
the
before
the Subcommittee on Commercial and Administrative Law
and the Subcommittee
on the Constitution
of the House Committee on the Judiciary
Chairman Cannon, Ranking Member Watt, and other distinguished members of the Subcommittee: We are honored by the opportunity to appear before you today. We appreciate the opportunity to discuss with you the findings and recommendations of the
Commission with respect to privacy and civil liberties. These Subcommittees, as well as your parent Committee, have a long record of concern with these issues, so it is a special pleasure to discuss with you the important question of how the measures we must take to protect our nation against the threat of terrorist attacks can be reconciled with the individual rights and liberties we hold so dear.
We want to emphasize that the Commission’s views on these issues – as well as all others dealt with in our Report – were unanimous. We are five Republicans and five Democrats, but we are united in our commitment to make our country safer and more secure in the face of the novel threat posed by transnational terrorism. And we can report to you that from the very beginning of the Commission’s work some eighteen months ago, all of us have been conscious of the need to make sure that in our zeal to fight the scourge of terrorism we do not compromise the very rights and liberties that make our system of government and our society worth defending.
Concern about the civil liberties of American citizens was one of a number of reasons why the Commission rejected the idea of moving the domestic intelligence and counterterrorism responsibilities of the FBI out of that agency and placing them in a new MI-5-type agency. We feared that such a new agency, not steeped in the respect for the law and the Constitution that pervades the FBI and the Justice Department, and reporting to the National Intelligence Director or the Director of Central Intelligence rather than to the Attorney General, would be more likely to trample on individual rights.
The Commission made three major recommendations with respect to civil liberties. The first dealt with the critical and complicated privacy issues that are at the heart of our new “information society” and at the heart of the necessary efforts to increase the amount of information gathered by our intelligence agencies and shared by them among themselves and with state and local law enforcement officials. The Commission recommends improvements and enhancements in those information-gathering abilities and in information sharing. But we also recognize that with the enhanced flow of information comes a need to establish guidelines and oversight to make sure that the privacy of our citizens and residents is respected and preserved.
We did not conduct extensive investigation of our own on data-mining and other privacy issues raised by information gathering and sharing. Instead, we relied on the excellent work done by the Markle Foundation Task Force, reflected in two reports, in 2002 and 2003. The insights of the Markle Task Force have been reinforced by the more recent investigation and report by the Technology and Privacy Advisory Committee established by Secretary Rumsfeld to advise him on the privacy implications of the Department’s Terrorism Information Awareness Program – a report that this Subcommittee is also focusing on today.
We believe, along with the Markle Task Force, that we have the ability to gather and share information and protect privacy at the same time. But this requires leadership and co-ordination in the executive branch. No one agency can deal with this problem alone. Instead, we recommend that the President lead a government-wide effort, through OMB and the National Intelligence Director, to set common standards for information use throughout the intelligence community. These standards would govern the acquisition, accessing, sharing and using of private data so as to protect individual rights. The same technology that facilitates the gathering and sharing of information can also protect us from the misuse of that information.
Our second major recommendation in this area relates to the USA PATRIOT Act, many of the provisions of which expire at the end of next year and will be the subject of hearings by the House and Senate Judiciary Committees. The only specific provisions of that Act on which we expressed a view are those relating to information-sharing: the elimination of the “wall” that had severely constrained the flow of information acquired through surveillance under the Foreign Intelligence Surveillance Act from the intelligence side of the FBI to the criminal side of the agency and to federal prosecutors, and the broadening of the ability of the Justice Department to share grand jury information with other intelligence and law enforcement agencies. We endorsed the extension of those provisions, which witnesses were virtually unanimous in telling us were extremely helpful to law enforcement and intelligence investigations with little if any adverse impact on the rights of potential defendants.
But we did propose a general test to be applied to consideration of the renewal of other provisions of the USA PATRIOT Act, and we believe that that principle should also be applied to other legislative and regulatory proposals that are designed to strengthen our security but that may impinge on individual rights. The test is a simple but important one: The burden of proof should be on the proponents of the measure to establish that the power or authority being sought would in fact materially enhance national security, and
that there will be adequate supervision of the exercise of that power or authority top ensure protection of civil liberties. If the power is granted, there must be adequate guidelines and oversight to properly confine its use.
We think the same spirit that informed our recommendation as to the burden of proof that should be applied to measures of this kind is also reflected in H.R. 338, recently reported out of this Subcommittee and the full Judiciary Committee. H.R. 338 requires federal agencies that are proposing rules that will require the collection of personal information from individuals to conduct privacy impact assessments as part of their rulemaking process to ensure that privacy interests of individuals receive attention and protection. The Commission, of course, takes no position on that bill. But we can observe that it proceeds from the same concerns that animate our recommendations.
Our third major recommendation
flows from the first two. Individual
rights and liberties must be adequately protected in the administration of the
significant powers that Congress has granted to executive branch agencies to
protect national security. There should
be a central office or board that has the responsibility to oversee adherence
to guidelines that are built into these programs to safeguard those rights and liberties. We make no recommendation as to how this
office or board should be composed or where in the executive branch it should
be located. Some
We close with an observation from our Report:
We must find ways
of reconciling security with liberty, since the success of one protects the
other. The choice between security and
liberty is a false choice, as nothing is more likely to endanger
We would be pleased to respond to
your questions.