Testimony of Paul Rosenzweig

Senior Legal Research Fellow
Center For Legal And Judicial Studies

The Heritage Foundation*

214 Massachusetts Avenue, Ne
Washington, DC 20002

Other testimony from this hearing

Before The United States House Of Representatives Permanent Select Committee On Intelligence
Regarding Securing Freedom And The Nation: Collecting Intelligence Under The Law
9 April 2003

Good afternoon Mr. Chairman and Members of the Subcommittee.Thank you for the opportunity to testify before you today on the challenge of maintaining the balance between security and constitutionally protected freedoms inherent in responding to the threat of terror.

For the record, I am a Senior Legal Research Fellow in the Center for Legal and Judicial Studies at The Heritage Foundation, an independent research and educational organization. I am also an Adjunct Professor of Law at George Mason University where I teach Criminal Procedure and an advanced seminar on White Collar and Corporate Crime.I am a graduate of the University of Chicago Law School and a former law clerk to Chief Judge Anderson of the U.S. Court of Appeals for the Eleventh Circuit.For much of the past 15 years I have served as a prosecutor in the Department of Justice and elsewhere, prosecuting white-collar offenses.  During the two years immediately prior to joining The Heritage Foundation, I was in private practice representing principally white-collar criminal defendants.I have been a Senior Fellow at The Heritage Foundation since April 2002.

My perspective on this matter, then, is that of a lawyer and a prosecutor with a law enforcement background, not that of an intelligence officer or analyst.I should hasten to add that much of my testimony today is based upon a series of papers I have written on various aspects of this topic, all of which are available at The Heritage Foundation website (www.heritage.org).For any who might have read this earlier work, I apologize for the familiarity that will attend this testimony.I can only hope it does not breed contempt.

It is a commonplace for those called to testify before Congress to commend the Representatives or Senators before whom they appear for their wisdom in recognizing the importance of whatever topic is to be discussed - so much so that the platitude is often disregarded as mere puffery.Today, however, when I commend this Committee for its attention to the topic at hand - the difficulty of both protecting individual liberty and enabling our intelligence and law enforcement organizations to combat terror - it is no puffery, but rather a heartfelt view.I have said often since September 11 that the civil liberty/national security question is the single most significant domestic legal issue facing America today, bar none.And, as is reflected in my testimony today, in my judgment one of the most important components of a responsible governmental policy addressing this difficult question will be the sustained, thoughtful, non-partisan attention of America's elected leaders in Congress.Nothing is more likely, in my judgment, to allow America to find the appropriate balance than your engagement in this issue.

What I would like to do today is assist your consideration of this question by first providing some historical context and addressing some theoretical principles that you might consider in structuring your thinking about the problem.Then, in an effort to avoid being too theoretical, I'd like to apply those principles to the concrete issues of data mining and the Total Information awareness program.Finally, I will offer some briefer thoughts about the issue of information sharing and reflect on the lessons of the recent indictment of Sami Al-Arian.

Historical Context

Let me begin by briefly putting the question posed by today's hearing in historical context.I do so because all too often we see our current situation as unique, when in fact it is part of a recurring pattern in American history.The tension between civil liberty and national security is but one example of how we return to the same fundamental issues over and over again.Consider the following history:[My learning in this area was greatly aided by a lecture Professor Geoffrey Stone of the University of Chicago recently gave to the Supreme Court Historical Society.I have borrowed liberally from his work for my understanding of these historical events]:

In 1798, the Napoleonic wars raged in Europe.President John Adams, a Federalist, effectively brought the United States into a state of undeclared war with France, on the side of the British. Thomas Jefferson and the Democratic Republican party opposed these measures as likely to provoke an unnecessary war. The Federalists, in turn, accused the Jeffersonians of treason.

To exacerbate the situation, the Federalist Congress enacted the Alien and Sedition Acts of 1798.The Alien Act authorized the president to deport any non-citizen he judged dangerous to the peace and safety of the United States, without a hearing or the right to present evidence.The Sedition Act prohibited the publication of false, scandalous and malicious writings against the government, the Congress or the president with intent to bring them into contempt or disrepute. These were, in effect, aggressive efforts to suppress political criticism of Adams, his policies, and his administration.The Act expired by its terms, and after Jefferson replaced Adams as President, he pardoned all those who were convicted under the act.Though never tested in the Supreme Court, these acts are widely regarded as having been unconstitutional and a stain on American liberty.

During the Civil War, President Abraham Lincoln suspended the writ of habeas corpus on eight occasions.The broadest such suspension declared that "all persons . . . guilty of any disloyal practice . . . shall be subject to court martial." As many as 38,000 civilians were imprisoned by the military, in reliance on this authority.In 1866, a year after the war ended, the Supreme Court ruled that the president was not constitutionally empowered to suspend the writ of habeas corpus, even in time of war, if the ordinary civil courts were functioning.Here, again, the suspension is remembered as an excessive response to a wartime crisis and has come to be regarded as Lincoln's most unfortunate wartime error.

In 1917, the United States entered World War I.During the war federal authorities acting under the aegis of the Espionage Act prosecuted more than 2,000 people for their opposition to the war.As a result, virtually all dissent with respect to the war was suppressed.Though the Supreme Court initially approved most federal actions in support of the war, over the next half-century, the Court overruled every one of its World War I decisions, effectively repudiating the excess of that war-time era.

Finally, and most notoriously, on Feb. 19, 1942, Roosevelt signed Executive Order 9066, which authorized the Army to "designate military areas" from which "any persons may be excluded."Over the next eight months, more than 110,000 people of Japanese descent were forced to leave their homes in California, Washington, Oregon and Arizona.Though the Supreme Court upheld the president's action it has come to be recognized as a grave error.In 1988, President Ronald Reagan offered an official presidential apology and reparations to each of the Japanese-American internees.

I call your attention to this history for the lessons it provides.Some see in this history a cautionary note:As Professor Stone has noted:"In time of war or national emergency, we respond too harshly in our restriction of civil liberties, and then, later, when it is too late, we regret our behavior."And we should not disregard that caution.

But I also believe we may take a more optimistic lesson from history as well.Whatever one may think of the steps that the domestic law enforcement and intelligence agencies are taking to combat terror during today's crisis, I think it is undeniable that the actions today are more moderate and restrained than those of the past.Let me be clear - that comparison does not justify any current actions.But it does counsel restraint in accepting apocalyptic claims of the imminent demise of American liberty.

This history also should give us some comfort.Many who are concerned with current activities think that we are on a downward spiral towards diminished civil liberties.But to my way of thinking what this history shows is that the balance between liberty and security is more like a pendulum that gets pushed off-center by significant events (such as those of September 11) than a spiral.Over time, after Americans have recovered from the understandable human reaction to catastrophe and after the threat recedes, the pendulum returns to center.As Chief Justice Rhenquist wrote in his book All the Laws but One: Civil Liberties in Wartime:

In any civilized society the most important task is achieving a proper balance between freedom and order.In wartime, reason and history both suggest that this balance shifts in favor of order - in favor of the government's ability to deal with conditions that threaten the national well-being.

We should acknowledge the historical reality that the opposite is true as well.When the wartime crisis passes, the balance swings back in favor of freedom and liberty.And since World War II, our society has, we hope, matured such that the scope of the swings in the pendulum are not nearly as great as they have been in the past.To quote Chief Justice Rhenquist again:

[T]here is every reason to think that the historic trend against the least justified of the curtailments of civil liberty in wartime will continue in the future.It is neither desirable nor is it remotely likely that civil liberty will occupy as favored a position in wartime as it does in peacetime.But it is both desirable and likely that more careful attention will be paid by the courts to the basis for the government's claims of necessity as a basis for curtailing civil liberty.

And to the courts we may add Congress, the press and the American public.Thus, we should not, I think, be utterly unwilling to adjust the balance between liberty and security in today's crisis of terrorism.Cautious, to be sure, but not immobilized by our fear of government excess, for there are any number of mechanisms by which governmental excess may be curbed.

Overarching Principles

Let me now turn to some thoughts about how the cautious, yet effective actions of government should, in my view, be effectuated.Fundamental legal principles and conceptions of American government should guide the configuration of our intelligence and law enforcement efforts rather than the reverse. The precise contours of any rules relating to the use of any new technology or new program will depend, ultimately, on exactly what the new program is capable of or intended to accomplish - the more powerful the system or program, the greater the safeguards necessary. As a consequence, the concerns of civil libertarian critics should be fully voiced and considered while any research program is underway.

In general, unlike civil libertarian skeptics, I believe that new intelligence and law enforcement information gathering and information analytical systems can (and should) be constructed in a manner that fosters both civil liberty and public safety.We should not say that the risks of such systems are so great that any effort to construct them should be dispensed with.

Rather in my view, the proper course is to ensure that certain overarching principles animate and control the architecture of any new program and provide guidelines that will govern implementation of the program in the domestic environment.

The Common Defense - Let me make one important preliminary point:Most of the debate over new intelligence systems focuses on perceived intrusions on civil liberties, but Americans should keep in mind that the Constitution weighs heavily on both sides of the debate over national security and civil liberties. The President and Congressional policymakers must respect and defend the individual civil liberties guaranteed in the Constitution when they act, but there is also no doubt that they cannot fail to act when we face a serious threat from a foreign enemy.

The Preamble to the Constitution acknowledges that the United States government was established in part to provide for the common defense. The war powers were granted to Congress and the President with the solemn expectation that they would be used. Congress was also granted the power to "punish … Offenses against the Law of Nations," which include the international law of war, or terrorism. In addition, serving as chief executive and commander in chief, the President also has the duty to "take Care that the Laws be faithfully executed," including vigorously enforcing the national security and immigration laws.
Thus, as we assess questions of civil liberty I think it important that we not lose sight of the underlying end of government - personal and national security.I do not think that the balance is a zero-sum game, by any means.But it is vital that we not disregard the significant factors weighing on both sides of the scales.

Civil Liberty -- Of course, just because the Congress and the President have a constitutional obligation to act forcefully to safeguard Americans against attacks by foreign powers does not mean that every means by which they might attempt to act is necessarily prudent or within their power.Core American principles require that any new counter-terrorism technology deployed domestically) should be developed only within the following bounds:

• No fundamental liberty guaranteed by the Constitution can be breached or infringed upon.
• Any increased intrusion on American privacy interests must be justified through an understanding of the particular nature, significance, and severity of the threat being addressed by the program. The less significant the threat, the less justified the intrusion.
• Any new intrusion must be justified by a demonstration of its effectiveness in diminishing the threat. If the new system works poorly by, for example, creating a large number of false positives, it is suspect. Conversely, if there is a close "fit" between the technology and the threat (that is, for example, if it is accurate and useful in predicting or thwarting terror), the technology should be more willingly embraced.
• The full extent and nature of the intrusion worked by the system must be understood and appropriately limited. Not all intrusions are justified simply because they are effective. Strip searches at airports would prevent people from boarding planes with weapons, but at too high a cost.
• Whatever the justification for the intrusion, if there are less intrusive means of achieving the same end at a reasonably comparable cost, the less intrusive means ought to be preferred. There is no reason to erode Americans' privacy when equivalent results can be achieved without doing so.
• Any new system developed and implemented must be designed to be tolerable in the long term. The war against terror, uniquely, is one with no immediately foreseeable end. Thus, excessive intrusions may not be justified as emergency measures that will lapse upon the termination of hostilities. Policymakers must be restrained in their actions; Americans might have to live with their consequences for a long time.

From these general principles can be derived certain other more concrete conclusions regarding the development and construction of any new technology:

• No new system should alter or contravene existing legal restrictions on the government's ability to access data about private individuals. Any new system should mirror and implement existing legal limitations on domestic or foreign activity, depending upon its sphere of operation.
• Similarly, no new system should alter or contravene existing operational system limitations. Development of new technology is not a basis for authorizing new government powers or new government capabilities. Any such expansion should be independently justified.
• No new system that materially affects citizens' privacy should be developed without specific authorization by the American people's representatives in Congress and without provisions for their oversight of the operation of the system.
• Any new system should be, to the maximum extent practical, tamper-proof. To the extent the prevention of abuse is impossible, any new system should have built-in safeguards to ensure that abuse is both evident and traceable.
• Similarly, any new system should, to the maximum extent practical, be developed in a manner that incorporates technological improvements in the protection of American civil liberties.
• Finally, no new system should be implemented without the full panoply of protections against its abuse. As James Madison told the Virginia ratifying convention, "There are more instances of the abridgment of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations."

As I said at the outset, these theoretical considerations and operational guidelines, while useful in constructing an ex ante heuristic for assessing new programs, are only of real value in application to concrete problems and proposed solutions.Whenever I speak on this topic, I always emphasize (as I do here today) that specifics matter.It is not enough to condemn every governmental initiative.Nor is it apt to afford the government a blank check for all actions designed to repel terror.Rather, each program and proposal must be carefully assessed on its own individual merits.

"Data Mining" - Total Information Awareness Today

To that end, let me first discuss the concept of data mining and more particularly the Total Information Awareness program ("TIA") - a program that has been widely misunderstood.[For more detail on the program I refer you to a paper I co-authored with my Heritage colleague, Michael Scardaville - "The Need to Protect Civil Liberties While Combating Terrorism: Legal Principles and the Total Information Awareness Program," The Heritage Foundation, Legal Memorandum No. 6 (February 2003).]

Data Analysis

First, and foremost, I think that much of the public criticism has obscured the fact that TIA is really not a single program.Virtually all of the attention has focused on the data mining aspects of the research program - but far more of the research effort is being devoted to providing tools for enhanced data analysis.In other words, TIA is not, as I understand it, about bypassing existing legal restrictions and providing governmental agencies with access to new and different domestic information sources.Rather, it is about providing better tools to enable intelligence analysts to more effectively and efficiently analyze the vast pool of data already at their disposal - in other words to make our analysts better analysts.These tools include, for example, a virtual private network linking existing counter-terrorism intelligence agencies.It would also include, for example, research into a machine translation capability to automatically render Arabic into English.While these developments certainly pose some threat to civil liberty because any enhancement of governmental capability is inherently such a threat, they are categorically different than the data mining techniques that most concern civil libertarians.The threat to civil liberty is significantly less and the potential gain from their development is substantial.

Thus, my first concrete recommendation to you is to not paint with too broad a brush - the distinction between collection and analysis is a real and important one that, thus far, Congress has failed to adequately recognize.Earlier this year, Congress passed an amendment, the so-called Wyden amendment, which substantially restricts TIA development and deployment.That restriction applies broadly to all programs under development by DARPA.That's a mistake.The right answer is not for Congress to adopt a blanket prohibition. Rather, Congress should commit to doing the hard work of digging into the details of TIA and examining its operation against the background of existing laws and the existing terrorist threats at home and abroad.

We have already seen some of the unintended but pernicious effects of painting with such a broad brush.Recently at a forum conducted by the Center for Strategic Policy, DARPA officials discussed how the Wyden amendment had short-circuited plans to sign a Memorandum of Understanding (MOU) with the FBI.The FBI, as this Committee knows, is substantially behind the technological curve and is busily engaged in updating its information technology capabilities.The MOU under consideration would have enabled the FBI to join in the counter-terrorism Virtual Private Network (VPN) being created by the TIA program.Again, the VPN is not a new data collection technology - it is a technology to enhance data analysis by allowing information sharing.Other counter-terrorism agencies with exclusively foreign focus are already part of the VPN - the CIA and DIA for example.Though the Department of Defense has not reached a final interpretation of the Wyden amendment, the lawyers at DoD were sufficiently concerned with its possible scope that they directed DARPA to not sign the MOU with the FBI.As a consequence one of our principal domestic counter-terrorism agencies is being excluded from a potentially valuable network of information sharing.Extrapolating from this unfortunate precedent, it is likely that the Wyden amendment will have the effect of further balkanizing our already unwieldy domestic counter-intelligence apparatus.The same law will probably be interpreted to prohibit the Department of Homeland Security from joining the network, as well as the counter-terrorism agencies of the various States.

In short, as Senator Shelby has written of TIA:

The TIA approach thus has much to recommend it as a potential solution to the imperative of deep data-access and analyst empowerment within a 21st-century Intelligence Community. If pursued with care and determination, it has the potential to break down the parochial agency information "stovepipes" and permit nearly pure all source analysis for the first time - yet without unmanageable security difficulties. If done right, moreover, TIA would be infinitely scalable: expandable to as many databases as our lawyers and policymakers deem to be appropriate.

TIA promises to be an enormously useful tool that can be applied to whatever data we feel comfortable permitting it to access. How broadly it will ultimately be used is a matter for policymakers to decide if and when the program bears fruit. It is worth emphasizing, however, that TIA would provide unprecedented value-added even if applied exclusively within the current Intelligence Community - as a means of finally providing analysts deep but controlled and accountable access to the databases of collection and analytical agencies alike. It would also be useful if applied to broader U.S. Government information holdings, subject to laws restricting the use of tax return information, census data, and other information. Ultimately, we might choose to permit TIA to work against some of the civilian "transactional space" in commercially-available databases that are already publicly and legally available today to marketers, credit card companies, criminals, and terrorists alike. The point for civil libertarians to remember is that policymakers can choose to restrict TIA's application however they see fit: it will be applied only against the data-streams that our policymakers and our laws permit.

Put more prosaically, it remains for this Congress to decide how widely the analytical tools to be provided by TIA are used - but it is imperative that Congress understand that the tools themselves are distinct from the databases to which they might have access.