http://www.cdt.org/testimony/031118dempsey.pdfStatement of James X. Dempsey
Executive Director
Center for Democracy & Technology
before the Senate Committee on the Judiciary
?America after 9/11: Freedom Preserved or Freedom Lost??
November 18, 2003
Mr. Chairman, Sen. Leahy, Members of the Committee, thank you for the opportunityto testify today at this important set of oversight hearings on the nation's responses to terrorism and the impact on civil liberties. Since 9/11, the federal government has engaged in
serious abuses of constitutional and human rights.
The most egregious of these abuses have taken place outside of the PATRIOT Act or any other Congressional authorization. In the PATRIOT Act itself, not surprisingly given the pressures under which that law was enacted, the pendulum swung too far, and Congress eliminated crucial checks and balances that should now be restored in the interest of both freedom and security.
Terrorism poses a grave and imminent threat to our nation. The government must have strong legal authorities to prevent terrorism to the greatest extent possible and to punish it when it occurs. These authorities must include the ability to conduct electronic surveillance, carry out searches effectively, and obtain business records pertaining to suspected terrorists.
These powers, however, must be guided by the particularized suspicion principle of the Fourth Amendment, and subject to Executive, legislative and judicial controls
as well as a measure of public oversight.During consideration of the PATRIOT Act and today, the debate has never been about whether the government should have certain powers. Instead, the focus of concern has always been on what standards those powers should be subject to. Of course, the FBI should be able to carry out roving taps during intelligence investigations of terrorism, just as it has long been able to do in criminal investigations of terrorism. But the PATRIOT Act standard for roving taps in intelligence cases lacks important procedural protections applicable in criminal cases. Of course, the law should clearly allow the government to intercept transactional data about Internet communications (something the government was doing before the PATRIOT Act anyhow). But the pen register/trap and trace standard for both Internet communications and telephones is so low that judges are reduced to mere rubber stamps, with no authority to even consider the factual basis for a surveillance application. Of course, prosecutors should be allowed to use FISA evidence in criminal cases (they did so on many occasions before the PATRIOT Act) and to coordinate intelligence and criminal investigations (there was no legal bar to doing so before the PATRIOT Act). But prosecutors should not be able to initiate and control FISA investigations, and FISA evidence in criminal cases should not be shielded from the adversarial process (as it has been in every case to date).
Prior to 9/11, the government had awesome powers, but failed to use them well. Those failures had little if anything to do with the rules protecting privacy or due process, but
the Executive Branch has proceeded since 9/11 as if the elimination of checks and balances would make its efforts more effective. The lessons of history and the experience of the past two years show that law enforcement and intelligence agencies without clear standards to guide them and without oversight and accountability are more likely to engage in unfocused, unproductive activity and more likely to make mistakes in ways that are harmful to civil liberties and ineffective, even counterproductive from a security standpoint. The promised trade-off between freedom and security is often a false one. There are undoubtedly people in the United States today planning additional terrorist attacks, perhaps involving biological, chemical or nuclear materials. Yet it is precisely because the risk is so high that we need to preserve the fullest range of due process and accountability in the exercise of government powers.
<more>
The Center for Democracy and Technology is a non-profit, public interest organization dedicated to promoting civil liberties and democratic values for the new digital communications media. Our core goals include enhancing privacy protections and preserving the open architecture of the Internet. Among other activities, CDT coordinates the Digital Privacy and Security Working Group (DPSWG), a forum for computer, communications, and public interest organizations, companies and associations interested in information privacy and security issues.
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