A Joint Hearing of the Commercial and Administrative Law and Constitution Subcommittees of the House Judiciary Committee - Privacy and Civil Liberties
Federal News Service August 20, 2004 Friday
HEADLINE: A JOINT HEARING OF THE COMMERCIAL AND ADMINISTRATIVE LAW AND CONSTITUTION SUBCOMMITTEES OF THE HOUSE JUDICIARY COMMITTEE
SUBJECT: PRIVACY AND CIVIL LIBERTIES POST-SEPTEMBER 11TH
CHAIRED BY: REPRESENTATIVE CHRIS CANNON (R-UT); REPRESENTATIVE STEVE CHABOT (R-OH)
WITNESSES: LEE HAMILTON, VICE CHAIRMAN, AND SLADE GORTON, MEMBER, 9/11 COMMISSION; JOHN MARSH JR., TECHNOLOGY AND PRIVACY ADVISORY COMMITTEE; NUALA O'CONNOR KELLY, CHIEF PRIVACY OFFICER, HOMELAND SECURITY DEPARTMENT
BODY:
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REP. JERROLD NADLER (D-NY): Yes, thank you, Mr. Chairman. Mr. Chairman, given the importance of this matter and the fact that nearly three years have elapsed since the attacks of September 11th, I am pleased that we have returned to consider the recommendations of the 9/11 commission now without waiting as some have suggested until next year.
I want to welcome our former colleagues, Representative Hamilton and Senator Gorton, and to thank them for the important work they and their colleagues have done. I am also pleased that we have Secretary Marsh here today. The issues that gave rise to the Secretary's Technology and Privacy Advisory Committee are also implicated in the committee's recommendations, so it's important we have the benefit of your work.
Finally, I want to welcome back Ms. O'Connor Kelly. The 9/11 commission has recommended in some what general terms that we set up a civil liberties oversight board. The TAPAC commission has similarly recommended that the secretary of Defense create a policy-level privacy officer. Congress will have to work out the details. I hope that your experience as the privacy officer for the Department of Homeland Security can shed some light on how we might ensure the independence and effectiveness of the offices created pursuant to these recommendations.
The need to improve capabilities and coordination within the intelligence and law enforcement communities was all too well demonstrated on September 11th. Thousands of innocent citizens who did nothing more than board an aircraft or go to work were barbarically slaughtered. We ignored our nation's peril for lessons we can draw from the intelligence failures leading up to those crimes, and other recent intelligence fiascos.
At the same time, increased government powers carry with them increased threats to the rights of all citizens. We expect our government to keep us safe, but we are also a nation with a healthy mistrust of unfettered governmental power. Our whole system of government combines limited powers with checks and balances that must be maintained. Rights sacrificed in the time of emergency are often lost forever. Actions taken in the heat of the moment are often a source of shame and regret to later generations.
So our job is to strike an appropriate and workable balance. It's not easy. As the members of the commission have noted in the report, and I quote, "While protecting our homeland, Americans should be mindful of threats to vital personal and civil liberties. This balancing is no easy task, but we must constantly strive to keep it right. This shift of power and authority to the government calls for an enhanced system of checks and balances to protect the precious liberties that are vital to our way of life." And a little further on the commission notes that the provisions-talks in general terms about the provisions of the Patriot Act and some of the beneficial provisions of the Patriot Act, and then says, "Because of concerns regarding the shifting balance of power to the government, we think that a full and informed debate on the Patriot Act would be healthy." The commission makes three general recommendations for specific measures to balance civil liberties and national security.
Mr. Justice Marshall, in a noted decision of the Supreme Court 200 years ago in Marbury v. Madison, a decision that has been somewhat criticized by one member of this committee, noted-and I'm paraphrasing here because I don't have the exact quote before me-it is emphatically the province of the judiciary to say what the law is. And that is true: it is emphatically the province of the Judiciary Committee to begin the process of having Congress strike the proper balance between national security, homeland security and protection of our civil liberties. And that is our job. I appreciate the beginning guidance that the commission has given us and recommended that we strike that balance. But we have to determine how we strike that balance, and I'm glad and I appreciate the chairman calling this hearing as a beginning of that process so that we can carefully consider all of the things we have to consider to strike that balance, and with all deliberate speed enact legislation to do that. So I'm glad we're having this hearing, and I thank you. Thank you, Mr. Chairman.
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REP. CANNON: The gentleman yields back.
Mr. Nadler, would you like to take the five minutes? The gentleman is recognized for five minutes.
REP. JERROLD NADLER (D-NY): Yes. Thank you, Mr. Chairman. Aug 20, 2004 12:17 ET .EOF
Congressman Hamilton, Senator Gorton, in your statement, in your joint statement, you said that the test referring to the Patriot Act and some other things, the test is simple but important when the burden of proof should be on the proponents of the measure to establish that the power or the authority being sought would in fact materially enhance national security, and that there would be adequate supervision of the exercise of that power or authority to ensure protection of civil liberties. It's sort of a but-for test-but for this power would we be less safe?
This committee has repeatedly asked the attorney general that question with respect to-or at least some members of this committee have repeatedly asked the attorney general that question with respect to various provisions of the Patriot Act, and we have been unable to get any specific responses. In other words, if this power which the Patriot Act grants had existed pre-9/11, if that power had existed pre-9/11, would it have made a difference preventing 9/11 for example in your opinion? We have been unable to get any answer to that. So my question is, in light of that experience, with respect to the privacy board or privacy officers that you are proposing, what steps do you think we need to take to make sure these officials, one, are independent; two, are able to get the information they need to get in order to do their work-information as I said this committee often cannot get; and, three, that they have the clout needed to have an impact?
MR. HAMILTON: Well, Mr. Nadler, those are difficult questions to answer, because they really go to the power of the Congress to conduct effective oversight. And my view-I guess not the commission's view-I shouldn't try to speak for the commission at this point-but I'm very concerned about the robust-the lack of robustness if you would, or aggressiveness in congressional oversight today. We did not try to get into the specifics of the Patriot Act, except with regard to the one provision on the law of separation. But we did suggest this test for any official, and that's as deeply as we went into it.
When the executive does not respond to the Congress, your-and that-incidentally, we hear that complaint often in our-in appearing before different committees. And it appears to me that the problem is quite pervasive in the executive-congressional relationship. It's not anything that's new-it goes back for a good many years. I think there's a lot of timidity in the Congress with regard to its exercise of oversight. And at the end of the day they're only going to pay attention to you if you have budget authority with them.
REP. NADLER: But that brings up the real question I'm asking-is not simply the-I think this Congress has been very timid in exercising oversight too, but that's really a separate issue. My point was that we have been unable to get the information. In light of that experience, if we're to establish this privacy board or these privacy officers that you're recommending, what do we have to do to make sure that they can get the information that we haven't been able to get, that they can get information that they need once we have established that they're independent and they have the clout? What powers do we have to give them, what authority do have to give them to make sure they can do the job that you're outlining for them?
MR. HAMILTON: Mr. Nadler, we simply didn't try to get into the details of the powers that the board would have. You mentioned I think a moment ago that Congress has to fill in the details, and this is a major detail that you'd have to fill in. My own personal view is the board should have quite robust powers. And the important thing here to recognize is that what we have recommended calls for a great deal of government intervention and strengthening of government powers over individual lives. That's just inherent in counterterrorism policy. You are greatly expanding the role of government when you're fighting terrorism, and we think it's necessary because of the threat.
REP. CANNON: Mr. Nadler --
REP. NADLER: Can I have one additional minute?
REP. CANNON: Without objection.
MR. HAMILTON: And you have to have some check on that expansion --
REP. NADLER: Which brings me to the other question I've been trying-I've wanted to ask, and that is an internal board cannot take the place in my opinion of meaningful court oversight. So to what extent do you think-so Secretary Marsh is probably the better-the person I'd want to ask this question to-to what extent should there court judicial review of the actions or lack of actions of this board or these privacy officers?
MR. MARSH: Well, we recommend that there be oversight internally, and that the oversight will be in the courts. We feel that court review at various junctions of this is a very, very powerful method of protecting or --
REP. NADLER: So it shouldn't be an arbitrary and capricious standard. You should have better access --
MR. MARSH: We insist on access to the FISA courts wherever you're dealing with a U.S. person.
REP. CANNON: The gentleman's time is expired --
REP. NADLER: Thank you, Mr. Chairman.
REP. CANNON: -- another minute or two?
REP. NADLER: Well, yeah, I would, thank you.
REP. CANNON: Without objection, the gentleman is recognized for an additional two minutes.
REP. NADLER: Thank you, I'd like to get-Senator Gorton seems to be interested in answering this too. But the question I hope you'd address is the court should have oversight, but very often even usually the court's oversight of administrative agencies is limited to an arbitrary and capricious standard, which means what the agency does generally goes, unless their conduct is really egregious. Should we establish some other standard for review, give the courts more power in effect to second-guess what this board or these privacy officers might do or not do?
MR. GORTON: Mr. Nadler, I have three points in answer to your very good question. First, in the two areas, really both relating to the law, in which we did express an opinion, that portion of the Patriot Act met the tests that we had set out. That was number one.
Number two, you all in your wisdom of course passed the Patriot Act with an expiration date.
REP. NADLER: Part of it has an expiration date.
MR. GORTON: And at least as far as that part is concerned, you have the ultimate power-the Justice Department obviously is going to have to answer your questions, or you are going to have to just lie down and ignore a failure to do so. But that probably is the greatest single power that you have reserved for yourself to see to it that you as the Congress get the answers --
REP. NADLER: But these privacy officers and this board are not going to have the power to not do the --
MR. GORTON: Yeah, the board --
REP. NADLER: So what do we give them?
MR. GORTON: We recommended the creation of a board that could protect these rights. As Lee said, we have not gone into all of the details as to where it should be. Some of the members thought it ought to be in the Department of Justice. I think given your questions, you would probably incline to think-inclined to believe that it ought to be an independent agency or board. Those are decisions for you all to make, as are the decisions as to the degree of the review from it or the right of an leadership to sue outside of the system with respect to the law --
REP. NADLER: I'm less concerned where we put it than what powers it has, how independent it is and how they can force the executive to comply with whatever decisions it makes.
MR. GORTON: It should be independent, and it should be powerful enough so that it gets listened to.
REP. NADLER: Thank you. Thank you, Mr. Chairman.
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