July 03, 2003
Security, Civil Liberties and FreedomSuggested Remarks to the Eugene City ClubThanks so much for having me back. If you watch the news at all, you hear a lot about the power struggles going on back in Washington these days. The news is full of stories about conservatives wanting this, while liberals want that. The House wants that, while the Senate wants this. To me, though, one of the most important struggles in Washington right now has been quiet - too quiet for my taste. It's the tug of war between protecting this nation from terror and preserving the freedoms that make America worth protecting. I think it's particularly appropriate for us to talk about this struggle as the country prepares to celebrate the 4th of July.This country was founded on principles of freedom by people who wished to live as they please, to worship as they please, to have a stake in a government in exchange for the taxes they paid. Think about it: people were willing to cross oceans, willing to risk death and to build a nation where there was none to ensure those freedoms for themselves. Two hundred and twenty-seven years later, Americans are no less passionate about liberty. And although it is quieter this time, the call has come to defend those freedoms again.In the days just after September 11, Congress passed several measures designed to shore up national security. I don't think any of my colleagues thought the bills we passed were perfect bills. I certainly didn't think so. They did contain important measures for the time. But now, with almost two years' perspective on the September 11 tragedy, I believe that Congress has the opportunity - and really, a duty - to strike a more proper balance between security and civil liberties. Right now, the Executive Branch has greater powers to pursue potential enemies to the U.S. than at any time since World War II. Now, the Bush administration is asking for more powers to look for terrorists in America. These powers could let the federal government spy on law-abiding Americans in increasingly sophisticated and invasive ways.At first blush, that might sound like a good idea. If you snoop on everyone all the time, you're more likely to spot a few criminal someones at the moment they're up to no good. But the problem is, that's not how this great country is supposed to work. The police can't just stop someone on the street and frisk them for no reason. Current privacy law is supposed to prohibit private companies and the government from rummaging through your online records.Unfortunately, some of these proposals would just pick regular Americans up by the ankles and shake them to see if anything funny falls out. To me, powers like that are too broad to be acceptable.I believe that it's possible, and absolutely essential, to fight terrorism vigorously without cannibalizing civil liberties. That's why I've made it my business to draw a bright line between the powers necessary for protection, and the ones that start us down the slippery slope to less freedom.The struggle to figure out just where that line should be has crystallized in four major areas. Three are in Federal law: the Total Information Awareness Program, now known as Terrorism Information Awareness. The CAPPS II program, which is the Transportation Safety Administration's Computer-Assisted Passenger Profiling System. And, the Patriot Act and the possibility of a Patriot II. The fourth was in our own state of Oregon: this state became a seminal battleground for security and civil liberties just a couple of years ago. I'd like to spend a few minutes sharing with you what I've learned in my focus on these issues.Have you ever heard a more chilling name for a program than the Total Information Awareness? When the first hue and cry went up about this idea, I wasn't surprised. TIA is, without a doubt, the most sweeping surveillance program ever proposed in the United States. When folks voiced their concerns at the outset, Admiral John Poindexter at least had the sense to scrap the creepy-looking logo with the pyramid and the eye. Just last month the name of the program changed to Terrorism Information Awareness. But trust me when I tell you that the underlying purpose of TIA has not changed one whit. Part of the TIA concept requires keeping track of individuals and understanding how they fit in to models. For instance, does a seemingly innocent individual conduct himself or herself according to a pattern that terrorists have exhibited in the past?To find out whether any current U.S. citizens fit the model of a terrorist, the TIA program would integrate the databases that already track our daily lives - like bank records, online purchases, and travel plans. Once integrated, these databases would serve as one big repository of information on most or all of the computer-linked transactions an individual makes. Then TIA would run the models - and see who looks like a terrorist. This technology would let Federal agencies develop risk profiles for millions of Americans as they look for questionable conduct.Now, I understand that terrorists aren't going to hang a shingle outside their hideaways announcing they've set up shop. I'm a member of the Intelligence committee. I know that extraordinary times call for extraordinary measures to track down these guys. I won't take a back seat to anyone on the relentless pursuit of known and suspected terrorists - I even wrote a law creating a single government-wide database to track actual terror suspects. But I couldn't stand by while the government proposed to shine a spotlight into the private lives of law-abiding citizens who are supposed to enjoy the protections of the Constitution of the United States. In seeking to do that, the TIA program crossed the line. Oregonians and millions of other Americans thought so too. All across this country, folks said that a vigorous response to terror is necessary, but a system designed to spy on Americans in America is not. It's not only unnecessary - it's contrary to the freedoms that the war on terror aims to protect.In my mind, such a broadly purposed program, snaking into so many areas of Americans' lives, cried out for Congressional oversight. So I wrote and won passage of an amendment requiring Congressional approval for deployment of any TIA technology to spy on U.S. citizens in the U.S. On this one, you should be proud of your Congress. When my amendment came to the floor, not one United States Senator disagreed that it was the responsibility of Congress to oversee this program. Not one United States Senator said no, Congress doesn't need to put the brakes on the most far-reaching government surveillance effort ever proposed. On the contrary, my amendment passed as a matter of course. Of course Congress had to insist on oversight of TIA. Of course such a surveillance plan couldn't be allowed to grow unchecked and unaccountable. Of course it was the duty of the Senate to protect the civil liberties and privacy of the people we represent. The other part of the amendment Congress passed required the Defense Department to report on its plans for developing TIA surveillance technology. I took delivery of that report about six weeks ago, and let me tell you - what they described left me with a lot more questions than answers. It only reinforced my conviction that Congress needs to approve any use of TIA technology.First, the report made much of the fact that TIA technology will only be used on "lawfully collected information." Most Americans don't know that the laws that protect consumer privacy do not apply when the data gets into the government's hands. So I want folks to understand that "lawfully collected information" includes anything and everything. There are no laws to protect "lawfully collected" medical records, travel records, and credit card and financial data once it gets in the government's hands. Plus, I'd like someone to find me a government official who's going to step up and say, hey, I collected this information in a corrupt way. So that's not much comfort. One line in the report talked about analysts imagining scenarios for terrorist attacks, to create models and run folks' records through them. I have a couple of problems with this. The first is just the indiscriminate checkup on random American citizens.But the second is this: I know America has good analysts who can probably come up with some pretty good ideas about how terrorists might strike. But if you look back at September 11, there was more than an imagined scenario at work. This country had evidence that should have sent us looking at flight schools and financial transactions for 19 people who were in this country and up to no good. I want to see a focus on evidence - not imagination. Government should focus its efforts on actual evidence of what's happening right now. If TIA technology is to be used, that's how it should be used. Otherwise, America will waste time, money and effort that could go to track actual terrorists. In the end, the TIA report showed a program developing a lot of really high-powered technology, but didn't offer many answers about the plans to deploy it. The report underscored TIA's reliance on pattern-recognition. That's the exercise I described, of culling through unspecified databases looking for patterns in financial transactions, telephone calls other activities. But nothing explained what the plan is to keep the pattern-recognition process from sweeping innocent Americans up in the net. TIA wants to employ quite a bit of bioinformatics technology, like Human Identification at a Distance and Next Generation Face Recognition. These are really interesting technologies that can spot certain physical traits. But the report said that quote, "biometric signatures will be acquired from various collection sensors, including video, infrared and multi-spectral sensors." As I read I thought, well, where are those sensors going to be and how many people will they be pointed at? I'm assuming there won't be terrorists lining up to get their faces put in the face recognition system, so will there be some sort of wide collection of face prints from the public? This report didn't say. I don't want that technology deployed until I know. And believe me, I've sent the TIA planners a list of the questions that came up as I read this report. I'm expecting more answers soon.In the case of CAPPS II, the Computer Assisted Passenger Profiling System - there are just as many unanswered questions as there are about TIA. CAPPS II will do a computer search on every airline passenger to determine who should be subject to more careful security screening. In extreme cases, some people won't be allowed to get on planes.I=m all in favor of finding ways to be smarter about aviation security. I'm in favor of targeting aviation security resources more efficiently. Spending a lot of time frisking and searching people who clearly pose no threat doesn't do any good.But a system that seeks information on every traveler to assign a score to each one, indicating who may pose a threat - that raises some very serious privacy questions with me. I put an amendment on the air cargo security bill and the FAA reauthorization bill to get congressional oversight of this program, too. My CAPPS II amendment directs TSA to report to Congress on the privacy implications of the CAPPS II system, and to answer some key questions. I intend to make this report available to the public, just as I made the TIA report available in May.The only detailed written information on CAPPS II was published in the Federal Register on January 15, 2003. It basically outlines a broad-based program - like TIA - that will house records such as quote, Arisk assessment reports; financial and transactional data; public source information; proprietary data; and information from law enforcement and intelligence sources.@ This broad array of information may then be disclosed to quote, AFederal, State, territorial, tribal, local, international, or foreign agencies.@ That's it. No more details on what any of that actually means to Joe and Mabel Citizen.It is no wonder the public is already up in arms about this. In one survey, 82 percent of people said the program sounded like an invasion of privacy. That just goes to show that the longer you offer such broad generalizations and keep people in the dark about the details, the more nervous they get. The more it seems like the government has something to hide. Americans want to know whether CAPPS II is narrowly limited, or whether it could become an all-purpose snooping system. Again, verbal assurances that these technologies will be used only on Alawfully collected information@ are not enough. Americans want to know whether there are strong safeguards to ensure that the system won=t be abused, and sound procedures to help passengers address mistakes.If you've been reading Margie Boule in the Oregonian at all, you've seen her columns on the problems passengers are already having. Apparently, one person named David Nelson is a suspect somewhere in the United States, so every person named David Nelson is having a hard time getting on a plane. According to Margie, there are 17 or 18 guys named David Nelson in Oregon alone. They want the privacy issues of CAPPS II - particularly the part about getting mistakes fixed - addressed even quicker than I do.I've met with the TSA officials spearheading CAPPS II. They make a number of arguments that the privacy implications of the system are not as dire as they seem. So I view the report required by this amendment as an opportunity for TSA, not a burden or threat. If concern about CAPPS II is based on rumors and unfounded fears, this is TSA's chance. They can assure both Congress and the public, officially and in writing, that privacy concerns have been or can be addressed. If those concerns are not addressed, then an official written report will give Congress the information it needs to exercise oversight and establish some real accountability for the David Nelsons of the world, and for all of us.That's the growing concern, really - that there are too many areas now in which the Administration doesn't seem to have any accountability. If David Nelsons are having a hard time getting through the line at the airport, it's not hard to imagine the Patriot Act wrecking your life if there's a simple mistake. That bill contained some pretty serious powers - to declare people enemy combatants and hold them without access to attorneys or swift due process, among others. If that didn't run a chill up the country's collective spine, I'd be worried.Some provisions in the Patriot Act do make sense, like the so-called Aroaming wiretaps.@ We know terrorists will sometimes get twenty or thirty cell phones, use each to make one call and then toss them. The roaming wiretap lets a judge give wiretap authorization for ALL those phones. That's a reasonable investigatory power rooted in reality. But all the parts of Patriot, like the Asneak and peek@ provision that allows the government to perform searches without immediate notification, should be closely monitored to prevent abuse. And I'll be a lot more comfortable when some provisions disappear altogether.Many parts of the Patriot Act, particularly some that cause privacy concerns, will sunset on January 1, 2006. There have been moves on Capitol Hill and from the Administration to repeal the sunset clauses in the law, and let all the Act's powers stand indefinitely. I will tell you right now that I am opposed to repealing the sunset. As I've said, there are two years' perspective on the events of September 11. It would be unconscionable for Congress not to reduce and refine the sweeping powers given to the government after that attack.You know, in some of the darkest days of the last century, President Franklin Delano Roosevelt said that the only thing we have to fear is fear itself. America - and America's leaders - would do well to remember that. What terrorists can do to us is sobering, awful, terrifying. But America can only be destroyed from the inside - if terrorists frighten us into giving up the liberties we love. Bombs and murderous plots can't topple this nation. But fear that eclipses good governance can. I'm determined not to see that happen. Congress has a duty to respond to even the greatest threats with a rational - and restrained - hand.Analyses of an early draft of "Patriot II" legislation has raised concerns about the increased powers it might give the government - and about the veil of secrecy it could drape around even more government activities. I know Oregonians expect me to look closely at any Patriot II proposal, and I will. Frankly, I don't think Congress should even consider a Patriot II until the privacy issues of the first Patriot Act are addressed. That task is far from complete.There's no place for random investigations and virtual goose chases in the war on terrorism. But law enforcement and intelligence officials do need the tools to investigate suspected terrorists. Make no mistake, I want them to have those tools. That's why I've moved to keep Oregon from becoming a safe haven for those who would harm Americans and American interests.In 2001 a court decision called "Gatti" placed unreasonable constraints on Oregon investigators looking not just for terrorists, but other bad actors as well. A State Bar Association disciplinary rule made it unethical for attorneys to take part in any practice involving quote, "deceit or misrepresentation." The Federal McDade-Murtha law mandated compliance with state ethics rules. Important undercover investigations in this state just stopped.The Portland Innocent Images undercover program targeting child pornography was even shut down. The U.S. Attorney's Office had to tell the FBI: they could no longer participate in any operations that could be deemed deceptive by the State Bar.Talk about frustrating: no matter how vital the investigation, no matter how great the need, no matter how dangerous the criminals, federal, state and local prosecutors could not even give advice to help an undercover investigation.Child pornographers, drug pushers, and eco-terrorists were breathing easy in our state. They knew that law enforcement had lost its best weapon against them.Criminals - and not particularly sophisticated ones, who were caught without covert investigations - admitted they set up shop in Oregon because of the McDade situation. Then after September 11, the realization hit hard. Oregon's Gatti-McDade loophole gave dangerous criminals, including terrorists, practically an engraved invitation to set up shop here. By leaving one state vulnerable, the Gatti-McDade loophole made every state vulnerable.I explained to my colleagues that without advice of counsel, law enforcement operatives in Oregon could not conduct wiretaps, sting operations, or infiltrate dangerous criminal operations. And I made it clear that if the anti-terrorism legislation we were considering only worked in 49 states, it didn't work at all.Luckily, the Oregon State Bar Association saw the Gatti-McDade loophole for what it really was. It was an issue of state and national security, not the political football some folks in Washington made it out to be. By amending ethics rules to allow supervision of covert investigations, the Bar Association paved the way for cooperation between prosecutors and law enforcement - and untied the hands of attorneys and police on the front lines. I was proud to play a role in that.I want to go after the Mohammed Attas of the world. I want to keep this country safe for my own children and for all America's families. I just don't believe to build dossiers on millions of law-abiding citizens to do that.Now is the time for vigilance - against terrorism, and against tyranny. Now is not the time to charge headlong into new government powers that threaten Americans' privacy even more. It's the time to go back and fix the things that haste or necessity prevented from being perfected in the first place.Make no mistake; there are folks in Washington who disagree with me. Already, some in Congress and in the Administration have started trying to chip away at the congressional approvals required by my TIA amendment. They don't think CAPPS II needs further inquiry. They want Patriot II, Patriot III. But there's a strong and diverse force of folks who do support congressional oversight of these programs.Just a few months ago I stood in a room in the U.S. Capitol with representatives from groups as disparate as the American Civil Liberties Union and the Eagle Forum. They were there to express concern about the privacy implications of TIA and other government surveillance initiatives. Reservations don't get more ideologically widespread than that. And there's a good reason folks are concerned across such a broad spectrum.Some people say that much of the information TIA and CAPPS II will examine is already shared in the private sector, and so you shouldn't be concerned. They say if you keep your nose clean, Patriot and Patriot II won't affect you at all. But these proposals build on surveillance, information-sharing and law enforcement policies that already threaten the privacy of the American people. They combine those policies into huge efforts that could undermine privacy protections once and for all. Just because this Administration promises not to use the awesome power they're seeking for nefarious purposes today doesn't mean future leaders wouldn't abuse it. Letting these programs move forward without ensuring permanent safeguards and protections would threaten Americans not just today, but many years into the future.That's why Congress has a special task: to be vigilant against any proposal that would compromise the bedrock of this Nation - our Constitution. If TIA and other initiatives move forward at all, they have to do so in a fashion that is sensitive to American freedoms, while still ensuring that our Nation can fight terrorism. America was literally founded on a dream of freedom - and that dream of freedom came true. Our task now is to preserve the liberty that was dreamed for us more than two hundred years ago. This is a good country. Not a perfect one - but a great one. It is worth celebrating every Fourth of July. It is worth protecting every day. Oregonians should know I'll do all in my power to safeguard this nation and the liberties that make it great. That's my promise on this Independence Day eve. That's my promise to you always.Thank you.