U.S. SENATOR PATRICK LEAHY

Statement of Senator Patrick Leahy
On Proposed Creation Of A Civil Liberties Board

October 6, 2004 
 

Mr. LEAHY.  Mr. President, I rise today to discuss the provisions in the Collins-Lieberman bill establishing a privacy and civil liberties oversight board and to respond to some of the disturbing discourse and efforts to undermine those provisions. 

It is unquestioned that one of the key recommendations of the 9-11 Commission was the creation of a civil liberties board to fill a clear void in government structure for addressing these concerns.  The Commission discovered that there was “no office within the government whose job it is to look across the government at the actions we are taking to protect ourselves to ensure that liberty concerns are appropriately considered.”  In response to this vacuum, the Commission explicitly recommended that “at this time of increased and consolidated government authority, there should be a board within the executive branch to oversee adherence to the guidelines we recommend and the commitment the government makes to defend our civil liberties.”  The 9-11 Commission concluded:   “We must find ways of reconciling security with liberty, since the success of one helps protect the other.”   

The Commission was certainly right.  There is no doubt that such a board is needed given the heightened civil liberty tensions created by the realities of terrorism and modern warfare.  The tools of the information age include precise data-gathering, networked databases, and tracking and sensing technologies impervious to the common eye.  The legal tools are similarly powerful, ranging from substantial capabilities under the USA PATRIOT Act and under our immigration laws.  As the Commission noted, “[e]ven without the changes we recommend, the American public has vested enormous authority in the U.S. government.”  In an even more pointed and ominous assessment of these powers, Vice Chairman Hamilton noted, in a recent Judiciary Committee hearing, these developments are “an astounding intrusion in the lives of ordinary Americans that (are) routine today in government.”   

One of my colleagues suggested that this bill is solely to strengthen our intelligence tools and “not a bill regarding our civil liberties.”  But this is a myopic view.  You cannot divorce one from the other.  Security and liberty are always in tension in a free society, and that is readily apparent today.  It is our vigilant duty to work hard at striking the right balance.  We must enhance our capabilities, but with such powerful tools comes heightened responsibility, and the Commission has challenged us to take up those reins:   “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.”   

We have an obligation to ensure that there are mechanisms in place that will see to it that this power is subject to appropriate checks and balances and Congressional oversight.  An effective civil liberties board can help provide those checks and contribute to preserving both liberty and security. 

We need a civil liberties board whose members collectively can think critically and independently about the policies we implement as a Nation and about how they affect our fundamental rights.  The board must be able to participate in the policymaking process, review technology choices and options, peer into various agencies and assess actions, review classified materials and investigate concerns.  This board must have the versatility to work closely with government officials, but at the same time it must be sufficiently independent to assess those government policies without fear, favor or compromise.  Given these significant responsibilities, it is equally important that the board be accountable to Congress and the American people.  

The civil liberties board outlined in the Collins-Lieberman bill makes great strides toward meeting these goals.  It represents a true bipartisan effort from conception to introduction.  I was pleased to work with these Senators along with Senator Durbin to make this civil liberties board the kind of board that would honor the 9-11 Commission’s intent.  It should not go without notice that Commissioners Slade Gorton and Richard Ben-Veniste issued a bi-partisan statement that, “A civil liberties board of the kind we recommend can be found in the Collins-Lieberman bill in the Senate.” 

This legislation establishes a bipartisan board that would have access to the documents and information needed to assess our counterterrorism policies that affect the vital civil liberties of the American people.  It provides a mechanism for them to work closely with Administration officials, including working with a network of newly created department-level privacy and civil liberty officers, whose proximity to decision makers will ensure that these concerns are considered from the earliest stages of policy formation.  It requires the board to report to Congress on a regular basis, and -- without compromising classified information -- to inform the public about policies that affect their vital liberties. 

Unfortunately, Senator Kyl’s Amendment 3801 attempts to gut the carefully crafted, bipartisan civil liberty and privacy provisions that are the hallmark of the Collins-Lieberman bill.  It is inconsistent with the recommendations of the 9-11 Commission and would undermine the civil liberties that we cherish.   

First, Senator Kyl’s amendment attempts to cut off the information flow that would ensure that the board could accurately, reliably and effectively advise on the impact of policies on privacy and civil liberties.  It would also eliminate the board’s ability to subpoena people outside of the government who may have important information, such as private sector data collectors working on behalf of the government.  It would also eliminate the privacy officers, as well as public hearings and reports to the public. 

It is clear that the Commission intended for the board to have access to the information that it needed in order to effectively assess policy.  In a recent House Judiciary Committee hearing, Vice Chairman Hamilton said, “The key requirement is that government agencies must be required to respond to the board.”  He went on to note that the Commission itself had subpoena power, and “if we had not had it, our job would have been much, much more difficult.”  I would note that the Collins-Lieberman bill does not go as far as to mandate subpoena power over government officials, but rather only over relevant non-government persons.  

Given the secrecy and civil liberty concerns that have been pervasive in this Administration, we should be enhancing information flow and dialogue, not eliminating it.  It is ironic that at the same time that the Administration has been making it more difficult for the public to learn what government agencies are up to, the government and its private sector partners have been quietly building more and more databases to learn and store more information about the American people themselves.   

Second, Senator Kyl’s amendment would eliminate a provision that gives the board important guidance on how to review requests by the government for new and enhanced powers.  This is a critical omission.  In order to balance liberty and security, we need to ensure that the board will be looking at policies through a prism that would allow for heightened security protection, while also ensuring that intrusions are not disproportionate to benefits, or that they would unduly undermine privacy and civil liberties.  This guidance would also keep the board focused on the right priorities and prevent the mission creep that some fear. 

Contrary to assertions that this would be a “citizen board” gone wild that would “haul any agent in anywhere in the world and grill him,” this board would consist of highly accomplished members who have the appropriate clearance to access classified information, who have extensive professional expertise on civil liberty and privacy issues, and who have the knowledge of how to view these concerns in the context of important anti-terrorism objectives.  Again, its subpoena power would be limited to non-government persons, and so could not used willy-nilly to drag in agents from the field. 

It simply cannot be that the government can create and implement policies that impinge on our liberties without having to account to anyone.  While that may make things convenient or easy, it certainly does not preserve the ideals of the country we are fighting to protect.  As the Commission reminded us, “if our liberties are curtailed, we lose the values that we are struggling to defend.” 

Some have suggested that we leave this responsibility to “federal agencies that are already equipped and designed for that function.”  But this misses precisely the point raised in the report.  There is currently no such suitable entity that can look across government and offer an independent, uncompromised assessment of the impact of government powers on civil liberties.  And I emphasize look, because some would suggest that we do not need a board with an affirmative obligation to go out and review policy.  To the contrary, what we do not need is passivity.  We need to be as vigilant about protecting our fundamental rights as we are in hunting down and capturing terrorists.  It is what Commissioner Gorton, a former Republican Senator from Washington, described as a “watchdog to assure maximum protection of individual rights and liberties in those programs.”  Similarly, Commissioner Hamilton has said that “it ought to have a very tough investigative staff and it ought to be a very active board and agency.” 

Others have suggested that the Administration’s recent efforts are a suitable substitute.  I strongly disagree.  Rather, the Executive Order attempted to foist upon us an anemic civil liberties board.  I and several of my colleagues noted in a letter to the President that the board was not a bipartisan or independent entity.  It had no authority to access information and it had no accountability.  It was housed in the Department of Justice, and it was comprised solely of Administration officials from the law enforcement and intelligence communities, precisely the communities that the board would have an obligation to oversee.  It was the proverbial case of the fox guarding the henhouse.  This would not have resulted in a vigorous consideration of policy that the Commission intended. 

As the Commission noted, the “burden of proof for retaining a particular governmental power should be on the Executive, to explain (a) that the power actually materially enhances security and (b) that there is adequate supervision of the Executive’s use of the powers to ensure protection of civil liberties.  If the power is granted, there must be adequate guidelines and oversight to properly confine its use.”  

We should be looking for ways to ensure that this burden of proof will be met, rather than weakening oversight and accountability. 

As the 9-11 Commission noted, when it comes to security and civil liberties, “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.”   

Senator Kyl’s amendment fails to “keep it right,” and I urge that the Senate honor the spirit of the recommendations of the 9-11 Commission, and reject it. 

I ask unanimous consent that a letter to President Bush from myself and my colleagues Senators Kennedy and Feingold on the subject of the Civil Liberties Board be printed in the Record. 

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