Securing Freedom and the Nation - April 9, 2003

Louis Brandeis said, in words found in the U.S. Capitol, “the greatest dangers to liberty lurk in insidious encroachments by men of zeal well-meaning but without understanding.” His words carry real meaning as this Committee examines today the balance between our civil liberties and national security needs.

Clearly, the attacks on the World Trade Center and the Pentagon make it the highest priority of this committee to develop intelligence tools to prevent future attacks - attacks that we know are being planned and prepared as we speak.

We cannot fail to act. But, invariably, whatever actions we take to improve our defenses affect our civil rights and civil liberties and test our understanding of and support for the Constitution.

With new Executive Branch authorities must come new vigilance and Congressional oversight. In fact, recognizing the inherent tension between security and liberty and the need to strike an appropriate balance between them, Congress included both a privacy officer and a director of Civil Rights and Civil Liberties in the Department of Homeland Security. Both positions, regrettably, are still vacant.

Today’s hearing focuses on how to protect civil liberties as we employ new tools like data fusion and data mining, TSA’s CAPPS II profiling system, biometric data bases, and other technologies to connect and share intelligence information.

The march of technology raises difficult questions. Some believe that the pervasive reach of information technology and biometrics have already killed the right to privacy. But privacy is not the only goal. I am thankful that my credit card company recognizes unusual purchase behavior and can put a hold on my card. The harder question is how much unfettered access should the government have to intimate details of our lives? The total Information Awareness project at the Defense Advanced Research Projects Agency (DARPA) aroused alarm because of its director, former Admiral John Poindexter, and its reach. Congress has restrained domestic use of the project until its purposes are better understood. Similarly, safeguards need to be incorporated as the government designs and employs new data mining tools and other intelligence technologies and systems - such as software that keeps data anonymous until permission is granted to list the name of an individual. The new tools and the new safeguards need to be developed together. Unless this is done, the result will not be balanced. The value of today’s session is its emphasis on getting the balance right. This is not an academic exercise. It is the challenge we face. The question is not whether we will rebalance civil liberties and security, but rather how we do it. Our witnesses each bring a different perspective on this issue, and all have substantial training and expertise. They can help us in the rebalancing effort. I regret that authors of an impressive study by the Markle Foundation were unable to testify today. I recommend their product to our committee and quote from it: “Data mining, like any other government data analysis, should occur where there is a focused and demonstrable need to know, balanced against the dangers to civil liberties. It should be purposeful and responsible.” The Task Force also advised that safeguards and guidelines to protect civil liberties should be built into information systems and information handling procedures at their inception, rather than as an after-thought - the very point I have been trying to make. This hearing is unprecedented and needed. We have the opportunity to fashion a win-win: protecting the American people and protecting American values. In his review of the history of Pennsylvania, Ben Franklin said, “They that can give up essential liberty to obtain a little temporary safety, deserve neither liberty or safety.” Let us strive to deserve and preserve liberty and safety.