CDT Testimony

Statement of James X. Dempsey
Deputy Director
Center for Democracy & Technology

before the
House Committee on the Judiciary

Legislative Measures to Improve America's Counter-Terrorism Programs

September 24, 2001


Mr. Chairman, Mr. Conyers, members of the Committee, thank you for the opportunity to speak at this briefing on the momentous question of improving our nation's defenses against terrorism in a manner consistent with our fundamental Constitutional liberties.

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 more than 50 computer, communications, and public interest organizations, companies and associations working on information privacy and security issues.

CDT joins the nation in grief and anger over the devastating loss of life resulting from the September 11 terrorist hijackings and attacks against the World Trade Center and the Pentagon. Like many, our relatively small staff had friends and acquaintances killed in those heinous acts. We fervently support the efforts of our government to hold accountable those who direct and support such atrocities.

It is clear that improvements need to be made in America's counter-terrorism procedures, and it appears there are many things that can be done without harming civil liberties. But we know from history that measures hastily undertaken in times of peril - particularly measures that weaken controls on government exercise of coercive or intrusive powers -- often infringe civil liberties without enhancing security. In the current climate, it is all the more important to act deliberately and ensure that our response is balanced and properly targeted. If we give up the constitutional freedoms fundamental to our democratic way of life, then the terrorists will have won.

In that regard, Mr. Chairman, we commend you and the Committee for holding this briefing to consider the legislative proposals put forth by the Administration. Through the hearing process you and the American public must try to understand three things:

  1. what is being proposed,
  2. how it would affect current law, including the intelligence reforms put in place 25 years ago, and
  3. whether the changes are responsive to deficiencies that the September 11 attack may have revealed.

CDT is at your disposal and at your staff's disposal to help answer these questions. Quite honestly, though, I must say that this one session is not likely to resolve the major questions raised by all the proposals. Some of the more fundamental changes being proposed by the Justice Department will best be deferred for more consideration.

If there are specific authorities immediately needed by the current investigators into the September 11 attacks, those authorities could be separated from the rest of the proposals and considered as quickly as possible.

Just as President Bush and his military advisers are taking their time in planning their response, to ensure that they hit the terrorist targets with a minimum of collateral damage, so it is incumbent upon this Congress to avoid collateral damage to the Constitution.

Overview Comments on Administration Proposals

The Administration's Anti-Terrorism Act of 2001 would expand federal government authorities, including the authorities of the intelligence agencies, to conduct electronic surveillance and otherwise collect information on US citizens. Some of the changes are quite fundamental. The bill includes numerous, complex provisions extending the surveillance laws (while raising many questions about how they will be implemented) and altering the long-standing distinction between criminal investigations and foreign intelligence investigations. Upon our hurried analysis over the last several days, this is what we have concluded:

In terms of the issues within the jurisdiction of this Committee, these are our top concerns:

The Administration's bill has two kinds of provisions that give rise to concerns: those that would lower the standards for government surveillance and those that address the difficult question of information sharing.

In terms of collection standards, our law enforcement and intelligence agencies already have broad authority to monitor all kinds of communications, including email. Both the criminal wiretap statute and the Foreign Intelligence Surveillance Act already cover terrorism. For some time, it has been recognized that those standards need to strengthen the standards for government surveillance. We see no justification for the changes proposed in the Administration bill that weaken those standards. We are particularly opposed to changes that would eliminate the judicial review that can be the most important protection against abuse.

The Foreign Intelligence Surveillance Act allows the FBI to conduct electronic surveillance and secret physical searches in the US, including surveillance of US citizens, in international terrorism investigations. FISA also authorizes court orders for access to certain business records. As you know, the standards under FISA are much lower than the standards for criminal wiretaps, and in return, the surveillance is supposed to be focused on the collection of intelligence, not criminal evidence. The FISA court, which last year approved more than 1000 surveillance requests, has denied only one request in its 22 year history.

The legal and oversight system for intelligence sprang not just from a concern about civil liberties, but also from a concern about improving the efficacy of intelligence gathering.

Distinct from the Administration's unsupportable desire to avoid judicial controls on its authority, perhaps the central and most important problem facing the Congress is the question of information sharing. For many years, this has been recognized as a very difficult question; it is one that will be especially difficult to resolve satisfactorily given the pressure-cooker atmosphere of this time. We want to work out a balanced solution. But it cannot be done by wiping away all rules and barriers. Any solution needs to preserve the fundamental proposition that the CIA and other intelligence agencies should not collect information on US citizens in the US. A first step should be to develop a better understanding of the extent to which the problems are institutional as compared to legal.

Comments on Specific Provisions


Again, Mr. Chairman, and Members of the Committee, we commend you for holding this briefing. Frankly, however, given the scope of what the Administration is asking for, we do not believe that this single session is sufficient to understand many of the proposals being put forth. We urge you to seek a consensus bill, leaving for later resolution the more complex issues.