The Protection of Civil Liberties
Many of our recommendations call for the government to increase its presence in
our lives-for example, by creating standards for the issuance of forms of
identification, by better securing our borders, by sharing information gathered
by many different agencies. We also recommend the consolidation of authority
over the now far-flung entities constituting the intelligence community. The
Patriot Act vests substantial powers in our federal government. We have seen the
government use the immigration laws as a tool in its counterterrorism effort.
Even without the changes we recommend, the American public has vested enormous
authority in the U.S. government.
At our first public hearing on March 31, 2003, we noted the need for balance
as our government responds to the real and ongoing threat of terrorist attacks.
The terrorists have used our open society against us. In wartime, government
calls for greater powers, and then the need for those powers recedes after the
war ends. This struggle will go on. Therefore, 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. We therefore make three recommendations.
First, as we will discuss in chapter 13, to open up the sharing of
information across so many agencies and with the private sector, the President
should take responsibility for determining what information can be shared by
which agencies and under what conditions. Protection of privacy rights should be
one key element of this determination.
Recommendation: As the President determines the guidelines for
information sharing among government agencies and by those agencies with the
private sector, he should safeguard the privacy of individuals about whom
information is shared.
Second, Congress responded, in the immediate aftermath of 9/11, with the
Patriot Act, which vested substantial new powers in the investigative agencies
of the government. Some of the most controversial provisions of the Patriot Act
are to "sunset" at the end of 2005. Many of the act's provisions are
relatively noncontroversial, updating America's surveillance laws to reflect
technological developments in a digital age. Some executive actions that have
been criticized are unrelated to the Patriot Act. The provisions in the act that
facilitate the sharing of information among intelligence agencies and between
law enforcement and intelligence appear, on balance, to be beneficial. 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.
Recommendation: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.
Third, during the course of our inquiry, we were told that there is 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. If, as we recommend, there is substantial change in
the way we collect and share intelligence, there should be a voice within the
executive branch for those concerns. Many agencies have privacy offices, albeit
of limited scope. The Intelligence Oversight Board of the President's Foreign
Intelligence Advisory Board has, in the past, had the job of overseeing certain
activities of the intelligence community.
Recommendation: 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.
We must find ways of reconciling security with liberty, since the success of
one helps protect the other. The choice between security and liberty is a false
choice, as nothing is more likely to endanger America's liberties than the
success of a terrorist attack at home. Our history has shown us that insecurity
threatens liberty. Yet, if our liberties are curtailed, we lose the values that
we are struggling to defend.
