Testimony of ACLU Washington Legislative Office Director, Caroline Fredrickson, Before the Privacy and Civil Liberties Oversight Board

INTRODUCTION

I’m Caroline Fredrickson, director of the American Civil Liberties Union Washington Legislative Office and I represent more than 550,000 members and 53 affiliate offices across America. I’m pleased you invited me here today. This hearing is a welcome but long overdue first step in the right direction to air just some of the civil liberties transgressions of this administration over the past five years.  Our message to you is this: our democracy is at risk when the unprecedented threats to privacy and civil liberties undertaken in the name of the war on terror go unanswered and unchecked. We ask today: when did the American people become the enemy?

GRIEVANCES

So much has changed in America since 9/11. Unfortunately our privacy and civil liberties suffered significant collateral damage in the subsequent war on terror.  Americans have begun to piece together the puzzle and we’re asking, “Why does the president think we’re the enemy in the war on terror?”

We have learned, in incomplete bits and pieces, the executive branch’s aggressive abuse of power campaign that is stripping away our basic rights and freedoms as guaranteed by the Constitution and the Bill of Rights.  Here are the violations of civil liberties that most concern the ACLU:

• Warrantless wiretapping and consumer call information -- In violation of federal statutes and the U.S. Constitution, the National Security Agency is listening, without a warrant, to telephone calls involving Americans who are in the United States who are talking to people abroad.  In August, 2006, a federal judge in Detroit found the eavesdropping program both unconstitutional and illegal as a result of an ACLU lawsuit.  The NSA is also scanning phone records turned over to it by telecommunications companies that violated state statutes and regulations when they provided sensitive customer calling information to the NSA.  The NSA also gained direct access to the telecommunications infrastructure through the willing cooperation of some of America's largest phone companies.  And, the NSA appears to be using broad "data mining" systems that allow it to analyze information about millions of innocent people in the United States without clear legal authority to do so and at the cost of Americans' privacy. 
• Torture, kidnapping and detention – The government continues to claim that it has the power to designate anyone, including Americans, as “enemy combatants” without charge.  Investigations into detention centers have revealed severe human rights abuses and violations of international law and the Geneva Conventions.  The government has also engaged in the practice of rendition: secretly kidnapping people and moving them to foreign countries where they are tortured and abused.  Last week, ACLU client Khaled El- Masri traveled from his home in Germany to Richmond, Virginia and Washington D.C. to describe his appalling experience of being abducted and tortured for months, then being dumped along the side of a road in Albania.  El-Masri is our client in the ACLU's landmark lawsuit on his behalf charging former CIA director George Tenet, other CIA officials and U.S.-based aviation corporations with violations of United States and universal human rights laws.  The U.S. government-sponsored torture of the past several years is a shameful chapter in American history and it must stop.
• A growing surveillance society – In perhaps the greatest assault on the privacy of ordinary Americans, the country is undergoing a rapid expansion of data collection, storage, tracking and mining.  Over and above the invasion of privacy represented by any one specific program, a combination of new technologies, expanded government powers and expanded private-sector data collection efforts is creating a new “surveillance society” beyond what George Orwell could have imagined.  Recently, we heard reports of a Bush Administration administration project known as Tangram – named after a children’s shape-shifting puzzle – that seems to be the infamous Total Information Awareness program that Congress shut down, reborn under a new name.
• Patriot Act reauthorization – Several Patriot Act provisions were set to expire at the end of 2005, but Congress reauthorized the law without reforming its most flawed provisions.  It passed up an opportunity to ensure adequate judicial oversight of the surveillance powers authorized in the Patriot Act.  With several provisions set to expire again in 2009, Congress must use this time to make meaningful changes to bring this law in line with the Constitution.
• Government secrecy – The Bush administration has been one of the most secretive in our history.  The Freedom of Information Act has been weakened through willful noncompliance, the administration has led a campaign of reclassification and increased secrecy -- including the expansion of a catch-all category of “sensitive but unclassified” -- and has made sweeping claims of “state secrets” to stymie judicial review of its policies that erode civil liberties.  Until recently it even refused to grant administration investigators the security clearances they needed to investigate the illegal and unconstitutional NSA wiretapping program.  This Board board had to wait 11 months to be even partially briefed on some aspects of a program the public learned about from the New York Times almost one year ago.  The administration wants to prosecute journalists under the Espionage Act of 1917 to thwart the media’s role in exposing questionable, and illegal conduct.
• Real ID – The Real ID Act lays the foundation for a national ID card.  Under the law, states must standardize their driver’s licenses (under standards that have yet to be determined) and link to databases shared with every federal, state and local government official in every other state. Conservative estimates place the cost of the program at $11 to 17 billion.  The aggregation of our private information into one massive database would create “one stop shopping” for identity thieves.  The act also makes it more difficult for persecuted people to seek asylum. Yet, defying all logic, the Department of Homeland Security refuses to build data privacy protections into the database, the ID card or the data transmission systems because the Act act fails to mention the word “privacy.” 
• No fly lists – These were established to keep track of dangerous people the government prohibits from traveling.  Since 9/11 the number of similar watch lists has mushroomed, all with subjective or inconclusive criteria for placing names on the lists, and with little or no means to remove them.  These lists name an estimated 30,000 to 50,000 people.   The lists are so erroneous several members of Congress, including Senator Ted Kennedy, have been flagged.
• Political spying – Government agencies such as the FBI and the Department of Defense spied on innocent, law-abiding Americans.  The ACLU learned through the Freedom of Information Act that the FBI consistently monitored peaceful groups such as Quakers, People for the Ethical Treatment of Animals, Greenpeace, the Arab American Anti-Defamation Committee and, of course, the ACLU.
• Abuse of material witness statute – Following 9/11, the government gathered and detained many people -- mostly Muslims in the US – -- by exploiting a narrow technicality that permits the arrest and brief detention of “material witnesses,” or those possessing important information about a crime.  Most of those detained were never treated as witnesses to the crimes of 9/11, and though they were detained to secure testimony, in many cases, the government did not actually seek such testimony.   Some were imprisoned for more than six months and one actually spent more than a year behind bars. 
• Attacks on academic freedom – The Bush administration used a provision in the Patriot Act to engage in a policy of “censorship at the border” to keep scholars with differing political views out of the United States.  The ACLU has filed a lawsuit challenging this ideological exclusion, charging that it is being used to prevent United States citizens and residents from hearing speech protected by the First Amendment.  Government policies and practices have also hampered academic freedom and scientific inquiry since 9/11, creating a system where science has come under siege.  The government over-classifies information and engages in outright censorship and pre-screening of scientific articles before publication. 

ALL IS NOT WELL

These continuous incursions into our privacy and civil liberties violations combine to put our democracy at risk.  When our government is torturing innocent people and spying on Americans without a warrant, the PCLOB should act  -- indeed, should have acted long ago. Clearly you’ve been fiddling while Rome burns. The claimed 17 PCLOB meetings consist mainly of phone calls or teleconferences with administration insiders and agencies. This board needs to bring a little sunshine.  So far America is kept in the dark – -- and this is the first public meeting you have had.  While I appreciate the chance to speak at this forum today, I must note that today’s meeting has been rescheduled twice over the last 10 months. 

SUMMARY OF PCLOB INACTIVITY

The PCLOB should begin aggressive investigation and oversight into several important matters that have yet to be addressed:

• First, review how the NSA and other federal agencies are involved with anti-terrorism efforts that target innocent citizens or other lawful residents,
• Second, hold public hearings and issue public reports that reveal important privacy and civil liberties issues raised by new government anti-terrorism efforts;
• Third, examine the implications of watch lists for individuals and the government, the exponential growth in the number of names on watch lists, and the constitutional and legal implications for being placed on such a list;
• And fourth, candidly advise the president regarding the legality and propriety of permitting government agencies to contract with private companies to achieve eavesdropping and data mining capabilities.  Oversight is only effective when the truth – and not deference to those in power – -- prevails.

I’ll briefly expand on each of those points.

The board should review the policies and procedures by which the NSA or other federal agencies intercept communications where there is no probable cause to believe the people targeted are either agents of a foreign power, or criminals.  This is the most public dispute concerning the intersection of new anti-terror efforts and those civil liberties and privacy principles Congress found to be vital to our way of life. Some of you have recently been quoted as saying that your recent review of this warrantless wiretapping left you with greater confidence that protections were built into the program. Yet it remains clear that this program was built outside of, and in direct contradiction to, the Foreign Intelligence and Surveillance Act and Fourth Amendment guaranteed protections.  You can put lipstick on a pig, but it remains a pig.  The PCLOB’s integrity and usefulness will be questioned if it dodges its duty to undertake a full review of these matters.

The board should use its authority to conduct public hearings and issue regular public reports that explain its findings.  Doing both will heighten public and government awareness of the importance of vigorously protecting privacy and civil liberties.  The PCLOB should model itself after the successful 9/11 Commission.

The board should review the vast implications posed by terrorist and criminal watch lists.  Certainly it is useful for the government to maintain a list of people who are known to be dedicated to committing violent acts against America.  But the utility of such lists is limited particularly since nearly 5 years after 9/11 there is no reliable method of redress to allow innocent people to get off - -- and stay off --- these lists.  And the implications for mistakenly being placed on a list are profound.  We know from testimony and published reports that the No-Fly lists were cobbled together from numerous agencies that had no anti-terror capabilities. The lists are deeply flawed because they are not focused exclusively on the group of individuals they intended to stop.  A recent report found that the National Counter Terrorism Center, which shares some overlapping list-keeping duties with the FBI’s Terrorist Screening Center, now has over 325,000 names on its master list.  A government official stated on a CBS broadcast in September that the list was over 400,000 names.  Various government agencies maintain at least 13 different watch lists.  Congress never established any legal criteria for placing people on any list and no court has ever squarely decided the constitutionality of using such lists to deny the exercise of certain rights and privileges. Nor, has any body fully reviewed how names are shared between agencies or the implications for of such sharing.  Thus, the result is a wholly unregulated process that threatens due process and impedes the exercise of First Amendment rights of petition of redress, the right to travel, and may prevent individuals from entering government buildings to obtain services, benefits and entitlements.

Finally, the board should investigate the government’s contracting with private companies to perform quasi-governmental roles to aid the nation’s anti-terrorism efforts.  In particular, the investigation should focus on those companies facilitating voice and data communications interception, data mining analysis, and background and clearance searches on potential government employees.  For example, data aggregator Choice Point has many government contracts to perform data aggregation and data mining services for most federal anti-terror and anti-crime agencies.  Their data is notoriously rife with errors, including the well-documented merging of files of several individuals with similar names.  Thus, the security of the information aggregated by these companies remains suspect, which could limit the data’s effectiveness for anti-terror efforts if hacked, and could lead to subsequent egregious breaches of individual privacy.  The legal implications for both companies and the government are unclear.  

ALL BARK, NO BITE

But the board lacks any power whatsoever to affect those changes – -- it’s all bark and no bite. While the PCLOB’s mandate is broad, it remains unclear what power you possess and how the PCLOB’s placement within the executive office of the president will affect its efforts.  The PCLOB’s board appears to be directed towards a balancing of anti-terror needs with privacy and civil liberties principles, a formulation that the ACLU rejects as we argue that we can be  both safe and free. 

When Congress created the PCLOB, it found that:

• In conducting the war on terrorism, the federal government may need additional powers and may need to enhance the use of its existing powers.
• And, this potential shift of power and authority to the federal government calls for an enhanced system of checks and balances to protect the precious liberties that are vital to our way of life.

The board’s power to accomplish its mission is limited.  While, the board may “access” information and documents from an executive branch agency or department, including some classified information, it does not have subpoena power.  Instead, the board has to rely upon the Attorney General to undertake action on the board’s behalf to respond to “noncompliance.”  Further, the board may interview officers of other agencies and request information from state, tribal or local governments, but cannot demand participation or compliance.  Finally, information may be withheld from the board at the discretion of either the National Intelligence Director to “protect the national security interests” of the country, or the Attorney General to “protect sensitive law enforcement or counterterrorism operations.”  

The board’s influence may also be limited in that the members serve at the pleasure of the president and, although the PCLOB is required to report to Congress annually on its activities, the board’s central function is to advise the president.  Thus, it is not independent of the president. Contrary to its name, the board has little if any real “oversight” authority.

Representatives Carolyn Maloney (D-NY),  Christopher Shays (R-CT) and Tom Udall (D-NM), have introduced legislation that we support, which would take the civil liberties board out from under the president's control and would give it subpoena powers.  We strongly support that necessary move to ensure that the board has true oversight powers.  

CONCLUSION

This week one we representedof our clients  Khaled El Masri – -- a German citizen who was kidnapped by our government and thrown in to a secret prison where he was tortured for months.  When our government realized that he was an innocent man, they dumped him by the side of a road in Albania.  I wish the members of the PCLOB had been able to look Mr. Masri in the eye as I did this week and hear his first- hand account of this dark chapter in American history.  As we have outlined, his story is just one of many about this government’s ongoing abuse of power and disregard for the rule of law.  History has shown that a nation that compromises freedom unnecessarily, only comes to regret it.  And History history will show this administration is on the wrong side of civil liberties. The ACLU and its members urge you to expeditiously undertake the review of the pressing matters I’ve addressed today, and then make your findings and recommendations known not only to the president and executive branch, but also to the public.  

Thank you .