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ACLU Testimony of Gregory T. Nojeim, Associate Director & Chief Legislative Counsel, at a Hearing on "Civil Liberties and the Recommendations of the 9/11 Commission," Before the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security

Document Date: August 23, 2004

ACLU Testimony of Gregory T. Nojeim, Associate Director & Chief Legislative Counsel, at a Hearing on “Civil Liberties and the Recommendations of the 9/11 Commission,” Before the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security

Chairman Coble, Ranking Member Scott and Members of the Subcommittee:

I am pleased to appear before you today on behalf of the American Civil Liberties Union and its more than 400,000 members, dedicated to preserving the principles of the Constitution and Bill of Rights, to explain the ACLU’s views on the recommendations in the Final Report of the National Commission on Terrorist Attacks Upon the United States (“9/11 Commission report”).

The 9/11 Commission report exhaustively details significant failures of the intelligence agencies, including the Federal Bureau of Investigation (FBI) and the Central Intelligence Agency (CIA), and proposes major structural changes to address those failures. The report contains helpful suggestions on privacy and civil liberties, proposing a Civil Liberties Protection Board and a framework for judging anti-terrorism powers including the USA PATRIOT Act. The report also endorses more effective oversight of the intelligence community, and real reform of excessive secrecy.

The report also contains detailed discussion of border and transportation security issues, including airline screening, the “no fly” list that has stranded many innocent travelers, and passenger profiling. By endorsing an expansion of intrusive border screening to domestic travel, the report’s recommendations could – if implemented without change – result in a “checkpoint society” in which a federally-standardized drivers license serves as a “national ID” and internal passport.

As the 9/11 Commission itself acknowledges, “many of our recommendations call for the government to increase its presence in our lives . . . .” (p. 395). In fact, as outlined, a number of specific proposals could have serious unintended consequences that would be highly detrimental for basic civil liberties. Legislation must include significant changes to some recommendations to protect civil liberties. The Commission’s proposals to advance civil liberties – including increased oversight, reduced secrecy and a Civil Liberties Protection Board – must be implemented to ensure that, as the government centralizes some powers, it provides stronger checks and balances.

No one doubts the necessity of reorienting an intelligence community built to fight the Cold War to focus on the national security threats of the 21st Century. The ACLU strongly favors reforming the intelligence community in a way that enhances national security, encourages openness, and protects civil liberties.

This testimony outlines specific recommendations for how to implement the reforms proposed by the Commission without eroding basic freedoms.

The National Intelligence Director and National Counter-Terrorism Center

Recommendation #1: The National Intelligence Director (NID) should not be a Cabinet or White House official and the National Counter-Terrorism Center (NCTC) should not placed in the Executive Office of the President, nor should stronger community-wide powers be given to an official who continues to head the CIA. A new head of the intelligence community, if one is created, should instead head an independent Office of the Director of National Intelligence.

In a democratic society, domestic surveillance must serve the goals of preventing terrorism, espionage and other serious crime, not the political goals of the party in power. As we have learned from past mistakes, the temptation to use the intelligence community to further a political agenda is ever-present.

Misuse of both foreign and domestic intelligence powers for political ends can occur under any Administration. Direct White House control of intelligence powers and access to sensitive intelligence files have been responsible for serious mistakes that undermine civil liberties and accountability, and have lessened the confidence of Americans in their government. For example, the worst spying abuses of the Nixon Administration were directed by White House staff with intelligence backgrounds and included warrantless secret searches to obtain medical records, covert wiretaps of journalists, and the Watergate break-in itself. Under President Reagan, a covert operation conducted by National Security Council staff member Lt. Col. Oliver North led to the most serious crisis of Reagan’s presidency when it was revealed that the operation involved trading arms for hostages and using the proceeds to provide assistance to Nicaraguan rebels. Under President Clinton, White House political staff obtained hundreds of confidential FBI files on prominent Republicans that had been created from extensive background checks designed to protect national security.

In spite of these lessons, the 9/11 Commission’s recommendations place effective control over the intelligence community – including parts of the FBI, Department of Homeland Security, and other agencies that exercise domestic surveillance powers – in the Executive Office of the President (the White House) and fail to include any mechanism (such as a fixed term) to ensure the National Intelligence Director’s autonomy. The proposal seriously increases the risk of spying for political ends.

The proposed structure centralizes too much power over both foreign and domestic intelligence in the White House, and risks a re-run of the mistakes that led to Watergate, Iran-contra, “Filegate,” and other significant abuses of Presidential power.

The placement of the National Intelligence Director in the White House could also frustrate Congressional oversight. White House officials have long received, on separation of powers grounds, far less scrutiny from Congress than agency heads and other Executive Branch officials. White House officials are not usually subject to Senate confirmation and do not usually testify before Congress on matters of policy. Executive privilege may be claimed as a shield for conversations between the President and his advisors from both Congressional and judicial inquiries.

President Bush announced on Monday, August 2, a proposal for a national intelligence director that is not a White House or Cabinet official, but instead heads an independent office. Likewise, bills proposed by leading Democratic members of the House and Senate intelligence committees do not make that person a White House official.

Rep. Jane Harman, the ranking member of the House Permanent Select Committee on Intelligence, has introduced legislation to create a “Director of National Intelligence.” Like President Bush’s proposal, H.R. 4140, the “Intelligence Transformation Act,” places the new intelligence director in an independent office, not the White House. The leading Senate legislation takes the same approach. Senate bills include S. 190, the “Intelligence Community Leadership Act of 2003,” sponsored by Senator Feinstein (D-CA) and S. 1520, the “9-11 Memorial Intelligence Reform Act,” sponsored by Senators Graham (D-FL), Feinstein (D-CA) and Rockefeller (D-WV).

The ACLU supports placing a new intelligence director in an independent office. The National Intelligence Director and the National Counter-Terrorism Center, if they are established, should be accountable to the President, but they should not be servants of the President’s political or ideological agenda.

Pitfalls of greater power for head of the CIA. Rep. Porter Goss (R-FL), President Bush’s nominee for Director of Central Intelligence (DCI), has introduced a different intelligence reorganization bill, H.R. 4584, the “Directing Community Integration Act.” The Goss bill rejects a new intelligence director and instead enhances the powers of the DCI over community-wide responsibilities, including domestic collection of intelligence, while leaving the DCI as the head of the CIA.

The Goss bill is, in some respects, even worse than the Commission’s proposal for a White House NID, because it contemplates much greater involvement of the DCI – the head of a foreign intelligence agency – in domestic intelligence matters. The Goss bill would even go so far as to render toothless the current prohibition on CIA involvement in domestic activities by amending it to bar “police, subpoena, or law enforcement powers within the United States, except as otherwise permitted by law or as directed by the President.”

The proposed amendment would erase a fundamental limitation on CIA authority that prevents the use of CIA-style covert operations and intelligence techniques – including warrantless surveillance, break-ins, and infiltration and manipulation of political groups – from being used in the United States against Americans.

Recommendation #2: The National Intelligence Director must be subject to Senate confirmation and Congressional oversight, and should, like the Director of the CIA, have a fixed term that does not coincide with that of the President.

Congress must ensure that the National Intelligence Director is appointed by and with the advise and consent of the Senate, and that the NID will regularly testify before Congress. The Office of the NID and the NCTC must also be answerable to Congress. Congress must make clear that key officials will be asked to testify and that the NID and the NCTC are expected to provide answers to questions, relevant documents, and cooperate with Congressional inquiries.

The Commission recommends that the Director of the CIA should serve a fixed term, like the Director of the FBI, that does not coincide with the President’s term. Insulating the CIA further from political pressure is a welcome step.

Ensuring the intelligence community works well together is an extremely important responsibility that must remain above partisan politics or the appearance of serving an ideological agenda. The President should, of course, appoint the National Intelligence Director, with Senate approval, and should retain the power to fire the director for poor performance. As with the head of the FBI or the Chairman of the Federal Reserve Board, however, the director should serve a fixed term that does not coincide with the President’s term.

Recommendation #3: To ensure the FBI retains control of domestic surveillance operations, the head of the FBI’s intelligence operations must report to the FBI Director and the Attorney General, not to the National Intelligence Director or another intelligence official.

The United States has – historically and to the present day – entrusted the domestic collection of information about spies, terrorists, and other national security threats to federal and state law enforcement, with the FBI playing the most important role. The reason is simple: Americans do not believe the government should investigate you if you are not involved in a crime – if your activities, however unpopular, are not illegal.

For this reason, the CIA – a pure spy agency with no law enforcement functions – has been barred from domestic surveillance ever since it was created by the National Security Act in 1947. President Truman – a strong opponent of Communism and a hawk on security – shared the concerns of many Americans about the CIA’s establishment as a peacetime agency. Truman believed that a permanent secret spy agency could, if allowed to operate on American soil, use espionage techniques – including blackmail, extortion and disinformation – against American citizens who were critical of government policy or the incumbent administration, but had broken no law. With Truman’s support, the National Security Act, sometimes described as the CIA’s “charter,” contains a prohibition – which stands today – on the CIA’s exercising any “police, subpoena, or law enforcement powers or internal security functions.”

Truman’s concerns were not just with bureaucratic turf – whether the FBI or the CIA was the lead agency in collecting information about national security threats within the United States. Truman believed that the domestic collection of information about national security threats should generally be handled as a law enforcement matter. Indeed, Truman often clashed with FBI Director Hoover over whether the FBI had any business using break-ins, illegal wiretaps, and other spy techniques, at one point saying Hoover’s advocacy of such methods risked transforming the FBI into the equivalent of the Gestapo. Truman did not just want to prevent the CIA itself from operating on American soil – he wanted to ensure that a CIA-style agency did not become dominant in domestic collection of intelligence about national security threats.

The 9/11 Commission proposes that the NID hires both the FBI’s Director of Intelligence and the intelligence chief of the Department of Homeland Security, either of whom may serve as the deputy NID for homeland intelligence. This proposal is very problematic. The Commission proposal puts the FBI’s intelligence capabilities in the hands of a super-spy who could involve in domestic spying officials of the CIA and other agencies that use the methods of agencies that operate overseas – such as break-ins, warrantless surveillance, or covert operations.

While a NID could play a role in coordinating the activities of the Intelligence Community, the NID should not be given, as the Commission’s proposal currently contemplates, what amounts to control over targets of intelligence collection within the United States. That should remain the responsibility of the FBI Director, under the supervision of the Attorney General.

Recommendation #4: The FBI Director and the Attorney General should have the responsibility to ensure that the guidelines and rules that govern domestic surveillance in both criminal and national security investigations are followed. The guidelines must be strengthened. While they may continue to allow “enterprise investigations” of criminal organizations including foreign and domestic terrorist organizations, they should clearly prohibit domestic spying on First Amendment-protected activity.

The FBI’s own mistakes and missteps show the dangers of a powerful government agency that uses its investigating authority without regard to whether the subjects of its investigations are involved in criminal activities. To a large degree, these abuses were the result of the FBI’s unique lack of accountability to the courts, Congress and even the Attorney General under the direction of FBI Director J. Edgar Hoover.

Today, as a result of the Church Committee reforms, the FBI operates under both internal and external controls that constrain its criminal and national security investigations. These controls are designed to ensure that its intrusive intelligence-gathering and criminal surveillance powers are directed at organizations involved in criminal activities and at the investigation of foreign agents and not at lawful political, religious and other First Amendment activities. Controls that protect civil liberties include guidelines for FBI investigations, constitutional limits enforced by the exclusionary rule, and the “case-oriented” focus of the FBI. Putting a spy chief in charge of parts of the FBI could seriously erode each of these controls.

Domestic terrorism guidelines. For criminal investigations of organized crime or domestic terrorism, Attorney General guidelines restrict the use of most surveillance techniques – such as tracking mail, following suspects, and interviewing witnesses – to situations where there is at least some indication of criminal activity. These guidelines were weakened, following September 11, to allow FBI agents to visit, on a clandestine basis, political and religious meetings that are “open to the public” without any such indication. The ACLU and many members of the House and Senate judiciary committees opposed this change. Most other investigative techniques still do require at least some indication of crime.

International Terrorism Guidelines. National security investigations of international terrorist groups are governed by separate guidelines, important parts of which are secret. The guidelines do not require probable cause of crime but are, in theory, designed to restrict national security investigations to circumstances in which there is some indication of hostile activity by an agent of a foreign power. The most intrusive national security investigations – those that involve physical searches or electronic eavesdropping – must also at least “involve” some possible criminal activity when the subject of the investigation is a United States citizen or permanent resident, although this falls far short of the constitutional standard of criminal probable cause.

Investigative guidelines are vitally important to preserving civil liberties. The government argues that a number of highly intrusive intelligence gathering techniques – including collecting files on individuals and groups, physical surveillance in public places, and tracking the sender and recipient of mail, telephone and Internet communications – are not constitutional “searches” subject to the Fourth Amendment’s probable cause standards. As a result, for investigations using such techniques, it is only the guidelines and case-oriented structure of the investigating agency that protects against widespread spying on lawful political and religious activities.

The Constitution and the exclusionary rule. For those intrusive techniques that the government concedes are searches – including electronic eavesdropping of the content of communications and searches of a person’s home or office – the Fourth Amendment and federal statutes plainly require court approval based on probable cause. However, the Fourth Amendment’s principal remedy, the exclusionary rule that provides illegally-obtained evidence may not be used in court, does nothing to hinder illegal searches and wiretaps if the government does not plan to use the information in a prosecution.

The danger is certainly exacerbated by putting the FBI’s intelligence operations in the hands of the government’s “top spy” instead of its “top cop.” The FBI Director could, of course, direct abuses on the theory that the information is to be used for intelligence purposes rather than criminal prosecution and so need not be gathered legally. The danger would be far greater, however, if the FBI’s national security operations are under the effective control of intelligence officials who are used to operating entirely outside the constraints of the exclusionary rule.

The FBI’s case-oriented approach. The FBI’s focus on both criminal and intelligence “cases” helps prevent highly intrusive and sensitive investigations that may involve religious and political activities that are protected by the First Amendment from losing all focus on crime and terrorism. This focus is vitally important to civil liberties, and could be lost if a spy chief is placed in charge of parts of the FBI.

Critics of placing the FBI in charge of domestic national security surveillance argue that the case-oriented mindset of a law enforcement agency cannot be reconciled with quality intelligence analysis. While the FBI concerns itself with gathering information of relevance to particular cases, they argue, intelligence analysts must be looking more broadly to see how specific data fits into the “big picture” of a national security threat.

This critique sweeps too broadly because it fails to recognize the difference between two very different kinds of cases. The FBI not only investigates particular crimes – generally, crimes that have already occurred and must be “solved” – it also opens “enterprise” investigations of organized crime and terrorism. For example, in investigating a domestic funding network for Al Qaeda as a possible criminal enterprise, the FBI is not limited to investigating whether the organization was involved in funding specific terrorist bombings or other attacks, such as the 1998 embassy bombings in Africa, the 1999 bombing of the U.S.S. Cole, or the September 11 attacks. Rather, the FBI has authority to investigate the organization as an enterprise, and to fit together bits of information that help prevent future terrorist attacks, not just gather information about past crimes. The FBI’s failures in analyzing information about Al Qaeda’s domestic activities are not a result of flaws in the basic concept of an enterprise investigation; rather, they appear to be the result of a combination of other failures that must be addressed on their own terms.

Recommendation #5: The powers of the NID and the National Counter-Terrorism Center should be specified by a statutory charter that prohibits powers not authorized and requires the NID to observe guidelines to protect against domestic spying on First Amendment activity. Explicit, enforceable statutory language should make clear that the NID does not have what amounts to operational control of targets of domestic surveillance, whether directly or through the NCTC.

The Commission proposes a powerful new National Counter-Terrorism Center under the authority of the NID. The Center, while not itself a domestic collection agency, would go beyond the analysis of intelligence collected in the United States and abroad that is the function of the existing Terrorism Threat Integration Center (TTIC). If the Center’s powers are not specified, and if it is not barred from monitoring First Amendment activities within the United States, the Center could task domestic collection efforts that seriously erode the limits the collection agencies themselves are bound to respect.

The Center would be structured like the CIA. The Center would have separate divisions for “intelligence” and “operations.” It would have the authority to “task collection requirements” and to “assign operational responsibilities” for all intelligence agencies – including the FBI – and to follow-up to ensure its mandates are implemented.

The Center’s power over both intelligence collection and operations throughout the intelligence community could pose grave risks of encouraging espionage and covert operations techniques on American soil. The Center’s tasking and strategic planning functions would extend not only to the FBI’s national security investigations, but also to other domestic agencies, including the Department of Homeland Security, with immigration, border control and transportation security functions.

Likewise, some of the powers of the NID and the Center over the intelligence agencies of the Department of Defense – the largest agencies, consuming the large majority of the intelligence community’s budget – could have domestic implications. The Department of Defense, after September 11, established a powerful regional Northern Command (NORTHCOM), led by a four-star general, with responsibility for the domestic United States (together with Mexico and Canada).

NORTHCOM already has a military intelligence unit, which raises serious questions under the Posse Comitatus Act – the law that limits military involvement in domestic affairs. Under the proposed structure, the NID and the Center could have what amounts to control of the domestic intelligence operations of civilian federal law enforcement and of the NORTHCOM intelligence unit, creating a real risk of blurring the military and civilian functions.

Recommendation #6: The National Intelligence Director and the National Counter-Terrorism Center should not be permitted to direct or plan intelligence “operations” that include “dirty tricks” or other extra-legal methods within the United States. Domestic use of intelligence information must remain bound by the legal system.

Perhaps the most far reaching power of the National Counter-Terrorism Center is its authority to plan and direct intelligence “operations” throughout the intelligence community. If the NID and the NCTC are created, it must be made clear that information derived from domestic surveillance is only to be used within the bounds of the legal system, and cannot be used for domestic “operations” outside that system.

The FBI’s COINTELPRO operations – “counterintelligence” programs under FBI Director J. Edgar Hoover that both gathered intelligence and used that intelligence to disrupt perceived national security threats – led to extremely serious abuses of power. These abuses included the illegal wiretapping of Martin Luther King, Jr. and the infiltration of scores of social, political and religious groups that opposed government policy, as well as “dirty tricks” campaigns to exploit damaging information without exposing the FBI’s sources and methods in a criminal prosecution.

The COINTELPRO programs were initially rationalized as attempts to counter what Hoover perceived as the influence, or possible influence, of the Soviet Union on the civil rights and anti-war movements. However, a lack of internal or external controls led to the continuation of these highly intrusive operations without any real evidence of involvement of a genuine agent of a foreign government or organization and without an indication of criminal activity. In other words, the FBI’s most serious abuses of civil liberties occurred precisely when its top leadership forgot it was a law enforcement agency operating to enforce and uphold the law – not a freestanding security or spy agency designed to counter those individuals and groups whose views seemed, to the government officials, to be dangerous or un-American.

If the powers of the National Counter-Terrorism Center are not properly limited, the result could be the establishment of what amounts to just such a freestanding spy agency in all but name. For civil liberties reasons, the 9/11 Commission soundly rejected the idea of moving the FBI’s counter-intelligence and intelligence gathering functions to a separate agency patterned on the UK’s Security Service or MI-5. The FBI, because of its mission and culture, can serve the intelligence gathering mission that the CIA serves overseas, but the FBI must operate under the U.S. Constitution and “quite different laws and rules.” The Commission was also sensitive to the dangers of negative public reaction to civil liberties abuses that would result from creating an agency unconstrained by those rules. A “backlash,” it says, could “impair the collection of needed intelligence.”

It also objects to the MI-5 idea for these reasons:

  • The creation of a new agency, and the appearance of another big kid on the intelligence block, would distract the officials most involved in counter-terrorism at a time when the threat of attack remains high.
  • The new agency would need to acquire, train and deploy a vast amount of new assets and personnel, which the FBI already has at its disposal.
  • Counter-terrorism very easily ropes in matters involving criminal investigation. With the removal of the pre-9/11 “wall,” it makes logical sense, the commission says, to have one agency utilize the entire range of intelligence and criminal investigative tools against terrorist targets.
  • In the field, the cooperation between counter-terrorism investigators and the criminal side of the FBI has many benefits.

The Commission was right to reject the model of a domestic intelligence agency. For much the same reason, however, its proposals for intelligence reform must be modified and clarified.

Reducing Excessive Secrecy and Strengthening Oversight of the Intelligence Community

As the 9/11 Commission observes, structural reform of the intelligence community will not by itself solve basic intelligence deficiencies that contributed to recent intelligence failures. Substantive reforms – including strong internal watchdogs and a civil liberties board, a reduction in excessive secrecy, an increase in real public and Congressional oversight, and stronger efforts to incorporate dissenting views into analysis – must be adopted to prevent future intelligence breakdowns.

Recommendation # 7: The Commission recognized its recommendations could increase government intrusion on civil liberties and urged strong oversight. Congress should not act to reorganize the intelligence community without also implementing the Commission’s proposals for strong internal watchdogs and an effective civil liberties protection board.

Strong internal watchdogs. Proposals to reform the intelligence community have included the creation of an Inspector General for the intelligence community. The Inspector General would have signific

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