Good morning, it is an honor to have been invited here today. I would especially like to thank Commissioner Stoddard for all that she has done to include the NGO community in this gathering.
I listened intently to Secretary Chertoff this morning. While I have the greatest respect for the Secretary, I have a very different perspective – a perspective that I believe is shared by 10s of millions of Americans. It is a perspective that focuses not just on the threats to our liberty from the XML:NAMESPACE PREFIX = ST1 />US’s massive data collection, use and misuse. But on the fundamental question of whether all of these programs are effective. Are they making us safer? Or, are our fundamental freedoms being sacrificed without any security gain?
Many of you are probably familiar with the Hans Christian Andersen fable “The Emperor’s New Clothes.” In brief, two tailors tell a vain emperor that they can make him the finest suit, made out of a special magic fabric that is invisible to those who are either stupid, or not fit for their position. The emperor sends some trusted aides to see it. They don’t want to admit they can’t see it, so they tell the king it’s a great suit. The emperor reacts the same way, and the townspeople, having heard of the suit, turn out to see the emperor parade in his new outfit, and are all afraid to admit they can’t see it, so they cheer wildly. Finally, a small child exclaims, “but the Emperor has no clothes!” And the illusion is shattered. It is now time to proclaim that the American security empire has no clothes.
For all its posturing and its single-minded, unbending rigidity – for of all its efforts to strong-arm the rest of the world-- the Bush Administration has been fundamentally weak and ineffective in fighting the so-called war on terrorism.
It has substituted the illusion of security for real security.
The administration does everything it can to pose in the finery of a muscular and effective approach to anti-terrorism – but the emperor has no clothes. This is an administration that not only makes disastrous policy choices, but all too often cannot carry out its own misguided policies.
Perhaps most ironically, we Americans have an administration that can’t implement at home, the very policies that it expects the rest of the world to adopt.
Homeland Security --in particular-- has become a standout even in this administration.
This is not meant to be a personal attack on any of the people who work at DHS, including Secretary Chertoff for whom I have the greatest respect. The vast majority of men and women of DHS are dedicated public servants doing the best they can in a difficult, perhaps impossible institutional situation DHS is a gigantic ungainly behemoth. From the day it was created, many predicted it would be dysfunctional for decades.
Let me speak directly to the privacy commissioners of our partner nations.
You know better than I , how many times the US Government has sought to coerce your country into adopting policies that betray your fundamental principles. How often you have been asked – perhaps “asked” is too kind a word – asked to participate in the Bush Administration’s attempts to create new infrastructures for surveillance.
In those circumstances, please ask my government, whether they are actually carrying out these initiatives at home and, if not, are they even capable of carrying them out.
Please don’t be afraid to ask the emperor – “where are your clothes?"
Our experience is that the emperor is all too naked.
As you can imagine, the ACLU, is quite familiar with the Bush Administration’s policies and how they have been – or have not been – implemented. Even a casual look at the record demonstrates a litany of failure -- of repeated missteps and unforgivable mistakes.
The first is a subject that I know that my friends from Europe and Canada know especially well – airline passenger profiling.
The US has labored mightily – has threatened and cajoled the rest of the world into a system for collecting and transferring air passenger data – PNR.
Here is the bitter irony of this fundamentally wrong policy. At home, the US does not collect this data and seems incapable of doing so. Ever since 9/11, the US has been attempting to build a domestic version of the PNR scheme that we have insisted you adopt. My colleagues and I recently went back and assembled a chronology of the program and how it had fared over time. It is the story of one misstep after another – broken promises, deadlines missed, illegal testing of personal information, sloppy handling of information, rules broken, and above all failure.
We have gone from CAPPS I – computer assisted passenger profiling – to CAPPS II computer assisted passenger prescreening, to CAPPS 2.1, 2.2 2.3 and now Secure Flight 1, 2 and 3. None of the new schemes have worked and none are operational.
As well documented by the US Government Accountability Office, ( The GAO) each has been a failure and all too often the government broke even the our weak privacy laws in its use of personal data.
A similar story can be told about a program I know many of you find especially infuriating, US VISIT – the program for investigating and tracking visitors to the US from our closest friends and allies: the visa waiver countries.
As the GAO put it, “After investing about $1.3 billion over 4 years, DHS has delivered essentially one-half of US-VISIT.” We have forced our friends to undergo fingerprints and a digital photograph before they enter the US. We keep all that personal data in huge database where it has very little legal protection.
But here is the sad truth, we have built the entry portion but not the exit portion of US VISIT. In other words, we generally have no idea of whether our visitors – whether they are tourists or terrorists – are still in the US. In August, the GAO concluded that the US-VISIT exit projects are “not well-defined, planned, or justified on the basis of costs, benefits, and risks."
Frankly, I don’t know whether to laugh at the sheer folly of the effort or to cry about how we have treated you --our allies.
Let me next turn to data mining.
Collecting and mining huge volumes of personal data, and not just those of air travelers, is at the heart of many of America’s plans. But these systems are being built on a rotten foundation – a hopelessly bloated watch list of supposed terrorist suspects that is unfair and inaccurate. A grossly inflated list that lacks any elements of fundamental fairness, which is so bloated as to render it useless.
Just this month it was revealed that the primary terrorist watch list has more than quadrupled in size and now contains over 720,000 records. Think about that for a moment. 720,000 is one in every 500 Americans. 700,000 Americans or even 100,000 Americans cannot possibly be terrorists. The list is clearly out of control and useless.
Now, how does the US propose to use this sort of data? Traveler profiles are just the tip of the surveillance iceberg. Many of you are probably familiar with the US Defense Department’s efforts to build the Total Information Awareness Program – TIA. This was to be a massive project to draw together all the data that held on Americans by both governments and the private sector. That data was to be analyzed and elaborate personal profiles were to be created in the hunt for a handful of terrorists.
Congress shut it down, but TIA was hardly the end of the story. More recently we learned about DHS’s mishandling of a data mining program known as ADVISE.
Again, not only was the program an example of bad policy choices, but also of bad execution. The program was another attempt to create a vast ocean of personal data so agencies could fish through it -- looking to catch a handful of suspicious individuals.
Congressional investigators looking into the program found a litany of management and operational problems. They concluded that the system could “misidentify or erroneously associate an individual with undesirable activity such as fraud, crime or terrorism.” Finally, they found that contrary to clear law, the program had used the actual personal data of real live people to test its data mining algorithms.
The result: DHS pulled the plug and cancelled the program, after $42 million had been wasted.
Next there is Telecommunications Spying.
As well documented by some of America’s most prominent journalists, the National Security Agency – the NSA – in conjunction with some of the world’s most important telecommunications companies – has implemented a massive system for intercepting – not just America’s, but the world’s private communications. It is an illegal system that circumvents America’s own legal procedures as well as international norms.
This system, which was originally known simply as “The Program,” threatens to all but end the privacy of communications. And here is the bitter irony, it is of very questionable security benefit. The program is, of course, highly classified and the administration only allows out that information which suits their purposes. But the facts that have emerged suggest that the program’s value has been greatly exaggerated.
Not long after the program first came to light, FBI agents told reporters that the information passed along to them by the NSA from the program was useless. According to the New York Times, rank-and-file agents found the spying so unreliable that each new batch of supposed tips was greeted as just more “calls to Pizza Hut.” In other words, our trained law enforcement against were wasting their time with countless trips to America’s pizza restaurants to check on the dinner orders of innocent Americans.
More recently, our intelligence Chief Michael McConnell testified to the Congress that the program had helped foil the terrorist plot in Germany, only to have to go back and admit that this statement was not true. It was old-fashioned police work and not “The Program” that had thwarted the terrorists. The wiretapping had nothing to do with it.
The simple facts are that even as we have developed these grandiose schemes that trample on the rights of Americans and many well beyond our shores, we have not done the basic things that could make us safer.
Our national infrastructure – the power grid, industrial facilities that handle hazardous materials, the train cars carrying tons of poisonous gas through our cities, cargo ports, air cargo and host of other critical infrastructure are largely unprotected and remain vulnerable to attack.
And as the people of New Orleans learned when Hurricane Katrina hit and decimated their city, DHS is unprepared to protect our homeland from natural disasters – which are far more common and predictable than terrorist attacks.
All of this occurs at a time when time when billions and billions of dollars are being wasted on a surveillance-industrial complex that benefits only the Administration’s corporate friends-- like the contractors who it allowed to cheat on key government tests of new radiation-detection equipment.
I implore you to keep this sorry record of failure firmly in mind when you are confronted with the next Bush Administration request that you demand that you sacrifice your own nations’ fundamental principles.
And even as you keep your eyes on America, I urge you to keep in mind a bigger picture, the threat of an emerging surveillance society. The truth is, partly because of this administration and its policies, and partly because of relentless the march of surveillance technology, we are, at least in the United States, fast approaching the “midnight” of a total surveillance society. A surveillance society where technology, inadequate laws, and a justify-everything “War on Terror,” all coming together to turn, at least my country and into a place we will never recognize.
To dramatize that danger, the ACLU has created the “Surveillance Society Clock” Just as the “Doomsday Clock” symbolized how close we were to nuclear annihilation during the Cold War, the surveillance society clock is designed to show how close we are to that midnight of total surveillance.
And it was in this spirit of remaining focused on the big picture that we NGOs met yesterday, and drafted a resolution which urges you, the world’s privacy commissioners, to keep your focus on the very real threat of an emerging surveillance society.
Its six minutes before that dark midnight. Together we can push the clock back, but the time is growing short.