Federal News Service
HEADLINE: A JOINT HEARING OF THE COMMERCIAL AND ADMINISTRATIVE LAW AND CONSTITUTION SUBCOMMITTEES OF THE HOUSE JUDICIARY COMMITTEE
SUBJECT: PRIVACY AND CIVIL LIBERTIES POST-SEPTEMBER 11TH
CHAIRED BY: REPRESENTATIVE CHRIS CANNON (R-UT); REPRESENTATIVE STEVE CHABOT (R-OH)
WITNESSES: LEE HAMILTON, VICE CHAIRMAN, AND SLADE GORTON, MEMBER, 9/11 COMMISSION; JOHN MARSH JR., TECHNOLOGY AND PRIVACY ADVISORY COMMITTEE; NUALA O'CONNOR KELLY, CHIEF PRIVACY OFFICER, HOMELAND SECURITY DEPARTMENT
LOCATION: 2141 RAYBURN HOUSE OFFICE BUILDING, WASHINGTON, D.C.
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REP. STEVE CHABOT (R-OH): Thank you, Mr. Chairman.
I first of all want to thank you for holding this hearing, as well as Mr. Watt, and Mr. Nadler, the ranking member of the committee that I have the good fortune to chair. And I want to thank all my committee members who are in attendance today.
And I want to offer a special welcome to all the witnesses, but especially the Honorable Congressman Hamilton, whose district in Indiana abutted mine in the southwest corner of Ohio in the time that I've been in Congress for a number of years. And Lee was also the chairman of the International Relations Committee and served many years with distinction. Now, when my party took over in '94, he was the ranking member for the time that I served here, but nonetheless, he served with great distinction and was really a role model for many of us, especially in the area of international affairs. So I want to thank him for his leadership in that respect.
And also Senator Gorton, who served the people of Washington for so many years so well. I want to thank all the witnesses for being here today.
And I want to thank especially Senator Gorton and Senator Hamilton for the last 20 months that they've served on the 9/11 commission. Our nation owes you a great debt of gratitude for your work, and I'm confident that we will all benefit from your expertise here this morning and in the future as we implement all or most of the recommendations that you've made.
As we know far too well, September 11th changed our world. It changed the way in which we must deal with terrorism and the way in which we as a country must protect ourselves. Since that tragic day, Congress and the administration have taken steps to help better protect our nation at home and abroad. Through passage of the Patriot Act and the creation of the Department of Homeland Security, we've provided law enforcement with enhanced investigative tools and improved our ability to coordinate activities designed to protect against the future threat of terrorism. And make no threat (sic) there, that threat continues to face our nation. Through the heroic actions of the brave men and women serving in our armed forces, we've also pursued the terrorists and those who assist them in places like Afghanistan and Iraq.
Yet these actions are not enough to guarantee our nation's security or freedom. This can only be accomplished through continued vigilance and a willingness to challenge conventional wisdom. We must continue to improve our intelligence capabilities, strengthen our defenses, and always be a step ahead of our enemies. To help accomplish these critical goals, it's imperative that Congress provide a comprehensive and expeditious review of the 9/11 commission recommendations, then move forward with initiatives that will further improve our ability to combat terrorism and defend our citizens.
As the commission notes, we must also be mindful of the protections afforded by our Constitution and our need to guard those protections as we work to better protect our country. Ignoring important civil liberties will not only erode our freedoms but will undermine legitimate efforts to increase our security.
These challenges are not new, and our two subcommittees have been extensively involved in these issues over the past couple of years. In the Patriot Act, for example, we worked to include protective measures, such as a sunset provision to strengthen congressional oversight.
When authorizing the Department of Homeland Security, a privacy officer position was established to examine the implications of the agency's rules and regulations on privacy and to address any issues that may result.
I look forward, as I know the other members do, to discussing the commission's recommendations with our witnesses today, and determining what Congress can do to better protect the privacy of our citizens. I particularly look forward to hearing from our panel, their views on the Federal Agency Privacy Protection Act of 2004, which passed the House during the 107th Congress and was recently voted out of the full Judiciary Committee-it was back on, I believe, July 7th. I believe this, which was formerly known as the Defense of Privacy Act, would-it would require federal agencies to publish privacy impact analyses when promulgating rules and regulations. I believe it would be an effective step forward in our efforts to protect our country and our privacy rights. As we move forward, it's important to remember that having effective anti-terrorism measures does not necessarily compromise the protections afforded by our Constitution, as one is not the enemy of the other. The enemy is terrorism. And I yield back my time, and thank the chairman once again for holding this hearing.
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REP. CHABOT: Thank you, Mr. Chairman.
I had mentioned in my opening statement that I had a particular interest in H.R. 338, the Federal Agency Privacy Protection Act, formerly known as the Defense of Privacy Act-basically the same bill. And I think, Senator Gorton and Secretary Marsh, you both mentioned that in your testimony.
This was something-a number of us were very concerned, and have been for years, that too often when regulations or rules were promulgated by various agencies that privacy protections of the American people too often were kind of an afterthought, weren't necessarily taken into consideration and they should be up front. And in essence, what this act requires is a-we all know about environmental impact statements; this is basically a privacy impact statement, is what it amounts to, to determine whether or not the agency has taken into consideration privacy issues, and maybe there was an alternative way to be less intrusive on those privacy rights-just to make sure that we're looking at these things ahead of time.
And I had actually introduced this back in the 106th Congress, and our colleague, Congressman Bob Barr, took it up in the 107th, and we reintroduced it. And I want to thank my ranking member, Mr. Nadler from New York, for co-sponsoring this, and also Chairman Cannon for cosponsoring this as well. But it passed in the Judiciary Committee back on July 7th, so it will be moving hopefully to the floor in the near future.
But I would be interested to hear from the panel members as to how they think-and I know-Senator, I think you stated you can't necessarily recommend for or against legislation, but how do you think this could potentially impact the issues that we're talking about here relative to the 9/11 commission?
MR. GORTON: We in the 9/11 commission took sort of a self- denying ordinance, you know, in not going beyond the recommendations that we made. We were perhaps as surprised as we were delighted that we were able to come out unanimously, and you know, that required a degree of self-restraint. So again, we can't take a particular position on your bill. But we can say it is quite consistent; it certainly seems to proceed from the same philosophy that guided us in asking for the creation of this board to see to the protection of the civil liberties from the-any new powers granted in the war against terrorism.
REP. CHABOT: Thank you.
Secretary Marsh, I don't know if you wanted to add anything relative to that.
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MR. MARSH: I believe that it would be helpful to give it more of a defense or national security flavor for those portions that involve the Department of Defense or the intelligence community, and they have to be singled out because they're going to have to be treated differently. But I think it's a step in the right direction.
If you look at the recommendations of the committee report, there are very elaborate recommendations on establishing a regime or a protocol of how to do this, and it involves the president of the United States.
And we're suggesting also overview simply to-not because they're not going to do a good job, but simply to emphasize the importance of what is being done by the legislation.
I think the legislation is a very good starting point, Congressman, and I welcome it. It is responsive to one of our problems.
REP. CHABOT: Thank you very much.
I'm probably not going to be able to get into a lot of-I've got one minute left, but one of the other areas that I wanted to delve into-maybe some of my colleagues will-is that one of the recommendations of the 9/11 commission report stated that, quote, "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 that government makes to defend our civil liberties." Unquote. And I think, you know, prior to deciding the structure of an organization, there must be a clear understanding of that organization's mission.
And so there are a number of questions that I think at some point it would be very helpful to get into, such as does the 9/11 commission view the board recommended in the report as being limited to examining privacy, or should it weigh in on all things related to the nexus between civil liberties and government action? And would the board be charged with evaluating security against privacy protections? And would it be a watchdog or a facilitator?
There are many, many aspects that I think-would be interested to get into, but my time has already wound up here. So I will yield back my time at this point, Mr. Chairman.