Federal News Service - A Joint Hearing of the Commercial and Administrative Law and Constitution Subcommittees of the House Judiciary Committee
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.
BODY:
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REP. MELVIN WATT (D-NC): Thank you, Mr. Chairman. And I thank the chairman of this subcommittee and the chairman of the Constitution Subcommittee for deciding to have a hearing on the issues involved today and to do it jointly so that we don't end up duplicating efforts and pulling in different directions possibly.
I'd like to start really by expressing thanks to the witnesses for being here today, and by expressing a special thanks to Lee Hamilton and Slade Gorton, the members of the commission, for the outstanding job that they did under some very, very difficult circumstances and getting through the process without any appearance of partisanship and being single-focused on the issue at hand, which was protecting American citizens and others from terrorism.
Who knows where the recommendations of the commission will go, and it's hard to even contemplate where they may go legislatively or administratively. But the thing that I think is most important is that before they go anywhere, we understand exactly what the recommendations are and have a better understanding of all of the implications of the recommendations.HSE-JUDIC-CIVIL LIBERTIES PAGE 7 08/20/2002 .STX
And I sense that several committees have headed off in the direction of dealing only with the security side of the balance that must be struck, and I think it's our obligation in this committee not only to look at the security side but to be ever cognizant of the privacy implications and the personal liberties implications of what is being done. And the only way we can do that is to really have hearings about what is being proposed and what we should be implementing.
I am extremely encouraged that the commission recognized this delicate balance itself in its recommendations, making three specific recommendations pertaining to the protection of civil liberties. First, the report calls for the president to, quote, "safeguard the privacy of individuals about whom information is shared among various intelligence and investigation agencies." Second, the report requires that in order to retain a particular governmental power, the executive first demonstrate that the, quote, "power actually materially enhances security," close quote, and that adequate oversight exist, quote, "to ensure protection of civil liberties."
So it's very apparent that the commission is already wrestling with what the appropriate balance should be between safeguarding our citizens by protecting them from terrorism, and, on the other hand, safeguarding our citizens by protecting them against overstepping by governmental agencies who say that they have our interest at heart.
So that's a very delicate balance which I think this hearing can only enlighten the American public on and enlighten the members of this committee on as we move forward, and enlighten our colleagues in the broader House and Senate as we move forward.
Finally, the report recommends the creation of a board within the executive branch to oversee adherence to the guidelines, and it recommends-and the commitment and-recommends and-the commitment to government makes to defend civil liberties. So that board is, again, supposed to walk that delicate balance between adhering to the guidelines and recommending a commitment to defend civil liberties, and I think that's absolutely critical as we move forward.
So I'm delighted that the chairman has convened this hearing for the purpose of discussing, and I hope nobody takes this as any indication that we are, in this committee, not as committed to the defense of our citizens from terrorism. Rather, that they take it as an equal commitment that we understand the historical imperative, the constitutional imperative of also safeguarding the security and individual rights and privacy of citizens as we authorize the government to take the actions that are necessary to safeguard us against terrorism.
That's going to be a very, very delicate balance to walk. And if we are going to do it, this is the place to start, right here in the Judiciary Committee, in the Constitution Subcommittee, in the Commercial and Administrative Law Subcommittee, where it's our responsibility to look at these issues and make some very difficult choices. And I thank the chairman and the members of the commission and our other witnesses for being here to enlighten us on where that delicate balance should be.
Thank you, Mr. Chairman.
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REP. WATT: Thank you, Mr. Chairman.
And I think I'll use my five minutes to follow up on some lines of questioning that other people have already opened before I go to one final overarching question that I'd like to pose.
First, Mr. Nadler raised an interesting question about if Congress can't get information from executive agencies, how we could set up a board or commission-oversight board, and how they would get information to do the necessary job that we would give them. It occurred to me that Ms. Kelly might be in a good position to respond to that. She's inside the government, inside the executive branch.
How would we structure, you think, a board-oversight board to do the kinds of things that the 9/11 commission report has suggested and give them the kind of authority and mechanisms to get the information that they need when we appear to be having trouble getting that kind of information ourselves? Could you shed any light on that, either now or subsequent to this hearing? If you've got some thoughts now I'd love to hear them. If you have follow-up thoughts, I'd love to hear those, too.
MS. KELLY: Well, I have certainly been thinking about this issue for many years, and people wiser than me have been thinking about it for many decades. So I think there are a number of ways-and I don't want to preempt people higher than me in the administration who may have thoughts on this themselves, but I think you've hit on the exact point, that the information-it perhaps is human nature for people not wanting to air their dirty laundry in public. And so to have a privacy office within a federal agency, although it's looked upon somewhat quizzically elsewhere in the world, has actually been a very effective structure because we are seen as a helpmate in the mission of the department, but also someone who can criticize from within in advance of programs being launched and perhaps bad ideas being enacted. But we also do rest heavily on our external role, and we've issued some critical reports of the department which we will be sharing with you in our annual report to Congress, which should be printed and finalized hopefully within a matter of weeks.
REP. WATT: I take it that what the commission has recommended goes beyond privacy officers or bodies within agencies. You may be suggesting that each agency that's dealing in this arena needs a privacy officer, but what the commission, I think, is suggesting is something that is --
MS. KELLY: Oversees.
REP. WATT: -- kind of overseeing all of this.
And it may be a more difficult problem to get agencies to give up the information to that external body than even to an internal body.
MS. KELLY: That may certainly be the case. And I think for that question we should look to the experience of other countries which already have operationalized independent data-protection authorities. And there is ample evidence of their success, both in the European Union and also elsewhere in the world. It certainly might be worth actually even talking to some of the officials who lead those bodies. There is an International Association of Data Protection officials which we participate in and represent the United States to the extent that we are welcomed in that body. They have met with greater and lesser success in their own countries in doing exactly what you've suggested, getting federal agencies to share information about their operation, particularly when it might be damaging or embarrassing to the agency but perhaps a very necessary process.
MR. HAMILTON: Mr. Watt?
REP. WATT: What I might suggest is asking --
MR. HAMILTON: Well, Mr. Watt, the key requirement --
REP. WATT: Let me --
MR. HAMILTON: Okay.
REP. WATT: -- just say one other thing to Ms. Kelly, suggest that she maybe follow up with some written suggestions --
MS. KELLY: I would be happy to.
REP. WATT: -- in response to this, because I'm going to run out of time. That's what I'm worried about.
MR. HAMILTON: Well, the key requirement is that government agencies must be required to respond to the board. Now, the experience of the 9/11 commission is that we had to have the subpoena power. We didn't use it very frequently, but if we had not had it, our job would have been much, much more difficult. And if this board is not able to require agencies to respond in detail to your questions, it will be ineffective.
REP. WATT: Mr. Chairman, I guess I'm going to have to ask unanimous consent for a couple of extra minutes to get to the next two questions that I had.
REP. CANNON: Without objection, so ordered.
REP. WATT: We used the whole five minutes on that one question.
I wanted to follow up on this national ID question that several people have kind of skirted around. The commission's report says-and I'm quoting, I think-"secure identification should begin in the United States. The federal government should set standards for the issuance of birth certificates and sources of identification such as driver's licenses," and then it goes on and says some other things.
Now, Representative Hamilton did a great job of telling us what he's not suggesting, which is a national ID. What I'm a little unclear about and what other people have raised a number of questions about is, what, short of a national ID, is the commission suggesting here? Because it sounds like the only way you can get to where you're talking about is to have some kind of national identification system.
MR. HAMILTON: Well, we --
REP. CANNON: If the gentleman would yield, can I just add to that that if you have federal standards in a free-flow information system between states and the federal government and law enforcement agencies and federal agencies, what's the difference between standards and a national ID?
MR. GORTON: Well, very simply, everyone in the United States or almost everyone in the United States is comfortable with the idea that you have to have a driver's license in order to drive. Fifty states and all of the other jurisdictions issue driver's licenses, and they do so so that people can be identified when-you know, when they're driving and when they're arrested. What we're saying is that it is very important in the fight for-in the struggle for national security that people be able to be identified. We now have 50 or 54 or whatever it is different systems for that, and we're simply saying take something that everyone accepts now and have it standardized in a way that it really identifies the people who are holding onto it.
And we've also, incidentally-we've mentioned it in passing-that we ought to sort of have a-that it would be a great idea to have a standard form of birth certificates because, as one of the members up here said, almost everything stems from that, you know, for Americans. There are all kinds of things you have to get a copy of your birth certificate for. And it ought to be something that's valid, that people can rely on.
We'd like them to rely on a driver's license. You don't have to get a driver's license if you don't want one, but if you want to drive you do. Let's make it into-let's make it into something that really does say that when I pull my driver's license out, you can be confident that this is really me and not somebody else.
REP. CANNON: Would the gentleman yield?
REP. WATT: Yes.
REP. CANNON: What I hear you saying, Senator Gorton, is that you want a national ID, you want to get through the back door by using something that everybody already accepts, but that it is-I mean, you-I think you stated very clearly that you want or you think the commission wants a national-the national ability to identify people. And using an already-accepted purpose-so if you want to drive in America, you got to be a part of a federalized system of identification?
MR. GORTON: I think there's a great deal of difference, Mr. Chairman, between something that you voluntarily go out and get and something that is a mandate.
REP. WATT: Well, you might be-this may be a semantic discussion, and I mean, I think the discussion about a national ID has gone back and forth for a number of years. But it does seem to me if you're suggesting a standardized birth certificate, that's not optional. So for newly born individuals, that is a national ID. For people who obtain a driver's license, that is a national ID. So you've left out people who have come into the United States who weren't born here and don't get a birth certificate, or people who have opted not to get a driver's license. But you're not very far from having a requirement that you have some kind of national identification for those people, too, I would think.
REP. HAMILTON: Well, Mr. Watt, one of our --
MR. GORTON: Under most circumstances, Mr. Watt, you've already got a national ID in one or the other; you just don't know whether it's any good.
MR. HAMILTON: Mr. Watt, just to let you know our concern here, all of these hijackers except one had U.S. identification. And what we are saying is that secure identification is very, very important in terms of counterterrorism. And we did not endorse a national ID. We think there is a distinction, as Senator Gorton has said, between federal standards and having a national ID. But do not be deceived here with regard to the importance of identification. Keep in mind that these hijackers were extremely skillful in being able to find the gaps in our system. And we're trying to protect against that as best we can.
REP. WATT: And do let me be clear that I'm not either supporting or condemning a national identification system. All I'm trying to do is figure out what those options are and be clear on what the commission is suggesting, because for us to move from the concept that you have expressed to the reality of what you expressed requires our understanding what you had in mind. And that's all I'm trying to do.
Let me do one other thing, Mr. Chairman. And I don't really think this question maybe will-anybody will want to answer, but I think I've got to ask it because there is a-appears to me to be a real rush politically to act on the 9/11 commission's report and a real rush to-for security purposes to act on (it). And I guess the thing that I'm wrestling with here in light of all of the questions that have been raised in this hearing is how we can proceed responsibly to get to a real good product without giving the public the perception that we are somehow dragging our feet and being picky and not paying attention to details.
Did the commission have any ideas about the timetable? I mean, obviously, we're three years beyond 9/11. Did the commission have any ideas about the timetable for the implementation or passage of whatever legislative initiatives are required to implement the 9/11 commission's recommendations?
MR. GORTON: Most of the attention so far to our recommendations has been to those two or several that have to do with the structure of our intelligence system-the national intelligence director and the national counterterrorism center. Aug 20, 2004 13:48 ET .EOF
The former of those has been recommended by probably a dozen commissions, you know, over years. I think one of our people yesterday had-oh, no-at a meeting over in the Senate yesterday, they showed me a list of 48 commissions since 1947 that have talked about restructuring our intelligence agencies, you know, none of which was successful. It came from here. You know, the Joint Intelligence Committee of the House and the Senate two years ago made a recommendation that is at least similar to that.
Speaking for myself, I'm inclined to hope that you do do something before the election, in that respect. A debate ought to --
REP. WATT: Can we do something on that without doing something on the front that we've been discussing here today?
MR. GORTON: Well, certainly you can. Whether you want to --
REP. WATT: I mean, is it advisable? I guess I know the answer is we can. The question is, would it be advisable to do something on that front without setting up these security measures for individual liberties and privacy that we all know need to be in place as-at the some time that the protections need to be in place?
MR. GORTON: We believe that the recommendations that relate to this committee, the subject of this committee, are very, very important, Mr. Watt. We wouldn't have included them if we didn't, and we thought about them a great deal and dealt with them advisedly.
I guess the other side of that coin is simply this. You know, we know those terrorists' organizations are still out there. We know they've declared war against the United States of America. We know that while either through good preparation or good fortune, in the almost three years since 9/11, no other terrorist attack has taken place in the United States; we also know that lots of them have taken place other places in the world.
So figuratively, if not literally, out there in the streets somewhere, there's a bomb with a fuse, and the fuse is lit. And we have no idea whether that fuse goes off in five days, five weeks, five months or five years. But it is going to be awfully hard to stop the blame game if it goes off when we've done nothing.
REP. WATT: Thank you, Mr. Chairman. You've been very generous with your time, and I yield back.