[Senate Hearing 109-701]
[From the U.S. Government Publishing Office]
S. Hrg. 109-701
CATCHING TERRORISTS: THE BRITISH SYSTEM VERSUS THE U.S. SYSTEM
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HEARING
before a
SUBCOMMITTEE OF THE
COMMITTEE ON APPROPRIATIONS UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
__________
SPECIAL HEARING
SEPTEMBER 14, 2006--WASHINGTON, DC
__________
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__________
COMMITTEE ON APPROPRIATIONS
THAD COCHRAN, Mississippi, Chairman
TED STEVENS, Alaska ROBERT C. BYRD, West Virginia
ARLEN SPECTER, Pennsylvania DANIEL K. INOUYE, Hawaii
PETE V. DOMENICI, New Mexico PATRICK J. LEAHY, Vermont
CHRISTOPHER S. BOND, Missouri TOM HARKIN, Iowa
MITCH McCONNELL, Kentucky BARBARA A. MIKULSKI, Maryland
CONRAD BURNS, Montana HARRY REID, Nevada
RICHARD C. SHELBY, Alabama HERB KOHL, Wisconsin
JUDD GREGG, New Hampshire PATTY MURRAY, Washington
ROBERT F. BENNETT, Utah BYRON L. DORGAN, North Dakota
LARRY CRAIG, Idaho DIANNE FEINSTEIN, California
KAY BAILEY HUTCHISON, Texas RICHARD J. DURBIN, Illinois
MIKE DeWINE, Ohio TIM JOHNSON, South Dakota
SAM BROWNBACK, Kansas MARY L. LANDRIEU, Louisiana
WAYNE ALLARD, Colorado
Bruce Evans, Staff Director
Terrence E. Sauvain, Minority Staff Director
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Subcommittee on Homeland Security
JUDD GREGG, New Hampshire, Chairman
THAD COCHRAN, Mississippi ROBERT C. BYRD, West Virginia
TED STEVENS, Alaska DANIEL K. INOUYE, Hawaii
ARLEN SPECTER, Pennsylvania PATRICK J. LEAHY, Vermont
PETE V. DOMENICI, New Mexico BARBARA A. MIKULSKI, Maryland
RICHARD C. SHELBY, Alabama HERB KOHL, Wisconsin
LARRY CRAIG, Idaho PATTY MURRAY, Washington
ROBERT F. BENNETT, Utah HARRY REID, Nevada
WAYNE ALLARD, Colorado DIANNE FEINSTEIN, California
Professional Staff
Rebecca Davies
Carol Cribbs
Shannon O'Keefe
Nancy Perkins
Mark Van de Water
Charles Kieffer (Minority)
Chip Walgren (Minority)
Scott Nance (Minority)
Drenan E. Dudley (Minority)
Administrative Support
Christa Crawford
C O N T E N T S
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Page
Opening Statement of Senator Judd Gregg.......................... 1
Statement of Hon. Richard A. Posner, Federal Judge, U.S. Court of
Appeals for the Seventh Circuit and Senior Lecturer, University
of Chicago Law School.......................................... 2
Prepared Statement of........................................ 4
Statement of John Yoo, Professor of Law, Boalt Hall School of
Law, University of California at Berkeley...................... 9
Prepared Statement of........................................ 11
Statement of Tom Parker, CEO, Halo Partnership Consulting, Former
British Counterterrorism Official.............................. 16
Prepared Statement of........................................ 19
Statement of Senator Robert C. Byrd.............................. 29
CATCHING TERRORISTS: THE BRITISH SYSTEM VERSUS THE U.S. SYSTEM
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THURSDAY, SEPTEMBER 14, 2006
U.S. Senate,
Subcommittee on Homeland Security,
Committee on Appropriations,
Washington, DC.
The subcommittee met at 9:27 a.m., in room SD-192, Dirksen
Senate Office Building, Hon. Judd Gregg (chairman) presiding.
Present: Senators Gregg, Allard, and Byrd.
opening statement of senator judd gregg
Senator Gregg. We will begin the hearing. The subcommittee
understands Senator Byrd will be here, but probably not for a
few minutes.
We are very appreciative of our witnesses attending today.
This committee has viewed the issue of homeland security as
first and foremost an issue of obtaining the intelligence
necessary in order to stop an attack before it occurs. We have
worked very hard to change the mind set of the Federal
Government and our local and State law enforcement community,
which has always been a reactive mind set, where a crime occurs
and the Government then comes forward through the FBI or
through the local police and tries to determine the culprits
and bring them to justice.
That mind set does not work in the context of the threat
that America faces today, which is a terrorist act, because a
terrorist act once it occurs will create such harm and damage,
as we saw on 9/11, as we have seen England and other nations
such as in Spain in Madrid. A terrorist act cannot be
tolerated, so a legal system which is structured around the
concept of having an event occur and then having the criminals
brought to justice is a legal system which is not capable of or
appropriate to the threat that we have today.
The question becomes for us how within our constitutional
limitations, which are obviously critical and which is what we
are fighting for, how within those constitutional limitations
will we expand our capability to obtain intelligence to be able
to thwart an attack. The English system appears to have taken
significant strides in this area. England, of course, functions
under a common law system, not under a constitutional system,
and does not have a Bill of Rights, although they obviously
have rights which have been evolved over time, and our Bill of
Rights arguably came in large part from those common law
rights.
But the English system has evolved to the point where they
do have the capability to pursue a potential threat more
aggressively than we appear to be able to pursue it prior to
the event occurring. The question that this subcommittee would
like to pursue with this extraordinarily talented panel is are
there within the context of our constitutional structure
actions which we can take which would replicate or take
advantage of the experience of the English system and the
English successes, which are considerable, as we just recently
saw with the situation relative to the bombing of the aircraft
which did not occur, thank goodness.
So we have brought together this panel today to give us
some thoughts on this. We are also interested, should the panel
wish to comment on it, and we can do this in the question
period as to the panel's reaction if it has any, to the debate
which is ongoing right now over the Hamdan decision and how we
use electronic eavesdropping in order to effectively
interrogate and learn what the potential information there
might be from prisoners who we have captured in this war on
terror.
But initially we want to get into this discussion of
American procedure relative to British procedure and where
America can learn from the British situation legally and what
are the limitations on the American system that the British
system does not have and how can we take advantage of the
experience of the British system and still do so in the context
of our constitutional structure.
We have, as I said, a very distinguished panel today: the
Honorable Richard Posner, Seventh Circuit Court of Appeals
Judge and a Senior Lecturer for the University of Chicago, a
person of international reputation on issues such as this; John
Yoo, a Professor of Law at the University of California at
Berkeley, also an expert in this area of national prominence;
and Mr. Tom Parker, who is CEO of the Halo Partnership and a
former British counterterrorism official.
So we would like to begin with you, Judge Posner, and then
we will move to Mr. Yoo and then to Mr. Parker. So please, we
would like to hear your testimony.
STATEMENT OF HON. RICHARD A. POSNER, FEDERAL JUDGE,
U.S. COURT OF APPEALS FOR THE SEVENTH
CIRCUIT AND SENIOR LECTURER, UNIVERSITY OF
CHICAGO LAW SCHOOL
Judge Posner. Well, thank you very much, Mr. Chairman. Am I
audible?
Senator Gregg. Yes.
Judge Posner. So in my 5-minute summary I will be very,
very brief. I want to make just three----
Senator Gregg. If you need more time, take it.
Judge Posner. Okay. Well, I will be very brief and I can
amplify afterwards. I want to make three points: first, that,
contrary to public impression, we can do almost everything that
the British do within the limits of the Constitution; second,
that I think we are overinvested in the criminal justice system
as a way of dealing with terrorism; and third, that the biggest
lesson perhaps we can learn from Britain is the need for a
domestic intelligence service that would be separate from the
FBI.
On the first point, our political and legal culture is of
course derivative from England's and when Americans go to
England they do not feel that they are stepping into some
lawless society because the Bill of Rights has not followed
them to England. In fact, as I explain in my prepared
testimony, the innovative anti-terrorist measures used by
England might violate an American statute, which of course
Congress could change, but would not violate the Constitution.
I want to give just one example of this which seems to me
the most important and that is the British rule that permits
detention of terrorist suspects for 28 days without formal
charges being lodged, and the popular reaction to this is that
we could not have--we could not do anything like this, because
our Constitution requires that a suspect be charged within 48
hours.
That simply is incorrect. First of all, there is nothing in
the Constitution that says anything about 48 hours or prompt
hearings. The Supreme Court has, by way of free interpretation
of due process, has said that normally a suspect has to be
charged within 48 hours, given a probable cause hearing within
48 hours, but that if the government can show a bona fide
emergency or other exceptional circumstances then it can hold
the person longer without the probable cause hearing.
I think it would be very constructive for Congress to enact
a statute which would specify a period of days, like 28 or 38
days, that would be appropriate for detention if there were a
real emergency, as there is in many terrorist situations. And I
give other examples in my prepared testimony.
My second point about overinvestment in the criminal
justice system, I am echoing some remarks that the chairman
made. We have not really had a very happy experience with
prosecuting terrorists in the ordinary criminal courts and the
reason is that the criminal justice system has been designed
with ordinary criminal conduct in mind. It has not been tailor-
made to special problems of terrorism. We have seen in the
prosecutions the problems that our use of the criminal justice
system involves: public trials which can become platforms for
terrorists to preen themselves on martyrdom and so on; the
making public of information that may tip off terrorists about
investigative methods and knowledge of the government; and also
the fact it is very difficult to deter terrorists by threat of
criminal punishment if they are fanatics.
So we should be thinking about alternative, even more than
we are, thinking about alternatives to the criminal justice
system as a way of dealing with terrorists, even in the United
States, where we cannot use military action or covert action.
That brings me to my third point, about our need for a
domestic intelligence agency separate from the FBI. There is an
op-ed piece in the New York Times this morning by the public
affairs officer of the FBI in which he intimates, he does not
quite say, that I advocate breaking up the FBI. Absolutely not.
I would not disturb the FBI in the least. I think it needs to
be supplemented by an agency that is not tied to the criminal
law enforcement system the way the FBI is.
The FBI criminal investigation agency. The training of its
agents, its culture, its traditions, are all oriented toward
arresting people and preparing evidence to enable them to be
convicted. That is fine. We need that, but we also need an
agency that is focused exclusively on intelligence, not using
the methods of criminal law enforcement. So MI5 does not have
arrest powers. The Canadian Security Intelligence Service,
which is the counterpart to MI5 in Canada, does not have arrest
powers. An agency which can focus exclusively on intelligence-
gathering, infiltration, surveillance, disinformation,
penetration, that is a very valuable adjunct to our efforts and
can get around a lot of the difficulties that our criminal
justice system encounters when it tries to deal with
terrorists.
This detention for 28 or 30 days that I mentioned where I
think we can emulate the United Kingdom, I see the real
significance of this as ancillary to intelligence rather than
to criminal justice enforcement, because if you are chasing
terrorists and you seize one you want to be able to question
this person without tipping off his accomplices that you have
him and keeping him in isolation for a few weeks is going to
make it easier to obtain information from him.
So let us think in terms of alternatives to criminal
justice system and let us also not exaggerate the
constitutional limitations on our borrowing from England. Just
one second more on this. We should recognize that the United
Kingdom has a much longer history than the United States in
dealing with terrorist threats. In fact, it goes back at least
as far as the 16th century, and England has had some very
important successes, for example in World War II against German
espionage, later against the Irish Republican Army. So we
should not be provincial, we should not be too proud to learn
from the experience of foreign countries, especially a country
like England, which, as I say, is the source of our own legal
and political culture.
Thank you, Mr. Chairman.
[The statement follows:]
Prepared Statement of Richard A. Posner
I am honored \1\ to have been asked to appear before the
subcommittee to testify concerning this important subject. We must not
be provincial in our response to the threats to our national security
that are posed by global terrorism in an era of proliferation of
weapons capable of inflicting catastrophic harm. We must not be too
proud to learn from nations such as the United Kingdom that have a much
longer history of dealing with serious terrorist threats than the
United States has. Queen Elizabeth I faced serious threats from
religious fanatics eager for martyrdom dispatched to England by foreign
powers with which England was at war in the sixteenth century. Germany
peppered England with spies during World War II. The Irish Republican
Army waged clandestine war against England for decades. And today
England faces at least as serious an internal threat of Islamist
terrorism as the United States does.
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\1\ A brief biographical sketch of Judge Posner is appended at the
end of this statement for background.
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The United Kingdom is a particularly apt model for us to consider
in crafting our counterterrorist policies because our political and
legal culture is derivative from England's. The major difference is our
Bill of Rights, which has no direct counterpart in English law, though
the difference between our two constitutional cultures is narrowing
because of England's having signed the European Convention on Human
Rights.
In considering the effect of the Bill of Rights on measures to
combat terrorism, it is important that we bear in mind the difference
between what the Bill of Rights actually says and how the Supreme Court
has interpreted its words, because judicial interpretations of the
Constitution are mutable, whereas the words themselves can be changed
only by the cumbersome procedures for amending the Constitution.
Important too that we bear in mind the tradition of flexible
interpretation of the Constitution that permits departures from as well
as judicial elaborations of the literal language of the document, and
the essential role of balancing competing interests as a technique of
flexible interpretation. I have argued in my recent book Not a Suicide
Pact \2\ that in relation to measures, especially measures initiated by
or concurred in by Congress, to protect the national security against
terrorist threats, the Constitution should be regarded as a loose
garment rather than a straitjacket, a protection against clear and
present dangers to civil liberties rather than the platform of the
American Civil Liberties Union. Judges in our system are (with rare
exceptions) generalists rather than specialists. Very few of us have
extensive knowledge of the scope and gravity of the terrorist menace
and of the efficacy and limitations of alternative measures for coping
with terrorism, and we should be cautious therefore in setting our
judgment against that of the officials and staffs of the executive and
legislative branch, who have the relevant expertise.
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\2\ Richard A. Posner, Not a Suicide Pact: The U.S. Constitution in
a Time of National Emergency (2006).
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The United Kingdom is a liberal democracy, like the United States,
and Americans living in the United Kingdom, and therefore fully subject
to English law, do not walk in fear that they are at the mercy of a
secret police. Yet England has deployed both before but especially
after September 11, 2001, counterterrorism measures that frighten our
civil libertarians. These include: \3\
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\3\ The sources on which this summary is based include Antonio
Vercher, Terrorism in Europe: An International Comparative Legal
Analysis (1992); Peter Chalk and William Rosenau, Confronting the
``Enemy Within'': Security Intelligence, the Police, and
Counterterrorism in Four Democracies (2004); Dana Keith, ``In the Name
of National Security of Insecurity? The Potential Indefinite Detention
of Noncitizen Certified Terrorists in the United States and the United
Kingdom in the Aftermath of September 11, 2001,'' 16 Florida Journal of
International Law 405 (2004); Jeremie J. Wattellier, Note,
``Comparative Legal Responses to Terrorism: Lessons from Europe,'' 27
Hastings International and Comparative Law Review 397 (2004); Kent
Roach, ``Must We Trade Rights for Security? The Choice between Smart,
Harsh, or Proportionate Security Strategies in Canada and Britain,'' 27
Cardozo Law Review 2151 (2006); Laura K. Donohue, ``Anglo-American
Privacy and Surveillance,'' 96 Journal of Criminal Law and Criminology
1059 (2006).
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--conducting criminal trials without a jury if there is fear of
jurors' being intimidated by accomplices of the defendant;
--placing persons suspected of terrorism under ``control orders''
that require them as an alternative to being detained to
consent to being questioned or monitored electronically or
forbidden to associate with certain persons, and that limit
their travel;
--detaining terrorist suspects for up to 28 days (with judicial
approval) for questioning without charges being lodged;
--deportation proceedings from which the alien and his lawyer may be
excluded--the alien need not be fully informed of the reasons
for deporting him and ``his'' lawyer is appointed by and, more
important, is responsible to the government rather than to the
defendant and secret evidence may be concealed from the
defendant
--indefinitely detaining aliens who have been ordered deported but
cannot actually be removed from the country (there may be no
country willing to take them);
--criminalizing the indirect encouragement of terrorism as by
``glorifying'' terrorism by a statement implying that it would
be good to emulate the glorified activity;
--issuance of search warrants by security officials rather than by
judges;
--traffic analysis and other data mining of Internet communications
without a warrant \4\ (Internet Service Providers are required
to install devices to enable Internet communications to be
intercepted in transit)--a warrant is required to read an
intercepted communication, but it may be granted by an official
rather than by a judge.
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\4\ A warrant is not required ``to monitor patterns, such as web
sites visited, to and from whom email is sent, which pages are
downloaded, of which discussion groups a user is a member, and which
chat rooms an individual visits.'' Donohue, note 3 above, at 1179-1180.
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A majority of these measures, while they might if adopted by our
government violate Federal statutes, would not violate our
Constitution. The Constitution gives illegal aliens much more limited
rights in deportation proceedings than they or citizens would enjoy in
criminal proceedings; allows criminal suspects to negotiate for
``control'' orders in lieu of incarceration; and, contrary to a
widespread impression, does not require that searches be conducted by
warrants, whether issued by judges or (other) officials, but only that
searches be ``reasonable'' (this is patent in the text of the Fourth
Amendment), and does not require that a criminal suspect must always be
brought before a magistrate for a probable-cause hearing within 48
hours of his arrest. Not only is there no such requirement anywhere in
the text of the Constitution, but the Supreme Court, while imposing
this requirement by way of free interpretation of the due process
clauses, has created an exception for cases of ``bona fide emergency or
other extraordinary circumstance.'' \5\
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\5\ County of Riverside v. McLaughlin, 500 U.S. 44, 57 (1991).
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That exception is potentially very important, and codifying it
should in my opinion be a priority in the congressional deliberations
on strengthening our laws against terrorism. The government may have a
compelling justification for holding a terrorist suspect incommunicado
for longer than 48 hours: to avoid tipping off his accomplices that the
government has caught him, while meanwhile extracting from him
information that it can use to arrest those accomplices before their
suspicions are aroused. It may even be possible during this period of
extended detention to ``turn'' him, so that he becomes a double agent,
spying on his erstwhile accomplices; recruiting a double agent tends to
be a protracted process and one that must for obvious reasons be
conducted in secrecy. Holding a terrorist suspect incommunicado also
facilitates interrogation without crossing the line that separates
permissible interrogation tactics from torture and other impermissibly
coercive methods, simply because a detainee who is isolated, with no
access to a lawyer, can more easily be persuaded to provide information
sought by the government.
How much longer than 48 hours should it be permissible to detain a
terrorist suspect? That would depend on how likely it is that
protracted detention would yield significant benefits for national
security in the form of additional arrests or of a fuller detection,
penetration, and disruption of ongoing terrorist activities or
preparations. There must be limits. The longer the period of detention,
the greater the hardship to the person detained (who may after all be
innocent) and the less likely further detention is to yield significant
information or other benefits. The benefits diminish with time, and the
costs increase; when the curves cross, the detainee should be brought
before a judicial officer for a determination of whether further
detention would be proper. There should be a fixed outer limit; 28 days
might be the place to start in fixing such a limit.
The English measures that would most clearly run afoul of current
constitutional interpretations are conducting criminal trials without a
jury and forbidding the ``glorifying'' of terrorism unless the
glorification amounts to an incitement to imminent terrorist activity.
Yet the ``unless'' qualification is significant, as ``glorifying'' that
came within it would be punishable under U.S. law, so that the
objection to punishing the glorification of terrorism is not so much to
the principle of the English law as to the vagueness of the word
``glorifying.'' And as for criminal trials without a jury, this
requirement of the Bill of Rights can be bypassed by trying suspected
terrorists before military commissions, where there is no right to a
jury. How far such commissions can go to relax the constitutional
constraints required in orthodox criminal trials is an unsettled
constitutional issue. It will not be resolved until Congress enacts a
law authorizing such commissions, which at this writing seems imminent.
I conclude that, as a matter of constitutional law, Congress and
the President can if they want go a considerable distance in the
direction of English counterterrorist law. It then becomes a question
of policy how far we should go in that direction. And that question in
turn depends on how salient a role the formal legal system, and in
particular the criminal justice system, should play in the fight
against terrorism. My own view is that we are overinvested in criminal
law as a response to terrorism and should be trying to deemphasize
(though not of course abandon) the effort to prevent terrorism by means
of criminal prosecutions, especially in the regular courts, which are
not designed for the trial of persons, whether military or civilian,
who present a serious threat to national security. We should be making
less use of devices such as the warrant that are used mainly in
criminal law enforcement and more use of executive and legislative
oversight to curb abuses of counterterrorism, and we should be focusing
more of our domestic security efforts on intelligence as a means of
detecting and disrupting terrorist plots without necessarily
prosecuting the plotters.
It is telling that no one was ever tried by the military
commissions set up in the wake of 9/11 \6\ and that criminal
prosecutions of terrorists have been few and often trivial,\7\ have had
no demonstrated impact on the terrorist menace, and indeed seem to be
petering out.\8\ Contemporary international terrorists are difficult to
deter, not only because many of them are suicide attackers but also
because most political criminals expect (with considerable basis in
history) to be released from prison, as part of a swap for hostages or
a political settlement, before completion of their terms. Locking up
terrorists (those who survive their terrorist escapades) has only a
limited preventive effect because the supply of terrorists is at
present effectively unlimited. And criminal trials, being public,
provide platforms for terrorists to broadcast their goals and preen
themselves as martyrs and yield information about investigative methods
that may enable future terrorists to evade detection.
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\6\ A failure that may have contributed to the government's losing
Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006). Had the Court had before it
a judgment in a trial before a military commission, it might have been
persuaded that the commission's procedures were adequate to prevent
miscarriages of justice. Of course the Court can also be criticized for
its impatience in refusing to hold its fire until a trial had been held
that could have lent concreteness to the Court's consideration of the
legal issues.
\7\ According to a recent study, ``the median sentence for those
convicted [since the 9/11 attacks] in what were categorized as
`international terrorism' cases--often involving lesser changes like
immigration violations or fraud--was 20 to 28 days, and many received
no jail time at all.'' Eric Lichtblau, ``Study Finds Sharp Drop in the
Number of Terrorism Cases Prosecuted,'' New York Times, Sept. 4, 2006,
p. A7.
\8\ Id.; Dan Eggen, ``Terrorism Prosecutions Drop: Analysis Shows a
Spike after 9/11, Then a Steady Decline,'' Washington Post, Sept. 4,
2006, p. A6.
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Fortunately, if a terrorist plot is detected, often it can be
neutralized without prosecution of the plotters. Some can be deported,
some held in administrative detention, some ``turned'' to work for us,
some discredited in the eyes of their accomplices, some paid off, some
frightened into neutrality, some sent off on wild-goose chases by
carefully planted disinformation, and some carefully monitored in the
hope that they will lead us to their accomplices. The greatest value of
allowing detention of terrorist suspects for more than 48 hours is not
to facilitate prosecution but to support the intelligence function by
enabling the government to obtain more complete and timely information
concerning the scope, direction, timing, personnel, and links to other
networks of the terrorist project that has been detected.
Of course there are incorrigibles who must be prosecuted. But if
they are truly threats to national security they can be prosecuted
outside the ordinary criminal justice system, for example by military
commissions if properly configured to comply with the Supreme Court's
strictures.
My concern with our overinvestment in the criminal law response to
terrorism brings me to the most important lesson that we can learn from
the English, and that is the need to have a domestic intelligence
agency that is separate from a police force. The United Kingdom, like
virtually all nations except the United States, has long had such an
agency (the Security Service, popularly known as ``MI5'' because it
originated a century ago as a branch of military intelligence). MI5 has
no arrest powers--it is a pure intelligence agency--but works closely
with Scotland Yard's Special Branch. It apparently played a major role
in breaking up the Heathrow plot, and it had earlier succeeded in
foiling German espionage in World War II and in limiting IRA violence.
In the United States, domestic intelligence is primarily the
responsibility of the FBI. Other agencies have some domestic
intelligence functions, but there is no counterpart to MI5 or to the
Canadian Security Intelligence Service, which is our northern
neighbor's counterpart to MI5 and played an important role in foiling
the recent Toronto terrorist plot.
The problem with placing domestic intelligence responsibility
inside the FBI is that the Bureau is first and foremost a criminal
investigation agency. It is part of the Department of Justice and its
special agents work under the direction of the Department and the
Department's local U.S. Attorneys to make arrests and gather evidence
looking to prosecution. The Bureau's goal is not to prevent crimes but
to catch criminals. It is very good at that. But its conception of
national security intelligence is shaped by its traditions and primary
focus. It sees such intelligence as an adjunct to criminal
prosecutions. Its conception of how best to deal with terrorism is to
arrest and prosecute and convict and imprison the terrorists. That is a
dangerously incomplete strategy because of the limitations of criminal
law enforcement, sketched above, as a means of preventing terrorism.
Like military and covert action against terrorists abroad, like border
controls, and like hardening potential terrorist targets, criminal law
enforcement is an important tool for dealing with the terrorist threat.
But another important tool, which the FBI so far has been notably
unable to forge, is domestic intelligence as a free-standing mode of
terrorism prevention. The key to effective intelligence, which is not
well appreciated by the Bureau, is to cast a very wide net with a very
fine mesh to catch the tiny clues (most of which would not qualify as
evidence in a court proceeding) that assembled into a mosaic may enable
the next attack to be prevented; for once the plot is detected, as I
have said, it can be disrupted without formal legal proceedings even if
later it is decided to prosecute some or all of the plotters. The
process of detection and disruption requires great patience, and some
risk (a risk the FBI and the Justice Department are unwilling to take)
that a terrorist act will be committed while the intelligence service
is still exploring the extent of the terrorist network without tipping
its hand by recommending arrests.
I have argued elsewhere and at considerable length for the urgency
of our need for a domestic intelligence agency separate from the FBI,
and I will not repeat the argument here but will merely refer the
interested reader to the relevant sources.\9\ I emphasize that there is
no constitutional (or, I believe, other legal) bar to the creation of
such an agency. It has been argued that an MI5 clone wouldn't work here
because the United Kingdom does not have the Bill of Rights. The
argument is mistaken. The principal limitations that the Bill of Rights
imposes on counterterrorism involve arrest, detention, admissible
evidence, trial procedures, and other incidents of criminal law
enforcement and are almost entirely irrelevant to an intelligence
service that would have no arrest or other prosecution-related powers.
The exception is surveillance by means of physical or electronic
searches, which are regulated by the Fourth Amendment. But the relevant
limitations, some of which indeed pinch too hard in my judgment,
notably the Foreign Intelligence Surveillance Act, are statutory rather
than constitutional. Warrants are tightly restricted by the warrant
clause of the Fourth Amendment. But surveillance, even when it takes
the form of wiretapping or other electronic interception, need not be
conducted under a warrant. The only limitation the Constitution places
on searches without a warrant is, as I have noted already, that they be
reasonable, and none of us would wish to see a domestic intelligence
agency employ unreasonable methods of surveillance. The potential
abuses of such surveillance can be minimized, without judicial
intervention, by rules limiting the use of intercepted communications
to national security, requiring that the names of persons whose
communications are intercepted (and the reasons for and results of the
interception) be turned over to executive and congressional watchdog
committees, and imposing meaningful penalties on officials who violate
civil liberties.
---------------------------------------------------------------------------
\9\ Richard A. Posner, Preventing Surprise Attacks: Intelligence
Reform in the Wake of 9/11, ch. 6 (2005); Posner, Uncertain Shield: The
U.S. Intelligence System in the Throes of Reform, chs. 4-5 (2006);
Posner, Remaking Domestic Intelligence (Hoover Institution, 2006);
Posner, ``Intelligence and Counterterrorism Five Years after 9/11''
(September 2006, unpublished).
---------------------------------------------------------------------------
So we can learn a lot from the British experience with fighting
terrorism, in particular about the need for detention of terrorism
suspects beyond the conventional 48-hour limit and, above all, about
the need, which should encounter no obstacle based on our Constitution,
for a domestic intelligence agency separate from the FBI.
appendix: brief biographical sketch of richard a. posner
Richard A. Posner was born in 1939. After graduating from Yale
College and Harvard Law School, Posner served in various government
positions, including in the Justice Department, before entering law
teaching in 1968 at Stanford as an associate professor. He became
professor of law at the University of Chicago Law School in 1969, where
he remained (later as Lee and Brena Freeman Professor of Law) on a
full-time basis until 1981. During this period Posner wrote extensively
on economic analysis of law and also engaged in private consulting,
mainly in antitrust law, and was from 1977 to 1981 the first president
of Lexecon Inc., a consulting firm.
Posner became a Judge of the U.S. Court of Appeals for the Seventh
Circuit in December 1981 and served as Chief Judge from 1993 to 2000.
He has written almost 2,200 published judicial opinions. He continues
to teach part time at the University of Chicago Law School, where he is
Senior Lecturer, and to write academic articles and books. For several
years his major academic focus has been on catastrophic risk (including
terrorism and proliferation), national security intelligence, and the
intersection between national security and civil liberties. He has
published in these areas, besides shorter works, Catastrophe: Risk and
Response (2004); Preventing Surprise Attacks: Intelligence Reform in
the Wake of 9/11 (2005); Uncertain Shield: The U.S. Intelligence System
in the Throes of Reform (2006); and Not a Suicide Pact: The
Constitution in a Time of National Emergency (2006).
Posner received honorary degrees of doctor of laws from Syracuse
University in 1986, from Duquesne University in 1987, from Georgetown
University in 1993, from Yale in 1996, from the University of
Pennsylvania in 1997, from Northwestern University in 2002, and from
Aristotle University (in Thessaloniki) in 2002; and he received the
degree of doctor honoris causa from the University of Ghent in 1995
from the University of Athens in 2002, and an honorary juris doctor
degree from Brooklyn Law School in 2000. In 1994 he received the Thomas
Jefferson Memorial Foundation Award in Law from the University of
Virginia. In 1998 he was awarded the Marshall-Wythe Medallion by the
College of William and Mary, and he received the 2003 Research Award
from the Fellows of the American Bar Foundation. He received the John
Sherman Award from the U.S. Department of Justice in 2003, for
contributions to antitrust policy. In 2005 he received the Learned Hand
Medal for Excellence in Federal Jurisprudence from the Federal Bar
Council, the Thomas C. Schelling Award for scholarly contributions that
have had an impact on public policy from the John F. Kennedy School of
Government at Harvard University, and the Henry J. Friendly Medal from
the American Law Institute.
Posner is a member of the American Law Institute, the Mont Pelerin
Society, and the Century Association, a fellow of the American Academy
of Arts and Sciences, an Honorary Bencher of the Inner Temple, a
corresponding fellow of the British Academy, an honorary fellow of the
College of Labor and Employment Lawyers, a member of the editorial
board of the European Journal of Law and Economics, and a Consultant to
the Library of America, as well as a member of the American Economic
Association and the American Law and Economics Association (of which he
was President in 1995-1996). He was the honorary President of the
Bentham Club of University College, London, for 1998. With Orley
Ashenfelter, he edited the American Law and Economics Review, the
journal of the American Law and Economics Association, from its
founding in 1998 to 2005.
Academic writings by Posner have been translated into French,
German, Italian, Spanish, Chinese, Japanese, Korean, Greek, Portuguese,
Ukrainian, Lithuanian, and Slovenian. He and the economist Gary Becker
write weekly commentaries on policy issues, published in ``The Becker-
Posner Blog,'' at http://becker-posner-blog.com/.
Senator Gregg. Thank you very much, Judge, for your
thoughts. We appreciate them.
Mr. Yoo.
STATEMENT OF JOHN YOO, PROFESSOR OF LAW, BOALT HALL
SCHOOL OF LAW, UNIVERSITY OF CALIFORNIA AT
BERKELEY
Mr. Yoo. Thank you, Mr. Chairman, for inviting me to
testify. These are extremely important hearings, a very
important subject. In the 5 minutes I have, I find myself in
the position many law professors are in, in that I might have
something interesting to say, but Judge Posner got there first.
So actually a lot of the things I was going to say he has
already said. So I am just going to try to supplement some of
the points he made and may talk about some areas of difference
between the United States and Great Britain where actually the
Appropriations Committee in particular could do something that
would bring us up to par with Great Britain, not at a
constitutional level but at a policy level.
I think Judge Posner is quite right, the things that people
have focused on in the media as being great differences between
the British and American systems that give the British an
advantage I think are somewhat illusory or exaggerated. He
correctly pointed out this idea that the British can detain
people longer than we can in our system might be a correct as a
matter of formal rules, but does not take account of what has
happened in the United States over the last 5 or 6 years.
One way to think about it is that the British system is, as
you said in your opening remarks, preventative. It aims to try
to prevent terrorist attacks from happening in the future. The
American approach had been primarily or exclusively law
enforcement, which is retrospective. The idea of the criminal
justice primarily is you look at an event that has already
happened and you try to historically put the facts together
about who's responsible. As Judge Posner said, as you have
mentioned, and as Mr. Parker says in his testimony, those two
basic goals are often in conflict and may be incompatible
often.
So one way you can think about what the administration has
done over the last 5 years and in the bill about Hamdan which
you mentioned in your opening remarks has been to try to move
the American system to have some ability to conduct
preventative measures rather than just be stuck in a criminal
justice system, which was the approach administrations of both
parties took until September 11, I would say.
So on the detention issue, the formal rule is quite right,
the United States cannot hold people for longer than 48 hours
in the criminal justice system. In Great Britain you can hold
people for 28 days without criminal charge. But the
administration, in a move approved by the Supreme Court, has
said that it will detain people as enemy combatants without
criminal charge and that can go on for much longer than 28
days. Obviously it can go on for months or years, until the end
of the conflict. That is an example where the administration, I
think with Congress' support and Supreme Court approval, has
tried to introduce some of these preventative measures.
Another area is surveillance, which you mentioned in your
opening remarks. The British have lower standards for the
collection of non-content communication, data about phone
calls, emails, not the content but the other kind of
information connected with that. In Great Britain, as I
understand it, one can just go to an agency official for
permission to conduct, to collect that kind of information. In
the United States you would usually have to go to the FISA
court, the FISA court or a regular court, to collect that
information.
In an effort to move the system to a more proactive future,
forward-looking perspective, the administration introduced the
NSA terrorist surveillance program, which is more like the
British system. This was I think particularly important,
although I think overlooked in the accounts of how Great
Britain broke up the plot last month. If you read the accounts
carefully, they say there was an initial tip given by a
community member. But then it appears that Great Britain used
that information to engage in massive amounts of data mining
and communications interceptions to try to piece together the
network.
That would be difficult under the FISA system, which is
based on individual warrants, based on suspicion of a
particular person. But under the programs that have been
publicly revealed, the administration has tried to move the
system in that direction and, as you said, Congress is
currently considering right now how far to go in authorizing
that. That is one area, at the very least, where I think, as
you asked in your opening remarks, what can Congress do now
consistent with the Constitution to bring is closer to the
British system. It would be to approve at least some elements,
I think, of the terrorist surveillance program.
So the two I think really big areas where Great Britain
does possess advantages is data mining--and this is
particularly I think of interest to the Appropriations
Committee. As you might remember, in the winter of 2001-2002
there was a big controversy over research being conducted at
the Defense Department to engage in data mining, the total
information awareness program, and my understanding was that
Congress through an appropriations rider cut off all funding to
the Defense Department to conduct that kind of research, not to
put the program in operation, but at least to consider some
issues of how can you even balance privacy using computers
against the kind of information you could gather and analyze
using computers. Research on that has been halted through
appropriations and that could be something that this committee
could think about and monitor, balance, in order to bring us
closer to what the British are able to do.
My sense is the British do not have any constitutional
restrictions on data mining and the reports in our press are
that the British use that tool quite extensively.
The last thing I will mention--again, Judge Posner beat me
to it--is the MI5 model. Another thing that this committee
could do is to start the transition of the FBI from a law
enforcement-focused setup to something he mentioned,
prospective, preventative. There's been a lot of studies done
by people in this country and elsewhere about whether it's
possible or consistent for that goal to sit with the law
enforcement goal.
As someone who has worked in the Justice Department, I have
a lot of respect for the FBI agents and their managers, who
have a very difficult problem. But I think it is fair to say
over the last 5 years the FBI has had serious difficulty trying
to upgrade its systems and change its mentality towards a type
you would want for national security purposes.
So that is something I think this committee could usefully
do in addition to data mining, is to consider whether it wants
to start using appropriations as a method to prod the FBI to
move faster or even to consider other options, like
supplementing the FBI with a new independent agency or telling
the FBI to get out of the business of catching bank robbers and
kidnappers and focus exclusively on national security and leave
those other issues, which are perfectly appropriate in
peacetime, to State and local law enforcement.
But thank you very much for having me. I look forward to
your questions.
[The statement follows:]
Prepared Statement of John Yoo
Mr. Chairman, thank you for the opportunity to testify before the
Subcommittee on Homeland Security regarding American and British laws
for investigating and detaining suspected terrorists. I am a professor
of law at the University of California, Berkeley. From 2001 to 2003, I
served as deputy assistant attorney general in the Office of Legal
Counsel at the Department of Justice, where I worked on issues
involving national security, foreign relations, and terrorism. My
academic writing on these subjects can be found in two books, one
published last year, The Powers of War and Peace, and one appearing
later this month, War by Other Means. The views I present here are mine
alone.
Great Britain's successful prevention of a recent terrorist plot to
destroy multiple American airliners flying from London to the United
States in mid-air has prompted questions whether our counter-terrorism
efforts can be improved. Some have suggested that British authorities
enjoy broader law enforcement powers to investigate and detain
terrorists, and asked whether we can learn from and adopt British
practices. This idea has a basic attractiveness because the United
States and Great Britain share a common cultural heritage, face a
similar threat from international terrorism, and operate a common law
legal system.
As I will explain, differences result from both constitutional and
policy choices. I hope to demonstrate in what areas the American
Constitution prohibits adopting British standards, as well as areas
where American laws can be made more effective at fighting terrorism,
that is, where our policy choices are not limited by the Constitution.
First, I will discuss important constitutional differences between the
United States and Great Britain.
Constitutional Differences
Unlike the United States, the United Kingdom does not have a
written constitution. The British system lacks formal constitutional
protections of many of the rights we consider fundamental as deriving
from the constitutional text, structure, and history. Britain's
unwritten constitution does not enforce a strict separation of powers
at the national level, nor does it have a Federal system of government.
Rather than an independent Presidency and Congress, executive power is
exercised by a prime minister and cabinet which represent the majority
party in Parliament.
The American Constitution protects many important civil liberties
through explicit guarantees in the Bill of Rights which are lacking
under the British system. For instance, the Fourth Amendment was
enacted in 1791, partly in response to British practices during the
Colonial period. This Amendment states:
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall
not be violated, and no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized.
The Fourth Amendment imposes restrictions upon the power of the
government to monitor and detain individuals, even for legitimate law
enforcement purposes. The Supreme Court has interpreted an individual's
right under the Fourth Amendment to require that to allow extended
detention after a warrantless arrest, the suspect must be promptly
presented before a judge to determine probable cause to stand trial for
a crime--in almost all cases, within 48 hours. Gerstein v. Pugh, 420
U.S. 103, 125 (1975); County of Riverside v. McLaughlin, 500 U.S. 44,
56 (1991). If the evidence is found insufficient, the arrestee must be
released. It is well established that the suspect may appeal under the
writ of habeas corpus to challenge his continued detention. See, e.g.,
Ex Parte Bollman, 4 Cranch 75 (1807). Britain has no such
constitutional limits, and has greater flexibility to legislatively
alter the time and procedure of detention without charge.
The First Amendment, likewise ratified as part of the Bill of
Rights, protects among other things individuals' freedom of speech,
religion, and association, which can come into conflict with law
enforcement and intelligence purposes. Britain does not have a
constitutional analogue to the First Amendment. Finally, the Sixth
Amendment guarantees accused criminals certain rights, such as the
right to a speedy trial and the right to be informed ``of the nature
and cause of the accusation,'' and the right ``to be confronted with
the witnesses against him.''
A Comparison of American and British Anti-Terror Laws
The British Parliament has recently enacted several important
pieces of anti-terrorism legislation: the Terrorism Act 2000, the
Regulation of Investigatory Powers Act of 2000, the Anti-terrorism,
Crime and Security Act of 2001, the Prevention of Terrorism Act 2005,
and the Terrorism Act of 2006. These laws set forth comprehensive
definitions of terrorism and related offenses, and establish procedures
authorities shall follow in combating terrorism. The laws represent
Britain's response to two distinct forms of terrorist threat. The first
was from Irish separatists who committed acts of terrorism and murder
in Northern Ireland and Britain. This was the United Kingdom's greatest
domestic security threat for much of the latter part of the 20th
Century. The second form of terrorism addressed by the British laws is
Islamic fundamentalist terrorism perpetrated by al Qaeda and groups
affiliated with it. This has taken on great prominence in Britain post-
9/11, and more so in light of the deadly attacks on the London
Underground on July 7, 2005, and the recently foiled plot to hijack or
blow up passenger jets departing Britain bound for the United States.
The following provides a brief description of the differences in
American and British anti-terrorism laws topic by topic. It examines
the laws regarding arrest, searches, and detention of suspects;
monitoring suspects' bank accounts; monitoring communications data;
intercepting communications, i.e. wiretapping; infiltrating suspected
groups; and finally, sharing information among law enforcement and the
domestic and foreign intelligence communities.
Arrest, Searches, and Detention of Suspects
Under the Terrorism Act of 2000, a British officer may arrest a
suspected terrorist or conduct a search of a suspect he ``reasonably
suspects'' is a terrorist or is in possession of ``anything which may
constitute evidence that he is a terrorist.'' An American officer, by
contrast, must have ``probable cause'' to make an arrest or conduct a
search of a person he suspects to have committed a crime. See, e.g.,
United States v. Watson, 423 U.S. 411 (1976). This is the minimum under
the Fourth Amendment and cannot be changed by Congress.
The British have greater power to detain a terrorist without
criminal charge. Section 23 of the Terrorism Act of 2006 sets forth a
procedure under which a suspect may be detained for up to 28 days
before he must be charged with a crime or released. After 48 hours,
judicial approval is required, and is required a second time if the
authorities wish to detain the suspect beyond 7 days. The judge does
not need to find probable cause, but must be satisfied that ``there are
reasonable grounds for believing that the further detention of the
person to whom the application relates is necessary to obtain relevant
evidence whether by questioning him or otherwise or to preserve
relevant evidence,'' and ``the investigation in connection with which
the person is detained is being conducted diligently and
expeditiously.'' The suspect has access to counsel and may make written
or oral communications before the judge; however, the suspect and his
counsel may also be excluded from portions of the hearing. The British
government has already invoked this power to detain the individuals
arrested in conjunction with the August, 2006 plot to blow up airliners
departing Britain. This allowed the plot to be halted, but also allows
more evidence to be gathered prior to formally charging the suspects
with crimes.
In the United States, law enforcement authorities must generally
present probable cause before a judge that a suspect has committed a
crime or the suspect will be released. The Supreme Court has
interpreted the Fourth Amendment to require the government to charge
suspects at most within 48 hours. The Court has made clear that it is
unreasonable to delay a probable cause hearing for purposes of
gathering evidence to justify the arrest. McLaughlin, 400 United States
at 56. There are few exceptions to the American probable cause
paradigm. One is the material witness statute, 18 U.S.C. 3144, which
allows the arrest and detention of suspects whose testimony in a
criminal proceeding might be difficult to obtain. This has been applied
in the war on terrorism to initially detain Jose Padilla, as well as
others who may have had information about the 9/11 hijackers, but its
applicability and usefulness are limited.
It is not clear, however, that the unwritten nature of the British
constitution permits broader detention authority than in the United
States as a constitutional matter. The Supreme Court has made clear, as
recently as in Hamdi v. Rumsfeld, 124 S. Ct. 2633 (2004), that the
government may detain enemy combatants without criminal charge or
hearing until the end of hostilties. On September 18, 2001, Congress
voted in the Authorization to Use Military Force statute to approve the
President's authority to use force against those connected to the
September 11, 2001 terrorist attacks. Ever since the earliest days of
warfare, the lesser power to detain combatants has been understood to
fall within the greater authority to use force against the enemy. As
the Court recognized, the purpose of detention in the military context
is not to punish, but merely to prevent combatants from returning to
the fight. In fact, such detention is the merciful, humanitarian
alternative to a practice of granting no quarter to the enemy. That
power extends even to U.S. citizens, as it did in the case of Ex Parte
Quirin, 317 U.S. 1, 28 (1942), in which the Court upheld the World War
II detention and trial by military commission of Nazi saboteurs, one of
whom apparently was a citizen. After noting that the laws of war
permitted the detention without criminal charge of Confederate soldiers
during the Civil War, the Court observed that ``A citizen, no less than
an alien, can be `part of or supporting forces hostile to the United
States or coalition partners' and `engaged in an armed conflict against
the United States.''' No specific congressional authorization, the
Court further concluded, was needed. ``Because detention to prevent a
combatant's return to the battlefield is a fundamental incident of
waging war,'' the Court concluded, ``in permitting the use of
`necessary and appropriate force'' Congress authorized wartime
detention of enemy combatants.
The Constitution imposes much narrower restrictions on the
detention of criminal suspects than the British system. But if the
subject is a terrorist connected with al Qaeda or with the September 11
attacks, he or she might meet the standard for an enemy combatant. In
that case, the U.S. government could detain the subject as an enemy
combatant, without having to meet the criminal justice system's 48 hour
requirement. The only complication in this argument is that Hamdi
addressed a case in which the enemy combatant had been detained in the
course of hostilities in Afghanistan, and did not address a different
factual circumstance presented by an American citizen affiliated with
al Qaeda who is detained on United States soil. While the U.S. Court of
Appeals for the Fourth Circuit in Padilla found the same logic applied
to both cases, the Department of Justice transferred Jose Padilla to
the criminal justice system before the Supreme Court could hear an
appeal.
Restricting Movements of Suspects
Britain's Prevention of Terrorism Act allows authorities to issue
``control orders'' which impose restrictions upon a suspect's civil
liberties without incarcerating him. These orders, which require
judicial approval and are valid for up to one year at a time, could
restrict an individual's freedom to travel, to meet with certain groups
or visit certain locations, to be away from his home during certain
hours of the day, or to use cell phones or the internet. Currently the
regime of control orders is under challenge as a potential violation of
European human rights laws. The United States has no comparable Federal
laws, and such provisions would run into constitutional difficulties
due to the First Amendment's protections of individuals' freedom to
travel and associate.
Monitoring Bank Accounts and Communications
The Anti-terrorism, Crime and Security Act of 2001 allows British
authorities to monitor bank accounts upon obtaining a warrant from a
judge. The judge must find that the monitoring relates to a terrorist
investigation, and also that the particular monitoring order sought
will further that investigation. Anti-terrorism, Crime and Security Act
of 2001, Schedule 2 Part 1 (amending Terrorism Act 2000 38). The
order lasts for 90 days. Additionally, the Regulation of Investigatory
Powers Act of 2000, and an accompanying Code of Practice, allows
British law enforcement and intelligence authorities to evaluate
communications data for patterns suggestive of terrorist activities.
This means the attributes of communications, such as the location where
a call was placed and its destination, but not the actual contents of
the communication. To monitor communications data, a law enforcement or
intelligence agency need only complete a written application, which is
considered by a designated individual within the body or agency.
Authorizations are valid for up to one month, and can be renewed. The
government may also inquire into subscriber information, or the
identity of persons to whom a telephone number is registered or who
controls an email account or internet domain. British law enforcement
and intelligence agencies are allowed to share any information obtained
by these or other investigatory means.
In the United States, authorities may obtain a warrant or
administrative subpoena for financial records under the Right to
Financial Privacy Act, 12 U.S.C. 3401-3422, which grants
individuals some privacy rights over financial records in the hands of
third parties. Authorities may also obtain a warrant for tangible items
held by third parties, under section 215 of the USA Patriot Act. In
2001, the Patriot Act authorized domestic law enforcement and
intelligence agencies to share financial documents for the purposes of
fighting terrorism. The ability of American authorities to obtain
financial records by administrative subpoenas is somewhat easier than
that granted to their British counterparts, and the rules on sharing
the information among agencies are comparable. With regard to other
tangible items, section 215 of the Patriot Act requires that the
Foreign Intelligence Surveillance Court issue a warrant. Britain does
not have a statute with scope analogous to section 215.
Upon first examination, it would appear that the British system
permits the government easier access to non-content data about
communications because of its ability to seek authorization from an
agency official. But the administration has sought a similar ability
through its warrantless surveillance of communications, with one end of
the message or conversation beginning or ending abroad, with a
suspected al Qaeda member. These communications do not as yet require a
judicial warrant, because the administration claims that the program is
authorized by the AUMF of September 18, 2001, and the President's
Commander-in-Chief authority to conduct war. The program is under
challenge in the courts as a violation of the Foreign Intelligence
Surveillance Act, and Congress is currently considering legislation
that would approve the program or consolidate it for judicial review
before the FISA court.
Data Mining
Data mining uses supercomputers to analyze vast amounts of
information for suspicious patterns of behavior. While British anti-
terrorism legislation does not address data mining, some commentators
claim that data mining is already widely used in the United Kingdom to
combat terrorism. A common misperception about data mining is that it
involves gathering information about millions of individuals, and hence
implies increased surveillance. Rather, data mining applies algorithms
to information that is either already public or on record with third
parties.
Analyzing this type of information does not violate an individual's
Fourth Amendment right to be free of unreasonable searches and
seizures. As the Supreme Court has held with respect to bank records,
once information is turned over to a third party in a commercial
setting, the individual loses his reasonable expectation of privacy in
that information. United States v. Miller, 425 U.S. 435 (1976). The
Supreme Court likewise has held that an individual does not have a
reasonable expectation to the privacy of the phone numbers he dials,
because the phone user voluntarily gives this information to the phone
company; thus, a ``pen register'' to record dialed phone numbers does
not require a warrant. Smith v. Maryland, 442 U.S. 735 (1979). Data
mining is constitutional and does not threaten civil liberties because
it deals first and foremost with raw data. It is not an impermissible
``fishing expedition'' that looks for dirt on a particular person, as
civil libertarians may claim.
American restrictions on data mining do not arise because of
significant constitutional differences between the United States and
Great Britain. Rather, restrictions on data mining in the United States
have resulted from policy decisions made by Congress in response to
reports of Defense Department efforts to create a ``Total Information
Awareness'' program. I believe that Congress reacted prematurely to
exaggerated reports of data mining research. Data mining could be
controlled and developed so that it protects us from terror and
maintains our privacy. Analysis could be limited to data already turned
over to third parties.
Searches could be performed initially by computer. Only after a
certain level of suspicious activity had been registered would an
intelligence or law enforcement officer be allowed to see the results.
A warrant could still be required to investigate the content of
communications or the purpose of purchases. Only after a suspicious
pattern is detected would authorities seek more complete records about
a particular individual's activities, either through a warrant or
administrative subpoena. Because data mining does not violate Fourth
Amendment norms, Congress can authorize data mining programs that
strike the appropriate balance between providing law enforcement access
to useful information and protecting civil liberties.
Profiling, Infiltration, and Privacy
British authorities have the power to monitor ethnic and religious
groups, and radical elements within those groups. British police can
infiltrate the groups, instead of merely relying on informants'
accounts. It is unclear precisely where and how often British
authorities have infiltrated or attempted to infiltrate such groups.
However, there is no indication that such actions are considered
illegal or unconstitutional under the British legal system.
In the United States, guidelines issued by the Attorney General set
forth the extent to which the FBI can monitor potential terrorist
activities and infiltrate criminal or terrorist ventures.\1\ These
guidelines explicitly allow the FBI to check initial leads that may be
related to crime or terrorism, including attending public events. The
FBI may also infiltrate terrorist organizations, but such operations
are normally considered ``sensitive circumstances'' requiring approval
of high-level FBI officials. The decision regarding when infiltration
is appropriate requires that officials weigh factors, but the
Guidelines neither prescribe nor proscribe particular instances when
infiltration is advisable or forbidden.
---------------------------------------------------------------------------
\1\ See The Attorney General's Guidelines on General Crimes,
Racketeering Enterprise and Terrorism Enterprise Investigations, http:/
/www.usdoj.gov/olp/generalcrimes2.pdf; The Attorney General's
Guidelines on Federal Bureau of Investigation Undercover Operations,
http://www.usdoj.gov/olp/fbiundercover.pdf.
---------------------------------------------------------------------------
The areas of profiling, infiltration, and privacy present fewer
constitutional restrictions and more policy choices. Profiling, which
may perhaps represent a useful tool, can run afoul of equal protection
rules and non-discrimination norms.
Conclusion: administrative reform
Differences between British and American anti-terrorism policy does
not turn on constitutional differences for their scope. Many of the
powers thought to be more advantageous to the British, such as
detention and surveillance, in fact have some counterpart in the
American system. Congress could help by further authorizing these
powers, which are under attack in the court. Other important areas,
such as in the area of data mining, are restricted in the United States
not because of constitutional prohibitions, but because of policy
choices made by Congress.
Perhaps the most important British-American difference, however,
which can have significant effects on the war on terrorism is the
structure of the domestic intelligence agencies. American efforts so
far to reform our national security system in response to the lessons
of 9/11 have focused on changes of high-level administrative
reorganization, such as the creation of a Director of National
Intelligence or the Department of Homeland Security. These changes have
consumed energy and resources, but have placed an additional layer
between the President and those who directly collect and analyze
intelligence.
At the same time, Congress has not undertaken any sweeping reform
of the Federal Bureau of Investigation. The United States is different
from Britain, and France, Canada, and Australia, for that matter, in
that it assigns domestic counter-terrorism and counter-intelligence
functions to an agency that is also responsible for domestic law
enforcement. As I argue in my book, the approaches to law enforcement
and national security are very different. The former is retrospective,
depends on building cases, and focuses on prosecution and
incarceration. The latter is prospective and focuses less on
convictions than on preventing future attacks.
In Great Britain, these functions are split up, with MI5 performing
the role of an internal intelligence service. Arguably this allows
those tasked with counter-terrorism to focus on gathering intelligence,
engage in long-term monitoring and investigation, and develop expertise
on the enemy that may go beyond what is possible in a domestic law
enforcement system, which depends on cases and prosecutions for
success. Congress should devote deeper thought to whether our counter-
terrorism efforts would meet with greater success if it divided the
FBI's current duties between two agencies, one for domestic law
enforcement and one for counter-terrorism and national security
affairs. This could be a greater contribution to our anti-terrorism
laws than making changes to the scope of the substantive powers
available to the government.
Senator Gregg. Thank you, professor. I appreciate those
comments. We have actually had that debate going on for a
while, so I appreciate the reinforcement on the points.
Mr. Parker.
STATEMENT OF TOM PARKER, CEO, HALO PARTNERSHIP
CONSULTING, FORMER BRITISH COUNTERTERRORISM
OFFICIAL
Mr. Parker. Thank you, Mr. Chairman, and thank you for
inviting me. I find myself in the position of an echo to an
echo, I think.
I would start by saying the two systems, the United States
system and the British system, are much more similar than I
think commonly perceived over here. Britain has a large number
of restraints on what it can and cannot do, imposed by its
membership in the European Convention on Human Rights, the
European Convention. Perhaps appropriately, we have heard how
the British common law system informed the American
Constitution. Well, the European Convention on Human Rights is
very strongly informed by the U.S. Constitution. It draws its
inspiration from human rights and the codification of private
rights pioneered really by the United States in the 18th
century and by revolutionary France. So there is a certain
symmetry to this.
The big difference, though, is we have oversight that sits
outside the United Kingdom, and that is the European Court of
Human Rights in Strasbourg. That is our last court for appeals
and it is staffed by foreign judges. So although a British
judge will sit on a European court case, there will be 7 or
perhaps 14 foreign judges hearing the case and the submissions.
So there is no natural sympathy on the bench to the British
perspective when they hear the British government make its
arguments.
That is a very powerful enforcement mechanism. We are--it
is a binding court. We are obligated to respond to its
judgments, and that means that we are held to a very high
standard, one that can be very aggressive in pursuing the
reasons behind British legislation. And it has rolled back
British counterterrorist strategies in a number of very
significant areas over time, most significantly in the area of
coercive interrogation.
The other thing that is interesting about the European
court and is worth mentioning is its focus is on creating a
margin of appreciation for each individual European country.
The court does not, and has actually several times made it very
explicit in its judgments, ever set out to make any form of
judgment about what is or is not appropriate governmental law
enforcement action. What it looks at is purely whether or not
the convention itself has been violated, and if it has, if
actions of governments are up against the limits of the
convention, the degree to which that is appropriate within that
forum. For example, it will treat Britain's response to
counterterrorism different to the way that it treats Turkey's
response to counterterrorism.
So you do not have the same sort of framers' intent, people
poring back to a foundational document and trying to tease out
nuances. There is a little bit more sympathy for trying to
understand the local conditions. But at the same time, there is
no great political sympathy for any governmental point of view.
So it is kind of an interesting contrast to the Supreme Court
in a number of different ways.
Perhaps the most important area for me to dwell on I guess
is our approach to counterterrorism activity, which is
essentially one of criminalization. We have a doctrine of
criminalization in the United Kingdom. We have not always had
that and we adopted it primarily because of the lack of success
we enjoyed in the early 1970s against the Provisional IRA in
Northern Ireland.
One of the reasons, one of the factors in returning back to
this doctrine of criminalization, was the European Court on
Human Rights and the checks that it imposed on British activity
and the embarrassment the British government felt having its
different operations held up to scrutiny in Strasbourg.
I am going to read you the home office strategy because I
think it is quite interesting. The home office basically gives
four core strategic areas for combating terrorism. It is
prevention, which it lists as basically falling into four
different areas: social inclusion, international dialogue,
legislation, border security. So that is block number one,
preventative.
Block number two is pursuit and we see pursuit basically as
falling into only two spheres, intelligence activity and law
enforcement activity. There is no real mention of military as
an option within the British counterterrorist strategy.
Protection, that is target hardening, protective security;
and then preparedness, focus on emergency responses.
So that is sort of the four pillars, if you like, for the
British counterterrorism approach. The other interesting thing
that the idea, the doctrine of criminalization, does is there
is always pull back to the status quo ante. We have had a
history of having temporary legislation for counterterrorism.
In Northern Ireland we had basically over an almost two decade,
three decade period, annual renewal of the laws, prevention of
terrorism acts, that define terrorism purely in the context of
Northern Ireland. This meant, for example, until 2000, the year
2000, in the United Kingdom you could not be a terrorist unless
you were Irish, unless you were one of the proscribed
organizations within the Prevention of Terrorism Act, which was
very, very tightly defined just to focus on the terrorist
threat in Northern Ireland. It is only in the year 2000 that we
ended up with permanent counterterrorist or anti-terrorist
legislation. Up until this point there was always this doctrine
that this is an extraordinary circumstance and we will limit
our deviations from the norm and try and get back to the norm
as soon as possible.
But having said that, there are many, many areas in which
we compromise the norm. A good example, particularly after
Judge Posner's comments, the Diplock courts. In Northern
Ireland it really was impossible to have a normal jury trial of
terrorism offenses. So we introduced a court system where a
judge heard cases without a jury sitting and somewhat relaxed
the rules of evidence, so that it would be easier to present
evidence and protect security concerns in that court. Again,
Diplock courts only sat in Northern Ireland and so they were
only relevant for offenses that occurred in Northern Ireland,
not for offenses that occurred on the mainland.
So there is this interesting, again, tension in the British
system between a desire and focus on treating terrorists as
criminals. We flirted--we in the early 1970s gave terrorists
special category status as prisoners, effectively recognizing
that they fell into a political character, category of
offender, rather than simple criminals, and we moved back away
from that in 1974 and 1975.
So the statute of criminalization has served us pretty
well. And I think--far be it, I do not feel like I really
represent Her Majesty's government, but at the same time I
think it would be fair to say that the current government in
the United Kingdom still clings to that as a very important
touchstone of its counterterrorist approach, that we should
always see this as a temporary circumstance, one in which we
should always be pulling back away toward normalization of our
normal criminal justice system. That is essentially the
concept.
Finally, since--and I am thrilled to hear MI5 get such a
good press in front of the committee. I will say a few brief
words about what I think the strengths of our system are. The
primary strength is the focus. You have an agency that is
devoted, not exclusively to counterterrorism, but now at least
80 percent of the service's work is counterterrorism. It
recently released its support of organized crime function,
which it had got in the mid-1990s, simply so it could focus
more closely on the threat of international terrorism. So you
have a laser beam focus on a threat, which is very useful.
You also have a central coordinating point, and that for me
is the really key thing about our system. We have one agency
whose job it is to get the word out to everybody. We do not
have 4,000--I forget the number of police and law enforcement--
--
Senator Gregg. 18,000.
Mr. Parker. 18,000 law enforcement agencies. We have less
than 60, which makes life a lot easier. I think there is about
50 regional police forces. It keeps changing and there is a
bill to make it--reduce the number of forces even more in front
of Parliament at the moment. Then we have a small number of
very specialized police forces, like the transport police.
But basically MI5's role is to make sure that the
information, the intelligence, gets out to the people who need
it, whether that is law enforcement, whether that is people
responsible for protective security in individual buildings,
whether that is to government ministers who need to make policy
judgments. MI5 is the hub and it makes sure that all
information that comes through it gets out to the right people.
Now, this of course does not happen overnight. You do not
just create something and have it function perfectly. What you
would not get from my written statement is a sense of the
conflicts which certainly did occur, particularly with the
metropolitan police special branch in the early 1990s, when the
security service took over primacy for counterterrorist
investigations on the mainland.
But what has happened is the service has proved that it
adds value, and it has added value by sharing intelligence and
working very closely with police forces. But it still keeps the
wall. I hesitate to mention the wall, but the wall is very
important in Britain. You know, you have intelligence
investigations and you have law enforcement investigations. The
fact that it sits in a different agency makes it much easier to
draw where that line is.
Security service officers and police officers work very
closely together. Although MI5 is the central coordinating
point, it has a filter in regional special branches. So there
are police officers in every police force who have, if you
like, an intelligence hat on that can to a degree take the
security service's concerns in mind when they are working day
to day with the police forces.
So it is a very effective system. It is one that keeps
intelligence out of the courts, although the security service
has on occasion engineered ways to perhaps use obsolete
equipment in court cases where you might actually want to
disclose the methods used. But primarily it tries to keep the
two things separate. It will go to court in support of police
investigations if absolutely necessary. There is certainly no
constitutional or legal bar from them doing that.
The final mechanism that we have that is tremendously
useful is a thing called a public interest immunity
certificate. Then the service can apply to a judge for a
certificate of immunity for disclosure of information that
could be damaging from an intelligence perspective. Essentially
what happens there is the judge gets to see what the
information is and rule whether or not this is a legitimate
concern. And if it is, the government is issued with a PII that
protects intelligence from disclosure in court. That is a very,
very useful little legal nicety or statutory nicety.
I think I probably should wind up there. Thank you very
much.
[The statement follows:]
Prepared Statement of Tom Parker
Acts of terror on British soil have been remarkably commonplace in
the past 35 years. In addition to Irish nationalist and Loyalist
violence relating to the Troubles in Northern Ireland, groups as
diverse as Black September, the Animal Liberation Front and the Angry
Brigade, individuals with links to Hezbollah and Al Qaeda, and agents
of foreign powers such as Libya, Iraq and Syria have all mounted
attacks in the United Kingdom. In the past 5 years British citizens
have been killed in terrorist attacks in Turkey, Jordan, Qatar, Saudi
Arabia, Indonesia and the United States. More Britons were killed in
the World Trade Center on September 11, 2001 than in any terrorist
event before or since. In July 2005 52 people were killed and more than
700 injured in suicide bombings that targeted the London Transport
system. Suffice it to say, the British government takes the threat from
terrorism, whether domestic or international in origin, extremely
seriously.
What constitutional limits does the United States have that Great
Britain does not have?
There appears to be a perception in the United States that there
are fewer civil liberties protections in the United Kingdom and that
the British government consequently has a far freer hand to develop
stringent counterterrorist measures. However, this impression is not
entirely accurate. The protective framework for civil liberties in the
United Kingdom is dense and complex, and at times can be both more
flexible and more implacable than the equivalent protective measures in
the United States.
Unlike the United States, Great Britain does not possess a single
foundational document that amounts to a written constitution.
Constitutional practice has evolved over centuries and is embedded in
common law and a series of legislative instruments. In this sense there
is a great deal of flexibility for British legislators to shape the
legal landscape. However, in past 50 years a significant external check
on this power has emerged in the shape of the European Convention on
Human Rights (ECHR).
The ECHR is a treaty that operates within the framework of the
Council of Europe. It was ratified by Britain in 1953, which is
currently one of forty-six Contracting States. The original draft of
the Convention was inspired by the United Nations' 1948 Universal
Declaration of Human Rights. The closest that Britain comes to a Bill
of Rights, in the American sense, is the Human Rights Act of 1998. This
Act of Parliament was passed to ``give further effect'' to the rights
and freedoms detailed in the ECHR by enshrining them in British law.
As a signatory of the ECHR, Britain has voluntarily submitted to a
binding enforcement mechanism in the shape of the European Court of
Human Rights in Strasbourg, France. Britain, like the other Contracting
States, has accepted the Strasbourg Court's ultimate jurisdiction in
adjudicating matters arising from alleged breaches of the Convention.
This means that the judgments of British courts are no longer sovereign
in such cases but must give way to a higher authority staffed by
foreign judges. The Court seeks to empathetically balance Contracting
States' individual circumstances against the human rights standards
embodied in the Convention by allowing each State ``a margin of
appreciation'' in interpreting their treaty obligations. In such
instances, the basic test applied by the Court is whether or not the
disputed practice answers a pressing social need and, if so, can be
considered proportionate to the legitimate aim pursued. The domestic
margin of appreciation is thus accompanied by a level of European
supervision.
This margin of appreciation has been applied by the Court in
considering cases related to terrorism and other threats to
parliamentary democracy with a flexibility not enjoyed by the U.S.
Supreme Court. For example, in 1972 the Federal Republic of Germany
adopted a decree aimed at excluding political extremists from
employment in the civil service and reiterating all civil servants'
legal duty of loyalty to the free democratic constitutional system. In
a series of cases arising from the dismissal of members of the left-
wing German Communist Party (KPD) and right-wing National Democratic
Party (NDP) from Civil Service positions (most often in the teaching
profession), the Court accepted that ``a democratic state is entitled
to require civil servants to be loyal to the constitutional principles
in which it is founded'' and took into account ``Germany's experience
under the Weimar republic and the bitter period that followed the
collapse of that regime'' (Vogt v. Germany, 1995).
In questions of free speech the Court has recognized that there is
a balance to be struck between protecting national security and
protecting fundamental human rights. The Court has explored where this
balance lies most carefully in a series of complaints from Turkey
arising from the local prosecution of articles and statements critical
of Turkish government policy towards the Kurdish Workers' Party (PKK)
finding for the government in Zana v. Turkey (1997) and against it in
Incal v. Turkey (1998) and Arslan v. Turkey (1999). In its
deliberations the Court weighed such factors as the prominence of the
individual concerned, the circumstances of publication, the political
climate at the time the statement was made and the ``virulence'' of the
language used. It is therefore unlikely that the Court will strike down
the most controversial section of Britain's Terrorism Act (2006) which
creates a new offence of ``glorifying terrorism.''
The Court made it clear in Ireland v United Kingdom (1978) that it
did not see that it was any part of its function ``to substitute for
the British Government's assessment any other assessment of what might
be the most prudent or most expedient policy to combat terrorism.'' The
Court restricted its role to reviewing the lawfulness, under the
Convention, of the measures adopted by the Government in Northern
Ireland. In this context, in Ireland v. United Kingdom the Court did
not find extra-judicial internment a breach of the Convention nor did
it find the British primary focus on Irish nationalist groups
discriminatory. It did, however, rule against the use of coercive
interrogation methods in detention centers in the Province (of which
more below).
The reason for this discrepancy is that, although States do have
the right under Article 15 of the ECHR to lodge a derogation from some
aspects of the Convention--during a period of public emergency
``threatening the life of the nation'' to the extent strictly required
by the exigencies of the situation--there can be no derogation from the
core values embodied in Article 2 (right to life), except in respect of
deaths resulting from lawful acts of war, Article 3 (prohibition on
torture or inhuman or degrading treatment), Article 4 (prohibition on
compulsory labor) and Article 7 (prohibition on retrospective
criminalization).
The United Kingdom was the only European state to register a
derogation from the Convention after the attacks in the United States
on September 11th, 2001. The British government formally derogated from
article 5(1)(f) of the ECHR, which protects against deprivation of
liberty except for purposes of deportation or extradition. The reason
for this decision was to allow the government to operate a special
detention regime for political asylum applicants to the United Kingdom
suspected of involvement in terrorism, where it was not possible to
deport them because they would be at risk of torture or death if
returned to their country of origin.
Introduced in December 2001 as part of the Anti-Terrorism Crime and
Security Act (ATCSA), this detention regime was finally overturned by
the Law Lords (the British equivalent of the U.S. Supreme Court) in
December 2004 as a breach of Britain's Human Rights Act (1998). In all,
sixteen individuals were detained under the ATCSA and all were
subsequently released although most are still subject to control orders
restricting their freedom of movement.
Britain has contributed more to the evolving jurisprudence of the
European Court in the area of national security than other nation
(except perhaps for Turkey) because of the Troubles in Northern
Ireland. A number of landmark cases have had a major impact on British
counterterrorism practice in areas such as the use of telephone
intercepts, the legal status of the intelligence services, the use of
military forces in a civilian context, oversight mechanisms, and the
use of coercive interrogation methods. A selection of relevant cases
can be found at Annex A.
How do the British balance individual liberties with the need for
collective security?
A Doctrine of Criminalization
In the early 1970s a series of missteps in Northern Ireland--
notably the introduction of internment, the deployment of troops armed
with live ammunition in public order situations and the use of coercive
interrogation (see below)--resulted from the initial decision to treat
the Troubles in much the same way as a colonial disturbance. Emblematic
of this approach was the arrival Brigadier Frank Kitson, the celebrated
author of the classic counterinsurgency manual Low Intensity Operations
and a veteran of British military campaigns in Malaya, Kenya and Oman,
to command the British Army Brigade in Belfast. The legacy of this
policy was a major escalation in the level of violence across the
Province and the extension of the nationalist terror campaign to the
British Mainland. As Sinn Fein leader Gerry Adams noted in his memoir
Before the Dawn: ``The attitude and presence of British troops was also
a reminder that we were Irish, and there was an instant resurgence of
national consciousness and an almost immediate politicization of the
local populace.''
A change of government in 1974 ushered in a new approach in
Northern Ireland, one that aimed to delegitimize PIRA violence by
treating terrorism as just another criminal activity to be dealt with
at a local level. This strategy, which became known as criminalization,
normalization and Ulsterization, guided British attitudes for the
remainder of the conflict and has become a benchmark for British
governmental responses to terrorism. In Northern Ireland this policy
ultimately created a climate in which both cross-border co-operation
could flourish and a meaningful peace process could gain ground amongst
the warring parties. Since 1974 successive British governments from the
two major parties have pursued a policy of treating terrorism--both
foreign and domestic--as a law enforcement problem.
Having tried brute force and found it wanting, the British
government has come to appreciate the importance of legitimacy in
counterterrorism operations. Criminalizing terrorism adds greatly to
the appearance of legitimacy. It also creates a framework which
significantly mitigates the sort of abuses that can discredit a
government internationally:
--The British criminal justice system has demonstrated an increasing
willingness to address and eventually rectify past mistakes,
such as the wrongful convictions of the Birmingham Six and
Guildford Four who had been suspected of involvement in a
series of pub bombings in the autumn of 1974.
--The Stalker and Stevens independent police enquiries into
allegations of a government sanctioned ``shoot-to-kill'' policy
in Northern Ireland together comprise the largest criminal
investigation ever undertaken in the United Kingdom generating
9,256 witness statements, 10,391 seized documents and 16,194
exhibits. The enquiries have resulted in almost 100 convictions
for a variety of offences but they ultimately failed to
demonstrate the existence of an official ``shoot-to-kill''
policy.
--The Courts have been vigilant in upholding basic human right
standards. As outlined above, in December 2004 the Law Lords
overturned the immigration detention regime established under
the ATCSA. In December 2005 the Law Lords ruled that material
gathered overseas by means of torture would be inadmissible as
evidence in British Courts.
Finally, it should also be noted that Parliament has played a major
role in advocating for civil liberties in recent years. In 2005 the
Labour government introduced a Terrorism Bill that proposed a maximum
90 day period of detention without charge for terrorism offences. This
Bill was defeated despite a substantial government majority in the
House of Commons because a number of Labour MPs voted against their own
front bench. The Terrorism Act (2006) introduced a shorter 30 day
maximum period of detention and this passed with significant misgivings
and a commitment to further consultation.
Oversight
It is probably fair to say that the British public lacks ``the
dread of government'' often ascribed to the American people and this
can be seen in the relatively benign oversight mechanisms that govern
the operations of the security and intelligence agencies. Although a
former Director General of the Security Service, Dame Stella
Rimmington, has observed that accountability lies at the heart of the
tension between liberty and security, this is an area in which the
United Kingdom differs markedly from the United States.
In the United Kingdom the oversight applied to the operation of the
intelligence and security services is primarily either Ministerial (the
Home Secretary or Foreign Secretary) or bureaucratic (the Joint
Intelligence Committee and National Audit Office) although some public
mechanisms for redress exist through designated Tribunals or
Commissioners. Parliamentary oversight is limited to a single statutory
committee with a legally defined brief restricted to matters of
expenditure, administration and policy. This is a constitutional
oddity--the parliamentary oversight of governmental bodies is usually
conducted by Parliamentary Select Committees which have greater freedom
to set their own agendas. More details on the oversight regime in the
United Kingdom can be found at Annex B.
What can the United States Learn From the British?
Coordination
The greatest single strength of the British approach to
counterterrorism is the high degree of coordination that now extends
throughout the national security hierarchy. This was not something that
happened overnight but has evolved over several decades. At the apex of
this system is the Joint Intelligence Committee (JIC) comprised of the
heads of each intelligence agency and chaired by a senior civil servant
with experience of, but not necessarily from, the intelligence
community.
The Committee meets weekly or more frequently should circumstances
require it. Its primary role is to produce definitive top-level all-
source assessments for British ministers and senior officials. These
assessments are produced by Cabinet Intelligence Groups (CIGs) chaired
by Cabinet Office staff and comprised of subject experts from the
intelligence community. Every relevant party is represented and the
objective of the group is to agree a corporate assessment that reflects
a consensus view across government. Thus ministers are not bombarded by
conflicting information and left to reach their own conclusion
regarding the most compelling interpretation.
Each Service also submits an account of its overall performance to
the Joint Intelligence Committee (JIC) for consideration by the
Security and Intelligence Coordinator as part of the Agency Performance
Review. The JIC reviews and validates the Services' plans and
priorities for the forthcoming year as part of this process.
Subject experts from different agencies frequently have the formal
opportunity to add their comments to intelligence reports issued by
other agencies ensuring that key intelligence--HUMINT and SIGINT--is
presented along with corroborating or discrediting material from other
sources. Finally, it is worth noting that the relatively small size of
the British intelligence community allows subject experts to develop
strong relationships with their counterparts in other agencies. This
greatly facilitates the flow of information between agencies and helps
to reduce inter-service rivalry.
The Joint Terrorism Analysis Center (JTAC) was established in June
2003 as the United Kingdom's center for the analysis and assessment of
international terrorism. JTAC sets threat levels and issues warnings of
threats and disseminates in-depth reports on trends, terrorist networks
and capabilities to its partners in government. Eleven government
departments and agencies are represented on the staff of JTAC and the
center is based in Thames House, the headquarters of the British
Security Service. The head of JTAC reports directly to the Service's
Director General.
The Role of the Security Service (MI5)
The Security Service has primacy in all counterterrorism
intelligence investigations conducted either on the British mainland or
overseas. According to the Intelligence and Security Committee report
on the July 2005 London Transport bombings, the number of MI5's
``primary investigative targets'' rose from 250 to 800 between
September 11, 2001 and July 2005. Intelligence-gathering operations
relating to these ``primary targets'' are the Service's main priority.
The Security Service also acts as an interface between the
intelligence community and law enforcement. It has developed a deep
institutional understanding of the demands and operational constraints
of each paradigm. The Service is not an executive agency and its
officers have no powers of arrest. Executive action can only be taken
by the nation's law enforcement agencies although Chief Constables have
the option of requesting military support in certain circumstances.
Post-incident primacy rests with the police service in whose force area
a terrorist incident has occurred, although MI5 can continue to act in
a supporting role to the police investigation. The Service can bring a
range of resources not usually available to Chief Constables to support
local operations. The Northern Ireland Police Service still enjoys
intelligence primacy in Northern Ireland although this status is
currently under review.
As the central coordinating point in Britain's pre-emptive
counterterrorist effort, the Security Service also disseminates
intelligence to regional police forces and other governmental partners
in the form of both actionable reports and background bulletins which
can cover anything from briefings on different terrorist organizations
to technical reports on terrorist weapon systems. The Service advises
Whitehall and the business community on protective security measures
and runs training courses for external--even foreign--personnel. It
spearheaded the installation of nationwide secure communications system
for police Special Branches and provides national coverage in a system
which is otherwise robustly regional in character.
The Security Service can be seen as the glue that holds the
architecture of the British counterterrorist effort together. There are
currently forty-three regional police forces in England and Wales most
with less than 4,000 officers, another eight in Scotland operating
under a separate judicial system, the Northern Ireland Police Service
and a small number of forces with specialized roles such as British
Transport Police or the Ministry of Defence Police. There is no
national police force equivalent to the Federal Bureau of Investigation
(FBI) although the newly created Serious Organized Crime Agency (SOCA)
is beginning to partly develop in this direction. The fact that the
government chose a former Director General of the Security Service, Sir
Stephen Lander, as the first head of the SOCA is an important
illustration of the reputation MI5 has established for building
effective coalitions within the law enforcement community.
An American MI5
Post incident investigation and pre-emptive intelligence gathering
require a different--and not always symbiotic--skill set. Furthermore,
from a managerial perspective prosecution and intelligence exploitation
can frequently be mutually exclusive objectives greatly detracting from
clarity of purpose. While clearly there is no a priori reason why both
functions cannot effectively be undertaken by the same agency, the
British experience suggests that this can prove problematic.
The counterterrorist function in the United Kingdom was initially
vested in Police Special Branches (SB) comprised of detectives
operating within regional constabularies. The first Special Branch was
established by the Metropolitan Police in 1883 to counter the threat
from the Irish Republican Brotherhood. Police Special Branches,
coordinated by the Metropolitan Police, enjoyed primacy in
counterterrorist intelligence investigations on the British mainland
for most of the Twentieth Century.
At the outset of the 1990s a degree of governmental dissatisfaction
at the lack of success of this arrangement, coupled with an expectation
that the collapse of the Warsaw Pact would free up intelligence
resources, led in 1992 to the transfer of primacy from the Special
Branches to the Security Service. The Special Branches had been able to
boast very few successful intelligence-led arrests. The Service by
contrast had an almost immediate impact and the number of pre-emptive
disruptions of terrorist activity increased, with Service operations
leading to 21 convictions for terrorism-related offences between 1992
and 1999.
However, this consideration also needs to be balanced against
another important lesson of the British experience, which is that
institutional relationships need time to bed down and that once
agencies start operating effectively these relationships improve and
strengthen over time. Police Special Branches have been working closely
with the Security Service since 1910 when the then Home Secretary,
Winston Churchill, provided MI5's first Director General, Vernon Kell,
with a letter directing the chief constables to extend him ``the
necessary facilities for his work.'' The Security Service and the
Secret Intelligence Service were both born out of the same government
agency, the Secret Service Bureau, and ties have remained close. The
key to this virtuous circle in the United Kingdom has been effective
executive leadership. There is definitely a sense in which disrupting
existing relationships can have a retrograde effect on effective
cooperation.
The Mistakes of the Past
The British government's early missteps in its counterterrorism
campaign against the Irish Republican Army (IRA) and the Provisional
IRA (PIRA) are also instructive. Comparison and analogy are not always
reliable policy guides but the British experience in Northern Ireland
offers some useful insights into the inherent risks involved in the
following areas: internment without charge, coercive interrogation and
the use of military personnel in a traditional law enforcement role.
Internment
In the fall of 1971, faced with escalating violence in the
Province, the Unionist Prime Minister of Northern Ireland Brian
Faulkner persuaded the British government that the introduction of
internment might bring the situation under control. On August 9, 1971
British troops mounted a series of raids across Northern Ireland which
resulted in the detention of 342 IRA suspects. The operation, codenamed
Demetrius, was characterized by poor and out of date intelligence which
resulted in many individuals being wrongly detained. Joe Cahill, then
Chief of Staff of the Provisional IRA and a prominent target of
Operation Demetrius, taunted the authorities by surfacing to hold a
press conference in Belfast at which he claimed only 30 of the men who
had been detained were actually members of PIRA.
Within Northern Ireland internment further galvanized the
nationalist community in its opposition to British rule and there was
an immediate upsurge in violence against the security forces. 27 people
had been killed in the first 8 months of 1971 prompting the
introduction of internment, in the four remaining months of the year
147 people were killed. 467 were killed in 1972 as a result of
terrorist action. The number of terrorist bombings in the Province
increased dramatically from around 150 in 1970, to 1,382 in 1972. In
the words of a former British Intelligence officer Frank Steele who
served in Northern Ireland during this period: ``[Internment] barely
damaged the IRA's command structure and led to a flood of recruits,
money and weapons.''
Internment was to continue in Northern Ireland until December 5,
1975 by which time a total of 1,981 people had been detained, the vast
majority of them from the Catholic community. The British Army
estimated that up to 70 percent of the long-term internees became re-
involved in terrorist acts after their release so the measure clearly
did little to deter committed activists. The British government finally
took the decision to discard the power of internment in January 1998.
Announcing the decision, the Junior Northern Ireland Minister Lord Dubs
told the House of Lords: ``The Government have long held the view that
internment does not represent an effective counter-terrorism measure.
The power of internment has been shown to be counter-productive in
terms of the tensions and divisions which it creates.''
Coercive Interrogation
In the immediate aftermath of the introduction of internment in
August 1971 the British security forces implemented a policy of
``interrogation in depth'' for selected detainees. RUC interrogators
working ``under the supervision'' of the British Army applied five
well-established techniques which had previously been practiced in the
course of colonial emergencies: (1) hooding, (2) wall-standing, (3)
subjection to noise, (4) relative deprivation of food and water and (5)
sleep deprivation. Almost a third of those detained on the first day of
Operation Demetrius were released within 48 hours and with these
releases came the first stories about the ill-treatment of those held
by the security forces. In addition to the use of the ``five
techniques'', detainees reported being forced to run an obstacle course
over broken glass and rough ground whilst being beaten and, perhaps
most seriously of all, being deceived into believing that they were
about to be thrown from high flying helicopters unless they agreed to
co-operate with the authorities.
In August 1971 British Home Secretary Reginald Maudling responded
to growing public concern by appointing Sir Edmund Compton to
investigate forty such complaints made by suspects apprehended on the
first day of internment. Despite accepting that the events described by
the plaintives did indeed take place, Sir Edmund reported: ``Our
investigations have not led us to conclude that any of the grouped or
individual complainants suffered physical brutality as we understand
the term.'' The failure of the Compton Report to meaningfully address
the abuses that had occurred in British detention facilities further
damaged the government's credibility.
Ultimately, the government's failure to act decisively to curb
abuses and put an end to the use of the ``five techniques'' led the
Republic of Ireland to file an application with the European Commission
on Human Rights alleging that the emergency procedures applied against
suspected terrorists in Northern Ireland violated several articles of
the European Convention on Human Rights. The case was referred to the
European Court of Human Rights for adjudication which found that the
``five techniques'' were ``cruel, inhuman and degrading'' and thus
breaches of Article 3 of the Convention (See Annex A).
The actual utility of coercive interrogation was also addressed at
some length in the course of the Ireland v. United Kingdom case. The
British government sought to argue that it had been necessary to
introduce such techniques to combat a rise in terrorist violence. The
government claimed that the two instances of ``interrogation-in-depth''
addressed by the Court had obtained a considerable quantity of
actionable intelligence, including the identification of 700 active
Republican terrorists and the discovery of individual responsibility
for about 85 previously unexplained criminal incidents. However, other
well-informed sources are more skeptical. The former British
intelligence officer Frank Steele told the journalist Peter Taylor:
``As for the special interrogation techniques, they were damned stupid
as well as morally wrong . . . in practical terms, the additional
usable intelligence they produced was, I understand, minimal.''
Certainly the last quarter of 1971, the period during which these
techniques were most employed, was marked by mounting not decreasing
violence--a fairly obvious yardstick by which to measure their
efficacy.
Military Operations
The final incident to have a major impact on the evolution of IRA
violence in the period 1971-1972 was the event that has become known as
Bloody Sunday. On January 30th, 1972 soldiers from the British
Parachute Regiment opened fire on civilian demonstrators in
Londonderry/Derry killing 13 and wounding 29. The march that sparked
the violence had been called to protest internment, rocks had been
thrown at the soldiers and a shot allegedly fired, but the
disproportionate British response prompted widespread international
condemnation. In Dublin an enraged mob stormed the British Embassy
burning it to the ground. The British government appointed the Widgery
Tribunal to investigate the incident but it exonerated the soldiers
involved handing the Republican community yet a further propaganda
victory.
The nature of IRA violence changed dramatically after Bloody Sunday
as the incident prompted the first mainland bombing of the Troubles in
February 1972 when the Official IRA left a car bomb outside the
Officer's Mess of the Parachute Regiment in Aldershot, Hampshire. An
Official IRA spokesman issued a statement in Dublin that the attack had
been carried out ``in revenge'' for the Bloody Sunday killings.
Deliberate attacks on civilian targets on the British Mainland soon
followed including four simultaneous car bombs left in London in March
1973, bombs at mainline London railway stations in September 1973 and
in public houses in Guildford and Birmingham in the autumn of 1974.
Throughout the Troubles Britain found itself defending the use of
deadly force against terrorist suspects in a succession of ECHR cases.
In perhaps the most damaging case--McCann and Others v. United Kingdom
(1995)--the court found that three members of a PIRA Active Service
Unit (ASU) had been killed unlawfully when British Special Forces
troopers indicted their operation on the British overseas territory of
Gibraltar (See Annex A). Lingering suspicions that Britain operated a
`shoot-to-kill' policy in its counterterrorist operations against PIRA
were extremely damaging to the country's international reputation and
became a major source of resentment in the nationalist community.
annex a
Ireland v. United Kingdom (1978)
In August 1971, faced with escalating violence in the Province of
Northern Ireland, the British government introduced non-judicial
internment for suspected members of nationalist terrorist
organizations. On the first day of internment 342 suspected members of
the Irish Republican Army (IRA) were detained by the British security
forces. A small number of these detainees (there are only 14 well-
documented cases) were selected by the security forces for a new
coercive regime of ``interrogation in depth.''
Royal Ulster Constabulary (RUC) interrogators working ``under the
supervision'' of the British Army applied five well-established
techniques which had previously been practiced in the course of
colonial emergencies: (1) hooding, (2) wall-standing, (3) subjection to
noise, (4) relative deprivation of food and water and (5) sleep
deprivation. As details of these techniques became public there was an
outcry against their use which was eventually discontinued in April
1972.
The terms used are fairly self explanatory. Hooding meant that a
prisoner's head was covered with an opaque cloth bag with no
ventilation, except during interrogation or when in isolation. The
prisoner would often also be stripped naked to enhance his feeling of
vulnerability. Wall-standing consisted of forcing prisoners to stand
balanced against a cell wall in the ``search position'' for hours at a
time inducing painful muscle cramps. One prisoner was forced to remain
in this position for 43.5 hours and there were at least six other
recorded instances of prisoners being kept like this for more than 20
hours. Subjection to noise meant placing the prisoner in close
proximity to the monotonous whine of machinery such as a generator or
compressor for as long as 6 or 7 days. At least one prisoner subjected
to this treatment, Jim Auld, told Amnesty International that having
been driven to the brink of insanity by the noise he had tried to
commit suicide by banging his head against metal piping in his cell.
Food and water deprivation meant a strict regimen of bread and water.
Sleep deprivation was practiced prior to interrogation and often in
tandem with wall-standing. Detainees were usually subjected to this
conditioning over the course of about a week.
However, the matter did not end there. On December 16, 1971 the
Republic of Ireland had filed an application with the European
Commission on Human Rights alleging that the emergency procedures
applied by the British security forces in Northern Ireland violated
several articles of the European Convention. In its February 1976
report to the Committee of Ministers of the Council of Europe the
Commission unanimously found that the ``five techniques'' amounted to
``a modern system of torture'' and a violation of Article 3 of the
Convention. The case was referred to the European Court of Human Rights
for adjudication.
Ireland v. United Kingdom (1978) was the first inter-state case
ever brought before the European Court. Reviewing the evidence the
Court found the ``five techniques'' to be ``cruel, inhuman and
degrading'' and thus breaches of Article 3 of the Convention but
stopped short of describing them as torture noting that ``they did not
occasion suffering of the particular intensity and cruelty implied by
the word torture.'' The UK was directed to pay compensation to the
victims.
In the course of the hearings British Attorney General, Samuel
Silkin, gave the following commitment to the Court: ``The Government of
the United Kingdom have considered the question of the use of the `five
techniques' with very great care and with particular regard to Article
3 of the Convention. They now give this unqualified undertaking, that
the `five techniques' will not in any circumstances be reintroduced as
an aid to interrogation.'' And, to this day, they have not.
Malone v. United Kingdom (1984)
Article 8 of the Convention guarantees a right to privacy and
protects citizens from state interference with this right ``except such
as is in accordance with the law and is necessary in a democratic
society in the interests of national security, public safety or--for
the prevention of disorder or crime.''
Article 8 was put to the test in Malone v. UK. In March 1977, a
British national, Mr. James Malone, was charged with a number of
offences relating to dishonest handling of stolen goods. It emerged in
the original trial that the police had been privy to private telephone
conversations between Malone and his associates although this material
was not (and could not be in) tendered in evidence.\1\ Malone
ultimately challenged what he believed to be the extended monitoring of
his telephone line in the Strasbourg Court. In Malone v. UK the Court
found that the mechanisms governing the interception of communications
by the police were sufficiently legally ill-defined to place Britain in
breach of Article 8 of the ECHR. The Malone case also raised the
question of effective remedy, a right established under Article 13 of
the ECHR, although the Court did not rule on the issue.
---------------------------------------------------------------------------
\1\ Britain remains one of the few legal regimes in the world in
which telephone intercept material is still not admissible as evidence
in Court. Curiously, material gathered from eavesdropping devices is
considered admissible.
---------------------------------------------------------------------------
The British government of the day responded to the Malone judgment
by introducing the Interception of Communications Act (IOCA) in 1985.
IOCA was designed to govern all circumstances in which the interception
of communications might be required including the exigencies of
national security. Under the terms of the Act this method of
intelligence collection could only be undertaken in a domestic context
if expressly authorized by a warrant signed by the appropriate
Secretary of State. IOCA also established a right of redress for anyone
who believed that interception had taken place unlawfully in the form
of an independent Interception of Communications Tribunal and
Commissioner.
McCann and others v. United Kingdom (1995)
On March 6, 1988, forewarned by intelligence sources, British
soldiers from the Special Air Service (SAS) interdicted what they
thought to be a Provisional IRA attempt to plant a car bomb on the
route of a military parade on Gibraltar. The soldiers' mission was to
affect an arrest in support of the local police, but because the
suspects allegedly adopted ``an aggressive stance'' when challenged,
they were shot dead by the troopers.
All three PIRA members proved to be unarmed at the time of the
shooting and the car they had positioned along the parade route did not
contain a bomb although a car linked to the trio, discovered later in
nearby Marbella, was found to be packed with explosives. Daniel McCann,
Sean Savage and Mairead Farrell were all well known PIRA activists,
indeed Farrell had served 10 years for her part in the bombing of a
hotel outside Belfast in 1976.
There was widespread criticism of the SAS's failure to apprehend
three unarmed suspects without loss of life. Allegations of ``a shoot-
to-kill policy'' resurfaced--primarily in a controversial BBC
television documentary entitled Death on the Rock in which two alleged
eyewitnesses alleged that the British soldiers had opened fire on the
PIRA trio without warning.
The families of the dead PIRA volunteers took the case to the
European Court of Human Rights in McCann and others v. United Kingdom.
In September 1995 the Court narrowly ruled in a 10-9 majority decision
that the PIRA team had been ``unlawfully killed'' in breach of Article
2(2) because it was not convinced the use of lethal force by the SAS
troopers had been ``absolutely necessary'' to protect the public. In a
closely argued opinion the majority members of the Court criticized the
British actions on three main grounds.
First, the British authorities could have chosen to apprehend the
PIRA suspects at an earlier stage in their preparations but chose to
allow the operation to run long to gather further incriminating
evidence of their activities, thus in part assuming some of the
responsibility for placing the public at risk. The Court commented that
allowing the operation to proceed to the point that it was thought a
bomb may have been activated was a ``serious miscalculation'' which
``set the scene'' for the fatal shooting.
Second, the Court noted that the British authorities had rushed to
judgment in assuming that the car parked by the PIRA Active Service
Unit would contain a remotely activated bomb. The briefings received by
the SAS troopers disproportionately focused on this possibility and did
not sufficiently reference other, less threatening, but equally
reasonable alternatives. This too created a climate which made recourse
to lethal force ``almost unavoidable.''
Finally, the Court found the reflexive resort to lethal force by
the SAS troopers themselves troubling. The Court noted that the
training received by Special Forces soldiers lacked ``the degree of
caution in the use of firearms to be expected from law enforcement
personnel in a democratic society'' and failed to emphasize ``the legal
responsibilities of the individual officer in the light of conditions
prevailing at the moment of engagement.''
McKerr v. United Kingdom (2001)
The ECHR was again called to rule on four separate cases in which
14 people had been killed in Northern Ireland between 1982 and 1992
allegedly by or with the collusion of the security forces--McKerr v.
United Kingdom (2001), Hugh Jordan v. United Kingdom (2001), Kelly and
Others v. United Kingdom (2001) and Shanaghan v. United Kingdom (2001).
However, on each occasion the Court stopped short of finding that the
victims had been unlawfully killed, commenting instead in May 2001 that
the post-incident proceedings for investigating the use of lethal force
by the security forces had sufficient shortcomings for the UK to be in
breach of the procedural obligations imposed by Article 2 of the
Convention but nothing more.
annex b
Oversight
Prior to 1985 none of the work of the British intelligence or
security agencies was done on a statutory basis. The Government denied
the very existence of the Secret Intelligence Service (SIS) and the
Security Service (MI5). The agencies derived their authority from
ministerial directives, such the Maxwell Fyfe Directive \2\ which
governed the operation of MI5, and the royal prerogative. There were no
oversight mechanisms outside the chain of command of both agencies
other than those afforded by the government departments to which they
reported--the Foreign and Commonwealth Office and Home Office
respectively. Financing for the agencies was obtained through an annual
``Secret Vote'' which approved a global figure submitted to Parliament
without any supporting explanatory material. As a former Home
Secretary, Jack Straw, has publicly acknowledged, the main catalysts
for change were a series of cases before the European Court Human
Rights, commencing with Malone v. United Kingdom (see Annex A), which
incrementally addressed issues relating to the gathering of
intelligence material and the operation of the intelligence agencies.
---------------------------------------------------------------------------
\2\ The Maxwell Fyfe Directive is named after the Conservative Home
Secretary and former Nuremburg Prosecutor who issued it on the occasion
of the Security Service's formal transfer from the authority of the War
Office to the Home Office.
---------------------------------------------------------------------------
The government responded to this criticism by introducing the
Security Service Act in 1989. This placed the UK's domestic
intelligence agency on a statutory footing for the first time. The Act
also established a Security Service Commissioner and a Complaints
Tribunal. Between the introduction of the Security Service Act in 1989
and the end of 1997 the Tribunal investigated 275 complaints. No
complaint was upheld. In the great majority of cases, the complainants
were unknown to the Service.
The European Court of Human Rights considered that the Security
Service Act placed the Service on sufficient legal footing for two
pending cases involving alleged Security Service investigations to be
discontinued. In the 1993 case Esbester v. UK the Court explicitly
recognised that the Security Service Act struck a reasonable compromise
between the requirements of defending a democratic society and the
rights of the individual.
Although the Security Service Act went far enough to satisfy
Britain's European Convention on Human Rights obligations it still fell
short of providing for the sort of parliamentary oversight that many
critics of the intelligence apparatus were calling for. It also made no
mention of the Secret Intelligence Service (SIS) the existence of which
was only avowed for the first time by Prime Minster John Major in 1992.
These shortcomings were addressed in the Intelligence Services Act of
1994 which in addition to placing both SIS and GCHQ on a statutory
footing and creating a complaints apparatus to cover both agencies also
created a committee of Parliamentarians, the Intelligence and Security
Committee, to ``examine the expenditure, administration and policy'' of
all three intelligence and security agencies (SIS, GCHQ and MI5).
The Intelligence and Security Committee (ISC) is constitutionally
unique within the British system. Despite the fact that it is made up
of Parliamentarians, it is not a Parliamentary Select Committee but a
statutory committee with a legally defined brief. In some respects this
gives it greater authority, adding weight to the Committee's requests
for information. Its members are appointed from both Houses of
Parliament by the Prime Minister after consultation with the Leader of
the Opposition. Despite the executive's control over its appointments,
the Committee has been characterized by its bipartisanship.
The bulk of the Committee's work is done in camera and its findings
must effectively be taken on trust. The Committee also reports to the
Prime Minister rather than to Parliament. As with the Commissioners'
reports, the Prime Minster is free to withhold material from Parliament
out of security concerns. In the words of one former Committee member:
``A good oversight committee will never be able to answer all the
questions that are raised by honourable Members about the secret
agencies or their work. It may never be able to answer questions about
all the issues that it is investigating. That is inevitable. However,
colleagues in the House should be able to feel confident that someone
is investigating issues on their behalf and has the power to do the job
properly, even if ordinary Members of Parliament are not able to get
the answers themselves.''
The Committee's original remit was strictly limited by the
Intelligence Services Act to the examination of ancillary issues. Any
responsibility for the oversight of operational matters was pointedly
omitted from the Act. However, the members of the ISC have been
effective advocates for some extension of their powers in this area and
in recent years they have been briefed on a wide range of the Services'
operational work--often at the request of ministers who see the utility
in gaining independent validation for policy decisions. Since 1998 the
ISC has employed an Investigator to undertake specific enquiries under
the Committee's direction. Intelligence officials themselves have
largely embraced the ISC as a new source of legitimacy for their work.
Senator Gregg. Thank you, Mr. Parker.
We have been joined by our senior member, the Senator from
West Virginia. Do you have an opening statement you want to
make, Senator?
STATEMENT OF SENATOR ROBERT C. BYRD
Senator Byrd. Mr. Chairman, thank you. Thank you, Mr.
Chairman--my favorite chairman, right here. One might as well
proclaim his choice, had he not, openly and publicly?
Senator Gregg. Very kind of you. My favorite ranking
member.
Senator Byrd. Bless your heart.
Well, thank you, Mr. Chairman.
Five years ago, more than 3,000 people lost their lives due
to the September 11 attacks. Since then, Congress has passed
and reauthorized the PATRIOT Act to give law enforcement more
powers, and has reorganized government twice. Yet, polls
indicate that many Americans still feel less safe than before
the 9/11 attacks, including I.
President Bush has said many times that those attacks were
inspired by hatred of the freedoms that Americans enjoy.
Surrendering our constitutional liberties, and especially the
system of checks and balances that allow those liberties to
endure, would seem to me to be a strike at the very principles
upon which this country was founded.
In this age of international terrorism, there is much that
our Government can learn from the experience of other
countries. Controversial British anti-terrorism laws, such as
the suspension of the right to trial by jury in terrorism cases
and the so-called ``Diplock courts,'' were passed as merely
temporary measures. However, these temporary measures were
extended time and again for nearly three decades. So, there is
a lesson here. Could our country already be headed down the
same path, in which our legislative branch approves curbs on
civil liberties that last for decades even though they are
labeled temporary?
Take, for instance, the warrantless wiretapping that allows
government to eavesdrop on millions of Americans without their
knowledge. As Edmund Burke wrote in 1777, ``The true danger is
when liberty is nibbled away for expedience and by parts.''
Listen to what Edmund Burke said again. Edmund Burke wrote in
1777: ``The true danger is when liberty is nibbled away for
expedience and by parts.''
Mr. Chairman, we have worked on a bipartisan basis to
strengthen our defense against terrorists by adding billions of
dollars to border security and billions of dollars to airline
security, billions of dollars to law enforcement, intelligence
collection, and other essential programs. Yet, the funding has
not caught up with the vast security vulnerabilities that
remain.
So, this brings us to what may be the key question of this
hearing. If we do not adequately fund vital homeland security
programs, might our vulnerabilities lead to even greater
demands to set aside existing individual liberties in pursuit
of more security? Is there not a close relationship between
better funding of existing homeland security, law enforcement,
and intelligence programs and the preservation of our
liberties?
There must be better ways to protect the American people
from terrorism absent the abrogation of constitutional
protections and the adoption of foreign models which
concentrate more and more power in the hands of one man, the
President.
I thank the chairman for calling this important hearing. I
thank the witnesses who are appearing before us.
Senator Gregg. Thank you, Senator Byrd. That is a very
interesting question you raise, which is, if we do not
adequately fund and we respond to that by some action which
limits liberty or the rights instead of funding. That is an
interesting issue and maybe we can expand on that as we go
forward.
But initially the question which I think I would like to
get to is this issue of, looking at British successes, what can
we do to replicate those successes here without affronting our
liberties and our constitutional rights. Judge Posner, you made
it pretty clear that you felt that we could--do we need to do
anything legislatively to give the executive branch the right
to restrain people or to hold people longer than 48 hours? Do
we have to declare that a person is--is there some sort of--
should there be some sort of court approval of that event in a
FISA type of situation, or does that authority basically lie
with the executive branch? That is my first question.
The second question is, you suggest that we not bifurcate
the FBI, although I have to tell you I used to chair the
committee that had the FBI and my biggest frustration was that
they were not able to move that culture from law enforcement
into intelligence, and I still do not think they have even
though I have not chaired that committee for 2 years. This was
something we put a tremendous amount of pressure on them to do
and they just--basically, the culture resisted.
But let us assume we are not going to bifurcate it. Does
that mean that an organization like Mr. Negroponte's new
intelligence responsibility as sort of the intelligence czar is
the place where you might set up a structure that would mirror
the MI5 effort, and is that appropriate?
So I would like to get those thoughts from all three of the
witnesses--well, Mr. Yoo relative to whether American law,
there is any statutory need in order to get to this British
position of being able to hold people for a longer period of
time if they are deemed to be terrorists, beyond the 48 hours,
and then get your thoughts on those.
Judge Posner. Let me respond briefly in reverse order,
starting with the question of the FBI, MI5. Mr. Parker made a
very important point. He said that the fact that the MI5, the
security service, has a laser beam focus on intelligence is of
great value because the FBI--you mentioned, Senator, that maybe
FBI should be shifting its focus from kidnapping and bank
robberies to national security and intelligence. Well, the
problem is--this happened in Chicago--when the FBI tries to do
that, the banks and the people in Chicago, they say: Well, wait
a second. The number of bank robberies in Chicago is rising
because the FBI is allocating resources to intelligence. That
is the problem.
So the FBI is torn. We want it to be the premier criminal
investigation agency and that is of course what they are
accustomed to doing, what they are trained to do, what they
want to do. So very difficult to change their culture. You are
quite right, 5 years, very little progress has been made in
actually altering the focus of the FBI.
He also mentioned, Mr. Parker, the fact that of course MI5
works closely with the special branch of Scotland Yard and of
the other British police offices. The special branches are
specialized for criminal law enforcement focused on terrorism
and espionage and so on. Well, we have the germ of that system
here because the FBI--the President did insist, over the FBI's
objections, that it fuse its terrorist-related units into a new
division called the national security branch. It is
interesting, they use the same word, ``branch.''
That national security branch, which is really very similar
to the special branch of Scotland Yard, that would work well, I
think, with a separate domestic intelligence service. Where to
place that service, whether it should be free-standing, whether
it should be in the Department of Homeland Security--as I
understand it, MI5 reports to the home secretary in the United
Kingdom, which corresponds to the Secretary of Homeland
Security. Whether it should be free-standing like the CIA and
report to the Director of National Intelligence, whether it
should actually be in his office, those are important
organization questions which would require further study.
In fact, what I would like to see from Congress, from the
Director of National Intelligence, would be as a first step a
feasibility study: Is this something we need, a separate
agency, and concretely how would we establish it, where would
we put it, would it work, and so on.
With regard to your previous question, the first question
about detention, Professor Yoo reminded me that the Supreme
Court has permitted detention of terrorists outside the
criminal justice system as enemy combatants. I was thinking
more of a system of detention of terrorist suspects which would
not require actually designating them as enemy combatants. The
value of congressional intervention here is that Supreme Court
has left everything very vague. You can hold a person--the
government can hold a person for more than 48 hours if it can
show that it is a bona fide emergency or there are other
exceptional circumstances.
I think it would be helpful for Congress to specify what
constitutes an emergency and also to set some limit, so that
the Government officials have some sense how long can they hold
a person beyond 48 hours. We do not want it to be indefinite.
Under the English system as I understand it--and it would be a
good feature of our system--you do not just make an initial
decision this person is going to be in for 28 days. You have
frequent reauthorization by a judge. That I think, prescribing
the procedures and the timetable for this sort of thing, that
would be a function for Congress, rather than leaving it to the
courts, I would think.
Senator Gregg. Thank you, Judge.
Mr. Yoo, did you want to comment on those?
Mr. Yoo. Yes, thank you, Senator. I quite agree with what
Judge Posner says on the detention issue. It is the case that
the Supreme Court has read the authorization to use military
force that you passed on September 18, 2001 as authorization to
detain enemy combatants outside the criminal justice system.
But the case of Hamdan where this was decided, the individual
in question was captured outside the United States, in
Afghanistan, so it left open the question whether these rules
would apply within the United States.
The Government detained Jose Padilla under that same claim
of authority. The U.S. Court of Appeals for the Fourth Circuit
upheld that as an exercise of this power to detain enemy
combatants, but it did not reach the Supreme Court. So there is
unclarity and ambiguity about whether this power could be used
in the future, and so that would be an appropriate area, I
agree, for further congressional explication of the standards.
The other difference I would just point out is I take it
under the British system, even when you are in this 28-day
period, there are regular hearings, there is regular
opportunity to go to a judge. In the enemy combatant process we
use the system of habeas corpus, which can take much longer,
and then under the Defense Department regulations there is an
annual, I think, review of the combatant status. So the British
system actually has more judicial review than ours does.
One question you might want to ask if you are going to go
ahead and draft legislation is whether you want to have more
than just annual reviews. This is also tied up in the
litigation about--I am sorry, the consideration of how Congress
is going to react to the Hamdan bill. There is elements in that
bill which talk about civilian judicial review over these
determinations and how often they might occur. That is
something you could change as that bill goes forward.
In terms of the division between MI5--whether to have an
MI5 type agency or not, I think everyone on the panel seems to
agree that the current system is not working, that the FBI's
mixture of criminal law enforcement and national security
purposes is not a good one.
I do not think it is a question of whether you need the
change the statutory authority of the FBI. In a way, what Judge
Posner describes, and I quite agree with this, is that maybe
the statutory focus of the FBI has become too diffuse. They
have too many things which they try to focus on--criminal law
enforcement, bank robberies. You know, bank robberies, if you
look at the history of the FBI the reason why bank robberies
and kidnappings became their initial focus was because they
were relatively easy to solve, you had high publicity when you
solve them, and it is easy to measure how agents were doing.
You could say, I caught five bank robbers this month. So it led
to this case-based system for promotion within the FBI.
That is an example of how you cannot change that kind of
culture easily, because it is difficult to count, well, is this
man or this agent doing a good job stopping terrorist attacks.
Someone cannot come in and say, I stopped five terrorist
attacks, because often you do not now how many terrorist
attacks you stopped, if any, by taking a measure, because it is
more future and prospective.
So I think one thing you could do through the
appropriations tool which I think would be a quite appropriate
exercise of your power would be to start moving resources out
of those areas of the FBI that focus on criminal justice, like
bank robbery and kidnapping, and devote more money toward the
counterterrorism and national security mission.
You might also use your funding tool to try to change the
way that the FBI measures success and how they reward
employees, who gets promoted or not. That also I think would be
a legitimate use of the appropriations tool.
It may be that we made a mistake--I know you--I think you
think this, is that we might have made a mistake trying to
evolve the FBI into what we want, rather than making a clean
break, whether you detach another agency or just start a new
one. That might have been in the long run the more effective
way to go, although there would be much more disruption when it
happened. That is the kind of thing I think is something the
committee can do.
I do not know whether there is a lot of good studies on
that in the United States. Most of the studies have been about
how difficult it is to combine agencies into something like
DHS. We have as far as I know very little work on how you split
up an agency's functions and what is the most effective way to
do it.
One place one could look would be to look into the
literature and work that has been done on corporations, which
go through this all the time, and they make various choices
about how to organize things appropriately.
Senator Gregg. Thank you, Mr. Yoo.
Did you wish to comment on either of those points, Mr.
Parker?
Mr. Parker. I thought it might be quite useful just to
explain the genesis behind the 30-day detention period. The
logic there is very specific and it has to do with operating in
Europe with porous borders. There is a perception, I think a
legitimate perception, as we have seen from the London
transport bombings, with one of the suspects fleeing
immediately to Italy where he had previously been a resident,
that people would be able to cross national boundaries within
Europe to carry out attacks very easily. It is almost
impossible to get a response from a foreign police agency in
less than 30 days. That was why police needed more time. A
letter rogatoire, if you were to deliver it to the French
authorities, even with great urgency by the time that has been
processed and action has been taken and that information comes
back your 48-hour detention period is certainly gone. The 7-day
detention period that you had under the Prevention of Terrorism
Act has almost certainly expired.
That was why police agencies asked for more time. It was
primarily--there were three cases cited. I believe one was
European, one was North African, and it was the length of time
that key information took to come back from local law
enforcement in foreign countries that would have had a material
effect on the cases brought before the courts. So that was the
logic behind it.
There is judicial review every 7 days, so the police have
to go back, the crown prosecution service has to go back, and
make the case for the continued detention.
It is tremendously controversial. The government originally
asked for 90 days. It was Parliament, despite the fact that
Labour Party has a significant majority, that voted against
that proposal and forced a change in the legislation. So it is
controversial. There has been a commitment from the government
to continue consultations on this issue, to review its
effectiveness.
It is going to be very interesting to see how the recent
airplanes plot impacts on the use of this 30-day detention
procedure. If the prosecutions are successful, I suspect it
will be claimed as evidence that this detention process works.
If the prosecutions collapse, I am sure there will be great
pressure to reduce the length of detention prior to charging.
On the point of an American MI5, it is quite useful to
think of these agencies as a triage process. The role that the
security service plays in Britain is kind of the spear of the
point in the intelligence world. But investigations do not just
begin and end there. There are still investigations at police
district levels. There are still detectives carrying out
investigations. It is only when it becomes significant and
serious that the intelligence service becomes involved.
You do not need a huge agency. In the mid-1990s the
security service, at the height of the mainland bombing
campaign by the Provisional IRA, had 200 officers and 1,800
support staff and that was it. It has doubled in size since
then, but it is still a relatively small agency, and it can get
a lot of bang for your buck. This is very innovative. If
designed properly, this can be a very, very effective way to
focus on cases.
The point has been made--I have worked both in intelligence
and in law enforcement. There are different mind sets. There is
a huge tension between gathering information for prosecution
and looking for opportunities to exploit for intelligence
purposes an ongoing investigation. The British tend to let
cases run as long as possible because that is the greatest way,
the greatest intelligence opportunity. The longer the case
runs, the greater the opportunity you have to gather more
information about people's contacts, funding sources, and so
forth.
As we saw recently in the Florida case, law enforcement's
approach tends to be: This is worrying, this is dangerous; we
cannot take the risk that something might happen.
Interestingly, the European Court of Human Rights has
criticized the United Kingdom in the McCann case, about the IRA
attempt to put a bomb in Gibraltar on a military parade, for
allowing a case to run so long that it put the public in
danger, necessitating the use of force to apprehend, in fact
kill, the three terrorists involved. The court said: Look, you
let this case run too long; you put the public in danger every
bit as much as the terrorists did. And Britain got rapped on
the knuckles for that.
But that was primarily because it was intelligence-led and
they wanted to see how the operation was going to work, learn
as much as possible, particularly because it was in Europe, and
improve protective measures in the future from that
information.
Senator Gregg. Thank you.
Senator Byrd.
Senator Byrd. Thank you, Mr. Chairman.
The United Kingdom, unlike the United States, has a
specialized domestic intelligence agency known as MI5. Due
largely to concerns about Big Brother and past intelligence
abuses within our borders, the United States has been hesitant
to permit the FBI, for example, to undertake broad domestic
surveillance. What in the United Kingdom legal system
constrains MI5 from conducting overly intrusive or unwarranted
surveillance of the average law-abiding British citizen?
Judge Posner. If I could respond, a domestic intelligence
agency in the United States would be subject to all the
restrictions that the Constitution and statutes impose on the
FBI. So it is not proposed to create an agency that would have
some kind of immunity from the Constitution or the laws. It is
really an organizational question: Is it more efficient to
place this surveillance, intelligence operation inside the FBI
or to put it somewhere else? It is not a legal matter. It is a
matter of organization theory really.
Mr. Parker I think gave really strong arguments for why it
makes sense to separate these, and it is not to take anything
from the FBI. It is to add a small additional service with a
very special focus, which would work with the FBI.
One point he made earlier which I would like to echo is the
importance of communication between Federal intelligence
authorities and our local police. Our 18,000 police forces of
course have a great deal of knowledge of what is going on in
their communities, but if they are going to be a first line of
defense against terrorism they have to know what to look for.
We have to have effective communication with them, what should
they be on the lookout for.
This has been a serious problem with the FBI because of
historic rivalries and tensions between the FBI and local
police, because they compete for the same cases and there is
cultural differences. The FBI are kind of, they wear suits and
they have college educations, they do not wear uniforms, and so
on. So just the communication function, which would not raise
any kind of legal issues, is I think a very strong argument for
having a separate agency.
Mr. Parker. If I could add on that, the security service in
the United Kingdom is restricted in what it can do by the
Regulation of Investigatory--sorry--Regulation of Investigatory
Powers Act of 2000. So like all law enforcement and
intelligence agencies in the United Kingdom, there is a legal
structure. It is relatively new, but it is binding on the
security service.
The security service also has to obtain home office
warrants--these are warrants signed by the home secretary--to
authorize telephone intercepts, property invasions, or
eavesdropping operations, beaconing a car or something like
that. Any sort of property or communications interference
requires a warrant signed by the home secretary. Now, this is
clearly an elected political official and not a judge, one of
the big differences between the two systems. But it is still a
very stringent process. There is an ombudsman, there is a
commissioner that oversees independently the proper use of this
power. Then finally, Parliament has a committee, the
intelligence and security committee, that, although it was
strictly established not to look at operational issues, has
increasingly taken on that role. In fact, the security service
has really benefited from that, the legitimacy that comes from
having a degree of support from the legislative branch. Very
noticeably, this committee was very supportive actually of the
actions taken by the security service in the run-up to the
London transport bombings, even though, as you are aware, the
security service reduced its threat level just before the
bombings took place. The inquiry in the intelligence and
security committee found that that was a logical inference
given the intelligence they had. That is useful. The public
gets a very useful steer from people who have access to the
material but are outside the system, very beneficial. It is a
great example of bipartisan cooperation in the United Kingdom
as well.
I think I will probably stop there. Thank you.
Senator Byrd. Thank you.
Why do you believe that the British do not share our
suspicion of state authority, or perhaps they do. Do they?
Mr. Parker. The dread of Government. No, I think would be
the answer. It is instructive, the sort of language we use.
This is a sort of a bit extempore sort of sociology, is it not,
but we refer to ``the Nanny State,'' not ``Big Brother,'' even
though ``Big Brother'' is George Orwell's great phrase. We tend
to talk of the state in terms of an overprotective mother
rather than as a frightening, to be feared bully figure. Now,
that no doubt has lots of cultural wellsprings and so forth.
The other thing that I think is quite significant is there
has not been any great history of abuse by Government. That is
not to say Government has not committed abuses, but we never
had the experience that Germany had, for example, or Italy had
with an authoritarian power taking control of the government of
the country, or at least we did have that experience for 10
years in the 17th century.
Senator Gregg. Not since Cromwell, you mean?
Mr. Parker. Not since Oliver Cromwell, exactly.
So again, the British government has not got a particular
reason to fear. That obviously does not necessarily hold true
for every community in the United Kingdom. If you were Catholic
and you came from Belfast or Londonderry, clearly you would not
necessarily take such a rosy view of the actions of the British
state. But typically most citizens feel that the state is there
to protect it, that it has discharged those functions fairly
effectively.
Bear in mind, this is not a new experience for us. We have
had terrorist bombings in London going back now 120 years. I
cannot think of a decade since the 1880s when a terrorist bomb
has not exploded in London, whether it is Russian anarchists or
the Fenians or the Provisional IRA, the Angry Brigade, the
Animal Liberation Front, Hezbollah, al Qaeda. We have had
pretty much everybody pass through London and kill somebody or
blow something up, and this is a feature of our lives, and the
state has been dealing with it continually for a long period
without losing the public's confidence. Add to that two world
wars on top of that, with the inevitably increased security
regime that that entails.
The public has faith the restrictions will be lifted when
the emergency is passed because it has always been in the past,
and we have a great reverence for tradition in the United
Kingdom, so if it has happened before thus it will happen
again. I think we are very comfortable that that weight of
history will protect us.
Judge Posner. Could I offer a brief footnote----
Senator Gregg. Certainly, Judge.
Judge Posner [continuing]. To what Mr. Parker said? His
mention of Germany reminded me, after World War II when we
permitted West Germany to have its own government again, as a
condition the allies insisted that Germany separate domestic
intelligence from law enforcement in a separate agency because
they had been combined in the Gestapo and we thought that
combination dangerous.
So historically having a separate domestic agency,
intelligence agency, has not been thought to compromise civil
liberties, but quite the contrary.
Senator Gregg. Senator Byrd.
Senator Byrd. Judge Posner, you state in your testimony
that the only limitation the Constitution places on searches
without a warrant is that they be ``reasonable.'' You then
state that any unreasonable methods of surveillance can be
minimized ``without judicial intervention'' by rules subject to
oversight by the executive and congressional watchdog
committees. But, are there not three equal branches of
Government under our constitutional system of checks and
balances? Why would we trust the executive and a Congress of
the same party to determine in every instance what is
reasonable? Is that not the job of the Federal judiciary?
Judge Posner. That certainly is an important function of
the judiciary, but the question is the efficacy of judicial
control over surveillance when it is exercised through the
grant or denial of warrants. Of course, a warrant proceeding is
ex parte. The Government goes in, tells its side of the story
to the judge, and there is no adversary process and the judge
grants or denies the warrant. So there is some judicial check,
but it is not like an ordinary litigation.
So the question is would some alternative be more effective
than a warrant, such as simply reporting to the Congress and to
the executive branch what the surveillance agencies are doing,
who did they listen to and why, and are they targeting
political enemies or is it legitimate investigation.
It is important to emphasize that the fourth amendment does
not require warrants. It limits warrants. It requires that
searches be reasonable, and that reasonableness requirement,
which is constitutional and fundamental, can be enforced in
ways other than warrant requirements.
The warrant approach--this is the criticism of FISA--it
really is not designed for a situation where you are not
wanting to monitor the people you know are terrorists, you want
to find out, are there terrorists, where are they, who are
they. For that, you cannot give the kind of information to the
magistrate or the judge that you would when you ask for a
warrant.
So I think--it is part of what I said in my opening--we do
not want to--we do not want to be confined by the criminal
justice system and judicial norms and customs in thinking about
how to protect civil liberties while not endangering national
security.
Senator Gregg. Thank you.
Two questions here. Let me try to frame the Hamdan issue as
I see it, as we are wrestling with it here in the Senate, and
get your thoughts as legal experts, Judge Posner and Mr. Yoo,
as to which is the proper approach. As I see it, it comes down
to essentially this. The administration wants to set up a
regime where they interpret Common Article 3 under the Geneva
Conventions specifically enough so that they can basically give
a safe harbor to the interrogators who are trying to find out
from terrorists who we captured information which will stop us
from being attacked by somebody, without using torture or
processes which would be outside the bounds of reasonable
interrogation.
Those who oppose that specific, defining Common Article 3
with specific language that would give a safe harbor, take the
position that if we do that then we will be having--we will
have set up a regime which basically says we can define the
Geneva Convention in whatever way we desire to define it, which
means that North Korea could do the same thing, theoretically,
were it a signatory to the Geneva Convention, which I do not
know if it is or not. It probably is not. So it would mute the
effectiveness of the Geneva Convention.
The bottom line, of course, is how do we stop people from
attacking us who might use a weapon of mass destruction and how
do we get the intelligence to do that. This is a war of
intelligence. It is not a war of armies. I think that was an
interesting point that you made, Mr. Parker, that you do not
have the military as part of your structure. We have become too
absorbed as a war of armies instead of a war of intelligence.
But independent of that, which is another side issue of
very big significance, I would be interested in you, Judge and
professors, if you feel an expertise in this area or
comfortableness in this area, giving us your thoughts on this,
because this is an issue that is very current and very hot here
in the Senate.
Judge Posner. You are the expert.
Mr. Yoo. Well, if a judge orders me to speak I will speak.
It had been my view before Hamdan that Common Article 3 did
not apply to the war on terrorism or the Geneva Conventions,
which is a view I worked on in the Justice Department after 9/
11. But assuming it does apply, as the Supreme Court suggested
in Hamdan, one important thing to just mention is you have
focused on I think what really is the most important part of
this military commission bill. If you think about it, the
military commission issue is about how to deal with people who
are no longer a threat. They have already been removed from the
battlefield. All the fights we are having are about things we
could defer until the war was over. We could try them, as we
did in World War II, after the conflict was over.
The part you are focused on is really the most important
part of the bill in terms of our ability to fight the war going
forward. It is interesting that there has been less focus on it
actually than whether we give certain kinds of evidence to the
defendant. But I think it is the most important part of the
bill in terms of our future abilities.
One is I think no one would deny that Common Article 3 is
very vague. It goes well beyond cruel and inhumane treatment.
It also says you cannot engage in affronts to the personal
dignity of a prisoner, and if the prisoner is a fundamentalist
Islamic person I would think they might be offended, for
example the hypothetical that is actually raised, what if we
used female interrogators? Would that be a violation of Common
Article 3 if they are personally, if they feel their dignity is
offended by that?
So I think it is perfectly appropriate for Congress, and
Congress has traditionally done this with vague treaty terms,
is to pass laws that specify what they mean. And I quite agree
with you, I think it is also important for Congress to do that
because otherwise our interrogators are going to not use
measures which may be legal, but they are just uncertain, so
they may hold back. That may be the wrong attitude we want our
counterintelligence and counterterrorism people to have in this
kind of war. I think Mr. Parker is quite right, it is a very
different kind of war, where information, as you said, where
information is of the highest priority.
The other thing that is different, that makes it different
than the IRA example, we are fighting a purely non-state
network that is not attached to any certain kind of territory
or has territorial claims against the United States. It really
is much more, in many ways much more difficult than the IRA
example because of that, which may require that we try harder
to get intelligence than the British may have had to. That is a
cost-benefit decision that you and the executive branch should
make.
Let me also get to the reciprocal treatment argument. I
think that is a very important policy argument. It is not clear
to me whether that holds in the war on terrorism. Traditionally
under the laws of war, nations have used reciprocal threats to
prevent the opponent from conducting certain kinds of
operations. The greatest example is why there was no use of
chemical or biological weapons in World War II on the western
front. Both sides essentially deterred each other through
threat of reciprocal harm.
One question to ask is that really something that is
possible with al Qaeda. From everything we see, they will
violate the laws of war, they will behead our soldiers, they
will try to kidnap and behead civilians, no matter how we treat
their prisoners. So it is really this--it is a really I think
more tenuous claim that is being made about reciprocal
treatment, which is suppose the United States got in a war with
China, for example. Would the fact that the Chinese--would the
fact that we did not apply the Geneva Conventions to al Qaeda
affect how the Chinese treat our own soldiers?
Just two points on that. One is I would think that what
would be most important to the Chinese or any future opponent
is how we treat their prisoners in that war, not how we treated
prisoners from this non-state terrorist organization in a
previous conflict.
The second thing you ought to ask--I am sorry, which you
raised, is historically our prisoners have been quite badly
abused in many conflicts since the Geneva Convention even when
we followed the highest standards. So that is another question
you ought to take into consideration when you and the executive
branch consider how to define Common Article 3.
Senator Gregg. Well, I thank you for that answer. I wish
you would communicate it to some of my colleagues.
My last question, and you have given us a lot of your time
and we very much appreciate it, is: Under our system--the
English were able to move to an MI5 system rather comfortably.
It is a great country, but a small country compared to us. We
have got this now huge complexity of intelligence capability.
We have got the FBI, we have got the CIA, we have got
Ambassasor John Negroponte's group, we have Homeland Security's
initiatives, and then almost every sub-agency has their own
intelligence capability. CDC has an intelligence capability.
If you were to take the FBI's responsibility for
intelligence out of the FBI, I guess the question becomes, do
you undermine one of the few premier agencies we have in the
area of fighting people who might do us harm and get very
little for it? And if you did do that, how robust would this
new agency be, because it is going to compete with turf--with
the CIA, which is a vicious turf organization, with DIA, which
is even more vicious, and the FBI. And those are just three of
the big boys, is it even feasible for us to have an MI5 that is
functional in the way we have this Government structured or do
we just sort of have to get all these guys, all these agencies
to work together, through the National Center for Terrorism
which we have set up or some other agency like that?
What do you think, Judge?
Judge Posner. Well, I would not take anything out of the
FBI, because what the FBI--the FBI's conception of intelligence
is really intelligence in support of criminal law enforcement,
and that is similar to the intelligence focus of Scotland Yard
Special Branch. So I would leave the FBI as it is and set up a
separate agency.
It is true, we have a very complicated Government. We have
too many agencies. But we do have a kind of vacuum, and it is
extremely--we have a real hole in our counterterrorism
structure and that hole is that we do not have a domestic
intelligence service. Every other country that I know of has
recognized that domestic intelligence--that there should be a
domestic intelligence function which is separate from the
national police force or the national criminal investigation
system. It could be France, Germany, Spain, Italy, New Zealand,
Australia, Japan, India, Israel, Canada, and the United
Kingdom. They all think that.
Many of these are countries which have much longer
histories of struggling with terrorism than we do. So yes, we
have a huge number of agencies, maybe too many, but we do not
have a really critical component of an all-around
counterterrorist structure and that is a separate domestic
intelligence agency. But again to repeat, I do not think we
should take anything out of the FBI because even if we had a
separate intelligence agency it would need to work with
specialists in counterterrorist criminal law enforcement.
So if you look inside the FBI and inside its new national
security branch, you have a counterterrorism division which is
a division that tries to arrest and prosecute terrorists, and
you have a counterintelligence division, which tries to do the
same thing with foreign spies, and you have a directorate of
intelligence, which gathers information in support of these
criminal law investigative activities involving terrorists and
spies.
So we need that. We need that national security branch. But
we want it to--we need it to be working with people who are
specialized in intelligence. One of the things Mr. Parker
pointed out is that the intelligence services like to continue
investigations and allow these terrorist plots to evolve to the
point where you know the extent of the network. You know, it is
like cutting a worm in half or something like that. You do not
want to by arresting a few people simply warn the others, so
the terrorist gang regrows the part you have lopped off,
because there are so many prospective terrorists.
I will mention just one more point on the difference.
During World War II--and this recurred during the struggle with
the Irish Republican Army--there were cases in which the MI5
learned that there was a planned attack. In World War II they
caught a German saboteur who had been instructed to blow up an
electrical plant, and MI5 said: Let us let him blow up the
electrical plant because this will give him such tremendous
credibility in Germany that we will then be able to use him to
feed the Germans with all sorts of disinformation that they
will believe.
Scotland Yard, being a police force, said: No, we must not
do that; it is too dangerous. So the dispute was raised to a
higher level and the government said: Yes, we will go ahead and
let him blow up the plant. And he did that and it was reported
in the newspapers, got back to Germany. The Germans thought:
This guy is terrific; he did what we told him; he blew up the
plant. They sent him a lot of money, which of course the
British confiscated, and from then on anything that he told his
German masters they believed, even though it had been made up
by MI5.
This very similar incident with blowing up a building in
London happened during the fight with the IRA. Again,
disagreement with the police. They always want to--they do not
want to take risks. The intelligence service argues, it is
raised to a higher level, and again a judgment is made.
That is what we need. We need a domestic intelligence
service that will argue with the FBI and say: Do not arrest
those jokers in Miami, they are harmless; use them, play with
them, see if you can, if through them you can learn more about
international terrorism. But we do not have an agency that has
that commitment to intelligence. There is no one to argue with
the FBI in the Justice Department. So they arrest these people
prematurely. That is my concern.
Mr. Yoo. Mr. Chairman, I would say there is two different
issues wrapped up in your question. One is an organizational
theory of when do you want to develop a capability from within
your corporation and when do you go out and buy a new unit
instead of trying to build it from within. That is sort of the
same issue corporations have.
Then the second thing I think built into your question is
just a question of allocation of resources, whether we should
be spending so much on domestic law enforcement versus
intelligence. So I think that is what the FBI is concerned
about, is you create this new agency and it is going to start
drawing resources and funding that would have been given to the
FBI in the first place.
On the first question, I think it is fair to say that the
usual response that we have had from 9/11 in terms of
organization has been just to create new layers between, new
layers of bureaucracy between the people who are on the ground
fighting terrorism and the President. So I think about the
creation of DHS and now the DNI. They impose just another layer
between the different agencies and the President, and that may
not be a good thing.
What Judge Posner is essentially applying is a sort of free
market approach to the way intelligence agencies work. He wants
them to compete with each other to do better work, which is not
a surprise because this is how he got started in his academic
career, was calling for more competition amongst corporations.
I think that makes a lot of sense. If you look at the failures
about the Iraq WMD and so on, everybody may use the same
information, but they may analyze it differently. And it would
be a better system, it seems to me, to create more units at a
lower level that can produce alternate strategies, an alternate
way of looking at things. We are always saying we want people
to think outside the box, to be aggressive. It is harder to do
that when everybody works for one giant bureaucracy.
So I would probably think that it is not that you want to
undermine the FBI, but you want to create a competitor that
will have maybe a different viewpoint and different
capabilities. It may not be possible to have that done within
the FBI itself.
In terms of the allocation of resources, I think, again I
think you ought to ask as the Appropriations Committee whether
you want to spend so much money on the enforcement of crimes
that can also be handled by State and local law enforcement.
The FBI does pour a lot of resources into fighting drug crime.
Our Federal courts are choked with drug cases. This consumes an
enormous amount of Federal resources and attention. State and
local law enforcement can do that, too, and whether you want to
move the bulk of those resources into fighting terrorism, which
seems to me the more--more the kind of thing that the national
government should be doing, which is protecting us from an
external threat rather than focusing its resources on problems
that also overlap with the competences of the 18,000 other
police forces we have in the country.
Senator Gregg. We have been joined by Senator Allard. Did
you have some questions, Senator Allard?
Senator Allard. Mr. Chairman, I do have some questions. We
have a number of committee meetings running this morning and
hopefully the questions I have are not repetitive of what you
covered.
But I was curious. If we look at the recent terrorist plot
that was foiled by the British authorities, if this had been
put together in the United States, given the tools that U.S.
law enforcement agencies currently have at their disposal,
would we have been equally successful as they were? I would
like to have some kind of comparison between the way they
handle their investigations and the way we handle our
investigations and whether that leads to more successful
outcomes.
Who wants to start with that?
Judge Posner. Well, it is of course difficult to say, but I
think there would have been a danger that we would have begun
arresting people too soon and as a result would not have gotten
as many of the terrorists. I am not sure the British are sure
that they have everybody, but they did arrest I think more than
20 people.
Our tendency has been not to take the risk of allowing a
plot to develop, to evolve, but instead pouncing at the
earliest opportunity. There is a big danger there that we get
the small fry and we miss their accomplices.
Mr. Parker was saying before you arrived, Senator, that the
British do tend to let the investigation continue longer before
they intervene. You have to--it requires a certain amount of
guts because you are watching these people and you know there
is always some danger that they are going to act before you
intervene. But taking that risk is often the right way to go
because you take a small risk, but the payoff is that you may
be able to uncover the entire network and not let little pieces
out there which can regrow and hit you.
Mr. Parker. Can I make two observations. I think that is a
really important point and, without going into any operational
details, I am aware of cases where attacks are taken place
because the preventative mechanisms put in place failed. If you
let a case run wrong, you do run the risk that attacks will
occur and you do run the risk that citizens will lose their
lives, and that has I believe on one occasion at least happened
in the United Kingdom, through no intention on the part of
either the police or the security service.
I wanted to address one point. Security service officers
are not allowed in any way, shape, or form to commission an
offense or participate in the commissioning of an offense. So
they would not be allowed to participate through an agent, for
example, in allowing a building to get blown up so the agent
would get better access. In fact, we spend an awful lot of time
in training trying to come up with imaginative ways to get
potential agents over hurdles like carrying out a terrorist act
to infiltrate further within a group. There is a red line there
and the security service--I cannot imagine it would cross it
except in the most extreme of circumstances. I am not aware of
them ever having done it. I had not heard the case from World
War II.
What is true in the Second World War, the British security
service ran the Doublecross system. I think we got something
like 15 Iron Crosses for our double agents, several personally
pinned on by Hitler himself. And as far as I am aware I do not
believe any German agent successfully operated from the
beginning of the Second World War to the end of it on British
soil. So it was tremendously successful.
But again, the idea that one would actually participate in
an event that led to destruction of property or loss of life
intentionally would be a red line for the United Kingdom.
To address also this issue of how one might help nurture a
new agency, one thing you will notice from the London bombings
is who took the credit for stopping it. You will never see a
security service spokesman. There is no security service
spokesman. It is a home office spokesman talking on behalf of
the security service. They never take credit. They never take
credit. Always a police officer, always a police officer up
there taking the credit.
What is interesting in the last 3 or 4 years is the
metropolitan police have started to actually acknowledge that
the security service was involved and extend thanks for their
participation, which I can assure you was not the case in the
early 1990s.
But nothing succeeds like success, and effective
relationships where everybody is able to share in a result,
which you have with an intelligence division and a law
enforcement division, where the intel guys help the law
enforcement chaps get a result, everybody looks good, and that
is why it has grown closer in England. It has been this sort of
benign circle, virtuous circle of success, where the police
have maintained their public role as the guardians of law and
order and the security service has been able to direct their
activities or assist in directing their activities more
efficiently than the special branches had before.
So it has worked out well.
Mr. Yoo. May I just give a quick point?
Senator Allard. Yes, Mr. Yoo.
Mr. Yoo. Thank you. I think Judge Posner and Mr. Parker
focused on the human intelligence side of investigation and I
think one issue that I think the British do not have the same
kind of strengths we have is on the signals intelligence,
interception of emails, phone calls, financial records. It
looks like from the accounts that the British were able to
quickly move based on one tip, to use those kinds of methods to
quickly identify the network of people through those kinds of
links.
I think our FISA system allows us to have that same scope,
but it is much slower because you have to put together a case
that involves probable cause and so on, and that takes a lot of
work and it takes time. So I think it is doubtful that we could
have put the case together as fast as the British did. It might
have taken much longer, not because of human intelligence
sources, but just because we have more restrictions on the
collection of information.
Senator Allard. Well, I appreciate your comment. I have
always been very appreciative of the relationship that we have
with the British. I mean, we have a very close relationship on
intelligence gathering, and it is a lot of confidence in both
our systems and I just think that statement needs to be made.
Mr. Yoo, you were talking about more competition in law
enforcement. The only way I can see that we can make things
more competitive is to contract it out. I mean, to keep people
within the Government where you have the protections of the
civil service system, it just, you take away incentives many
times that you need to have in a more competitive environment.
Then when you talk about contracting out, then there
becomes issues about who you are contracting with and whether
they are secure or not and whether they have the legal
authority to do what needs to be done.
Can you address those problems a little more in your
comments?
Mr. Yoo. I have to confess it is a really interesting point
that I had not thought of quite clearly, as to whether you
could create competition just by privatization of some aspects
of it. I think one thing that you would get is you would get
certain skills that are not common in the Government,
entrepreneurial skills. So if you think about it, one of the
things we are trying to do or the Government is trying to do in
law enforcement is we are trying to destroy a network, an enemy
network of agents, and this is much like the mentality that
hackers might have attaching computer networks. That is not
probably the kind of mentality you have in law enforcement, is
how do you destroy other networks. They are usually focused on
protecting them.
So it is an interesting point, that there may be ways to
use things like--I know the CIA had a venture capital firm in
Silicon Valley where they tried to seed research that they
thought might be helpful, and the Defense Department has done
similar things historically. It may be the case there might be
opportunities to do something like that using Federal funding
to promote research by the private sector into technologies.
That is one of our great advantages in this war on
terrorism, is that the United States is a technological leader.
The enemy is very good at using technology, too, but maybe we
can encourage research and development--I think it is less
likely we will develop those tools from within the Government.
That has not, I do not think, been historically the case really
when it comes to sort of fine-tuned kind of approaches. Our
kind of research and development I think within the Government
is more sort of a brute force approach to sparking big changes
by pouring in a lot of money.
So your idea could lead to--there might be a better way to
create that kind of work with less expenditure of funds. It is
interesting.
Judge Posner. If I could add something, there has been a
big talent drain from the intelligence community since 9/11
because private companies, banks, investment banks, telephone
companies, computer companies, and so on, very concerned about
security, have hired a lot of very good intelligence people
from the Government. What that means is that, just as Professor
Yoo is saying, we want to make sure that these private security
people, private intelligence people, are part of an overall
national network to protect us, and one need we have is to
coordinate our Federal intelligence activities, not only with
other Federal agencies and with State and local police, but
also with the private security firms and the private
intelligence units of major banks.
For example, one of the senior officials at CIA, Ted Price,
became the senior security officer for Lehman Brothers in New
York, very experienced intelligence officer and very concerned
about threats to his bank from terrorists. So we should be
drawing on these people.
Echoing what Professor Yoo said about technology, one of
the big problems we have--this is an FBI problem. You know, of
course the FBI has acknowledged having blown more than $100
million on a computer system that did not work. One of the
problems is that the Government agencies tend to hire
contractors to custom build a computer system for a Government
agency. They do not sufficiently exploit the opportunities to
buy commercial equipment, adapt it for Government needs, but
not try to build a computer system from scratch, because in
fact the commercial systems, they are cheaper, they are tested,
and they have very efficient security features, encryption and
so on.
So yes, we should not--the Government should not think it
can do everything itself in this area.
Senator Allard. Well, Mr. Chairman, if I can continue here
to follow up on that. We have had a tough time----
Senator Gregg. I unfortunately have to go to a meeting. Can
I turn the hearing over to you?
Senator Allard. That would be fine. I did not realize you--
--
Senator Gregg. I want to thank the witnesses, though, for
their time and their courtesy. It has been an extraordinarily
informative hearing for me and hopefully we can take some of
the knowledge you have imparted to us and make good use of it.
Thank you very much.
I have got to go to a meeting with the Leader here at 11
o'clock and I will turn it over to Mr. Allard to chair the
balance of the hearing.
Senator Allard [presiding]. Thank you, Mr. Chairman, and I
will not take up too much more of the witness' time.
The problem we have had here is getting the FBI to talk
with the CIA, and they are both Government agencies. I see even
greater barriers in getting either one of those agencies to
talk to somebody in the private sector. It is a confidence
issue, I think, that you have very sensitive information, and
of course the more people who know about it the more apt it is
to leak out when you have an open society, particularly like
what we have here.
I do agree, I understand your concerns with these
contractors coming in on computer systems and tailoring that
computer system just to that Department and they do not worry
about interactivity between other Departments. I think that is
a big problem, not only in the security but throughout the
Government, and I think it needs to be dealt with, and there
are some attempts to do that.
I guess we need to do some things, I think, to encourage
them to participate with the private sector. Have you got any
thoughts on how we can break down those barriers of confidence?
The only way I can think of is maybe if they pick up people who
had previous clearance experience and had worked within the
agencies, if they go in the private sector then obviously they
have already maybe established some confidence there. But I
think it is a tough problem.
Judge Posner. Well, one of the problems is that
overclassification makes it difficult for the Government people
to communicate with private people. But especially when we are
talking about terrorism, some of the most important information
to guide our conflict with the terrorists is knowledge of
foreign cultures, foreign languages, foreign history and so on.
Much of that expertise resides in universities and other
private sector activities. So we do want to make sure that the
Government officials can talk to these people, can consult them
and bring them in, and not be impeded by overclassification, by
paperwork, by conflict of interest rules that makes it very
difficult for private people to consult with the Government.
I do think the Director of National Intelligence is
concerned about that problem and is trying to lower the
barriers to intercommunication with the private sector.
Mr. Yoo. I very much agree with what you say, Senator,
about the classification and clearance issue. In part it is a
hangover from the cold war cultural problem, because a lot of
the rules on clearances and so on were built up to prevent the
Soviet Union from getting an agent inside and learning
information. That does not seem to be the challenge that we
face with al Qaeda. We do not as far as I know have examples of
al Qaeda agents infiltrating into the United States Government.
So I think this would be an appropriate area for the
Appropriations Committee to consider, is whether it wants to
change the way clearances are given, how many people are
permitted to have them. This does not just cause problems for
interoperability between Federal agencies; it is a major
barrier for interoperability between the Federal agencies and
State and local law enforcement. That is I think where you even
see more resistance to the sharing, not even just between the
FBI and the CIA, but then down to the people who actually have
to make the tough decisions.
This is also an area where computers could provide help.
Corporations and universities, other entities, have all used
technology to control the flow of information in different ways
using commercially available products. I have always wondered
why we do not--it does not seem like we have a chief
information officer in the Federal Government. There are
certain kinds of innovations, the technology you can use, which
the private sector is way ahead in, which I think could be
rather easily adapted to face some of those problems you have
raised. But we do not have anyone in the Government who is
looking at the use of information technology centrally. Each
agency has their own CIO, but we do not have one for the
Government as a whole, it seems. That might be an area, the
Appropriations Committee might call for that kind of work to be
done by the executive branch, and it would be very helpful, I
think.
Mr. Parker. If I could offer a personal observation, I am
not sure it is quite as bad as you fear. I spent 6 months in
Baghdad in 2003 as the British special adviser on transitional
justice and I was struck actually at how closely the other
Government agencies worked with contractors, how heavily
involved they were in all aspects of operations in the field.
I was there essentially as a private sector contractor for
the foreign office. Within a month and a half, I sat on the
high value detainee video conferencing, telephone conferencing
system, with the CIA and Defense Intelligence Agency. I was
amazed, absolutely amazed that they would allow me in the room,
and in fact we had very useful, very fruitful discussions.
So I think again successful collaboration tends to breed
relationships of trust. Perhaps one of the things, the good
things that does come out of Iraq, is that there is a much,
much greater awareness now of the values sometimes of these
sort of contractor relationships and the skills that are out
there in the private sector and how that can be utilized by the
intelligence agencies. So maybe there is a ray of hope perhaps
already there.
Senator Allard. I am going to change the subject just a
little bit, but it is very pertinent to the debate going on in
the Congress as we sit here. You brought up the issue of
detainees and one of the debates that we are having is, because
of our Constitution and the way we protect the rights of the
accused, citizens have to face their accuser and they have to
be informed of those facts in a civilian court.
With the recent Supreme Court decision which has now
extended certain rights to detainees, we have a problem. If we
disclose all that information that we know about to the accused
in a court case, we make it public, or potentially public. This
creates a problem on security issues where we do not
necessarily want them to know how we got the information or who
the informer is and those kind of things.
How do other countries deal with that issue, or are we just
unique in that because of the protections we provide to the
accused? I wonder, maybe you could comment on that, Mr. Parker,
and any of you on the panel that may be familiar with--and
maybe some suggestions on how we can deal with that?
Mr. Parker. Disclosure became an issue in British law in
the early 1990s. It took a while for the British intelligence
agencies to adapt to that. The first case in fact was an animal
rights case, I believe in Reading just west of London, where
the police were forced to drop the case because the judge ruled
in the interest of disclosure the identity of the informant had
to be revealed and the police simply dropped the case at that
point.
We have moved a long way from that. There is an instrument
in British law called a public interest immunity certificate,
where agencies who want to protect intelligence can apply to a
judge to have it excluded from the rules of disclosure. The
judge gets to read it, he gets to make his own judgment about
the sensitivity of the document, and if he feels that the
Government puts together a reasonable case he will issue a
public interest, a PII certificate. So that is the mechanism
that we use in the United Kingdom.
Also, the other thing we have done is reverse engineer
cases, so that if for example technical capabilities might be
exposed in the course of a trial we might use obsolete
equipment for that particular case, a listening device or some
sort of beacon device. We might deliberately use equipment for
that case simply hoping that it will get disclosed to the
court.
The IRA used to send intelligence officers to every trial.
They would sit there, they would write down, they would do
lessons learned on every single case that came before the
court. One of the biggest intelligence successes we had in the
early 1990s was this debate about whether or not digital phones
could be intercepted, cell phones, digital cell phones could be
intercepted. There was what is essentially an urban myth that
analog cell phones could be intercepted but digital phones
could not be. For a 3- or 4-year period, a lot of people used
digital cell phones when they were perfectly easy to intercept
and talked quite openly on it.
Well, that was clearly a capability that we had no wish in
revealing in court. In this particular instance, of course, we
are I think the only country in the world where telephone
intercept material is not admissible as evidence, period. So
that issue does not come up specifically. But sharing
intelligence, identity of sources, technical capabilities, are
serious issues, and we have typically tried to protect our
techniques by going for these public interest immunity
certificates.
CONCLUSION OF HEARING
Senator Allard. If we do not have any other comments on the
question, I do not have any more questions. I want to thank the
panel for your participation and your comments. I want to check
with the staff and see if there is anything here on closing the
committee we need to mention. 10-day comment period or anything
like that?
Then I am going to declare the committee recessed.
[Whereupon, at 11:10 a.m., Thursday, September 14, the
hearing was concluded, and the subcommittee was recessed, to
reconvene subject to the call of the Chair.]
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