The Brennan Center’s Liberty and National
Building Freedom, Building Security:
America’s Challenge for the Next Five Years
I want to thank Michael Waldman and Lisa Brown for the opportunity to be here this morning. It is a pleasure and honor to join Senator Gary Hart in helping to kick off this important conference.
Every time our Nation goes to war, our civil liberties as well come under attack.
In times of war, there is a long tradition of clamping down on the home front in the name of national security.
Two of our greatest Presidents took wartime actions that each of us in this room would have made every effort to oppose in times of peace.
I am speaking here, of course, of President Lincoln’s suspension of Habeas Corpus; and President Roosevelt’s creation of internment camps for Japanese-Americans.
At such times, our freedoms bend. Most of us agree today that they bent too far. The saving grace for our country is that we take steps to restore the balance when our country returns to peace.
For us today, one question is: When will peace be restored? When will, what the President calls the “Global War on Terrorism,” come to an end? No one can say. There will be no peace treaty signed; there will be no victory parade anytime soon.
The Need to Act Now
We cannot wait for a decade or more to get the balance between national security and civil liberties right.
We cannot wait for the Executive branch to signal “all clear.”
We cannot wait for others to protect our freedoms.
We think our liberties are special. They are. We take great pride in our country and our long history of freedom.
But there is nothing magical about their continuation. They continue because we struggle every day to defend them.
Our soldiers are on the front lines of freedom, and so is everyone in this room. It is your obligation – our obligation – to defend our freedoms at home, even as we take all appropriate steps to defend our country against terrorist attack.
The Challenge Ahead
Six years after the 9/11 attacks, we are still struggling. So far, the President and Congress have failed to develop a legal framework for dealing with terrorists that also protects our civil liberties.
A Legal Framework for Terrorists
We still need to develop a legal framework for terrorist suspects.
Fundamental justice requires a fair process before our government detains people for significant periods of time. The President and the Congress have not provided it.
Guantanamo should be closed now.
It is a challenge as to what you do with the prisoners in Guantanamo. I am not the expert as to what should happen next – all of you are – but my instincts are that we should trust our own system of justice. It has served us well throughout our history, and we should trust its ability to serve us now.
It has its risks, but I also know that no word is more poisonous to the reputation of the United States abroad than Guantanamo. Our current policies are not reducing the overall terrorist threat.
The Privacy and Civil Liberties Oversight Board
After 9/11, the American people and their elected representatives gave the Executive branch many additional powers so that it could protect us. The Patriot Act is the most obvious and visible example.
For me, the question is not so much what powers are granted – although we can legitimately disagree on that question.
The far more important question is the system of checks and balances and oversight on the exercise of these powers.
For this reason, the 9/11 Commission recommended, and the Congress adopted, the creation within the Executive Branch of the Privacy and Civil Liberties Oversight Board.
Unfortunately, that Board has been missing in action. It has raised no objections to detention and interrogation practices, or to warantless wiretaps. It let the White House edit its annual report.
Recent action by the Congress to strengthen the board represents progress. It will become an independent agency with political balance, some subpoena power, and members subject to Senate confirmation.
What it needs most is an infusion of backbone and leadership. The country badly needs a strong, consistent public voice in support of civil liberties. We do not yet hear it.
Three years ago, the 9/11 Commission said that strengthening congressional oversight was among the most difficult and important of our recommendations.
Both the success of our counterterrorism reforms and the protection of our civil liberties depend on it.
Oversight of homeland security and intelligence by the proper committees must be robust and effective. Currently, it is not.
On homeland security, we have gone backwards. We noted three years ago in our Final Report that the Department of Homeland Security reported to 88 congressional committees and subcommittees, a major drain on senior management and a source of contradictory guidance. Today, the number has grown to over 100.
On intelligence oversight, the new law signed by the President in August (PL 110–53) requires declassification of the overall intelligence budget. That is a potential step forward for potential oversight. Unfortunately, the law also allows the next President to waive that requirement. This reform should not be conditional.
A declassified overall budget makes it possible for the House and Senate to establish separate Appropriations subcommittees for review of the Intelligence budget. We believe they should do so.
If you want good oversight, you have to follow the golden rule. He who controls the gold makes the rules. Congress needs to provide systematic, unrelenting oversight of the intelligence community – both in support of effective counterterrorism reforms, and in support of unstinting defense of our civil liberties.
Thank you, and I look forward to the day ahead.
The Brennan Center’s Liberty and National