Sixth public hearing of the National Commission on Terrorist Attacks Upon the United States

Statement of Philip B. Heymann to the National Commission on Terrorist Attacks Upon The United States
December 8, 2003

Chairman Kean, Vice Chairman Hamilton, Members of the Commission:

Thank you for my invitation to appear on this panel. I will try to address the three questions presented by the Commission in the order in which they were presented using some of the charts from my new book Terrorism, Freedom and Security: Winning Without War.

I. POWERS BEFORE 9/11/01

You first asked about my assessment of the government's authority before September 11, 2001 to collect intelligence, and, more broadly, the adequacy of its authority to defend the country against terrorism.

A. Intelligence Collection Authority

To detect the traces of any activity - in this case the initial stages of preparing for a terrorist attack on the United States - intelligence or law enforcement agents have available only a limited set of steps even in an undemocratic political system. Starting with that broadest set allows us to then turn to which, if any, of these steps was unnecessarily forbidden or limited in the United States before September 11th.

A list of all possible steps would include these ten prominently:

1. They may interview willing witnesses.
2. They may offer rewards including reduced punishment for information.
3. They may seek to have unwilling witnesses testify under legal compulsion.
4. They may detain the suspect or suspected witnesses in order to question under more or less coercive conditions.
5. They may view and analyze publicly available physical evidence or records or voluntarily produced evidence or records.
6. They may order the production of records or physical evidence.
7. They may search private places and seize belongings or records.=
8. They may engage in physical or electronic surveillance of the suspect's activities.
9. They may use informants or spies.
10. They may, using undercover operations, have a government agent offer to assist an ongoing conspiracy.

If before September 11, 2001 the government lacked some necessary authority, it would be because of legal prohibitions or limitations of 4, 6, 7, or 8. The others, as well as the ability to analyze the information, were unrestricted in any substantial way.

• The Fourth and Fifth Amendments and the writ of habeus corpus sharply limited the peacetime power of the federal government to detain for questioning and, perhaps, to question coercively even individuals properly detained.
• The requirement of probable cause and a warrant, or, in some cases just reasonable suspicion, for searches, seizures, and electronic surveillance (including for investigations of international terrorism) limited these means of gathering information.
• Only courts could generally order the production of records or physical evidence and then as part of litigation or pre-litigation discovery. But these restrictions were minimal. U
• Under long standing guidelines of the Department of Justice, none of these steps could be taken unless there was an adequate basis for believing it could help solve or prevent a crime or an act of international terrorism. This would have precluded, for example, random attendance at religious or political meetings and demonstrations.
• Steps 4, 6, 7, and 8 for gathering information required either prior judicial approval or prompt judicial review as well as notice to the subject about whom the information was sought, except when the giving of notice was delayed by a judge.
• Wherever a power was held only by law enforcement or only by intelligence agencies, a variety of restrictions prevented or inhibited the use of information gathered under that power from being shared.

B. Other Useful Powers

To complete a list of government powers before September 11, 2001 to defend the country against terrorism we must move from investigative powers to what the government could do with the information it gathered in order to reduce the danger of terrorism. Consider the chart.

The rows represent the categories of steps the government can take to prevent terrorism. The columns represent the needs of a functioning terrorist group. The steps are intended to prevent such a group from meeting its needs. (Perhaps there should be an additional column "J" to reflect what seems to be the core of our present strategy, an effort to deny Al Queda the leadership it needs.) Before September 11th we had those powers to gather and process information (row 4) that I have just described, but what about the other rows?

No lack of legal authority interfered with efforts to reduce enthusiasm for attacks on the United States by showing that hope for the terrorists' future lay elsewhere. The requirement of proof beyond a reasonable doubt would limit the possibilities of using criminal law to deter individuals, although for very important reasons, it did not prevent military or intelligence actions against groups or states. The prohibition of assassination in Executive Order 12333 limited non-criminal deterrence of individuals. In any event, deterrence of individual terrorists is often not a very promising strategy. Deterrence of groups and states is much more likely and was in no way limited by US law. In particular no requirement of proof beyond a reasonable doubt applied to military or intelligence actions against groups or states abroad.

The government had power to deny access to the federal fraction of the potential targets of terrorist attack and to require reliable identification such as fingerprints or optical scans before access was allowed. It had no authority to deny or limit access to most other targets or to the ingredients of the weapons useful for terrorist attack. Finally, the possibility of precluding a terrorist attack by disrupting flows of money lacked broad enough authority. Preventing the freedom of individuals to move or communicate was limited by the requirement of probable cause of at least a conspiracy before an individual could be arrested. Sowing distrust within a group within the United States, as opposed to overseas, had been a taboo since the time of the FBI's COINTELPRO program.

In sum, if non-intelligence powers were lacking it was primarily in the areas of (i) controlling explosives and poisons and their precursors and (ii) adequate money laundering and forfeiture powers.

II. Issues Regarding Present Powers

A. Some Standards That Cannot Be Defended

Assessing the adequacy of the government's legal authority to defend the country against terrorism cannot mean whether the powers that I have listed, even if all the restraints were abandoned, would be sufficient to provide a very high level of assurance against terrorist attack within our borders. The answer to that question is surely "no". Israel has been unable to stop terrible terrorist attacks. As a matter of practice we know that states far less concerned about limiting government powers and protecting citizens' freedoms are unable to provide a very high measure of security against terrorism.

As a theoretical matter we know that even if the government could detain without any explanation and could open and conduct investigations without any basis --could use the tools of investigation and control I have listed without any restrictions -- it would remain entirely possible for individuals within or outside the United States to get their hands on more or less serious weapons and use them before we could discover their purposes. Five terrorists with five rifles in positions overlooking five highways could create a nightmare for the United States.

The question whether the government possesses the legal authority it needs also cannot sensibly mean whether the abandonment of all restrictions would make possible a somewhat greater security against terrorist attack. There the answer is probably "yes"-the doubt reflecting only the tendency of an uninhibited internal security policy to generate opposition and new recruits to terrorism.

The Attorney General has come close to urging a third standard -- that we eliminate any restriction that is not legally required even in times of all-out war, such as the second World War or the Civil War. In times of the direst dangers to the very survival of our nation, very few powers can be confidently said to be beyond the President's reach, even without any significant role played by the Congress or the Judiciary. The result is that very few of the restrictions that were part of our law before September 11th would survive the Attorney General's standard.

B. The Standard to be Applied and By Whom

Necessarily, the Commission's question: "Does the government possess the legal authority it needs to defend the country against terrorism?" calls for a judgment that compares the amount of investigative or other benefits in terms of increased safety from terrorism with the measure of insecurity of democratic freedoms the steps would generate and makes that comparison in light of the fact that, for a period going far into our nation's future, even a very small group of foreign or domestic terrorists will be able to threaten either sustained attack, or spectacular, unusually lethal attacks, or even use of weapons of mass destruction. The next chart (Fig. 1) reflects conceptually the trade offs that will have to be made.

FIGURE 1

The only hard issues should be in the "b" and "e" areas where we should try very hard not to exchange a minimal increase in safety for any very significant loss of American freedoms and of the loyalty and admiration that our tradition of liberty brings us both at home and abroad. The single most important aspect of making the trade off is deciding who will make it over the next half century. Critical roles should be played by each of the three branches of our government. In Federalist Paper no. 47 James Madison warned that "the accumulation of all powers, legislative, executive, and judiciary, in the same hands may justly be pronounced the very definition of tyranny".

We have moved too far in that direction in the early and frightening stages of the post September 11th world. Faced with a problem that will be with us for half a century, we must seek carefully considered and comprehensive legislation to replace executive decisions made while asserting the emergency powers we have briefly given the President when the nation's survival was at stake. The Congress must address the Commission's second question-an assessment of the wisdom of the executive's choices of policies and procedures, both in terms of their effectiveness and in terms of any unnecessary danger they pose to democratic freedoms.

C. Eight Measures That Should Be Rejected Legislatively

1. In the category of measures that appear to offer very little in the way of additional security and yet impose very substantial costs in terms of democratic freedoms, the leader is the claimed power of the President to detain American citizens found within the United States and not under battlefield conditions. Used only once or perhaps twice in two years, the claimed power is only needed to incapacitate a dangerous terrorist when there is not probable cause to arrest the detainee for conspiring with others to violate any of perhaps fifty statutes that are likely to be applicable. If that category of cases is large-a conclusion I do not share-detention should be under a careful statute with such protections and limits as statutory authority to detain has involved in Great Britain, Israel, and India.

   If the problem with using arrest authority is not the absence of probable cause but the desire to interrogate without the detainee enjoying the protections of time limits, lawyers, and judges, that problem too should be addressed by statutes.

   The President is claiming a right to act without specific statutory authority; indeed, the claim of power is in direct defiance of a congressional statute. And he has opposed review by a judge or other neutral figure or commissioner. Clumsily done and largely unneeded, the assertion of executive power states to everyone in the United States that if the President or the Secretary of Defense believes you may be associated with global terrorism you can be detained in a secret place for an indefinite period of time at his discretion.

2. The reach of the President's order with regard to military tribunals includes long-time residents of the United States who are not citizens. The number of aliens in the United States at any given time is about 20 million. Despite the availability of the Classified Information Procedures Act and its successful use on a number of occasions, the President has claimed the right to try any one of these 20 million people and sentence them to execution before a military tribunal, with rules of evidence and procedures that are considerably looser than those available in ordinary civil or military trials. No western democracy has claimed such a power in dealing with terrorist threats. Whatever the case for military tribunals outside the United States, there is little ground for exposing those who live within the United States and are arrested within the United States to capital charges while denying them a civilian trial. Indeed military tribunals have not yet been used, although one may be used in the Moussaoui case.

3. In general, the denial of public access to deportation hearings and the failure to account publicly for people detained on the orders of the President have created what amounts to a claim of a right to make individuals disappear from American society on executive orders and without the public openness that is necessary for trust in the legitimacy of the government. The administration has not even accepted the minimal and wholly innocuous requirement of individualized showing of a need for secrecy in these cases. The result is to create fear and suspicion with only the vaguest and most general showings of national security justification. As Senator McCain has noted: "Excessive administration secrecy on issues related to the September 11 attacks feeds conspiracy theories and reduces the public's confidence in government."

4. The same type of suspicion and fear is created by the powers, greatly expanded by the Patriot Act, to gather information on individuals by enforceable demands on their business or personal associates and at the same time to forbid the associates from letting the individual know that the information was furnished. Such authority may be necessary in some cases, but it is a power that need not be made available, as the Patriot Act does, without judicial judgment as to the continuing necessity of secrecy. A judicial order forbidding the revelation by a library that it has furnished the names of books withdrawn by a borrower should automatically expire within a relatively short, fixed period unless a court is shown reasons adequate to convince it that revelation would interfere with an ongoing investigation. As the Senate Select Committee on Intelligence wrote in 1989, "the American people have a right to disagree with the policies of their government, to support unpopular political causes, and to associate with others in the peaceful expression of those views, without fear of investigation by the FBI or any other government agency." The only way to dissipate that fear among those merely contesting government policies is to assure revelation at the earliest reasonable time of investigative activity.

5. The Attorney General has modified the quarter-century-old guidelines limiting intelligence investigations to situations where there is reason to suspect a violent crime or international terrorist (or espionage) activity. That standard may be too strict after September 11th, but the new authorization includes a permission to attend religious and political meetings even where there is neither suspicion of a crime nor a basis for believing that hatred or violence is being preached. Without at least the latter, the danger of inhibiting public speech by the fear of surveillance far outweighs the benefits of random attendance at religious or political meetings. I suspect that random attendance is not the practice; but, if it isn't, this should be made clear by requiring some basis for suspicion that advocacy of violence or hatred is occurring before infiltrating a meeting without fact-based suspicion of criminal or terrorist activity.

6. In a closely related way the FBI Intelligence Bulletin #89 of October 15, 2003 plainly suggests a desire to monitor participation in public demonstrations in the name of controlling terrorism. That cannot be justified by the likelihood of any known connection between anti-war demonstrations and terrorism. The risks of similar monitoring were described by Justice Lewis Powell in the Keith case: "the price of lawful public dissent must not be a dread of subjection to an unchecked surveillance power". More concretely, the harms of unnecessarily monitoring public demonstrations were revealed in massive files maintained on opponents of the Vietnam War by the US Army as well as by the FBI.

7. The spillover to non-terrorist matters of justifications in terms of fighting terrorism that is apparent in the FBI intelligence bulletin #89 is also manifest in the frequent use for ordinary criminal investigations of powers granted by the Congress in the Patriot Act to deal with terrorism but not limited to those purposes by the Act. Powers to fight IRA terrorism in the Republic of Ireland drifted, without deliberation, into becoming part of the regular criminal enforcement authority of Irish law enforcement. We should not let that happen here.

   Having adequate powers to deal with the threat of terrorism is important enough to warrant special provisions like the Foreign Intelligence Surveillance Act and much of the Patriot Act. Such special provisions will not be granted when they are needed if the price of granting them is to also make them available in ordinary criminal matters. The powers needed for these two areas are different and should be handled by separate legislation.

8. Although our courts have been unwilling to delve into the motivations of law enforcement officers in an effort to determine whether an arrest made for a violation of one statute was really intended as a way of searching or detaining an individual for other purposes, the practice is not something we should be proud of. The use of the material witness statute to detain individuals suspected of terrorism and the use of minor immigration violations for the same purpose are examples. Where the fear of terrorism justifies search or detention powers, the administration should seek those powers and the Congress should grant them. The administration should not rely on the discretionary use of powers granted for other purposes in situations where they would rarely or never be used except in the threat of terrorism.

D. Five Failures to Adequately Use Justifiable Powers to Fight Terrorism

The failure to seek or effectively use authority that could be extremely helpful in reducing the danger of terrorist attack is equally important. Seeking reasonable and defensible legislation could help in at least four areas. Greater use of one investigative technique could help in a fifth.

1. The reasons for limiting FISA-based electronic surveillance of citizens and resident aliens include prominently the protection of domestic political dissent, as the quotation from Justice Powell illustrates. But this important policy does not apply to visiting aliens who play no political roles while in the United States. Reasonable suspicion, found by a court, should be adequate for electronic surveillance of a visiting alien suspected of terrorist purposes. This is certainly a more useful way to monitor suspects (because it reveals other plotters) and it is a more humane way to prevent terrorism than indefinite, secret detention.

2. The matching of extensive commercial and governmental records of apparently innocent behavior against a template of activities that, when found together, would suggest planning terrorism is not a dangerous form of surveillance if the government can only know the names of those whose records are being matched after the match reveals a set of activities providing probable cause, or reasonable suspicion, of terrorism. The invasion of privacy only begins when the names are known and deciding to allow this could easily be the subject of a judicial procedure, like the Foreign Intelligence Surveillance Act. The possibility of monitoring an individual's activities extensively through such records makes it a form of surveillance, but other forms of far more intrusive surveillance are permitted when there is judicial determination of probable cause, and matching a template through a series of activities could well create probable cause that the unknown individual is involved in terrorism. A well-designed statute would solve that problem.

3. We need federal measures, like those we have in place for nuclear power plants, to assure security at storage facilities for chemical and radioactive materials that can be used as weapons.

4. We need a treaty making extraditable to the United States or to any other state willing to try the case anyone knowingly assisting someone like Saddam Hussein in the production of biological or chemical weapons.

5. A great deal of our effort to deny unrestricted or secret access to targets and resources depends upon identifying suspect categories (such as people who have traveled to Afghanistan or those who share certain histories of activity that are associated with prior terrorists) and giving them a disproportionate amount of investigative attention. The systems for checking those using air transportation is an example. The response of intelligent terrorists to any effort to concentrate investigative activities on a particular class will be to look for people outside that class who would be prepared to aid the terrorist cause. Such people will be subjected to less than normal investigation to allow others to be subjected to more than normal attention.

Assuming that recruiting among very different groups requires taking greater risks of exposing terrorist plans than recruiting from among those the terrorist already knows, we should be engaged in very extensive undercover activity designed to offer the terrorist what appears to be the cooperation of someone not in the suspect category. I have no way of knowing how much undercover activity offering "help" to terrorist causes is now ongoing but it is a necessary complement to any effort to give special investigative attention to people with particular histories.

CONCLUSION

The most important proposals involve a change in approach and attitude as we settle in to the long haul. We must:

1. Recognize that we will not remain free if for the next half-century our Presidents do everything that would be legal in a war when our nation's survival was at stake (i.e., act without regard to the costs in democratic freedoms).

2. Recognize that the needed balance between security and freedom and the rules and standards expressing that balance must be created legislatively and with judicial application of the standards.

3. Recognize that the nation's citizens cannot play their role in the nation's future without knowing much more than we do now about what our government is doing to whom and for what reasons. The fear of a terrorist group exploiting such information cannot be accepted as a generalized justification for the secrecy that concentrates power.

4. Increasingly question and debate the assumptions behind claims that an action either will further our national security or will undermine our democratic freedoms. In the area of terrorism no one's expertise justifies great deference.

5. Study the experience of other democracies, particularly Great Britain and Israel.

6. Increase the number, broaden the composition, and widen the agenda of advisory groups to the Departments of Justice, Defense, and Homeland Security. None of these is asking the questions that the Commission is asking today and this should be a continuing exercise.

7. Insist that the Department of Justice resume its historic responsibility to represent fairness as well as order, justice as well as law, in meetings of government agencies. That is why the Department has long been given an important role in national security and foreign intelligence decisions. That institutional voice is badly needed.

8. Recognize, as have the former Administration leaders Viet Dinh and Michael Cherthoff, that now is the time to re-examine, in light of the expected life of our present state of risk from terrorism, what our policies should be. The executive responses of the crisis period must be replaced by legislation reflecting experience and reflection.

9. Remember that while our short-term efforts must be to prevent terrorist attacks, our long-term strategy has to be to undermine support abroad for those who would attack us. Remaining a role model of democracy and fairness is an important part of that critical long-term effort.