I join in the TAPAC report in all respects and add a few observations of my own in response to those of our esteemed colleague, William T. Coleman, Jr.
Mr. Coleman’s separate statement begins with and is in good part based on a proposition with which I, and I am sure my colleagues, fully agree. That is that the murderous attack on this nation on September 11, 2001 warrants governmental responses that might previously have been unthinkable. If anything, I might phrase the problem even more hyperbolically than did Mr. Coleman. The threat of nuclear, biological, or chemical attacks within the United States by terrorists who are, at one and the same time, technologically skilled and suicidally oriented, may well pose the greatest threat to our people that we have ever faced before. The threat is not only real; it is long-term in nature, with no end in sight and, quite possibly, with no end at all. It may be the fate of our children and grand- children always to be at risk.
Given the level of this threat, it is not only understandable but necessary that our govern- ment seek out new and creative ways to prevent acts of terrorism. Many dedicated and selfless public servants, both in and out of uniform, who testified before our committee are engaged in that effort and they deserve the nation’s thanks for their contributions.
But that is only the beginning of our analysis and it is with respect to the remainder of Mr. Coleman’s submission that I respectfully differ. For if, as I think we agree, the nation must adopt a long-term strategy of dealing with terrorism,
we must also develop a long-term strategy of preserving civil liberties, including privacy, as we do so.
During other wars this nation has fought, or believed it was about to fight, civil liberties have been amongst the first victims. From the Alien and Sedition Acts of 1798 through Abraham Lincoln’s suspension of habeas corpus, Woodrow Wilson’s prosecution of socialists during World War I, and Franklin D. Roosevelt’s incarceration of Japanese-Americans during World War II, our nation’s record has not been admirable at resist- ing the primal instinct of shutting up dissenters and shutting down civil liberties during times of stress. The law has sometimes been useful in protecting civil liberties at such times but generally has not been. That is why, I suspect, the Secretary of Defense wisely asked us not only to focus on “what safeguards should be developed to ensure” that new technology developed within the Department of Defense “is carried out in accordance with U.S. law” but with “American values related to privacy”268 as well. Law may sometimes fail us; our values remain, even if we sometimes forget them dur- ing times of strife.
What law are we speaking of? What values? The TAPAC report sets forth in detail the case law under the Fourth Amendment and otherwise protecting privacy interests. While not all privacy interests are protected and those that are are balanced against competing interests, I believe Mr. Coleman significantly understates the degree to which the Supreme Court has held that there is a constitutionally rooted privacy right. The Court’s developing jurisprudence in this area has,
to be sure, been controversial.269 Indeed, the Court has sometimes treated privacy (which is never mentioned in the Bill of Rights) so expansively that, in my view, its rulings have imperiled well established First Amendment rights in doing so.270 For better or worse, however, that the Court has recognized a constitutionally-rooted right of privacy seems to me just as undeniable as the proposition that American values as well as law include some component of the right, as Justice Brandeis famously put it, “to be let alone.”271 Any determination of the degree to which TIA threatened privacy values necessarily begins with an analysis of TIA itself. In that respect, Mr. Coleman suggests that “Congress did not really understand the TIA program”272 and that this led, in turn, to its decision to deny funding to at least some of its activities. I do not know what Congress understood. Having served on TAPAC since its inception eight months ago and having listened to and read carefully all information about TIA provided by DARPA, I can attest without qualification that I too do not really understand the TIA program. DARPA bears considerable responsibility for that.
The TAPAC report sets forth in detail the ever- changing descriptions by DARPA of precisely what TIA would do. The May 20, 2003 DARPA report to Congress, submitted well after the explosion of public controversy about TIA and in direct response to the inclusion of the Wyden Amendment in the Consolidated Appropriations Resolution that became law on February 24, 2003, is illustrative. Its description of TIA’s re- search and development efforts as “seek[ing] to integrate technologies developed by DARPA . . . into a series of increasingly powerful configura- tions that can be stress-tested in operationally relevant environments using real-time feedbacks to refine concepts of operation and perform- ance requirements down to the technology com- ponent level” is simply not comprehensible.273 Its description of “How TIA Would Work” is limited to a recitation of the creation of Red
and Blue teams, the first of which would “imag- ine the types of terrorist attacks that might be carried out against the United States at home or abroad” and the second of which would seek to combat those imagined attacks.274 That was, to be sure, one thing TIA would do but surely not the only one. It was affirmatively misleading to suggest that this and this alone was how TIA would work.
We do know this about TIA: it would make available to government employees vast amounts of personal information about American citizens who are not suspected of any criminal conduct. While all the information obtained would, we are told, have been lawfully gathered from govern- ment and private sources, that does not begin to assuage the justifiable concern that Big Brother could become far more than a literary reference. Mr. Coleman observes more than once that he has “confidence in the present leadership of the Defense Department and of the Nation.”275 But the Bill of Rights is rooted in distrust of govern- ment and the judgment that government must be limited in its powers to assure that the public retains its liberties. That the “American public,” as Mr. Coleman puts it, “does not like officious intermeddlers” is not the problem;276 that the government may abuse its vast array of powers is. It is no criticism of this or any particular Administration to say that the more informa- tion the government amasses about each of us, the more we are at risk.
The proposals of TAPAC seek to minimize those risks while still permitting the government to go about its critical task of protecting our people. One of the most important proposals the committee makes is to urge the Secretary of Defense to recommend to the President and the Congress to involve the judiciary in the process of determining when and to what extent data mining activities can be engaged in by the government.
Mr. Coleman offers hypothetical examples of situations in which he maintains that the government should be able to seek to prevent potential acts of terrorism by reviewing airline passenger lists made available to it. The TAPAC report makes plain that it is urging no changes in law or practice with respect to the very situa- tions posited by Mr. Coleman. In addition, it is worth noting that in truly exigent circumstances, no application need be made to the FISA court in advance—just as no application need be made for a search warrant in those rare circumstances in which public safety requires the promptest government action.277
The rule, however, should not be confused with the exception. Just as a general warrant is ana- thema to our civil liberties, so would be unlimited
recourse by the government to all the “public” information that is now so promiscuously avail- able about all of us.
In offering these views, I do not mean to mini- mize to the slightest degree the dangers we face as a nation that Mr. Coleman correctly identifies. Nor do I maintain that privacy claims must routinely trump efforts to protect our national security. But privacy matters, far more than Mr. Coleman appears willing to acknowledge. The TAPAC report offers an approach which accommodates privacy interests while not stifl- ing the use of new technology to prevent acts of terrorism. American law and American values require no less.