11 April 2000
From: "Alexander, Brad" <Brad.Alexander@mail.house.gov>
Subject: Barr on NSA Legal Authority
Date: Tue, 11 Apr 2000 19:13:27 -0400
Below are Rep. Barr's prepared remarks for tomorrow's HPSCI hearing on NSA legal authorities. Please consider them embargoed until delivered, which should occur around noon.
-- Brad Alexander, 225-2931
The House Permanent Select Committee on Intelligence
April 12, 2000
[embargoed until delivered]
Mr. Chairman, members of the Committee, I thank you for holding this hearing today. Our Foreign Intelligence Surveillance laws were last updated in the 1970s. When these laws were written, Jimmy Carter was President of the United States, Leonid Brezhnev was President of the Soviet Union, and John Paul II was just named Pope.
In the late 1970s, the Dow Jones Average had yet to break 2000, and the Internet was little more than a gleam in the eyes of researchers at the Defense Advanced Research Projects Agency. In light of the tremendous technological advances that have occurred since then, it is long past time to examine these statutes.
Although our laws governing domestic wiretaps remain at times complex and difficult to enforce, they have at least been updated, with the Electronic Communications Privacy Act in the 1980s and the Communications Assistance to Law Enforcement Act in the 1990s. Unfortunately, even rudimentary updates of corresponding laws governing foreign intelligence surveillance have not taken place during the same period.
It is difficult, if not impossible, to argue that laws written in the 1970s are adequate for today's intelligence challenges. In the 1970s, America was engaged in a deadly Cold War of tremendous consequences with a rival superpower. Today, the challenges our intelligence agencies face are much more diverse, encompassing threats such as international crime, terrorism, and nuclear proliferation.
In the 1970s, drawing the line between domestic and international intercept activities was relatively easy. Today, technologies such as new generation telecommunications satellites and the Internet, are rapidly blurring the borders that traditionally delineated the gathering of foreign intelligence from domestic law enforcement evidence-gathering tools. New technologies, such as digital telephony, fiber optics, and encryption are forcing intelligence agencies to revise their sources and methods at a more rapid rate than ever before.
The upshot of all this change is that we have an environment in which the ground rules are increasingly unclear. On the one hand, the Intelligence Community is reevaluating interception techniques and revising legal standards to fit situations that were not even imagined at the time FISA was drafted. On the other hand, American citizens are left with precious little understanding about how legal standards written in the 1970s are protecting their privacy today, three decades later. Our citizens are left with a feeling of unease that is unhealthy both to our Intelligence Community as well as to citizens themselves.
While Americans remain solidly in support of a strong foreign intelligence gathering capability, they are not willing to do so at the expense of their domestic civil liberties. Any blurring of the heretofore bright line between gathering of true, foreign intelligence, and surreptitious gathering of evidence of criminal wrongdoing by our citizens, must be brought into sharp focus, and eliminated. Failure to take the steps to do so will erode the public confidence in our intelligence agencies that is a hallmark of their success. Failure to take steps to do so is a serious breach of our public duty to ensure the Bill of Rights is respected even as our nation defends itself against foreign adversaries and enemies.
The importance of effective foreign intelligence gathering, and of constitutional domestic law enforcement -- both of which must respect U.S. citizens' right to privacy -- demands more than stock answers and boiler plate explanations. What is required is a thorough and sifting examination of authorities, jurisdiction, actions, and remedies. This is especially true, given that an entire generation has come and gone since the last time such important steps were taken.
As Intelligence Community violations of civil liberties during the Nixon Administration showed, abuse can happen in an instant, and continue for some time, without strong statutory fire walls in place. Therefore, I would encourage the Intelligence Community to join our effort to help improve these fire walls. It is certainly reassuring to have confidence in the integrity of particular people serving in intelligence at a particular time. However, it is much more important to have confidence in enduring legal protections that reflect changing technological and political realities.
We still have more questions than answers regarding the substance of allegations about such NSA activities as Project Echelon, and such matters as the Intelligence Community's interest in domestic wiretapping activities undertaken pursuant to such statutes as CALEA. The hearing you are holding today, Mr. Chairman, is the first step in the important process of answering these questions.
The substance of today's hearing, focusing on NSA's authorities, is an essential foundation for coming hearings in the Government Reform Committee, under the leadership of your colleague, Dan Burton; hearings that will focus on NSA activities, undertaken pursuant to those authorities. Again, Mr. Chairman, thank you for holding this hearing, and for allowing me to address this distinguished committee.