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Fighting Terrorism While Protecting Liberty

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“The expiration this year of several provisions of the 2001 USA PATRIOT Act…has prompted fresh debate in Congress over the appropriate balance of counterterrorism authorities for U.S. law enforcement agencies and the need to preserve American civil liberties and privacy,” said Rudy deLeon, Senior Vice President for National Security and International Policy at a Center for American Progress Action Fund event last Tuesday.

In light of the PATRIOT Act debate the Action Fund hosted a discussion with Representative Jane Harman (D-CA) and Ken Gude, Associate Director of CAP Action’s International Rights and Responsibility program, about how the government could ensure national security without compromising civil liberties.

Controversial items in the PATRIOT Act up for debate this year include the ease of access to business records, roving wire tapping provisions applicable to today’s digital technology, and surveillance of individual or “lone wolf” suspects who are unconnected to any terrorist organization. The panelists discussed the effectiveness of these provisions and whether they violated an individual’s right to privacy.

Rep. Harman has served as a member of the House Intelligence Committee for eight years and is currently chair of the Homeland Security Subcommittee on Intelligence and Terrorism Risk Assessment. She explained that a strong national security system could not come at the expense of civil liberties. “Security and liberty are reinforcing values…it’s not more of one and less at the other—it’s more of both or less of both.”

Rep. Harman lauded the Obama administration for its national security policies, but she said further steps are necessary. She praised President Barack Obama’s commitment to closing Guantanamo Bay detention camp, too, and his limiting the overclassification of material by the Homeland Security department. But she called for more debates over State Secrets Privilege—a legal precedent under which a court is asked to omit evidence based on government affidavit stating that court proceedings might release information that could jeopardize national security.

Harman commended the current House version of PATRIOT Act revisions because it would prohibit a person’s reading habits from being used as evidence of terrorist activity or intent.The bill would also change the target of a roving wiretap to a single individual rather than a single phone. Rep. Harman pointed out that the current rules are incongruent with new technology that allows a person to use disposable cell phones. New technology has made the need for a court order on every tapped phone inefficient.

Gude supported the expiration of the Lone Wolf Provision, which allows Foreign Intelligence Surveillance Act investigations of lone terrorists that are not connected to a specific organization. He explained that FISA was created to monitor people connected to foreign powers or terrorist groups and therefore the threshold for obtaining a surveillance warrant was lower. He and Rep. Harman agreed that the Lone Wolf Provision leaves individuals vulnerable to a violation of privacy by the government.

Gude explained that his objection to the Lone Wolf Provision isn’t that the government should be prohibited from conducting surveillance on individuals. However, he thought traditional criminal wiretaps were more appropriate when no evidence links the person to a foreign terrorist group.

Harman said that now “we have the opportunity to debate new rules in a new environment” since after 9/11, legislators did not take time to “get [counterterrorism] laws right.” She spoke about to the “authorization to use military force” on groups connected to 9/11 that “gave the president the right to act unilaterally.” She called for a new balance of power between branches of government regarding national security issues, and said that the laws after 9/11 gave the president too much power to make counterterrorism decisions without congressional or public debate.

In the spirit of checks and balances, Gude said there was hope for bipartisan consensus on counterterrorism reforms. “On an issue like this there is probably more room for bipartisan commitment than on almost any other issue on the Hill right now,” he said. Gude and Rep. Harman recognized a need for robust debate and strong cooperation on national security reform. Rep. Harman noted that “the terrorists are not going to check our party registration before they blow us up, so we really better be in this together.”

For more on this event please see its events page.

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