Testimony of
Kate Martin, Director
Center for National Security Studies
For the United States Senate
Committee on the Judiciary
“Securing America's Safety:
Improving the Effectiveness of Anti-Terrorism Tools and
Inter-Agency Communication”
January 20, 2010
Chairman Leahy, Ranking Member Sessions, and Members of the Committee,
thank you for the opportunity to submit this testimony as part of the record for your
hearing on “Securing America's Safety: Improving the Effectiveness of Anti-Terrorism
Tools and Inter-Agency Communication.” We appreciate the Committee’s careful
review and consideration of these issues and the opportunity to offer our views for the
Committee’s consideration.
The Center is the only non-profit organization whose core mission is to prevent
claims of national security from being used to erode civil liberties, human rights, or
constitutional procedures. The Center works to preserve basic due process rights, protect
the right of political dissent, prevent illegal government surveillance, strengthen the
public’s right of access to government information, combat excessive government
secrecy, and assure effective oversight of intelligence agencies. It works to develop a
consensus on policies that fulfill national security responsibilities in ways that do not
interfere with civil liberties or constitutional government.
I would like to first offer a few observations as a twenty-year student of the
intelligence community regarding the terrible events of the past months, including the
shooting at Fort Hood and the attempted destruction of the Detroit–bound plane and
murder of its passengers. It is a truism, but bears keeping in mind, that obtaining good
intelligence, i.e. information that is reliable enough to be acted upon, is very difficult and
can entail great risk. There is no more terrible reminder of this than the killings in Khost
of U.S. intelligence officers by an individual mistakenly believed to be trustworthy.
Accordingly, the recent articulation and understanding by those in the government
that intelligence alone cannot be the mainstay of the effort to defeat al Qaeda is welcome.
Defeating al Qaeda and protecting people from their murderous attacks requires a broader
strategy than one which, relying on intelligence, aims simply to capture or kill all
terrorists without addressing the conditions that allow them to operate. Instead, the
security consensus now recognizes that a much more comprehensive approach is needed,
one which will also work to drain support for terrorist groups and dissuade young men
from becoming suicide bombers. As explained by the President’s advisor for
counterterrorism, John Brennan, the administration has determined to:
integrat[e] every element of American power to ensure that … “upstream” factors
discourage rather than encourage violent extremism. After all, the most effective
long-term strategy for safeguarding the American people is one that promotes a
future where a young man or woman never even considers joining an extremist
group in the first place; where they reject out of hand the idea of picking up that
gun or strapping on that suicide vest; where they have faith in the political process
and confidence in the rule of law; where they realize that they can build, not
simply destroy—and that the United States is a real partner in opportunity,
prosperity, dignity, and peace. That is why President Obama is committed to
using every element of our national power to address the underlying causes and
conditions that fuel so many national security threats, including violent
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extremism. We will take a multidimensional, multi-departmental, multi-national
approach.1
I want to note that one element of such a comprehensive approach was evident in the
President’s measured response to the Christmas day attack, which was not the fearful
reaction that al Qaeda, like all terrorists, must have been hoping for.
This larger context is essential for looking at the questions being considered by
the Committee today and in the future: whether the shooting at Fort Hood could have
been prevented; what additional measures could have been taken to prevent the Christmas
day attack; and whether it is realistic to expect that such attacks can be successfully
defeated one hundred percent of the time.
In answering these questions, lessons drawn by military commanders in the
counterinsurgency context are useful. Just as U.S. commanders in Afghanistan recognize
that decisions about the use of force there must consider the collateral long-term
consequences for U.S. strategic objectives beyond the immediate military objectives, so
should decisions about the uses of secret intelligence methods consider more than simply
their short-term efficacy in identifying and stopping a terrorist. Disabling individual
terrorists is obviously extremely important. At the same time, recent history has
demonstrated the importance of also considering the longer-term effect of using specific
intelligence methods on the strategic goals of defeating the terrorist narrative and
stopping terrorist attacks; preserving our constitutional government; and building a more
democratic, peaceful and just world.
The recent calls for “racial profiling” of all young Muslim men, for secret
imprisonment and interrogation of the Christmas Day plotter, or for more surveillance
authorities to collect information on Americans all ignore both the specific security gaps
disclosed by these incidents and the larger context of what is necessary to defeat al
Qaeda. For example, the calls to extend the “lone wolf” authorities for secret wiretaps on
non-U.S. persons to citizens and other U.S. persons ignore both constitutional
requirements and the facts. If there had been probable cause to obtain a secret
intelligence warrant to wiretap the Ft. Hood shooter under the “lone wolf” standard, it is
extremely likely that there was probable cause to obtain a criminal warrant to wiretap
him. Indeed, it appears that the intelligence community was in fact not only aware of his
communications with an extremist cleric in Yemen, they may well have been listening to
them. It is not clear, however, that the community was tracking his gun purchases, a
potentially more fruitful kind of surveillance. The calls for racial profiling and
resurrection of the discredited practice of secretly imprisoning and interrogating suspects
– an effort perhaps to defend and justify past practices – overlook the general consensus
among security, military and intelligence experts that such practices overall harmed
rather than strengthened U.S. national security. Those practices strained relationships
1
Brennan, John. Remarks as prepared for delivery "A New Approach to Safeguarding Americans" at the
Center for Strategic and International Studies, August 6, 2009. Available at:
http://www.whitehouse.gov/the_press_office/Remarks-by-John-Brennan-at-the-Center-for-Strategic-andInternational-Studies/.
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with necessary partners around the world and supplied fodder to the terrorists’ false
narrative about the United States used to recruit an unending stream of fighters and
potential suicide bombers.
Instead the administration and this committee are more usefully focused on the
intelligence community’s failure to “connect the dots” about the Christmas bomber,
despite having adequate raw intelligence about the plot.2 In doing so, it is crucial to
recognize that the volume of information coming into the U.S. government intelligence
agencies either passively through volunteers like the father or through active collection –
for example by the electronic surveillance programs run by the National Security Agency
or the FBI’s use of national security letter and other authorities – makes it extremely
difficult to correlate items of information and produce actionable intelligence analysis.
As John Brennan has stated:
All the information was shared. Except that there are millions upon millions of
bits of data that come in on a regular basis. What we need to do is make sure the
system is robust enough that we can bring that information to the surface that
really is a threat concern.3
Conservative commentator George Will agreed:
When you have millions of dots, you cannot define as systemic failure—
catastrophic failure—anything short of perfection. Our various intelligence
agencies suggest 1,600 names a day to be put on the terrorist watch list. He is a
known extremist, as the president said. There are millions of them out there. We
can’t have perfection here.4
Those of us worried about the lack of civil liberties safeguards in the recent
changes to surveillance laws have long urged Congress to focus on these issues, rather
than simply increasing collection authorities and mandating sharing. Several years ago,
in the context of consideration of reauthorization and amendment of surveillance
provisions, I wrote that while effective counterterrorism requires that agencies share
relevant information, simply mandating sharing fails to address the real difficulties in
such sharing. These include: “How to determine what information is useful for
counterterrorism; how to determine what information would be useful if shared; how to
identify whom it would be useful to share it with; and how to ensure that useful and
relevant information is timely recognized and acted upon.”5 While the legislative
focus and much of the administration’s public commentary in the past eight years may be
2
See Summary of the White House Review of the December 25, 2009 Attempted Terrorist Attack.
Available at: www.whitehouse.gov.
3
Interview with Terry Moran on ABC’s “This Week,” January 3, 2010. Available at:
http://abcnews.go.com/ThisWeek/week-transcript-john-brennan-reps-hoekstra-harmansens/story?id=9467566.
4
Id.
5
See Kate Martin writing in 2005 on sections 203 and 905 on Patriot debates.com, for one instance of this
analysis. Available at: http://www.abanet.org/natsecurity/patriotdebates/section-203.
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summarized as share everything with everyone, that articulation is likely to have
obscured and thus increased the difficulties in the real challenges of information sharing.
Much of the recent press commentary is still focused on whether particular
individuals had access to or responsibility for the various bits of information relevant in
hind sight to the Christmas day plot and failed to put them together. It appears, however,
that the government is now addressing this more difficult question, by aiming to increase
government capacity to electronically collate and analyze intelligence bits of information
to determine what is in fact significant enough to require attention by a human analyst to
determine if the information should be acted on.6 (e.g., the DNI is to “accelerate
information technology enhancements, to include knowledge discovery, database
inteegration, cross-database searches, and the ability to correlate biographic information
with terrorism-related intelligence.”)
Such an approach may well necessary to identify and prevent future terrorist plots
and could also be useful for other intelligence tasks, such as cybersecurity efforts. At the
same time, such automated analysis, frequently called data mining, raises significant
constitutional and privacy concerns. Building such capacities pose challenges to civil
liberties that go far beyond the risks of individual wrongdoing and misuse of personal
information, such as identity theft or illegal uses of personal information by government
officials. Rather, they pose challenges to the balance of power between the government
and the citizens. As Senator Sam Ervin explained in 1974:
[D]espite our reverence for the constitutional principles of limited Government
and freedom of the individual, Government is in danger of tilting the scales
against those concepts by means of its information gathering tactics and its
technical capacity to store and distribute information. When this quite natural
tendency of Government to acquire and keep and share information about citizens
is enhanced by computer technology and when it is subjected to the unrestrained
motives of countless political administrators, the resulting threat to individual
privacy makes it necessary for Congress to reaffirm the principle of limited,
responsive Government on behalf of freedom.
Each time we give up a bit of information about ourselves to the Government, we
give up some of our freedom: the more the Government or any institution knows
about us, the more power it has over us. When the Government knows all of our
secrets, we stand naked before official power. Stripped of our privacy, we lose our
rights and privileges. The Bill of Rights then becomes just so many words.7
Senator Ervin’s fears become even more relevant as the government develops
automated electronic intelligence capabilities to mine the vast amounts of information
6
See Presidential Memorandum Regarding 12/25/2009 Attempted Terrorist Attack, January 7, 2010.
Available at: http://www.whitehouse.gov/sites/default/files/potus_directive_corrective_actions_1-7-10.pdf.
7
Senator Ervin, June 11, 1974, reprinted in COMMITTEE ON GOVERNMENT OPERATIONS, UNITED STATES
SENATE AND THE COMMITTEE ON GOVERNMENT OPERATIONS, HOUSE OF REPRESENTATIVES, LEGISLATIVE
HISTORY OF THE PRIVACY ACT OF 1974 S.3418, at 157 (Public Law 93-579)(Sept. 1976).
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electronically collected and stored on individuals. Accordingly, in order to best protect
our constitutional framework and meet national security threats, including terrorism, we
recommend the following guidelines be implemented in adopting or upgrading such
capabilities.



Any consideration of such initiatives should include specific identification and
consideration of alternative solutions to meet the security objectives. Policymakers should direct a preference for the solution which is most protective of
civil liberties and most transparent consistent with appropriate risk-management
objectives;
The Privacy and Civil Liberties Oversight Board should be stood up and provided
the wherewithal to review and contribute to such an approach; and
Any such initiatives should include a comprehensive review of existing legal
protections for Americans’ personally identifiable information, especially private
communications, with the objective of identifying and adopting greater
protections while still meeting security needs.
An in depth discussion of how to do this is beyond the scope of this hearing. But I want
to take this opportunity to outline a general approach that has the potential for increasing
both the analytical capabilities of the government and privacy protections for Americans.
In building automated analysis/data-mining capabilities that could be used on Americans’
personally identifiable information, the government should be directed to consider the
feasibility of requiring such capability to use anonymized data. Such an approach would
require technological anonymization of personally identifiable information accessible to
the government on networks. Doing so would permit the adoption of safeguards,
including judicial oversight, when such analysis generates the identities of Americans as
suspects. Judicial approval could be required before the data could be deanonymized in
order to identify specific Americans as suspects.
For example, when the government has access to streams of network data
containing personally identifiable information on citizens and persons inside the United
States, the network could be required to carry such data in a way that personal identifiers
may be electronically and automatically separated from the rest of the data, in effect
anonymizing the stream of data. While the government would be entitled to access such
anonymized transactional (non-content) data without a warrant and to analyze such data,
it would then be required to make a showing to a court in order to pierce the anonymity
and obtain the personal identifiers of Americans associated with the transactional data.
For example, the government could be authorized to access the personal identifiers for
such data only if it met statutorily mandated standards, e.g., a judicial warrant based on
probable cause.
Finally, the President’s direction to his Intelligence Advisory Board “to look at
broader analytic and intelligence issues associated with this incident, including how to
meet the challenge associated with exploiting the ever-increasing volume of information
available to the Intelligence Community” should be implemented in a manner such that:
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

There is public/congressional knowledge of and input concerning the use of such
technologies to analyze and flag information about Americans; and
There is a commitment to build in more privacy protections in the technical
design of software/hardware capabilities and in the legal authorities for such
systems.
These are obviously difficult, large and complex undertakings, important both to
the efforts to protect Americans from terrorist attacks and to preserve our constitutional
framework. I thank the Committee for providing me the opportunity to participate in this
important work.
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