Testimony of Jerry Berman

Executive Director

Center for Democracy & Technology

before the

Senate Judiciary Committee

Subcommittee on Constitution, Federalism, and Property Rights

on

Protecting Constitutional Freedoms in the Face of Terrorism

October 3, 2001

Summary

Thank you for the opportunity to testify at this hearing on the momentous

question of improving our nation's defenses against terrorism in a manner

consistent with our fundamental Constitutional liberties.

CDT joins the nation in grief and anger over the devastating loss of life

resulting from the September 11 terrorist hijackings and attacks against the

World Trade Center and the Pentagon. Like many, our relatively small staff

had friends and acquaintances killed in those heinous acts. We strongly

support the efforts of our government to hold accountable those who direct

and support such atrocities.

We know from history, however, that measures hastily undertaken in times of

peril - particularly measures that weaken controls on government exercise of

coercive or intrusive powers - often infringe civil liberties without

enhancing security. For that reason, we harbor serious reservations about

several bills currently under discussion in this Subcommittee and elsewhere

on Capitol Hill. In particular, we are deeply concerned about the

Administration's proposed "Anti-Terrorism Act of 2001" (ATA). A

recently-circulated alternate package, the Sensenbrenner-Conyers "Provide

Appropriate Tools Required to Intercept and Obstruct Terrorism (PATRIOT)

Act," removes or changes a very few concerns in ATA, but retains most of the

provisions damaging to civil liberties. The concerns we raise in this

testimony, unless otherwise noted, apply equally to both bills.

We are deeply concerned about the impact of these bills on constitutional

liberties, most particularly in two areas.

First, the ATA and PATRIOT Act tear down the "wall" between the government's

authority to conduct counter-intelligence surveillance against foreign

powers and terrorist groups, and its authority to conduct criminal

investigations of Americans. In the post-Watergate era, Congress carefully

constrained the government from inappropriately mixing its foreign

intelligence and law enforcement capabilities, since such mixing would

greatly infringe Americans' constitutional freedoms. The current bills

eviscerate that division. Both would change the "primary purpose" standard

that permits exceptional surveillance but only when counter-intelligence is

"the" primary purpose of an investigation. Instead, the bills would make

these extraordinary powers open to all investigations in which

counter-intelligence is "a" (or, in the PATRIOT Act, "a significant")

purpose (Sec. 153). As a result, they would permit law enforcement to use





























































































































































































































































































































































































































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