Chairman Hatch,
Ranking Member Leahy, and distinguished committee members, I thank you for your invitation to testify today and vigorously
applaud your continued attention to these matters. I believe strongly that the current post-9/11 debate over civil
liberties is the most important issue faced by America in a generation. From our earliest days as a republic, the
tension between security and freedom has been ever-present. It rarely, however, has been as intense as it is now.
My name is Bob Barr. Until
January of last year, I was the Republican United States Congressman from the Seventh District of Georgia. Prior
to that, I was appointed by President Reagan to serve as the United States Attorney for the Northern District of Georgia,
and worked as an official with the Central Intelligence Agency. I have also served as an attorney in private
practice. Currently again a practicing attorney, I also now occupy the 21st Century Liberties Chair for Privacy and Freedom
at the American Conservative Union, and consult on privacy matters for the American Civil Liberties Union. I appear
before you today as a conservative, as a former law enforcement and national security official, and as a citizen concerned
with unfortunate erosions of personal liberty that have occurred in the aftermath of 9/11.
We are now three years out
from those tragic attacks and the catch phrase of the day continues to be: “9/11 changed everything.” But,
did it? Certainly, it has had significant repercussions for the economy, politics, national defense, domestic security
operations, and even our general culture. But it should not change the way in which we, as Americans, want to be
governed. And it certainly should not be allowed to amend our Bill of Rights. Though the 9/11 attacks
may have made us more fearful of terrorism and more aware of the threats facing us from beyond our shores, they have not created
any public or congressional support for changes to the basic institutions of our democratic government, such as the separation
of powers or the mutually reinforcing checks and balances that protect against government abuses. I urge you to
take this into account when considering the Security and Freedom Ensured Act (“SAFE” Act). It takes
measured steps to constrain the excessive executive branch investigative and surveillance power authorized in 2001’s
USA Patriot Act (the “Uniting and Strengthening America by Providing Appropriate Tools Required to Interdict and Obstruct
Terrorism Act, also known simply as the “Patriot Act”).
Before going into detail
on the specific provisions of the SAFE Act, it is crucial to note an important recommendation in the 9/11 Commission Report. On
page 394 and 395, the commissioners included this finding: “The burden of proof for retaining a particular governmental
power should be on the executive, to explain a) that the power actually materially enhances security and b) that there is
adequate supervision of the executive’s use of the powers to ensure protection of civil liberties. If the
power is granted, there must be adequate guidelines and oversight to properly confine its use.” The commission’s
recommendation refers primarily to the Patriot Act, which, because of the speed with which it was passed and the atmosphere
surrounding its consideration, contained several unnecessary and potentially abusive expansions of government law enforcement
or intelligence-gathering authority. Accordingly, the commission also supported further congressional debate on
the Patriot Act, and – importantly -- said nothing about removing the sunsets in the law, a position that bolsters the
arguments of those seeking to enact the SAFE Act.
The 9/11 Commission, which
recommended some of the most sweeping expansions of the federal government since the end of World War II, included this particular
recommendation because of its agreement with the argument above: that 9/11 did not really change core American values, especially
the basic constitutional strictures that shape our government. The Commission expressly realized that its suggestions
for a radically expanded domestic surveillance infrastructure, and the consolidation of managerial and operational authority
over that infrastructure, require concomitant safeguards. One of these key safeguards is ensuring the executive
has to explain itself before it asks for or is granted more power. Another is to reform and increase
congressional oversight. I believe the SAFE Act is a key component of these renewed safeguards.
Before continuing, it is
important to note that I voted for the Patriot Act and continue to support portions of it. I did so for three main
reasons. First, much of the Patriot Act is largely non-controversial and simply updates existing laws to reflect
the new challenges of 21st century technology. Second, I took the administration at its word when
it suggested the more wide-ranging powers in the law would be used exclusively for counter-terrorism, and were only necessary
given the extraordinary threat Al Qaeda and like groups represent. Third, I believed that the administration would
respect our inclusion of sunset provisions in the bill to force Congress to look anew at these measures with its nerves a
little less frayed. Instead, however, the Bush administration has freely used the Patriot Act in cases
unrelated to terrorism, and has vigorously campaigned to have the sunset provisions removed, which would make the
entire Patriot Act a permanent fixture of our legal landscape.
Consequently, I believe, as do Senators Larry Craig, Richard Durbin, and committee members Edward Kennedy, Arlen Specter
and Russell Feingold, that some refinement of the Patriot Act is necessary. They have proposed the SAFE Act, which
I think is an excellent first step in any move to rein in the Patriot Act. It amends certain Patriot Act provisions
to add safeguards against abuse, such as some judicial review, and expands the sunset provisions to include other problematic
sections that escaped notice in the original bill.
Read more
