March 13, 2006 (202) 226-7286

The Fog of Law: The Need for a Legal Framework for 21st Century Security Policy

Speech to the Council on Foreign Relations
Congresswoman Jane Harman
March 13, 2006

It's wonderful to be here with friends.

There are a lot of smart people in this town, but Richard Haas stands out. Some of us wondered whether Richard could improve on Les Gelb's marvelous work here. But I'm sure Les agrees that Richard is doing a wonderful job. There has never been a greater need for clear-headed, serious foreign policy thinking. That's what CFR provides every single day.

I've devoted many years in Congress to security issues - how to identify, disrupt, and defend against threats to our country. I was a member of one of three major Commissions, the Bremer Commission, that predicted a major terrorist attack on U.S. soil. And I have probably served on more "security" committees in the House than anyone presently serving.

9/11 was a failure on multiple levels. First, we missed the rise of a new form of radical political Islam. I count the first major act of "modern" radical political Islam as the overthrow of Shah in Iran and the taking of American hostages over 25 years ago.

Second, we failed to predict that the Cold War would end in 1989 and that we would be left standing as the world's only superpower. We had no roadmap for the post-Cold War world and, I believe, we have yet to agree on one.

Third, we failed to see that warfare itself would change radically - that we would no longer face off against other states in traditional force-on-force battles … but rather, that we could be facing an asymmetric threat, from organizations and individuals motivated by radical Islamic ideology.

Fourth, for 15 years after the Wall came down, we continued with an intelligence community designed to confront the Soviet bear.

Back then, the enemy's targets - think, a Soviet tank column - were very easy to find but very hard to stop.

Today, it's exactly opposite. It will take a very small amount of force to put Bin Ladin out of business, but it has taken years … and billions of dollars … and many, many lives … just to locate him, and we have yet to capture him.

Think about a terrorist, moving quietly across borders, blending in with the population, switching identities, using different email accounts, switching cell phones, smuggling some nuclear material into New York Harbor in one of the millions of containers that go un-inspected every year.

For all of the talk about "smart" weapons, the smartest weapon we have is the intelligence professional - the person who is going to find that terrorist. In today's world, intelligence is the key to protecting our country.

We have reorganized our intelligence structure, an effort in which I played a role. But four years after 9/11, we still don't have a legal framework for how to gather this intelligence.

By legal framework, I mean a set of clear laws - established by the Legislative Branch - that delineate what the government can and cannot do in fighting terrorism.

We have seen this movie before.

In 1975, Congress began to investigate allegations that the NSA was spying on the international communications of American citizens. Members of Congress tried to talk to NSA officials, but they were stonewalled … told that the information was "too sensitive" to share. Does this sound familiar?

Then, on August 8, 1975, the New York Times used leaked information in a front-page article entitled, "National Security Agency Reported Eavesdropping on Most Private Cables."

The leak broke the logjam. What Congress ultimately learned was that since the 1950s, the NSA had operated a secret program, code-named SHAMROCK that intercepted every telegram coming into and out of New York. Every day, a courier would take a train from NSA headquarters in Maryland to New York City, where he would collect reels of magnetic tape from the three major telegraph companies containing copies of every international telegram sent into and out of New York the preceding day.

SHAMROCK was soon shut down, and Congress vowed stronger oversight. In 1976, the Senate established the Senate Intelligence Committee, followed in 1977 by the creation of the House Intelligence Committee.

The role of these Committees is to ensure that U.S. intelligence activities operate within the law, the Constitution, and the policy parameters approved by Congress. Because our oversight necessarily occurs behind closed doors, without public scrutiny, it must be all-the-more rigorous.

Just like 30 years ago, Congress must create a legislative and oversight framework around the new threats because without this framework, the actions of our government are slowly becoming pulled off of their Constitutional moorings.

This President and especially this Vice President have asserted such an expansive view of Executive Power that Congress has been almost entirely squeezed out.

Presidential power always expands in war-time. But under this President, war-time is all-the-time. Consider the following:

1. Shortly after 9/11, the White House redefined torture. In a now-famous memo, DOJ lawyers defined torture as "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death."
2. To keep war captures out of reach of American courts, the U.S. military sent them to Guantanamo Bay, Cuba, giving them no legal status or the ability to challenge that status.
3. The Administration claimed the power to detain U.S. citizens indefinitely - including Yasser Hamdi and Jose Padilla - without charges or access to counsel.
4. The Attorney General told the Senate Judiciary Committee that the U.S. was not bound by its international treaty obligation to prevent cruel, inhuman, and degrading treatment for persons we hold abroad.
5. And a foreign intelligence collection program was designed by NSA with scant regard for the need to comply fully with the Foreign Intelligence Surveillance Act (FISA).

In each of these cases, when you ask senior Administration officials - as I have - what the legal justification for these activities is, their answer is always the same: the President has all the authority he needs under Article II of the Constitution. Forgotten is that Article I comes before Article II.

Previously clear lines - like no torture … no detention without a legal status … no warrantless surveillance on U.S. persons - have become dotted lines.

Under this theory of Executive Power, there are no limits to the President's power. Any effort by Congress to legislate is deemed unnecessary. And if you try to limit unfettered executive authority, Bill Frist will say you're coddling terrorists, and the White House will question your patriotism.

This is not just an academic discussion. I care deeply about catching bad guys. The lack of clear rules makes it harder, because intelligence professionals are unsure how to operate.

Consider the case of Anthony Lagouranis, an Army interrogator assigned to Abu Ghraib. In an op-ed in the New York Times last month, he wrote:

"In training, we learned that all P.O.W.'s are protected against actual and implied threats . . . That was clear. But our Iraqi prisoners weren't clearly classified as P.O.W.'s, so I never knew what laws applied."

It's an atmosphere that I have called the "fog of law." Everyone here knows about the "fog of war" - when soldiers on the battlefield cannot see the context in which they are operating, and their confusion limits their effectiveness.

The "fog of law" is equally dangerous. Nobody knows what is appropriate. Nobody knows what is lawful.

Intelligence professionals don't know the limits of what they can do. Congress doesn't fully know what the Executive Branch is doing. The Courts are cut out. The public is in the dark. The rule of law is slowly eroded.

The "torture" issue is instructive for the way the Executive Branch should not handle these issues.

Attorney General Gonzales took the position that the Administration was not bound by any prohibition on cruel, inhuman, and degrading treatment because, according to him, foreigners whom we held abroad were not entitled to any Constitutional protections.

This essentially meant that if you were outside the U.S. the U.S. could do things to you that it couldn't you were brought to a U.S. facility.

I disagree that the President has the authority to decide this unilaterally. Article I, Section 8 says that Congress has the responsibility to establish "rules concerning Captures on Land and Water."

But as I know the immense value of the intelligence we get from interrogations, I made an effort to work with the Administration to find a better solution.

To be fair, the Administration was conflicted. The State Department, and some lawyers in DOD and Justice agreed with my approach. But the Vice President's view that nothing could interfere with the President's "inherent" authority prevailed.

The Administration stonewalled Congress, until Congress pushed back. Senator McCain - with enormous moral credibility on this issue - forced the Administration to accept a complete ban on cruel, inhuman, and degrading treatment. Because the Administration refused to engage, there was no way to craft a nuanced solution. I joined with McCain in calling for the total ban. It was the best option we had, but it was an imperfect option.

Similarly, on the issue of Guantanamo, Senators Lindsay Graham and Carl Levin drafted legislation that allowed inmates at Guantanamo limited access to U.S. Courts of Appeal. Their intent was good, but their amendment was rushed through Congress with too little consideration. And it fell way short of what is needed.

But the story doesn't end there.

The President issued a "signing statement" for the McCain Amendment in which he said he would interpret the law "consistent the Constitutional authority of the President … as Commander-in-Chief."

To many, this means he will disregard Congress - and a law he just signed.

Nowhere has the fog of law been thicker than on the NSA Program that the President disclosed on December 17, 2005.

Congress enacted the Foreign Intelligence Surveillance Act (FISA) in 1978. The law establishes two pillars of oversight for electronic surveillance in the U.S.

Pillar 1 requires court warrants before targeting U.S. persons for surveillance. Pillar 2 requires detailed and regular reporting to the Congressional Intelligence Committees about such surveillance.

FISA is the exclusive way to conduct foreign intelligence electronic surveillance in the United States.

While working in the Carter White House, I recall the lengthy, serious discussions on both ends of Pennsylvania Avenue about FISA. The White House coordinated closely with Congress, and the Intelligence Committees were given the task of methodically reviewing the activities of the NSA and the FBI.

There was bipartisan support for the bill. Edward Levi, who had served as President Ford's Attorney General, testified in favor of the legislation.

A fair, bipartisan process produced a fair, bipartisan bill.

But today is a different story.

As of today, the President still refuses to authorize a briefing for the full Intelligence Committee on all operational details of his NSA program.

I'm told that nearly 1,000 Executive Branch officials have been briefed, and I assume that one or more of those officials was responsible for the leak to the New York Times. Yet, 20 Members of the House Intelligence Committee, all of whom deal with highly classified secrets every day, cannot be trusted to keep a secret.

This conflict between the Executive and the Legislature is not new. In 1952, President Truman wanted to nationalize the nation's steel mills for "national security" reasons, but there was clear Congressional action preventing him from doing so.

The Supreme Court stepped in. Writing the main opinion, Justice Jackson said: "When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb …"

Today, under pressure, the White House appears to be cutting a deal with Republican Senators on legislation for the NSA program. But legislation is premature until the President explains to Congress why FISA is inadequate.

In a three-hour hearing on FISA last Thursday, I was impressed with how efficient the process of issuing emergency warrants is. I think the NSA program on which I have been briefed can and must be fully covered under FISA.

Treatment should follow diagnosis. And the diagnosis must be made first by the Congressional Intelligence Committees once members are fully and completely informed.

~ ~ ~

Senator Graham has called this a Marbury versus Madison moment - recalling the 1803 Supreme Court case which defined separation of powers. I agree. We are experiencing what some others call a Constitutional crisis.

To come down from the brink, we need to do three things.

First, the Executive must respect the laws Congress passes, and work with Congress on any needed changes. We are equal branches of government.

Second, bipartisanship. The terrorists won't check our party labels before they blow us up. The American people don't want a Republican Congress to give a blank check to a Republican President. Democrats are patriots too.

And third, we urgently need the best legal minds in our nation to come together, perhaps in a new National Legal Commission, to grapple with a new legal framework for the toughest issues we face confronting 21st Century threats: detention, interrogation, data-mining, electronic surveillance, national ID cards, among them.

Sandra Day O'Connor might be a good chair of such a Commission. Members might include people well known to CFR like Pat Wald, Larry Silberman, Bill Webster, Phil Heymann, and brilliant minds from the next generation, like Viet Dinh and Noah Feldman.

Instead of the Executive Branch waving a single legal memo from a single Justice Department lawyer, this Commission could provide some needed depth and weight to help the President, Congress, and the public understand these issues and the need for nuanced solutions … which carefully protect the reinforcing values of enhanced security and civil liberty.

Ben Franklin might have been the first American to understand that this is not a zero-sum game. You either get more security and liberty, or less of both.

Imagine if today on the House floor we could reprise the debates of 1787 and 1788 … chronicled in the Federalist Papers.

Alexander Hamilton argued for life terms and stronger powers for the Chief Executive. But James Madison argued that "the accumulation of all powers … in the same hands … may justly be pronounced the very definition of tyranny."

The modern version would be a contentious debate, but it would be an essential and wonderful debate … a debate worthy of America.

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