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Thank
you, Chairman Paul, Ranking Member Peters, and Members of the Committee, for the
opportunity to testify before you today. I'm happy to return to a
committee where I was a counsel for a short
time early in my career under the chairmanship of Senator Ted Stevens.
Having
established that I am old, I also want to confess to being slightly embarrassed,
for all of us, that my
written testimony submitted to you spends
as much time as it does on the problem of counterterrorism security policy,
which still plagues us nearly 25 years after the attacks of September
11, 2001. I wish that by now we had better systems in place for
assessing risk and calibrating our responses.
I'm in the privileged position of working in a think tank that encourages me to
call it like I see it, without reference to orthodoxies or partisan
considerations. That's the
American Enterprise Institute where I'm a
non-resident senior fellow. This morning the president of
-- of AEI
asked me lot of questions about my testimony. And I said, "You -- You can't ask all
these questions. I'm going have to change my opening statement." But, I'll
proceed.
The testimony I have submitted to you is a sincere effort to summarize what my
study over years has produced in terms of strategic counterterrorism and the
security systems by which a free country should address a particularly difficult
challenge. Doing security well is an American, nonpartisan interest. There are
partisan valences to this hearing, of course, but there is opportunity here
because communities and people sympathetic to both sides of the aisle have now
experienced the negative consequences of watchlisting, including in this
Quiet
Skies program.
In writing my testimony, I kept coming back to the theme that watchlisting is a
security and constitutional half-measure. Watchlisting is a system for
interdicting people whose activities do not raise sufficient suspicions to merit
actual interdiction through full investigation, arrest, and the levying of
criminal charges. By doling out minor punishments and derogations on freedom
unilaterally, watchlisting defies our constitutional separation of powers, in
which law enforcement is supposed to bring charges to be adjudicated in the
separate judicial branch. Watchlisting violates due process and derogates from
the presumption of innocence, treating people as guilty of something without
providing them an opportunity to challenge that assessment.
In my written testimony, I placed Quiet Skies in a context as a -- as a form of
overreaction to terrorism, which as a strategy streak -- seeks to trigger victim states
into error. The waste of blood and treasure is the clearest error and a win for
terrorism -- here, a program costing hundreds of millions of dollars to achieve
essentially nothing. Terrorism seeks to knock victim states off their
ideological moorings and to delegitimize them. You don't have to believe in a
deep state cabal here. But you can recognize that Quiet Skies and other watchlisting programs open our government up to the charge, which is delegitimizing.
I also supplied in my written testimony material on terrorism risk management
that was
produced by the Department of Homeland Security's Data Privacy and
Integrity Advisory Committee in 2006. The DHS -- The DHS Privacy Committee itself was one
effort to create some balance at DHS. The Privacy Impact Assessment Process is
another. They have a role not to be dismissed, but I don't think internal
counterweights do enough to bring balance to security programs. Our tradition is
to use tension among branches of government and among agencies to bring balance.
And in the latter part of my testimony, I broach a few methods for improving the
institutional and policymaking dynamics so there would be fewer, or no more, Quiet
Sky's programs.
First, Congress could de -- delegate power from the DHS. We can understand the haste
and uncertainty that produced broad delegation of power in the aftermath of the
September 11, 2001 attacks. But that era is past, and you could specifically
authorize programs that you find to be effective, deauthorize the ones that you
don't see as clearly and cost effectively securing our country.
Oversight
hearings like this are an appropriate response. Public and judicial oversight
are important checks that help produce balance. Here, secrecy is a perennial and
confounding problem. Daniel Patrick Moynihan's book,
Secrecy: The American
Experience, argued that secrecy leaves policymakers less informed; it denies
government accountability; and it sharply limits public debate about policy and
government conduct.
An additional proposal I offer is to have the Congress recognize
travel as a
right equivalent to other rights in the Constitution. Were it recognized clearly
as a right, courts would be in a better position to help administer the issues
that come before it, and people would be able to challenge security programs
that threaten their liberties.
Finally, I argue that privatizing at least some parts of travel security would
produce good results. Liability rules, the insurance system, and competitive
pressures are things that government programs do not have to help guide them.
We're in a time of welcome openness to change at the Department of Homeland
Security under
Secretary Noem.
Quiet Skies is gone. The
"shoes off" policy at airport checkpoints
is a thing of the past. And there are
signals that the liquids rule and other
overreaction may be reconsidered. Let's see more to revamp airline security and
counterterrorism policy so that threats are in perspective and directly met,
while Americans remain free to travel in possession of all their rights.
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