9/11

  presented before the Standing Committee on Foreign Affairs and International Trade House of Commons Ottawa, Ontario pursuant to Standing Order 108(2) “Study of North American Integration and Canada's Role in the Light of New Security Challenges” Tuesday, November 27, 2001   Good afternoon, Mr. Chairman. My name is Stephen Flynn. I am a Senior Fellow with the National Security Studies Program at the Council on Foreign Relations. The Council on Foreign Relations is a non-governmental, non-partisan think-tank with offices in New York and Washington. It is privilege for me to be here today to testify on the vital issue of securing an open border between our two countries in the wake of the tragic events of September 11. Over the past 2 ½ years, I have been conducting research on the issue of border management in an era of globalization. That project has afforded me the opportunity to conduct field visits along the U.S.-Mexican, and U.S.-Canadian borders, within major seaports and airports throughout the United States, in Montreal, Rotterdam, Hong Kong, and Kingston, Jamaica. Directly relevant to the topic at hand today, I have conducted interviews with U.S. and Canadian border control agents at the border crossings in the Detroit-Windsor, the Niagara, and the Champlain regions. My research question has essentially been this: Given the cascading tide of peoples and goods moving across international borders, how do border control agents accomplish their public mandates of filtering the bad from the good; and the dangerous from the benign? The answer I have arrived at is that they DON’T, and given our current border management architecture, they CAN’T. Let me be clear about this. The international community has no credible way to routinely detect and intercept illegal and dangerous people and goods intent on crossing international borders. Our border management systems are broken. This conclusion is an extremely sobering one, particularly in light of what I argue are three unpleasant “facts of life” we must accept in the wake of the events of September 11. First, there will continue to be anti-American terrorists with global reach for the foreseeable future. Second, these terrorists will have access to the means—including chemical and biological weapons—to carry out catastrophic attacks on U.S. soil. And third, the economic and societal disruption created by the September 11 attacks and the subsequent anthrax mailings has opened a Pandora’s box: future terrorists bent on challenging U.S. power will draw inspiration from the seeming ease with which the United States could be attacked and they will be encouraged by the mounting costs to the U.S. economy and the public psyche associated with the hasty, ham-handed efforts to restore security. I would argue that what we witnessed on September 11 is how warfare will be conducted in the 21st Century. What this means is that, at the end of the day if all goes well with the current war efforts in Afghanistan, only the terrorists of the moment will have been defeated. The United States may be unrivaled in terms of its global military, economic, and cultural reach, but there are still real limits to its power. There will always be anarchical corners of the world, for terrorists to hide, whether in the unpoliceable areas of third world mega-cites or in the rural hideaways within failed or failing states. Even if the war on terrorism extends for a decade or more, new adversaries will arise to fill the shoes of those who have perished. Indeed, a likely consequence of the prosecution of that war will be to motivate new recruits into the ranks of terrorism. As with the drug war, “going to the source” is seductive in principle, and illusive in practice. Therefore, the United States and the international community face the stark reality that there will continue to be adversaries who will use catastrophic terrorism as a means of warfare. We also must be mindful of the fact that the goal of these attacks is not simply to kill people, but to create economic and societal disruption that weakens the victim and generates pressures for it to change its policies. Ultimately, therefore, a war on terrorism should be about reducing the vulnerability of the global systems of transport, energy, information, finance, and labor from being exploited or targeted by terrorists—a task that cannot be accomplished by focusing on control activities along national borders. The best way to illustrate the limits of border-centered inspections as a response to terrorism is to consider the security challenge represented by commercial containers—the 20’ and 40’ boxes that are carried on ships, trains, and 18-wheeler trucks which account for well over 90 percent of the overseas general cargo that arrives in North America. These containers can be loaded by upwards of 500,000 non-vessel operators and freight forwarders from around the planet, secured with a plastic seal, and allowed to move around the planet with only the scantiest of information about its contents. 6 million of these containers arrived by sea in the United States in 2000, more than one-half million via the ports of Halifax and Montreal. In the case of those containers that arrive in Canadian ports, most are loaded on rail cars and sent directly into the United States with no inspection of their contents. Let us imagine a scenario where a bomb is loaded in one of these containers which is triggered by opening its door. The result of that bomb being activated would not be just the death and destruction in the surrounding vicinity, but it would likely lead to the complete shutdown of all container trade. The economic consequences of doing that for the international community are difficult to estimate, but the fact remains there is no backup system for moving general cargo. I pose this dark scenario not to unnerve you, but to help highlight the new security challenges associated with the post-September 11 world, and what I think represents a real opportunity for Canadian international leadership that has the added benefit of helping to preserve the long tradition of a largely open border with the United States. Just as Lester Pearson helped to find a way to secure world peace at the height of the Cold War during the Suez Crisis, I am convinced that the Canadian government can take the lead in establishing new standards which sustain the openness so essential for advancing global economic prosperity and freedom, while reducing the growing threat posed by criminals and terrorists who want to exploit that openness to do their worst. My argument is this. While states will always seek to exercise some controls at its borders, it is the international transportation networks that bring people and goods to those borders that must be made secure. These transport networks are the arteries that feed global markets by moving commodities, cargo, business travelers, and tourists. But, enhancing security transportation networks can only be accomplished by moving away from placing primary reliance on an ad hoc system of controls at the borders of individual national jurisdictions. The alternative is to move towards point of origin controls supported by a concentric series of checks conducted at transshipment points and at the points of arrival. This is particularly important for the United States and Canada where trying to distinguish the illicit from the licit at the border or within its ports of arrival is like trying to catch minnows at the base of Niagara Falls. Moving upstream is not as difficult or futuristic of a task as it might appear at first brush. As a starting point, the United States and Canada should capitalize on the enormous leverage over global transportation networks that can be exercised by a handful of jurisdictions. If our two countries, ideally joined by nations such as the United Kingdom, the Netherlands, Singapore, and Germany could agree to common standards for security, reporting, and information-sharing for operators, conveyances, and cargo, those standards overnight would become virtually universal. Any one who chose to not play by these rules would find themselves effectively frozen out of competitive access to the world’s major markets. These standards could include the requirement that anyone who wants to ship a container or transport passengers through these jurisdictions must take steps to validate their legal identity and purpose. This could include, for instance, a mandate that a container be loaded in an approved sanitized facility. At these facilities, loading docks would be secured from unauthorized entry and the loading process would be monitored by camera. In high-risk areas, the use of cargo and vehicle scanners might be required with the images stored so that they can be cross-checked with images taken by inspectors at a transshipment or arrival destination. A system which advances near-real time transparency of trade and travel flows could also be required for two purposes. First, to reduce the risk of shipments being compromised in transit. Second, to enhance the ability for enforcement officials to quickly act on intelligence of a compromise when they receive it by allowing them to pinpoint the suspected freight. The importance of achieving this second objective cannot be overstated. The sheer number of travelers and volume of trade along with the possibility of internal conspiracy even among companies and transporters who are deemed low-risk makes critical the ongoing collection of good intelligence about potential breeches in security. But, that intelligence is practically useless if it helps only to perform a post-attack autopsy. Mandating “in-transit accountability and visibility” would provide authorities with the means to detect, track, and intercept threats once they receive an intelligence alert. A GPS transponder could also be placed on ships, trains, trucks, and even containers so that it can be tracked. A light or temperature sensor should be installed in the interior of the container which would set off an alarm if the container were opened illegally at some point. Importers and shippers would make available this tracking information upon request to regulatory or enforcement authorities within the jurisdictions through which their cargo moves or is destined. Finally, manufacturers, importers, shipping companies, and commercial carriers would agree to provide to the appropriate authorities advance notice of the details about their shipments, operators, and conveyances in an electronic format. This will allow authorities the time to assess the validity of the data, to check it against any watch lists they may be maintaining, and provide timely support to a field inspector who must decide what should be targeted for examination. For validating the legal identity and purpose of international travelers, off-the-shelf technologies could be readily embraced to move away from easily forgeable paper-based documents such as traditional visas or passports. In their stead, countries should be embracing universal biometric travel identification cards that include electronic scanning of fingerprints, eye retina or iris information. These ATM-style cards would be issued by consulates and passport offices and presented at the originating and connecting points of an individual’s international travel itinerary. Airport, rail, rental car agencies, and bus terminals would all be required to install and operate card readers as a condition for allowing their customers to use conveyances moving across national jurisdictions. Once entered, electronic identity information would be forwarded in real time to the jurisdiction of the final destination. The objective is to provide authorities with the opportunity to check the identity information against its watch lists. If there are no red flags, then it should not be necessary to conduct a time consuming and intrusive search of that individual. For non-citizens, a country could require the presentation of these cards for renting cars, flying on domestic flights, or using passenger rail service within a host-jurisdiction as well. It is one thing to mandate that data be provided. Effectively managing and mining it so as to make a credible determination of low versus high risk is something else altogether. Front-line agencies must be brought out of their 19th century stove-piped, record-keeping worlds. To reduce the potential for overload, existing data collection requirements must be evaluated to determine whether they can be eliminated, consolidated, or accomplished by other methods such as statistical sampling. Investments in information technologies and trained personnel to process and analyze data is key. For the sake of both efficiency and minimizing the risk of information gaps, the goal should be to create within each national jurisdiction, one clearinghouse for receiving data about people, cargo, and conveyances. The government users of the data can collect and analyze what they need from that pool. Inspectors and investigators assigned to border control agencies will continue to play a critical role in the timely detection and interception of anomalies. To be effective, however, a serious effort must be made to improve their pay, staffing numbers, and training, and to push them beyond the border itself into common bilaterlal or multilateral international inspection zones. Mega-ports and regional transshipment ports should play host to these zones where agents from a number of countries could work side-by-side examining commerce ultimately destined for their respective jurisdictions. Such an approach would take better advantage of law-enforcement information at the point of departure, allow transport-related intelligence to get into the security system sooner, and reduce the congestion caused by concentrating all inspections at the final destination. The mini-model for this are the bilateral inspection zones for one-stop export and import clearance accomplished by French and British officials operate together at both entrances of the Chunnel. The Canadian government could help to advance this agenda by taken several important steps in the near term. First, would be to indicate its seriousness in tackling this daunting problem by issuing an Order in Council that authorizes an immediate, practical, and symbolically important step: to call for reversal of the location of the inspection functions along the major bridge and tunnel crossing between Ontario, New York, and Michigan and to allow the bi-national co-location of inspectors in North American ports of arrival. In the first instance, Canadian inspectors would move to the United States side of the border and U.S. inspectors would move to the Canadian side of the border so that cargo, people, and conveyances can be checked and cleared before they use bridge and tunnel infrastructure so critical to supporting our bilateral trade and tourism. In the second instance, U.S. and Canadian inspectors would work side-by-side inspecting shipments and enforcing their regulations for goods bound for their respective jurisdictions so this would not have to be accomplished at the border crossings. Second, Revenue Canada and Canada Immigration Canada can go the next step in their innovative applications of technology to support the border management mission by embracing the use of biometrics—electronic fingerprint scans and eye-scans—for CANPASS and NEXUS identification cards. In addition, they can require the advance transmission of data on shipments and operators for those companies and conveyances who participate in the Self-Assessment Program. Finally, Revenue Canada should invest in gamma-ray container scanners that can be used in each of the major seaports and airports to facilitate rapid, non-intrusive, non-destructive inspections of cargo. Next, Ottawa should support regional experimentation in prototype programs that support innovative approaches to achieving border management objectives. New England Governor Jeane Shaheen, for instance, is working to mobilize the Governors of northern New England to engage with the premiers of Quebec and the Eastern Maritime Provinces in developing private-public prototypes that can be put in place to validate legitimate cross-border commerce as legitimate. Federal agency regional directors should be given permission to actively participate and support these regional initiatives. Finally, as the chair of the G-8, Prime Minister Cretien should advance the “beyond border control” regime as vital to sustaining free trade and global prosperity. Specifically, the G-8 should adopt at their forthcoming meeting standards for advancing point of origin controls and enhanced security integrity within the international transport network system. Ultimately getting border management right must not be about constructing barricades to fend off terrorists. Instead, its aim must be to identify and take the necessary steps to preserve a way of life that allows Canada and the United States to remain the open, prosperous, free, and globally-engaged societies that rightly inspires so many in this shrinking and dangerous world.

  Testimony of Dr. Morton H. Halperin Senior Fellow, The Council on Foreign Relations, and Chair, Advisory Board, Center for National Security Studies Before The United States Senate Judiciary Committee Subcommittee on the Constitution, Federalism, and Property Rights U.S. Senator Russell D. Feingold, Chairman October 3, 2001   Mr. Chairman, It is a very great pleasure for me to appear again before this distinguished sub-committee. Since the text of the legislation remains a moving target I thought it would be more useful if I stepped back and discussed a few issues in more general terms. This committee does not have to be reminded that intelligence agencies have in the past abused their authority to spy on and even disrupt lawful political activity under the guise that those protesting the actions of our government were in fact agents of a foreign power. Now we are told that the efforts of Congress to expose those abuses, especially the work of the Church Committee, is somehow responsible for the failure of the CIA to learn about and prevent the tragic acts of September 11. This is an outrageous characterization,both because in a democracy we must be able to discuss abuses of power and discuss how to prevent them, but even more becausethe Church Committee report did not lead to any legislation limiting the authority of intelligence agencies. In fact, to this day, Congress has not legislated any limits on the ability of the CIA or other intelligence agencies to conduct surveillance in the United States and abroad beyond that initial prohibition in the act creating the CIA that asserted that the CIA would have no internal security functions. This brings me to FISA which is a grant of authority by the Congress to the President and not a limit on what authority would otherwise exist. Since there is a good deal of confusion about this I want to take a moment to remind the Committee how FISA came about. I speak from having been deeply involved in the process which led to the enactment of FISA. Until the mid-1970s the executive branch regularly conducted electronic surveillances for “national security” purposes without a court order. It was only after the Supreme Court held that wiretaps were covered by the Fourth Amendment and the scandals revealed by the Church and Pike Committees opened the intelligence agencies to threats of lawsuits and damages that the government reconsidered its position and decided that it needed congressional authorization to conduct electronic surveillance for national security purposes. (In the interest of full disclosure, I should note for the record that I was the subject of a 21 month warrantless wiretap of my home telephone from 1969-71. After I and my family filed suit the court found that the surveillance violated our constitutional rights. Reading the governments logs of your private phone calls for an extended period does bring sharply into focus the danger of abuse and the value of privacy). FISA thus arose from a request from the government for authority to conduct electronic surveillance for national security purposes. The government explained that it could not use Title III procedures for a number of reasons including its desire to gather foreign intelligence information even when no crime was suspected and its unwillingness ever to provide notice that it had conducted a surveillance. Congress debated long and hard about FISA and enacted legislation that was substantially different from the original draft submitted by the administration with the usual demand that it be enacted immediately and without any changes. In the end Congress struck a deal with the administration with the support of some civil libertarians including me (I then spoke for the ACLU on these issues). The basic compromise was this: Congress gave the executive branch the authority to conduct electronic surveillance for national security purposes under a lesser standard than the probable cause that it would gather evidence of a crime. Equally important, the government was given permission to keep the surveillance secret and not provide the notice required by Title III when the surveillance ended. In return the government agreed to judicial supervision, and provisions to minimize the interception of non-germane information. Most important, it was agreed that the government would not use the FISA procedures if it was conducting a criminal investigation and would switch to a Title III warrant if it began a criminal investigation. Subsequently, in 1994 Congress broadened FISA to include physical searches which can be conducted even against the homes of Americans without a warrant, without knock or notice, and without ever informing the person that the government has surreptitiously acquired information from his home. I believe that this provision is clearly unconstitutional and the Supreme Court seems to agree (See Richards v. Wisconsin (1997) holding that a blanket exception allowing no-knock entries for warrants served in drug cases violated the 4th Amendment). But that is for another day. For our purposes, we need to keep in mind that we are talking about the secret searches of the homes of Americans and not just wiretaps of foreign embassies. It is from this perspective that the proposed amendments to FISA must be examined. The most disturbing provision in the administration draft bill is the one permitting the government to initiate a FISA surveillance even when the primary purpose of the government is to gather evidence for a criminal prosecution. As I said, FISA authority was given to the government for situations in which it was not seeking to indict individuals for crimes, but rather to gather information for foreign intelligence purposes. To now permit these procedures to be used in a criminal investigation would almost certainly be unconstitutional and would certainly be dangerous. Whether the change in the law is from “the” to “a” or to “significant” the result is the same. The Executive would always be able to use FISA to conduct surveillance whenever it believed that the people being surveilled were agents of a foreign power thus circumventing the notice and probable cause requirements of the Fourth Amendment. Any legitimate problem that the government has in this area can be cured either by explicitly permitting exchanges between law enforcement officials and those conducting a FISA surveillance or by permitting the government to seek two warrants for the same surveillance, as the Senate Intelligence Committee leaders have suggested. A second problem with the administration bill is the effort to permit the government to get warrants for six months or a year for FISA searches of individuals it suspects are agents of a foreign power as it now has for foreign powers themselves. Here again, some history may help to explain why this provision was written as it was and why it should not be changed. When FISA was being debated in the Congress the shorter time limits on warrants applied to all targets. The government pointed out that it made no sense to go back so often if the target was, say, the Soviet embassy. And so Congress agreed to permit longer warrants for foreign powers themselves. Now the government seeks to bootstrap using this difference to argue that it should not be required to seek frequent warrants against agents of a foreign power. We need again to recall that the government has been granted the authority to wiretap a person, even an American citizen, or secretly break into his home and surreptitiously remove his papers. It is not too much to ask that the government return regularly to a specially selected judge in a separate court with full security protections to demonstrate that it was right in thinking that the target was an agent of a foreign power engaged in illegal activity. With the indulgence of the Committee I would like to comment on two other matters raised by the Administration’s draft. The first relates to the provisions which permit the government to share information gathered for law enforcement purposes, including Title III surveillance and grand jury testimony, with intelligence officials. Given the activities of terrorists who operate both in the United States and abroad, I believe that such sharing is appropriate, but I believe it needs to be limited in several ways. First, when the information is gathered under judicial supervision, the court’s approval should be required for the transfer. Second, the information transferred should be limited to Foreign Intelligence Information as that term is defined in FISA. Third, the disclosure should be limited to those officials who are directly involved in a terrorism investigation. Finally, the information should be marked and safeguarded so that these restrictions can be enforced, much as classified information is marked and stored. Finally, I want to comment on the extraordinary proposal to include disclosure of the names of covert agents in the new list of federal terrorism crimes. This is a speech crime which has no place in this list. I was deeply involved in the development of this statute as well. Again, although the administration, in this case as with FISA, both Democratic and Republican, insisted on immediate action and no changes, Congress deliberated carefully for several years. Before it enacted the statute it insisted on a number of safeguards to insure that it would not prevent the press from publishing information it had acquired by legitimate means. For example, Congress inserted a bar on conspiracy provisions so that a reporter could not be accused of conspiring with a source. This protection and many others would be swept away if this crime remains on the list of federal terrorism crime. Mr. Chairman, there is an important lesson in the history of the enactment of FISA and the Intelligence Agents Identities Act. It is that if we take both national security and civil liberties seriously, and if we work hard and take the time that we need we can find solutions that protect them. The Congress deserves high praise for not giving in to the administration’s demand that it act first and read later in the face of the unbelievable and unfathomable events of September 11. We have gone very far in a very short time from the administration’s first draft. With a little more time and a little more give and take, I believe we can arrive at a text which strikes an appropriate balance. I urge you to stay at the task. I commend the sub-committee for holding this hearing. I appreciate the opportunity to testify and would be pleased to answer your questions.