```

[Senate Hearing 109-701]
[From the U.S. Government Publishing Office]

                                                        S. Hrg. 109-701
 
     CATCHING TERRORISTS: THE BRITISH SYSTEM VERSUS THE U.S. SYSTEM

=======================================================================

                                HEARING

                                before a

                          SUBCOMMITTEE OF THE

            COMMITTEE ON APPROPRIATIONS UNITED STATES SENATE

                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION

                               __________

                            SPECIAL HEARING

                   SEPTEMBER 14, 2006--WASHINGTON, DC

                               __________

         Printed for the use of the Committee on Appropriations

  Available via the World Wide Web: http://www.gpoaccess.gov/congress/
                               index.html

                    U.S. GOVERNMENT PRINTING OFFICE
30-707                      WASHINGTON : 2006
_____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov  Phone: toll free (866) 512-1800; (202) 512�091800  
Fax: (202) 512�092250 Mail: Stop SSOP, Washington, DC 20402�090001
                               __________
                      COMMITTEE ON APPROPRIATIONS

                  THAD COCHRAN, Mississippi, Chairman
TED STEVENS, Alaska                  ROBERT C. BYRD, West Virginia
ARLEN SPECTER, Pennsylvania          DANIEL K. INOUYE, Hawaii
PETE V. DOMENICI, New Mexico         PATRICK J. LEAHY, Vermont
CHRISTOPHER S. BOND, Missouri        TOM HARKIN, Iowa
MITCH McCONNELL, Kentucky            BARBARA A. MIKULSKI, Maryland
CONRAD BURNS, Montana                HARRY REID, Nevada
RICHARD C. SHELBY, Alabama           HERB KOHL, Wisconsin
JUDD GREGG, New Hampshire            PATTY MURRAY, Washington
ROBERT F. BENNETT, Utah              BYRON L. DORGAN, North Dakota
LARRY CRAIG, Idaho                   DIANNE FEINSTEIN, California
KAY BAILEY HUTCHISON, Texas          RICHARD J. DURBIN, Illinois
MIKE DeWINE, Ohio                    TIM JOHNSON, South Dakota
SAM BROWNBACK, Kansas                MARY L. LANDRIEU, Louisiana
WAYNE ALLARD, Colorado
                      Bruce Evans, Staff Director
              Terrence E. Sauvain, Minority Staff Director
                                 ------                                

                   Subcommittee on Homeland Security

                  JUDD GREGG, New Hampshire, Chairman
THAD COCHRAN, Mississippi            ROBERT C. BYRD, West Virginia
TED STEVENS, Alaska                  DANIEL K. INOUYE, Hawaii
ARLEN SPECTER, Pennsylvania          PATRICK J. LEAHY, Vermont
PETE V. DOMENICI, New Mexico         BARBARA A. MIKULSKI, Maryland
RICHARD C. SHELBY, Alabama           HERB KOHL, Wisconsin
LARRY CRAIG, Idaho                   PATTY MURRAY, Washington
ROBERT F. BENNETT, Utah              HARRY REID, Nevada
WAYNE ALLARD, Colorado               DIANNE FEINSTEIN, California

                           Professional Staff
                             Rebecca Davies
                              Carol Cribbs
                            Shannon O'Keefe
                             Nancy Perkins
                           Mark Van de Water
                       Charles Kieffer (Minority)
                        Chip Walgren (Minority)
                         Scott Nance (Minority)
                      Drenan E. Dudley (Minority)

                         Administrative Support

                            Christa Crawford

                            C O N T E N T S

                              ----------                              
                                                                   Page

Opening Statement of Senator Judd Gregg..........................     1
Statement of Hon. Richard A. Posner, Federal Judge, U.S. Court of 
  Appeals for the Seventh Circuit and Senior Lecturer, University 
  of Chicago Law School..........................................     2
    Prepared Statement of........................................     4
Statement of John Yoo, Professor of Law, Boalt Hall School of 
  Law, University of California at Berkeley......................     9
    Prepared Statement of........................................    11
Statement of Tom Parker, CEO, Halo Partnership Consulting, Former 
  British Counterterrorism Official..............................    16
    Prepared Statement of........................................    19
Statement of Senator Robert C. Byrd..............................    29

     CATCHING TERRORISTS: THE BRITISH SYSTEM VERSUS THE U.S. SYSTEM

                              ----------                              

                      THURSDAY, SEPTEMBER 14, 2006

                               U.S. Senate,
                 Subcommittee on Homeland Security,
                               Committee on Appropriations,
                                                    Washington, DC.
    The subcommittee met at 9:27 a.m., in room SD-192, Dirksen 
Senate Office Building, Hon. Judd Gregg (chairman) presiding.
    Present: Senators Gregg, Allard, and Byrd.

                opening statement of senator judd gregg

    Senator Gregg. We will begin the hearing. The subcommittee 
understands Senator Byrd will be here, but probably not for a 
few minutes.
    We are very appreciative of our witnesses attending today. 
This committee has viewed the issue of homeland security as 
first and foremost an issue of obtaining the intelligence 
necessary in order to stop an attack before it occurs. We have 
worked very hard to change the mind set of the Federal 
Government and our local and State law enforcement community, 
which has always been a reactive mind set, where a crime occurs 
and the Government then comes forward through the FBI or 
through the local police and tries to determine the culprits 
and bring them to justice.
    That mind set does not work in the context of the threat 
that America faces today, which is a terrorist act, because a 
terrorist act once it occurs will create such harm and damage, 
as we saw on 9/11, as we have seen England and other nations 
such as in Spain in Madrid. A terrorist act cannot be 
tolerated, so a legal system which is structured around the 
concept of having an event occur and then having the criminals 
brought to justice is a legal system which is not capable of or 
appropriate to the threat that we have today.
    The question becomes for us how within our constitutional 
limitations, which are obviously critical and which is what we 
are fighting for, how within those constitutional limitations 
will we expand our capability to obtain intelligence to be able 
to thwart an attack. The English system appears to have taken 
significant strides in this area. England, of course, functions 
under a common law system, not under a constitutional system, 
and does not have a Bill of Rights, although they obviously 
have rights which have been evolved over time, and our Bill of 
Rights arguably came in large part from those common law 
rights.
    But the English system has evolved to the point where they 
do have the capability to pursue a potential threat more 
aggressively than we appear to be able to pursue it prior to 
the event occurring. The question that this subcommittee would 
like to pursue with this extraordinarily talented panel is are 
there within the context of our constitutional structure 
actions which we can take which would replicate or take 
advantage of the experience of the English system and the 
English successes, which are considerable, as we just recently 
saw with the situation relative to the bombing of the aircraft 
which did not occur, thank goodness.
    So we have brought together this panel today to give us 
some thoughts on this. We are also interested, should the panel 
wish to comment on it, and we can do this in the question 
period as to the panel's reaction if it has any, to the debate 
which is ongoing right now over the Hamdan decision and how we 
use electronic eavesdropping in order to effectively 
interrogate and learn what the potential information there 
might be from prisoners who we have captured in this war on 
terror.
    But initially we want to get into this discussion of 
American procedure relative to British procedure and where 
America can learn from the British situation legally and what 
are the limitations on the American system that the British 
system does not have and how can we take advantage of the 
experience of the British system and still do so in the context 
of our constitutional structure.
    We have, as I said, a very distinguished panel today: the 
Honorable Richard Posner, Seventh Circuit Court of Appeals 
Judge and a Senior Lecturer for the University of Chicago, a 
person of international reputation on issues such as this; John 
Yoo, a Professor of Law at the University of California at 
Berkeley, also an expert in this area of national prominence; 
and Mr. Tom Parker, who is CEO of the Halo Partnership and a 
former British counterterrorism official.
    So we would like to begin with you, Judge Posner, and then 
we will move to Mr. Yoo and then to Mr. Parker. So please, we 
would like to hear your testimony.

STATEMENT OF HON. RICHARD A. POSNER, FEDERAL JUDGE, 
            U.S. COURT OF APPEALS FOR THE SEVENTH 
            CIRCUIT AND SENIOR LECTURER, UNIVERSITY OF 
            CHICAGO LAW SCHOOL
    Judge Posner. Well, thank you very much, Mr. Chairman. Am I 
audible?
    Senator Gregg. Yes.
    Judge Posner. So in my 5-minute summary I will be very, 
very brief. I want to make just three----
    Senator Gregg. If you need more time, take it.
    Judge Posner. Okay. Well, I will be very brief and I can 
amplify afterwards. I want to make three points: first, that, 
contrary to public impression, we can do almost everything that 
the British do within the limits of the Constitution; second, 
that I think we are overinvested in the criminal justice system 
as a way of dealing with terrorism; and third, that the biggest 
lesson perhaps we can learn from Britain is the need for a 
domestic intelligence service that would be separate from the 
FBI.
    On the first point, our political and legal culture is of 
course derivative from England's and when Americans go to 
England they do not feel that they are stepping into some 
lawless society because the Bill of Rights has not followed 
them to England. In fact, as I explain in my prepared 
testimony, the innovative anti-terrorist measures used by 
England might violate an American statute, which of course 
Congress could change, but would not violate the Constitution.
    I want to give just one example of this which seems to me 
the most important and that is the British rule that permits 
detention of terrorist suspects for 28 days without formal 
charges being lodged, and the popular reaction to this is that 
we could not have--we could not do anything like this, because 
our Constitution requires that a suspect be charged within 48 
hours.
    That simply is incorrect. First of all, there is nothing in 
the Constitution that says anything about 48 hours or prompt 
hearings. The Supreme Court has, by way of free interpretation 
of due process, has said that normally a suspect has to be 
charged within 48 hours, given a probable cause hearing within 
48 hours, but that if the government can show a bona fide 
emergency or other exceptional circumstances then it can hold 
the person longer without the probable cause hearing.
    I think it would be very constructive for Congress to enact 
a statute which would specify a period of days, like 28 or 38 
days, that would be appropriate for detention if there were a 
real emergency, as there is in many terrorist situations. And I 
give other examples in my prepared testimony.
    My second point about overinvestment in the criminal 
justice system, I am echoing some remarks that the chairman 
made. We have not really had a very happy experience with 
prosecuting terrorists in the ordinary criminal courts and the 
reason is that the criminal justice system has been designed 
with ordinary criminal conduct in mind. It has not been tailor-
made to special problems of terrorism. We have seen in the 
prosecutions the problems that our use of the criminal justice 
system involves: public trials which can become platforms for 
terrorists to preen themselves on martyrdom and so on; the 
making public of information that may tip off terrorists about 
investigative methods and knowledge of the government; and also 
the fact it is very difficult to deter terrorists by threat of 
criminal punishment if they are fanatics.
    So we should be thinking about alternative, even more than 
we are, thinking about alternatives to the criminal justice 
system as a way of dealing with terrorists, even in the United 
States, where we cannot use military action or covert action.
    That brings me to my third point, about our need for a 
domestic intelligence agency separate from the FBI. There is an 
op-ed piece in the New York Times this morning by the public 
affairs officer of the FBI in which he intimates, he does not 
quite say, that I advocate breaking up the FBI. Absolutely not. 
I would not disturb the FBI in the least. I think it needs to 
be supplemented by an agency that is not tied to the criminal 
law enforcement system the way the FBI is.
    The FBI criminal investigation agency. The training of its 
agents, its culture, its traditions, are all oriented toward 
arresting people and preparing evidence to enable them to be 
convicted. That is fine. We need that, but we also need an 
agency that is focused exclusively on intelligence, not using 
the methods of criminal law enforcement. So MI5 does not have 
arrest powers. The Canadian Security Intelligence Service, 
which is the counterpart to MI5 in Canada, does not have arrest 
powers. An agency which can focus exclusively on intelligence-
gathering, infiltration, surveillance, disinformation, 
penetration, that is a very valuable adjunct to our efforts and 
can get around a lot of the difficulties that our criminal 
justice system encounters when it tries to deal with 
terrorists.
    This detention for 28 or 30 days that I mentioned where I 
think we can emulate the United Kingdom, I see the real 
significance of this as ancillary to intelligence rather than 
to criminal justice enforcement, because if you are chasing 
terrorists and you seize one you want to be able to question 
this person without tipping off his accomplices that you have 
him and keeping him in isolation for a few weeks is going to 
make it easier to obtain information from him.
    So let us think in terms of alternatives to criminal 
justice system and let us also not exaggerate the 
constitutional limitations on our borrowing from England. Just 
one second more on this. We should recognize that the United 
Kingdom has a much longer history than the United States in 
dealing with terrorist threats. In fact, it goes back at least 
as far as the 16th century, and England has had some very 
important successes, for example in World War II against German 
espionage, later against the Irish Republican Army. So we 
should not be provincial, we should not be too proud to learn 
from the experience of foreign countries, especially a country 
like England, which, as I say, is the source of our own legal 
and political culture.
    Thank you, Mr. Chairman.
    [The statement follows:]

                Prepared Statement of Richard A. Posner

    I am honored \1\ to have been asked to appear before the 
subcommittee to testify concerning this important subject. We must not 
be provincial in our response to the threats to our national security 
that are posed by global terrorism in an era of proliferation of 
weapons capable of inflicting catastrophic harm. We must not be too 
proud to learn from nations such as the United Kingdom that have a much 
longer history of dealing with serious terrorist threats than the 
United States has. Queen Elizabeth I faced serious threats from 
religious fanatics eager for martyrdom dispatched to England by foreign 
powers with which England was at war in the sixteenth century. Germany 
peppered England with spies during World War II. The Irish Republican 
Army waged clandestine war against England for decades. And today 
England faces at least as serious an internal threat of Islamist 
terrorism as the United States does.
---------------------------------------------------------------------------
    \1\ A brief biographical sketch of Judge Posner is appended at the 
end of this statement for background.
---------------------------------------------------------------------------
    The United Kingdom is a particularly apt model for us to consider 
in crafting our counterterrorist policies because our political and 
legal culture is derivative from England's. The major difference is our 
Bill of Rights, which has no direct counterpart in English law, though 
the difference between our two constitutional cultures is narrowing 
because of England's having signed the European Convention on Human 
Rights.
    In considering the effect of the Bill of Rights on measures to 
combat terrorism, it is important that we bear in mind the difference 
between what the Bill of Rights actually says and how the Supreme Court 
has interpreted its words, because judicial interpretations of the 
Constitution are mutable, whereas the words themselves can be changed 
only by the cumbersome procedures for amending the Constitution. 
Important too that we bear in mind the tradition of flexible 
interpretation of the Constitution that permits departures from as well 
as judicial elaborations of the literal language of the document, and 
the essential role of balancing competing interests as a technique of 
flexible interpretation. I have argued in my recent book Not a Suicide 
Pact \2\ that in relation to measures, especially measures initiated by 
or concurred in by Congress, to protect the national security against 
terrorist threats, the Constitution should be regarded as a loose 
garment rather than a straitjacket, a protection against clear and 
present dangers to civil liberties rather than the platform of the 
American Civil Liberties Union. Judges in our system are (with rare 
exceptions) generalists rather than specialists. Very few of us have 
extensive knowledge of the scope and gravity of the terrorist menace 
and of the efficacy and limitations of alternative measures for coping 
with terrorism, and we should be cautious therefore in setting our 
judgment against that of the officials and staffs of the executive and 
legislative branch, who have the relevant expertise.
---------------------------------------------------------------------------
    \2\ Richard A. Posner, Not a Suicide Pact: The U.S. Constitution in 
a Time of National Emergency (2006).
---------------------------------------------------------------------------
    The United Kingdom is a liberal democracy, like the United States, 
and Americans living in the United Kingdom, and therefore fully subject 
to English law, do not walk in fear that they are at the mercy of a 
secret police. Yet England has deployed both before but especially 
after September 11, 2001, counterterrorism measures that frighten our 
civil libertarians. These include: \3\
---------------------------------------------------------------------------
    \3\ The sources on which this summary is based include Antonio 
Vercher, Terrorism in Europe: An International Comparative Legal 
Analysis (1992); Peter Chalk and William Rosenau, Confronting the 
``Enemy Within'': Security Intelligence, the Police, and 
Counterterrorism in Four Democracies (2004); Dana Keith, ``In the Name 
of National Security of Insecurity? The Potential Indefinite Detention 
of Noncitizen Certified Terrorists in the United States and the United 
Kingdom in the Aftermath of September 11, 2001,'' 16 Florida Journal of 
International Law 405 (2004); Jeremie J. Wattellier, Note, 
``Comparative Legal Responses to Terrorism: Lessons from Europe,'' 27 
Hastings International and Comparative Law Review 397 (2004); Kent 
Roach, ``Must We Trade Rights for Security? The Choice between Smart, 
Harsh, or Proportionate Security Strategies in Canada and Britain,'' 27 
Cardozo Law Review 2151 (2006); Laura K. Donohue, ``Anglo-American 
Privacy and Surveillance,'' 96 Journal of Criminal Law and Criminology 
1059 (2006).
---------------------------------------------------------------------------
  --conducting criminal trials without a jury if there is fear of 
        jurors' being intimidated by accomplices of the defendant;
  --placing persons suspected of terrorism under ``control orders'' 
        that require them as an alternative to being detained to 
        consent to being questioned or monitored electronically or 
        forbidden to associate with certain persons, and that limit 
        their travel;
  --detaining terrorist suspects for up to 28 days (with judicial 
        approval) for questioning without charges being lodged;
  --deportation proceedings from which the alien and his lawyer may be 
        excluded--the alien need not be fully informed of the reasons 
        for deporting him and ``his'' lawyer is appointed by and, more 
        important, is responsible to the government rather than to the 
        defendant and secret evidence may be concealed from the 
        defendant
  --indefinitely detaining aliens who have been ordered deported but 
        cannot actually be removed from the country (there may be no 
        country willing to take them);
  --criminalizing the indirect encouragement of terrorism as by 
        ``glorifying'' terrorism by a statement implying that it would 
        be good to emulate the glorified activity;
  --issuance of search warrants by security officials rather than by 
        judges;
  --traffic analysis and other data mining of Internet communications 
        without a warrant \4\ (Internet Service Providers are required 
        to install devices to enable Internet communications to be 
        intercepted in transit)--a warrant is required to read an 
        intercepted communication, but it may be granted by an official 
        rather than by a judge.
---------------------------------------------------------------------------
    \4\ A warrant is not required ``to monitor patterns, such as web 
sites visited, to and from whom email is sent, which pages are 
downloaded, of which discussion groups a user is a member, and which 
chat rooms an individual visits.'' Donohue, note 3 above, at 1179-1180.
---------------------------------------------------------------------------
    A majority of these measures, while they might if adopted by our 
government violate Federal statutes, would not violate our 
Constitution. The Constitution gives illegal aliens much more limited 
rights in deportation proceedings than they or citizens would enjoy in 
criminal proceedings; allows criminal suspects to negotiate for 
``control'' orders in lieu of incarceration; and, contrary to a 
widespread impression, does not require that searches be conducted by 
warrants, whether issued by judges or (other) officials, but only that 
searches be ``reasonable'' (this is patent in the text of the Fourth 
Amendment), and does not require that a criminal suspect must always be 
brought before a magistrate for a probable-cause hearing within 48 
hours of his arrest. Not only is there no such requirement anywhere in 
the text of the Constitution, but the Supreme Court, while imposing 
this requirement by way of free interpretation of the due process 
clauses, has created an exception for cases of ``bona fide emergency or 
other extraordinary circumstance.'' \5\
---------------------------------------------------------------------------
    \5\ County of Riverside v. McLaughlin, 500 U.S. 44, 57 (1991).
---------------------------------------------------------------------------
    That exception is potentially very important, and codifying it 
should in my opinion be a priority in the congressional deliberations 
on strengthening our laws against terrorism. The government may have a 
compelling justification for holding a terrorist suspect incommunicado 
for longer than 48 hours: to avoid tipping off his accomplices that the 
government has caught him, while meanwhile extracting from him 
information that it can use to arrest those accomplices before their 
suspicions are aroused. It may even be possible during this period of 
extended detention to ``turn'' him, so that he becomes a double agent, 
spying on his erstwhile accomplices; recruiting a double agent tends to 
be a protracted process and one that must for obvious reasons be 
conducted in secrecy. Holding a terrorist suspect incommunicado also 
facilitates interrogation without crossing the line that separates 
permissible interrogation tactics from torture and other impermissibly 
coercive methods, simply because a detainee who is isolated, with no 
access to a lawyer, can more easily be persuaded to provide information 
sought by the government.
    How much longer than 48 hours should it be permissible to detain a 
terrorist suspect? That would depend on how likely it is that 
protracted detention would yield significant benefits for national 
security in the form of additional arrests or of a fuller detection, 
penetration, and disruption of ongoing terrorist activities or 
preparations. There must be limits. The longer the period of detention, 
the greater the hardship to the person detained (who may after all be 
innocent) and the less likely further detention is to yield significant 
information or other benefits. The benefits diminish with time, and the 
costs increase; when the curves cross, the detainee should be brought 
before a judicial officer for a determination of whether further 
detention would be proper. There should be a fixed outer limit; 28 days 
might be the place to start in fixing such a limit.
    The English measures that would most clearly run afoul of current 
constitutional interpretations are conducting criminal trials without a 
jury and forbidding the ``glorifying'' of terrorism unless the 
glorification amounts to an incitement to imminent terrorist activity. 
Yet the ``unless'' qualification is significant, as ``glorifying'' that 
came within it would be punishable under U.S. law, so that the 
objection to punishing the glorification of terrorism is not so much to 
the principle of the English law as to the vagueness of the word 
``glorifying.'' And as for criminal trials without a jury, this 
requirement of the Bill of Rights can be bypassed by trying suspected 
terrorists before military commissions, where there is no right to a 
jury. How far such commissions can go to relax the constitutional 
constraints required in orthodox criminal trials is an unsettled 
constitutional issue. It will not be resolved until Congress enacts a 
law authorizing such commissions, which at this writing seems imminent.
    I conclude that, as a matter of constitutional law, Congress and 
the President can if they want go a considerable distance in the 
direction of English counterterrorist law. It then becomes a question 
of policy how far we should go in that direction. And that question in 
turn depends on how salient a role the formal legal system, and in 
particular the criminal justice system, should play in the fight 
against terrorism. My own view is that we are overinvested in criminal 
law as a response to terrorism and should be trying to deemphasize 
(though not of course abandon) the effort to prevent terrorism by means 
of criminal prosecutions, especially in the regular courts, which are 
not designed for the trial of persons, whether military or civilian, 
who present a serious threat to national security. We should be making 
less use of devices such as the warrant that are used mainly in 
criminal law enforcement and more use of executive and legislative 
oversight to curb abuses of counterterrorism, and we should be focusing 
more of our domestic security efforts on intelligence as a means of 
detecting and disrupting terrorist plots without necessarily 
prosecuting the plotters.
    It is telling that no one was ever tried by the military 
commissions set up in the wake of 9/11 \6\ and that criminal 
prosecutions of terrorists have been few and often trivial,\7\ have had 
no demonstrated impact on the terrorist menace, and indeed seem to be 
petering out.\8\ Contemporary international terrorists are difficult to 
deter, not only because many of them are suicide attackers but also 
because most political criminals expect (with considerable basis in 
history) to be released from prison, as part of a swap for hostages or 
a political settlement, before completion of their terms. Locking up 
terrorists (those who survive their terrorist escapades) has only a 
limited preventive effect because the supply of terrorists is at 
present effectively unlimited. And criminal trials, being public, 
provide platforms for terrorists to broadcast their goals and preen 
themselves as martyrs and yield information about investigative methods 
that may enable future terrorists to evade detection.
---------------------------------------------------------------------------
    \6\ A failure that may have contributed to the government's losing 
Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006). Had the Court had before it 
a judgment in a trial before a military commission, it might have been 
persuaded that the commission's procedures were adequate to prevent 
miscarriages of justice. Of course the Court can also be criticized for 
its impatience in refusing to hold its fire until a trial had been held 
that could have lent concreteness to the Court's consideration of the 
legal issues.
    \7\ According to a recent study, ``the median sentence for those 
convicted [since the 9/11 attacks] in what were categorized as 
`international terrorism' cases--often involving lesser changes like 
immigration violations or fraud--was 20 to 28 days, and many received 
no jail time at all.'' Eric Lichtblau, ``Study Finds Sharp Drop in the 
Number of Terrorism Cases Prosecuted,'' New York Times, Sept. 4, 2006, 
p. A7.
    \8\ Id.; Dan Eggen, ``Terrorism Prosecutions Drop: Analysis Shows a 
Spike after 9/11, Then a Steady Decline,'' Washington Post, Sept. 4, 
2006, p. A6.
---------------------------------------------------------------------------
    Fortunately, if a terrorist plot is detected, often it can be 
neutralized without prosecution of the plotters. Some can be deported, 
some held in administrative detention, some ``turned'' to work for us, 
some discredited in the eyes of their accomplices, some paid off, some 
frightened into neutrality, some sent off on wild-goose chases by 
carefully planted disinformation, and some carefully monitored in the 
hope that they will lead us to their accomplices. The greatest value of 
allowing detention of terrorist suspects for more than 48 hours is not 
to facilitate prosecution but to support the intelligence function by 
enabling the government to obtain more complete and timely information 
concerning the scope, direction, timing, personnel, and links to other 
networks of the terrorist project that has been detected.
    Of course there are incorrigibles who must be prosecuted. But if 
they are truly threats to national security they can be prosecuted 
outside the ordinary criminal justice system, for example by military 
commissions if properly configured to comply with the Supreme Court's 
strictures.
    My concern with our overinvestment in the criminal law response to 
terrorism brings me to the most important lesson that we can learn from 
the English, and that is the need to have a domestic intelligence 
agency that is separate from a police force. The United Kingdom, like 
virtually all nations except the United States, has long had such an 
agency (the Security Service, popularly known as ``MI5'' because it 
originated a century ago as a branch of military intelligence). MI5 has 
no arrest powers--it is a pure intelligence agency--but works closely 
with Scotland Yard's Special Branch. It apparently played a major role 
in breaking up the Heathrow plot, and it had earlier succeeded in 
foiling German espionage in World War II and in limiting IRA violence. 
In the United States, domestic intelligence is primarily the 
responsibility of the FBI. Other agencies have some domestic 
intelligence functions, but there is no counterpart to MI5 or to the 
Canadian Security Intelligence Service, which is our northern 
neighbor's counterpart to MI5 and played an important role in foiling 
the recent Toronto terrorist plot.
    The problem with placing domestic intelligence responsibility 
inside the FBI is that the Bureau is first and foremost a criminal 
investigation agency. It is part of the Department of Justice and its 
special agents work under the direction of the Department and the 
Department's local U.S. Attorneys to make arrests and gather evidence 
looking to prosecution. The Bureau's goal is not to prevent crimes but 
to catch criminals. It is very good at that. But its conception of 
national security intelligence is shaped by its traditions and primary 
focus. It sees such intelligence as an adjunct to criminal 
prosecutions. Its conception of how best to deal with terrorism is to 
arrest and prosecute and convict and imprison the terrorists. That is a 
dangerously incomplete strategy because of the limitations of criminal 
law enforcement, sketched above, as a means of preventing terrorism. 
Like military and covert action against terrorists abroad, like border 
controls, and like hardening potential terrorist targets, criminal law 
enforcement is an important tool for dealing with the terrorist threat. 
But another important tool, which the FBI so far has been notably 
unable to forge, is domestic intelligence as a free-standing mode of 
terrorism prevention. The key to effective intelligence, which is not 
well appreciated by the Bureau, is to cast a very wide net with a very 
fine mesh to catch the tiny clues (most of which would not qualify as 
evidence in a court proceeding) that assembled into a mosaic may enable 
the next attack to be prevented; for once the plot is detected, as I 
have said, it can be disrupted without formal legal proceedings even if 
later it is decided to prosecute some or all of the plotters. The 
process of detection and disruption requires great patience, and some 
risk (a risk the FBI and the Justice Department are unwilling to take) 
that a terrorist act will be committed while the intelligence service 
is still exploring the extent of the terrorist network without tipping 
its hand by recommending arrests.
    I have argued elsewhere and at considerable length for the urgency 
of our need for a domestic intelligence agency separate from the FBI, 
and I will not repeat the argument here but will merely refer the 
interested reader to the relevant sources.\9\ I emphasize that there is 
no constitutional (or, I believe, other legal) bar to the creation of 
such an agency. It has been argued that an MI5 clone wouldn't work here 
because the United Kingdom does not have the Bill of Rights. The 
argument is mistaken. The principal limitations that the Bill of Rights 
imposes on counterterrorism involve arrest, detention, admissible 
evidence, trial procedures, and other incidents of criminal law 
enforcement and are almost entirely irrelevant to an intelligence 
service that would have no arrest or other prosecution-related powers. 
The exception is surveillance by means of physical or electronic 
searches, which are regulated by the Fourth Amendment. But the relevant 
limitations, some of which indeed pinch too hard in my judgment, 
notably the Foreign Intelligence Surveillance Act, are statutory rather 
than constitutional. Warrants are tightly restricted by the warrant 
clause of the Fourth Amendment. But surveillance, even when it takes 
the form of wiretapping or other electronic interception, need not be 
conducted under a warrant. The only limitation the Constitution places 
on searches without a warrant is, as I have noted already, that they be 
reasonable, and none of us would wish to see a domestic intelligence 
agency employ unreasonable methods of surveillance. The potential 
abuses of such surveillance can be minimized, without judicial 
intervention, by rules limiting the use of intercepted communications 
to national security, requiring that the names of persons whose 
communications are intercepted (and the reasons for and results of the 
interception) be turned over to executive and congressional watchdog 
committees, and imposing meaningful penalties on officials who violate 
civil liberties.
---------------------------------------------------------------------------
    \9\ Richard A. Posner, Preventing Surprise Attacks: Intelligence 
Reform in the Wake of 9/11, ch. 6 (2005); Posner, Uncertain Shield: The 
U.S. Intelligence System in the Throes of Reform, chs. 4-5 (2006); 
Posner, Remaking Domestic Intelligence (Hoover Institution, 2006); 
Posner, ``Intelligence and Counterterrorism Five Years after 9/11'' 
(September 2006, unpublished).
---------------------------------------------------------------------------
    So we can learn a lot from the British experience with fighting 
terrorism, in particular about the need for detention of terrorism 
suspects beyond the conventional 48-hour limit and, above all, about 
the need, which should encounter no obstacle based on our Constitution, 
for a domestic intelligence agency separate from the FBI.
        appendix: brief biographical sketch of richard a. posner
    Richard A. Posner was born in 1939. After graduating from Yale 
College and Harvard Law School, Posner served in various government 
positions, including in the Justice Department, before entering law 
teaching in 1968 at Stanford as an associate professor. He became 
professor of law at the University of Chicago Law School in 1969, where 
he remained (later as Lee and Brena Freeman Professor of Law) on a 
full-time basis until 1981. During this period Posner wrote extensively 
on economic analysis of law and also engaged in private consulting, 
mainly in antitrust law, and was from 1977 to 1981 the first president 
of Lexecon Inc., a consulting firm.
    Posner became a Judge of the U.S. Court of Appeals for the Seventh 
Circuit in December 1981 and served as Chief Judge from 1993 to 2000. 
He has written almost 2,200 published judicial opinions. He continues 
to teach part time at the University of Chicago Law School, where he is 
Senior Lecturer, and to write academic articles and books. For several 
years his major academic focus has been on catastrophic risk (including 
terrorism and proliferation), national security intelligence, and the 
intersection between national security and civil liberties. He has 
published in these areas, besides shorter works, Catastrophe: Risk and 
Response (2004); Preventing Surprise Attacks: Intelligence Reform in 
the Wake of 9/11 (2005); Uncertain Shield: The U.S. Intelligence System 
in the Throes of Reform (2006); and Not a Suicide Pact: The 
Constitution in a Time of National Emergency (2006).
    Posner received honorary degrees of doctor of laws from Syracuse 
University in 1986, from Duquesne University in 1987, from Georgetown 
University in 1993, from Yale in 1996, from the University of 
Pennsylvania in 1997, from Northwestern University in 2002, and from 
Aristotle University (in Thessaloniki) in 2002; and he received the 
degree of doctor honoris causa from the University of Ghent in 1995 
from the University of Athens in 2002, and an honorary juris doctor 
degree from Brooklyn Law School in 2000. In 1994 he received the Thomas 
Jefferson Memorial Foundation Award in Law from the University of 
Virginia. In 1998 he was awarded the Marshall-Wythe Medallion by the 
College of William and Mary, and he received the 2003 Research Award 
from the Fellows of the American Bar Foundation. He received the John 
Sherman Award from the U.S. Department of Justice in 2003, for 
contributions to antitrust policy. In 2005 he received the Learned Hand 
Medal for Excellence in Federal Jurisprudence from the Federal Bar 
Council, the Thomas C. Schelling Award for scholarly contributions that 
have had an impact on public policy from the John F. Kennedy School of 
Government at Harvard University, and the Henry J. Friendly Medal from 
the American Law Institute.
    Posner is a member of the American Law Institute, the Mont Pelerin 
Society, and the Century Association, a fellow of the American Academy 
of Arts and Sciences, an Honorary Bencher of the Inner Temple, a 
corresponding fellow of the British Academy, an honorary fellow of the 
College of Labor and Employment Lawyers, a member of the editorial 
board of the European Journal of Law and Economics, and a Consultant to 
the Library of America, as well as a member of the American Economic 
Association and the American Law and Economics Association (of which he 
was President in 1995-1996). He was the honorary President of the 
Bentham Club of University College, London, for 1998. With Orley 
Ashenfelter, he edited the American Law and Economics Review, the 
journal of the American Law and Economics Association, from its 
founding in 1998 to 2005.
    Academic writings by Posner have been translated into French, 
German, Italian, Spanish, Chinese, Japanese, Korean, Greek, Portuguese, 
Ukrainian, Lithuanian, and Slovenian. He and the economist Gary Becker 
write weekly commentaries on policy issues, published in ``The Becker-
Posner Blog,'' at http://becker-posner-blog.com/.

    Senator Gregg. Thank you very much, Judge, for your 
thoughts. We appreciate them.
    Mr. Yoo.
STATEMENT OF JOHN YOO, PROFESSOR OF LAW, BOALT HALL 
            SCHOOL OF LAW, UNIVERSITY OF CALIFORNIA AT 
            BERKELEY
    Mr. Yoo. Thank you, Mr. Chairman, for inviting me to 
testify. These are extremely important hearings, a very 
important subject. In the 5 minutes I have, I find myself in 
the position many law professors are in, in that I might have 
something interesting to say, but Judge Posner got there first. 
So actually a lot of the things I was going to say he has 
already said. So I am just going to try to supplement some of 
the points he made and may talk about some areas of difference 
between the United States and Great Britain where actually the 
Appropriations Committee in particular could do something that 
would bring us up to par with Great Britain, not at a 
constitutional level but at a policy level.
    I think Judge Posner is quite right, the things that people 
have focused on in the media as being great differences between 
the British and American systems that give the British an 
advantage I think are somewhat illusory or exaggerated. He 
correctly pointed out this idea that the British can detain 
people longer than we can in our system might be a correct as a 
matter of formal rules, but does not take account of what has 
happened in the United States over the last 5 or 6 years.
    One way to think about it is that the British system is, as 
you said in your opening remarks, preventative. It aims to try 
to prevent terrorist attacks from happening in the future. The 
American approach had been primarily or exclusively law 
enforcement, which is retrospective. The idea of the criminal 
justice primarily is you look at an event that has already 
happened and you try to historically put the facts together 
about who's responsible. As Judge Posner said, as you have 
mentioned, and as Mr. Parker says in his testimony, those two 
basic goals are often in conflict and may be incompatible 
often.
    So one way you can think about what the administration has 
done over the last 5 years and in the bill about Hamdan which 
you mentioned in your opening remarks has been to try to move 
the American system to have some ability to conduct 
preventative measures rather than just be stuck in a criminal 
justice system, which was the approach administrations of both 
parties took until September 11, I would say.
    So on the detention issue, the formal rule is quite right, 
the United States cannot hold people for longer than 48 hours 
in the criminal justice system. In Great Britain you can hold 
people for 28 days without criminal charge. But the 
administration, in a move approved by the Supreme Court, has 
said that it will detain people as enemy combatants without 
criminal charge and that can go on for much longer than 28 
days. Obviously it can go on for months or years, until the end 
of the conflict. That is an example where the administration, I 
think with Congress' support and Supreme Court approval, has 
tried to introduce some of these preventative measures.
    Another area is surveillance, which you mentioned in your 
opening remarks. The British have lower standards for the 
collection of non-content communication, data about phone 
calls, emails, not the content but the other kind of 
information connected with that. In Great Britain, as I 
understand it, one can just go to an agency official for 
permission to conduct, to collect that kind of information. In 
the United States you would usually have to go to the FISA 
court, the FISA court or a regular court, to collect that 
information.
    In an effort to move the system to a more proactive future, 
forward-looking perspective, the administration introduced the 
NSA terrorist surveillance program, which is more like the 
British system. This was I think particularly important, 
although I think overlooked in the accounts of how Great 
Britain broke up the plot last month. If you read the accounts 
carefully, they say there was an initial tip given by a 
community member. But then it appears that Great Britain used 
that information to engage in massive amounts of data mining 
and communications interceptions to try to piece together the 
network.
    That would be difficult under the FISA system, which is 
based on individual warrants, based on suspicion of a 
particular person. But under the programs that have been 
publicly revealed, the administration has tried to move the 
system in that direction and, as you said, Congress is 
currently considering right now how far to go in authorizing 
that. That is one area, at the very least, where I think, as 
you asked in your opening remarks, what can Congress do now 
consistent with the Constitution to bring is closer to the 
British system. It would be to approve at least some elements, 
I think, of the terrorist surveillance program.
    So the two I think really big areas where Great Britain 
does possess advantages is data mining--and this is 
particularly I think of interest to the Appropriations 
Committee. As you might remember, in the winter of 2001-2002 
there was a big controversy over research being conducted at 
the Defense Department to engage in data mining, the total 
information awareness program, and my understanding was that 
Congress through an appropriations rider cut off all funding to 
the Defense Department to conduct that kind of research, not to 
put the program in operation, but at least to consider some 
issues of how can you even balance privacy using computers 
against the kind of information you could gather and analyze 
using computers. Research on that has been halted through 
appropriations and that could be something that this committee 
could think about and monitor, balance, in order to bring us 
closer to what the British are able to do.
    My sense is the British do not have any constitutional 
restrictions on data mining and the reports in our press are 
that the British use that tool quite extensively.
    The last thing I will mention--again, Judge Posner beat me 
to it--is the MI5 model. Another thing that this committee 
could do is to start the transition of the FBI from a law 
enforcement-focused setup to something he mentioned, 
prospective, preventative. There's been a lot of studies done 
by people in this country and elsewhere about whether it's 
possible or consistent for that goal to sit with the law 
enforcement goal.
    As someone who has worked in the Justice Department, I have 
a lot of respect for the FBI agents and their managers, who 
have a very difficult problem. But I think it is fair to say 
over the last 5 years the FBI has had serious difficulty trying 
to upgrade its systems and change its mentality towards a type 
you would want for national security purposes.
    So that is something I think this committee could usefully 
do in addition to data mining, is to consider whether it wants 
to start using appropriations as a method to prod the FBI to 
move faster or even to consider other options, like 
supplementing the FBI with a new independent agency or telling 
the FBI to get out of the business of catching bank robbers and 
kidnappers and focus exclusively on national security and leave 
those other issues, which are perfectly appropriate in 
peacetime, to State and local law enforcement.
    But thank you very much for having me. I look forward to 
your questions.
    [The statement follows:]

                     Prepared Statement of John Yoo

    Mr. Chairman, thank you for the opportunity to testify before the 
Subcommittee on Homeland Security regarding American and British laws 
for investigating and detaining suspected terrorists. I am a professor 
of law at the University of California, Berkeley. From 2001 to 2003, I 
served as deputy assistant attorney general in the Office of Legal 
Counsel at the Department of Justice, where I worked on issues 
involving national security, foreign relations, and terrorism. My 
academic writing on these subjects can be found in two books, one 
published last year, The Powers of War and Peace, and one appearing 
later this month, War by Other Means. The views I present here are mine 
alone.
    Great Britain's successful prevention of a recent terrorist plot to 
destroy multiple American airliners flying from London to the United 
States in mid-air has prompted questions whether our counter-terrorism 
efforts can be improved. Some have suggested that British authorities 
enjoy broader law enforcement powers to investigate and detain 
terrorists, and asked whether we can learn from and adopt British 
practices. This idea has a basic attractiveness because the United 
States and Great Britain share a common cultural heritage, face a 
similar threat from international terrorism, and operate a common law 
legal system.
    As I will explain, differences result from both constitutional and 
policy choices. I hope to demonstrate in what areas the American 
Constitution prohibits adopting British standards, as well as areas 
where American laws can be made more effective at fighting terrorism, 
that is, where our policy choices are not limited by the Constitution. 
First, I will discuss important constitutional differences between the 
United States and Great Britain.
Constitutional Differences
    Unlike the United States, the United Kingdom does not have a 
written constitution. The British system lacks formal constitutional 
protections of many of the rights we consider fundamental as deriving 
from the constitutional text, structure, and history. Britain's 
unwritten constitution does not enforce a strict separation of powers 
at the national level, nor does it have a Federal system of government. 
Rather than an independent Presidency and Congress, executive power is 
exercised by a prime minister and cabinet which represent the majority 
party in Parliament.
    The American Constitution protects many important civil liberties 
through explicit guarantees in the Bill of Rights which are lacking 
under the British system. For instance, the Fourth Amendment was 
enacted in 1791, partly in response to British practices during the 
Colonial period. This Amendment states:

    The right of the people to be secure in their persons, houses, 
papers, and effects, against unreasonable searches and seizures, shall 
not be violated, and no Warrants shall issue, but upon probable cause, 
supported by Oath or affirmation, and particularly describing the place 
to be searched, and the persons or things to be seized.

    The Fourth Amendment imposes restrictions upon the power of the 
government to monitor and detain individuals, even for legitimate law 
enforcement purposes. The Supreme Court has interpreted an individual's 
right under the Fourth Amendment to require that to allow extended 
detention after a warrantless arrest, the suspect must be promptly 
presented before a judge to determine probable cause to stand trial for 
a crime--in almost all cases, within 48 hours. Gerstein v. Pugh, 420 
U.S. 103, 125 (1975); County of Riverside v. McLaughlin, 500 U.S. 44, 
56 (1991). If the evidence is found insufficient, the arrestee must be 
released. It is well established that the suspect may appeal under the 
writ of habeas corpus to challenge his continued detention. See, e.g., 
Ex Parte Bollman, 4 Cranch 75 (1807). Britain has no such 
constitutional limits, and has greater flexibility to legislatively 
alter the time and procedure of detention without charge.
    The First Amendment, likewise ratified as part of the Bill of 
Rights, protects among other things individuals' freedom of speech, 
religion, and association, which can come into conflict with law 
enforcement and intelligence purposes. Britain does not have a 
constitutional analogue to the First Amendment. Finally, the Sixth 
Amendment guarantees accused criminals certain rights, such as the 
right to a speedy trial and the right to be informed ``of the nature 
and cause of the accusation,'' and the right ``to be confronted with 
the witnesses against him.''
A Comparison of American and British Anti-Terror Laws
    The British Parliament has recently enacted several important 
pieces of anti-terrorism legislation: the Terrorism Act 2000, the 
Regulation of Investigatory Powers Act of 2000, the Anti-terrorism, 
Crime and Security Act of 2001, the Prevention of Terrorism Act 2005, 
and the Terrorism Act of 2006. These laws set forth comprehensive 
definitions of terrorism and related offenses, and establish procedures 
authorities shall follow in combating terrorism. The laws represent 
Britain's response to two distinct forms of terrorist threat. The first 
was from Irish separatists who committed acts of terrorism and murder 
in Northern Ireland and Britain. This was the United Kingdom's greatest 
domestic security threat for much of the latter part of the 20th 
Century. The second form of terrorism addressed by the British laws is 
Islamic fundamentalist terrorism perpetrated by al Qaeda and groups 
affiliated with it. This has taken on great prominence in Britain post-
9/11, and more so in light of the deadly attacks on the London 
Underground on July 7, 2005, and the recently foiled plot to hijack or 
blow up passenger jets departing Britain bound for the United States.
    The following provides a brief description of the differences in 
American and British anti-terrorism laws topic by topic. It examines 
the laws regarding arrest, searches, and detention of suspects; 
monitoring suspects' bank accounts; monitoring communications data; 
intercepting communications, i.e. wiretapping; infiltrating suspected 
groups; and finally, sharing information among law enforcement and the 
domestic and foreign intelligence communities.
Arrest, Searches, and Detention of Suspects
    Under the Terrorism Act of 2000, a British officer may arrest a 
suspected terrorist or conduct a search of a suspect he ``reasonably 
suspects'' is a terrorist or is in possession of ``anything which may 
constitute evidence that he is a terrorist.'' An American officer, by 
contrast, must have ``probable cause'' to make an arrest or conduct a 
search of a person he suspects to have committed a crime. See, e.g., 
United States v. Watson, 423 U.S. 411 (1976). This is the minimum under 
the Fourth Amendment and cannot be changed by Congress.
    The British have greater power to detain a terrorist without 
criminal charge. Section 23 of the Terrorism Act of 2006 sets forth a 
procedure under which a suspect may be detained for up to 28 days 
before he must be charged with a crime or released. After 48 hours, 
judicial approval is required, and is required a second time if the 
authorities wish to detain the suspect beyond 7 days. The judge does 
not need to find probable cause, but must be satisfied that ``there are 
reasonable grounds for believing that the further detention of the 
person to whom the application relates is necessary to obtain relevant 
evidence whether by questioning him or otherwise or to preserve 
relevant evidence,'' and ``the investigation in connection with which 
the person is detained is being conducted diligently and 
expeditiously.'' The suspect has access to counsel and may make written 
or oral communications before the judge; however, the suspect and his 
counsel may also be excluded from portions of the hearing. The British 
government has already invoked this power to detain the individuals 
arrested in conjunction with the August, 2006 plot to blow up airliners 
departing Britain. This allowed the plot to be halted, but also allows 
more evidence to be gathered prior to formally charging the suspects 
with crimes.
    In the United States, law enforcement authorities must generally 
present probable cause before a judge that a suspect has committed a 
crime or the suspect will be released. The Supreme Court has 
interpreted the Fourth Amendment to require the government to charge 
suspects at most within 48 hours. The Court has made clear that it is 
unreasonable to delay a probable cause hearing for purposes of 
gathering evidence to justify the arrest. McLaughlin, 400 United States 
at 56. There are few exceptions to the American probable cause 
paradigm. One is the material witness statute, 18 U.S.C.  3144, which 
allows the arrest and detention of suspects whose testimony in a 
criminal proceeding might be difficult to obtain. This has been applied 
in the war on terrorism to initially detain Jose Padilla, as well as 
others who may have had information about the 9/11 hijackers, but its 
applicability and usefulness are limited.
    It is not clear, however, that the unwritten nature of the British 
constitution permits broader detention authority than in the United 
States as a constitutional matter. The Supreme Court has made clear, as 
recently as in Hamdi v. Rumsfeld, 124 S. Ct. 2633 (2004), that the 
government may detain enemy combatants without criminal charge or 
hearing until the end of hostilties. On September 18, 2001, Congress 
voted in the Authorization to Use Military Force statute to approve the 
President's authority to use force against those connected to the 
September 11, 2001 terrorist attacks. Ever since the earliest days of 
warfare, the lesser power to detain combatants has been understood to 
fall within the greater authority to use force against the enemy. As 
the Court recognized, the purpose of detention in the military context 
is not to punish, but merely to prevent combatants from returning to 
the fight. In fact, such detention is the merciful, humanitarian 
alternative to a practice of granting no quarter to the enemy. That 
power extends even to U.S. citizens, as it did in the case of Ex Parte 
Quirin, 317 U.S. 1, 28 (1942), in which the Court upheld the World War 
II detention and trial by military commission of Nazi saboteurs, one of 
whom apparently was a citizen. After noting that the laws of war 
permitted the detention without criminal charge of Confederate soldiers 
during the Civil War, the Court observed that ``A citizen, no less than 
an alien, can be `part of or supporting forces hostile to the United 
States or coalition partners' and `engaged in an armed conflict against 
the United States.''' No specific congressional authorization, the 
Court further concluded, was needed. ``Because detention to prevent a 
combatant's return to the battlefield is a fundamental incident of 
waging war,'' the Court concluded, ``in permitting the use of 
`necessary and appropriate force'' Congress authorized wartime 
detention of enemy combatants.
    The Constitution imposes much narrower restrictions on the 
detention of criminal suspects than the British system. But if the 
subject is a terrorist connected with al Qaeda or with the September 11 
attacks, he or she might meet the standard for an enemy combatant. In 
that case, the U.S. government could detain the subject as an enemy 
combatant, without having to meet the criminal justice system's 48 hour 
requirement. The only complication in this argument is that Hamdi 
addressed a case in which the enemy combatant had been detained in the 
course of hostilities in Afghanistan, and did not address a different 
factual circumstance presented by an American citizen affiliated with 
al Qaeda who is detained on United States soil. While the U.S. Court of 
Appeals for the Fourth Circuit in Padilla found the same logic applied 
to both cases, the Department of Justice transferred Jose Padilla to 
the criminal justice system before the Supreme Court could hear an 
appeal.
Restricting Movements of Suspects
    Britain's Prevention of Terrorism Act allows authorities to issue 
``control orders'' which impose restrictions upon a suspect's civil 
liberties without incarcerating him. These orders, which require 
judicial approval and are valid for up to one year at a time, could 
restrict an individual's freedom to travel, to meet with certain groups 
or visit certain locations, to be away from his home during certain 
hours of the day, or to use cell phones or the internet. Currently the 
regime of control orders is under challenge as a potential violation of 
European human rights laws. The United States has no comparable Federal 
laws, and such provisions would run into constitutional difficulties 
due to the First Amendment's protections of individuals' freedom to 
travel and associate.
Monitoring Bank Accounts and Communications
    The Anti-terrorism, Crime and Security Act of 2001 allows British 
authorities to monitor bank accounts upon obtaining a warrant from a 
judge. The judge must find that the monitoring relates to a terrorist 
investigation, and also that the particular monitoring order sought 
will further that investigation. Anti-terrorism, Crime and Security Act 
of 2001, Schedule 2 Part 1 (amending Terrorism Act 2000  38). The 
order lasts for 90 days. Additionally, the Regulation of Investigatory 
Powers Act of 2000, and an accompanying Code of Practice, allows 
British law enforcement and intelligence authorities to evaluate 
communications data for patterns suggestive of terrorist activities. 
This means the attributes of communications, such as the location where 
a call was placed and its destination, but not the actual contents of 
the communication. To monitor communications data, a law enforcement or 
intelligence agency need only complete a written application, which is 
considered by a designated individual within the body or agency. 
Authorizations are valid for up to one month, and can be renewed. The 
government may also inquire into subscriber information, or the 
identity of persons to whom a telephone number is registered or who 
controls an email account or internet domain. British law enforcement 
and intelligence agencies are allowed to share any information obtained 
by these or other investigatory means.
    In the United States, authorities may obtain a warrant or 
administrative subpoena for financial records under the Right to 
Financial Privacy Act, 12 U.S.C.   3401-3422, which grants 
individuals some privacy rights over financial records in the hands of 
third parties. Authorities may also obtain a warrant for tangible items 
held by third parties, under section 215 of the USA Patriot Act. In 
2001, the Patriot Act authorized domestic law enforcement and 
intelligence agencies to share financial documents for the purposes of 
fighting terrorism. The ability of American authorities to obtain 
financial records by administrative subpoenas is somewhat easier than 
that granted to their British counterparts, and the rules on sharing 
the information among agencies are comparable. With regard to other 
tangible items, section 215 of the Patriot Act requires that the 
Foreign Intelligence Surveillance Court issue a warrant. Britain does 
not have a statute with scope analogous to section 215.
    Upon first examination, it would appear that the British system 
permits the government easier access to non-content data about 
communications because of its ability to seek authorization from an 
agency official. But the administration has sought a similar ability 
through its warrantless surveillance of communications, with one end of 
the message or conversation beginning or ending abroad, with a 
suspected al Qaeda member. These communications do not as yet require a 
judicial warrant, because the administration claims that the program is 
authorized by the AUMF of September 18, 2001, and the President's 
Commander-in-Chief authority to conduct war. The program is under 
challenge in the courts as a violation of the Foreign Intelligence 
Surveillance Act, and Congress is currently considering legislation 
that would approve the program or consolidate it for judicial review 
before the FISA court.
Data Mining
    Data mining uses supercomputers to analyze vast amounts of 
information for suspicious patterns of behavior. While British anti-
terrorism legislation does not address data mining, some commentators 
claim that data mining is already widely used in the United Kingdom to 
combat terrorism. A common misperception about data mining is that it 
involves gathering information about millions of individuals, and hence 
implies increased surveillance. Rather, data mining applies algorithms 
to information that is either already public or on record with third 
parties.
    Analyzing this type of information does not violate an individual's 
Fourth Amendment right to be free of unreasonable searches and 
seizures. As the Supreme Court has held with respect to bank records, 
once information is turned over to a third party in a commercial 
setting, the individual loses his reasonable expectation of privacy in 
that information. United States v. Miller, 425 U.S. 435 (1976). The 
Supreme Court likewise has held that an individual does not have a 
reasonable expectation to the privacy of the phone numbers he dials, 
because the phone user voluntarily gives this information to the phone 
company; thus, a ``pen register'' to record dialed phone numbers does 
not require a warrant. Smith v. Maryland, 442 U.S. 735 (1979). Data 
mining is constitutional and does not threaten civil liberties because 
it deals first and foremost with raw data. It is not an impermissible 
``fishing expedition'' that looks for dirt on a particular person, as 
civil libertarians may claim.
    American restrictions on data mining do not arise because of 
significant constitutional differences between the United States and 
Great Britain. Rather, restrictions on data mining in the United States 
have resulted from policy decisions made by Congress in response to 
reports of Defense Department efforts to create a ``Total Information 
Awareness'' program. I believe that Congress reacted prematurely to 
exaggerated reports of data mining research. Data mining could be 
controlled and developed so that it protects us from terror and 
maintains our privacy. Analysis could be limited to data already turned 
over to third parties.
    Searches could be performed initially by computer. Only after a 
certain level of suspicious activity had been registered would an 
intelligence or law enforcement officer be allowed to see the results. 
A warrant could still be required to investigate the content of 
communications or the purpose of purchases. Only after a suspicious 
pattern is detected would authorities seek more complete records about 
a particular individual's activities, either through a warrant or 
administrative subpoena. Because data mining does not violate Fourth 
Amendment norms, Congress can authorize data mining programs that 
strike the appropriate balance between providing law enforcement access 
to useful information and protecting civil liberties.
Profiling, Infiltration, and Privacy
    British authorities have the power to monitor ethnic and religious 
groups, and radical elements within those groups. British police can 
infiltrate the groups, instead of merely relying on informants' 
accounts. It is unclear precisely where and how often British 
authorities have infiltrated or attempted to infiltrate such groups. 
However, there is no indication that such actions are considered 
illegal or unconstitutional under the British legal system.
    In the United States, guidelines issued by the Attorney General set 
forth the extent to which the FBI can monitor potential terrorist 
activities and infiltrate criminal or terrorist ventures.\1\ These 
guidelines explicitly allow the FBI to check initial leads that may be 
related to crime or terrorism, including attending public events. The 
FBI may also infiltrate terrorist organizations, but such operations 
are normally considered ``sensitive circumstances'' requiring approval 
of high-level FBI officials. The decision regarding when infiltration 
is appropriate requires that officials weigh factors, but the 
Guidelines neither prescribe nor proscribe particular instances when 
infiltration is advisable or forbidden.
---------------------------------------------------------------------------
    \1\ See The Attorney General's Guidelines on General Crimes, 
Racketeering Enterprise and Terrorism Enterprise Investigations, http:/
/www.usdoj.gov/olp/generalcrimes2.pdf; The Attorney General's 
Guidelines on Federal Bureau of Investigation Undercover Operations, 
http://www.usdoj.gov/olp/fbiundercover.pdf.
---------------------------------------------------------------------------
    The areas of profiling, infiltration, and privacy present fewer 
constitutional restrictions and more policy choices. Profiling, which 
may perhaps represent a useful tool, can run afoul of equal protection 
rules and non-discrimination norms.
Conclusion: administrative reform
    Differences between British and American anti-terrorism policy does 
not turn on constitutional differences for their scope. Many of the 
powers thought to be more advantageous to the British, such as 
detention and surveillance, in fact have some counterpart in the 
American system. Congress could help by further authorizing these 
powers, which are under attack in the court. Other important areas, 
such as in the area of data mining, are restricted in the United States 
not because of constitutional prohibitions, but because of policy 
choices made by Congress.
    Perhaps the most important British-American difference, however, 
which can have significant effects on the war on terrorism is the 
structure of the domestic intelligence agencies. American efforts so 
far to reform our national security system in response to the lessons 
of 9/11 have focused on changes of high-level administrative 
reorganization, such as the creation of a Director of National 
Intelligence or the Department of Homeland Security. These changes have 
consumed energy and resources, but have placed an additional layer 
between the President and those who directly collect and analyze 
intelligence.
    At the same time, Congress has not undertaken any sweeping reform 
of the Federal Bureau of Investigation. The United States is different 
from Britain, and France, Canada, and Australia, for that matter, in 
that it assigns domestic counter-terrorism and counter-intelligence 
functions to an agency that is also responsible for domestic law 
enforcement. As I argue in my book, the approaches to law enforcement 
and national security are very different. The former is retrospective, 
depends on building cases, and focuses on prosecution and 
incarceration. The latter is prospective and focuses less on 
convictions than on preventing future attacks.
    In Great Britain, these functions are split up, with MI5 performing 
the role of an internal intelligence service. Arguably this allows 
those tasked with counter-terrorism to focus on gathering intelligence, 
engage in long-term monitoring and investigation, and develop expertise 
on the enemy that may go beyond what is possible in a domestic law 
enforcement system, which depends on cases and prosecutions for 
success. Congress should devote deeper thought to whether our counter-
terrorism efforts would meet with greater success if it divided the 
FBI's current duties between two agencies, one for domestic law 
enforcement and one for counter-terrorism and national security 
affairs. This could be a greater contribution to our anti-terrorism 
laws than making changes to the scope of the substantive powers 
available to the government.

    Senator Gregg. Thank you, professor. I appreciate those 
comments. We have actually had that debate going on for a 
while, so I appreciate the reinforcement on the points.
    Mr. Parker.
STATEMENT OF TOM PARKER, CEO, HALO PARTNERSHIP 
            CONSULTING, FORMER BRITISH COUNTERTERRORISM 
            OFFICIAL
    Mr. Parker. Thank you, Mr. Chairman, and thank you for 
inviting me. I find myself in the position of an echo to an 
echo, I think.
    I would start by saying the two systems, the United States 
system and the British system, are much more similar than I 
think commonly perceived over here. Britain has a large number 
of restraints on what it can and cannot do, imposed by its 
membership in the European Convention on Human Rights, the 
European Convention. Perhaps appropriately, we have heard how 
the British common law system informed the American 
Constitution. Well, the European Convention on Human Rights is 
very strongly informed by the U.S. Constitution. It draws its 
inspiration from human rights and the codification of private 
rights pioneered really by the United States in the 18th 
century and by revolutionary France. So there is a certain 
symmetry to this.
    The big difference, though, is we have oversight that sits 
outside the United Kingdom, and that is the European Court of 
Human Rights in Strasbourg. That is our last court for appeals 
and it is staffed by foreign judges. So although a British 
judge will sit on a European court case, there will be 7 or 
perhaps 14 foreign judges hearing the case and the submissions. 
So there is no natural sympathy on the bench to the British 
perspective when they hear the British government make its 
arguments.
    That is a very powerful enforcement mechanism. We are--it 
is a binding court. We are obligated to respond to its 
judgments, and that means that we are held to a very high 
standard, one that can be very aggressive in pursuing the 
reasons behind British legislation. And it has rolled back 
British counterterrorist strategies in a number of very 
significant areas over time, most significantly in the area of 
coercive interrogation.
    The other thing that is interesting about the European 
court and is worth mentioning is its focus is on creating a 
margin of appreciation for each individual European country. 
The court does not, and has actually several times made it very 
explicit in its judgments, ever set out to make any form of 
judgment about what is or is not appropriate governmental law 
enforcement action. What it looks at is purely whether or not 
the convention itself has been violated, and if it has, if 
actions of governments are up against the limits of the 
convention, the degree to which that is appropriate within that 
forum. For example, it will treat Britain's response to 
counterterrorism different to the way that it treats Turkey's 
response to counterterrorism.
    So you do not have the same sort of framers' intent, people 
poring back to a foundational document and trying to tease out 
nuances. There is a little bit more sympathy for trying to 
understand the local conditions. But at the same time, there is 
no great political sympathy for any governmental point of view. 
So it is kind of an interesting contrast to the Supreme Court 
in a number of different ways.
    Perhaps the most important area for me to dwell on I guess 
is our approach to counterterrorism activity, which is 
essentially one of criminalization. We have a doctrine of 
criminalization in the United Kingdom. We have not always had 
that and we adopted it primarily because of the lack of success 
we enjoyed in the early 1970s against the Provisional IRA in 
Northern Ireland.
    One of the reasons, one of the factors in returning back to 
this doctrine of criminalization, was the European Court on 
Human Rights and the checks that it imposed on British activity 
and the embarrassment the British government felt having its 
different operations held up to scrutiny in Strasbourg.
    I am going to read you the home office strategy because I 
think it is quite interesting. The home office basically gives 
four core strategic areas for combating terrorism. It is 
prevention, which it lists as basically falling into four 
different areas: social inclusion, international dialogue, 
legislation, border security. So that is block number one, 
preventative.
    Block number two is pursuit and we see pursuit basically as 
falling into only two spheres, intelligence activity and law 
enforcement activity. There is no real mention of military as 
an option within the British counterterrorist strategy.
    Protection, that is target hardening, protective security; 
and then preparedness, focus on emergency responses.
    So that is sort of the four pillars, if you like, for the 
British counterterrorism approach. The other interesting thing 
that the idea, the doctrine of criminalization, does is there 
is always pull back to the status quo ante. We have had a 
history of having temporary legislation for counterterrorism. 
In Northern Ireland we had basically over an almost two decade, 
three decade period, annual renewal of the laws, prevention of 
terrorism acts, that define terrorism purely in the context of 
Northern Ireland. This meant, for example, until 2000, the year 
2000, in the United Kingdom you could not be a terrorist unless 
you were Irish, unless you were one of the proscribed 
organizations within the Prevention of Terrorism Act, which was 
very, very tightly defined just to focus on the terrorist 
threat in Northern Ireland. It is only in the year 2000 that we 
ended up with permanent counterterrorist or anti-terrorist 
legislation. Up until this point there was always this doctrine 
that this is an extraordinary circumstance and we will limit 
our deviations from the norm and try and get back to the norm 
as soon as possible.
    But having said that, there are many, many areas in which 
we compromise the norm. A good example, particularly after 
Judge Posner's comments, the Diplock courts. In Northern 
Ireland it really was impossible to have a normal jury trial of 
terrorism offenses. So we introduced a court system where a 
judge heard cases without a jury sitting and somewhat relaxed 
the rules of evidence, so that it would be easier to present 
evidence and protect security concerns in that court. Again, 
Diplock courts only sat in Northern Ireland and so they were 
only relevant for offenses that occurred in Northern Ireland, 
not for offenses that occurred on the mainland.
    So there is this interesting, again, tension in the British 
system between a desire and focus on treating terrorists as 
criminals. We flirted--we in the early 1970s gave terrorists 
special category status as prisoners, effectively recognizing 
that they fell into a political character, category of 
offender, rather than simple criminals, and we moved back away 
from that in 1974 and 1975.
    So the statute of criminalization has served us pretty 
well. And I think--far be it, I do not feel like I really 
represent Her Majesty's government, but at the same time I 
think it would be fair to say that the current government in 
the United Kingdom still clings to that as a very important 
touchstone of its counterterrorist approach, that we should 
always see this as a temporary circumstance, one in which we 
should always be pulling back away toward normalization of our 
normal criminal justice system. That is essentially the 
concept.
    Finally, since--and I am thrilled to hear MI5 get such a 
good press in front of the committee. I will say a few brief 
words about what I think the strengths of our system are. The 
primary strength is the focus. You have an agency that is 
devoted, not exclusively to counterterrorism, but now at least 
80 percent of the service's work is counterterrorism. It 
recently released its support of organized crime function, 
which it had got in the mid-1990s, simply so it could focus 
more closely on the threat of international terrorism. So you 
have a laser beam focus on a threat, which is very useful.
    You also have a central coordinating point, and that for me 
is the really key thing about our system. We have one agency 
whose job it is to get the word out to everybody. We do not 
have 4,000--I forget the number of police and law enforcement--
--
    Senator Gregg. 18,000.
    Mr. Parker. 18,000 law enforcement agencies. We have less 
than 60, which makes life a lot easier. I think there is about 
50 regional police forces. It keeps changing and there is a 
bill to make it--reduce the number of forces even more in front 
of Parliament at the moment. Then we have a small number of 
very specialized police forces, like the transport police.
    But basically MI5's role is to make sure that the 
information, the intelligence, gets out to the people who need 
it, whether that is law enforcement, whether that is people 
responsible for protective security in individual buildings, 
whether that is to government ministers who need to make policy 
judgments. MI5 is the hub and it makes sure that all 
information that comes through it gets out to the right people.
    Now, this of course does not happen overnight. You do not 
just create something and have it function perfectly. What you 
would not get from my written statement is a sense of the 
conflicts which certainly did occur, particularly with the 
metropolitan police special branch in the early 1990s, when the 
security service took over primacy for counterterrorist 
investigations on the mainland.
    But what has happened is the service has proved that it 
adds value, and it has added value by sharing intelligence and 
working very closely with police forces. But it still keeps the 
wall. I hesitate to mention the wall, but the wall is very 
important in Britain. You know, you have intelligence 
investigations and you have law enforcement investigations. The 
fact that it sits in a different agency makes it much easier to 
draw where that line is.
    Security service officers and police officers work very 
closely together. Although MI5 is the central coordinating 
point, it has a filter in regional special branches. So there 
are police officers in every police force who have, if you 
like, an intelligence hat on that can to a degree take the 
security service's concerns in mind when they are working day 
to day with the police forces.
    So it is a very effective system. It is one that keeps 
intelligence out of the courts, although the security service 
has on occasion engineered ways to perhaps use obsolete 
equipment in court cases where you might actually want to 
disclose the methods used. But primarily it tries to keep the 
two things separate. It will go to court in support of police 
investigations if absolutely necessary. There is certainly no 
constitutional or legal bar from them doing that.
    The final mechanism that we have that is tremendously 
useful is a thing called a public interest immunity 
certificate. Then the service can apply to a judge for a 
certificate of immunity for disclosure of information that 
could be damaging from an intelligence perspective. Essentially 
what happens there is the judge gets to see what the 
information is and rule whether or not this is a legitimate 
concern. And if it is, the government is issued with a PII that 
protects intelligence from disclosure in court. That is a very, 
very useful little legal nicety or statutory nicety.
    I think I probably should wind up there. Thank you very 
much.
    [The statement follows:]

                    Prepared Statement of Tom Parker

    Acts of terror on British soil have been remarkably commonplace in 
the past 35 years. In addition to Irish nationalist and Loyalist 
violence relating to the Troubles in Northern Ireland, groups as 
diverse as Black September, the Animal Liberation Front and the Angry 
Brigade, individuals with links to Hezbollah and Al Qaeda, and agents 
of foreign powers such as Libya, Iraq and Syria have all mounted 
attacks in the United Kingdom. In the past 5 years British citizens 
have been killed in terrorist attacks in Turkey, Jordan, Qatar, Saudi 
Arabia, Indonesia and the United States. More Britons were killed in 
the World Trade Center on September 11, 2001 than in any terrorist 
event before or since. In July 2005 52 people were killed and more than 
700 injured in suicide bombings that targeted the London Transport 
system. Suffice it to say, the British government takes the threat from 
terrorism, whether domestic or international in origin, extremely 
seriously.
What constitutional limits does the United States have that Great 
        Britain does not have?
    There appears to be a perception in the United States that there 
are fewer civil liberties protections in the United Kingdom and that 
the British government consequently has a far freer hand to develop 
stringent counterterrorist measures. However, this impression is not 
entirely accurate. The protective framework for civil liberties in the 
United Kingdom is dense and complex, and at times can be both more 
flexible and more implacable than the equivalent protective measures in 
the United States.
    Unlike the United States, Great Britain does not possess a single 
foundational document that amounts to a written constitution. 
Constitutional practice has evolved over centuries and is embedded in 
common law and a series of legislative instruments. In this sense there 
is a great deal of flexibility for British legislators to shape the 
legal landscape. However, in past 50 years a significant external check 
on this power has emerged in the shape of the European Convention on 
Human Rights (ECHR).
    The ECHR is a treaty that operates within the framework of the 
Council of Europe. It was ratified by Britain in 1953, which is 
currently one of forty-six Contracting States. The original draft of 
the Convention was inspired by the United Nations' 1948 Universal 
Declaration of Human Rights. The closest that Britain comes to a Bill 
of Rights, in the American sense, is the Human Rights Act of 1998. This 
Act of Parliament was passed to ``give further effect'' to the rights 
and freedoms detailed in the ECHR by enshrining them in British law.
    As a signatory of the ECHR, Britain has voluntarily submitted to a 
binding enforcement mechanism in the shape of the European Court of 
Human Rights in Strasbourg, France. Britain, like the other Contracting 
States, has accepted the Strasbourg Court's ultimate jurisdiction in 
adjudicating matters arising from alleged breaches of the Convention. 
This means that the judgments of British courts are no longer sovereign 
in such cases but must give way to a higher authority staffed by 
foreign judges. The Court seeks to empathetically balance Contracting 
States' individual circumstances against the human rights standards 
embodied in the Convention by allowing each State ``a margin of 
appreciation'' in interpreting their treaty obligations. In such 
instances, the basic test applied by the Court is whether or not the 
disputed practice answers a pressing social need and, if so, can be 
considered proportionate to the legitimate aim pursued. The domestic 
margin of appreciation is thus accompanied by a level of European 
supervision.
    This margin of appreciation has been applied by the Court in 
considering cases related to terrorism and other threats to 
parliamentary democracy with a flexibility not enjoyed by the U.S. 
Supreme Court. For example, in 1972 the Federal Republic of Germany 
adopted a decree aimed at excluding political extremists from 
employment in the civil service and reiterating all civil servants' 
legal duty of loyalty to the free democratic constitutional system. In 
a series of cases arising from the dismissal of members of the left-
wing German Communist Party (KPD) and right-wing National Democratic 
Party (NDP) from Civil Service positions (most often in the teaching 
profession), the Court accepted that ``a democratic state is entitled 
to require civil servants to be loyal to the constitutional principles 
in which it is founded'' and took into account ``Germany's experience 
under the Weimar republic and the bitter period that followed the 
collapse of that regime'' (Vogt v. Germany, 1995).
    In questions of free speech the Court has recognized that there is 
a balance to be struck between protecting national security and 
protecting fundamental human rights. The Court has explored where this 
balance lies most carefully in a series of complaints from Turkey 
arising from the local prosecution of articles and statements critical 
of Turkish government policy towards the Kurdish Workers' Party (PKK) 
finding for the government in Zana v. Turkey (1997) and against it in 
Incal v. Turkey (1998) and Arslan v. Turkey (1999). In its 
deliberations the Court weighed such factors as the prominence of the 
individual concerned, the circumstances of publication, the political 
climate at the time the statement was made and the ``virulence'' of the 
language used. It is therefore unlikely that the Court will strike down 
the most controversial section of Britain's Terrorism Act (2006) which 
creates a new offence of ``glorifying terrorism.''
    The Court made it clear in Ireland v United Kingdom (1978) that it 
did not see that it was any part of its function ``to substitute for 
the British Government's assessment any other assessment of what might 
be the most prudent or most expedient policy to combat terrorism.'' The 
Court restricted its role to reviewing the lawfulness, under the 
Convention, of the measures adopted by the Government in Northern 
Ireland. In this context, in Ireland v. United Kingdom the Court did 
not find extra-judicial internment a breach of the Convention nor did 
it find the British primary focus on Irish nationalist groups 
discriminatory. It did, however, rule against the use of coercive 
interrogation methods in detention centers in the Province (of which 
more below).
    The reason for this discrepancy is that, although States do have 
the right under Article 15 of the ECHR to lodge a derogation from some 
aspects of the Convention--during a period of public emergency 
``threatening the life of the nation'' to the extent strictly required 
by the exigencies of the situation--there can be no derogation from the 
core values embodied in Article 2 (right to life), except in respect of 
deaths resulting from lawful acts of war, Article 3 (prohibition on 
torture or inhuman or degrading treatment), Article 4 (prohibition on 
compulsory labor) and Article 7 (prohibition on retrospective 
criminalization).
    The United Kingdom was the only European state to register a 
derogation from the Convention after the attacks in the United States 
on September 11th, 2001. The British government formally derogated from 
article 5(1)(f) of the ECHR, which protects against deprivation of 
liberty except for purposes of deportation or extradition. The reason 
for this decision was to allow the government to operate a special 
detention regime for political asylum applicants to the United Kingdom 
suspected of involvement in terrorism, where it was not possible to 
deport them because they would be at risk of torture or death if 
returned to their country of origin.
    Introduced in December 2001 as part of the Anti-Terrorism Crime and 
Security Act (ATCSA), this detention regime was finally overturned by 
the Law Lords (the British equivalent of the U.S. Supreme Court) in 
December 2004 as a breach of Britain's Human Rights Act (1998). In all, 
sixteen individuals were detained under the ATCSA and all were 
subsequently released although most are still subject to control orders 
restricting their freedom of movement.
    Britain has contributed more to the evolving jurisprudence of the 
European Court in the area of national security than other nation 
(except perhaps for Turkey) because of the Troubles in Northern 
Ireland. A number of landmark cases have had a major impact on British 
counterterrorism practice in areas such as the use of telephone 
intercepts, the legal status of the intelligence services, the use of 
military forces in a civilian context, oversight mechanisms, and the 
use of coercive interrogation methods. A selection of relevant cases 
can be found at Annex A.
How do the British balance individual liberties with the need for 
        collective security?
            A Doctrine of Criminalization
    In the early 1970s a series of missteps in Northern Ireland--
notably the introduction of internment, the deployment of troops armed 
with live ammunition in public order situations and the use of coercive 
interrogation (see below)--resulted from the initial decision to treat 
the Troubles in much the same way as a colonial disturbance. Emblematic 
of this approach was the arrival Brigadier Frank Kitson, the celebrated 
author of the classic counterinsurgency manual Low Intensity Operations 
and a veteran of British military campaigns in Malaya, Kenya and Oman, 
to command the British Army Brigade in Belfast. The legacy of this 
policy was a major escalation in the level of violence across the 
Province and the extension of the nationalist terror campaign to the 
British Mainland. As Sinn Fein leader Gerry Adams noted in his memoir 
Before the Dawn: ``The attitude and presence of British troops was also 
a reminder that we were Irish, and there was an instant resurgence of 
national consciousness and an almost immediate politicization of the 
local populace.''
    A change of government in 1974 ushered in a new approach in 
Northern Ireland, one that aimed to delegitimize PIRA violence by 
treating terrorism as just another criminal activity to be dealt with 
at a local level. This strategy, which became known as criminalization, 
normalization and Ulsterization, guided British attitudes for the 
remainder of the conflict and has become a benchmark for British 
governmental responses to terrorism. In Northern Ireland this policy 
ultimately created a climate in which both cross-border co-operation 
could flourish and a meaningful peace process could gain ground amongst 
the warring parties. Since 1974 successive British governments from the 
two major parties have pursued a policy of treating terrorism--both 
foreign and domestic--as a law enforcement problem.
    Having tried brute force and found it wanting, the British 
government has come to appreciate the importance of legitimacy in 
counterterrorism operations. Criminalizing terrorism adds greatly to 
the appearance of legitimacy. It also creates a framework which 
significantly mitigates the sort of abuses that can discredit a 
government internationally:
  --The British criminal justice system has demonstrated an increasing 
        willingness to address and eventually rectify past mistakes, 
        such as the wrongful convictions of the Birmingham Six and 
        Guildford Four who had been suspected of involvement in a 
        series of pub bombings in the autumn of 1974.
  --The Stalker and Stevens independent police enquiries into 
        allegations of a government sanctioned ``shoot-to-kill'' policy 
        in Northern Ireland together comprise the largest criminal 
        investigation ever undertaken in the United Kingdom generating 
        9,256 witness statements, 10,391 seized documents and 16,194 
        exhibits. The enquiries have resulted in almost 100 convictions 
        for a variety of offences but they ultimately failed to 
        demonstrate the existence of an official ``shoot-to-kill'' 
        policy.
  --The Courts have been vigilant in upholding basic human right 
        standards. As outlined above, in December 2004 the Law Lords 
        overturned the immigration detention regime established under 
        the ATCSA. In December 2005 the Law Lords ruled that material 
        gathered overseas by means of torture would be inadmissible as 
        evidence in British Courts.
    Finally, it should also be noted that Parliament has played a major 
role in advocating for civil liberties in recent years. In 2005 the 
Labour government introduced a Terrorism Bill that proposed a maximum 
90 day period of detention without charge for terrorism offences. This 
Bill was defeated despite a substantial government majority in the 
House of Commons because a number of Labour MPs voted against their own 
front bench. The Terrorism Act (2006) introduced a shorter 30 day 
maximum period of detention and this passed with significant misgivings 
and a commitment to further consultation.
            Oversight
    It is probably fair to say that the British public lacks ``the 
dread of government'' often ascribed to the American people and this 
can be seen in the relatively benign oversight mechanisms that govern 
the operations of the security and intelligence agencies. Although a 
former Director General of the Security Service, Dame Stella 
Rimmington, has observed that accountability lies at the heart of the 
tension between liberty and security, this is an area in which the 
United Kingdom differs markedly from the United States.
    In the United Kingdom the oversight applied to the operation of the 
intelligence and security services is primarily either Ministerial (the 
Home Secretary or Foreign Secretary) or bureaucratic (the Joint 
Intelligence Committee and National Audit Office) although some public 
mechanisms for redress exist through designated Tribunals or 
Commissioners. Parliamentary oversight is limited to a single statutory 
committee with a legally defined brief restricted to matters of 
expenditure, administration and policy. This is a constitutional 
oddity--the parliamentary oversight of governmental bodies is usually 
conducted by Parliamentary Select Committees which have greater freedom 
to set their own agendas. More details on the oversight regime in the 
United Kingdom can be found at Annex B.
What can the United States Learn From the British?
            Coordination
    The greatest single strength of the British approach to 
counterterrorism is the high degree of coordination that now extends 
throughout the national security hierarchy. This was not something that 
happened overnight but has evolved over several decades. At the apex of 
this system is the Joint Intelligence Committee (JIC) comprised of the 
heads of each intelligence agency and chaired by a senior civil servant 
with experience of, but not necessarily from, the intelligence 
community.
    The Committee meets weekly or more frequently should circumstances 
require it. Its primary role is to produce definitive top-level all-
source assessments for British ministers and senior officials. These 
assessments are produced by Cabinet Intelligence Groups (CIGs) chaired 
by Cabinet Office staff and comprised of subject experts from the 
intelligence community. Every relevant party is represented and the 
objective of the group is to agree a corporate assessment that reflects 
a consensus view across government. Thus ministers are not bombarded by 
conflicting information and left to reach their own conclusion 
regarding the most compelling interpretation.
    Each Service also submits an account of its overall performance to 
the Joint Intelligence Committee (JIC) for consideration by the 
Security and Intelligence Coordinator as part of the Agency Performance 
Review. The JIC reviews and validates the Services' plans and 
priorities for the forthcoming year as part of this process.
    Subject experts from different agencies frequently have the formal 
opportunity to add their comments to intelligence reports issued by 
other agencies ensuring that key intelligence--HUMINT and SIGINT--is 
presented along with corroborating or discrediting material from other 
sources. Finally, it is worth noting that the relatively small size of 
the British intelligence community allows subject experts to develop 
strong relationships with their counterparts in other agencies. This 
greatly facilitates the flow of information between agencies and helps 
to reduce inter-service rivalry.
    The Joint Terrorism Analysis Center (JTAC) was established in June 
2003 as the United Kingdom's center for the analysis and assessment of 
international terrorism. JTAC sets threat levels and issues warnings of 
threats and disseminates in-depth reports on trends, terrorist networks 
and capabilities to its partners in government. Eleven government 
departments and agencies are represented on the staff of JTAC and the 
center is based in Thames House, the headquarters of the British 
Security Service. The head of JTAC reports directly to the Service's 
Director General.
The Role of the Security Service (MI5)
    The Security Service has primacy in all counterterrorism 
intelligence investigations conducted either on the British mainland or 
overseas. According to the Intelligence and Security Committee report 
on the July 2005 London Transport bombings, the number of MI5's 
``primary investigative targets'' rose from 250 to 800 between 
September 11, 2001 and July 2005. Intelligence-gathering operations 
relating to these ``primary targets'' are the Service's main priority.
    The Security Service also acts as an interface between the 
intelligence community and law enforcement. It has developed a deep 
institutional understanding of the demands and operational constraints 
of each paradigm. The Service is not an executive agency and its 
officers have no powers of arrest. Executive action can only be taken 
by the nation's law enforcement agencies although Chief Constables have 
the option of requesting military support in certain circumstances. 
Post-incident primacy rests with the police service in whose force area 
a terrorist incident has occurred, although MI5 can continue to act in 
a supporting role to the police investigation. The Service can bring a 
range of resources not usually available to Chief Constables to support 
local operations. The Northern Ireland Police Service still enjoys 
intelligence primacy in Northern Ireland although this status is 
currently under review.
    As the central coordinating point in Britain's pre-emptive 
counterterrorist effort, the Security Service also disseminates 
intelligence to regional police forces and other governmental partners 
in the form of both actionable reports and background bulletins which 
can cover anything from briefings on different terrorist organizations 
to technical reports on terrorist weapon systems. The Service advises 
Whitehall and the business community on protective security measures 
and runs training courses for external--even foreign--personnel. It 
spearheaded the installation of nationwide secure communications system 
for police Special Branches and provides national coverage in a system 
which is otherwise robustly regional in character.
    The Security Service can be seen as the glue that holds the 
architecture of the British counterterrorist effort together. There are 
currently forty-three regional police forces in England and Wales most 
with less than 4,000 officers, another eight in Scotland operating 
under a separate judicial system, the Northern Ireland Police Service 
and a small number of forces with specialized roles such as British 
Transport Police or the Ministry of Defence Police. There is no 
national police force equivalent to the Federal Bureau of Investigation 
(FBI) although the newly created Serious Organized Crime Agency (SOCA) 
is beginning to partly develop in this direction. The fact that the 
government chose a former Director General of the Security Service, Sir 
Stephen Lander, as the first head of the SOCA is an important 
illustration of the reputation MI5 has established for building 
effective coalitions within the law enforcement community.
An American MI5
    Post incident investigation and pre-emptive intelligence gathering 
require a different--and not always symbiotic--skill set. Furthermore, 
from a managerial perspective prosecution and intelligence exploitation 
can frequently be mutually exclusive objectives greatly detracting from 
clarity of purpose. While clearly there is no a priori reason why both 
functions cannot effectively be undertaken by the same agency, the 
British experience suggests that this can prove problematic.
    The counterterrorist function in the United Kingdom was initially 
vested in Police Special Branches (SB) comprised of detectives 
operating within regional constabularies. The first Special Branch was 
established by the Metropolitan Police in 1883 to counter the threat 
from the Irish Republican Brotherhood. Police Special Branches, 
coordinated by the Metropolitan Police, enjoyed primacy in 
counterterrorist intelligence investigations on the British mainland 
for most of the Twentieth Century.
    At the outset of the 1990s a degree of governmental dissatisfaction 
at the lack of success of this arrangement, coupled with an expectation 
that the collapse of the Warsaw Pact would free up intelligence 
resources, led in 1992 to the transfer of primacy from the Special 
Branches to the Security Service. The Special Branches had been able to 
boast very few successful intelligence-led arrests. The Service by 
contrast had an almost immediate impact and the number of pre-emptive 
disruptions of terrorist activity increased, with Service operations 
leading to 21 convictions for terrorism-related offences between 1992 
and 1999.
    However, this consideration also needs to be balanced against 
another important lesson of the British experience, which is that 
institutional relationships need time to bed down and that once 
agencies start operating effectively these relationships improve and 
strengthen over time. Police Special Branches have been working closely 
with the Security Service since 1910 when the then Home Secretary, 
Winston Churchill, provided MI5's first Director General, Vernon Kell, 
with a letter directing the chief constables to extend him ``the 
necessary facilities for his work.'' The Security Service and the 
Secret Intelligence Service were both born out of the same government 
agency, the Secret Service Bureau, and ties have remained close. The 
key to this virtuous circle in the United Kingdom has been effective 
executive leadership. There is definitely a sense in which disrupting 
existing relationships can have a retrograde effect on effective 
cooperation.
The Mistakes of the Past
    The British government's early missteps in its counterterrorism 
campaign against the Irish Republican Army (IRA) and the Provisional 
IRA (PIRA) are also instructive. Comparison and analogy are not always 
reliable policy guides but the British experience in Northern Ireland 
offers some useful insights into the inherent risks involved in the 
following areas: internment without charge, coercive interrogation and 
the use of military personnel in a traditional law enforcement role.
Internment
    In the fall of 1971, faced with escalating violence in the 
Province, the Unionist Prime Minister of Northern Ireland Brian 
Faulkner persuaded the British government that the introduction of 
internment might bring the situation under control. On August 9, 1971 
British troops mounted a series of raids across Northern Ireland which 
resulted in the detention of 342 IRA suspects. The operation, codenamed 
Demetrius, was characterized by poor and out of date intelligence which 
resulted in many individuals being wrongly detained. Joe Cahill, then 
Chief of Staff of the Provisional IRA and a prominent target of 
Operation Demetrius, taunted the authorities by surfacing to hold a 
press conference in Belfast at which he claimed only 30 of the men who 
had been detained were actually members of PIRA.
    Within Northern Ireland internment further galvanized the 
nationalist community in its opposition to British rule and there was 
an immediate upsurge in violence against the security forces. 27 people 
had been killed in the first 8 months of 1971 prompting the 
introduction of internment, in the four remaining months of the year 
147 people were killed. 467 were killed in 1972 as a result of 
terrorist action. The number of terrorist bombings in the Province 
increased dramatically from around 150 in 1970, to 1,382 in 1972. In 
the words of a former British Intelligence officer Frank Steele who 
served in Northern Ireland during this period: ``[Internment] barely 
damaged the IRA's command structure and led to a flood of recruits, 
money and weapons.''
    Internment was to continue in Northern Ireland until December 5, 
1975 by which time a total of 1,981 people had been detained, the vast 
majority of them from the Catholic community. The British Army 
estimated that up to 70 percent of the long-term internees became re-
involved in terrorist acts after their release so the measure clearly 
did little to deter committed activists. The British government finally 
took the decision to discard the power of internment in January 1998. 
Announcing the decision, the Junior Northern Ireland Minister Lord Dubs 
told the House of Lords: ``The Government have long held the view that 
internment does not represent an effective counter-terrorism measure. 
The power of internment has been shown to be counter-productive in 
terms of the tensions and divisions which it creates.''
Coercive Interrogation
    In the immediate aftermath of the introduction of internment in 
August 1971 the British security forces implemented a policy of 
``interrogation in depth'' for selected detainees. RUC interrogators 
working ``under the supervision'' of the British Army applied five 
well-established techniques which had previously been practiced in the 
course of colonial emergencies: (1) hooding, (2) wall-standing, (3) 
subjection to noise, (4) relative deprivation of food and water and (5) 
sleep deprivation. Almost a third of those detained on the first day of 
Operation Demetrius were released within 48 hours and with these 
releases came the first stories about the ill-treatment of those held 
by the security forces. In addition to the use of the ``five 
techniques'', detainees reported being forced to run an obstacle course 
over broken glass and rough ground whilst being beaten and, perhaps 
most seriously of all, being deceived into believing that they were 
about to be thrown from high flying helicopters unless they agreed to 
co-operate with the authorities.
    In August 1971 British Home Secretary Reginald Maudling responded 
to growing public concern by appointing Sir Edmund Compton to 
investigate forty such complaints made by suspects apprehended on the 
first day of internment. Despite accepting that the events described by 
the plaintives did indeed take place, Sir Edmund reported: ``Our 
investigations have not led us to conclude that any of the grouped or 
individual complainants suffered physical brutality as we understand 
the term.'' The failure of the Compton Report to meaningfully address 
the abuses that had occurred in British detention facilities further 
damaged the government's credibility.
    Ultimately, the government's failure to act decisively to curb 
abuses and put an end to the use of the ``five techniques'' led the 
Republic of Ireland to file an application with the European Commission 
on Human Rights alleging that the emergency procedures applied against 
suspected terrorists in Northern Ireland violated several articles of 
the European Convention on Human Rights. The case was referred to the 
European Court of Human Rights for adjudication which found that the 
``five techniques'' were ``cruel, inhuman and degrading'' and thus 
breaches of Article 3 of the Convention (See Annex A).
    The actual utility of coercive interrogation was also addressed at 
some length in the course of the Ireland v. United Kingdom case. The 
British government sought to argue that it had been necessary to 
introduce such techniques to combat a rise in terrorist violence. The 
government claimed that the two instances of ``interrogation-in-depth'' 
addressed by the Court had obtained a considerable quantity of 
actionable intelligence, including the identification of 700 active 
Republican terrorists and the discovery of individual responsibility 
for about 85 previously unexplained criminal incidents. However, other 
well-informed sources are more skeptical. The former British 
intelligence officer Frank Steele told the journalist Peter Taylor: 
``As for the special interrogation techniques, they were damned stupid 
as well as morally wrong . . .  in practical terms, the additional 
usable intelligence they produced was, I understand, minimal.'' 
Certainly the last quarter of 1971, the period during which these 
techniques were most employed, was marked by mounting not decreasing 
violence--a fairly obvious yardstick by which to measure their 
efficacy.
Military Operations
    The final incident to have a major impact on the evolution of IRA 
violence in the period 1971-1972 was the event that has become known as 
Bloody Sunday. On January 30th, 1972 soldiers from the British 
Parachute Regiment opened fire on civilian demonstrators in 
Londonderry/Derry killing 13 and wounding 29. The march that sparked 
the violence had been called to protest internment, rocks had been 
thrown at the soldiers and a shot allegedly fired, but the 
disproportionate British response prompted widespread international 
condemnation. In Dublin an enraged mob stormed the British Embassy 
burning it to the ground. The British government appointed the Widgery 
Tribunal to investigate the incident but it exonerated the soldiers 
involved handing the Republican community yet a further propaganda 
victory.
    The nature of IRA violence changed dramatically after Bloody Sunday 
as the incident prompted the first mainland bombing of the Troubles in 
February 1972 when the Official IRA left a car bomb outside the 
Officer's Mess of the Parachute Regiment in Aldershot, Hampshire. An 
Official IRA spokesman issued a statement in Dublin that the attack had 
been carried out ``in revenge'' for the Bloody Sunday killings. 
Deliberate attacks on civilian targets on the British Mainland soon 
followed including four simultaneous car bombs left in London in March 
1973, bombs at mainline London railway stations in September 1973 and 
in public houses in Guildford and Birmingham in the autumn of 1974.
    Throughout the Troubles Britain found itself defending the use of 
deadly force against terrorist suspects in a succession of ECHR cases. 
In perhaps the most damaging case--McCann and Others v. United Kingdom 
(1995)--the court found that three members of a PIRA Active Service 
Unit (ASU) had been killed unlawfully when British Special Forces 
troopers indicted their operation on the British overseas territory of 
Gibraltar (See Annex A). Lingering suspicions that Britain operated a 
`shoot-to-kill' policy in its counterterrorist operations against PIRA 
were extremely damaging to the country's international reputation and 
became a major source of resentment in the nationalist community.
                                annex a
Ireland v. United Kingdom (1978)
    In August 1971, faced with escalating violence in the Province of 
Northern Ireland, the British government introduced non-judicial 
internment for suspected members of nationalist terrorist 
organizations. On the first day of internment 342 suspected members of 
the Irish Republican Army (IRA) were detained by the British security 
forces. A small number of these detainees (there are only 14 well-
documented cases) were selected by the security forces for a new 
coercive regime of ``interrogation in depth.''
    Royal Ulster Constabulary (RUC) interrogators working ``under the 
supervision'' of the British Army applied five well-established 
techniques which had previously been practiced in the course of 
colonial emergencies: (1) hooding, (2) wall-standing, (3) subjection to 
noise, (4) relative deprivation of food and water and (5) sleep 
deprivation. As details of these techniques became public there was an 
outcry against their use which was eventually discontinued in April 
1972.
    The terms used are fairly self explanatory. Hooding meant that a 
prisoner's head was covered with an opaque cloth bag with no 
ventilation, except during interrogation or when in isolation. The 
prisoner would often also be stripped naked to enhance his feeling of 
vulnerability. Wall-standing consisted of forcing prisoners to stand 
balanced against a cell wall in the ``search position'' for hours at a 
time inducing painful muscle cramps. One prisoner was forced to remain 
in this position for 43.5 hours and there were at least six other 
recorded instances of prisoners being kept like this for more than 20 
hours. Subjection to noise meant placing the prisoner in close 
proximity to the monotonous whine of machinery such as a generator or 
compressor for as long as 6 or 7 days. At least one prisoner subjected 
to this treatment, Jim Auld, told Amnesty International that having 
been driven to the brink of insanity by the noise he had tried to 
commit suicide by banging his head against metal piping in his cell. 
Food and water deprivation meant a strict regimen of bread and water. 
Sleep deprivation was practiced prior to interrogation and often in 
tandem with wall-standing. Detainees were usually subjected to this 
conditioning over the course of about a week.
    However, the matter did not end there. On December 16, 1971 the 
Republic of Ireland had filed an application with the European 
Commission on Human Rights alleging that the emergency procedures 
applied by the British security forces in Northern Ireland violated 
several articles of the European Convention. In its February 1976 
report to the Committee of Ministers of the Council of Europe the 
Commission unanimously found that the ``five techniques'' amounted to 
``a modern system of torture'' and a violation of Article 3 of the 
Convention. The case was referred to the European Court of Human Rights 
for adjudication.
    Ireland v. United Kingdom (1978) was the first inter-state case 
ever brought before the European Court. Reviewing the evidence the 
Court found the ``five techniques'' to be ``cruel, inhuman and 
degrading'' and thus breaches of Article 3 of the Convention but 
stopped short of describing them as torture noting that ``they did not 
occasion suffering of the particular intensity and cruelty implied by 
the word torture.'' The UK was directed to pay compensation to the 
victims.
    In the course of the hearings British Attorney General, Samuel 
Silkin, gave the following commitment to the Court: ``The Government of 
the United Kingdom have considered the question of the use of the `five 
techniques' with very great care and with particular regard to Article 
3 of the Convention. They now give this unqualified undertaking, that 
the `five techniques' will not in any circumstances be reintroduced as 
an aid to interrogation.'' And, to this day, they have not.
Malone v. United Kingdom (1984)
    Article 8 of the Convention guarantees a right to privacy and 
protects citizens from state interference with this right ``except such 
as is in accordance with the law and is necessary in a democratic 
society in the interests of national security, public safety or--for 
the prevention of disorder or crime.''
    Article 8 was put to the test in Malone v. UK. In March 1977, a 
British national, Mr. James Malone, was charged with a number of 
offences relating to dishonest handling of stolen goods. It emerged in 
the original trial that the police had been privy to private telephone 
conversations between Malone and his associates although this material 
was not (and could not be in) tendered in evidence.\1\ Malone 
ultimately challenged what he believed to be the extended monitoring of 
his telephone line in the Strasbourg Court. In Malone v. UK the Court 
found that the mechanisms governing the interception of communications 
by the police were sufficiently legally ill-defined to place Britain in 
breach of Article 8 of the ECHR. The Malone case also raised the 
question of effective remedy, a right established under Article 13 of 
the ECHR, although the Court did not rule on the issue.
---------------------------------------------------------------------------
    \1\ Britain remains one of the few legal regimes in the world in 
which telephone intercept material is still not admissible as evidence 
in Court. Curiously, material gathered from eavesdropping devices is 
considered admissible.
---------------------------------------------------------------------------
    The British government of the day responded to the Malone judgment 
by introducing the Interception of Communications Act (IOCA) in 1985. 
IOCA was designed to govern all circumstances in which the interception 
of communications might be required including the exigencies of 
national security. Under the terms of the Act this method of 
intelligence collection could only be undertaken in a domestic context 
if expressly authorized by a warrant signed by the appropriate 
Secretary of State. IOCA also established a right of redress for anyone 
who believed that interception had taken place unlawfully in the form 
of an independent Interception of Communications Tribunal and 
Commissioner.
McCann and others v. United Kingdom (1995)
    On March 6, 1988, forewarned by intelligence sources, British 
soldiers from the Special Air Service (SAS) interdicted what they 
thought to be a Provisional IRA attempt to plant a car bomb on the 
route of a military parade on Gibraltar. The soldiers' mission was to 
affect an arrest in support of the local police, but because the 
suspects allegedly adopted ``an aggressive stance'' when challenged, 
they were shot dead by the troopers.
    All three PIRA members proved to be unarmed at the time of the 
shooting and the car they had positioned along the parade route did not 
contain a bomb although a car linked to the trio, discovered later in 
nearby Marbella, was found to be packed with explosives. Daniel McCann, 
Sean Savage and Mairead Farrell were all well known PIRA activists, 
indeed Farrell had served 10 years for her part in the bombing of a 
hotel outside Belfast in 1976.
    There was widespread criticism of the SAS's failure to apprehend 
three unarmed suspects without loss of life. Allegations of ``a shoot-
to-kill policy'' resurfaced--primarily in a controversial BBC 
television documentary entitled Death on the Rock in which two alleged 
eyewitnesses alleged that the British soldiers had opened fire on the 
PIRA trio without warning.
    The families of the dead PIRA volunteers took the case to the 
European Court of Human Rights in McCann and others v. United Kingdom. 
In September 1995 the Court narrowly ruled in a 10-9 majority decision 
that the PIRA team had been ``unlawfully killed'' in breach of Article 
2(2) because it was not convinced the use of lethal force by the SAS 
troopers had been ``absolutely necessary'' to protect the public. In a 
closely argued opinion the majority members of the Court criticized the 
British actions on three main grounds.
    First, the British authorities could have chosen to apprehend the 
PIRA suspects at an earlier stage in their preparations but chose to 
allow the operation to run long to gather further incriminating 
evidence of their activities, thus in part assuming some of the 
responsibility for placing the public at risk. The Court commented that 
allowing the operation to proceed to the point that it was thought a 
bomb may have been activated was a ``serious miscalculation'' which 
``set the scene'' for the fatal shooting.
    Second, the Court noted that the British authorities had rushed to 
judgment in assuming that the car parked by the PIRA Active Service 
Unit would contain a remotely activated bomb. The briefings received by 
the SAS troopers disproportionately focused on this possibility and did 
not sufficiently reference other, less threatening, but equally 
reasonable alternatives. This too created a climate which made recourse 
to lethal force ``almost unavoidable.''
    Finally, the Court found the reflexive resort to lethal force by 
the SAS troopers themselves troubling. The Court noted that the 
training received by Special Forces soldiers lacked ``the degree of 
caution in the use of firearms to be expected from law enforcement 
personnel in a democratic society'' and failed to emphasize ``the legal 
responsibilities of the individual officer in the light of conditions 
prevailing at the moment of engagement.''
McKerr v. United Kingdom (2001)
    The ECHR was again called to rule on four separate cases in which 
14 people had been killed in Northern Ireland between 1982 and 1992 
allegedly by or with the collusion of the security forces--McKerr v. 
United Kingdom (2001), Hugh Jordan v. United Kingdom (2001), Kelly and 
Others v. United Kingdom (2001) and Shanaghan v. United Kingdom (2001). 
However, on each occasion the Court stopped short of finding that the 
victims had been unlawfully killed, commenting instead in May 2001 that 
the post-incident proceedings for investigating the use of lethal force 
by the security forces had sufficient shortcomings for the UK to be in 
breach of the procedural obligations imposed by Article 2 of the 
Convention but nothing more.
                                annex b
Oversight
    Prior to 1985 none of the work of the British intelligence or 
security agencies was done on a statutory basis. The Government denied 
the very existence of the Secret Intelligence Service (SIS) and the 
Security Service (MI5). The agencies derived their authority from 
ministerial directives, such the Maxwell Fyfe Directive \2\ which 
governed the operation of MI5, and the royal prerogative. There were no 
oversight mechanisms outside the chain of command of both agencies 
other than those afforded by the government departments to which they 
reported--the Foreign and Commonwealth Office and Home Office 
respectively. Financing for the agencies was obtained through an annual 
``Secret Vote'' which approved a global figure submitted to Parliament 
without any supporting explanatory material. As a former Home 
Secretary, Jack Straw, has publicly acknowledged, the main catalysts 
for change were a series of cases before the European Court Human 
Rights, commencing with Malone v. United Kingdom (see Annex A), which 
incrementally addressed issues relating to the gathering of 
intelligence material and the operation of the intelligence agencies.
---------------------------------------------------------------------------
    \2\ The Maxwell Fyfe Directive is named after the Conservative Home 
Secretary and former Nuremburg Prosecutor who issued it on the occasion 
of the Security Service's formal transfer from the authority of the War 
Office to the Home Office.
---------------------------------------------------------------------------
    The government responded to this criticism by introducing the 
Security Service Act in 1989. This placed the UK's domestic 
intelligence agency on a statutory footing for the first time. The Act 
also established a Security Service Commissioner and a Complaints 
Tribunal. Between the introduction of the Security Service Act in 1989 
and the end of 1997 the Tribunal investigated 275 complaints. No 
complaint was upheld. In the great majority of cases, the complainants 
were unknown to the Service.
    The European Court of Human Rights considered that the Security 
Service Act placed the Service on sufficient legal footing for two 
pending cases involving alleged Security Service investigations to be 
discontinued. In the 1993 case Esbester v. UK the Court explicitly 
recognised that the Security Service Act struck a reasonable compromise 
between the requirements of defending a democratic society and the 
rights of the individual.
    Although the Security Service Act went far enough to satisfy 
Britain's European Convention on Human Rights obligations it still fell 
short of providing for the sort of parliamentary oversight that many 
critics of the intelligence apparatus were calling for. It also made no 
mention of the Secret Intelligence Service (SIS) the existence of which 
was only avowed for the first time by Prime Minster John Major in 1992. 
These shortcomings were addressed in the Intelligence Services Act of 
1994 which in addition to placing both SIS and GCHQ on a statutory 
footing and creating a complaints apparatus to cover both agencies also 
created a committee of Parliamentarians, the Intelligence and Security 
Committee, to ``examine the expenditure, administration and policy'' of 
all three intelligence and security agencies (SIS, GCHQ and MI5).
    The Intelligence and Security Committee (ISC) is constitutionally 
unique within the British system. Despite the fact that it is made up 
of Parliamentarians, it is not a Parliamentary Select Committee but a 
statutory committee with a legally defined brief. In some respects this 
gives it greater authority, adding weight to the Committee's requests 
for information. Its members are appointed from both Houses of 
Parliament by the Prime Minister after consultation with the Leader of 
the Opposition. Despite the executive's control over its appointments, 
the Committee has been characterized by its bipartisanship.
    The bulk of the Committee's work is done in camera and its findings 
must effectively be taken on trust. The Committee also reports to the 
Prime Minister rather than to Parliament. As with the Commissioners' 
reports, the Prime Minster is free to withhold material from Parliament 
out of security concerns. In the words of one former Committee member: 
``A good oversight committee will never be able to answer all the 
questions that are raised by honourable Members about the secret 
agencies or their work. It may never be able to answer questions about 
all the issues that it is investigating. That is inevitable. However, 
colleagues in the House should be able to feel confident that someone 
is investigating issues on their behalf and has the power to do the job 
properly, even if ordinary Members of Parliament are not able to get 
the answers themselves.''
    The Committee's original remit was strictly limited by the 
Intelligence Services Act to the examination of ancillary issues. Any 
responsibility for the oversight of operational matters was pointedly 
omitted from the Act. However, the members of the ISC have been 
effective advocates for some extension of their powers in this area and 
in recent years they have been briefed on a wide range of the Services' 
operational work--often at the request of ministers who see the utility 
in gaining independent validation for policy decisions. Since 1998 the 
ISC has employed an Investigator to undertake specific enquiries under 
the Committee's direction. Intelligence officials themselves have 
largely embraced the ISC as a new source of legitimacy for their work.

    Senator Gregg. Thank you, Mr. Parker.
    We have been joined by our senior member, the Senator from 
West Virginia. Do you have an opening statement you want to 
make, Senator?

                  STATEMENT OF SENATOR ROBERT C. BYRD

    Senator Byrd. Mr. Chairman, thank you. Thank you, Mr. 
Chairman--my favorite chairman, right here. One might as well 
proclaim his choice, had he not, openly and publicly?
    Senator Gregg. Very kind of you. My favorite ranking 
member.
    Senator Byrd. Bless your heart.
    Well, thank you, Mr. Chairman.
    Five years ago, more than 3,000 people lost their lives due 
to the September 11 attacks. Since then, Congress has passed 
and reauthorized the PATRIOT Act to give law enforcement more 
powers, and has reorganized government twice. Yet, polls 
indicate that many Americans still feel less safe than before 
the 9/11 attacks, including I.
    President Bush has said many times that those attacks were 
inspired by hatred of the freedoms that Americans enjoy. 
Surrendering our constitutional liberties, and especially the 
system of checks and balances that allow those liberties to 
endure, would seem to me to be a strike at the very principles 
upon which this country was founded.
    In this age of international terrorism, there is much that 
our Government can learn from the experience of other 
countries. Controversial British anti-terrorism laws, such as 
the suspension of the right to trial by jury in terrorism cases 
and the so-called ``Diplock courts,'' were passed as merely 
temporary measures. However, these temporary measures were 
extended time and again for nearly three decades. So, there is 
a lesson here. Could our country already be headed down the 
same path, in which our legislative branch approves curbs on 
civil liberties that last for decades even though they are 
labeled temporary?
    Take, for instance, the warrantless wiretapping that allows 
government to eavesdrop on millions of Americans without their 
knowledge. As Edmund Burke wrote in 1777, ``The true danger is 
when liberty is nibbled away for expedience and by parts.'' 
Listen to what Edmund Burke said again. Edmund Burke wrote in 
1777: ``The true danger is when liberty is nibbled away for 
expedience and by parts.''
    Mr. Chairman, we have worked on a bipartisan basis to 
strengthen our defense against terrorists by adding billions of 
dollars to border security and billions of dollars to airline 
security, billions of dollars to law enforcement, intelligence 
collection, and other essential programs. Yet, the funding has 
not caught up with the vast security vulnerabilities that 
remain.
    So, this brings us to what may be the key question of this 
hearing. If we do not adequately fund vital homeland security 
programs, might our vulnerabilities lead to even greater 
demands to set aside existing individual liberties in pursuit 
of more security? Is there not a close relationship between 
better funding of existing homeland security, law enforcement, 
and intelligence programs and the preservation of our 
liberties?
    There must be better ways to protect the American people 
from terrorism absent the abrogation of constitutional 
protections and the adoption of foreign models which 
concentrate more and more power in the hands of one man, the 
President.
    I thank the chairman for calling this important hearing. I 
thank the witnesses who are appearing before us.
    Senator Gregg. Thank you, Senator Byrd. That is a very 
interesting question you raise, which is, if we do not 
adequately fund and we respond to that by some action which 
limits liberty or the rights instead of funding. That is an 
interesting issue and maybe we can expand on that as we go 
forward.
    But initially the question which I think I would like to 
get to is this issue of, looking at British successes, what can 
we do to replicate those successes here without affronting our 
liberties and our constitutional rights. Judge Posner, you made 
it pretty clear that you felt that we could--do we need to do 
anything legislatively to give the executive branch the right 
to restrain people or to hold people longer than 48 hours? Do 
we have to declare that a person is--is there some sort of--
should there be some sort of court approval of that event in a 
FISA type of situation, or does that authority basically lie 
with the executive branch? That is my first question.
    The second question is, you suggest that we not bifurcate 
the FBI, although I have to tell you I used to chair the 
committee that had the FBI and my biggest frustration was that 
they were not able to move that culture from law enforcement 
into intelligence, and I still do not think they have even 
though I have not chaired that committee for 2 years. This was 
something we put a tremendous amount of pressure on them to do 
and they just--basically, the culture resisted.
    But let us assume we are not going to bifurcate it. Does 
that mean that an organization like Mr. Negroponte's new 
intelligence responsibility as sort of the intelligence czar is 
the place where you might set up a structure that would mirror 
the MI5 effort, and is that appropriate?
    So I would like to get those thoughts from all three of the 
witnesses--well, Mr. Yoo relative to whether American law, 
there is any statutory need in order to get to this British 
position of being able to hold people for a longer period of 
time if they are deemed to be terrorists, beyond the 48 hours, 
and then get your thoughts on those.
    Judge Posner. Let me respond briefly in reverse order, 
starting with the question of the FBI, MI5. Mr. Parker made a 
very important point. He said that the fact that the MI5, the 
security service, has a laser beam focus on intelligence is of 
great value because the FBI--you mentioned, Senator, that maybe 
FBI should be shifting its focus from kidnapping and bank 
robberies to national security and intelligence. Well, the 
problem is--this happened in Chicago--when the FBI tries to do 
that, the banks and the people in Chicago, they say: Well, wait 
a second. The number of bank robberies in Chicago is rising 
because the FBI is allocating resources to intelligence. That 
is the problem.
    So the FBI is torn. We want it to be the premier criminal 
investigation agency and that is of course what they are 
accustomed to doing, what they are trained to do, what they 
want to do. So very difficult to change their culture. You are 
quite right, 5 years, very little progress has been made in 
actually altering the focus of the FBI.
    He also mentioned, Mr. Parker, the fact that of course MI5 
works closely with the special branch of Scotland Yard and of 
the other British police offices. The special branches are 
specialized for criminal law enforcement focused on terrorism 
and espionage and so on. Well, we have the germ of that system 
here because the FBI--the President did insist, over the FBI's 
objections, that it fuse its terrorist-related units into a new 
division called the national security branch. It is 
interesting, they use the same word, ``branch.''
    That national security branch, which is really very similar 
to the special branch of Scotland Yard, that would work well, I 
think, with a separate domestic intelligence service. Where to 
place that service, whether it should be free-standing, whether 
it should be in the Department of Homeland Security--as I 
understand it, MI5 reports to the home secretary in the United 
Kingdom, which corresponds to the Secretary of Homeland 
Security. Whether it should be free-standing like the CIA and 
report to the Director of National Intelligence, whether it 
should actually be in his office, those are important 
organization questions which would require further study.
    In fact, what I would like to see from Congress, from the 
Director of National Intelligence, would be as a first step a 
feasibility study: Is this something we need, a separate 
agency, and concretely how would we establish it, where would 
we put it, would it work, and so on.
    With regard to your previous question, the first question 
about detention, Professor Yoo reminded me that the Supreme 
Court has permitted detention of terrorists outside the 
criminal justice system as enemy combatants. I was thinking 
more of a system of detention of terrorist suspects which would 
not require actually designating them as enemy combatants. The 
value of congressional intervention here is that Supreme Court 
has left everything very vague. You can hold a person--the 
government can hold a person for more than 48 hours if it can 
show that it is a bona fide emergency or there are other 
exceptional circumstances.
    I think it would be helpful for Congress to specify what 
constitutes an emergency and also to set some limit, so that 
the Government officials have some sense how long can they hold 
a person beyond 48 hours. We do not want it to be indefinite. 
Under the English system as I understand it--and it would be a 
good feature of our system--you do not just make an initial 
decision this person is going to be in for 28 days. You have 
frequent reauthorization by a judge. That I think, prescribing 
the procedures and the timetable for this sort of thing, that 
would be a function for Congress, rather than leaving it to the 
courts, I would think.
    Senator Gregg. Thank you, Judge.
    Mr. Yoo, did you want to comment on those?
    Mr. Yoo. Yes, thank you, Senator. I quite agree with what 
Judge Posner says on the detention issue. It is the case that 
the Supreme Court has read the authorization to use military 
force that you passed on September 18, 2001 as authorization to 
detain enemy combatants outside the criminal justice system. 
But the case of Hamdan where this was decided, the individual 
in question was captured outside the United States, in 
Afghanistan, so it left open the question whether these rules 
would apply within the United States.
    The Government detained Jose Padilla under that same claim 
of authority. The U.S. Court of Appeals for the Fourth Circuit 
upheld that as an exercise of this power to detain enemy 
combatants, but it did not reach the Supreme Court. So there is 
unclarity and ambiguity about whether this power could be used 
in the future, and so that would be an appropriate area, I 
agree, for further congressional explication of the standards.
    The other difference I would just point out is I take it 
under the British system, even when you are in this 28-day 
period, there are regular hearings, there is regular 
opportunity to go to a judge. In the enemy combatant process we 
use the system of habeas corpus, which can take much longer, 
and then under the Defense Department regulations there is an 
annual, I think, review of the combatant status. So the British 
system actually has more judicial review than ours does.
    One question you might want to ask if you are going to go 
ahead and draft legislation is whether you want to have more 
than just annual reviews. This is also tied up in the 
litigation about--I am sorry, the consideration of how Congress 
is going to react to the Hamdan bill. There is elements in that 
bill which talk about civilian judicial review over these 
determinations and how often they might occur. That is 
something you could change as that bill goes forward.
    In terms of the division between MI5--whether to have an 
MI5 type agency or not, I think everyone on the panel seems to 
agree that the current system is not working, that the FBI's 
mixture of criminal law enforcement and national security 
purposes is not a good one.
    I do not think it is a question of whether you need the 
change the statutory authority of the FBI. In a way, what Judge 
Posner describes, and I quite agree with this, is that maybe 
the statutory focus of the FBI has become too diffuse. They 
have too many things which they try to focus on--criminal law 
enforcement, bank robberies. You know, bank robberies, if you 
look at the history of the FBI the reason why bank robberies 
and kidnappings became their initial focus was because they 
were relatively easy to solve, you had high publicity when you 
solve them, and it is easy to measure how agents were doing. 
You could say, I caught five bank robbers this month. So it led 
to this case-based system for promotion within the FBI.
    That is an example of how you cannot change that kind of 
culture easily, because it is difficult to count, well, is this 
man or this agent doing a good job stopping terrorist attacks. 
Someone cannot come in and say, I stopped five terrorist 
attacks, because often you do not now how many terrorist 
attacks you stopped, if any, by taking a measure, because it is 
more future and prospective.
    So I think one thing you could do through the 
appropriations tool which I think would be a quite appropriate 
exercise of your power would be to start moving resources out 
of those areas of the FBI that focus on criminal justice, like 
bank robbery and kidnapping, and devote more money toward the 
counterterrorism and national security mission.
    You might also use your funding tool to try to change the 
way that the FBI measures success and how they reward 
employees, who gets promoted or not. That also I think would be 
a legitimate use of the appropriations tool.
    It may be that we made a mistake--I know you--I think you 
think this, is that we might have made a mistake trying to 
evolve the FBI into what we want, rather than making a clean 
break, whether you detach another agency or just start a new 
one. That might have been in the long run the more effective 
way to go, although there would be much more disruption when it 
happened. That is the kind of thing I think is something the 
committee can do.
    I do not know whether there is a lot of good studies on 
that in the United States. Most of the studies have been about 
how difficult it is to combine agencies into something like 
DHS. We have as far as I know very little work on how you split 
up an agency's functions and what is the most effective way to 
do it.
    One place one could look would be to look into the 
literature and work that has been done on corporations, which 
go through this all the time, and they make various choices 
about how to organize things appropriately.
    Senator Gregg. Thank you, Mr. Yoo.
    Did you wish to comment on either of those points, Mr. 
Parker?
    Mr. Parker. I thought it might be quite useful just to 
explain the genesis behind the 30-day detention period. The 
logic there is very specific and it has to do with operating in 
Europe with porous borders. There is a perception, I think a 
legitimate perception, as we have seen from the London 
transport bombings, with one of the suspects fleeing 
immediately to Italy where he had previously been a resident, 
that people would be able to cross national boundaries within 
Europe to carry out attacks very easily. It is almost 
impossible to get a response from a foreign police agency in 
less than 30 days. That was why police needed more time. A 
letter rogatoire, if you were to deliver it to the French 
authorities, even with great urgency by the time that has been 
processed and action has been taken and that information comes 
back your 48-hour detention period is certainly gone. The 7-day 
detention period that you had under the Prevention of Terrorism 
Act has almost certainly expired.
    That was why police agencies asked for more time. It was 
primarily--there were three cases cited. I believe one was 
European, one was North African, and it was the length of time 
that key information took to come back from local law 
enforcement in foreign countries that would have had a material 
effect on the cases brought before the courts. So that was the 
logic behind it.
    There is judicial review every 7 days, so the police have 
to go back, the crown prosecution service has to go back, and 
make the case for the continued detention.
    It is tremendously controversial. The government originally 
asked for 90 days. It was Parliament, despite the fact that 
Labour Party has a significant majority, that voted against 
that proposal and forced a change in the legislation. So it is 
controversial. There has been a commitment from the government 
to continue consultations on this issue, to review its 
effectiveness.
    It is going to be very interesting to see how the recent 
airplanes plot impacts on the use of this 30-day detention 
procedure. If the prosecutions are successful, I suspect it 
will be claimed as evidence that this detention process works. 
If the prosecutions collapse, I am sure there will be great 
pressure to reduce the length of detention prior to charging.
    On the point of an American MI5, it is quite useful to 
think of these agencies as a triage process. The role that the 
security service plays in Britain is kind of the spear of the 
point in the intelligence world. But investigations do not just 
begin and end there. There are still investigations at police 
district levels. There are still detectives carrying out 
investigations. It is only when it becomes significant and 
serious that the intelligence service becomes involved.
    You do not need a huge agency. In the mid-1990s the 
security service, at the height of the mainland bombing 
campaign by the Provisional IRA, had 200 officers and 1,800 
support staff and that was it. It has doubled in size since 
then, but it is still a relatively small agency, and it can get 
a lot of bang for your buck. This is very innovative. If 
designed properly, this can be a very, very effective way to 
focus on cases.
    The point has been made--I have worked both in intelligence 
and in law enforcement. There are different mind sets. There is 
a huge tension between gathering information for prosecution 
and looking for opportunities to exploit for intelligence 
purposes an ongoing investigation. The British tend to let 
cases run as long as possible because that is the greatest way, 
the greatest intelligence opportunity. The longer the case 
runs, the greater the opportunity you have to gather more 
information about people's contacts, funding sources, and so 
forth.
    As we saw recently in the Florida case, law enforcement's 
approach tends to be: This is worrying, this is dangerous; we 
cannot take the risk that something might happen. 
Interestingly, the European Court of Human Rights has 
criticized the United Kingdom in the McCann case, about the IRA 
attempt to put a bomb in Gibraltar on a military parade, for 
allowing a case to run so long that it put the public in 
danger, necessitating the use of force to apprehend, in fact 
kill, the three terrorists involved. The court said: Look, you 
let this case run too long; you put the public in danger every 
bit as much as the terrorists did. And Britain got rapped on 
the knuckles for that.
    But that was primarily because it was intelligence-led and 
they wanted to see how the operation was going to work, learn 
as much as possible, particularly because it was in Europe, and 
improve protective measures in the future from that 
information.
    Senator Gregg. Thank you.
    Senator Byrd.
    Senator Byrd. Thank you, Mr. Chairman.
    The United Kingdom, unlike the United States, has a 
specialized domestic intelligence agency known as MI5. Due 
largely to concerns about Big Brother and past intelligence 
abuses within our borders, the United States has been hesitant 
to permit the FBI, for example, to undertake broad domestic 
surveillance. What in the United Kingdom legal system 
constrains MI5 from conducting overly intrusive or unwarranted 
surveillance of the average law-abiding British citizen?
    Judge Posner. If I could respond, a domestic intelligence 
agency in the United States would be subject to all the 
restrictions that the Constitution and statutes impose on the 
FBI. So it is not proposed to create an agency that would have 
some kind of immunity from the Constitution or the laws. It is 
really an organizational question: Is it more efficient to 
place this surveillance, intelligence operation inside the FBI 
or to put it somewhere else? It is not a legal matter. It is a 
matter of organization theory really.
    Mr. Parker I think gave really strong arguments for why it 
makes sense to separate these, and it is not to take anything 
from the FBI. It is to add a small additional service with a 
very special focus, which would work with the FBI.
    One point he made earlier which I would like to echo is the 
importance of communication between Federal intelligence 
authorities and our local police. Our 18,000 police forces of 
course have a great deal of knowledge of what is going on in 
their communities, but if they are going to be a first line of 
defense against terrorism they have to know what to look for. 
We have to have effective communication with them, what should 
they be on the lookout for.
    This has been a serious problem with the FBI because of 
historic rivalries and tensions between the FBI and local 
police, because they compete for the same cases and there is 
cultural differences. The FBI are kind of, they wear suits and 
they have college educations, they do not wear uniforms, and so 
on. So just the communication function, which would not raise 
any kind of legal issues, is I think a very strong argument for 
having a separate agency.
    Mr. Parker. If I could add on that, the security service in 
the United Kingdom is restricted in what it can do by the 
Regulation of Investigatory--sorry--Regulation of Investigatory 
Powers Act of 2000. So like all law enforcement and 
intelligence agencies in the United Kingdom, there is a legal 
structure. It is relatively new, but it is binding on the 
security service.
    The security service also has to obtain home office 
warrants--these are warrants signed by the home secretary--to 
authorize telephone intercepts, property invasions, or 
eavesdropping operations, beaconing a car or something like 
that. Any sort of property or communications interference 
requires a warrant signed by the home secretary. Now, this is 
clearly an elected political official and not a judge, one of 
the big differences between the two systems. But it is still a 
very stringent process. There is an ombudsman, there is a 
commissioner that oversees independently the proper use of this 
power. Then finally, Parliament has a committee, the 
intelligence and security committee, that, although it was 
strictly established not to look at operational issues, has 
increasingly taken on that role. In fact, the security service 
has really benefited from that, the legitimacy that comes from 
having a degree of support from the legislative branch. Very 
noticeably, this committee was very supportive actually of the 
actions taken by the security service in the run-up to the 
London transport bombings, even though, as you are aware, the 
security service reduced its threat level just before the 
bombings took place. The inquiry in the intelligence and 
security committee found that that was a logical inference 
given the intelligence they had. That is useful. The public 
gets a very useful steer from people who have access to the 
material but are outside the system, very beneficial. It is a 
great example of bipartisan cooperation in the United Kingdom 
as well.
    I think I will probably stop there. Thank you.
    Senator Byrd. Thank you.
    Why do you believe that the British do not share our 
suspicion of state authority, or perhaps they do. Do they?
    Mr. Parker. The dread of Government. No, I think would be 
the answer. It is instructive, the sort of language we use. 
This is a sort of a bit extempore sort of sociology, is it not, 
but we refer to ``the Nanny State,'' not ``Big Brother,'' even 
though ``Big Brother'' is George Orwell's great phrase. We tend 
to talk of the state in terms of an overprotective mother 
rather than as a frightening, to be feared bully figure. Now, 
that no doubt has lots of cultural wellsprings and so forth.
    The other thing that I think is quite significant is there 
has not been any great history of abuse by Government. That is 
not to say Government has not committed abuses, but we never 
had the experience that Germany had, for example, or Italy had 
with an authoritarian power taking control of the government of 
the country, or at least we did have that experience for 10 
years in the 17th century.
    Senator Gregg. Not since Cromwell, you mean?
    Mr. Parker. Not since Oliver Cromwell, exactly.
    So again, the British government has not got a particular 
reason to fear. That obviously does not necessarily hold true 
for every community in the United Kingdom. If you were Catholic 
and you came from Belfast or Londonderry, clearly you would not 
necessarily take such a rosy view of the actions of the British 
state. But typically most citizens feel that the state is there 
to protect it, that it has discharged those functions fairly 
effectively.
    Bear in mind, this is not a new experience for us. We have 
had terrorist bombings in London going back now 120 years. I 
cannot think of a decade since the 1880s when a terrorist bomb 
has not exploded in London, whether it is Russian anarchists or 
the Fenians or the Provisional IRA, the Angry Brigade, the 
Animal Liberation Front, Hezbollah, al Qaeda. We have had 
pretty much everybody pass through London and kill somebody or 
blow something up, and this is a feature of our lives, and the 
state has been dealing with it continually for a long period 
without losing the public's confidence. Add to that two world 
wars on top of that, with the inevitably increased security 
regime that that entails.
    The public has faith the restrictions will be lifted when 
the emergency is passed because it has always been in the past, 
and we have a great reverence for tradition in the United 
Kingdom, so if it has happened before thus it will happen 
again. I think we are very comfortable that that weight of 
history will protect us.
    Judge Posner. Could I offer a brief footnote----
    Senator Gregg. Certainly, Judge.
    Judge Posner [continuing]. To what Mr. Parker said? His 
mention of Germany reminded me, after World War II when we 
permitted West Germany to have its own government again, as a 
condition the allies insisted that Germany separate domestic 
intelligence from law enforcement in a separate agency because 
they had been combined in the Gestapo and we thought that 
combination dangerous.
    So historically having a separate domestic agency, 
intelligence agency, has not been thought to compromise civil 
liberties, but quite the contrary.
    Senator Gregg. Senator Byrd.
    Senator Byrd. Judge Posner, you state in your testimony 
that the only limitation the Constitution places on searches 
without a warrant is that they be ``reasonable.'' You then 
state that any unreasonable methods of surveillance can be 
minimized ``without judicial intervention'' by rules subject to 
oversight by the executive and congressional watchdog 
committees. But, are there not three equal branches of 
Government under our constitutional system of checks and 
balances? Why would we trust the executive and a Congress of 
the same party to determine in every instance what is 
reasonable? Is that not the job of the Federal judiciary?
    Judge Posner. That certainly is an important function of 
the judiciary, but the question is the efficacy of judicial 
control over surveillance when it is exercised through the 
grant or denial of warrants. Of course, a warrant proceeding is 
ex parte. The Government goes in, tells its side of the story 
to the judge, and there is no adversary process and the judge 
grants or denies the warrant. So there is some judicial check, 
but it is not like an ordinary litigation.
    So the question is would some alternative be more effective 
than a warrant, such as simply reporting to the Congress and to 
the executive branch what the surveillance agencies are doing, 
who did they listen to and why, and are they targeting 
political enemies or is it legitimate investigation.
    It is important to emphasize that the fourth amendment does 
not require warrants. It limits warrants. It requires that 
searches be reasonable, and that reasonableness requirement, 
which is constitutional and fundamental, can be enforced in 
ways other than warrant requirements.
    The warrant approach--this is the criticism of FISA--it 
really is not designed for a situation where you are not 
wanting to monitor the people you know are terrorists, you want 
to find out, are there terrorists, where are they, who are 
they. For that, you cannot give the kind of information to the 
magistrate or the judge that you would when you ask for a 
warrant.
    So I think--it is part of what I said in my opening--we do 
not want to--we do not want to be confined by the criminal 
justice system and judicial norms and customs in thinking about 
how to protect civil liberties while not endangering national 
security.
    Senator Gregg. Thank you.
    Two questions here. Let me try to frame the Hamdan issue as 
I see it, as we are wrestling with it here in the Senate, and 
get your thoughts as legal experts, Judge Posner and Mr. Yoo, 
as to which is the proper approach. As I see it, it comes down 
to essentially this. The administration wants to set up a 
regime where they interpret Common Article 3 under the Geneva 
Conventions specifically enough so that they can basically give 
a safe harbor to the interrogators who are trying to find out 
from terrorists who we captured information which will stop us 
from being attacked by somebody, without using torture or 
processes which would be outside the bounds of reasonable 
interrogation.
    Those who oppose that specific, defining Common Article 3 
with specific language that would give a safe harbor, take the 
position that if we do that then we will be having--we will 
have set up a regime which basically says we can define the 
Geneva Convention in whatever way we desire to define it, which 
means that North Korea could do the same thing, theoretically, 
were it a signatory to the Geneva Convention, which I do not 
know if it is or not. It probably is not. So it would mute the 
effectiveness of the Geneva Convention.
    The bottom line, of course, is how do we stop people from 
attacking us who might use a weapon of mass destruction and how 
do we get the intelligence to do that. This is a war of 
intelligence. It is not a war of armies. I think that was an 
interesting point that you made, Mr. Parker, that you do not 
have the military as part of your structure. We have become too 
absorbed as a war of armies instead of a war of intelligence.
    But independent of that, which is another side issue of 
very big significance, I would be interested in you, Judge and 
professors, if you feel an expertise in this area or 
comfortableness in this area, giving us your thoughts on this, 
because this is an issue that is very current and very hot here 
in the Senate.
    Judge Posner. You are the expert.
    Mr. Yoo. Well, if a judge orders me to speak I will speak.
    It had been my view before Hamdan that Common Article 3 did 
not apply to the war on terrorism or the Geneva Conventions, 
which is a view I worked on in the Justice Department after 9/
11. But assuming it does apply, as the Supreme Court suggested 
in Hamdan, one important thing to just mention is you have 
focused on I think what really is the most important part of 
this military commission bill. If you think about it, the 
military commission issue is about how to deal with people who 
are no longer a threat. They have already been removed from the 
battlefield. All the fights we are having are about things we 
could defer until the war was over. We could try them, as we 
did in World War II, after the conflict was over.
    The part you are focused on is really the most important 
part of the bill in terms of our ability to fight the war going 
forward. It is interesting that there has been less focus on it 
actually than whether we give certain kinds of evidence to the 
defendant. But I think it is the most important part of the 
bill in terms of our future abilities.
    One is I think no one would deny that Common Article 3 is 
very vague. It goes well beyond cruel and inhumane treatment. 
It also says you cannot engage in affronts to the personal 
dignity of a prisoner, and if the prisoner is a fundamentalist 
Islamic person I would think they might be offended, for 
example the hypothetical that is actually raised, what if we 
used female interrogators? Would that be a violation of Common 
Article 3 if they are personally, if they feel their dignity is 
offended by that?
    So I think it is perfectly appropriate for Congress, and 
Congress has traditionally done this with vague treaty terms, 
is to pass laws that specify what they mean. And I quite agree 
with you, I think it is also important for Congress to do that 
because otherwise our interrogators are going to not use 
measures which may be legal, but they are just uncertain, so 
they may hold back. That may be the wrong attitude we want our 
counterintelligence and counterterrorism people to have in this 
kind of war. I think Mr. Parker is quite right, it is a very 
different kind of war, where information, as you said, where 
information is of the highest priority.
    The other thing that is different, that makes it different 
than the IRA example, we are fighting a purely non-state 
network that is not attached to any certain kind of territory 
or has territorial claims against the United States. It really 
is much more, in many ways much more difficult than the IRA 
example because of that, which may require that we try harder 
to get intelligence than the British may have had to. That is a 
cost-benefit decision that you and the executive branch should 
make.
    Let me also get to the reciprocal treatment argument. I 
think that is a very important policy argument. It is not clear 
to me whether that holds in the war on terrorism. Traditionally 
under the laws of war, nations have used reciprocal threats to 
prevent the opponent from conducting certain kinds of 
operations. The greatest example is why there was no use of 
chemical or biological weapons in World War II on the western 
front. Both sides essentially deterred each other through 
threat of reciprocal harm.
    One question to ask is that really something that is 
possible with al Qaeda. From everything we see, they will 
violate the laws of war, they will behead our soldiers, they 
will try to kidnap and behead civilians, no matter how we treat 
their prisoners. So it is really this--it is a really I think 
more tenuous claim that is being made about reciprocal 
treatment, which is suppose the United States got in a war with 
China, for example. Would the fact that the Chinese--would the 
fact that we did not apply the Geneva Conventions to al Qaeda 
affect how the Chinese treat our own soldiers?
    Just two points on that. One is I would think that what 
would be most important to the Chinese or any future opponent 
is how we treat their prisoners in that war, not how we treated 
prisoners from this non-state terrorist organization in a 
previous conflict.
    The second thing you ought to ask--I am sorry, which you 
raised, is historically our prisoners have been quite badly 
abused in many conflicts since the Geneva Convention even when 
we followed the highest standards. So that is another question 
you ought to take into consideration when you and the executive 
branch consider how to define Common Article 3.
    Senator Gregg. Well, I thank you for that answer. I wish 
you would communicate it to some of my colleagues.
    My last question, and you have given us a lot of your time 
and we very much appreciate it, is: Under our system--the 
English were able to move to an MI5 system rather comfortably. 
It is a great country, but a small country compared to us. We 
have got this now huge complexity of intelligence capability. 
We have got the FBI, we have got the CIA, we have got 
Ambassasor John Negroponte's group, we have Homeland Security's 
initiatives, and then almost every sub-agency has their own 
intelligence capability. CDC has an intelligence capability.
    If you were to take the FBI's responsibility for 
intelligence out of the FBI, I guess the question becomes, do 
you undermine one of the few premier agencies we have in the 
area of fighting people who might do us harm and get very 
little for it? And if you did do that, how robust would this 
new agency be, because it is going to compete with turf--with 
the CIA, which is a vicious turf organization, with DIA, which 
is even more vicious, and the FBI. And those are just three of 
the big boys, is it even feasible for us to have an MI5 that is 
functional in the way we have this Government structured or do 
we just sort of have to get all these guys, all these agencies 
to work together, through the National Center for Terrorism 
which we have set up or some other agency like that?
    What do you think, Judge?
    Judge Posner. Well, I would not take anything out of the 
FBI, because what the FBI--the FBI's conception of intelligence 
is really intelligence in support of criminal law enforcement, 
and that is similar to the intelligence focus of Scotland Yard 
Special Branch. So I would leave the FBI as it is and set up a 
separate agency.
    It is true, we have a very complicated Government. We have 
too many agencies. But we do have a kind of vacuum, and it is 
extremely--we have a real hole in our counterterrorism 
structure and that hole is that we do not have a domestic 
intelligence service. Every other country that I know of has 
recognized that domestic intelligence--that there should be a 
domestic intelligence function which is separate from the 
national police force or the national criminal investigation 
system. It could be France, Germany, Spain, Italy, New Zealand, 
Australia, Japan, India, Israel, Canada, and the United 
Kingdom. They all think that.
    Many of these are countries which have much longer 
histories of struggling with terrorism than we do. So yes, we 
have a huge number of agencies, maybe too many, but we do not 
have a really critical component of an all-around 
counterterrorist structure and that is a separate domestic 
intelligence agency. But again to repeat, I do not think we 
should take anything out of the FBI because even if we had a 
separate intelligence agency it would need to work with 
specialists in counterterrorist criminal law enforcement.
    So if you look inside the FBI and inside its new national 
security branch, you have a counterterrorism division which is 
a division that tries to arrest and prosecute terrorists, and 
you have a counterintelligence division, which tries to do the 
same thing with foreign spies, and you have a directorate of 
intelligence, which gathers information in support of these 
criminal law investigative activities involving terrorists and 
spies.
    So we need that. We need that national security branch. But 
we want it to--we need it to be working with people who are 
specialized in intelligence. One of the things Mr. Parker 
pointed out is that the intelligence services like to continue 
investigations and allow these terrorist plots to evolve to the 
point where you know the extent of the network. You know, it is 
like cutting a worm in half or something like that. You do not 
want to by arresting a few people simply warn the others, so 
the terrorist gang regrows the part you have lopped off, 
because there are so many prospective terrorists.
    I will mention just one more point on the difference. 
During World War II--and this recurred during the struggle with 
the Irish Republican Army--there were cases in which the MI5 
learned that there was a planned attack. In World War II they 
caught a German saboteur who had been instructed to blow up an 
electrical plant, and MI5 said: Let us let him blow up the 
electrical plant because this will give him such tremendous 
credibility in Germany that we will then be able to use him to 
feed the Germans with all sorts of disinformation that they 
will believe.
    Scotland Yard, being a police force, said: No, we must not 
do that; it is too dangerous. So the dispute was raised to a 
higher level and the government said: Yes, we will go ahead and 
let him blow up the plant. And he did that and it was reported 
in the newspapers, got back to Germany. The Germans thought: 
This guy is terrific; he did what we told him; he blew up the 
plant. They sent him a lot of money, which of course the 
British confiscated, and from then on anything that he told his 
German masters they believed, even though it had been made up 
by MI5.
    This very similar incident with blowing up a building in 
London happened during the fight with the IRA. Again, 
disagreement with the police. They always want to--they do not 
want to take risks. The intelligence service argues, it is 
raised to a higher level, and again a judgment is made.
    That is what we need. We need a domestic intelligence 
service that will argue with the FBI and say: Do not arrest 
those jokers in Miami, they are harmless; use them, play with 
them, see if you can, if through them you can learn more about 
international terrorism. But we do not have an agency that has 
that commitment to intelligence. There is no one to argue with 
the FBI in the Justice Department. So they arrest these people 
prematurely. That is my concern.
    Mr. Yoo. Mr. Chairman, I would say there is two different 
issues wrapped up in your question. One is an organizational 
theory of when do you want to develop a capability from within 
your corporation and when do you go out and buy a new unit 
instead of trying to build it from within. That is sort of the 
same issue corporations have.
    Then the second thing I think built into your question is 
just a question of allocation of resources, whether we should 
be spending so much on domestic law enforcement versus 
intelligence. So I think that is what the FBI is concerned 
about, is you create this new agency and it is going to start 
drawing resources and funding that would have been given to the 
FBI in the first place.
    On the first question, I think it is fair to say that the 
usual response that we have had from 9/11 in terms of 
organization has been just to create new layers between, new 
layers of bureaucracy between the people who are on the ground 
fighting terrorism and the President. So I think about the 
creation of DHS and now the DNI. They impose just another layer 
between the different agencies and the President, and that may 
not be a good thing.
    What Judge Posner is essentially applying is a sort of free 
market approach to the way intelligence agencies work. He wants 
them to compete with each other to do better work, which is not 
a surprise because this is how he got started in his academic 
career, was calling for more competition amongst corporations. 
I think that makes a lot of sense. If you look at the failures 
about the Iraq WMD and so on, everybody may use the same 
information, but they may analyze it differently. And it would 
be a better system, it seems to me, to create more units at a 
lower level that can produce alternate strategies, an alternate 
way of looking at things. We are always saying we want people 
to think outside the box, to be aggressive. It is harder to do 
that when everybody works for one giant bureaucracy.
    So I would probably think that it is not that you want to 
undermine the FBI, but you want to create a competitor that 
will have maybe a different viewpoint and different 
capabilities. It may not be possible to have that done within 
the FBI itself.
    In terms of the allocation of resources, I think, again I 
think you ought to ask as the Appropriations Committee whether 
you want to spend so much money on the enforcement of crimes 
that can also be handled by State and local law enforcement. 
The FBI does pour a lot of resources into fighting drug crime. 
Our Federal courts are choked with drug cases. This consumes an 
enormous amount of Federal resources and attention. State and 
local law enforcement can do that, too, and whether you want to 
move the bulk of those resources into fighting terrorism, which 
seems to me the more--more the kind of thing that the national 
government should be doing, which is protecting us from an 
external threat rather than focusing its resources on problems 
that also overlap with the competences of the 18,000 other 
police forces we have in the country.
    Senator Gregg. We have been joined by Senator Allard. Did 
you have some questions, Senator Allard?
    Senator Allard. Mr. Chairman, I do have some questions. We 
have a number of committee meetings running this morning and 
hopefully the questions I have are not repetitive of what you 
covered.
    But I was curious. If we look at the recent terrorist plot 
that was foiled by the British authorities, if this had been 
put together in the United States, given the tools that U.S. 
law enforcement agencies currently have at their disposal, 
would we have been equally successful as they were? I would 
like to have some kind of comparison between the way they 
handle their investigations and the way we handle our 
investigations and whether that leads to more successful 
outcomes.
    Who wants to start with that?
    Judge Posner. Well, it is of course difficult to say, but I 
think there would have been a danger that we would have begun 
arresting people too soon and as a result would not have gotten 
as many of the terrorists. I am not sure the British are sure 
that they have everybody, but they did arrest I think more than 
20 people.
    Our tendency has been not to take the risk of allowing a 
plot to develop, to evolve, but instead pouncing at the 
earliest opportunity. There is a big danger there that we get 
the small fry and we miss their accomplices.
    Mr. Parker was saying before you arrived, Senator, that the 
British do tend to let the investigation continue longer before 
they intervene. You have to--it requires a certain amount of 
guts because you are watching these people and you know there 
is always some danger that they are going to act before you 
intervene. But taking that risk is often the right way to go 
because you take a small risk, but the payoff is that you may 
be able to uncover the entire network and not let little pieces 
out there which can regrow and hit you.
    Mr. Parker. Can I make two observations. I think that is a 
really important point and, without going into any operational 
details, I am aware of cases where attacks are taken place 
because the preventative mechanisms put in place failed. If you 
let a case run wrong, you do run the risk that attacks will 
occur and you do run the risk that citizens will lose their 
lives, and that has I believe on one occasion at least happened 
in the United Kingdom, through no intention on the part of 
either the police or the security service.
    I wanted to address one point. Security service officers 
are not allowed in any way, shape, or form to commission an 
offense or participate in the commissioning of an offense. So 
they would not be allowed to participate through an agent, for 
example, in allowing a building to get blown up so the agent 
would get better access. In fact, we spend an awful lot of time 
in training trying to come up with imaginative ways to get 
potential agents over hurdles like carrying out a terrorist act 
to infiltrate further within a group. There is a red line there 
and the security service--I cannot imagine it would cross it 
except in the most extreme of circumstances. I am not aware of 
them ever having done it. I had not heard the case from World 
War II.
    What is true in the Second World War, the British security 
service ran the Doublecross system. I think we got something 
like 15 Iron Crosses for our double agents, several personally 
pinned on by Hitler himself. And as far as I am aware I do not 
believe any German agent successfully operated from the 
beginning of the Second World War to the end of it on British 
soil. So it was tremendously successful.
    But again, the idea that one would actually participate in 
an event that led to destruction of property or loss of life 
intentionally would be a red line for the United Kingdom.
    To address also this issue of how one might help nurture a 
new agency, one thing you will notice from the London bombings 
is who took the credit for stopping it. You will never see a 
security service spokesman. There is no security service 
spokesman. It is a home office spokesman talking on behalf of 
the security service. They never take credit. They never take 
credit. Always a police officer, always a police officer up 
there taking the credit.
    What is interesting in the last 3 or 4 years is the 
metropolitan police have started to actually acknowledge that 
the security service was involved and extend thanks for their 
participation, which I can assure you was not the case in the 
early 1990s.
    But nothing succeeds like success, and effective 
relationships where everybody is able to share in a result, 
which you have with an intelligence division and a law 
enforcement division, where the intel guys help the law 
enforcement chaps get a result, everybody looks good, and that 
is why it has grown closer in England. It has been this sort of 
benign circle, virtuous circle of success, where the police 
have maintained their public role as the guardians of law and 
order and the security service has been able to direct their 
activities or assist in directing their activities more 
efficiently than the special branches had before.
    So it has worked out well.
    Mr. Yoo. May I just give a quick point?
    Senator Allard. Yes, Mr. Yoo.
    Mr. Yoo. Thank you. I think Judge Posner and Mr. Parker 
focused on the human intelligence side of investigation and I 
think one issue that I think the British do not have the same 
kind of strengths we have is on the signals intelligence, 
interception of emails, phone calls, financial records. It 
looks like from the accounts that the British were able to 
quickly move based on one tip, to use those kinds of methods to 
quickly identify the network of people through those kinds of 
links.
    I think our FISA system allows us to have that same scope, 
but it is much slower because you have to put together a case 
that involves probable cause and so on, and that takes a lot of 
work and it takes time. So I think it is doubtful that we could 
have put the case together as fast as the British did. It might 
have taken much longer, not because of human intelligence 
sources, but just because we have more restrictions on the 
collection of information.
    Senator Allard. Well, I appreciate your comment. I have 
always been very appreciative of the relationship that we have 
with the British. I mean, we have a very close relationship on 
intelligence gathering, and it is a lot of confidence in both 
our systems and I just think that statement needs to be made.
    Mr. Yoo, you were talking about more competition in law 
enforcement. The only way I can see that we can make things 
more competitive is to contract it out. I mean, to keep people 
within the Government where you have the protections of the 
civil service system, it just, you take away incentives many 
times that you need to have in a more competitive environment.
    Then when you talk about contracting out, then there 
becomes issues about who you are contracting with and whether 
they are secure or not and whether they have the legal 
authority to do what needs to be done.
    Can you address those problems a little more in your 
comments?
    Mr. Yoo. I have to confess it is a really interesting point 
that I had not thought of quite clearly, as to whether you 
could create competition just by privatization of some aspects 
of it. I think one thing that you would get is you would get 
certain skills that are not common in the Government, 
entrepreneurial skills. So if you think about it, one of the 
things we are trying to do or the Government is trying to do in 
law enforcement is we are trying to destroy a network, an enemy 
network of agents, and this is much like the mentality that 
hackers might have attaching computer networks. That is not 
probably the kind of mentality you have in law enforcement, is 
how do you destroy other networks. They are usually focused on 
protecting them.
    So it is an interesting point, that there may be ways to 
use things like--I know the CIA had a venture capital firm in 
Silicon Valley where they tried to seed research that they 
thought might be helpful, and the Defense Department has done 
similar things historically. It may be the case there might be 
opportunities to do something like that using Federal funding 
to promote research by the private sector into technologies.
    That is one of our great advantages in this war on 
terrorism, is that the United States is a technological leader. 
The enemy is very good at using technology, too, but maybe we 
can encourage research and development--I think it is less 
likely we will develop those tools from within the Government. 
That has not, I do not think, been historically the case really 
when it comes to sort of fine-tuned kind of approaches. Our 
kind of research and development I think within the Government 
is more sort of a brute force approach to sparking big changes 
by pouring in a lot of money.
    So your idea could lead to--there might be a better way to 
create that kind of work with less expenditure of funds. It is 
interesting.
    Judge Posner. If I could add something, there has been a 
big talent drain from the intelligence community since 9/11 
because private companies, banks, investment banks, telephone 
companies, computer companies, and so on, very concerned about 
security, have hired a lot of very good intelligence people 
from the Government. What that means is that, just as Professor 
Yoo is saying, we want to make sure that these private security 
people, private intelligence people, are part of an overall 
national network to protect us, and one need we have is to 
coordinate our Federal intelligence activities, not only with 
other Federal agencies and with State and local police, but 
also with the private security firms and the private 
intelligence units of major banks.
    For example, one of the senior officials at CIA, Ted Price, 
became the senior security officer for Lehman Brothers in New 
York, very experienced intelligence officer and very concerned 
about threats to his bank from terrorists. So we should be 
drawing on these people.
    Echoing what Professor Yoo said about technology, one of 
the big problems we have--this is an FBI problem. You know, of 
course the FBI has acknowledged having blown more than $100 
million on a computer system that did not work. One of the 
problems is that the Government agencies tend to hire 
contractors to custom build a computer system for a Government 
agency. They do not sufficiently exploit the opportunities to 
buy commercial equipment, adapt it for Government needs, but 
not try to build a computer system from scratch, because in 
fact the commercial systems, they are cheaper, they are tested, 
and they have very efficient security features, encryption and 
so on.
    So yes, we should not--the Government should not think it 
can do everything itself in this area.
    Senator Allard. Well, Mr. Chairman, if I can continue here 
to follow up on that. We have had a tough time----
    Senator Gregg. I unfortunately have to go to a meeting. Can 
I turn the hearing over to you?
    Senator Allard. That would be fine. I did not realize you--
--
    Senator Gregg. I want to thank the witnesses, though, for 
their time and their courtesy. It has been an extraordinarily 
informative hearing for me and hopefully we can take some of 
the knowledge you have imparted to us and make good use of it. 
Thank you very much.
    I have got to go to a meeting with the Leader here at 11 
o'clock and I will turn it over to Mr. Allard to chair the 
balance of the hearing.
    Senator Allard [presiding]. Thank you, Mr. Chairman, and I 
will not take up too much more of the witness' time.
    The problem we have had here is getting the FBI to talk 
with the CIA, and they are both Government agencies. I see even 
greater barriers in getting either one of those agencies to 
talk to somebody in the private sector. It is a confidence 
issue, I think, that you have very sensitive information, and 
of course the more people who know about it the more apt it is 
to leak out when you have an open society, particularly like 
what we have here.
    I do agree, I understand your concerns with these 
contractors coming in on computer systems and tailoring that 
computer system just to that Department and they do not worry 
about interactivity between other Departments. I think that is 
a big problem, not only in the security but throughout the 
Government, and I think it needs to be dealt with, and there 
are some attempts to do that.
    I guess we need to do some things, I think, to encourage 
them to participate with the private sector. Have you got any 
thoughts on how we can break down those barriers of confidence? 
The only way I can think of is maybe if they pick up people who 
had previous clearance experience and had worked within the 
agencies, if they go in the private sector then obviously they 
have already maybe established some confidence there. But I 
think it is a tough problem.
    Judge Posner. Well, one of the problems is that 
overclassification makes it difficult for the Government people 
to communicate with private people. But especially when we are 
talking about terrorism, some of the most important information 
to guide our conflict with the terrorists is knowledge of 
foreign cultures, foreign languages, foreign history and so on. 
Much of that expertise resides in universities and other 
private sector activities. So we do want to make sure that the 
Government officials can talk to these people, can consult them 
and bring them in, and not be impeded by overclassification, by 
paperwork, by conflict of interest rules that makes it very 
difficult for private people to consult with the Government.
    I do think the Director of National Intelligence is 
concerned about that problem and is trying to lower the 
barriers to intercommunication with the private sector.
    Mr. Yoo. I very much agree with what you say, Senator, 
about the classification and clearance issue. In part it is a 
hangover from the cold war cultural problem, because a lot of 
the rules on clearances and so on were built up to prevent the 
Soviet Union from getting an agent inside and learning 
information. That does not seem to be the challenge that we 
face with al Qaeda. We do not as far as I know have examples of 
al Qaeda agents infiltrating into the United States Government.
    So I think this would be an appropriate area for the 
Appropriations Committee to consider, is whether it wants to 
change the way clearances are given, how many people are 
permitted to have them. This does not just cause problems for 
interoperability between Federal agencies; it is a major 
barrier for interoperability between the Federal agencies and 
State and local law enforcement. That is I think where you even 
see more resistance to the sharing, not even just between the 
FBI and the CIA, but then down to the people who actually have 
to make the tough decisions.
    This is also an area where computers could provide help. 
Corporations and universities, other entities, have all used 
technology to control the flow of information in different ways 
using commercially available products. I have always wondered 
why we do not--it does not seem like we have a chief 
information officer in the Federal Government. There are 
certain kinds of innovations, the technology you can use, which 
the private sector is way ahead in, which I think could be 
rather easily adapted to face some of those problems you have 
raised. But we do not have anyone in the Government who is 
looking at the use of information technology centrally. Each 
agency has their own CIO, but we do not have one for the 
Government as a whole, it seems. That might be an area, the 
Appropriations Committee might call for that kind of work to be 
done by the executive branch, and it would be very helpful, I 
think.
    Mr. Parker. If I could offer a personal observation, I am 
not sure it is quite as bad as you fear. I spent 6 months in 
Baghdad in 2003 as the British special adviser on transitional 
justice and I was struck actually at how closely the other 
Government agencies worked with contractors, how heavily 
involved they were in all aspects of operations in the field.
    I was there essentially as a private sector contractor for 
the foreign office. Within a month and a half, I sat on the 
high value detainee video conferencing, telephone conferencing 
system, with the CIA and Defense Intelligence Agency. I was 
amazed, absolutely amazed that they would allow me in the room, 
and in fact we had very useful, very fruitful discussions.
    So I think again successful collaboration tends to breed 
relationships of trust. Perhaps one of the things, the good 
things that does come out of Iraq, is that there is a much, 
much greater awareness now of the values sometimes of these 
sort of contractor relationships and the skills that are out 
there in the private sector and how that can be utilized by the 
intelligence agencies. So maybe there is a ray of hope perhaps 
already there.
    Senator Allard. I am going to change the subject just a 
little bit, but it is very pertinent to the debate going on in 
the Congress as we sit here. You brought up the issue of 
detainees and one of the debates that we are having is, because 
of our Constitution and the way we protect the rights of the 
accused, citizens have to face their accuser and they have to 
be informed of those facts in a civilian court.
    With the recent Supreme Court decision which has now 
extended certain rights to detainees, we have a problem. If we 
disclose all that information that we know about to the accused 
in a court case, we make it public, or potentially public. This 
creates a problem on security issues where we do not 
necessarily want them to know how we got the information or who 
the informer is and those kind of things.
    How do other countries deal with that issue, or are we just 
unique in that because of the protections we provide to the 
accused? I wonder, maybe you could comment on that, Mr. Parker, 
and any of you on the panel that may be familiar with--and 
maybe some suggestions on how we can deal with that?
    Mr. Parker. Disclosure became an issue in British law in 
the early 1990s. It took a while for the British intelligence 
agencies to adapt to that. The first case in fact was an animal 
rights case, I believe in Reading just west of London, where 
the police were forced to drop the case because the judge ruled 
in the interest of disclosure the identity of the informant had 
to be revealed and the police simply dropped the case at that 
point.
    We have moved a long way from that. There is an instrument 
in British law called a public interest immunity certificate, 
where agencies who want to protect intelligence can apply to a 
judge to have it excluded from the rules of disclosure. The 
judge gets to read it, he gets to make his own judgment about 
the sensitivity of the document, and if he feels that the 
Government puts together a reasonable case he will issue a 
public interest, a PII certificate. So that is the mechanism 
that we use in the United Kingdom.
    Also, the other thing we have done is reverse engineer 
cases, so that if for example technical capabilities might be 
exposed in the course of a trial we might use obsolete 
equipment for that particular case, a listening device or some 
sort of beacon device. We might deliberately use equipment for 
that case simply hoping that it will get disclosed to the 
court.
    The IRA used to send intelligence officers to every trial. 
They would sit there, they would write down, they would do 
lessons learned on every single case that came before the 
court. One of the biggest intelligence successes we had in the 
early 1990s was this debate about whether or not digital phones 
could be intercepted, cell phones, digital cell phones could be 
intercepted. There was what is essentially an urban myth that 
analog cell phones could be intercepted but digital phones 
could not be. For a 3- or 4-year period, a lot of people used 
digital cell phones when they were perfectly easy to intercept 
and talked quite openly on it.
    Well, that was clearly a capability that we had no wish in 
revealing in court. In this particular instance, of course, we 
are I think the only country in the world where telephone 
intercept material is not admissible as evidence, period. So 
that issue does not come up specifically. But sharing 
intelligence, identity of sources, technical capabilities, are 
serious issues, and we have typically tried to protect our 
techniques by going for these public interest immunity 
certificates.

                         CONCLUSION OF HEARING

    Senator Allard. If we do not have any other comments on the 
question, I do not have any more questions. I want to thank the 
panel for your participation and your comments. I want to check 
with the staff and see if there is anything here on closing the 
committee we need to mention. 10-day comment period or anything 
like that?
    Then I am going to declare the committee recessed.
    [Whereupon, at 11:10 a.m., Thursday, September 14, the 
hearing was concluded, and the subcommittee was recessed, to 
reconvene subject to the call of the Chair.]

                                   - 

```