As America reflects on the 9/11 terror attacks 25 years later, we asked several national security experts to reflect on the events of that day and how they view surveillance and privacy in national security in a post-9/11 world. Alan Raul, a lecturer on law who is teaching a seminar on Digital Governance this fall and is leading a TechReg program on AI Policy Developments for Harvard’s Berkman Klein Center, served as vice chairman of the Privacy and Civil Liberties Oversight Board under President George W. Bush, as associate counsel to President Ronald Reagan, and as general counsel of the Office of Management and Budget under Presidents Reagan and George H.W. Bush. Richard Salgado, who is teaching Modern Surveillance Law at Harvard as a lecturer on law, was director of Google’s Law Enforcement & Information Security for 13 years. He previously served as a prosecutor with the Computer Crime and Intellectual Property Section of the U.S. Department of Justice.
Giving up, taking back, handing off
Richard Salgado, lecturer on law
From the street in front of my small house in Arlington I could see smoke rising in the direction of the Pentagon. It was still morning, but the television images of the burning towers in New York and the torn-open walls of the Pentagon, along with reports of an airliner down in Pennsylvania, showed us that an enormous tragedy was unfolding, even as who was responsible and why remained unknown.
How much we lost that day we couldn’t know. Thousands of people died. Some of them jumped. Their choice put each of us, for a terrible moment, at that window. Would I? If just to escape the acrid smoke and searing heat for a breath of fresh cool air?
I was a trial attorney at the Computer Crime and Intellectual Property Section at the Department of Justice. Before that day I had routinely cut through D.C. office buildings on my walks to Main Justice, escaping summer’s mugginess and winter’s bite. These passages of refuge were now blocked by badge-only doors and well-armed security guards. The buildings became fortresses against the public outside. Garbage bins and mailboxes disappeared from the streets of downtown D.C. Military vehicles stationed on roadsides. We now thought twice about riding the Metro, choosing a hotel room on a high floor, or boarding a plane. We shared a foreboding of what might lie ahead.
We were on the verge of giving up bigger freedoms to prevent another tragedy, secure justice for a country attacked, and perhaps exact vengeance. Once given up in an extraordinary crisis, liberties are hard to claw back. I’ve played a small part in that relinquishment and reclaiming.
In the weeks after 9/11, with Congress eager to support the war against terrorism, the Computer Crime Section was asked for changes to surveillance law that would help terrorism investigations. It delivered, in part by dusting off proposals that had sat on the shelves for years. That day gave them an audience. Congress moved quickly to pass bills giving the government new powers and stripping out old limitations. Some had names meant to swell the hearts of Americans, like the now infamous USA PATRIOT Act and the Protect America Act. I saw no ill motive in any of this, and even with decades of hindsight I see many positives in those changes.
The circumstances that gave rise to these powers changed over time. My own role changed too. I left government to work as legal counsel for service providers like Google and Yahoo!, which the government increasingly turns to for its surveillance. That’s where the data is, after all. Their culture of protecting user data from secret and broad government snooping looks very different from that of some of their telco relatives.
Slowly we’ve revisited which powers granted after the attacks should remain or be expanded, and which should be scaled back or retired. Greater transparency by the government and companies, oversight by bodies such as the Privacy and Civil Liberties Oversight Board, and sunset provisions enacted by Congress have helped ensure that surveillance programs are not left unattended. More work remains.
People beginning their careers now did not live through that day. Those who did are nearing the end of theirs. As a lecturer to law students, I have the privilege of helping prepare the next generation of leaders to protect our liberties and security. They will take it from here.
‘We all knew right away that … America was going to be different’
Alan Raul, lecturer on law
Like a good Washington lawyer, on the morning of Sept. 11, I was having breakfast with a client at the Hay-Adams Hotel across Lafayette Square from the White House.
As an early adopter of Blackberry’s pager-style devices, I was prepared to check my belt holster for any and all incoming beeps and buzzes. That morning it triggered like crazy with news alerts about the plane attack in New York. My client (and friend) and I exchanged nervous goodbyes, predicting we would always remember that breakfast when we thought back about the horrific terrorism. My client-friend made her way to Reagan Airport and eventually rented a car to make her way back to the New Jersey suburbs. I made it back to my law firm, one block north.
When I saw the Pentagon smoke from our windows, we all knew right away that Washington, and maybe America, was going to be different. Unsurprisingly, the White House, about two blocks away, evacuated and the refugees sought the closest safe ports. One of my former law partners (and friend), who was then an associate White House counsel, the same job I myself held 15 years earlier, came back to his old offices on K Street. Perhaps we would all be just safe enough there from the expectable next attack.
Soon I made it home, and children were collected from schools, and we gathered in Georgetown (perhaps just safe enough) to watch the news.
One of my carpool dad buddies (and friend) watched with us until he was paged to go back to his place of work, the Capitol (ground zero next?). He was a member of Congress and watching him on TV singing patriotic songs with his Democratic and Republican colleagues from the east steps, in obvious harmony, was a striking and teary moment. Over the many succeeding weeks, hearing the striking sound of fighter jets overhead day and night was amazing, too.
By 2001, I was already a privacy lawyer. My book, “Privacy and the Digital State,” was published that year. It would be fair to say I was then, and largely still am, a proponent of applying rigorous cost-benefit analysis to regulatory policy, a posture that recognizes the social benefits of collecting and using personal data for productive purposes, including safety and security. There are always tradeoffs in public policy, so focusing only on the uber-privacy side of the regulatory equation didn’t always seem logical (or desirable) to me.
So, after the terror attacks, when everyone wanted to know, “How come we didn’t know?” inquiring minds turned to intelligence failures. One of the answers to the failures was, naturally, better, more, and more powerful electronic surveillance. That seemed like a good idea to me but also kicked up my privacy lawyer instincts to seek out tradeoffs, checking and balancing, and have cake/eat cake solutions.
So I wrote an article in L.A. Times in December 2001, whose title has seemed a little cringey to me in the years since 9/11 memories have tended to fade.
In my piece, “Cheer Ashcroft On, With a Little Friendly Oversight,” I said (and felt) that “As a matter of common sense, we all know that we can’t beat ruthless adversaries unless we suspend our most delicate sensibilities. The country’s most fundamental civil liberty in the aftermath of Sept. 11 is protecting our lives from terrorists who want to kill us.”
That’s not what I think is the cringey part, nor is it when I said, “The first thing that Bush and Ashcroft must do is ensure that their extraordinary counter-terrorism tactics are necessary and likely to be effective. Every public indication suggests that the administration’s actions to date easily pass this test.” But I also said, “The President should embrace this accountability … . [and] justify the use of new powers to the public.”
What I do think needs reckoning, though, is the “friendly oversight” part in the title (which I may not even have been responsible for writing). In the piece I recommended “the president also could consider establishing a blue-ribbon civil liberties council that would advise him privately on the wisdom and implications of new anti-terror measures … . They would help the president answer the hard questions about where the country is better off limiting certain liberties for a time in favor of safeguarding American lives and livelihoods. Given the expectation that the president will be as tough as he needs to be to beat the bad guys, an independent, confidential sounding board could help him make the hard-nosed calls in both directions.”
I still totally, 100% believe that what I said was, and remains, sound. But the “friendly” part of the “oversight” calls for questioning. Honestly, I still believe that too was fair, and maybe necessary in context. When I wrote my article less than three months from 9/11, believe it or not, I thought I was getting really close to the edge of patriotism to suggest there should be some independent voices counseling the president to sometime make calls in the less surveillance direction.
The 9/11 Commission — the National Commission on Terrorist Attacks Upon the United States — determined that the U.S. did not uncover and prevent the attacks in part because of intelligence failures “to connect the dots.” The commission called for more, and more effective electronic surveillance. However, to counterbalance potentially more intrusive surveillance, the commission also recommended the establishment of a body to advise the president, essentially from inside the White House, to serve as a confidential sounding board essentially helping him make hard-nosed calls in both directions. In 2004, Congress enacted the Privacy and Civil Liberties Oversight Board into law. In the new statute, Congress stated its findings as follows:
“(1) In conducting the war on terrorism, the Government may need additional powers and may need to enhance the use of its existing powers.
(2) This shift of power and authority to the Government calls for an enhanced system of checks and balances to protect the precious liberties that are vital to our way of life and to ensure that the Government uses its powers for the purposes for which the powers were given.
(3) The National Commission on Terrorist Attacks Upon the United States correctly concluded that ‘The choice between security and liberty is a false choice, as nothing is more likely to endanger America’s liberties than the success of a terrorist attack at home. Our history has shown us that insecurity threatens liberty. Yet, if our liberties are curtailed, we lose the values that we are struggling to defend.’”
The Board’s purpose and its task was to help advise and oversee the president and relevant agencies by:
“(1) analyz[ing] and review actions the executive branch takes to protect the Nation from terrorism, ensuring that the need for such actions is balanced with the need to protect privacy and civil liberties; and
(2) ensur[ing] that liberty concerns are appropriately considered in the development and implementation of laws, regulations, and policies related to efforts to protect the Nation against terrorism.”
In a nutshell, PCLOB was meant to be a part of “an enhanced system of checks and balances to protect the precious liberties that are vital to our way of life” — the additional surveillance powers the government needed to protect our physical safety would be “balanced with the need to protect privacy and civil liberties.”
In the fullness of time, President Bush nominated and the Senate confirmed me to serve as the PCLOB’s Vice Chairman. In that capacity, my colleagues and I examined and assessed (among other counterterrorist powers) the president’s controversial “Terrorist Surveillance Program,” and of course our assessment itself became controversial. One of my fellow Board members resigned on the grounds that, in his view, we were perhaps a little too “friendly” with the White House.
While I rejected that judgment of our work on the TSP, Congress ultimately agreed with it. In 2007, H.R. 1 enacted reforms moving PCLOB outside the Executive Office of the President and making it officially independent and arm’s length — i.e., not quite as friendly.
I disagreed with the legislative changes at the time, though I support them now. Especially since that independence may actually help PCLOB survive its upcoming encounter with the “unitary executive” theory, since President Trump has of course fired the Democratic board members. The non-executive “advisory” and “oversight” functions of the board, along with its manifestly independent mission, may allow the courts — maybe even the Supreme Court — to reach a different conclusion than it did in the Slaughter case regarding FTC commissioners.
In any event, checks and balances, and policy tradeoffs, are intrinsic to our constitutional democracy. Liberty and security go hand and hand, though reconciled always they must be.
Alan Raul is former vice chairman of the Privacy and Civil Liberties Oversight Board (2006-2008) and served as associate counsel to the president from 1986-1988.
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