A reporter has a picture of her iris recorded as part of a demonstration of iris recognition biometric technology being used at Vancouver International Airport, December 14, 2004. (AP PHOTO/Chuck Stoody)
By Philip Heymann and Juliette Kayyem
Belfer Center for Science and International Affairs
Contrary to popular view, the Patriot Act did not address many of the toughest legal issues Americans face in trying to balance our concern
for our freedoms with worries about our safety in the war on terror.
What are needed are new rules for a new era.
For example, Congress, even after hearings on the Abu Ghraib prison
torture scandal, still has not spelled out when it is appropriate to use
what forms of coercion during interrogations. The lack of clear rules
jeopardizes both our liberty - when irresponsible government agents go
too far - and our security - when responsible government agents hesitate
for fear of crossing an unseen line.
Over the past year, Oklahoma City's National Memorial Institute for the
Prevention of Terrorism and Harvard's Kennedy School of Government and
Law School brought together more than 20 U.S. and British security and
legal experts to wrestle with 10 of the thorniest issues affecting
liberty and security.
Their recommendations are, in brief:
The United States must comply with its
treaty obligations not to engage in torture. Treaty obligations not to
use cruel and inhuman techniques short of torture must also be obeyed
unless there is a clear immediate threat to American lives that only
coercion might stop; the president must approve this limited exception.
Regularly permissible interrogation techniques consistent with the
Convention Against Torture should be approved by the president and
provided to Congress.
Americans should not be detained
without probable cause. If revealing evidence critical to the
prosecution in a case would endanger national security, a judge should
be able to grant extensions of the trial date for up to two years to let
the government get alternative, publicly usable evidence.
For aliens in the United States, detention must be determined by a
federal judge, supported by clear evidence and include access to a
personal lawyer or, when the judge finds secrecy essential, a "cleared"
Anyone in the United States has a right to trial in
a U.S. federal district court. Non-Americans seized abroad on charges of
violating the laws of war should be tried using court-martial
procedures, just as are U.S. military personnel. Non-Americans seized
abroad for war crimes should be tried by local governments, if the
governments are willing and no security secrets would be exposed.
Outside a combat zone, there must be no targeted
killing unless the president finds evidence that the killing is
immediately necessary and provides that evidence to Congress. Targeted
killing is never allowed against Americans, anyone in the United States
or anyone in a country that is willing to extradite the suspect for
U.S. intelligence cannot spy on
Americans' communications at home or abroad without probable cause, but
conversations of, or information about, Americans acquired while
targeting aliens abroad can be used by U.S. agencies. Foreign
intelligence capabilities cannot be used in the United States except
under the attorney general's supervision and in full compliance with all
Courts can authorize general access to broad collections
of private transaction records only if the names of individuals are
withheld and only if particular patterns would likely indicate a
terrorist plan. The government can obtain actual names involved only if
suspect patterns are found.
Such identifiers should not be used unless
an individual is seeking access to sensitive resources or targets or
seeking to enter the country. Detailed regulations should control the
use of biometric data for granting access to sensitive areas.
Unless a reasonable
basis exists to suspect a group is plotting terrorism, federal agents
can attend meetings of a religious or political group only if they have
reason to suspect the particular meeting will involve advocating
political violence or hatred against another group and only if a senior
FBI official approves the investigation every 60 days.
Profiling Americans based broadly on race or national
origin is never permitted. Treating a citizen differently from others
based on his or her association with a religious or political group is
permissible if the group is reasonably suspected of planning criminal
activity or is an agent of a foreign power. Differing treatment on the
basis of an individual's nationality is permissible where access is
granted at the discretion of government agents (at an airport or
sensitive facility, not a public park).
If the executive branch feels compelled to take
extraordinary measures that impose on traditional freedoms in order to
protect the country, Congress should establish a nonpartisan commission
to continually review the need for them. Each government agency's
inspector general should annually review the use of any extraordinary
Whether or not Congress adopts these recommendations, it must accept its
responsibility to provide clear guidance on what we as a society do and
do not want done to keep us safe from terrorism. The threat of highly
destructive terrorism will be with us for decades, and it must be
addressed democratically through legislation if we are to remain free.
If it isn't, our legislators will have no one but themselves to blame
when the executive goes too far - or not far enough.
Philip Heymann is a professor at Harvard Law School and the author of
TERRORISM, FREEDOM AND SECURITY. Juliette Kayyem is executive director
of the Belfer Center for Science and International Affairs at Harvard's
Kennedy School of Government.