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Briefing and Opinion
February 11, 2005

How to Fight Terror While Preserving Liberty
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:

Coercive interrogations

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.

Detentions outside combat zones

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" advocate.

Military trials

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.

Targeted killing

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 trial.

Intercepting communications

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 U.S. laws.

Data-mining

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.

Biometric identification

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.

Surveillance of religious and political meetings

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

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).

Oversight

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 authority.

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.

To see the complete publication, "How to Fight Terror While Preserving Liberty"

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.