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The 9/11 Commission Report

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The National Commission on Terrorist Attacks Upon the United States (also known as the 9/11 Commission), a bipartisan commission created by congressional legislation and the signature of President Bush in late 2002, is chartered to prepare a complete account of the circumstances surrounding the September 11, 2001 terrorist attacks, including preparedness for and the immediate response to the attacks. The Commission is also mandated to provide recommendations designed to guard against future attacks.

The Commission, a panel of five Democrats and five Republicans, held twelve public hearings between March 2003 and June 2004. Preliminary coverage of the panel’s findings state that the report casts doubt on whether the Bush administration has justified its use of some expanded powers under the USA Patriot Act, which gave the FBI broader authority to conduct surveillance and searches in terrorism investigations following the Sept. 11 attacks. In addition, the unanimous final report is expected to sharply criticize Congress for failing in its role as overall watchdog over the nation's intelligence agencies and will call for wholesale changes in the way lawmakers oversee intelligence agencies and the Homeland Security Department.

In testimony before the Commission in December 2003, EPIC Executive Director Marc Rotenberg emphasized the important history of privacy protection, the problems with new systems of surveillance, and the specific need to preserve Constitutional checks and balances. EPIC urged the Commission to consider the important role of public oversight in evaluating the federal government’s intelligence-gathering authority rather than focusing exclusively on Congressional oversight. EPIC also stressed the importance of protecting traditional civil liberties safeguards to ensure that new anti-terrorism legislation develops in accordance with U.S. law and American values concerning privacy and civil liberties.

EPIC Commentary on the Recommendations of the 9/11 Commission Report

Airline Passenger Screening

9/11 Commission Recommendation: Improved use of "no-fly" and "automatic selectee" lists should not be delayed while the argument about a successor to CAPPS continues. This screening function should be performed by the TSA, and it should utilize the larger set of watchlists maintained by the federal government. Air carriers should be required to supply the information needed to test and implement this new system. (p. 393)

EPIC Comment: Significant errors have been found in both the no-fly watchlists and the automatic selectee system. This is a particularly serious problem for US persons who travel within the United States. There should be an independent evaluation of how best to operate these screening systems and still safeguard basic rights.

9/11 Commission Recommendation: The TSA and the Congress must give priority attention to improving the ability of screening checkpoints to detect explosives on passengers. As a start, each individual selected for special screening should be screened for explosives. Further, the TSA should conduct a human factors study,a method often used in the private sector, to understand problems in screener performance and set attainable objectives for individual screeners and for the checkpoints where screening takes place. (p. 393)

EPIC Comment: We support recommendations, such as this one, to target individuals who may be carrying weapons or materials that threaten the safety of air travel. This is a more effective security technique than profiling or data mining.

Congressional Oversight

9/11 Commission Recommendation: Congressional oversight for intelligence - and counterterrorism - is now dysfunctional. Congress should address this problem. We have considered various alternatives: A joint committee on the old model of the Joint Committee on Atomic Energy is one. A single committee in each house of Congress, combining authorizing and appropriating authorities, is another. (p. 420)

EPIC Comment: Streamlining the oversight of the intelligence agencies is sensible, but the Congressional intelligence communities have a tradition of secrecy and extensive classification that may frustrate public oversight and press reporting on matters of national interest.

Secure ID

9/11 Commission Recommendation: Secure identification should begin in the United States. The federal government should set standards for the issuance of birth certificates and sources of identification, such as drivers licenses. Fraud in identification documents is no longer just a problem of theft. At many entry points to vulnerable facilities,including gates for boarding aircraft, sources of identification are the last opportunity to ensure that people are who they say they are and to check whether they are terrorists. (p. 390)

EPIC Comment: Some steps should be taken to reduce the risk of fraud and identity theft. Identification documents should be made more secure. However, the integration of secure identity cards with interconnected databases raises substantial privacy risks that will require new legislation and new forms of oversight. Privacy enhancing techniques that minimize the collection and use of personally identifiable information should also be considered.

9/11 Commission: Americans should not be exempt from carrying biometric passports or otherwise enabling their identities to be securely verified when they enter the United States; nor should Canadians or Mexicans. Currently U.S. persons are exempt from carrying passports when returning from Canada, Mexico, and the Caribbean. (p. 388)

EPIC Comment: There are significant privacy and civil liberties concerns regarding the use of such devices that must be resolved before the widespread deployment of biometric passports for U.S. citizens. In particular, a system properly designed to ensure the security of the borders should not provide the basis for routine identification within the United States.

Renewal of PATRIOT Act

9/11 Commission Recommendation: The burden of proof for retaining a particular governmental power should be on the executive, to explain (a) that the power actually materially enhances security and (b) that there is adequate supervision of the executive's use of the powers to ensure protection of civil liberties. If the power is granted, there must be adequate guidelines and oversight to properly confine its use. (pp. 394-95)

EPIC Comment: The 9/11 Commission Report correctly places responsibility on the executive to justify the continued use of the PATRIOT Act authorities.

Protection of Civil Liberties

9/11 Commission Recommendation: As the President determines the guidelines for information sharing among government agencies and by those agencies with the private sector, he should safeguard the privacy of individuals about whom information is shared. (p. 394)

EPIC Comment: It should not be left to the President alone to establish privacy safeguards for information sharing. Congress has a critical oversight role. Routine public reporting should also be established to ensure that the public is able to evaluate the costs and benefits of information sharing within the federal government.

9/11 Commission Recommendation: At this time of increased and consolidated government authority, there should be a board within the executive branch to oversee adherence to the guidelines we recommend and the commitment the government makes to defend our civil liberties. (p. 395)

EPIC Comment: The United States should establish a privacy agency, but the organization should be independent of the executive branch. The correct model would be an independent agency, similar to the Federal Trade Commission or the Federal Communications Commission.



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Last Updated: May 15, 2007
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