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Remarks by Secretary Napolitano at American Constitution Society National Convention

Release Date: 
June 21, 2010

Washington, D.C.
American Constitution Society

Secretary Napolitano: Well, thank you. Thank you, Judy, for that introduction. As she said, we have known each other for quite a long time, a friend who I greatly admire and whose friendship I greatly value.

And I want to thank the American Constitution Society for inviting me this afternoon. I especially appreciate the opportunity to speak here because I notice that the title of the conference, “The Constitution, Congress, and the Courts,” conspicuously leaves out one branch of government. That would be my branch, the Executive Branch. And it seems to me that a discussion of the Executive Branch is essential to any discussion of the Constitution because the Executive Branch is where the direct responsibilities of governing are met every day and where many important constitutional issues play out in myriad and in complicated ways.

Indeed, often these constitutional questions arise because someone in an agency far away from the General Counsel's office or the Secretary's office made a decision or adopted a policy with neither the time nor the background to fully consider all of the issues that become evident perhaps only in hindsight. And you know, it's not the decisions I know about that typically cause me to lose sleep. The decisions I don't know about, on the other hand, can be real insomnia-inducers.

The importance of the Executive Branch in our constitutional system is fundamental and profound, and it must constantly be balanced with the prerogatives of the Congress and the judiciary. Over the past year and a half, one of the most important roles of the legal community has been to work with this administration to make sure that the proper balance between competing interests and values is embraced. And as we move forward, we must create a better way of relating our national security to our national values, including personal privacy as well as the core civil rights and civil liberties expressly defined in our Constitution.

Too often, the effort to get to the right balance, especially where a national security question is raised, is portrayed as the same kind of ideological tug of war that we see too often in politics, where you need to be either on one side or the other. And it's not that simple. In truth, we need to protect both our national security and our national values. They are, in fact, intertwined. And while this task is oftentimes hard, there is no more important set of issues. And it is the Executive Branch that deals with these issues on a daily basis.

We frequently hear about a simple inverse relationship between security and liberty. If one is up, the other must be down. If one is embraced, the other must be sacrificed. I say that this is, to use the legal term, baloney.

[Applause]

The description doesn't do justice to the relationship between security and other values, especially in a world of fast-moving and fast-changing threats. Security is interrelated with our core values, and among the aspects of the homeland that must be made secure are our fundamental rights and freedoms. And security itself is a fundamental value. The Universal Declaration of Human Rights, for example, places security of person alongside life and liberty as a foundational right. And within the Constitution itself, we find these values interrelated. The preamble states that we must “ensure domestic tranquility and provide for the common defense,” as well as secure the blessings of liberty for the American people.

So there is a simple fact underlying this dynamic: One cannot live free if one lives in fear because people are more able to exercise their freedoms if they feel safe. But the need to be safe, the need to be free from fear should not be used, as it sometimes has been, to justify policies or actions that ignore our rights. It does not mean that our efforts to secure civil rights, liberties, and privacy must be partially rooted in the need to secure our nation.

Here's the truth, and here's the way I look at it. We can significantly advance security without having a deleterious impact on individual rights in most instances. At the same time, there are situations where tradeoffs are inevitable. And what results from this? Well, sometimes there are decisions I make that are relatively straightforward. Sometimes there are decisions where striking the right balance requires a lot of careful thought and planning.

Let me give you three examples of areas where we face these kinds of decisions in the Department today. The examples reflect the weighing process that must occur with so many of our initiatives.

The first example is this administration's effort to expand the use of advanced imaging technology at our nation's airports. Now, this gets to the heart of a clear vulnerability in aviation security, as we saw during the attempted bombing on Christmas Day. The reality is simple: al Qaeda and other terrorist groups continue to target commercial aviation, and they are attempting to use explosive materials that do not contain metal, and therefore cannot be detected by magnetometers.

This means that we need improved technology to secure the safety of passengers on board planes. AIT is an objectively better technology because it can pinpoint anomalies on a person's body, such as nonmetallic weapons and explosives, as well as other dangerous materials. And the courts have clearly recognized the permissibility of security measures like AITs because they fall within the category of a special need or administrative search.

The Supreme Court has not had the occasion to rule on airport screening. But the Circuit Court precedent is clear. Since the 1970s, case law establishes that airport searches are constitutional if they are done for the right reasons – to detect the presence of threats to airplane safety – and if they are done in the right way – no more intrusively than necessary to accomplish the security purpose.

In one of the earliest of these cases, U.S. v. Davis, the Ninth Circuit upheld airport screening, provided that the screening process was no extensive nor intensive than necessary, in the light of current technology, to detect the presence of weapons or explosives. Now, weapons and explosives have become harder to detect. AIT is a tool that can help detect them. It's reasonably fast and it is noninvasive. This makes AIT an essential security technology.

But it's also one that has raised privacy and civil rights/civil liberties concerns, and DHS, the Department, has worked to accommodate these concerns through a number of steps. We started by asking for help. We consulted with privacy, civil rights, and civil liberties advocates about how to build in protections which were present and are now present in the technology and in our operating policies.

First, the transportation security officer who asks the passenger to walk through an AIT machine never sees the passenger's image. Next, another security officer in a walled-off location, off to the side in the airport, views the black-and-white chalk-like image generated by the technology. And once that officer reviews the image and resolves any anomalies, the image is immediately deleted. None of the machines can store this data because DHS requires the manufacturers to disable the function before the machines can be placed in airports. With AIT, there are no identifiers and there are no records being made.

Next, TSA employees are prohibited from bringing any kind of device capable of capturing an image, like a camera or a cell phone, into any area where images are being shown. And finally, going through an AIT machine is optional. Signs advise travelers of this, and anyone can request a pat-down inspection accompanied by going through a magnetometer. And these are carried out by a person of the same gender and in private if a traveler so requests. All of these things, combined together, are designed to make sure we can use an objectively better technology, but in such a fashion that respects and embraces privacy and other rights.

A second area where we are achieving this balance is how we determine which travelers should receive what kinds of searches before they board a plane en route to the United States. It is critically important that we prevent dangerous people, including those with known connections to terrorism or terrorist groups, from boarding flights to the United States. At the same time, we should be careful of casting the net wider than necessary.

That is why, following the attempted terrorist attack on Christmas Day, we issued a new security directive for all air carriers with international flights to the United States, based on real time threat-based intelligence. But first, what we had to do was a somewhat cruder measure, and that is that we had to identify all passengers who come through or had any part of their itinerary that had gone through 14 countries. It was the so-called 14-country list. That, obviously, was not acceptable.

What we did was we developed, in consultation with the intelligence community and others, a new system, where we received information from the intelligence community and we write directives or rules about places, about tactics and techniques, that inform our law enforcement measures or officers at airports located abroad. That way, when we are screening abroad, we are screening based on a scenario that is intelligence-based rather than country-based.

In an ideal world, we would actually have the personal identity of a traveler. But we often don't. So we have to use intelligence, and use it in a targeted, specific way to make sure that we increase the security level of air flight and minimize the risk to our passengers. That is one of the ways that we have been able to work, using our offices of privacy, civil rights, and civil liberties, to achieve the appropriate balance. And the rules that we devise are regularly reviewed to make sure that they match the scope of the intelligence we receive so that we now have a system where intelligence is received, rules are crafted, rules are deployed, rules are constantly reviewed, a better system, a more effective system for all involved.

A third example I'd like to raise is one that is extremely complicated. But it is the need to secure our nation against violent extremism here at home. Put another way, we need to prevent terrorist attacks that are conceived, plotted, and carried out by United States citizens on United States soil. Yet in so doing, the legal and constitutional questions are numerous and complex.

We have seen greater mobilization by violent extremists of people who are either U.S. citizens or are legal residents. Indeed, there is now active recruitment of U.S. citizens or legal residents by al Qaeda or other terrorist groups. There are cases like that of David Headley, the U.S. citizen who helped do some preparatory work for the Mumbai attacks in 2008; or cases like that of Najibullah Zazi, the legal permanent U.S. resident who was arrested last year for planning terrorist bombings in the New York City area.

This not only presents a new challenge to the security system that our country set up post-9/11, but it recognizes that while we have focused on targeting threats coming from beyond our borders and from non-citizens, there are new legal and constitutional questions being raised because there is a new type and form of recruitment being used.

At the base of this, at the base of homegrown terrorism, is the problem of violent extremist ideology, something that at this point we are only beginning to understand from a psychological or sociological perspective. The fact is, the First Amendment protects radical opinions. But we need the legal tools to do things like monitor the recruitment of terrorists via the internet. And when young people are being targeted by terrorist recruits, we must view their communities as partners in solving that problem and in addressing threats to the country, not as parts of the problem.

We have begun important work with many communities across the country. The focus is on preventing violent crime and leveraging successful models like community policing. We seek to collaborate with organizations already working to build strong, capable communities. And finally, we look to educate communities about the evolving threats and what they can do to counter them.

Examples like these, the ones I've just stated, demonstrate how the Department of Homeland Security, and the Executive Branch as a whole are approaching the relationship between our national security and our national values. Today's threats are growing and changing so quickly that we must constantly take action. At the same time, it is essential that we place a priority on preserving and protecting our national values. This is what is happening at the Department.

As I mentioned, we have a Privacy Office, and an Office for Civil Rights and Civil Liberties. They are both active participants in formulating policies before policies are implemented. We do not attempt to shoehorn these considerations into policies after the fact. We consider them critical priorities from the beginning. These offices are robust. They're fully integrated in the decision-making process at the Department. They're each led by lawyers who are nationally respected leaders in their fields. So the Privacy and Civil Rights and Civil Liberties Offices aren't merely attempts at tokenism. Instead, they are at the table throughout the policy-making process.

These are the things that have to be debated and embraced within the Executive itself, not just within the courts or at the Congress.

The American people should know that their safety and security comes first. That's what my Department focuses on every day and every week throughout the year. We face a determined set of adversaries who are constantly evolving. The threats we face today are not the ones we are used to.

So in light of the ever-changing threat environment, we also need to evolve. We need to evolve in a way that puts to rest the old dichotomy that pits security against our other values. We need to evolve in a way that recognizes a more complex and dynamic relationships, where we search hard for solutions in which rights and security can work in tandem. The threats we face are very unpredictable, but we can predict one thing, that securing ourselves against them will often present us with challenges and difficult decisions.

I hope that the American Constitution Society can help foster a greater recognition in the public's view of the Constitution that we need careful calibration between both our security and our other national values. We must take both seriously. And we need to realize that this is not an impossible task. Rather, it is a calling, a calling that our nation must heed.

If we hold fast to our guiding principles, we will continue to make progress in securing our country. And while it is not possible to provide 100 percent guarantees against every threat, we can cultivate an American ethic of strength and resiliency in the face of challenge. And this, ultimately, is how we will further the security of the country, and how we will safeguard the values that have made us the great nation that we are, and how we marginalize the politics of fear.

I view this as my charge as the Secretary of Homeland Security. And this is why the Executive Branch must be an essential part of any constitutional discussion in the years to come.

Thank you for having me here today.

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