Former U.S. Sen. Mark Udall remembers how members of Congress gathered on the steps of the Capitol Building on the day of the 9/11 terrorist attacks. They clasped one another’s hands and spontaneously broke out singing, “God Bless America.”
It was a moving moment of patriotic bipartisanship. “It was our generation’s Pearl Harbor,” he recalled, and politics were momentarily subsumed by love of nation.
Then it was time to investigate and bring those responsible to justice.
“For many of us who were policymakers, it was time to take a crash course in understanding the tools of terrorism, trying to penetrate who al-Qaida was, who was this figure, Osama bin Laden – and then how do we respond?”
But the government went into overdrive, the Colorado Democrat believed, and put civil liberties at risk. He recalled other decisions in American history – such as the internment of Japanese-Americans during World War II – that were made in panic and secrecy.
“It became clear to me that bin Laden’s motive was to create greater suspicion in the world, to incent us to build higher and higher walls,” he told a sold-out crowd at CEMEX Auditorium on Thursday night. His talk was part of Stanford “Security Conundrum” lecture series co-sponsored by CISAC, the Hoover Institution, the Law School, Stanford in Government and Continuing Studies.
“And in an interesting way, it led me to look at civil liberties and civil rights, which are the biggest, baddest weapons that we have,” he said in conversation with Philip Taubman, a CISAC consulting professor and a former reporter at The New York Times.
Taubman is one of the organizers of the special series has brought together nationally prominent experts this academic year to explore the critical issues raised by the National Security Agency's activities, including their impact on security, privacy and civil liberties.
On April 10, the speaker will be Judge Reggie Barnett Walton, former presiding judge of the Foreign Intelligence Surveillance Court, known as the FISA court. California Sen. Dianne Feinstein, vice chair of the Senate Intelligence Committee, will close the series before the end of the academic year.
Udall told the audience that in the powerful wake of fear that swept the nation following the 9/11 attacks, the House was presented with the Patriot Act “to strengthen and broaden our capacity to surveil those who might do us harm.”
Udall was a congressman from 1999 to 2009 and then senator from 2009 until losing his seat in the mid-term elections last year. He had been a one-term congressman when the Bush administration put the Patriot Act to a vote on Oct. 24, 2001.
He was one of only 66 House members to vote against the act. It would then also pass through the Senate the following day.
Udall called his no-vote an unpopular one and a lonely period of his political life. But he believed the Act had been hastily drafted without due process and that some of the law’s provisions could lead to violations of privacy and freedoms.
“I was very conscious of what Ben Franklin famously said. He said that a society that trades essential liberties for short-term security deserves neither,” Udall said. “And I believed that we were strong enough to stand behind the civil liberties included in the First Amendment, the Fourth Amendment and the Fifth Amendment – including the explicit right to privacy – and that we would outlast these adversaries that were in front of us by hewing to those principles, not abandoning those principles.”
Udall also voted against the Obama administration’s four-year extension of three key provision of the act in 2011, which included roving wiretaps, searches of business records and conducting surveillance of those suspected of terrorist-related activities.
He would then gain notoriety for his vocal opposition to NSA surveillance programs in the wake of the Edward Snowden disclosures of June 2013. He became one of the staunchest critics of the U.S. spy agency for conducting massive, warrantless data grabs on millions of Americans without their knowledge.
Udall said the NSA gathers more than 700 million data sets from phone calls each day.
“I was told, don’t worry Mark, this is metadata. We just collect it; we don’t do anything with it,” Udall said. “But I realized that it wasn’t just metadata, that it was how that metadata was being used and the fact that it was a secret program and under a secret interpretation of the law.”
Udall said the metadata can be manipulated for form a pattern of an individual’s behavior, of his religious and political beliefs, his medical issues, his likes and dislikes.
“We haven’t done anything with this data and that’s all well and good,” he said. “But history shows us that the government will overreach, particularly when it operates in secret. The Fourth Amendment was put in place for a reason.”
He also worries the metadata program has undercut the trust in the intelligence community.
“I want to be clear: We need to gather intelligence,” he said. “There are forces at play in the world that would do us great harm. But again, we ought to gather that intelligence in ways that fit with what the public understands.”
Udall called on the audience to push for transparency reforms to the FISA court – which oversees requests by the NSA and FBI to issue surveillance warrants against suspected foreign intelligence agents. From 1999 to 2012, the court has granted nearly 34,000 warrants; only 12 have been denied.
Udall believes that privacy, which is implicit in the Bill of Rights, is essential to all other American freedoms that are protected by law.
“This has long-term and important ramifications about how we look at ourselves as Americans,” he said. “We all need to be in the mix; we all need to be having these discussions to be ever-vigilant and protect these fundamental freedoms.”