Liberty Coalition speech to White House Civil Liberty and Privacy Board at Georgetown

Talk to Privacy and Civil Liberty Oversight Board
12/5/2006

My name is Michael Ostrolenk; I am co-founder and National Director of the Liberty Coalition. The Liberty Coalition works to help organize, support, and coordinate transpartisan public policy activities related to civil liberties and basic rights. We work in conjunction with groups of partner organizations that are interested in preserving the Bill of Rights, personal autonomy and individual privacy.

We have 61 coalition partners from across the political spectrum. My words today are mine alone though and do not necessarily represent those of our partner organizations.

First, I would like to thank the Privacy and Civil Liberty Oversight Board for inviting me to speak today. The board is charged with a very important mission. You are to ensure that concerns with respect to privacy and civil liberties are appropriately considered in the implementation of all laws, regulations, and executive branch policies related to efforts to protect the Nation against terrorism.

If I had the ability to change your charter, I would make it more aligned with the Declaration of Independence, which clearly states that government is instituted in order to protect our inalienable rights to life, liberty and the pursuit of happiness. It does not say that concerns about life, liberty and the pursuit of happiness will be considered as the government goes about its business. “Protection,” not “consideration” is what is mandated. That is what I consider the major problem we in America face today. It is a government which has forgotten what its true purpose is and that its powers, as limited as they ought to be, is only given to it by the consent of the governed.

It has been said repeatedly that 911 changed everything. But this unspeakable tragedy, nor anything else like it, should fundamentally change our way of life. When I say our way of life, I do not mean our ability to go shopping, but fundamental transcendent principles, which were discovered by human reason to guide us in our political relations.

Unfortunately, every crisis we have faced in the United States, including 911, has led not to self-reflection and a universal declaration of support for our founding principles but to an increase in the power of the national security state, a loss of civil liberties and a great cost to the public treasure to the benefit of politicians, corporations and government agencies.

Although this is not the appropriate forum, in recognition that our foreign policy does have a direct effect on the size and scope of government at home, I would like to suggest that our esteemed leaders consider the wise words of John Quincy Adams who said “America is the well-wisher to the freedom and independence of all. She is the champion and vindicator only of her own.”

Now, today we are discussing our collective concerns about the loss or potential loss of our civil liberties during the war on terror. I want to clarify two terms before I give time to a few specific issues. One is the term ‘war on terror’. I would like to encourage everyone to stop using that term. Terrorism is a tactic used by a specific group of people for political purposes and one cannot war against a tactic. “War on Terror’ is a propaganda term used by the state to create confusion in the minds of the citizens.

Yes, we were attacked, but by a specific group of people. Congress, if they took their oath to the Constitution seriously, should have used their Constitutional powers under Article 1 Section 8 to declare war. The declaration of war would have been against a specific foe as opposed to what we have now, which is an undeclared never-ending war against an undefined enemy.

The second term I want to clarify is ‘civil liberties’. I use the term to mean all liberties including economic and social.
All of what I have said is important, at least to me, in setting the stage for the issues I want to discuss with the rest of my allotted time. I will be discussing three issues: The misuse of the material witness statute, medical privacy and the needed protections for national security whistleblowers.
Since the attacks of September 11, 2001, at least seventy men living in the United States have been thrust into a world of indefinite detention without charges, secret evidence, and baseless accusations of terrorist links. They have found themselves not at Guantánamo Bay or Abu Ghraib but in America’s own federal prison system, victims of the misuse of the federal material witness law in the U.S. government’s fight against terrorism.
Congress enacted the current material witness law in 1984 to enable the government, in narrow circumstances, to secure the testimony of witnesses who might otherwise flee to avoid testifying in a criminal proceeding. If a court agrees that an individual has information “material” to a criminal proceeding and will likely flee if subpoenaed, the witness can be locked up – but, in theory, only for as long as is necessary to have him testify or be deposed.
Since September 11, however, the U.S. Department of Justice has deliberately used the law for a very different purpose: to secure the indefinite incarceration of those it has wanted to investigate as possible terrorist suspects. It has used the law to throw men into prison without any showing of probable cause that they had committed crimes. Innocent people have become the hapless victims of the government’s zeal, because neither the Justice Department nor the courts have honored the letter and spirit of the material witness rules that protect everyone’s right to freedom.
The misuse of the material witness law has been harmful for those who have been wrongly held, and is damaging to the rule of law. Holding as “witnesses” people who are in fact suspect’s sets a disturbing precedent for the future use of this extraordinary government power to deprive citizens and others of their liberty.
We think that the material witness statute should only be used for its intended purposes and therefore we recommend the following legislative fix:

First, the legislation would require the existence of a pending grand jury proceeding or criminal trial before such warrants could issue. This would help ensure that witnesses are detained solely for the purpose intended: to give testimony in a pending case.

Second, the legislation would place time limits on the length of detention, thereby ensuring that individuals would not be held for extended periods of time.

Third, it would require a heightened showing that the detained witness is in fact a flight risk. This would protect individuals who would voluntarily respond to a subpoena from being needlessly arrested and incarcerated.

Fourth, it would import due process standards from the Federal Rules of Criminal Procedure to ensure that material witnesses are informed of the basis of their arrest and their right to counsel.

Fifth, the legislation would requires that such witnesses be detained in the least restrictive conditions possible, preferably kept separate from those charged with criminal offenses. This reflects the fact that material witnesses are, as the name implies, witnesses. They are not suspected of any criminal wrongdoing, and should be treated accordingly.

And sixth, the legislation would require the Justice Department to report annually on the number held under the material witness laws and average length of detention.

For more information I would suggest you contact Human Rights Watch and the ACLU.

Another issue that we are concerned with is the loss of medical privacy. The Administration and the Congress are pushing for the creation and use of a national electronic medical records web based system. The Senate and the House both passed bills this year toward those ends. This system would place everyone’s medical records online and available to a wide variety of government agencies, private institutions and companies without the consent of the patient. This has potentially enormous negative consequences for the sanctity of the doctor/patient relationship and the practice of medicine as well to Americans’ constitutional rights. It would seem clear that such a coerced system could and would violate the 1st, 4th, 5th and 10th amendment. The 10th amendment because interfering in the practice of medicine and the healthcare system is not an enumerated power under the Constitution.

During the debates over the Patriot Act, I spoke a great deal about how two powers, section 215, and section 505, the library provisions and national security letters respectively clearly violate the 4th amendment in spirit and in fact and would lead to the further erosion in this case, to our medical privacy rights. And this new proposed system of medical records just puts the nail in the coffin of a heretofore universally recognized expectation of privacy concerning our medical treatment records.

I am sure all law enforcement and intelligence agencies would like to have very easy access to Americans medical records. According to Government Health IT as reported on August 14th “the CIA backed venture capital firm In-Q-Tel is investing money in a company that sells software used for managing electronic medical records.” This is a very disturbing piece of news but not surprising.

However, no matter who wants what, no one should have access to any medical record without the consent of the patient or a court order. The latter not being a 215 order, which is a rubber stamp court order in my opinion.

If we are going to have to live with a government coerced web based system, I would like to encourage you to make sure the following principles created by Jim Pyles, an attorney representing the American Psychoanalytic Association on health privacy matters, are included in such a system:

Principles for Ensuring Health Privacy Rights

1. Privacy standards [established by laws and regulations] should recognize that individuals have a right to health information privacy.
2. An individual’s identifiable health information must not be disclosed or re-disclosed without his or her written or electronic consent (unless otherwise required by law).
3. An individual should be allowed to limit the disclosure of certain especially sensitive health information (such as mental health, genetic, HIV/AIDS, and drug and alcohol treatment information) to only designated practitioners.
4. An individual should not be coerced or compelled to disclose his or her entire health-care record as a condition of obtaining health-care treatment, insurance, or employment.
5. The privacy protections must apply to any individual or entity that handles the information.
6. The privacy protections must provide any individual with a right to obtain damages and other relief for a violation of the individual’s right to health information privacy.
7. The privacy protections must require notification of actual or suspected privacy breaches to the individual whose privacy was compromised and to the [HHS] Secretary who should maintain a publicly accessible list of entities which have had privacy violations as well as the remedial action taken and any penalties that were imposed.
8. The privacy protections should ensure that no practitioner would be required or coerced to disclose a patient’s identifiable health information in violation of the practitioner’s standards of medical or professional ethics.

For more information on medical privacy, I would refer you to the Association of American Physicians and Surgeons, Patient Privacy Rights Foundation and the Institute for Health Freedom.

Last but definitely not least, is my concerns for protecting national security whistleblowers. These brave men and women risk everything to come forward within their own agencies or to congress to blow the whistle on waste, fraud and abuse of power. They are our first line of defense in protecting our constitution, our liberties and our monies. They deserve to be protected and encouraged not retaliated against.

By retaliating against whistleblowers that report waste, fraud and abuse, which happens most of the time, other employees are disincentives to come forward.

Second, retaliation against whistleblowers is expensive, unproductive and puts our security, liberties and monies at risk.

Third, whistleblowers who report waste, fraud and abuse are the type of employees the intelligence and law enforcement agencies need more of since they are obviously ethical and take their jobs and obligations to the American people seriously.

Fourth, retaliation prevents the Congress from knowing the facts of potential waste, fraud and abuse and being able to provide good oversight.

We would suggest you consider encouraging the administration to support any legislation that contains the following general principles

1. Whistleblowers who report waste, fraud and abuse should be protected against being discharged, demoted, suspended, threatened, harassed, reprimanded or investigated or have their security clearance revoked.
2. Whistleblowers who are retaliated against should be able to seek relief.
3. In the case of seeking relief, the whistleblower should be protected against the use of the state secrets privilege by finding in their favor if the privilege is asserted.
4. Any person who retaliates against a whistleblower who has reported waste, fraud and abuse, shall be guilty of a felony.


For more information on protecting national security whistleblowers, I would refer you to the National Security Whistleblowers Coalition, the National Whistleblower Center, Government Accountability Project and Project on Government Oversight.

Those three issues I just addressed are just a few of many that I am concerned with these days. My colleagues today will be addressing others. I hope you will truly hear our concerns and take them seriously and work with us to make sure our liberties are truly protected. I also hope you keep in mind why the government was created in the first place which is to secure our rights to life, liberty and the pursuit of happiness. And remember when any form of government becomes destructive to those ends, it is the right of the people to alter or abolish it.

Thank you






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