Mr. Chairman, thank you for the opportunity to testify before the Subcommittee on Homeland Security regarding American and British laws for investigating and detaining suspected terrorists. I am a professor of law at the University of California, Berkeley. From 2001 to 2003, I served as deputy assistant attorney general in the Office of Legal Counsel at the Department of Justice, where I worked on issues involving national security, foreign relations, and terrorism. My academic writing on these subjects can be found in two books, one published last year, The Powers of War and Peace, and one appearing later this month, War by Other Means. The views I present here are mine alone.

Great Britain’s successful prevention of a recent terrorist plot to destroy multiple American airliners flying from London to the United States in mid-air has prompted questions whether our counter-terrorism efforts can be improved. Some have suggested that British authorities enjoy broader law enforcement powers to investigate and detain terrorists, and asked whether we can learn from and adopt British practices. This idea has a basic attractiveness because the United States and Great Britain share a common cultural heritage, face a similar threat from international terrorism, and operate a common law legal system.

As I will explain, differences result from both constitutional and policy choices. I hope to demonstrate in what areas the American Constitution prohibits adopting British standards, as well as areas where American laws can be made more effective at fighting terrorism, that is, where our policy choices are not limited by the Constitution. First, I will discuss important constitutional differences between the United States and Great Britain.

Constitutional Differences

Unlike the United States, the United Kingdom does not have a written constitution. The British system lacks formal constitutional protections of many of the rights we consider fundamental as deriving from the constitutional text, structure, and history. Britain’s unwritten constitution does not enforce a strict separation of powers at the national level, nor does it have a federal system of government. Rather than an independent Presidency and Congress, executive power is exercised by a prime minister and cabinet which represent the majority party in Parliament.

The American Constitution protects many important civil liberties through explicit guarantees in the Bill of Rights which are lacking under the British system. For instance, the Fourth Amendment was enacted in 1791, partly in response to British practices during the Colonial period. This Amendment states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Fourth Amendment imposes restrictions upon the power of the government to monitor and detain individuals, even for legitimate law enforcement purposes. The Supreme Court has interpreted an individual’s right under the Fourth Amendment to require that to allow extended detention after a warrantless arrest, the suspect must be promptly presented before a judge to determine probable cause to stand trial for a crime--in almost all cases, within 48 hours. Gerstein v. Pugh, 420 U.S. 103, 125 (1975); County of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991). If the evidence is found insufficient, the arrestee must be released. It is well established that the suspect may appeal under the writ of habeas corpus to challenge his continued detention. See, e.g., Ex Parte Bollman, 4 Cranch 75 (1807). Britain has no such constitutional limits, and has greater flexibility to legislatively alter the time and procedure of detention without charge.

The First Amendment, likewise ratified as part of the Bill of Rights, protects among other things individuals’ freedom of speech, religion, and association, which can come into conflict with law enforcement and intelligence purposes. Britain does not have a constitutional analogue to the First Amendment. Finally, the Sixth Amendment guarantees accused criminals certain rights, such as the right to a speedy trial and the right to be informed "of the nature and cause of the accusation," and the right "to be confronted with the witnesses against him."

A Comparison of American and British Anti-Terror Laws

The British Parliament has recently enacted several important pieces of anti-terrorism legislation: the Terrorism Act 2000, the Regulation of Investigatory Powers Act of 2000, the Anti-terrorism, Crime and Security Act of 2001, the Prevention of Terrorism Act 2005, and the Terrorism Act of 2006. These laws set forth comprehensive definitions of terrorism and related offenses, and establish procedures authorities shall follow in combating terrorism. The laws represent Britain’s response to two distinct forms of terrorist threat. The first was from Irish separatists who committed acts of terrorism and murder in Northern Ireland and Britain. This was the United Kingdom’s greatest domestic security threat for much of the latter part of the 20th Century. The second form of terrorism addressed by the British laws is Islamic fundamentalist terrorism perpetrated by al Qaeda and groups affiliated with it. This has taken on great prominence in Britain post-9/11, and more so in light of the deadly attacks on the London Underground on July 7, 2005, and the recently foiled plot to hijack or blow up passenger jets departing Britain bound for the United States.

The following provides a brief description of the differences in American and British anti-terrorism laws topic by topic. It examines the laws regarding arrest, searches, and detention of suspects; monitoring suspects’ bank accounts; monitoring communications data; intercepting communications, i.e. wiretapping; infiltrating suspected groups; and finally, sharing information among law enforcement and the domestic and foreign intelligence communities;

Arrest, Searches, and Detention of Suspects

Under the Terrorism Act of 2000, a British officer may arrest a suspected terrorist or conduct a search of a suspect he "reasonably suspects" is a terrorist or is in possession of "anything which may constitute evidence that he is a terrorist." An American officer, by contrast, must have "probable cause" to make an arrest or conduct a search of a person he suspects to have committed a crime. See, e.g., United States v. Watson, 423 U.S. 411 (1976). This is the minimum under the Fourth Amendment and cannot be changed by Congress.

The British have greater power to detain a terrorist without criminal charge. Section 23 of the Terrorism Act of 2006 sets forth a procedure under which a suspect may be detained for up to 28 days before he must be charged with a crime or released. After 48 hours, judicial approval is required, and is required a second time if the authorities wish to detain the suspect beyond 7 days. The judge does not need to find probable cause, but must be satisfied that "there are reasonable grounds for believing that the further detention of the person to whom the application relates is necessary to obtain relevant evidence whether by questioning him or otherwise or to preserve relevant evidence," and "the investigation in connection with which the person is detained is being conducted diligently and expeditiously." The suspect has access to counsel and may make written or oral communications before the judge; however, the suspect and his counsel may also be excluded from portions of the hearing. The British government has already invoked this power to detain the individuals arrested in conjunction with the August, 2006 plot to blow up airliners departing Britain. This allowed the plot to be halted, but also allows more evidence to be gathered prior to formally charging the suspects with crimes.

In the United States, law enforcement authorities must generally present probable cause before a judge that a suspect has committed a crime or the suspect will be released. The Supreme Court has interpreted the Fourth Amendment to require the government to charge suspects at most within 48 hours. The Court has made clear that it is unreasonable to delay a probable cause hearing for purposes of gathering evidence to justify the arrest. McLaughlin, 400 U.S. at 56. There are few exceptions to the American probable cause paradigm. One is the material witness statute, 18 U.S.C. § 3144, which allows the arrest and detention of suspects whose testimony in a criminal proceeding might be difficult to obtain. This has been applied in the war on terrorism to initially detain Jose Padilla, as well as others who may have had information about the 9/11 hijackers, but its applicability and usefulness are limited.

It is not clear, however, that the unwritten nature of the British constitution permits broader detention authority than in the United States as a constitutional matter. The Supreme Court has made clear, as recently as in Hamdi v. Rumsfeld, 124 S. Ct. 2633 (2004), that the government may detain enemy combatants without criminal charge or hearing until the end of hostilties. On September 18, 2001, Congress voted in the Authorization to Use Military Force statute to approve the President’s authority to use force against those connected to the September 11, 2001 terrorist attacks. Ever since the earliest days of warfare, the lesser power to detain combatants has been understood to fall within the greater authority to use force against the enemy. As the Court recognized, the purpose of detention in the military context is not to punish, but merely to prevent combatants from returning to the fight. In fact, such detention is the merciful, humanitarian alternative to a practice of granting no quarter to the enemy. That power extends even to U.S. citizens, as it did in the case of Ex Parte Quirin, 317 U.S. 1, 28 (1942), in which the Court upheld the World War II detention and trial by military commission of Nazi saboteurs, one of whom apparently was a citizen. After noting that the laws of war permitted the detention without criminal charge of Confederate soldiers during the Civil War, the Court observed that "A citizen, no less than an alien, can be ‘part of or supporting forces hostile to the United States or coalition partners’ and ‘engaged in an armed conflict against the United States.’" No specific congressional authorization, the Court further concluded, was needed. "Because detention to prevent a combatant’s return to the battlefield is a fundamental incident of waging war," the Court concluded, "in permitting the use of ‘necessary and appropriate force" Congress authorized wartime detention of enemy combatants.

The Constitution imposes much narrower restrictions on the detention of criminal suspects than the British system. But if the subject is a terrorist connected with al Qaeda or with the September 11 attacks, he or she might meet the standard for an enemy combatant. In that case, the U.S. government could detain the subject as an enemy combatant, without having to meet the criminal justice system’s 48 hour requirement. The only complication in this argument is that Hamdi addressed a case in which the enemy combatant had been detained in the course of hostilities in Afghanistan, and did not address a different factual circumstance presented by an American citizen affiliated with al Qaeda who is detained on United States soil. While the U.S. Court of Appeals for the Fourth Circuit in Padilla found the same logic applied to both cases, the Department of Justice transferred Jose Padilla to the criminal justice system before the Supreme Court could hear an appeal.

Restricting Movements of Suspects

Britain’s Prevention of Terrorism Act allows authorities to issue "control orders" which impose restrictions upon a suspect’s civil liberties without incarcerating him. These orders, which require judicial approval and are valid for up to one year at a time, could restrict an individual’s freedom to travel, to meet with certain groups or visit certain locations, to be away from his home during certain hours of the day, or to use cell phones or the internet. Currently the regime of control orders is under challenge as a potential violation of European human rights laws. The United States has no comparable federal laws, and such provisions would run into constitutional difficulties due to the First Amendment’s protections of individuals’ freedom to travel and associate.

Monitoring Bank Accounts and Communications

The Anti-terrorism, Crime and Security Act of 2001 allows British authorities to monitor bank accounts upon obtaining a warrant from a judge. The judge must find that the monitoring relates to a terrorist investigation, and also that the particular monitoring order sought will further that investigation. Anti-terrorism, Crime and Security Act of 2001, Schedule 2 Part 1 (amending Terrorism Act 2000 § 38). The order lasts for 90 days. Additionally, the Regulation of Investigatory Powers Act of 2000, and an accompanying Code of Practice, allows British law enforcement and intelligence authorities to evaluate communications data for patterns suggestive of terrorist activities. This means the attributes of communications, such as the location where a call was placed and its destination, but not the actual contents of the communication. To monitor communications data, a law enforcement or intelligence agency need only complete a written application, which is considered by a designated individual within the body or agency. Authorizations are valid for up to one month, and can be renewed. The government may also inquire into subscriber information, or the identity of persons to whom a telephone number is registered or who controls an email account or internet domain. British law enforcement and intelligence agencies are allowed to share any information obtained by these or other investigatory means.

In the United States, authorities may obtain a warrant or administrative subpoena for financial records under the Right to Financial Privacy Act, 12 U.S.C. §§ 3401-3422, which grants individuals some privacy rights over financial records in the hands of third parties. Authorities may also obtain a warrant for tangible items held by third parties, under section 215 of the USA Patriot Act. In 2001, the Patriot Act authorized domestic law enforcement and intelligence agencies to share financial documents for the purposes of fighting terrorism. The ability of American authorities to obtain financial records by administrative subpoenas is somewhat easier than that granted to their British counterparts, and the rules on sharing the information among agencies are comparable. With regard to other tangible items, section 215 of the Patriot Act requires that the Foreign Intelligence Surveillance Court issue a warrant. Britain does not have a statute with scope analogous to section 215.

Upon first examination, it would appear that the British system permits the government easier access to non-content data about communications because of its ability to seek authorization from an agency official. But the administration has sought a similar ability through its warrantless surveillance of communications, with one end of the message or conversation beginning or ending abroad, with a suspected al Qaeda member. These communications do not as yet require a judicial warrant, because the administration claims that the program is authorized by the AUMF of September 18, 2001, and the President’s Commander-in-Chief authority to conduct war. The program is under challenge in the courts as a violation of the Foreign Intelligence Surveillance Act, and Congress is currently considering legislation that would approve the program or consolidate it for judicial review before the FISA court.

Data Mining

Data mining uses supercomputers to analyze vast amounts of information for suspicious patterns of behavior. While British anti-terrorism legislation does not address data mining, some commentators claim that data mining is already widely used in the United Kingdom to combat terrorism. A common misperception about data mining is that it involves gathering information about millions of individuals, and hence implies increased surveillance. Rather, data mining applies algorithms to information that is either already public or on record with third parties.

Analyzing this type of information does not violate an individual’s Fourth Amendment right to be free of unreasonable searches and seizures. As the Supreme Court has held with respect to bank records, once information is turned over to a third party in a commercial setting, the individual loses his reasonable expectation of privacy in that information. United States v. Miller, 425 U.S. 435 (1976). The Supreme Court likewise has held that an individual does not have a reasonable expectation to the privacy of the phone numbers he dials, because the phone user voluntarily gives this information to the phone company; thus, a "pen register" to record dialed phone numbers does not require a warrant. Smith v. Maryland, 442 U.S. 735 (1979). Data mining is constitutional and does not threaten civil liberties because it deals first and foremost with raw data. It is not an impermissible "fishing expedition" that looks for dirt on a particular person, as civil libertarians may claim.

American restrictions on data mining do not arise because of significant constitutional differences between the United States and Great Britain. Rather, restrictions on data mining in the United States have resulted from policy decisions made by Congress in response to reports of Defense Department efforts to create a "Total Information Awareness" program. I believe that Congress reacted prematurely to exaggerated reports of data mining research. Data mining could be controlled and developed so that it protects us from terror and maintains our privacy. Analysis could be limited to data already turned over to third parties.

Searches could be performed initially by computer. Only after a certain level of suspicious activity had been registered would an intelligence or law enforcement officer be allowed to see the results. A warrant could still be required to investigate the content of communications or the purpose of purchases. Only after a suspicious pattern is detected would authorities seek more complete records about a particular individual’s activities, either through a warrant or administrative subpoena. Because data mining does not violate Fourth Amendment norms, Congress can authorize data mining programs that strike the appropriate balance between providing law enforcement access to useful information and protecting civil liberties.

Profiling, Infiltration, and Privacy

British authorities have the power to monitor ethnic and religious groups, and radical elements within those groups. British police can infiltrate the groups, instead of merely relying on informants’ accounts. It is unclear precisely where and how often British authorities have infiltrated or attempted to infiltrate such groups. However, there is no indication that such actions are considered illegal or unconstitutional under the British legal system.

In the United States, guidelines issued by the Attorney General set forth the extent to which the FBI can monitor potential terrorist activities and infiltrate criminal or terrorist ventures. These guidelines explicitly allow the FBI to check initial leads that may be related to crime or terrorism, including attending public events. The FBI may also infiltrate terrorist organizations, but such operations are normally considered "sensitive circumstances" requiring approval of high-level FBI officials. The decision regarding when infiltration is appropriate requires that officials weigh factors, but the Guidelines neither prescribe nor proscribe particular instances when infiltration is advisable or forbidden.

The areas of profiling, infiltration, and privacy present fewer constitutional restrictions and more policy choices. Profiling, which may perhaps represent a useful tool, can run afoul of equal protection rules and non-discrimination norms.

Conclusion: Administrative Reform

Differences between British and American anti-terrorism policy does not turn on constitutional differences for their scope. Many of the powers thought to be more advantageous to the British, such as detention and surveillance, in fact have some counterpart in the American system. Congress could help by further authorizing these powers, which are under attack in the court. Other important areas, such as in the area of data mining, are restricted in the United States not because of constitutional prohibitions, but because of policy choices made by Congress.

Perhaps the most important British-American difference, however, which can have significant effects on the war on terrorism is the structure of the domestic intelligence agencies. American efforts so far to reform our national security system in response to the lessons of 9/11 have focused on changes of high-level administrative reorganization, such as the creation of a Director of National Intelligence or the Department of Homeland Security. These changes have consumed energy and resources, but have placed an additional layer between the President and those who directly collect and analyze intelligence.

At the same time, Congress has not undertaken any sweeping reform of the Federal Bureau of Investigation. The United States is different from Britain, and France, Canada, and Australia, for that matter, in that it assigns domestic counter-terrorism and counter-intelligence functions to an agency that is also responsible for domestic law enforcement. As I argue in my book, the approaches to law enforcement and national security are very different. The former is retrospective, depends on building cases, and focuses on prosecution and incarceration. The latter is prospective and focuses less on convictions than on preventing future attacks.

In Great Britain, these functions are split up, with MI5 performing the role of an internal intelligence service. Arguably this allows those tasked with counter-terrorism to focus on gathering intelligence, engage in long-term monitoring and investigation, and develop expertise on the enemy that may go beyond what is possible in a domestic law enforcement system, which depends on cases and prosecutions for success. Congress should devote deeper thought to whether our counter-terrorism efforts would meet with greater success if it divided the FBI’s current duties between two agencies, one for domestic law enforcement and one for counter-terrorism and national security affairs. This could be a greater contribution to our anti-terrorism laws than making changes to the scope of the substantive powers available to the government.