Privacy Debate: Douglas Kmiec opening remarks

To understand all of the aspects of the debate resolution, one needs to understand the threat to our security as well as the meaning of constitutional privacy. You cannot understate the threat of terrorism to America. It is a set of opponents who are loosely affiliated, very wealthy, and committed to damaging our nation, and it must be addressed in realistic terms. The Fourth Amendment does protect privacy, but this is not a categorical right. The courts have used the standard of reasonableness to determine how to apply the Fourth Amendment to government activities. In the case of terrorism, we are interested primarily in preemption, not prosecution, so the criminal structure is ill-suited to confront it. We need an alternative structure that consists of three parts: 1) One that assesses the programmatic need for surveillance, 2) is in proportion to meeting that need, and 3) is a respectable and responsible means of oversight in terms of administrative sanctions for abuse.

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