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Status: U Date: Fri, 05 Oct 2001 13:52:38 -0500 To: [EMAIL PROTECTED] From: Robert Huddleston <[EMAIL PROTECTED]> (by way of [EMAIL PROTECTED]) Subject: ip: Don't give up security for a false sense of liberty BY STEWART BAKER http://opinionjournal.com/extra/?id=95001279 OpinionJournal Extra TRADE-OFFS Dangerous Secrets Don't give up security for a false sense of liberty. BY STEWART BAKER Friday, October 5, 2001 12:01 a.m. EDT For weeks, pundits have been warning us against new legislation that would sacrifice essential liberties in the name of a false security. Judging by the reaction to the Bush administration's antiterrorism bill, the real question is whether we'll be sacrificing essential security in the name of false civil-liberties concerns. Perhaps the most pointed example of this is Congress's handling of the administration proposal to let law-enforcement authorities share grand jury information with national security and intelligence agencies. Senate negotiators stalled the entire bill over this issue, and the House has already modified the proposal in a way that renders it nearly meaningless. The concerted opposition to this proposal is hard to justify. Barriers to information-sharing between intelligence and law-enforcement agencies have already cost us dearly in the fight against terror. Information about the activities of terrorists abroad is usually gathered by our intelligence agencies, most notably the Central Intelligence Agency. Inside the U.S., the information is gathered by the Federal Bureau of Investigation. Since terrorist acts are crimes, the FBI often uses criminal tools, such as grand-jury subpoenas, to gather that information. Obviously, this information needs to be shared by both agencies. We need to be able to analyze a conversation overheard in Hamburg, Germany, in the light of a series of bank deposits in New Jersey. But right now, most of the sharing runs only one way. FBI agents can see the intelligence from Hamburg, but CIA analysts aren't allowed to see the New Jersey bank records--if those records were gathered with a grand jury subpoena. Since it's the CIA, not the FBI, that has the capability to really analyze terrorists' future plans (as opposed to catching them afterward), this restriction is an invitation to more attacks. This is not just a theoretical risk. In fact, grand jury secrecy rules may be one reason we didn't anticipate the Sept. 11 attack. Start with the proposition that whoever dreamed up the first World Trade Center bombing was probably also behind the second attack. Who conceived and organized that first attack? We can't be sure, in part because the CIA was hobbled in its review of the first attack--by grand jury secrecy. Writing in The New Republic two weeks ago, former CIA director Jim Woolsey explained: "No one other than the prosecutors, the Clinton Justice Department, and the FBI had access to the materials surrounding that case until they were presented in court, because they were virtually all obtained by a federal grand jury and hence kept not only from the public but from the rest of the government." When the administration tried to ease these restrictions, the Senate Judiciary Committee insisted that any such sharing be approved by a judge "upon a showing that the matters pertain to international or domestic terrorism or national security." But asking judges to review every document--or even every class of documents--is unworkable. Certainly no such restriction applies when prosecutors share the same information with investigative agencies. Is grand jury secrecy so important to our liberty and privacy that the nation has to pay for it in crippled intelligence capability? Maybe, but it's hard to see why. Sure, the privacy of suspects under investigation is important. The accusations made against them before the grand jury shouldn't be publicized until the government has actually decided that a good case can be made. But no one is talking about making grand-jury information public. Rather, the administration has proposed that it be shared with those government agencies that play a vital role in stopping terrorism. Under the current grand jury rules, a criminal prosecutor can share jury information freely with his secretary, with other lawyers in the office, with the FBI, with Justice Department paralegals--indeed, with any other official the prosecutor thinks will help him to enforce the criminal law. Do we really think that all these personnel will do a better job of protecting a suspect's privacy than CIA analysts--who, after all, are in the business of keeping far more important secrets than that? The real question is not whether this trade-off between civil liberties and security is justified. The real question is why Bush administration negotiators didn't work harder to push through the change. Here, I can only speculate that the Justice Department, at least at the start, wasn't wholeheartedly behind the measure. Why not? A broad interpretation of the grand jury protections has proven quite handy in allowing Justice to dismiss Freedom of Information Act requests for documents gathered by prosecutors. As well, the grand jury rules have the effect of putting Justice in a position of primacy among the agencies. Currently, the Justice Department can make exceptions to the no-sharing rule, but only for CIA analysts who agree to work as prosecutors' assistants, and so long as prosecutorial goals take precedence over intelligence ones. After a bit of wobbling, however, the administration now seems ready to overcome bureaucratic turf issues and fight for this reform. But there remains substantial opposition in Congress. The question is whether we will sacrifice this long-overdue change for a civil liberties concern that is more slogan than reality. -------------- Mr. Baker, former general counsel of the National Security Agency, practices law in Washington. October 5, 2001 2:18pm EDT " The consequences for the acceptance of dependency is the irrevocable loss of LIBERTY. " --- end forwarded text -- ----------------- R. A. Hettinga <mailto: [EMAIL PROTECTED]> The Internet Bearer Underwriting Corporation <http://www.ibuc.com/> 44 Farquhar Street, Boston, MA 02131 USA "... however it may deserve respect for its usefulness and antiquity, [predicting the end of the world] has not been found agreeable to experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire' --------------------------------------------------------------------- The Cryptography Mailing List Unsubscribe by sending "unsubscribe cryptography" to [EMAIL PROTECTED]