Surveillance Standoff
Friday, April 04, 2008
In the old days, everyone was linked to a lug nut, and Jim Kallstrom liked it that way.
It was 1985, a simpler time for a cop like Kallstrom, who was in charge of setting telephone wiretaps on suspected drug dealers and mobsters for the FBI's New York City field office. In New York, Kallstrom's cases were often won on the basis of incriminating evidence surreptitiously snatched from the mouths of criminal defendants through their phone lines. With a mere 203,000 Americans using mobile phones, people were still tied to the ground, and that gave Kallstrom's world a certain comforting order.
On any given day, he could stand on a street corner in Manhattan, gaze up at an apartment building with its neat rows and columns of units stacked atop each other, and know that inside each one there was a telephone, tethered by thin copper wire to a single point, sometimes several miles away. In his mind's eye, Kallstrom could have imagined shrinking himself to the size of an electron and traveling over the phone line, down to the bottom of the building, then shooting beneath the streets, until he ended up in the basement of the telephone company's switching station. There, the wire emerged, pegged to a rack by a single copper lug nut. Acres of racks lined the walls, each holding rows and columns of lug nuts and their wires, neatly stacked atop each other -- the city of New York in analog miniature.
With a warrant in hand, Kallstrom could tell the technicians at the phone office, with whom he had become friendly over the years, "Go up on RR326." The tech would walk to the rack, find the wire, and clamp on a listening device. Instantly, Kallstrom became an invisible interloper.
FBI agents and federal prosecutors depended on these legal wiretaps to penetrate drug cartels, incriminate money launderers, and spy on mob families. And they needed to be absolutely certain that the line they were on belonged to the suspected dealer, or launderer, or capo named in the court-approved warrant. Not the guy in the apartment next door. Not someone down the block. This guy. This phone. RR326. Lest the agents violate a judge's order, and perhaps land themselves in jail, this had to be the very same line that snaked back through the subterranean maze of Manhattan, through all those blocks of concrete caverns, back to that certain apartment building, up through the walls and out of the jack and into the phone that was in the hand and next to the mouth of Kallstrom's target. It was, by design and necessity, a neat, specific system.
And then it all went sideways.
Kallstrom's friends in the phone company put him on notice in 1985: Over the next few years, those racks and stacks of wires and lug nuts would be swept into the technological dustbin. The telephone network was going digital. Technicians would no longer stand at a rack; they would sit at a keyboard. In some parts of the country that had already made the change, phone calls were traveling as a stream of 1's and 0's. Thousands of lines commingled in a single computer. When New York went digital, the phone techs told Kallstrom, they would no longer be able to tap him directly into RR326. In fact, they couldn't even tell him for sure where RR326 resided in this new engineering matrix.
At the same time that the phone companies were preparing for the transition to digital, the use of cellphones -- which were inherently harder to tap because they used phone lines differently than analog devices -- mushroomed. From 1985 to '86, the number of registered mobile-phone subscribers in the United States doubled to 500,000. Within two years after that, the number climbed to 1.6 million. By the end of the decade, the cellphone universe had skyrocketed past 4 million.
Organized crime was an early adopter of the mobile phone. In a communications technique presaging that of Islamic terrorists today, members of the Colombian Cali drug cartel operating in New York would briefly use a phone, toss it, and get a new one. To tap a mobile device, technicians had to install listening equipment on the new version of a lug nut -- an "electronic port." But in most switching stations in New York, there were only half a dozen or so ports available at any one time. Federal prosecutors and agents had to stand in line at phone company offices and fight with each other over whose investigation should take priority. Some prosecutors threatened to haul company employees into court on contempt charges so they could explain to a judge why the phone company was unwilling to execute a wiretap order.
Electronic surveillance, once such a dependable, relatively easy craft, was becoming inordinately difficult, Kallstrom thought. The phone companies, whose annual revenues from mobile subscriptions were cresting over $2 billion in the late 1980s, showed little willingness to make the FBI's life easier. As the 1990s approached, with the promise of more digitization and more mobility, Kallstrom called his bosses in Washington: "If we don't do something, we'll be out of the wiretapping business."
A Battle Begins
Kallstrom may have been the first to alert the FBI and the Justice Department to this new reality. The digital revolution generated a constant tension that exists to this day, a push and pull between the federal government in one camp and technology corporations and civil-liberties activists in the other to control the development of the global communications system, and so the balance of power in the Information Age.
This struggle's latest manifestation is the intensely politicized effort to rewrite the Foreign Intelligence Surveillance Act. At issue is nothing less than the government's authority to broadly monitor communications networks to spot terrorists and other national security threats. The Bush administration finds itself across the battle lines from many of the same groups that more than a decade ago argued that the government was already extending its reach too far into personal conversations in the name of pursuing criminals.
While FISA governs wiretapping for intelligence-gathering purposes, as distinct from law enforcement, surveillance in both worlds follows the same essential philosophy -- the best evidence in a court of law or in an intelligence operation is one's own words. Today's dispute is not very different from the one that occurred during the dawn of digitization in the 1990s. Indeed, both are part and parcel of the same long-running debate.
No one should believe that real-time government surveillance of the communications network is an idea born of the 9/11 attacks or that it results solely from the Bush administration's aggrandizing of executive power. The legal arguments that the government has asserted to support increased surveillance of digital space were first put forth in 1994, under a Democratic president, and they had little to do with the threat of Islamic extremism.
Nor should anyone mistake the roots of the vociferous opposition to today's wiretapping from civil libertarians and privacy advocates. Many of these groups and their allies have been battling to restrict the government's use of new, potentially invasive technologies for a generation. The Bush White House is only their latest adversary, albeit the most formidable. These activists and their allies in the business world have been motivated by different but mutually supportive goals: to extend constitutional safeguards to the digital realm, and to keep the government from suffocating technological development with burdensome surveillance laws. Some in those ranks would have liked, and indeed tried, to make the digital network a wiretap-free zone.
But despite the occasionally extreme positions and deeply held convictions of all of these players, the most important laws governing wiretapping, electronic surveillance, and privacy have been the product of negotiation, of people gathering in a room, sitting at a table, and talking -- sometimes screaming -- until they reached a settlement. The current debate, however, is missing that crucial spirit. Whereas before, adversaries trusted each other enough at a basic level to make deals, however temporary, today's opposing sides seem unwilling to compromise to pass new surveillance laws that the nation can live with. It's not entirely clear where or why minds turned so stubborn. But to understand today's political calcification, it helps to recall a simpler time.
The Art Of Compromise
Jerry Berman was a veteran of the privacy wars, seemingly born for the role of liberal, dogmatic activist. In the early 1950s, his father, a labor leader, was investigated by the House Un-American Activities Committee. A native of Hawaii, the younger Berman moved with his family to California, where he enrolled at the University of California (Berkeley). After earning his bachelor's and master's, and, in 1967, his law degree, Berman began lobbying for the American Civil Liberties Union. He became an authority on the intersection of national security and technology, schooled by the exposure of illegal FBI spying operations aimed at political organizations, war protesters, and leftist activists. In 1978, Berman helped to craft the Foreign Intelligence Surveillance Act, which set new restrictions on the government's domestic intelligence-gathering. He was present at the creation of several important pieces of surveillance legislation, and he helped secure individual privacy protections.
In playing his role, Berman didn't adhere to a hard-and-fast position but instead embraced his own brand of "principled pragmatism." By his logic, the interests of privacy and national security were not incompatible. If all sides -- government, industry, civil-liberties activists -- could find ways to "maximize the good and minimize the harm," as he liked to say, they could strike a satisfactory balance and create workable laws. This idea guided his work on FISA and other legislation, sometimes to the consternation of more-ideological activists who employed him to lobby Congress on their behalf.
Perhaps that was because principled pragmatism recognized an unsavory reality: In Washington, those who show up to play the game make the rules. Negotiation requires sacrifice. Sacrifice requires flexibility. Some people would rather break than bend. But compromise is how things get done, and Berman accepted it. As a colleague summarized Berman's general approach to lawmaking, "You can stand on your principle and get your ass handed to you, or you can engage in the process and get a better deal."
In the summer of 1994, the FBI and the Justice Department made a bold play to force the telecom carriers to help them conduct legal wiretaps. They put forth a proposal that would require the companies to build their networks so that law enforcement agents serving a warrant could access them in real time. The legality of wiretapping was not in question. The government wanted legal assurance that it could tap, at any time, and that the industry had an obligation under law to comply with the government's proper authority.
No more computer-related hassles, no more standing in line to plug into mobile-phone ports. Law enforcement agents, federal spymasters, and prosecutors wanted a comprehensive remedy to what they called the "digital telephony" problem. Their chief advocates were Kallstrom and Louis Freeh, the recently appointed FBI director, a former special agent and federal prosecutor who had used wiretaps to secure convictions in some of the most complicated organized-crime investigations in history. Freeh personally pushed for the new law, showing up unannounced in reluctant lawmakers' offices to press them for support and even sitting in on committee markups -- an unprecedented move for an FBI director -- to stare members down.
Clipper Chip
The 1994 proposal was only the latest in a series of government efforts to strengthen its control of the telecommunications network. In the late 1980s, Justice officials had gotten as far as placing language in an anti-crime bill that would have allowed the attorney general to set standards for telecommunications equipment, effectively making that federal official the network's architect-in-chief. (The bill did not pass.)
In 1993, Bill Clinton, in one of his first presidential directives, announced that engineers at the National Security Agency, the intelligence community's electronic surveillance arm, had developed a cutting-edge microcircuit, called the "Clipper" chip, to scramble telephone conversations. The administration intended to promote the installation of the Clipper technology in U.S. telephones, and planned to hold "in escrow" the digital keys to decrypt any conversation. In other words, the federal government would build the lock and keep the key, an idea that inspired a reaction somewhere between outrage and apoplexy among technologists and privacy advocates, who ultimately killed the idea.
In that atmosphere of hostility and skepticism, Berman went to work. Beginning in August 1994, he convened a series of meetings with senior law enforcement officials under the auspices of a privacy and security coalition he had formed with more than four dozen activist groups and technology companies -- including the biggest telecom provider of all, AT&T -- plus the U.S. Telephone Association, IBM, and software makers such as Microsoft. The goal was to resolve differences over the government's proposal to ensure federal access to telecommunications networks. Berman also brought in two powerful Democratic lawmakers and noted civil libertarians, Sen. Patrick Leahy of Vermont and then-Rep. Don Edwards, whose district included California's Silicon Valley. Everyone in the negotiating room had some familiarity with technology issues, and professional experience in law enforcement or Justice Department oversight.
The meetings featured intense, nitty-gritty debates over the technical aspects of the law. The FBI wanted guarantees that the telecom system would never mature beyond the reach of its wiretaps. Some companies saw this as heavy-handed regulation, and a number of telecom officials shared the activists' belief that the government was in fact after a permanent covert backdoor into the phone system. The negotiations helped to somewhat dampen the suspicions, however, and the talks went forward because no one in the room disagreed with the fundamental premise that the government had the right to wiretap.
But outside of the meetings, divisions festered among the interest groups. Berman represented the Electronic Frontier Foundation, which champions the public interest in the digital realm, but its board couldn't decide whether compromise was prudent or perilous. Berman felt he had to persuade his colleagues, in another series of heated meetings, to work in the middle. To him, that meant that the legislative negotiations would follow an inviolate principle: We will only craft solutions to known problems. No writing of laws aimed at encompassing future problems. If the FBI has difficultly accessing the public telephone network, then the law will address only that public telephone network.
In addition to identifying a philosophical guideline, this approach served a more strategic goal -- to keep the FBI's hands off the Internet, which was so new in 1994 as to be practically notional. Internet service providers such as America Online and Prodigy had only a handful of subscribers, and the first Web browser had been released that year, in a beta test version. Still, Berman and others knew that the FBI would never willingly agree to stay off the information superhighway, because Internet-based information held tremendous potential value for law enforcement.
During one meeting, David Johnson, a lawyer who had helped to craft the Electronic Communications Privacy Act in 1986, held up a glass jar full of rocks and asked, "How many of you would say this jar is full?" Most people agreed that it was. Johnson took a fistful of pebbles and dropped them into the jar. They tinkled down through the rocks, finding resting places in the empty spaces. Then he poured sand into the jar. As it cascaded into the empty spaces, Johnson told the onlookers that the sand was like the unseen, seemingly insignificant "transactional data" that traveled on the Internet. Transactional data includes the routing information for a text-based message -- where it comes from, where it goes, and what path it follows -- and the series of digits that make up an Internet address. This information would someday be of enormous value to the government, he said, just as phone call records, as opposed to actual conversations, already were. The transactional data were small but meaningful -- like the tiny grains of sand that kept filling the volume of the jar.
CALEA
Johnson's vivid illustration convinced many of the participants that the new law mustn't extend too far. Again, the issue wasn't whether law enforcement had a right to information but how much power the government should have over the means to get it. Leahy and Edwards, who formally introduced the legislation shortly thereafter, declared that it would apply solely to the public telephone network. The law specifically exempted "information services," which the parties agreed included Internet companies and electronic-messaging technologies.
The Communications Assistance for Law Enforcement Act passed in the closing days of the 103rd Congress, two weeks before Republicans won control of both chambers in November 1994. CALEA (pronounced kuhLEEuh) would let the industry set its own standards to meet the Justice Department's needs. The department could list its surveillance requirements, but the act let companies decide how to build their equipment. Justice won the right to petition the Federal Communications Commission if its officials felt that the companies weren't fulfilling their obligations. But civil-liberties groups also secured the right to challenge the government's requirements in court.
It was a true compromise, hard won but workable. For Berman, principled pragmatism had carried the day. For others, however, the compromise had given away too much.
The board of the Electronic Frontier Foundation had seen the proverbial legislative sausage being made and found it distasteful. Even though the directors had agreed to every aspect of the law, which Berman explained to them, within weeks after its passage he left the EFF and formed his own outfit, the Center for Democracy and Technology, to continue his brand of lobbying. The EFF pulled up stakes in Washington the following year and moved to San Francisco, where it continues to play a leading role in supporting lawsuits against telecommunications companies -- most notably AT&T, its former ally -- for their role in assisting the government with warrantless wiretapping after the 9/11 attacks.
At the time, Berman confided to Kallstrom, whom he thought had always acted in good faith for the FBI, "My work on CALEA got me fired."
Kallstrom was apparently happy to see his more idealistic opponents leave town. "You didn't get fired, Jerry," he replied. "You got promoted."
Making Demands
Had the FBI and the Justice Department stopped there, had the government settled for secure access to phone networks, the history of Internet privacy and civil liberties might have turned out differently. But just weeks after President Clinton signed CALEA in January 1995, conflict erupted between the government and the phone carriers over the kind of network access the law provided. The raft of compromise that had carried the deal sprung a leak.
FBI officials knew in 1994 that they were making a mistake by leaving cyberspace out of CALEA. They understood the Internet's potential as a communications device and an intelligence tool -- that is, after all, why CALEA's authors exempted "information services."
"Did we know that it was idiotic to carve that out?" Kallstrom asks now. "Yes, we did." Criminals have always been among the first to embrace new technology. It was foolish to think that they wouldn't turn to the Internet for any number of nefarious gambits. But, Kallstrom says, government officials opted "to fight another day" over Internet access. Privacy advocates were dragging their feet in the negotiations. Delay would invite more debate, probably more hearings, and possibly a less favorable outcome. The political decision was made: "Let's take what we can get here."
In early 1995, the Justice Department issued its list of requirements for wiretapping, known as the punch list. Not surprisingly, many telecom executives and their attorneys viewed the demands as unreasonable. Al Gidari, a lawyer representing the wireless industry, was among the first to see the FBI's requirements, during the initial meeting to develop standards for CALEA, which was held that spring in Vancouver, British Columbia. The Justice Department's wish list, he said, amounted to "the Cadillac of wiretaps."
"Everything they could ever think of to gold plate and put on the Cadillac was in that document," Gidari recalls. Meeting its expectations represented "an exponential increase in complexity, not a linear increase.... They were very dictatorial ... technical requirements -- the very thing that Congress said it wasn't up to [the FBI] to figure out."
The standards meeting was tense and awkward, and the sides were unevenly matched. Gidari recalls a dozen or more FBI agents, in neat blue suits, all buttoned down and looking ready to roll over anyone who stood in their way. Arrayed on the opposite side of the table was a group of laid-back and casually dressed network engineers from all the major telecom equipment manufacturers and carriers that was tasked with the unenviable job of telling the bureau that the industry planned to build a much less complex system. It wasn't what the FBI agents wanted to hear.
Over the next few years, the Justice Department continued to seek increasingly sophisticated surveillance capabilities, including real-time geographical tracking of mobile phones; the ability to monitor all parties in a conference call regardless of whether they are on hold or participating; and "dialed digit extraction," a record of any numbers that a subject under surveillance punched in during a call, such as a credit card or bank account number. The government got a lot of what it wanted, but not all.
To be sure, criminals' use of new technologies helped drive the law enforcement demands. But telecom carriers worried that the cost of compliance was too high and that the FBI's technical requirements were illegally broad. CALEA, they argued, had forbidden the government from requiring specific system designs or technologies.
The FCC's Turn
Justice, frustrated by its inability to get all the demands on the punch list, finally asked the FCC to step in. In 1997, the Cellular Telecommunications Industry Association, which then represented mobile carriers, and the Center for Democracy and Technology complained to the commission that the negotiations had deadlocked because of "unreasonable demands by law enforcement for more surveillance features than either CALEA or the wiretap laws allow." The FCC, however, sided with the Justice Department on a host of requirements that privacy groups found overly broad. The tussle dragged on for two more years and ended up in the U.S. Court of Appeals for the District of Columbia Circuit, which overruled the FCC. After the commission took up matters again, it granted some of the FBI's requests, and the CALEA standards were amended.
When Justice Department officials reported to Congress on CALEA implementation in January 1998, no manufacturer of telecom equipment said that the FBI's demands were impossible to meet, but they did say that complying would be difficult and very expensive. (Although Congress had set aside $500 million to reimburse companies for retrofitting their networks, the law required the carriers to bear the cost of compliance on any equipment put in place after CALEA was enacted. Several experts believe that the final cost for compliance on telephone networks has been two to eight times the amount originally allotted.)
The level of government surveillance was so low at that time that some questioned why the FBI wanted such multifaceted access at all. In 1994, federal and state authorities were running 1,154 wiretaps nationwide, mostly for drug investigations, at an average cost of $50,000. The government was asking carriers to "design a nuclear rocket ship" for a rarely used tool, Gidari thought. "In [the FBI's] view, there was no limit to the expense the carrier should spare in order to save a life."
CALEA continued to evolve, shaped by the ongoing arguments over the terms of its birth. Activists and carriers thought that the FBI was reneging on its bargain, asking for more than the law allowed. The FBI believed that carriers were stalling when they failed to meet compliance deadlines. As all sides dug in, the meetings on implementation turned bitter. FBI and Justice officials slammed their hands on tables and screamed at carrier representatives, Gidari recalls. "You're unpatriotic! What do you want to do, help the criminals?"
The government asked those same questions after September 11, 2001. And this time, telecommunications carriers responded. Outside the normal FISA warrant process, which covers intelligence-gathering, carriers opened access to their networks, their customer call data, and their valuable transactional information -- the kind that CALEA had intended to exclude. President Bush and his administration believed that the extraordinary nature of the terrorist attacks demanded emergency actions that FISA couldn't accommodate, and the carriers answered the call from law enforcement and intelligence agencies. But government officials also seized on the post-9/11 mentality to change other surveillance laws and procedures, which they believed -- just as their predecessors did in 1994 -- were out of step with technology and reality. About three years after 9/11, officials set their sights on rewriting CALEA.
Claiming The Internet
In August 2004, in response to a petition by the Justice Department, the FBI, and the Drug Enforcement Administration, the FCC expanded CALEA to cover Internet communications, including voice calls and instant messages. The Electronic Frontier Foundation sued, along with industry, civil-liberties, and academic groups. In 2005, the Court of Appeals ruled 2-1 to defer to the FCC's reading of the law.
Many of those who had helped craft CALEA believed that the commission had misread the law and acted on a post-9/11 impulse to give the government more, not less, access to information. But to the FCC, new Internet technologies that operate a lot like telephones blurred the distinction between "information services" and the kinds of technology that CALEA was meant to cover.
After 9/11, law enforcement and intelligence agencies took a variety of measures, apart from wiretaps, to collect and mine potentially valuable information from the Internet. With the cooperation of telecom companies, government accumulated lots of transactional data -- including e-mail header information and lists of websites visited by targeted individuals -- to support counter-terrorism operations. Viewed solely as a reaction to the terrorist attacks of 2001, this kind of collection might seem extraordinary. But through the longer lens of history, the government's steady march into cyberspace is not surprising.
Law enforcement agencies have never suffered for lack of access to the phone network. Kallstrom recalls only a few instances in which agents were unable to execute a wiretap order because of new technology. But as digital, mobile technology has proliferated, the copper lug nuts that Kallstrom remembers from the 1980s have disappeared. Today, state and federal agents spend most of their tap time on mobile devices. In 1994, most wiretaps, by far, targeted private residences. There were few taps on mobile devices. Ten years later, 88 percent of the 1,710 wiretaps were on mobile devices. Only 5 percent were on residential lines. Without CALEA, some experts believe that Kallstrom's initial fears would have come true and the federal government would have been shut out of the wiretapping business.
Jerry Berman never wanted that to happen. Although he cannot accept that the law that was meant to minimize the government's influence over the Internet is now being used to facilitate it, he is willing to negotiate on CALEA again, if that is what's necessary to satisfy all parties.
That willingness to talk extends to FISA, as well, and Berman's Center for Democracy and Technology has been actively involved in the current agitations over the law. But whenever he and his cohorts have extended the hand of compromise to Congress or the administration, he says, they have been disappointed. Any attempt to revamp FISA, or to clarify CALEA, "is impossible in the current climate," Berman says. "There is no sense that you could get the kind of negotiation we got in 1994."
FISA And CALEA
One has to wonder how strong that spirit of compromise really was in 1994, and whether it was already ebbing. If the FBI was willing to take what it could get on CALEA and go on to fight another day, did the government really "settle" at all? Literally weeks after CALEA was signed the Justice Department and the FBI came roaring back with new demands. What killed the penchant for negotiation? Was it the moderates' loss of power in both political parties after the 1994 Republican revolution? Was it the entrenchment of civil-liberties activists? Was it the Bush White House's extravagant interpretation of executive power? Was it 9/11?
Berman spends a lot of time pondering these questions and thinking about next moves. He divides his time between Washington, where he chairs his group's board of directors, and a home he built on the Cacapon River near Berkeley Springs, W.Va. "We just have people in bunkers now," Berman says ruefully.
The FISA debate is currently hung up on whether companies that assisted warrantless surveillance after 9/11 should have retroactive legal immunity for any laws they may have broken. CALEA has something to say about that, too. The law requires that carriers be able to deliver call identification information to the government remotely. According to Beryl Howell, Sen. Leahy's lead CALEA staffer, that provision was meant to keep government agents from sitting in the phone companies' offices to execute their wiretaps.
It is a basic tenet of wiretapping law, whether for intelligence or law enforcement, that the communications companies act as a buffer between their customers and the government, she says, and that telecom carriers must make their own determination whether official requests are, in fact, legal. That the companies would now assert, in defense of their cooperation, that the government determined that post-9/11 requests were legal, strikes Howell as outrageous.
If ever there was a time for the bare-knuckled negotiations of the past, it's now. It's not at all clear, though, who could play the role of Jerry Berman, the one to bring people into the room to scream and yell at each other and emerge feeling better for it -- and possibly even coming to a compromise. As things stand, Congress appears more likely to punt the FISA debate to the new administration, and has shown little interest in revisiting CALEA.
The constant tension that once kept this system in balance has reached a breaking point. There is no push and pull. Maybe the stakes are too high for compromise. But until that spirit returns, Berman says, "there will be no peace."
Published in National Journal
Friday, April 04, 2008
In the old days, everyone was linked to a lug nut, and Jim Kallstrom liked it that way.
It was 1985, a simpler time for a cop like Kallstrom, who was in charge of setting telephone wiretaps on suspected drug dealers and mobsters for the FBI's New York City field office. In New York, Kallstrom's cases were often won on the basis of incriminating evidence surreptitiously snatched from the mouths of criminal defendants through their phone lines. With a mere 203,000 Americans using mobile phones, people were still tied to the ground, and that gave Kallstrom's world a certain comforting order.
On any given day, he could stand on a street corner in Manhattan, gaze up at an apartment building with its neat rows and columns of units stacked atop each other, and know that inside each one there was a telephone, tethered by thin copper wire to a single point, sometimes several miles away. In his mind's eye, Kallstrom could have imagined shrinking himself to the size of an electron and traveling over the phone line, down to the bottom of the building, then shooting beneath the streets, until he ended up in the basement of the telephone company's switching station. There, the wire emerged, pegged to a rack by a single copper lug nut. Acres of racks lined the walls, each holding rows and columns of lug nuts and their wires, neatly stacked atop each other -- the city of New York in analog miniature.
With a warrant in hand, Kallstrom could tell the technicians at the phone office, with whom he had become friendly over the years, "Go up on RR326." The tech would walk to the rack, find the wire, and clamp on a listening device. Instantly, Kallstrom became an invisible interloper.
FBI agents and federal prosecutors depended on these legal wiretaps to penetrate drug cartels, incriminate money launderers, and spy on mob families. And they needed to be absolutely certain that the line they were on belonged to the suspected dealer, or launderer, or capo named in the court-approved warrant. Not the guy in the apartment next door. Not someone down the block. This guy. This phone. RR326. Lest the agents violate a judge's order, and perhaps land themselves in jail, this had to be the very same line that snaked back through the subterranean maze of Manhattan, through all those blocks of concrete caverns, back to that certain apartment building, up through the walls and out of the jack and into the phone that was in the hand and next to the mouth of Kallstrom's target. It was, by design and necessity, a neat, specific system.
And then it all went sideways.
Kallstrom's friends in the phone company put him on notice in 1985: Over the next few years, those racks and stacks of wires and lug nuts would be swept into the technological dustbin. The telephone network was going digital. Technicians would no longer stand at a rack; they would sit at a keyboard. In some parts of the country that had already made the change, phone calls were traveling as a stream of 1's and 0's. Thousands of lines commingled in a single computer. When New York went digital, the phone techs told Kallstrom, they would no longer be able to tap him directly into RR326. In fact, they couldn't even tell him for sure where RR326 resided in this new engineering matrix.
At the same time that the phone companies were preparing for the transition to digital, the use of cellphones -- which were inherently harder to tap because they used phone lines differently than analog devices -- mushroomed. From 1985 to '86, the number of registered mobile-phone subscribers in the United States doubled to 500,000. Within two years after that, the number climbed to 1.6 million. By the end of the decade, the cellphone universe had skyrocketed past 4 million.
Organized crime was an early adopter of the mobile phone. In a communications technique presaging that of Islamic terrorists today, members of the Colombian Cali drug cartel operating in New York would briefly use a phone, toss it, and get a new one. To tap a mobile device, technicians had to install listening equipment on the new version of a lug nut -- an "electronic port." But in most switching stations in New York, there were only half a dozen or so ports available at any one time. Federal prosecutors and agents had to stand in line at phone company offices and fight with each other over whose investigation should take priority. Some prosecutors threatened to haul company employees into court on contempt charges so they could explain to a judge why the phone company was unwilling to execute a wiretap order.
Electronic surveillance, once such a dependable, relatively easy craft, was becoming inordinately difficult, Kallstrom thought. The phone companies, whose annual revenues from mobile subscriptions were cresting over $2 billion in the late 1980s, showed little willingness to make the FBI's life easier. As the 1990s approached, with the promise of more digitization and more mobility, Kallstrom called his bosses in Washington: "If we don't do something, we'll be out of the wiretapping business."
A Battle Begins
Kallstrom may have been the first to alert the FBI and the Justice Department to this new reality. The digital revolution generated a constant tension that exists to this day, a push and pull between the federal government in one camp and technology corporations and civil-liberties activists in the other to control the development of the global communications system, and so the balance of power in the Information Age.
This struggle's latest manifestation is the intensely politicized effort to rewrite the Foreign Intelligence Surveillance Act. At issue is nothing less than the government's authority to broadly monitor communications networks to spot terrorists and other national security threats. The Bush administration finds itself across the battle lines from many of the same groups that more than a decade ago argued that the government was already extending its reach too far into personal conversations in the name of pursuing criminals.
While FISA governs wiretapping for intelligence-gathering purposes, as distinct from law enforcement, surveillance in both worlds follows the same essential philosophy -- the best evidence in a court of law or in an intelligence operation is one's own words. Today's dispute is not very different from the one that occurred during the dawn of digitization in the 1990s. Indeed, both are part and parcel of the same long-running debate.
No one should believe that real-time government surveillance of the communications network is an idea born of the 9/11 attacks or that it results solely from the Bush administration's aggrandizing of executive power. The legal arguments that the government has asserted to support increased surveillance of digital space were first put forth in 1994, under a Democratic president, and they had little to do with the threat of Islamic extremism.
Nor should anyone mistake the roots of the vociferous opposition to today's wiretapping from civil libertarians and privacy advocates. Many of these groups and their allies have been battling to restrict the government's use of new, potentially invasive technologies for a generation. The Bush White House is only their latest adversary, albeit the most formidable. These activists and their allies in the business world have been motivated by different but mutually supportive goals: to extend constitutional safeguards to the digital realm, and to keep the government from suffocating technological development with burdensome surveillance laws. Some in those ranks would have liked, and indeed tried, to make the digital network a wiretap-free zone.
But despite the occasionally extreme positions and deeply held convictions of all of these players, the most important laws governing wiretapping, electronic surveillance, and privacy have been the product of negotiation, of people gathering in a room, sitting at a table, and talking -- sometimes screaming -- until they reached a settlement. The current debate, however, is missing that crucial spirit. Whereas before, adversaries trusted each other enough at a basic level to make deals, however temporary, today's opposing sides seem unwilling to compromise to pass new surveillance laws that the nation can live with. It's not entirely clear where or why minds turned so stubborn. But to understand today's political calcification, it helps to recall a simpler time.
The Art Of Compromise
Jerry Berman was a veteran of the privacy wars, seemingly born for the role of liberal, dogmatic activist. In the early 1950s, his father, a labor leader, was investigated by the House Un-American Activities Committee. A native of Hawaii, the younger Berman moved with his family to California, where he enrolled at the University of California (Berkeley). After earning his bachelor's and master's, and, in 1967, his law degree, Berman began lobbying for the American Civil Liberties Union. He became an authority on the intersection of national security and technology, schooled by the exposure of illegal FBI spying operations aimed at political organizations, war protesters, and leftist activists. In 1978, Berman helped to craft the Foreign Intelligence Surveillance Act, which set new restrictions on the government's domestic intelligence-gathering. He was present at the creation of several important pieces of surveillance legislation, and he helped secure individual privacy protections.
In playing his role, Berman didn't adhere to a hard-and-fast position but instead embraced his own brand of "principled pragmatism." By his logic, the interests of privacy and national security were not incompatible. If all sides -- government, industry, civil-liberties activists -- could find ways to "maximize the good and minimize the harm," as he liked to say, they could strike a satisfactory balance and create workable laws. This idea guided his work on FISA and other legislation, sometimes to the consternation of more-ideological activists who employed him to lobby Congress on their behalf.
Perhaps that was because principled pragmatism recognized an unsavory reality: In Washington, those who show up to play the game make the rules. Negotiation requires sacrifice. Sacrifice requires flexibility. Some people would rather break than bend. But compromise is how things get done, and Berman accepted it. As a colleague summarized Berman's general approach to lawmaking, "You can stand on your principle and get your ass handed to you, or you can engage in the process and get a better deal."
In the summer of 1994, the FBI and the Justice Department made a bold play to force the telecom carriers to help them conduct legal wiretaps. They put forth a proposal that would require the companies to build their networks so that law enforcement agents serving a warrant could access them in real time. The legality of wiretapping was not in question. The government wanted legal assurance that it could tap, at any time, and that the industry had an obligation under law to comply with the government's proper authority.
No more computer-related hassles, no more standing in line to plug into mobile-phone ports. Law enforcement agents, federal spymasters, and prosecutors wanted a comprehensive remedy to what they called the "digital telephony" problem. Their chief advocates were Kallstrom and Louis Freeh, the recently appointed FBI director, a former special agent and federal prosecutor who had used wiretaps to secure convictions in some of the most complicated organized-crime investigations in history. Freeh personally pushed for the new law, showing up unannounced in reluctant lawmakers' offices to press them for support and even sitting in on committee markups -- an unprecedented move for an FBI director -- to stare members down.
Clipper Chip
The 1994 proposal was only the latest in a series of government efforts to strengthen its control of the telecommunications network. In the late 1980s, Justice officials had gotten as far as placing language in an anti-crime bill that would have allowed the attorney general to set standards for telecommunications equipment, effectively making that federal official the network's architect-in-chief. (The bill did not pass.)
In 1993, Bill Clinton, in one of his first presidential directives, announced that engineers at the National Security Agency, the intelligence community's electronic surveillance arm, had developed a cutting-edge microcircuit, called the "Clipper" chip, to scramble telephone conversations. The administration intended to promote the installation of the Clipper technology in U.S. telephones, and planned to hold "in escrow" the digital keys to decrypt any conversation. In other words, the federal government would build the lock and keep the key, an idea that inspired a reaction somewhere between outrage and apoplexy among technologists and privacy advocates, who ultimately killed the idea.
In that atmosphere of hostility and skepticism, Berman went to work. Beginning in August 1994, he convened a series of meetings with senior law enforcement officials under the auspices of a privacy and security coalition he had formed with more than four dozen activist groups and technology companies -- including the biggest telecom provider of all, AT&T -- plus the U.S. Telephone Association, IBM, and software makers such as Microsoft. The goal was to resolve differences over the government's proposal to ensure federal access to telecommunications networks. Berman also brought in two powerful Democratic lawmakers and noted civil libertarians, Sen. Patrick Leahy of Vermont and then-Rep. Don Edwards, whose district included California's Silicon Valley. Everyone in the negotiating room had some familiarity with technology issues, and professional experience in law enforcement or Justice Department oversight.
The meetings featured intense, nitty-gritty debates over the technical aspects of the law. The FBI wanted guarantees that the telecom system would never mature beyond the reach of its wiretaps. Some companies saw this as heavy-handed regulation, and a number of telecom officials shared the activists' belief that the government was in fact after a permanent covert backdoor into the phone system. The negotiations helped to somewhat dampen the suspicions, however, and the talks went forward because no one in the room disagreed with the fundamental premise that the government had the right to wiretap.
But outside of the meetings, divisions festered among the interest groups. Berman represented the Electronic Frontier Foundation, which champions the public interest in the digital realm, but its board couldn't decide whether compromise was prudent or perilous. Berman felt he had to persuade his colleagues, in another series of heated meetings, to work in the middle. To him, that meant that the legislative negotiations would follow an inviolate principle: We will only craft solutions to known problems. No writing of laws aimed at encompassing future problems. If the FBI has difficultly accessing the public telephone network, then the law will address only that public telephone network.
In addition to identifying a philosophical guideline, this approach served a more strategic goal -- to keep the FBI's hands off the Internet, which was so new in 1994 as to be practically notional. Internet service providers such as America Online and Prodigy had only a handful of subscribers, and the first Web browser had been released that year, in a beta test version. Still, Berman and others knew that the FBI would never willingly agree to stay off the information superhighway, because Internet-based information held tremendous potential value for law enforcement.
During one meeting, David Johnson, a lawyer who had helped to craft the Electronic Communications Privacy Act in 1986, held up a glass jar full of rocks and asked, "How many of you would say this jar is full?" Most people agreed that it was. Johnson took a fistful of pebbles and dropped them into the jar. They tinkled down through the rocks, finding resting places in the empty spaces. Then he poured sand into the jar. As it cascaded into the empty spaces, Johnson told the onlookers that the sand was like the unseen, seemingly insignificant "transactional data" that traveled on the Internet. Transactional data includes the routing information for a text-based message -- where it comes from, where it goes, and what path it follows -- and the series of digits that make up an Internet address. This information would someday be of enormous value to the government, he said, just as phone call records, as opposed to actual conversations, already were. The transactional data were small but meaningful -- like the tiny grains of sand that kept filling the volume of the jar.
CALEA
Johnson's vivid illustration convinced many of the participants that the new law mustn't extend too far. Again, the issue wasn't whether law enforcement had a right to information but how much power the government should have over the means to get it. Leahy and Edwards, who formally introduced the legislation shortly thereafter, declared that it would apply solely to the public telephone network. The law specifically exempted "information services," which the parties agreed included Internet companies and electronic-messaging technologies.
The Communications Assistance for Law Enforcement Act passed in the closing days of the 103rd Congress, two weeks before Republicans won control of both chambers in November 1994. CALEA (pronounced kuhLEEuh) would let the industry set its own standards to meet the Justice Department's needs. The department could list its surveillance requirements, but the act let companies decide how to build their equipment. Justice won the right to petition the Federal Communications Commission if its officials felt that the companies weren't fulfilling their obligations. But civil-liberties groups also secured the right to challenge the government's requirements in court.
It was a true compromise, hard won but workable. For Berman, principled pragmatism had carried the day. For others, however, the compromise had given away too much.
The board of the Electronic Frontier Foundation had seen the proverbial legislative sausage being made and found it distasteful. Even though the directors had agreed to every aspect of the law, which Berman explained to them, within weeks after its passage he left the EFF and formed his own outfit, the Center for Democracy and Technology, to continue his brand of lobbying. The EFF pulled up stakes in Washington the following year and moved to San Francisco, where it continues to play a leading role in supporting lawsuits against telecommunications companies -- most notably AT&T, its former ally -- for their role in assisting the government with warrantless wiretapping after the 9/11 attacks.
At the time, Berman confided to Kallstrom, whom he thought had always acted in good faith for the FBI, "My work on CALEA got me fired."
Kallstrom was apparently happy to see his more idealistic opponents leave town. "You didn't get fired, Jerry," he replied. "You got promoted."
Making Demands
Had the FBI and the Justice Department stopped there, had the government settled for secure access to phone networks, the history of Internet privacy and civil liberties might have turned out differently. But just weeks after President Clinton signed CALEA in January 1995, conflict erupted between the government and the phone carriers over the kind of network access the law provided. The raft of compromise that had carried the deal sprung a leak.
FBI officials knew in 1994 that they were making a mistake by leaving cyberspace out of CALEA. They understood the Internet's potential as a communications device and an intelligence tool -- that is, after all, why CALEA's authors exempted "information services."
"Did we know that it was idiotic to carve that out?" Kallstrom asks now. "Yes, we did." Criminals have always been among the first to embrace new technology. It was foolish to think that they wouldn't turn to the Internet for any number of nefarious gambits. But, Kallstrom says, government officials opted "to fight another day" over Internet access. Privacy advocates were dragging their feet in the negotiations. Delay would invite more debate, probably more hearings, and possibly a less favorable outcome. The political decision was made: "Let's take what we can get here."
In early 1995, the Justice Department issued its list of requirements for wiretapping, known as the punch list. Not surprisingly, many telecom executives and their attorneys viewed the demands as unreasonable. Al Gidari, a lawyer representing the wireless industry, was among the first to see the FBI's requirements, during the initial meeting to develop standards for CALEA, which was held that spring in Vancouver, British Columbia. The Justice Department's wish list, he said, amounted to "the Cadillac of wiretaps."
"Everything they could ever think of to gold plate and put on the Cadillac was in that document," Gidari recalls. Meeting its expectations represented "an exponential increase in complexity, not a linear increase.... They were very dictatorial ... technical requirements -- the very thing that Congress said it wasn't up to [the FBI] to figure out."
The standards meeting was tense and awkward, and the sides were unevenly matched. Gidari recalls a dozen or more FBI agents, in neat blue suits, all buttoned down and looking ready to roll over anyone who stood in their way. Arrayed on the opposite side of the table was a group of laid-back and casually dressed network engineers from all the major telecom equipment manufacturers and carriers that was tasked with the unenviable job of telling the bureau that the industry planned to build a much less complex system. It wasn't what the FBI agents wanted to hear.
Over the next few years, the Justice Department continued to seek increasingly sophisticated surveillance capabilities, including real-time geographical tracking of mobile phones; the ability to monitor all parties in a conference call regardless of whether they are on hold or participating; and "dialed digit extraction," a record of any numbers that a subject under surveillance punched in during a call, such as a credit card or bank account number. The government got a lot of what it wanted, but not all.
To be sure, criminals' use of new technologies helped drive the law enforcement demands. But telecom carriers worried that the cost of compliance was too high and that the FBI's technical requirements were illegally broad. CALEA, they argued, had forbidden the government from requiring specific system designs or technologies.
The FCC's Turn
Justice, frustrated by its inability to get all the demands on the punch list, finally asked the FCC to step in. In 1997, the Cellular Telecommunications Industry Association, which then represented mobile carriers, and the Center for Democracy and Technology complained to the commission that the negotiations had deadlocked because of "unreasonable demands by law enforcement for more surveillance features than either CALEA or the wiretap laws allow." The FCC, however, sided with the Justice Department on a host of requirements that privacy groups found overly broad. The tussle dragged on for two more years and ended up in the U.S. Court of Appeals for the District of Columbia Circuit, which overruled the FCC. After the commission took up matters again, it granted some of the FBI's requests, and the CALEA standards were amended.
When Justice Department officials reported to Congress on CALEA implementation in January 1998, no manufacturer of telecom equipment said that the FBI's demands were impossible to meet, but they did say that complying would be difficult and very expensive. (Although Congress had set aside $500 million to reimburse companies for retrofitting their networks, the law required the carriers to bear the cost of compliance on any equipment put in place after CALEA was enacted. Several experts believe that the final cost for compliance on telephone networks has been two to eight times the amount originally allotted.)
The level of government surveillance was so low at that time that some questioned why the FBI wanted such multifaceted access at all. In 1994, federal and state authorities were running 1,154 wiretaps nationwide, mostly for drug investigations, at an average cost of $50,000. The government was asking carriers to "design a nuclear rocket ship" for a rarely used tool, Gidari thought. "In [the FBI's] view, there was no limit to the expense the carrier should spare in order to save a life."
CALEA continued to evolve, shaped by the ongoing arguments over the terms of its birth. Activists and carriers thought that the FBI was reneging on its bargain, asking for more than the law allowed. The FBI believed that carriers were stalling when they failed to meet compliance deadlines. As all sides dug in, the meetings on implementation turned bitter. FBI and Justice officials slammed their hands on tables and screamed at carrier representatives, Gidari recalls. "You're unpatriotic! What do you want to do, help the criminals?"
The government asked those same questions after September 11, 2001. And this time, telecommunications carriers responded. Outside the normal FISA warrant process, which covers intelligence-gathering, carriers opened access to their networks, their customer call data, and their valuable transactional information -- the kind that CALEA had intended to exclude. President Bush and his administration believed that the extraordinary nature of the terrorist attacks demanded emergency actions that FISA couldn't accommodate, and the carriers answered the call from law enforcement and intelligence agencies. But government officials also seized on the post-9/11 mentality to change other surveillance laws and procedures, which they believed -- just as their predecessors did in 1994 -- were out of step with technology and reality. About three years after 9/11, officials set their sights on rewriting CALEA.
Claiming The Internet
In August 2004, in response to a petition by the Justice Department, the FBI, and the Drug Enforcement Administration, the FCC expanded CALEA to cover Internet communications, including voice calls and instant messages. The Electronic Frontier Foundation sued, along with industry, civil-liberties, and academic groups. In 2005, the Court of Appeals ruled 2-1 to defer to the FCC's reading of the law.
Many of those who had helped craft CALEA believed that the commission had misread the law and acted on a post-9/11 impulse to give the government more, not less, access to information. But to the FCC, new Internet technologies that operate a lot like telephones blurred the distinction between "information services" and the kinds of technology that CALEA was meant to cover.
After 9/11, law enforcement and intelligence agencies took a variety of measures, apart from wiretaps, to collect and mine potentially valuable information from the Internet. With the cooperation of telecom companies, government accumulated lots of transactional data -- including e-mail header information and lists of websites visited by targeted individuals -- to support counter-terrorism operations. Viewed solely as a reaction to the terrorist attacks of 2001, this kind of collection might seem extraordinary. But through the longer lens of history, the government's steady march into cyberspace is not surprising.
Law enforcement agencies have never suffered for lack of access to the phone network. Kallstrom recalls only a few instances in which agents were unable to execute a wiretap order because of new technology. But as digital, mobile technology has proliferated, the copper lug nuts that Kallstrom remembers from the 1980s have disappeared. Today, state and federal agents spend most of their tap time on mobile devices. In 1994, most wiretaps, by far, targeted private residences. There were few taps on mobile devices. Ten years later, 88 percent of the 1,710 wiretaps were on mobile devices. Only 5 percent were on residential lines. Without CALEA, some experts believe that Kallstrom's initial fears would have come true and the federal government would have been shut out of the wiretapping business.
Jerry Berman never wanted that to happen. Although he cannot accept that the law that was meant to minimize the government's influence over the Internet is now being used to facilitate it, he is willing to negotiate on CALEA again, if that is what's necessary to satisfy all parties.
That willingness to talk extends to FISA, as well, and Berman's Center for Democracy and Technology has been actively involved in the current agitations over the law. But whenever he and his cohorts have extended the hand of compromise to Congress or the administration, he says, they have been disappointed. Any attempt to revamp FISA, or to clarify CALEA, "is impossible in the current climate," Berman says. "There is no sense that you could get the kind of negotiation we got in 1994."
FISA And CALEA
One has to wonder how strong that spirit of compromise really was in 1994, and whether it was already ebbing. If the FBI was willing to take what it could get on CALEA and go on to fight another day, did the government really "settle" at all? Literally weeks after CALEA was signed the Justice Department and the FBI came roaring back with new demands. What killed the penchant for negotiation? Was it the moderates' loss of power in both political parties after the 1994 Republican revolution? Was it the entrenchment of civil-liberties activists? Was it the Bush White House's extravagant interpretation of executive power? Was it 9/11?
Berman spends a lot of time pondering these questions and thinking about next moves. He divides his time between Washington, where he chairs his group's board of directors, and a home he built on the Cacapon River near Berkeley Springs, W.Va. "We just have people in bunkers now," Berman says ruefully.
The FISA debate is currently hung up on whether companies that assisted warrantless surveillance after 9/11 should have retroactive legal immunity for any laws they may have broken. CALEA has something to say about that, too. The law requires that carriers be able to deliver call identification information to the government remotely. According to Beryl Howell, Sen. Leahy's lead CALEA staffer, that provision was meant to keep government agents from sitting in the phone companies' offices to execute their wiretaps.
It is a basic tenet of wiretapping law, whether for intelligence or law enforcement, that the communications companies act as a buffer between their customers and the government, she says, and that telecom carriers must make their own determination whether official requests are, in fact, legal. That the companies would now assert, in defense of their cooperation, that the government determined that post-9/11 requests were legal, strikes Howell as outrageous.
If ever there was a time for the bare-knuckled negotiations of the past, it's now. It's not at all clear, though, who could play the role of Jerry Berman, the one to bring people into the room to scream and yell at each other and emerge feeling better for it -- and possibly even coming to a compromise. As things stand, Congress appears more likely to punt the FISA debate to the new administration, and has shown little interest in revisiting CALEA.
The constant tension that once kept this system in balance has reached a breaking point. There is no push and pull. Maybe the stakes are too high for compromise. But until that spirit returns, Berman says, "there will be no peace."
Published in National Journal
Labels: Foreign Intelligence Surveillance Act, Intelligence, Law, Politics, Technology, Terrorism
Full Article
NSA Sought Data Before 9/11
Friday, November 02, 2007
Beginning in February 2001, almost seven months before the 9/11 terrorist attacks, the government's top electronic eavesdropping organization, the National Security Agency, asked a major U.S. telecommunications carrier for information about its customers and the flow of electronic traffic across its network, according to sources familiar with the request. The carrier, Qwest Communications, refused, believing that the request was illegal unless accompanied by a court order.
After terrorists attacked the United States on September 11, the NSA again asked Qwest, as well as other telecom companies, for similar information to help the agency track suspects with the aim of preventing future attacks, current and former officials have said. The companies responded in various ways, with Qwest being the most reluctant to cooperate. However, in February 2001, the NSA's primary purpose in seeking access to Qwest's network apparently was not to search for terrorists but to watch for computer hackers and foreign-government forces trying to penetrate and compromise U.S. government information systems, particularly within the Defense Department, sources said. Government officials have long feared a "digital Pearl Harbor" if intruders were to seize control of these systems or other key U.S. infrastructures through the Internet.
A former White House official, who at the time was involved in network defense and other intelligence programs, said that the early 2001 NSA proposal to Qwest was, "Can you build a private version of Echelon and tell us what you see?" Echelon refers to a signals intelligence network operated by the NSA and its official counterparts in Australia, Canada, New Zealand, and the United Kingdom.
The NSA realized that it was blind to many of the new online threats and to who was using the privately owned telecom networks, and it thought that Qwest was in a position to help. The agency needed better intelligence in the face of a burgeoning Internet, and Qwest was then building a high-speed network for phone and Internet traffic that had caught the attention of senior intelligence officials. The NSA, in effect, wanted Qwest to be the agency's online eyes and ears.
Another source said that the NSA wanted to analyze the calls, e-mails, and other transmissions crossing Qwest's lines, to detect patterns of suspicious activity. Telecom carriers routinely monitor their networks for fraudulent activity, the former White House official noted, and so the companies "have an enormous amount of intelligence-gathering" capability. They don't have to target individual customers to "look for wacky behavior," or "groups communicating with each other in strange patterns." That information could augment intelligence that the NSA and other agencies were gathering from other sources, the former official said.
Qwest's then-chief executive officer, Joseph Nacchio, rejected the NSA's request. "He didn't want to go along with that," and his refusal was not greeted warmly in the intelligence community, the former White House official said. Another source, a former high-ranking intelligence official, said that other companies, both before and after 9/11, had less of a problem complying with government requests if they were accompanied by a legal order. The ex-official added that some companies were willing to offer data and to assist the government "as necessary" on a voluntary basis, without a court order.
Nacchio has said publicly that the NSA asked Qwest for customer records after the 2001 terrorist attacks. But the nature of the agency's request before 9/11 has not been disclosed previously. Sources familiar with the activities spoke to National Journal on the condition of anonymity, because the work is still classified.
By early 2001, the NSA was aware of the growing threat of terrorism and was monitoring communications among Al Qaeda members overseas. But the agency, the Defense Department, and the White House also feared Internet-based attacks on U.S. government installations, and they believed that other countries were increasingly interested in cyberspace as a battlefield.
At the same time, the NSA was hesitant to conduct any surveillance activities that might violate long-standing prohibitions on domestic intelligence-gathering without court orders. One way to get the information that the agency and others deemed necessary for network defense was from the telecom carriers.
Nacchio, it appears, believed that the NSA's pre-9/11 request for access to Qwest's network was illegal. The former White House official said that the intelligence-gathering was not targeted at Qwest's U.S. customers, but he acknowledged that handing over customer information without a lawful order could violate the Electronic Communications Privacy Act, a 1986 law that extended wiretapping restrictions on phone calls to include electronic information transmitted by and stored in a computer.
After 9/11, that law was amended by the USA PATRIOT Act, and it became easier for the government to obtain certain private communications. When reports surfaced last year that telecom carriers were participating in a post-9/11 NSA program to analyze customer calling patterns for terrorism indicators, Nacchio's attorney stated publicly that Qwest had refused "to make private telephone records of Qwest customers available to the NSA immediately following [enactment of] the Patriot Act." Nacchio had concluded that the NSA's requests violated the privacy requirements of another law, the Telecommunications Act, his attorney said.
The question of Qwest's involvement with the NSA before 9/11 has surfaced in recent weeks because of Nacchio's appeal of his criminal conviction on 19 counts of insider trading. Nacchio was sentenced to six years in prison in July, but he remains free pending his appeal. He contends that the NSA retaliated against Qwest for not complying with its request by denying the company work under a multibillion-dollar program called Groundbreaker, which outsourced the NSA's unclassified information-technology systems. Federal prosecutors deny that allegation, noting that Qwest was a member of the team that ultimately won the Groundbreaker deal in August 2001.
Nacchio wasn't allowed to use his retaliation argument at his trial. But details of Qwest's interactions with the NSA, as well as years of work that the company performed for the Defense Department and the intelligence community, are contained in legal documents filed by his defense team and made public three weeks ago. Although the documents are partially redacted, they reveal that Qwest aggressively pursued business with the NSA while trying to put off officials' entreaties for more access to the company's network, requests that persisted for years.
The documents state that Nacchio and another senior Qwest executive met with NSA officials at their headquarters at Fort Meade, Md., on February 27, 2001. At this meeting, the agency proposed Qwest's participation in certain activities whose details are redacted from the court documents.
"Nacchio said it was a legal issue, and they should not do something their general counsel told them not to do," according to federal investigators who interviewed the former head of Qwest's government business unit, James F.X. Payne. "Nacchio projected that he might do it if they could find a way to do it legally."
Payne told investigators that the NSA requests came up "in meetings after meetings." Investigators quoted Payne as saying, "There was a feeling also that the NSA acted as agents for other government agencies." Payne could not be reached for comment.
Although the NSA's specific request for an Echelon-like program may have worried Qwest's attorneys, it appears that the company was sharing other kinds of proprietary information about its network with the Pentagon in the months before 9/11.
In May 2001, then-Commerce Secretary Donald Evans told the Senate Appropriations Committee that his department had helped to persuade Qwest to "share proprietary information with the Defense Department to evaluate the vulnerability of its network." (The Commerce Department includes an agency that is responsible for telecom policy.) Qwest, Evans noted, was the largest carrier in the Rocky Mountain corridor. That area is home to some of the military's most important command-and-control facilities, including the U.S. Strategic Command, which oversees nuclear weapons.
By the time the NSA asked for Qwest's assistance in February 2001, the company had become a darling of the Internet Age. Founded in 1988 by Philip Anschutz, who owned the Southern Pacific Railroad, Qwest built the first all-digital, fiber-optic network by laying lines alongside railroad tracks, then linking to terminals in key locations to provide high-speed Internet and data connections.
The Defense Department operates its own classified networks, which are more resistant to attack, but Qwest's network was faster, more expansive, and more technologically advanced. Nacchio's legal documents show that from the late 1990s and into the new century, Qwest was chasing at least two lucrative deals to build private, secure networks for defense and intelligence agencies.
Qwest's first high-level contact with the NSA may have occurred as early as 1997. Late that year, according to Nacchio's legal briefs, Qwest was informed that a military "general officer wanted to meet with Mr. Nacchio." Two weeks later, a three-star (lieutenant) general and his aide showed up at Nacchio's Denver office and told him that they had "heard about Qwest's new network." Nacchio described the operation and "talked about his background at AT&T, with which they were already familiar," the documents state. Nacchio had spent more than a quarter-century with AT&T before taking over at Qwest in 1997.
At some point, the general -- whose name and affiliation are omitted from the documents -- asked to speak privately with Dean Wandry, who led Qwest's government business unit at the time. "The general told Mr. Wandry that he ran the largest telecom operation in the world, he had looked at Qwest's network, and he wanted to use it for government purposes," the documents state. By law, the head of the NSA must be at least a three-star general or a vice admiral. In 1997, Lt. Gen. Kenneth Minihan was the director. He was replaced in 1999 by Lt. Gen. Michael Hayden, who is now a four-star general and the director of the CIA. Hayden declined to be interviewed for this story. An assistant to Minihan, who is now a managing director with Paladin Capital Group, a private equity firm in Washington, said he was unavailable for comment.
A number of former intelligence officials said that the description of a three-star general running the "largest telecom operation in the world" seemed to fit the NSA. In 1997, the Defense Information Systems Agency, which manages a large telecom enterprise, was also run by a lieutenant general. But that agency's operations are smaller than the NSA's. Also, Qwest's first contact with DISA occurred after the 1997 meeting with the unnamed military officer, according to Nacchio's legal filings. Qwest has done unclassified work for DISA, and it received a large contract from the agency as recently as last year.
After the Denver meeting, Wandry told Nacchio "that there was a big opportunity here for Qwest," the court filings state. Nacchio received a security clearance "a short time later." Qwest then received a contract from the agency, which Nacchio wanted to announce publicly. He was "refused permission," the briefs state, but he "understood at the time this was the beginning of a relationship which had enormous potential for future work. This proved increasingly true as time went on."
Qwest certainly worked for the NSA beginning at least in 1999. A search of Internet number registration files shows that the company allocated a portion of its network that year to the Maryland Procurement Office at Fort Meade, which is the NSA's contracting unit. An e-mail from employees in Qwest's government business group, sent in December 1999, requested a meeting with senior executives "to discuss the potential opportunity with the Maryland customer." (DISA, it should be noted, is headquartered in Virginia.) By 2001, the company was pursuing the NSA's Groundbreaker contract. And in March of that year, Payne, who by then was running the company's federal business, wrote in an e-mail to colleagues that Qwest was already a "provider" of telecom services to the NSA through existing contracts.
Meanwhile, concern was rising at the NSA that the proliferating global Internet might become a weapon for U.S. adversaries. As early as June 1998, then-NSA Director Minihan testified before the Senate Governmental Affairs Committee about "a wide array of malicious actors -- including hackers, terrorists, and nation-states," all of whom threatened "users of networked information systems."
Minihan singled out Russia and China; the latter, he said, had already incorporated cyber-warfare into its military training. He also pointed to the emergence of "transnational security challenges," including terrorism, drug trafficking, and international organized crime. "These opportunists, enabled by the explosion of technology and the availability of inexpensive, secure means of communication, pose a significant threat to the interests of the United States and its allies," Minihan said.
A former senior NSA official said that the agency also worried that because these groups understood privacy laws so well, they knew how to avoid detection and could predict what the NSA would, and wouldn't, do to track them. "There was such a nuanced understanding of how to tie us in knots and use American law against us, that there were certainly pockets of people saying, 'We've got to be assertive; we've got to be more aggressive on this,' " the former official said.
Hayden, who ran the NSA from 1999 to 2005, was well known for his willingness to push operations to the legal edge. "We're pretty aggressive within the law," Hayden said in public remarks after 9/11. "As a professional, I'm troubled if I'm not using the full authority allowed by law."
Hayden has repeated that refrain since the attacks. But former intelligence officials doubted that he would have authorized any request to Qwest, or other companies, that he believed violated the law. They noted, however, that many in the agency had long thought that monitoring "metadata," such as a phone number, the length of a call, or a series of calls placed from a particular phone, didn't implicate privacy because such information didn't constitute the "content" of a message -- its written or spoken words.
Published in National Journal
Friday, November 02, 2007
Beginning in February 2001, almost seven months before the 9/11 terrorist attacks, the government's top electronic eavesdropping organization, the National Security Agency, asked a major U.S. telecommunications carrier for information about its customers and the flow of electronic traffic across its network, according to sources familiar with the request. The carrier, Qwest Communications, refused, believing that the request was illegal unless accompanied by a court order.
After terrorists attacked the United States on September 11, the NSA again asked Qwest, as well as other telecom companies, for similar information to help the agency track suspects with the aim of preventing future attacks, current and former officials have said. The companies responded in various ways, with Qwest being the most reluctant to cooperate. However, in February 2001, the NSA's primary purpose in seeking access to Qwest's network apparently was not to search for terrorists but to watch for computer hackers and foreign-government forces trying to penetrate and compromise U.S. government information systems, particularly within the Defense Department, sources said. Government officials have long feared a "digital Pearl Harbor" if intruders were to seize control of these systems or other key U.S. infrastructures through the Internet.
A former White House official, who at the time was involved in network defense and other intelligence programs, said that the early 2001 NSA proposal to Qwest was, "Can you build a private version of Echelon and tell us what you see?" Echelon refers to a signals intelligence network operated by the NSA and its official counterparts in Australia, Canada, New Zealand, and the United Kingdom.
The NSA realized that it was blind to many of the new online threats and to who was using the privately owned telecom networks, and it thought that Qwest was in a position to help. The agency needed better intelligence in the face of a burgeoning Internet, and Qwest was then building a high-speed network for phone and Internet traffic that had caught the attention of senior intelligence officials. The NSA, in effect, wanted Qwest to be the agency's online eyes and ears.
Another source said that the NSA wanted to analyze the calls, e-mails, and other transmissions crossing Qwest's lines, to detect patterns of suspicious activity. Telecom carriers routinely monitor their networks for fraudulent activity, the former White House official noted, and so the companies "have an enormous amount of intelligence-gathering" capability. They don't have to target individual customers to "look for wacky behavior," or "groups communicating with each other in strange patterns." That information could augment intelligence that the NSA and other agencies were gathering from other sources, the former official said.
Qwest's then-chief executive officer, Joseph Nacchio, rejected the NSA's request. "He didn't want to go along with that," and his refusal was not greeted warmly in the intelligence community, the former White House official said. Another source, a former high-ranking intelligence official, said that other companies, both before and after 9/11, had less of a problem complying with government requests if they were accompanied by a legal order. The ex-official added that some companies were willing to offer data and to assist the government "as necessary" on a voluntary basis, without a court order.
Nacchio has said publicly that the NSA asked Qwest for customer records after the 2001 terrorist attacks. But the nature of the agency's request before 9/11 has not been disclosed previously. Sources familiar with the activities spoke to National Journal on the condition of anonymity, because the work is still classified.
By early 2001, the NSA was aware of the growing threat of terrorism and was monitoring communications among Al Qaeda members overseas. But the agency, the Defense Department, and the White House also feared Internet-based attacks on U.S. government installations, and they believed that other countries were increasingly interested in cyberspace as a battlefield.
At the same time, the NSA was hesitant to conduct any surveillance activities that might violate long-standing prohibitions on domestic intelligence-gathering without court orders. One way to get the information that the agency and others deemed necessary for network defense was from the telecom carriers.
Nacchio, it appears, believed that the NSA's pre-9/11 request for access to Qwest's network was illegal. The former White House official said that the intelligence-gathering was not targeted at Qwest's U.S. customers, but he acknowledged that handing over customer information without a lawful order could violate the Electronic Communications Privacy Act, a 1986 law that extended wiretapping restrictions on phone calls to include electronic information transmitted by and stored in a computer.
After 9/11, that law was amended by the USA PATRIOT Act, and it became easier for the government to obtain certain private communications. When reports surfaced last year that telecom carriers were participating in a post-9/11 NSA program to analyze customer calling patterns for terrorism indicators, Nacchio's attorney stated publicly that Qwest had refused "to make private telephone records of Qwest customers available to the NSA immediately following [enactment of] the Patriot Act." Nacchio had concluded that the NSA's requests violated the privacy requirements of another law, the Telecommunications Act, his attorney said.
The question of Qwest's involvement with the NSA before 9/11 has surfaced in recent weeks because of Nacchio's appeal of his criminal conviction on 19 counts of insider trading. Nacchio was sentenced to six years in prison in July, but he remains free pending his appeal. He contends that the NSA retaliated against Qwest for not complying with its request by denying the company work under a multibillion-dollar program called Groundbreaker, which outsourced the NSA's unclassified information-technology systems. Federal prosecutors deny that allegation, noting that Qwest was a member of the team that ultimately won the Groundbreaker deal in August 2001.
Nacchio wasn't allowed to use his retaliation argument at his trial. But details of Qwest's interactions with the NSA, as well as years of work that the company performed for the Defense Department and the intelligence community, are contained in legal documents filed by his defense team and made public three weeks ago. Although the documents are partially redacted, they reveal that Qwest aggressively pursued business with the NSA while trying to put off officials' entreaties for more access to the company's network, requests that persisted for years.
The documents state that Nacchio and another senior Qwest executive met with NSA officials at their headquarters at Fort Meade, Md., on February 27, 2001. At this meeting, the agency proposed Qwest's participation in certain activities whose details are redacted from the court documents.
"Nacchio said it was a legal issue, and they should not do something their general counsel told them not to do," according to federal investigators who interviewed the former head of Qwest's government business unit, James F.X. Payne. "Nacchio projected that he might do it if they could find a way to do it legally."
Payne told investigators that the NSA requests came up "in meetings after meetings." Investigators quoted Payne as saying, "There was a feeling also that the NSA acted as agents for other government agencies." Payne could not be reached for comment.
Although the NSA's specific request for an Echelon-like program may have worried Qwest's attorneys, it appears that the company was sharing other kinds of proprietary information about its network with the Pentagon in the months before 9/11.
In May 2001, then-Commerce Secretary Donald Evans told the Senate Appropriations Committee that his department had helped to persuade Qwest to "share proprietary information with the Defense Department to evaluate the vulnerability of its network." (The Commerce Department includes an agency that is responsible for telecom policy.) Qwest, Evans noted, was the largest carrier in the Rocky Mountain corridor. That area is home to some of the military's most important command-and-control facilities, including the U.S. Strategic Command, which oversees nuclear weapons.
By the time the NSA asked for Qwest's assistance in February 2001, the company had become a darling of the Internet Age. Founded in 1988 by Philip Anschutz, who owned the Southern Pacific Railroad, Qwest built the first all-digital, fiber-optic network by laying lines alongside railroad tracks, then linking to terminals in key locations to provide high-speed Internet and data connections.
The Defense Department operates its own classified networks, which are more resistant to attack, but Qwest's network was faster, more expansive, and more technologically advanced. Nacchio's legal documents show that from the late 1990s and into the new century, Qwest was chasing at least two lucrative deals to build private, secure networks for defense and intelligence agencies.
Qwest's first high-level contact with the NSA may have occurred as early as 1997. Late that year, according to Nacchio's legal briefs, Qwest was informed that a military "general officer wanted to meet with Mr. Nacchio." Two weeks later, a three-star (lieutenant) general and his aide showed up at Nacchio's Denver office and told him that they had "heard about Qwest's new network." Nacchio described the operation and "talked about his background at AT&T, with which they were already familiar," the documents state. Nacchio had spent more than a quarter-century with AT&T before taking over at Qwest in 1997.
At some point, the general -- whose name and affiliation are omitted from the documents -- asked to speak privately with Dean Wandry, who led Qwest's government business unit at the time. "The general told Mr. Wandry that he ran the largest telecom operation in the world, he had looked at Qwest's network, and he wanted to use it for government purposes," the documents state. By law, the head of the NSA must be at least a three-star general or a vice admiral. In 1997, Lt. Gen. Kenneth Minihan was the director. He was replaced in 1999 by Lt. Gen. Michael Hayden, who is now a four-star general and the director of the CIA. Hayden declined to be interviewed for this story. An assistant to Minihan, who is now a managing director with Paladin Capital Group, a private equity firm in Washington, said he was unavailable for comment.
A number of former intelligence officials said that the description of a three-star general running the "largest telecom operation in the world" seemed to fit the NSA. In 1997, the Defense Information Systems Agency, which manages a large telecom enterprise, was also run by a lieutenant general. But that agency's operations are smaller than the NSA's. Also, Qwest's first contact with DISA occurred after the 1997 meeting with the unnamed military officer, according to Nacchio's legal filings. Qwest has done unclassified work for DISA, and it received a large contract from the agency as recently as last year.
After the Denver meeting, Wandry told Nacchio "that there was a big opportunity here for Qwest," the court filings state. Nacchio received a security clearance "a short time later." Qwest then received a contract from the agency, which Nacchio wanted to announce publicly. He was "refused permission," the briefs state, but he "understood at the time this was the beginning of a relationship which had enormous potential for future work. This proved increasingly true as time went on."
Qwest certainly worked for the NSA beginning at least in 1999. A search of Internet number registration files shows that the company allocated a portion of its network that year to the Maryland Procurement Office at Fort Meade, which is the NSA's contracting unit. An e-mail from employees in Qwest's government business group, sent in December 1999, requested a meeting with senior executives "to discuss the potential opportunity with the Maryland customer." (DISA, it should be noted, is headquartered in Virginia.) By 2001, the company was pursuing the NSA's Groundbreaker contract. And in March of that year, Payne, who by then was running the company's federal business, wrote in an e-mail to colleagues that Qwest was already a "provider" of telecom services to the NSA through existing contracts.
Meanwhile, concern was rising at the NSA that the proliferating global Internet might become a weapon for U.S. adversaries. As early as June 1998, then-NSA Director Minihan testified before the Senate Governmental Affairs Committee about "a wide array of malicious actors -- including hackers, terrorists, and nation-states," all of whom threatened "users of networked information systems."
Minihan singled out Russia and China; the latter, he said, had already incorporated cyber-warfare into its military training. He also pointed to the emergence of "transnational security challenges," including terrorism, drug trafficking, and international organized crime. "These opportunists, enabled by the explosion of technology and the availability of inexpensive, secure means of communication, pose a significant threat to the interests of the United States and its allies," Minihan said.
A former senior NSA official said that the agency also worried that because these groups understood privacy laws so well, they knew how to avoid detection and could predict what the NSA would, and wouldn't, do to track them. "There was such a nuanced understanding of how to tie us in knots and use American law against us, that there were certainly pockets of people saying, 'We've got to be assertive; we've got to be more aggressive on this,' " the former official said.
Hayden, who ran the NSA from 1999 to 2005, was well known for his willingness to push operations to the legal edge. "We're pretty aggressive within the law," Hayden said in public remarks after 9/11. "As a professional, I'm troubled if I'm not using the full authority allowed by law."
Hayden has repeated that refrain since the attacks. But former intelligence officials doubted that he would have authorized any request to Qwest, or other companies, that he believed violated the law. They noted, however, that many in the agency had long thought that monitoring "metadata," such as a phone number, the length of a call, or a series of calls placed from a particular phone, didn't implicate privacy because such information didn't constitute the "content" of a message -- its written or spoken words.
Published in National Journal
Labels: Cyber War, Law, National Security Agency, Technology, Terrorism
Full Article
A Court at the Crossroads
Friday, October 19, 2007
As Democrats and Republicans debate legislation that would alter 30-year-old limits on intrusive electronic and physical searches by the government, the secretive 11-member court that oversees surveillance of foreign-intelligence targets in the United States finds itself in the middle of a very public power struggle.
Regardless of where law and policy makers fall on the question, now being debated, about which governmental branch should hold the most sway over intelligence operations, and which political party has the more effective and fair solution, they all agree on this much: The Foreign Intelligence Surveillance Court should play referee, and the government should receive some kind of authorization for a still-secret set of spying activities that many agree are essential to the war on terrorism. If that oversight results in warrants that violate the Constitution, as some scholars fear would occur if pending legislation is enacted, most Republicans and Democrats don't appear concerned about such a prospect or even cognizant of it. Such is the court's brave new world.
It is an odd, but perhaps not unwelcome, reality that the intelligence judges now play a decisive role in this controversy. Odd because for most of American history, the judiciary has ruled itself least qualified among the branches of government to manage intelligence activities. But not unwelcome because this court has waded into these waters before, and it believes it has been an indispensable buffer against government excess.
The 1978 Foreign Intelligence Surveillance Act, the court's animating law, was a grand political compromise. After years of unchecked surveillance by the FBI and intelligence agencies of prominent Americans and political dissidents both before and during the Nixon presidency, the FISA court became the arbiter of when and how the executive branch can spy on suspected foreign agents and terrorists inside the country. Especially after the 9/11 attacks, the judges have included more experts in national security law, court-watchers say, and the court's former chief judge has proudly proclaimed that the court turns down almost no surveillance requests because the government has learned to play within FISA's boundaries.
This system, however, was upended after the 9/11 attacks, when President Bush issued orders that allowed him to bypass the court when tracking domestic terrorism suspects. The orders seemed to reflect a long-held, simmering animosity toward the body by some senior administration officials, particularly Vice President Cheney's legal counsel, David Addington, who reportedly told a colleague after 9/11 that "we're one bomb away from getting rid of that obnoxious court."
Now, though, the court is regaining some of the authority it had lost. And if the president signs a new Democratic proposal to further amend FISA, the court would play a central and untested role in overseeing surveillance. It may welcome the chance.
Former Chief FISA Court Judge Royce Lamberth has described a panel of jurists confident in its interpretation of surveillance law, equipped to issue warrants quickly, and flexible enough to write new procedures during wartime. In remarks at the annual conference of the American Library Association in June, Lamberth, who left his post in 2002, said he hadn't found a better way of controlling government surveillance. But, the former judge added, there was a "worse way," and that was "what the president did with the National Security Agency": Bush's post-9/11 orders allowed the government's eavesdroppers to intercept communications inside the United States without the court's approval.
The NSA program, begun just after 9/11 and dubbed "the terrorist surveillance program" by Bush, continued without judicial check for more than five years, until January 2007, when the administration placed it under FISA court review. The exact contours of the court's initial orders about the program, which were to last for 90 days, are secret.
For that first 90-day period, the NSA program proceeded unimpeded, intelligence officials say. But, according to Mike McConnell, the director of national intelligence, in spring 2007 a different FISA judge said that the government needed a warrant to capture electronic communications between parties in foreign countries as those communications pass through routing equipment in the United States. "We found ourselves in a position of actually losing ground," McConnell told the El Paso Times in August. The government would have to apply for a warrant for each phone number it monitored in this way, and it takes about "200 man-hours" to fill out the necessary paperwork, McConnell said. FISA experts and lawmakers note, however, that the law contains emergency provisions that allow monitoring to begin before a court order.
The ruling on the U.S.-routed calls was a rare push-back from a court that, by Lamberth's count, has approved 99 percent of the government's warrant applications. The Bush administration then launched a massive lobbying effort to amend FISA; in August, Congress passed the Protect America Act. It effectively reversed the court's normal procedures (these require a warrant before surveillance) and gave judges an after-the-fact-review power for surveillance procedures, which inevitably pick up domestic communications when foreign targets call or e-mail people located in this country. The law was panned for its hasty and imprecise language, and some observers thought it even authorized warrantless physical searches of people's possessions and premises.
This brings the court to its current crossroads. To correct the law's deficiencies, as they see them, Democratic Reps. Silvestre Reyes of Texas and John Conyers of Michigan, the respective chairmen of the House Intelligence and Judiciary committees, have introduced the RESTORE Act, short for Responsible Surveillance That is Overseen, Reviewed, and Effective. The Democrats have said that the bill would "protect innocent Americans from warrantless eavesdropping." Republicans have blasted it as a roadblock in the executive's path, and the bill was suddenly pulled from the House floor on October 17. But as Benjamin Wittes, a Brookings Institution scholar and an expert on the FISA court, writes in The New Republic Online this week, Protect America and RESTORE are actually quite similar. They do, however, hold significant implications for the court.
"Under either approach, the [NSA] will have the legal authority to listen to your calls without first going to the [FISA] court to get a warrant," as long as the targets are people overseas calling people in the United States, Wittes writes. Under the Protect America Act, which the administration favors, the FISA court plays "only a tiny retroactive role in approving procedures for overseas surveillance." But under RESTORE, the court "would play a slightly-less-tiny role in rubber-stamping [surveillance] programs," Wittes maintains. The court, under RESTORE, is given additional powers to review and modify "minimization procedures," which are secret, are written by the government, and are supposed to ensure that information about "U.S. persons" (defined as U.S. citizens or legal residents) is scrubbed from intelligence reports.
Under the RESTORE Act, the court would also have a new, controversial power: granting programmatic or "blanket" warrants for whole classes of individuals overseas who are not U.S. persons. Historically, courts have ruled that such orders violate the Fourth Amendment, which requires that warrants be issued against specific individuals and locations. And although the foreign targets of surveillance don't enjoy constitutional protections, the U.S. persons whom they might call do.
Wittes argues that the RESTORE Act's "approach is a little like asking the courts to approve the reasonableness of police arrest policies prospectively instead of reviewing individual arrests. It's not the way we traditionally do things in the American constitutional system -- and it creates a potentially serious set of constitutional problems with the bill." But the law would require the administration to submit to the court "the procedures it uses to determine which surveillance is exempt from FISA -- and the court has the ability to send them back if they're unreasonable," he adds.
Under the previous version of FISA, the judges found ways to discipline the government. They could reject an application for a warrant; in one case, Lamberth barred a senior FBI official from appearing before the court, because he said that the official had presented false information. The RESTORE Act wouldn't really take these powers away.
Still, some see the recent amendments to FISA as a further weakening of constitutional protections. "There are significant problems that existed with FISA before the Protect America Act," says Jameel Jaffer, the director of the American Civil Liberties Union's National Security Project, who is leading a legal effort to have the court release its written opinions on the NSA's surveillance program.
The court "was created to circumvent the Fourth Amendment," says Jonathan Turley, a professor at the George Washington University Law School and one of the few lawyers ever to go inside the court's secure room. With the Protect America and RESTORE acts, Turley says, "Democrats and Republicans are amending the Constitution by default."
For their part, the FISA court judges are unlikely to weigh in directly on the constitutional debate. But using history as a guide, it seems unlikely that they'll do anything more or less than apply the statute as directed by Congress. Presumably, they'll also steer clear of deciding how valid the statute actually is.
Friday, October 19, 2007
As Democrats and Republicans debate legislation that would alter 30-year-old limits on intrusive electronic and physical searches by the government, the secretive 11-member court that oversees surveillance of foreign-intelligence targets in the United States finds itself in the middle of a very public power struggle.
Regardless of where law and policy makers fall on the question, now being debated, about which governmental branch should hold the most sway over intelligence operations, and which political party has the more effective and fair solution, they all agree on this much: The Foreign Intelligence Surveillance Court should play referee, and the government should receive some kind of authorization for a still-secret set of spying activities that many agree are essential to the war on terrorism. If that oversight results in warrants that violate the Constitution, as some scholars fear would occur if pending legislation is enacted, most Republicans and Democrats don't appear concerned about such a prospect or even cognizant of it. Such is the court's brave new world.
It is an odd, but perhaps not unwelcome, reality that the intelligence judges now play a decisive role in this controversy. Odd because for most of American history, the judiciary has ruled itself least qualified among the branches of government to manage intelligence activities. But not unwelcome because this court has waded into these waters before, and it believes it has been an indispensable buffer against government excess.
The 1978 Foreign Intelligence Surveillance Act, the court's animating law, was a grand political compromise. After years of unchecked surveillance by the FBI and intelligence agencies of prominent Americans and political dissidents both before and during the Nixon presidency, the FISA court became the arbiter of when and how the executive branch can spy on suspected foreign agents and terrorists inside the country. Especially after the 9/11 attacks, the judges have included more experts in national security law, court-watchers say, and the court's former chief judge has proudly proclaimed that the court turns down almost no surveillance requests because the government has learned to play within FISA's boundaries.
This system, however, was upended after the 9/11 attacks, when President Bush issued orders that allowed him to bypass the court when tracking domestic terrorism suspects. The orders seemed to reflect a long-held, simmering animosity toward the body by some senior administration officials, particularly Vice President Cheney's legal counsel, David Addington, who reportedly told a colleague after 9/11 that "we're one bomb away from getting rid of that obnoxious court."
Now, though, the court is regaining some of the authority it had lost. And if the president signs a new Democratic proposal to further amend FISA, the court would play a central and untested role in overseeing surveillance. It may welcome the chance.
Former Chief FISA Court Judge Royce Lamberth has described a panel of jurists confident in its interpretation of surveillance law, equipped to issue warrants quickly, and flexible enough to write new procedures during wartime. In remarks at the annual conference of the American Library Association in June, Lamberth, who left his post in 2002, said he hadn't found a better way of controlling government surveillance. But, the former judge added, there was a "worse way," and that was "what the president did with the National Security Agency": Bush's post-9/11 orders allowed the government's eavesdroppers to intercept communications inside the United States without the court's approval.
The NSA program, begun just after 9/11 and dubbed "the terrorist surveillance program" by Bush, continued without judicial check for more than five years, until January 2007, when the administration placed it under FISA court review. The exact contours of the court's initial orders about the program, which were to last for 90 days, are secret.
For that first 90-day period, the NSA program proceeded unimpeded, intelligence officials say. But, according to Mike McConnell, the director of national intelligence, in spring 2007 a different FISA judge said that the government needed a warrant to capture electronic communications between parties in foreign countries as those communications pass through routing equipment in the United States. "We found ourselves in a position of actually losing ground," McConnell told the El Paso Times in August. The government would have to apply for a warrant for each phone number it monitored in this way, and it takes about "200 man-hours" to fill out the necessary paperwork, McConnell said. FISA experts and lawmakers note, however, that the law contains emergency provisions that allow monitoring to begin before a court order.
The ruling on the U.S.-routed calls was a rare push-back from a court that, by Lamberth's count, has approved 99 percent of the government's warrant applications. The Bush administration then launched a massive lobbying effort to amend FISA; in August, Congress passed the Protect America Act. It effectively reversed the court's normal procedures (these require a warrant before surveillance) and gave judges an after-the-fact-review power for surveillance procedures, which inevitably pick up domestic communications when foreign targets call or e-mail people located in this country. The law was panned for its hasty and imprecise language, and some observers thought it even authorized warrantless physical searches of people's possessions and premises.
This brings the court to its current crossroads. To correct the law's deficiencies, as they see them, Democratic Reps. Silvestre Reyes of Texas and John Conyers of Michigan, the respective chairmen of the House Intelligence and Judiciary committees, have introduced the RESTORE Act, short for Responsible Surveillance That is Overseen, Reviewed, and Effective. The Democrats have said that the bill would "protect innocent Americans from warrantless eavesdropping." Republicans have blasted it as a roadblock in the executive's path, and the bill was suddenly pulled from the House floor on October 17. But as Benjamin Wittes, a Brookings Institution scholar and an expert on the FISA court, writes in The New Republic Online this week, Protect America and RESTORE are actually quite similar. They do, however, hold significant implications for the court.
"Under either approach, the [NSA] will have the legal authority to listen to your calls without first going to the [FISA] court to get a warrant," as long as the targets are people overseas calling people in the United States, Wittes writes. Under the Protect America Act, which the administration favors, the FISA court plays "only a tiny retroactive role in approving procedures for overseas surveillance." But under RESTORE, the court "would play a slightly-less-tiny role in rubber-stamping [surveillance] programs," Wittes maintains. The court, under RESTORE, is given additional powers to review and modify "minimization procedures," which are secret, are written by the government, and are supposed to ensure that information about "U.S. persons" (defined as U.S. citizens or legal residents) is scrubbed from intelligence reports.
Under the RESTORE Act, the court would also have a new, controversial power: granting programmatic or "blanket" warrants for whole classes of individuals overseas who are not U.S. persons. Historically, courts have ruled that such orders violate the Fourth Amendment, which requires that warrants be issued against specific individuals and locations. And although the foreign targets of surveillance don't enjoy constitutional protections, the U.S. persons whom they might call do.
Wittes argues that the RESTORE Act's "approach is a little like asking the courts to approve the reasonableness of police arrest policies prospectively instead of reviewing individual arrests. It's not the way we traditionally do things in the American constitutional system -- and it creates a potentially serious set of constitutional problems with the bill." But the law would require the administration to submit to the court "the procedures it uses to determine which surveillance is exempt from FISA -- and the court has the ability to send them back if they're unreasonable," he adds.
Under the previous version of FISA, the judges found ways to discipline the government. They could reject an application for a warrant; in one case, Lamberth barred a senior FBI official from appearing before the court, because he said that the official had presented false information. The RESTORE Act wouldn't really take these powers away.
Still, some see the recent amendments to FISA as a further weakening of constitutional protections. "There are significant problems that existed with FISA before the Protect America Act," says Jameel Jaffer, the director of the American Civil Liberties Union's National Security Project, who is leading a legal effort to have the court release its written opinions on the NSA's surveillance program.
The court "was created to circumvent the Fourth Amendment," says Jonathan Turley, a professor at the George Washington University Law School and one of the few lawyers ever to go inside the court's secure room. With the Protect America and RESTORE acts, Turley says, "Democrats and Republicans are amending the Constitution by default."
For their part, the FISA court judges are unlikely to weigh in directly on the constitutional debate. But using history as a guide, it seems unlikely that they'll do anything more or less than apply the statute as directed by Congress. Presumably, they'll also steer clear of deciding how valid the statute actually is.
Labels: Director of National Intelligence, Foreign Intelligence Surveillance Act, Intelligence, National Security Agency, Politics, Terrorism
Full Article
The Liberator
Friday, September 21, 2007
Mike Wertheimer may be the most dangerous man in U.S. intelligence. You would probably never guess it, judging from his lengthy and opaque title -- assistant deputy director of national intelligence for analytic transformation and technology. A perfect testament to the well-worn bureaucratic tradition of offering little insight by tossing around a lot of words.
Wertheimer's squishy and unassuming title only hints at some vague, general notion of what he actually does for a living. Particularly for the uninitiated, the moniker buries a sense of authority beneath a pair of prefixes (assistant deputy) and offers an unsatisfying buzzword descriptor (transformation), whose etymology points to some consultant's pocket glossary. The title screams "middle management" and thus reassures, "This guy is not a threat."
That message is especially ironic, because to thousands of powerful career employees in the American intelligence community, Wertheimer is, in fact, very threatening. He threatens to upend their world, to change the way they work, and to foist on them the values of a younger generation of spies, who happen to outnumber them. He also threatens to change the way that policy makers use intelligence to reach decisions, and so to "transform" the intelligence agencies' role in the government. All of this makes Mike Wertheimer very dangerous to people who oppose his basic assumptions. And he knows that. He also knows that, to many thousands more in the intelligence field, he is something of a savior.
To understand the origins and purpose of Wertheimer's office, of which he is the first occupant, it helps to refer to a document that also bears a lengthy title, the report by the Commission on the Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction. Better known as the WMD commission report, it provides a painstaking explanation of how 15 intelligence agencies collectively failed to discover that Saddam Hussein's Iraq possessed no weapons of mass destruction.
The contrary assertion that he did have those weapons -- and thus was a threat to the Middle East and a potential benefactor for terrorists -- was, of course, the Bush administration's chief casus belli for the Iraq war. The claim was backed up at the highest levels of the intelligence community in a National Intelligence Estimate released to Congress in October 2002. The WMD commission, which published its findings in 2005, echoed the sentiments of many intelligence professionals, including some who had participated in and blessed the flawed prewar analysis, by pronouncing the episode "one of the most public -- and most damaging -- intelligence failures in recent American history."
Wertheimer's job is to prevent any more such failures and to make sure that the intelligence agencies can accurately predict a host of catastrophic events, including terrorist attacks and disease outbreaks. The commission laid much of the blame for the bad call on Iraq at the feet of analysts, whom it called "the voice of the intelligence community." Although the problems begin with the failure to collect the right information in the first place, the commission particularly faulted the analysts' inability to make sense of intelligence, and to present their judgments to decision makers. During his time in government, Colin Powell was widely regarded among professionals as a decision maker who understood this inherently murky process. He would say to his intelligence officers, "Tell me what you know, tell me what you don't know, and then tell me what you think is most likely to happen." When that analysis breaks down, as it did with Iraq, "the consequences can be grave," the commission wrote.
To be sure, many career analysts object to the "flaws" the commission cited in their tradecraft, regarding both Iraq and another notorious intelligence failure: the September 11, 2001, terrorist attacks. But very few argue with the substance, or the roots, of these breakdowns. The "intelligence community," as the agencies are collectively known, hardly operates as one, and this lack of coordination and -- especially -- collaboration among analysts means that agency leaders and their clients often don't know what the analysts don't know. The disconnect also means that contrary analysis -- of which there was a significant amount in the run-up to the Iraq war -- may find no quarter in analysts' final judgments. It is a disastrous situation for policy makers, who are increasingly turning to nongovernment experts and the news media for rapid, cogent analysis that the intelligence agencies can't always provide.
The WMD commission identified the fix: "Integrate the community of analysts." That's easier said than done, of course, but Wertheimer and others who understand how very un-integrated the analysts are today know that it is prescriptive advice that they can't afford to reject.
The Threat Within
"Post-9/11, we coined a term, the 'asymmetric threat,' " Wertheimer says. "That's a fancy way of describing a future in which the targets for intelligence, the things that we will focus on, are built, designed, and operate completely differently than the way we do." Transformation, that fuzzy word in his title, means "removing that asymmetry."
Before the attacks, the intelligence community was "like a power builder -- very muscular but not very fast," Wertheimer says. Today, the agencies need to be swift. They need to analyze more information faster. But analysts also need new ways to connect to one another, to benefit from one another's knowledge. If a specialist on sub-Saharan Africa at the Defense Intelligence Agency is studying terrorist inroads into tribal communities, shouldn't a CIA expert in Africa studies know that? Might she have something useful to contribute to the inquiry?
Collaboration isn't an especially novel concept, and the WMD commission wasn't the first to suggest that analysts do more of it. But Wertheimer is the first official in the Office of the Director of National Intelligence -- the "czar" of the community -- to make collaboration a full-time job. Gen. Michael Hayden, the former principal deputy director of national intelligence who is now the CIA director, created the position after talking with Wertheimer two years ago about how to change the way the community operates. The new intelligence director, Mike McConnell, has forcefully backed the transformational efforts, as has his deputy in charge of analysis, Tom Fingar, a career analyst who used to run intelligence at the State Department. Fingar, who is essentially the only official layer between Wertheimer and McConnell, is the political muscle in this endeavor. Wertheimer is the idea man, "my philosopher of transformation," as Fingar recently put it.
Transformation has less to do with changing procedures than with changing people. A key pillar is a suite of new information-sharing and collaborative technologies that look and feel a lot like Google, Wikipedia, and MySpace, the networking and search tools that younger analysts grew up using at home and in their dorm rooms. These newcomers have been baffled to find that these 21st-century staples aren't widely used within the intelligence community.
The first of the new intelligence tools came online recently. Analysts can now log on to Intellipedia, a collaborative knowledge base that they can use to swap leads and examine one another's work. (Officials say that Intellipedia helped one group of analysts create a helpful report on Iraqi insurgents' use of chlorine gas to increase the lethality of improvised explosive devices.) Later this year, Wertheimer's team will launch A-Space ("A" for analyst), modeled after MySpace and the popular website Facebook. Officials hope the new site will help analysts create social networks outside established channels.
In addition to the new tools, Wertheimer and his colleagues have created unusual training programs. One sends analysts to a monthlong retreat at a classified location where they work alongside private-sector experts to investigate complex intelligence topics. Another takes young analysts out of their assigned jobs for two years and puts them through an intensive training program where they learn the tradecraft but also such on-the-ground spy skills as defensive driving and weapons handling. Agencies will ultimately deploy these analysts to global hot spots to support spies in the field.
It's no accident that Wertheimer and his team are aiming these new tools and programs at the younger crowd. Sixty percent of U.S. intelligence analysts have five years of experience or less on the job. In the larger intelligence community of about 100,000 employees, which includes clandestine operatives and support staff, those young workers are about 40 percent of the rolls. America's spies are decidedly green, and they're not comfortable -- or particularly useful -- working in bureaucratic silos without Internet browsers, instant messaging, and social networking sites on their desktops.
In his quest for transformation, Wertheimer is playing to this youthful workforce that finds collaboration neither newfangled nor threatening. For these analysts, networking is just the way information moves. But to the intelligence establishment, information is power, and relinquishing it means losing that power, as the WMD commission and many other critics have repeatedly lamented. It seems illogical to the generation of electronic socializers, but when information moves around, and becomes known to people who don't have the "need to know," veteran members of the community view it as no longer special because it's no longer secret. Too much collaboration also threatens to reveal the sources and methods by which agencies obtain information -- secrets they must zealously guard lest those sources dry up or get killed.
Sharing and secrecy are opposing forces. So this is Wertheimer's task: Transform the massive intelligence bureaucracy into a collaborative network, in which loose lips are, in a way, encouraged; introduce technologies that many seasoned analysts neither understand nor trust; and build a cadre of young, ambitious rookies, who just can't believe they're not allowed to check their personal e-mail at work, into the future of the business.
The opposition is fierce. When The New York Times wrote about A-Space recently, analysts commented about the piece, and about Wertheimer, on a private intelligence community blog. Some recorded their dramatic dissent. "I guarantee," one intelligence employee wrote, "Mike Wertheimer will cause people to get killed over this."
"I am threatening the status quo," Wertheimer says. "And that's a hard pill to swallow for anybody."
Taking the Blame
Wertheimer, 50, is a mathematician who earned his master's and Ph.D. from the University of Pennsylvania. He spent 21 years as a cryptologist at the National Security Agency, and rose to become the agency's most senior technical leader. On paper, he fits the stereotype captured in an old joke among NSA hands: "How can you tell an extroverted analyst? He's the one who looks at your shoes when he's talking."
But Wertheimer defies typecasting. When he speaks, he looks people in the eye, but often from above -- he is 6 feet, 1 inch tall. He has arching eyebrows that signal when he's listening but also serve as a warning for when he's about to descend with an impassioned argument or an analogy that he thinks perfectly captures what he's up against. (In a recent conversation, Wertheimer compared the government's attempts at collaboration to the Borg, the supremely villainous race of cyber-aliens on Star Trek: The Next Generation who "assimilate" whole societies by stripping people of individual character traits and turn them into one giant collective.) If you spotted Wertheimer in a room, or even better, watched him work a room, you might wonder why he hasn't sought his fortune on the motivational speaking circuit.
When he speaks, you get the feeling that he's talking to you. He reveals a lot about himself, which might be unsettling if he weren't so earnest about connecting his flaws and fears to his intelligence work. At a recent conference on analytic transformation in Chicago, Wertheimer confessed to a crowd of more than 400 people that after the 9/11 attacks he felt personally responsible for not anticipating Al Qaeda's strike. He became depressed, he said, and was inconsolable until his father snapped him out of it. "I don't blame you for this," Wertheimer's dad told him, and then warned, "You're scaring your kids," who thought that whenever their father had to rush back to the office, something very bad was about to happen. Wertheimer briefly left government in 2003 to work as a technology consultant but returned two years later.
Wertheimer is like a number of other veteran intelligence officials who were involved in the global hunt for terrorists before 9/11. They feel that their own actions -- more precisely, their inactions -- allowed the disaster. Wertheimer says he blames himself and his colleagues. He thinks he personally failed and, accepting his part in a broken system, he seems to have no qualms about tearing it down and rebuilding.
"It is something that he can appreciate as being absolutely critical to the future of this country and the protection of the country, and when you hear him speak, you get caught up in that emotion," says Tim Sample, a former analyst and staff director of the House Select Committee on Intelligence who knows Wertheimer well. Sample is president of the nonprofit Intelligence and National Security Alliance, which co-hosted the Chicago conference with the intelligence director's office.
In large measure, Wertheimer's charisma comes from his willingness to defy tradition. "We are going to share more," he said in his Chicago speech. "We are going to take risks." Directing his remarks at those who would rather preserve the status quo, he said, "For the first time, the challenge is not why we can't do it; it's how you're going to find a way to secure this." Rather than appeasing members of the intelligence community who blanch at collaboration and its attendant security risks, Wertheimer lays the burden on their shoulders and tells them that if collaboration doesn't happen, they'll take the blame.
But if Wertheimer succeeds, it probably won't be by convincing his intransigent opponents. Rather, he will work with that younger generation at whom transformation is aimed. By and large, these newer members of the community are optimistic and, like him, believe that the intelligence community is dangerously broken.
"It's Huge"
Sean Wohltman, a 25-year-old counter-terrorism analyst with the National Geospatial-Intelligence Agency, embodies the kind of optimistic disillusionment that Wertheimer wants to harness. Two years after defending his master's thesis in geographic information science at Virginia Tech University, Wohltman joined the government "following a call for patriotism," he said. He encountered "disappointment and disillusionment" in his first three months on the job, however.
As Wohltman explained to the Chicago conference, "When I first logged on to what I expected to be a terminal from 24's [counter-terrorist unit] command center, I was instead driven to my agency's home page, which flashed information about an upcoming picnic and links to fill out my health insurance. And not only that, it launched in Netscape." Those in the audience who laughed understood that Netscape is an obsolete Internet browser.
Later, Wohltman explained why it mattered to him that the intelligence agencies were so far behind the technological curve. In 1999, when the popular and controversial music file-sharing system Napster debuted, he pointed out, Ricky Martin's "Livin' la Vida Loca" and other corporately manufactured pop hits topped the Billboard charts. Only artists from big record labels got mass recognition, and listeners were cut off from the bounty of independent and innovative artists who excelled in a variety of musical styles. But that year, Napster's collaborative technology allowed fans of lesser-known artists to share songs, which in turn boosted their recognition, fanned their popularity, and led to greater awareness of the wider music scene. It also fueled the market for independent music and challenged the record companies' dominance of the industry.
Taking Wohltman's analogy, Wertheimer says that the intelligence agencies could be compared to the record companies. Information is filtered through a hierarchical process that culminates in senior executives choosing what intelligence to disseminate to customers. Similar to Napster, tools such as Intellipedia and A-Space -- known as "disruptive technologies" -- bypass this process and get more information out to a wider audience.
But will collaboration guarantee better analysis? Did Napster improve music quality? Did it benefit the industry as a whole? Recording artists and companies sued Napster for copyright infringement, and the network shut down in 2001, eventually to be reborn as a pay-for-service system.
Napster did pave the way for other innovative technologies, which adapted to customers' demands to buy music a la carte, rather than having to pay for an entire album. Today, Apple's iTunes sells songs for 99 cents and threatens the record companies' control of their own products. Collaboration, in a sense, won out, and customers' demand for more music, delivered in new ways, has opened the market to more artists. "Will this lead to better music?" Wertheimer asks. "I can't believe that it will not."
Wertheimer and other transformation proponents often point to iTunes, and the hugely successful iPod music player, to support their theory that collaboration can fundamentally change and improve people's lives. And they reason that A-Space, Intellipedia, and other innovative services will create demand in the intelligence community and overwhelm the transformation naysayers.
Wertheimer channels the enthusiasm of Apple's CEO and co-founder, Steve Jobs, whose rousing keynote speeches, known as "Stevenotes," command more press coverage and world attention than speeches by most members of Congress. But as with Jobs, some skeptics question both the substance and the goal behind Wertheimer's zeal.
Early in Jobs's career, a co-worker coined the term "reality distortion field" to describe the aura that the Apple prophet cast over his spellbound audiences. The term could easily apply to Wertheimer's enthusiastic showmanship. Wikipedia describes RDF as "the idea that Steve Jobs is able to convince people to believe almost anything with a mix of charm, charisma, exaggeration, and marketing. RDF is said to distort an audience's sense of proportion or scale. Small advances are applauded as breakthroughs. Interesting developments become turning points, or huge leaps forward." (The phenomenon has been applied to other leaders, as well.)
Wertheimer does, in fact, applaud certain advances as breakthroughs that others -- particularly those outside of government -- might find underwhelming. For instance, one planned transformation program, the Library of National Intelligence, would be a repository of all the documents produced by all of the agencies. Eventually, Wertheimer hopes, analysts will search the library for key terms, and an automated system will help to judge who should have access to classified materials. He calls this program "huge."
Why is it huge? Some observers would have a hard time believing that the agencies didn't already have such a resource, the kind that most large organizations take for granted. LexisNexis, for example, contains copies of every article published in most of the country's periodicals. Following basic business practices, most companies compile and retain their internal documents for research and for legal purposes.
Wertheimer is careful to put things in perspective. "It's big," he says of the library. But then he quickly follows up: "For us, it's huge." And he's right. Much to the consternation of the WMD commission and others, this is a giant leap for the intelligence community, a kind of moon-landing moment.
But do collaborative libraries -- and wikis, blogs, networking websites, and special training -- make transformation worthwhile?
Change Without End
Mark Lowenthal retired in 2005 as the assistant director of central intelligence for analysis and production. Among seasoned intelligence officials, he is considered one of the most knowledgeable authorities on analysis, the agencies' shortcomings in that regard, and the education of young analysts in the ways of the tradecraft. So in Chicago, when Lowenthal stood up to question why Wertheimer and the DNI's office are expending so much energy on transformation, people listened intently.
"You are urging this transformation for an end that I do not understand," he told Wertheimer. "Collaboration is not an end in itself, to my mind. You want to do this, I think, ... to make analysis better. What does that mean? It means it would be faster? It would be more comprehensible? It would be more accurate more often? I don't think you have a way of knowing at the end of the day when you get there."
Lowenthal doesn't dismiss collaboration out of hand, and he has spent a sizable part of his career trying to create a true intelligence community. But his remarks reflected a palpable skepticism among those who think that it is impossible to know whether Wertheimer's ideas will actually fix intelligence. Lowenthal told him, "I think, unfortunately, a lot of this is pandering to a bunch of commissions that have no understanding of what we do for a living, or the nature of our work, and to a workforce. And I don't think that's a sufficient ground for a transformation. And so I'm left here wondering, what's the end state? For what reason?"
Wertheimer responded that he didn't have a satisfactory answer. The best he could offer, he said, were anecdotes. He has spent the past two years talking to analysts and trying to figure out what those who achieved real breakthroughs -- overcoming "hard problems," he said -- had in common.
The few successes were not enough to prove a theory, he admitted. But the one trait these breakthrough-makers shared was -- perhaps not surprisingly -- collaboration. These were analysts who challenged old assumptions, re-examined evidence that had been set aside as useless, and shared information beyond normal channels. They also, Wertheimer said, ignored their bosses' admonitions that such inquiries -- going back to ground that had been plowed unproductively before -- were "career killers." Bucking authority is another of Wertheimer's recurring themes. He says that a colleague once told him, "You will have succeeded when you become really hard to manage."
Wertheimer, however, plays down the notion of analysts as revolutionaries. "I don't like the thought that transformation is changing something from the past to something new," he says. Rather, transformation is about "creating an environment in which more things could happen than could happen in the past. It's liberating. Let's call it 'analytic liberation.' "
Wertheimer seems perfectly comfortable working in this gray area, where there is no obvious way to know whether his ideas are working and where concepts change on the fly (transformation becomes liberation) and the end goal isn't defined at the outset. Were it not for the DNI's backing, such a nebulous, high-risk approach to preventing another intelligence disaster might never take flight. Wertheimer might still go down in flames, but taking that risk appears to suit him just fine. "We can't afford the kinds of mistakes that we're making based on the way we're doing business today. It's just the bottom line," he said. Riffing off the intelligence blogger's comments, he added, "If I'm the first one to get killed, so be it."
The Hard Sell
Bravado may obscure Wertheimer's pragmatic streak. He is provocative and excitable, and sometimes brash. But those who know him well say that he is also humble and self-deprecating.
He frets that he will become too personally associated with his cause. "I'm a little worried about this being too personality-driven," he says. "This has got to be about ideas. We have to sell people on the ideas."
Wertheimer knows that the reason his pitch isn't resonating with enough people his own age is because he has failed to demonstrate how middle managers and veteran analysts -- the people who are feeling most threatened -- can take part in this grand enterprise, how they can be "liberated." Wertheimer, the realist, has promised to find a place for them. But he does not apologize for embracing young analysts and for assaulting the culture that reared him. "We don't allow our people to reach their full potential," he told the audience in Chicago. "This is a society, this is a community, that tamps down potential."
"We treat [analysis] like a guild," Wertheimer said later, a society of apprentices who study at the feet of masters. "This is like making a fine violin or studying opera. That [approach] makes a lot of sense at the scale that you build violins or have opera singers. But we're talking about massive [numbers] of young people coming in.... They learn on their own. They don't read the rule book. They don't read the owner's manual," he said. "They click buttons and investigate, and if they get bored, they do something else."
If the two sides of this generational divide are irreconcilable, Wertheimer doesn't seem worried, because the rookies have the clear majority. "It's simply a matter of time," he said. "Now, the question we all have in our minds is, how much time can we afford? We can't afford another day."
Several younger colleagues once asked Wertheimer to name his greatest career achievement at the National Security Agency. At one time, he said, he was the world's leading expert on a certain cryptographic technology, the smartest man alive on that one subject. But "that's not what makes me so accomplished," he said. "It's that I'm no longer the No. 1 expert, and that the experts are in this room, because I taught them. And they exceeded everything I could have done on my own."
That's one way Wertheimer judges success: Someone comes along and does it better. It doesn't quite answer his critics' concerns that his ideas might be flawed to begin with. But Wertheimer is a strong believer in the "wisdom of crowds." He and his bosses are betting that collaboration is the way to fix what's broken with intelligence and, by extension, to keep people from dying. If they are right that transformation, in all its forms, is the key to stopping another terrorist attack, or to avoiding another catastrophic intelligence failure, then it seems a decent bet that the next generation of analysts will follow Wertheimer's lead.
"If I can just start something for which a handful of folks better and smarter than me take over," he said, "if you could put that in my epitaph, I would die a happy man."
Published in National Journal
Friday, September 21, 2007
Mike Wertheimer may be the most dangerous man in U.S. intelligence. You would probably never guess it, judging from his lengthy and opaque title -- assistant deputy director of national intelligence for analytic transformation and technology. A perfect testament to the well-worn bureaucratic tradition of offering little insight by tossing around a lot of words.
Wertheimer's squishy and unassuming title only hints at some vague, general notion of what he actually does for a living. Particularly for the uninitiated, the moniker buries a sense of authority beneath a pair of prefixes (assistant deputy) and offers an unsatisfying buzzword descriptor (transformation), whose etymology points to some consultant's pocket glossary. The title screams "middle management" and thus reassures, "This guy is not a threat."
That message is especially ironic, because to thousands of powerful career employees in the American intelligence community, Wertheimer is, in fact, very threatening. He threatens to upend their world, to change the way they work, and to foist on them the values of a younger generation of spies, who happen to outnumber them. He also threatens to change the way that policy makers use intelligence to reach decisions, and so to "transform" the intelligence agencies' role in the government. All of this makes Mike Wertheimer very dangerous to people who oppose his basic assumptions. And he knows that. He also knows that, to many thousands more in the intelligence field, he is something of a savior.
To understand the origins and purpose of Wertheimer's office, of which he is the first occupant, it helps to refer to a document that also bears a lengthy title, the report by the Commission on the Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction. Better known as the WMD commission report, it provides a painstaking explanation of how 15 intelligence agencies collectively failed to discover that Saddam Hussein's Iraq possessed no weapons of mass destruction.
The contrary assertion that he did have those weapons -- and thus was a threat to the Middle East and a potential benefactor for terrorists -- was, of course, the Bush administration's chief casus belli for the Iraq war. The claim was backed up at the highest levels of the intelligence community in a National Intelligence Estimate released to Congress in October 2002. The WMD commission, which published its findings in 2005, echoed the sentiments of many intelligence professionals, including some who had participated in and blessed the flawed prewar analysis, by pronouncing the episode "one of the most public -- and most damaging -- intelligence failures in recent American history."
Wertheimer's job is to prevent any more such failures and to make sure that the intelligence agencies can accurately predict a host of catastrophic events, including terrorist attacks and disease outbreaks. The commission laid much of the blame for the bad call on Iraq at the feet of analysts, whom it called "the voice of the intelligence community." Although the problems begin with the failure to collect the right information in the first place, the commission particularly faulted the analysts' inability to make sense of intelligence, and to present their judgments to decision makers. During his time in government, Colin Powell was widely regarded among professionals as a decision maker who understood this inherently murky process. He would say to his intelligence officers, "Tell me what you know, tell me what you don't know, and then tell me what you think is most likely to happen." When that analysis breaks down, as it did with Iraq, "the consequences can be grave," the commission wrote.
To be sure, many career analysts object to the "flaws" the commission cited in their tradecraft, regarding both Iraq and another notorious intelligence failure: the September 11, 2001, terrorist attacks. But very few argue with the substance, or the roots, of these breakdowns. The "intelligence community," as the agencies are collectively known, hardly operates as one, and this lack of coordination and -- especially -- collaboration among analysts means that agency leaders and their clients often don't know what the analysts don't know. The disconnect also means that contrary analysis -- of which there was a significant amount in the run-up to the Iraq war -- may find no quarter in analysts' final judgments. It is a disastrous situation for policy makers, who are increasingly turning to nongovernment experts and the news media for rapid, cogent analysis that the intelligence agencies can't always provide.
The WMD commission identified the fix: "Integrate the community of analysts." That's easier said than done, of course, but Wertheimer and others who understand how very un-integrated the analysts are today know that it is prescriptive advice that they can't afford to reject.
The Threat Within
"Post-9/11, we coined a term, the 'asymmetric threat,' " Wertheimer says. "That's a fancy way of describing a future in which the targets for intelligence, the things that we will focus on, are built, designed, and operate completely differently than the way we do." Transformation, that fuzzy word in his title, means "removing that asymmetry."
Before the attacks, the intelligence community was "like a power builder -- very muscular but not very fast," Wertheimer says. Today, the agencies need to be swift. They need to analyze more information faster. But analysts also need new ways to connect to one another, to benefit from one another's knowledge. If a specialist on sub-Saharan Africa at the Defense Intelligence Agency is studying terrorist inroads into tribal communities, shouldn't a CIA expert in Africa studies know that? Might she have something useful to contribute to the inquiry?
Collaboration isn't an especially novel concept, and the WMD commission wasn't the first to suggest that analysts do more of it. But Wertheimer is the first official in the Office of the Director of National Intelligence -- the "czar" of the community -- to make collaboration a full-time job. Gen. Michael Hayden, the former principal deputy director of national intelligence who is now the CIA director, created the position after talking with Wertheimer two years ago about how to change the way the community operates. The new intelligence director, Mike McConnell, has forcefully backed the transformational efforts, as has his deputy in charge of analysis, Tom Fingar, a career analyst who used to run intelligence at the State Department. Fingar, who is essentially the only official layer between Wertheimer and McConnell, is the political muscle in this endeavor. Wertheimer is the idea man, "my philosopher of transformation," as Fingar recently put it.
Transformation has less to do with changing procedures than with changing people. A key pillar is a suite of new information-sharing and collaborative technologies that look and feel a lot like Google, Wikipedia, and MySpace, the networking and search tools that younger analysts grew up using at home and in their dorm rooms. These newcomers have been baffled to find that these 21st-century staples aren't widely used within the intelligence community.
The first of the new intelligence tools came online recently. Analysts can now log on to Intellipedia, a collaborative knowledge base that they can use to swap leads and examine one another's work. (Officials say that Intellipedia helped one group of analysts create a helpful report on Iraqi insurgents' use of chlorine gas to increase the lethality of improvised explosive devices.) Later this year, Wertheimer's team will launch A-Space ("A" for analyst), modeled after MySpace and the popular website Facebook. Officials hope the new site will help analysts create social networks outside established channels.
In addition to the new tools, Wertheimer and his colleagues have created unusual training programs. One sends analysts to a monthlong retreat at a classified location where they work alongside private-sector experts to investigate complex intelligence topics. Another takes young analysts out of their assigned jobs for two years and puts them through an intensive training program where they learn the tradecraft but also such on-the-ground spy skills as defensive driving and weapons handling. Agencies will ultimately deploy these analysts to global hot spots to support spies in the field.
It's no accident that Wertheimer and his team are aiming these new tools and programs at the younger crowd. Sixty percent of U.S. intelligence analysts have five years of experience or less on the job. In the larger intelligence community of about 100,000 employees, which includes clandestine operatives and support staff, those young workers are about 40 percent of the rolls. America's spies are decidedly green, and they're not comfortable -- or particularly useful -- working in bureaucratic silos without Internet browsers, instant messaging, and social networking sites on their desktops.
In his quest for transformation, Wertheimer is playing to this youthful workforce that finds collaboration neither newfangled nor threatening. For these analysts, networking is just the way information moves. But to the intelligence establishment, information is power, and relinquishing it means losing that power, as the WMD commission and many other critics have repeatedly lamented. It seems illogical to the generation of electronic socializers, but when information moves around, and becomes known to people who don't have the "need to know," veteran members of the community view it as no longer special because it's no longer secret. Too much collaboration also threatens to reveal the sources and methods by which agencies obtain information -- secrets they must zealously guard lest those sources dry up or get killed.
Sharing and secrecy are opposing forces. So this is Wertheimer's task: Transform the massive intelligence bureaucracy into a collaborative network, in which loose lips are, in a way, encouraged; introduce technologies that many seasoned analysts neither understand nor trust; and build a cadre of young, ambitious rookies, who just can't believe they're not allowed to check their personal e-mail at work, into the future of the business.
The opposition is fierce. When The New York Times wrote about A-Space recently, analysts commented about the piece, and about Wertheimer, on a private intelligence community blog. Some recorded their dramatic dissent. "I guarantee," one intelligence employee wrote, "Mike Wertheimer will cause people to get killed over this."
"I am threatening the status quo," Wertheimer says. "And that's a hard pill to swallow for anybody."
Taking the Blame
Wertheimer, 50, is a mathematician who earned his master's and Ph.D. from the University of Pennsylvania. He spent 21 years as a cryptologist at the National Security Agency, and rose to become the agency's most senior technical leader. On paper, he fits the stereotype captured in an old joke among NSA hands: "How can you tell an extroverted analyst? He's the one who looks at your shoes when he's talking."
But Wertheimer defies typecasting. When he speaks, he looks people in the eye, but often from above -- he is 6 feet, 1 inch tall. He has arching eyebrows that signal when he's listening but also serve as a warning for when he's about to descend with an impassioned argument or an analogy that he thinks perfectly captures what he's up against. (In a recent conversation, Wertheimer compared the government's attempts at collaboration to the Borg, the supremely villainous race of cyber-aliens on Star Trek: The Next Generation who "assimilate" whole societies by stripping people of individual character traits and turn them into one giant collective.) If you spotted Wertheimer in a room, or even better, watched him work a room, you might wonder why he hasn't sought his fortune on the motivational speaking circuit.
When he speaks, you get the feeling that he's talking to you. He reveals a lot about himself, which might be unsettling if he weren't so earnest about connecting his flaws and fears to his intelligence work. At a recent conference on analytic transformation in Chicago, Wertheimer confessed to a crowd of more than 400 people that after the 9/11 attacks he felt personally responsible for not anticipating Al Qaeda's strike. He became depressed, he said, and was inconsolable until his father snapped him out of it. "I don't blame you for this," Wertheimer's dad told him, and then warned, "You're scaring your kids," who thought that whenever their father had to rush back to the office, something very bad was about to happen. Wertheimer briefly left government in 2003 to work as a technology consultant but returned two years later.
Wertheimer is like a number of other veteran intelligence officials who were involved in the global hunt for terrorists before 9/11. They feel that their own actions -- more precisely, their inactions -- allowed the disaster. Wertheimer says he blames himself and his colleagues. He thinks he personally failed and, accepting his part in a broken system, he seems to have no qualms about tearing it down and rebuilding.
"It is something that he can appreciate as being absolutely critical to the future of this country and the protection of the country, and when you hear him speak, you get caught up in that emotion," says Tim Sample, a former analyst and staff director of the House Select Committee on Intelligence who knows Wertheimer well. Sample is president of the nonprofit Intelligence and National Security Alliance, which co-hosted the Chicago conference with the intelligence director's office.
In large measure, Wertheimer's charisma comes from his willingness to defy tradition. "We are going to share more," he said in his Chicago speech. "We are going to take risks." Directing his remarks at those who would rather preserve the status quo, he said, "For the first time, the challenge is not why we can't do it; it's how you're going to find a way to secure this." Rather than appeasing members of the intelligence community who blanch at collaboration and its attendant security risks, Wertheimer lays the burden on their shoulders and tells them that if collaboration doesn't happen, they'll take the blame.
But if Wertheimer succeeds, it probably won't be by convincing his intransigent opponents. Rather, he will work with that younger generation at whom transformation is aimed. By and large, these newer members of the community are optimistic and, like him, believe that the intelligence community is dangerously broken.
"It's Huge"
Sean Wohltman, a 25-year-old counter-terrorism analyst with the National Geospatial-Intelligence Agency, embodies the kind of optimistic disillusionment that Wertheimer wants to harness. Two years after defending his master's thesis in geographic information science at Virginia Tech University, Wohltman joined the government "following a call for patriotism," he said. He encountered "disappointment and disillusionment" in his first three months on the job, however.
As Wohltman explained to the Chicago conference, "When I first logged on to what I expected to be a terminal from 24's [counter-terrorist unit] command center, I was instead driven to my agency's home page, which flashed information about an upcoming picnic and links to fill out my health insurance. And not only that, it launched in Netscape." Those in the audience who laughed understood that Netscape is an obsolete Internet browser.
Later, Wohltman explained why it mattered to him that the intelligence agencies were so far behind the technological curve. In 1999, when the popular and controversial music file-sharing system Napster debuted, he pointed out, Ricky Martin's "Livin' la Vida Loca" and other corporately manufactured pop hits topped the Billboard charts. Only artists from big record labels got mass recognition, and listeners were cut off from the bounty of independent and innovative artists who excelled in a variety of musical styles. But that year, Napster's collaborative technology allowed fans of lesser-known artists to share songs, which in turn boosted their recognition, fanned their popularity, and led to greater awareness of the wider music scene. It also fueled the market for independent music and challenged the record companies' dominance of the industry.
Taking Wohltman's analogy, Wertheimer says that the intelligence agencies could be compared to the record companies. Information is filtered through a hierarchical process that culminates in senior executives choosing what intelligence to disseminate to customers. Similar to Napster, tools such as Intellipedia and A-Space -- known as "disruptive technologies" -- bypass this process and get more information out to a wider audience.
But will collaboration guarantee better analysis? Did Napster improve music quality? Did it benefit the industry as a whole? Recording artists and companies sued Napster for copyright infringement, and the network shut down in 2001, eventually to be reborn as a pay-for-service system.
Napster did pave the way for other innovative technologies, which adapted to customers' demands to buy music a la carte, rather than having to pay for an entire album. Today, Apple's iTunes sells songs for 99 cents and threatens the record companies' control of their own products. Collaboration, in a sense, won out, and customers' demand for more music, delivered in new ways, has opened the market to more artists. "Will this lead to better music?" Wertheimer asks. "I can't believe that it will not."
Wertheimer and other transformation proponents often point to iTunes, and the hugely successful iPod music player, to support their theory that collaboration can fundamentally change and improve people's lives. And they reason that A-Space, Intellipedia, and other innovative services will create demand in the intelligence community and overwhelm the transformation naysayers.
Wertheimer channels the enthusiasm of Apple's CEO and co-founder, Steve Jobs, whose rousing keynote speeches, known as "Stevenotes," command more press coverage and world attention than speeches by most members of Congress. But as with Jobs, some skeptics question both the substance and the goal behind Wertheimer's zeal.
Early in Jobs's career, a co-worker coined the term "reality distortion field" to describe the aura that the Apple prophet cast over his spellbound audiences. The term could easily apply to Wertheimer's enthusiastic showmanship. Wikipedia describes RDF as "the idea that Steve Jobs is able to convince people to believe almost anything with a mix of charm, charisma, exaggeration, and marketing. RDF is said to distort an audience's sense of proportion or scale. Small advances are applauded as breakthroughs. Interesting developments become turning points, or huge leaps forward." (The phenomenon has been applied to other leaders, as well.)
Wertheimer does, in fact, applaud certain advances as breakthroughs that others -- particularly those outside of government -- might find underwhelming. For instance, one planned transformation program, the Library of National Intelligence, would be a repository of all the documents produced by all of the agencies. Eventually, Wertheimer hopes, analysts will search the library for key terms, and an automated system will help to judge who should have access to classified materials. He calls this program "huge."
Why is it huge? Some observers would have a hard time believing that the agencies didn't already have such a resource, the kind that most large organizations take for granted. LexisNexis, for example, contains copies of every article published in most of the country's periodicals. Following basic business practices, most companies compile and retain their internal documents for research and for legal purposes.
Wertheimer is careful to put things in perspective. "It's big," he says of the library. But then he quickly follows up: "For us, it's huge." And he's right. Much to the consternation of the WMD commission and others, this is a giant leap for the intelligence community, a kind of moon-landing moment.
But do collaborative libraries -- and wikis, blogs, networking websites, and special training -- make transformation worthwhile?
Change Without End
Mark Lowenthal retired in 2005 as the assistant director of central intelligence for analysis and production. Among seasoned intelligence officials, he is considered one of the most knowledgeable authorities on analysis, the agencies' shortcomings in that regard, and the education of young analysts in the ways of the tradecraft. So in Chicago, when Lowenthal stood up to question why Wertheimer and the DNI's office are expending so much energy on transformation, people listened intently.
"You are urging this transformation for an end that I do not understand," he told Wertheimer. "Collaboration is not an end in itself, to my mind. You want to do this, I think, ... to make analysis better. What does that mean? It means it would be faster? It would be more comprehensible? It would be more accurate more often? I don't think you have a way of knowing at the end of the day when you get there."
Lowenthal doesn't dismiss collaboration out of hand, and he has spent a sizable part of his career trying to create a true intelligence community. But his remarks reflected a palpable skepticism among those who think that it is impossible to know whether Wertheimer's ideas will actually fix intelligence. Lowenthal told him, "I think, unfortunately, a lot of this is pandering to a bunch of commissions that have no understanding of what we do for a living, or the nature of our work, and to a workforce. And I don't think that's a sufficient ground for a transformation. And so I'm left here wondering, what's the end state? For what reason?"
Wertheimer responded that he didn't have a satisfactory answer. The best he could offer, he said, were anecdotes. He has spent the past two years talking to analysts and trying to figure out what those who achieved real breakthroughs -- overcoming "hard problems," he said -- had in common.
The few successes were not enough to prove a theory, he admitted. But the one trait these breakthrough-makers shared was -- perhaps not surprisingly -- collaboration. These were analysts who challenged old assumptions, re-examined evidence that had been set aside as useless, and shared information beyond normal channels. They also, Wertheimer said, ignored their bosses' admonitions that such inquiries -- going back to ground that had been plowed unproductively before -- were "career killers." Bucking authority is another of Wertheimer's recurring themes. He says that a colleague once told him, "You will have succeeded when you become really hard to manage."
Wertheimer, however, plays down the notion of analysts as revolutionaries. "I don't like the thought that transformation is changing something from the past to something new," he says. Rather, transformation is about "creating an environment in which more things could happen than could happen in the past. It's liberating. Let's call it 'analytic liberation.' "
Wertheimer seems perfectly comfortable working in this gray area, where there is no obvious way to know whether his ideas are working and where concepts change on the fly (transformation becomes liberation) and the end goal isn't defined at the outset. Were it not for the DNI's backing, such a nebulous, high-risk approach to preventing another intelligence disaster might never take flight. Wertheimer might still go down in flames, but taking that risk appears to suit him just fine. "We can't afford the kinds of mistakes that we're making based on the way we're doing business today. It's just the bottom line," he said. Riffing off the intelligence blogger's comments, he added, "If I'm the first one to get killed, so be it."
The Hard Sell
Bravado may obscure Wertheimer's pragmatic streak. He is provocative and excitable, and sometimes brash. But those who know him well say that he is also humble and self-deprecating.
He frets that he will become too personally associated with his cause. "I'm a little worried about this being too personality-driven," he says. "This has got to be about ideas. We have to sell people on the ideas."
Wertheimer knows that the reason his pitch isn't resonating with enough people his own age is because he has failed to demonstrate how middle managers and veteran analysts -- the people who are feeling most threatened -- can take part in this grand enterprise, how they can be "liberated." Wertheimer, the realist, has promised to find a place for them. But he does not apologize for embracing young analysts and for assaulting the culture that reared him. "We don't allow our people to reach their full potential," he told the audience in Chicago. "This is a society, this is a community, that tamps down potential."
"We treat [analysis] like a guild," Wertheimer said later, a society of apprentices who study at the feet of masters. "This is like making a fine violin or studying opera. That [approach] makes a lot of sense at the scale that you build violins or have opera singers. But we're talking about massive [numbers] of young people coming in.... They learn on their own. They don't read the rule book. They don't read the owner's manual," he said. "They click buttons and investigate, and if they get bored, they do something else."
If the two sides of this generational divide are irreconcilable, Wertheimer doesn't seem worried, because the rookies have the clear majority. "It's simply a matter of time," he said. "Now, the question we all have in our minds is, how much time can we afford? We can't afford another day."
Several younger colleagues once asked Wertheimer to name his greatest career achievement at the National Security Agency. At one time, he said, he was the world's leading expert on a certain cryptographic technology, the smartest man alive on that one subject. But "that's not what makes me so accomplished," he said. "It's that I'm no longer the No. 1 expert, and that the experts are in this room, because I taught them. And they exceeded everything I could have done on my own."
That's one way Wertheimer judges success: Someone comes along and does it better. It doesn't quite answer his critics' concerns that his ideas might be flawed to begin with. But Wertheimer is a strong believer in the "wisdom of crowds." He and his bosses are betting that collaboration is the way to fix what's broken with intelligence and, by extension, to keep people from dying. If they are right that transformation, in all its forms, is the key to stopping another terrorist attack, or to avoiding another catastrophic intelligence failure, then it seems a decent bet that the next generation of analysts will follow Wertheimer's lead.
"If I can just start something for which a handful of folks better and smarter than me take over," he said, "if you could put that in my epitaph, I would die a happy man."
Published in National Journal
Labels: Director of National Intelligence, Human Capital, Intelligence, Management, Technology, Terrorism
Full Article
Intelligence Innovation Lags
Friday, August 03, 2007
America's declining influence over scientific and technological innovation has had "an enormous impact" on U.S. intelligence agencies, and "makes it more likely that our adversaries can employ the very same -- or perhaps even more advanced" -- science and technology than that available to the United States. That's the assessment from the Intelligence Science Board, which advises senior intelligence leaders.
In a report issued in November, parts of which were recently obtained by National Journal, the board warned that although the United States remains the world leader in some fields of science and engineering, that position is slipping -- and the slide imperils the intelligence community's ability to adapt to a dramatically changing technological landscape that terrorists are increasingly exploiting.
Terrorists have used the Internet, which has enabled a "worldwide diffusion" of knowledge, to gather and transmit scientific and technological know-how, leading to "incredible capabilities that our adversaries have exploited and used to further the goals of radical Islam," the report states. The assessment doesn't specify the capabilities, but terrorists are widely known to use the Internet to communicate with each other, disseminate propaganda, and publish information on building bombs and designing attacks.
The report, which is marked "For Official Use Only," was prepared for the Office of the Director of National Intelligence; National Journal obtained portions of it from a source outside that office. It casts the U.S. decline in overall research and development as an enormous challenge to the intelligence agencies' ability to collect information about new adversaries. The board calls for "an entirely new approach to increasing the contribution of" science and technology to intelligence capabilities, but it offers a bleak assessment of the progress made on that front. "Neither the intelligence community nor the S&T establishment," the report states, "has put forth viable strategies for accomplishing this change."
Against this backdrop, the DNI is launching a research-and-development effort to provide "breakthrough" technologies for the intelligence agencies, including sensors and communications devices that can help human spies collect more-detailed information. This research extends beyond the traditional realm of satellite imagery and eavesdropping to include an emphasis on devices that spies can use to narrowly target individuals and groups, and to anticipate their movements.
Beginning next year, R&D efforts that have application for many, or all, of the intelligence agencies will be centralized in a single outfit called the Intelligence Advanced Research Projects Activity and dubbed iARPA. Modeled after the Defense Department's hugely successful DARPA, which developed stealth aircraft and paved the way for the Internet, iARPA will pull together research funds from across the agencies to increase the chances of fielding new, better technologies, according to Steve Nixon, director of science and technology for the DNI.
The research agency will officially open its doors in October 2008. Its goal is to ensure that new technologies don't take the intelligence agencies by surprise, Nixon said. But it will also look for tools to surprise America's adversaries and to collect information about them in ways they haven't anticipated or don't understand. "We really need to pursue surprise in the intelligence community more than we have before," Nixon said.
During the Cold War, the United States deployed fleets of spy satellites to track Soviet military movements. But terrorists operate in a fundamentally different way than do nation states -- their network "resembles a metastasized cancer that has spread through the world body," according to the intelligence board. Terrorists are, by their very nature, harder to track and anticipate. For that reason, "precisely targeted intelligence represents the best way to combat spreading terrorism," and the intelligence community must do a better job of developing the tools to do that, the report states.
According to Nixon, iARPA will focus on improving intelligence collection and analysis. "We think we can do more to help analysts deal with information," he said. Today, much of the most valuable information about terrorism resides in the world of open sources -- the Internet, the media, and academia. The intelligence agencies have spent millions of dollars on efforts to keep this multiplicity of sources and huge volume of information from overwhelming their analysts.
The Intelligence Science Board emphasized that U.S. spies need to keep pace with the increasingly rapid development and deployment of new technologies but found that, in large measure, the government is in the dark about new R&D and unable to direct it.
The report starkly states: "The government now has far less control than before over the problems addressed, the selection of personnel to perform the work, and the locations where the work is carried out, and less knowledge than ever before of what work is actually being done." Decades ago, the federal government, and particularly military and space programs, were the primary drivers of American R&D. Over time, that balance shifted, and today the private sector directs almost all new research.
The new research unit will absorb research funds from three other agencies: the Disruptive Technology Office, once overseen by the National Security Agency and now under the DNI, which designs and vets computer programs that help analysts cope with large sets of data; a CIA research unit called the Intelligence Technology Innovation Center; and the National Technology Alliance, which focuses on a range of issues, including biological, chemical, and nuclear countermeasures. The alliance is housed at the National Geospatial Intelligence Agency, which produces imagery and detailed maps for military and homeland-security operations.
Some intelligence officials are hopeful about iARPA's potential. "It could be a good thing," said Mark Reardon, director of the National Technology Alliance. Founded in 1987, the NTI encourages small businesses, especially those not accustomed to working with the government, to bring new technologies to the intelligence community.
The CIA "has made a serious commitment of resources -- people and dollars -- to strengthen technology programs" at the community-wide level, meaning those that apply to more than one intelligence agency, said Paul Gimigliano, an agency spokesman. "Those resources would be at the heart of iARPA. But we still need, and will still have, a strong focus on research and innovation within the CIA itself," he said. The agency has a "full range of technical issues intrinsic to the agency's specialty, clandestine operations," he added.
Nixon said that the agencies whose funds iARPA is subsuming had worked on projects with outside applications but were all under pressure to meet their own needs. He emphasized that iARPA is not taking over all of the other agencies' research budgets. "We're talking about money that was only set aside for future community research."
The Intelligence Science Board urged caution when combining all research programs under one umbrella, arguing that doing so could stymie innovation and "maximize the probability of failure, not success" if the new efforts were inadequately funded. "That legacy would have agonizing consequences," the report stated.
The board also wrote that its members "enthusiastically support the iARPA concept" but asserted that existing research programs "lack adequate staffing and finances." (The intelligence research budgets are classified.) The board urged the director of national intelligence to use his authority to reallocate agency budgets and to fund iARPA "at a minimum of double the level of the existing organizations." A funding increase, the board argued, was needed to free up more money for new ideas and longer-term projects, "and avert poaching on programs already under way."
One former intelligence official, who asked not to be identified because Congress has yet to pass next year's intelligence budget, worried that Congress hasn't sufficiently funded iARPA, and questioned whether administration officials had pushed hard enough for more money. The official also described significant resistance at the individual agencies to giving up any resources, and cautioned that iARPA could stymie innovation if it "stovepipes" research and development all in one place.
Nixon, while not addressing the specifics of the report, said that iARPA will centrally manage contracts and projects but that outside researchers and other agencies will handle much of the work. He also said that, following the DARPA model, the new agency would limit the tenure of its managers as a way of ensuring a constant flow of new talent and ideas.
Published in National Journal
Friday, August 03, 2007
America's declining influence over scientific and technological innovation has had "an enormous impact" on U.S. intelligence agencies, and "makes it more likely that our adversaries can employ the very same -- or perhaps even more advanced" -- science and technology than that available to the United States. That's the assessment from the Intelligence Science Board, which advises senior intelligence leaders.
In a report issued in November, parts of which were recently obtained by National Journal, the board warned that although the United States remains the world leader in some fields of science and engineering, that position is slipping -- and the slide imperils the intelligence community's ability to adapt to a dramatically changing technological landscape that terrorists are increasingly exploiting.
Terrorists have used the Internet, which has enabled a "worldwide diffusion" of knowledge, to gather and transmit scientific and technological know-how, leading to "incredible capabilities that our adversaries have exploited and used to further the goals of radical Islam," the report states. The assessment doesn't specify the capabilities, but terrorists are widely known to use the Internet to communicate with each other, disseminate propaganda, and publish information on building bombs and designing attacks.
The report, which is marked "For Official Use Only," was prepared for the Office of the Director of National Intelligence; National Journal obtained portions of it from a source outside that office. It casts the U.S. decline in overall research and development as an enormous challenge to the intelligence agencies' ability to collect information about new adversaries. The board calls for "an entirely new approach to increasing the contribution of" science and technology to intelligence capabilities, but it offers a bleak assessment of the progress made on that front. "Neither the intelligence community nor the S&T establishment," the report states, "has put forth viable strategies for accomplishing this change."
Against this backdrop, the DNI is launching a research-and-development effort to provide "breakthrough" technologies for the intelligence agencies, including sensors and communications devices that can help human spies collect more-detailed information. This research extends beyond the traditional realm of satellite imagery and eavesdropping to include an emphasis on devices that spies can use to narrowly target individuals and groups, and to anticipate their movements.
Beginning next year, R&D efforts that have application for many, or all, of the intelligence agencies will be centralized in a single outfit called the Intelligence Advanced Research Projects Activity and dubbed iARPA. Modeled after the Defense Department's hugely successful DARPA, which developed stealth aircraft and paved the way for the Internet, iARPA will pull together research funds from across the agencies to increase the chances of fielding new, better technologies, according to Steve Nixon, director of science and technology for the DNI.
The research agency will officially open its doors in October 2008. Its goal is to ensure that new technologies don't take the intelligence agencies by surprise, Nixon said. But it will also look for tools to surprise America's adversaries and to collect information about them in ways they haven't anticipated or don't understand. "We really need to pursue surprise in the intelligence community more than we have before," Nixon said.
During the Cold War, the United States deployed fleets of spy satellites to track Soviet military movements. But terrorists operate in a fundamentally different way than do nation states -- their network "resembles a metastasized cancer that has spread through the world body," according to the intelligence board. Terrorists are, by their very nature, harder to track and anticipate. For that reason, "precisely targeted intelligence represents the best way to combat spreading terrorism," and the intelligence community must do a better job of developing the tools to do that, the report states.
According to Nixon, iARPA will focus on improving intelligence collection and analysis. "We think we can do more to help analysts deal with information," he said. Today, much of the most valuable information about terrorism resides in the world of open sources -- the Internet, the media, and academia. The intelligence agencies have spent millions of dollars on efforts to keep this multiplicity of sources and huge volume of information from overwhelming their analysts.
The Intelligence Science Board emphasized that U.S. spies need to keep pace with the increasingly rapid development and deployment of new technologies but found that, in large measure, the government is in the dark about new R&D and unable to direct it.
The report starkly states: "The government now has far less control than before over the problems addressed, the selection of personnel to perform the work, and the locations where the work is carried out, and less knowledge than ever before of what work is actually being done." Decades ago, the federal government, and particularly military and space programs, were the primary drivers of American R&D. Over time, that balance shifted, and today the private sector directs almost all new research.
The new research unit will absorb research funds from three other agencies: the Disruptive Technology Office, once overseen by the National Security Agency and now under the DNI, which designs and vets computer programs that help analysts cope with large sets of data; a CIA research unit called the Intelligence Technology Innovation Center; and the National Technology Alliance, which focuses on a range of issues, including biological, chemical, and nuclear countermeasures. The alliance is housed at the National Geospatial Intelligence Agency, which produces imagery and detailed maps for military and homeland-security operations.
Some intelligence officials are hopeful about iARPA's potential. "It could be a good thing," said Mark Reardon, director of the National Technology Alliance. Founded in 1987, the NTI encourages small businesses, especially those not accustomed to working with the government, to bring new technologies to the intelligence community.
The CIA "has made a serious commitment of resources -- people and dollars -- to strengthen technology programs" at the community-wide level, meaning those that apply to more than one intelligence agency, said Paul Gimigliano, an agency spokesman. "Those resources would be at the heart of iARPA. But we still need, and will still have, a strong focus on research and innovation within the CIA itself," he said. The agency has a "full range of technical issues intrinsic to the agency's specialty, clandestine operations," he added.
Nixon said that the agencies whose funds iARPA is subsuming had worked on projects with outside applications but were all under pressure to meet their own needs. He emphasized that iARPA is not taking over all of the other agencies' research budgets. "We're talking about money that was only set aside for future community research."
The Intelligence Science Board urged caution when combining all research programs under one umbrella, arguing that doing so could stymie innovation and "maximize the probability of failure, not success" if the new efforts were inadequately funded. "That legacy would have agonizing consequences," the report stated.
The board also wrote that its members "enthusiastically support the iARPA concept" but asserted that existing research programs "lack adequate staffing and finances." (The intelligence research budgets are classified.) The board urged the director of national intelligence to use his authority to reallocate agency budgets and to fund iARPA "at a minimum of double the level of the existing organizations." A funding increase, the board argued, was needed to free up more money for new ideas and longer-term projects, "and avert poaching on programs already under way."
One former intelligence official, who asked not to be identified because Congress has yet to pass next year's intelligence budget, worried that Congress hasn't sufficiently funded iARPA, and questioned whether administration officials had pushed hard enough for more money. The official also described significant resistance at the individual agencies to giving up any resources, and cautioned that iARPA could stymie innovation if it "stovepipes" research and development all in one place.
Nixon, while not addressing the specifics of the report, said that iARPA will centrally manage contracts and projects but that outside researchers and other agencies will handle much of the work. He also said that, following the DARPA model, the new agency would limit the tenure of its managers as a way of ensuring a constant flow of new talent and ideas.
Published in National Journal
Labels: Director of National Intelligence, Intelligence, Technology, Terrorism
Full Article
The Terrorism Enhancement: An obscure law stretches the definition of terrorism, and metes out severe punishments.
Friday, July 13, 2007
There’s no doubt about it: Daniel McGowan is a criminal. In January 2001, he stood lookout while other members of a radical environmentalist group set fire to the offices of the Superior Lumber Co. in the tiny southwestern Oregon town of Glendale. In statement issued after the fire, McGowan justified the after-hours assault, calling Superior “a typical earth raper contributing to the ecological destruction of the Northwest.” Five months later, in the northern town of Clatskanie, McGowan and others torched a farm that grew hybrid poplar-cottonwood trees, which they denounced in another public message as “an ecological nightmare threatening native biodiversity in the ecosystem.” At the scene, McGowan painted the letters ELF, the acronym of the Earth Liberation Front, an underground band of economic saboteurs responsible for a string of arsons across the Northwest and in Colorado and Wyoming. McGowan, fully committed to ELF’s violent tactics, caused more than $2 million in property damage. He is, by the letter of the law and by his own admission of involvement in the two fires, an arsonist.
But is Daniel McGowan a terrorist? As far as the law is concerned, yes. Last month, a U.S. District Court judge in Eugene, Ore., ruled that McGowan set the fire at the tree farm to intimidate state governments. Specifically, the Clatskanie statement had declared, “Pending legislation in Oregon and Washington further criminalizing direct action in defense of the wild will not stop us and only highlights the fragility of the ecocidal empire.” That one sentence, the judge found, showed that McGowan meant to influence the conduct of government by intimidation or coercion, a particular legal standard that elevated his crime from simple arson to terrorism. Under the law, that gave the judge the authority to increase McGowan’s sentence to life in prison. In the end, however, she gave him seven years for his role in the arsons, partly because McGowan helped to persuade his co-conspirators to plead guilty.
McGowan is one of the latest defendants to come under the so-called terrorism enhancement, an obscure measure that allows judges to dramatically increase a person’s sentence if his or her offense “involved, or was intended to promote, a federal crime of terrorism,” as defined by Congress. Enacted in 1995 after the bombings of the World Trade Center and the Alfred P. Murrah Federal Building in Oklahoma City, the law aimed to stiffen sanctions rather than create new categories of crimes.
There is no comprehensive accounting of how often the enhancement has been used, but in the last eight years, federal prosecutors have successfully applied it against at least 57 individuals, according to the U.S. Sentencing Commission and court records. (There is no way to determine how many times prosecutors might have been unsuccessful.) Some of their crimes fit the traditional concept of terrorism, at least the one that the public has come to know in the wake of the 9/11 attacks: indiscriminant assaults on civilian populations, usually inspired by a fundamentalist religious ideology, that are intended to cause mass casualties.
However, an extensive examination by National Journal of cases where the enhancement was in play suggests that the government more often targets individuals who didn’t commit a religiously motivated act of terrorism, or who consciously avoided human casualties. Some defendants were driven by political outrage, and specifically targeted government facilities. But their crimes, while serious and violent, were covered by well-established definitions and punishments.
“We already have a very solid sentencing structure that punishes people for their crimes. This is beyond that,” says Deborah Buckman, a lawyer and an author for the professional journal American Law Reports Federal, who wrote a lengthy report on terrorism enhancements.
Stretching the Limits
In addition to McGowan, judges have imposed the enhancement on criminals for whom the label “terrorist” strikes some lawyers and judges as dubious. They include two men who set fire to an Internal Revenue Service office to protest tax collection; an anti-abortion activist who concocted a plan to blow up abortion clinics but never carried it out; a mentally ill man who telephoned bomb threats against local government offices and a television station; and a man who threatened a federal judge who had ruled against him in a trademark infringement case. Because of his plea deal, McGowan did not receive a tougher sentence despite the judge’s finding. But in other cases, the enhancement has dramatically increased the defendant’s prison time—sometimes more than threefold.
National Journal reviewed 35 cases that were publicly available through legal databases or court records. Fewer than half—13—involved individuals accused of supporting or conspiring with radical Islamic organizations. Three defendants were found to have actively engaged in formulating plots—one to attack the New York City subway system, the other the foiled attack on Los Angeles International Airport during New Year’s celebrations in 1999. A judge also applied the enhancement to John Walker Lindh’s conviction for supplying services to the Taliban regime, and he received a 20-year sentence.
The remaining defendants in those 13 cases provided “material support” to terrorist groups or engaged in preliminary plotting. In one case, the enhancement was applied to a young man who had backed out of a plan to blow up electrical substations in Florida. The government apparently has not sought the enhancement in some high-profile terrorism cases, including that of Zacarias Moussaoui, who was convicted of conspiracy in connection with the September 11 attacks and sentenced to life imprisonment without invoking the enhancement. However, prosecutors did use the law against the “Lackawanna Six,” a group of U.S. citizens in New York state who pleaded guilty to providing material support to Al Qaeda.
The application of the terrorism enhancement has largely been overlooked by the media, legal scholars, Congress, and terrorism analysts. The Justice Department is tight-lipped about how prosecutors determine when to seek it. Department officials declined National Journal’s request for an interview, and several federal prosecutors were reluctant to speak on the record about what motivates them to use it. Dean Boyd, the spokesman for Justice’s National Security Division, which oversees terrorism matters, said, “The decision by federal prosecutors to seek [the] enhancement depends on the facts and circumstances of each particular case. Ultimately, it is up to a federal judge to determine whether or not to apply the enhancement at sentencing.”
The enhancement has outraged some defense lawyers and judges, who see it as a government shortcut to label criminals as terrorists and to punish them in extraordinary ways. A judge, not a jury, decides whether the enhancement applies, based on a threshold of evidence lower than reasonable doubt. The enhancement automatically elevates a defendant’s criminal history—a key factor used to calculate sentences—to the highest possible level. It directs judges to increase the sentencing range at least “12 levels,” which can add 20 years. A defendant convicted of a relatively minor crime could suddenly find himself serving prison time on par with a hardened offender.
“It’s a very onerous enhancement, so when it applies, it’s really devastating,” says James Felman, a criminal defense lawyer and national authority on sentencing guidelines.
And it’s not just the enhancement’s severity that worries some experts. Courts have ruled that a judge can apply it even if a defendant wasn’t convicted of a terrorism act per se. The government need only convince a judge that the crime in question was aimed at the government and that it “involved, or was intended to promote” a specific act of terrorism—even one that was never carried out.
Congressional Confusion
Congress created the terrorism enhancement, not surprisingly, in response to terrorism. As early as 1991, but particularly after the World Trade Center bombing two years later, lawmakers and the Clinton administration realized that crimes involving terrorism—even if the act itself was already covered by statute—needed to be identified in law as such and accorded stiffer punishment. They wanted to account for the severity of the offenses, particularly the indiscriminant killing of civilians, and to deter future acts.
At the same time, lawmakers wanted to carefully define what qualified as terrorism. They had their work cut out for them. For starters, there was no crime of terrorism on the books. There still isn’t: Congress instead sought tougher sentences for a range of existing crimes when they were motivated by terrorist impulses.
Motive has always been a key to defining terrorism. That is, in fact, how society distinguishes the crime from other violent acts, such as murder or arson. Motivation and intent are also key factors in determining sentences. So, in the mid-1990s, Congress ordered the Sentencing Commission, which promulgates the guidelines, to include an anti-terrorism factor in the sentencing phase that accounted for specific crimes and required a basic motivation to affect, influence, or retaliate against government conduct.
Lawmakers gave explicit instructions that the enhancement had to meet two tests. First, there was the government-focused motive of the crime. That was broad, to be sure, but then Congress narrowed things a bit. The enhancement had to apply to one or more specific offenses enumerated in a section of the U.S. Code covering “acts of terrorism transcending national boundaries.” This was, in effect, a master list that Congress wanted judges to use. Today, it contains more than 55 discrete offenses that qualify as terrorism when the requisite motive is present, including destruction of aircraft; use of biological and chemical weapons; the burning or bombing of government property in a way that risks or causes death; providing material support to terrorists; attacks on energy facilities; and assassinating the president.
In so doing, lawmakers wanted to ensure that judges would not apply the terrorism label too broadly. In its conference report on the anti-terrorism legislation that established the sentencing enhancement, the House Judiciary Committee signaled Congress’s intent: “In order to keep a sentencing judge from assigning a terrorist label to crimes that are truly not terrorist, and to adequately punish the terrorist for his offense, it is appropriate to define the term.”
Something, it seems, got lost in translation. The Sentencing Commission’s final version of the enhancement includes a key phrase that never appears in the congressional record: “ … involved, or is intended to promote, a federal crime of terrorism.” On the basis of those 11 words, judges have applied the enhancement broadly—perhaps more broadly than Congress
intended.
An enhancement for “international terrorism,” which had been on the books less than a year, did contain the phrase “involved or is intended to promote.” But there is no indication that Congress intended it to apply to the subsequent version that more specifically defined a crime of terrorism. Still, based on this arguably broader guideline, judges have consistently ruled that a defendant need not be convicted of one of the enumerated crimes of terrorism for the enhancement to apply, so long as the motivation is there. These judges have exhaustively researched the definitions of “involved” and “intended to promote,” pulling out case law, precedent, and even the dictionary.
A Landmark Case
The U.S. Court of Appeals for the 6th Circuit upheld this reading of the guidelines in a landmark enhancement case, which it decided only a few months after the September 11 attacks. Randy Graham, a Michigan marijuana farmer and member of the North American Militia, had been convicted of conspiracy against the United States, as well as various weapons and drug violations. Graham had plotted to launch a “first strike” on the U.S. government by attacking various communications, transportation, and energy facilities, and killing certain federal officials. A District Court judge applied the enhancement to one of his convictions—for an offense not contained in the list of terrorism crimes—finding that Graham intended to promote an act of terrorism by plotting to attack various federal facilities. (He never carried out the plan.) The underlying offense carried a maximum penalty of five years in prison; the judge boosted Graham’s sentence to 55 years.
In a vigorous dissent, Judge Avern Cohn said that Congress never intended for people not convicted of a crime of terrorism to be subject to the enhancement. Senators, in their final conference report, gave the Sentencing Commission clear instructions: The new provision was “applicable only to those specifically listed federal crimes of terrorism, upon conviction of those crimes with the necessary motivational element.” Cohn said he was at a loss to determine why the Sentencing Commission included “involved, or was intended to promote” in the final version, because Congress never instructed it to do so. As he saw it, the commission had gotten it wrong, and the judge who sentenced Graham had made the same mistake.
Cohn had no sympathy for Graham. He wrote that his disagreement on the enhancement issue “should not be considered in any way a denigration of Graham’s crimes or in any way an attempt to simply ameliorate the severity of his sentence.” But to apply the enhancement “effectively labels Graham a terrorist and his activity as displayed in the record as terroristic activity,” Cohn wrote. And that was “grossly contrary to the language…defining a ‘federal crime of terrorism,’ as well as the congressional intent to keep the definition narrow.”
Even with the shock of the attacks on the World Trade Center and the Pentagon still fresh, Cohn found little comparison with Graham’s conduct. “Graham’s actions depict grossly less offensive, and qualitatively different, conduct than that displayed on September 11, 2001.” Cohn added that Congress’s concern in drafting the enhancement was “much like the concern of the delegates to the Constitutional Convention of 1787 over the definition of ‘treason,’ that ‘terrorism’ being a phrase which carries far-reaching connotations … is not to be used indiscriminately and must be carefully defined.”
Critics of the terrorism enhancement have seized on this issue of congressional intent to argue that the courts have veered into forbidden territory. Whether Congress agrees is hard to gauge. The lawmakers and staff involved in creating the enhancement have either retired or taken new jobs. Several former House Judiciary Committee aides contacted by National Journal couldn’t recall the details of the proceedings. By all accounts, Congress hasn’t examined use of the terrorism enhancement since it created it more than a decade ago.
The Punishment and the Crime
Many lawyers who have argued against the law had never heard of it until their clients were facing long prison terms. Sometimes they won partial victories.
William Mason, a criminal defense lawyer in Columbus, Ga., represented Eddie Garey, who was convicted of making several telephone bomb threats involving buildings in Macon. (The trial was moved to Columbus, 100 miles away, because of extensive publicity.) Garey objected to the government’s recommendation that the terrorism enhancement be applied. It was a first for Mason, his court-appointed attorney. “We don’t get any terrorism cases in Columbus, Georgia,” he says.
A jury convicted Garey, whom Mason describes as “mentally ill,” of 27 counts arising from threats to blow up the Macon City Hall, a shopping mall, and a local television station. According to the indictment, over a nine-day period in September 2003, Garey called the threats in to the local 911 center, altering his voice and making demands for cash. Authorities traced the calls to Garey’s home and caught him in the act. “My client was arrested standing in the hallway of his house buck naked making a 911 call,” Mason says.
Garey’s presentencing report, prepared by a local probation officer, recommended the enhancement because he was convicted of a crime involving the use of a weapon of mass destruction—an enumerated crime of terrorism—and because evidence at trial showed that Garey attempted to influence the conduct of government. The requisite elements were all there. Garey already faced a lengthy sentence based on the seriousness of his crimes, but the enhancement elevated his criminal history to the highest level. The probation report recommended a life sentence.
U.S. District Judge Clay D. Land found that a life sentence technically fit the guidelines. But there was a bigger principle at stake, he said, namely the overarching law that sentences must be based upon “the nature and circumstance of the offense and characteristics of the defendant.” The law directs a judge to impose a sentence that metes out appropriate punishment but not one that is more severe than necessary. In Garey’s case, a life
Friday, July 13, 2007
There’s no doubt about it: Daniel McGowan is a criminal. In January 2001, he stood lookout while other members of a radical environmentalist group set fire to the offices of the Superior Lumber Co. in the tiny southwestern Oregon town of Glendale. In statement issued after the fire, McGowan justified the after-hours assault, calling Superior “a typical earth raper contributing to the ecological destruction of the Northwest.” Five months later, in the northern town of Clatskanie, McGowan and others torched a farm that grew hybrid poplar-cottonwood trees, which they denounced in another public message as “an ecological nightmare threatening native biodiversity in the ecosystem.” At the scene, McGowan painted the letters ELF, the acronym of the Earth Liberation Front, an underground band of economic saboteurs responsible for a string of arsons across the Northwest and in Colorado and Wyoming. McGowan, fully committed to ELF’s violent tactics, caused more than $2 million in property damage. He is, by the letter of the law and by his own admission of involvement in the two fires, an arsonist.
But is Daniel McGowan a terrorist? As far as the law is concerned, yes. Last month, a U.S. District Court judge in Eugene, Ore., ruled that McGowan set the fire at the tree farm to intimidate state governments. Specifically, the Clatskanie statement had declared, “Pending legislation in Oregon and Washington further criminalizing direct action in defense of the wild will not stop us and only highlights the fragility of the ecocidal empire.” That one sentence, the judge found, showed that McGowan meant to influence the conduct of government by intimidation or coercion, a particular legal standard that elevated his crime from simple arson to terrorism. Under the law, that gave the judge the authority to increase McGowan’s sentence to life in prison. In the end, however, she gave him seven years for his role in the arsons, partly because McGowan helped to persuade his co-conspirators to plead guilty.
McGowan is one of the latest defendants to come under the so-called terrorism enhancement, an obscure measure that allows judges to dramatically increase a person’s sentence if his or her offense “involved, or was intended to promote, a federal crime of terrorism,” as defined by Congress. Enacted in 1995 after the bombings of the World Trade Center and the Alfred P. Murrah Federal Building in Oklahoma City, the law aimed to stiffen sanctions rather than create new categories of crimes.
There is no comprehensive accounting of how often the enhancement has been used, but in the last eight years, federal prosecutors have successfully applied it against at least 57 individuals, according to the U.S. Sentencing Commission and court records. (There is no way to determine how many times prosecutors might have been unsuccessful.) Some of their crimes fit the traditional concept of terrorism, at least the one that the public has come to know in the wake of the 9/11 attacks: indiscriminant assaults on civilian populations, usually inspired by a fundamentalist religious ideology, that are intended to cause mass casualties.
However, an extensive examination by National Journal of cases where the enhancement was in play suggests that the government more often targets individuals who didn’t commit a religiously motivated act of terrorism, or who consciously avoided human casualties. Some defendants were driven by political outrage, and specifically targeted government facilities. But their crimes, while serious and violent, were covered by well-established definitions and punishments.
“We already have a very solid sentencing structure that punishes people for their crimes. This is beyond that,” says Deborah Buckman, a lawyer and an author for the professional journal American Law Reports Federal, who wrote a lengthy report on terrorism enhancements.
Stretching the Limits
In addition to McGowan, judges have imposed the enhancement on criminals for whom the label “terrorist” strikes some lawyers and judges as dubious. They include two men who set fire to an Internal Revenue Service office to protest tax collection; an anti-abortion activist who concocted a plan to blow up abortion clinics but never carried it out; a mentally ill man who telephoned bomb threats against local government offices and a television station; and a man who threatened a federal judge who had ruled against him in a trademark infringement case. Because of his plea deal, McGowan did not receive a tougher sentence despite the judge’s finding. But in other cases, the enhancement has dramatically increased the defendant’s prison time—sometimes more than threefold.
National Journal reviewed 35 cases that were publicly available through legal databases or court records. Fewer than half—13—involved individuals accused of supporting or conspiring with radical Islamic organizations. Three defendants were found to have actively engaged in formulating plots—one to attack the New York City subway system, the other the foiled attack on Los Angeles International Airport during New Year’s celebrations in 1999. A judge also applied the enhancement to John Walker Lindh’s conviction for supplying services to the Taliban regime, and he received a 20-year sentence.
The remaining defendants in those 13 cases provided “material support” to terrorist groups or engaged in preliminary plotting. In one case, the enhancement was applied to a young man who had backed out of a plan to blow up electrical substations in Florida. The government apparently has not sought the enhancement in some high-profile terrorism cases, including that of Zacarias Moussaoui, who was convicted of conspiracy in connection with the September 11 attacks and sentenced to life imprisonment without invoking the enhancement. However, prosecutors did use the law against the “Lackawanna Six,” a group of U.S. citizens in New York state who pleaded guilty to providing material support to Al Qaeda.
The application of the terrorism enhancement has largely been overlooked by the media, legal scholars, Congress, and terrorism analysts. The Justice Department is tight-lipped about how prosecutors determine when to seek it. Department officials declined National Journal’s request for an interview, and several federal prosecutors were reluctant to speak on the record about what motivates them to use it. Dean Boyd, the spokesman for Justice’s National Security Division, which oversees terrorism matters, said, “The decision by federal prosecutors to seek [the] enhancement depends on the facts and circumstances of each particular case. Ultimately, it is up to a federal judge to determine whether or not to apply the enhancement at sentencing.”
The enhancement has outraged some defense lawyers and judges, who see it as a government shortcut to label criminals as terrorists and to punish them in extraordinary ways. A judge, not a jury, decides whether the enhancement applies, based on a threshold of evidence lower than reasonable doubt. The enhancement automatically elevates a defendant’s criminal history—a key factor used to calculate sentences—to the highest possible level. It directs judges to increase the sentencing range at least “12 levels,” which can add 20 years. A defendant convicted of a relatively minor crime could suddenly find himself serving prison time on par with a hardened offender.
“It’s a very onerous enhancement, so when it applies, it’s really devastating,” says James Felman, a criminal defense lawyer and national authority on sentencing guidelines.
And it’s not just the enhancement’s severity that worries some experts. Courts have ruled that a judge can apply it even if a defendant wasn’t convicted of a terrorism act per se. The government need only convince a judge that the crime in question was aimed at the government and that it “involved, or was intended to promote” a specific act of terrorism—even one that was never carried out.
Congressional Confusion
Congress created the terrorism enhancement, not surprisingly, in response to terrorism. As early as 1991, but particularly after the World Trade Center bombing two years later, lawmakers and the Clinton administration realized that crimes involving terrorism—even if the act itself was already covered by statute—needed to be identified in law as such and accorded stiffer punishment. They wanted to account for the severity of the offenses, particularly the indiscriminant killing of civilians, and to deter future acts.
At the same time, lawmakers wanted to carefully define what qualified as terrorism. They had their work cut out for them. For starters, there was no crime of terrorism on the books. There still isn’t: Congress instead sought tougher sentences for a range of existing crimes when they were motivated by terrorist impulses.
Motive has always been a key to defining terrorism. That is, in fact, how society distinguishes the crime from other violent acts, such as murder or arson. Motivation and intent are also key factors in determining sentences. So, in the mid-1990s, Congress ordered the Sentencing Commission, which promulgates the guidelines, to include an anti-terrorism factor in the sentencing phase that accounted for specific crimes and required a basic motivation to affect, influence, or retaliate against government conduct.
Lawmakers gave explicit instructions that the enhancement had to meet two tests. First, there was the government-focused motive of the crime. That was broad, to be sure, but then Congress narrowed things a bit. The enhancement had to apply to one or more specific offenses enumerated in a section of the U.S. Code covering “acts of terrorism transcending national boundaries.” This was, in effect, a master list that Congress wanted judges to use. Today, it contains more than 55 discrete offenses that qualify as terrorism when the requisite motive is present, including destruction of aircraft; use of biological and chemical weapons; the burning or bombing of government property in a way that risks or causes death; providing material support to terrorists; attacks on energy facilities; and assassinating the president.
In so doing, lawmakers wanted to ensure that judges would not apply the terrorism label too broadly. In its conference report on the anti-terrorism legislation that established the sentencing enhancement, the House Judiciary Committee signaled Congress’s intent: “In order to keep a sentencing judge from assigning a terrorist label to crimes that are truly not terrorist, and to adequately punish the terrorist for his offense, it is appropriate to define the term.”
Something, it seems, got lost in translation. The Sentencing Commission’s final version of the enhancement includes a key phrase that never appears in the congressional record: “ … involved, or is intended to promote, a federal crime of terrorism.” On the basis of those 11 words, judges have applied the enhancement broadly—perhaps more broadly than Congress
intended.
An enhancement for “international terrorism,” which had been on the books less than a year, did contain the phrase “involved or is intended to promote.” But there is no indication that Congress intended it to apply to the subsequent version that more specifically defined a crime of terrorism. Still, based on this arguably broader guideline, judges have consistently ruled that a defendant need not be convicted of one of the enumerated crimes of terrorism for the enhancement to apply, so long as the motivation is there. These judges have exhaustively researched the definitions of “involved” and “intended to promote,” pulling out case law, precedent, and even the dictionary.
A Landmark Case
The U.S. Court of Appeals for the 6th Circuit upheld this reading of the guidelines in a landmark enhancement case, which it decided only a few months after the September 11 attacks. Randy Graham, a Michigan marijuana farmer and member of the North American Militia, had been convicted of conspiracy against the United States, as well as various weapons and drug violations. Graham had plotted to launch a “first strike” on the U.S. government by attacking various communications, transportation, and energy facilities, and killing certain federal officials. A District Court judge applied the enhancement to one of his convictions—for an offense not contained in the list of terrorism crimes—finding that Graham intended to promote an act of terrorism by plotting to attack various federal facilities. (He never carried out the plan.) The underlying offense carried a maximum penalty of five years in prison; the judge boosted Graham’s sentence to 55 years.
In a vigorous dissent, Judge Avern Cohn said that Congress never intended for people not convicted of a crime of terrorism to be subject to the enhancement. Senators, in their final conference report, gave the Sentencing Commission clear instructions: The new provision was “applicable only to those specifically listed federal crimes of terrorism, upon conviction of those crimes with the necessary motivational element.” Cohn said he was at a loss to determine why the Sentencing Commission included “involved, or was intended to promote” in the final version, because Congress never instructed it to do so. As he saw it, the commission had gotten it wrong, and the judge who sentenced Graham had made the same mistake.
Cohn had no sympathy for Graham. He wrote that his disagreement on the enhancement issue “should not be considered in any way a denigration of Graham’s crimes or in any way an attempt to simply ameliorate the severity of his sentence.” But to apply the enhancement “effectively labels Graham a terrorist and his activity as displayed in the record as terroristic activity,” Cohn wrote. And that was “grossly contrary to the language…defining a ‘federal crime of terrorism,’ as well as the congressional intent to keep the definition narrow.”
Even with the shock of the attacks on the World Trade Center and the Pentagon still fresh, Cohn found little comparison with Graham’s conduct. “Graham’s actions depict grossly less offensive, and qualitatively different, conduct than that displayed on September 11, 2001.” Cohn added that Congress’s concern in drafting the enhancement was “much like the concern of the delegates to the Constitutional Convention of 1787 over the definition of ‘treason,’ that ‘terrorism’ being a phrase which carries far-reaching connotations … is not to be used indiscriminately and must be carefully defined.”
Critics of the terrorism enhancement have seized on this issue of congressional intent to argue that the courts have veered into forbidden territory. Whether Congress agrees is hard to gauge. The lawmakers and staff involved in creating the enhancement have either retired or taken new jobs. Several former House Judiciary Committee aides contacted by National Journal couldn’t recall the details of the proceedings. By all accounts, Congress hasn’t examined use of the terrorism enhancement since it created it more than a decade ago.
The Punishment and the Crime
Many lawyers who have argued against the law had never heard of it until their clients were facing long prison terms. Sometimes they won partial victories.
William Mason, a criminal defense lawyer in Columbus, Ga., represented Eddie Garey, who was convicted of making several telephone bomb threats involving buildings in Macon. (The trial was moved to Columbus, 100 miles away, because of extensive publicity.) Garey objected to the government’s recommendation that the terrorism enhancement be applied. It was a first for Mason, his court-appointed attorney. “We don’t get any terrorism cases in Columbus, Georgia,” he says.
A jury convicted Garey, whom Mason describes as “mentally ill,” of 27 counts arising from threats to blow up the Macon City Hall, a shopping mall, and a local television station. According to the indictment, over a nine-day period in September 2003, Garey called the threats in to the local 911 center, altering his voice and making demands for cash. Authorities traced the calls to Garey’s home and caught him in the act. “My client was arrested standing in the hallway of his house buck naked making a 911 call,” Mason says.
Garey’s presentencing report, prepared by a local probation officer, recommended the enhancement because he was convicted of a crime involving the use of a weapon of mass destruction—an enumerated crime of terrorism—and because evidence at trial showed that Garey attempted to influence the conduct of government. The requisite elements were all there. Garey already faced a lengthy sentence based on the seriousness of his crimes, but the enhancement elevated his criminal history to the highest level. The probation report recommended a life sentence.
U.S. District Judge Clay D. Land found that a life sentence technically fit the guidelines. But there was a bigger principle at stake, he said, namely the overarching law that sentences must be based upon “the nature and circumstance of the offense and characteristics of the defendant.” The law directs a judge to impose a sentence that metes out appropriate punishment but not one that is more severe than necessary. In Garey’s case, a life