As I got sidetracked and it has been awhile, I am reposting the entire
summary along with the second half, which I just finished.
Typos are all mine.
:
The American Bar Association Standing Committee on Law and
National Security - Law Enforcement and Intelligence Conference -
Debrief
The ABA's Standing Committee on Law and National Security is one
of the more successful Committees to come out of the ABA. It's
conferences and early morning breakfast briefings and lectures
are attended by some of the leading experts in the fields of
National Security, Law Enforcement, and Intelligence and no small
number of the beltway power elite.
I'm not sure if many people outside the legal community
understand the degree to which attorney's have impacted and
thrived in both the law enforcement and the intelligence
communities. In fact many, if not most, CIA case officers and
station chiefs, as well as field operatives, are attorneys or
have law degrees. Other intelligence organizations are no
different. It should come as little surprise then if a committee
of the ABA should happen to attract a surprising amount of
intelligence professionals.
This conference was no exception. Spooks, Feds, Legislators, and
even a few Kooks were in attendance. Members of the British,
American, Canadian, and German intelligence communities were in
attendance. A colleague and I attended the majority of the
conference and except where noted the reflections below are a
summary of our collective notes and thoughts on the subject
matter discussed. I'm taking a broad view of relevance to
cypherpunks, but I will omit that which seems clearly not of
direct or somewhat indirect interest.
Part One:
A Changed World for Law Enforcement and Intelligence in the 21st
Century
Thursday, September 19
7:45 AM Registration and Continental Breakfast
8:15 AM Welcome Remarks
Paul Schott Stevens
Chair
ABA Standing Committee on Law and National Security
8:30 AM I. An Overview of a Changing World.
*The Traditional Relationship of Law Enforcement, Foreign
Intelligence and National Security (1945-1995):
*How Have Other nations Balanced Legal and National Security
Requirements and Responded to a Changed World.
*The Changed Threats to U.S. National Security- New Problems and
Priorities
Elizabeth R. Rindskopf
Bryan Cave
Former General Counsel, Central Intelligence Agency
Member, Standing Committee on Law and National Security
Ms. Rindskopf outlined the three classic "periods" of
intelligence community and mission development in U.S. history
and set the stage for the discussions to follow.
Interesting subjects she did touch on included section 715 of the
Senate intelligence bill. The section allows the law enforcement
community to request assistance from foreign intelligence in
collection efforts on foreigners outside of the United States.
The BNC and BCCI scandals were discussed as a backdrop of the
hazards of law enforcement and intelligence separation.
Zoe Baird
Senior Vice President and General Counsel
Atena Life and Casualty Company
Member, Standing Committee on Law and National Security.
Ms. Baird discussed the dangers presented by globalization and
new technologies. She highlighted the point that crime
globalization often follows corporate globalization and the
manner in which a single individual's ability to cause harm has
increased in scope (The NYNEX Hack). Also interesting was her
discussion of the manner in which the more organized elements of
criminal activity worked to take advantage of the very open
society in the United States (Fund raising, publications,
anonymous communications).
Those activities once merely violations of criminal law are, she
argued, now increasingly national security concerns and that
national security events impact elections in very dramatic and
direct ways (Atlanta and Israel bombings as examples).
Crime, she pointed out, gets about an 80% response in the polls,
where as "National Security and Foreign Policy" get perhaps a 3%
response. Merging these elements together serves an
administration. She also pointed out the trend toward making
these issues generally more accessible to the public.
(Specifically by use of language. "Transnational threats"- which
was a term of art for non-state terrorism and organized crime-
becomes "Global Crime" or "Global Lawlessness."
Ms. Baird ended by asking how the firewalls between Law
Enforcement and Intelligence could be rebuilt with these new
considerations in mind.
I considered her a balanced cynic. She managed to get across
some very realpolitik notions without much murmuring from the
(limited) civil libertarian crowd.
David Bickford
Former Legal Adviser to the British Intelligence Services (MI5-
MI6)
Mr. Bickford has in past served as a conduit between British
Intelligence services and the United States. He is well known
and respected among the American and European Intelligence
communities. Knowing Mr. Bickford I can also say that he pays a
great deal of attention to who his audience is and speaks to
their interests with disarming accuracy. His discussion is
important because it is a good insight into what the policy
makers in the United States are looking at.
He began by highlighting the new international nature of crime.
No longer is it confined to power blocs. "Multi-jurisdictional
illegality" is increasingly a concern. New highspeed
communications channels are a contributor and organized crime
groups are possessed of extremely advanced administration
abilities. They are leaner and meaner because they use
computers, encryption, communications, and use up less resources
in administration. The ability to make the organization smaller
also makes it harder to penetrate. In this environment,
international cooperation is essential. He called for more
active and expansive extraterritorial jurisdiction for certain
crimes, and lamented his own country's lack of enthusiasm for
this concept though they are slowly "coming around."
His solutions included the labeling of organizations, even when
they are not geographically based, as "illegal international
organizations" and using all means to combat them. He envisions
a wide cooperation by the G7 to accomplish this, leaving such
organizations with no safe haven. Sanctions regimes formerly
employed only as against "rogue states" and countries in disfavor
should be employed to destroy these illegal international
organizations wherever they are. He indicated that the other G7
states should build on the recent Clinton Executive Order which
seizes the assets of such organizations which may be located in
the jurisdictions of the G7. He called for measures to deny
these assets access to the major securities and international
finance markets and proposed that only organizations like the NSA
could confront and complete these tasks. Intelligence, he
argued, is the only organization that can keep up with
international crime and as a result there should be developed
court processes to introduce intelligence into criminal cases
while protecting the more sensitive information (sources and
methods) as irrelevant. "Evil men" have taken an "early lead."
$500 billion a year comes out of the United States alone in money
laundering. 400 billion in assets is attributed to drug cartels,
80% of which are Cali Cartel assets. There are over 250
international Russian criminal organizations currently operating.
Mr. Phillip Heymann
James Barr Ames Professor and Director,
Center for Criminal Justice
Harvard Law School
Member: Standing Committee on Law and National Security
[Didn't find his comments particularly relevant]
II. Political Challenges in the World Environment
*Breakup of the U.S.S.R.
*Loss of National Sovereignty and Control by Nation States
*Erosion of National Legal Systems
Military Threats at the Subnational Level:
The Terrorism Dilemma
(This looked very much like the section given to the Soviet
Analysts, who no longer have much of a job to do).
Mr. Morton H. Halperin
Senior Fellow
Council on Foreign Relations
Former Special Assistant to the President and
Senior Director for Democracy, National Security Council
[Canceled]
Mr. Peter Rodman
Director, National Security Programs
Nixon Center for Peace and Freedom
and Former Deputy Assistant to the President for National
Security Affairs
Mr. Rodman discussed the new "trans-national areas." Terrorism,
corruption, economic and criminal activity. He discussed the
side effects of collapsing empires (the rise of organized crime
to enforce property and contract rights that cannot be enforced
by the government, the shift of power to the local from the
regional and executive areas) and discussed, in this context, the
importance of avoiding petty squabbles over issues like trade and
the like because they threaten the more important strategic
cooperation that will be necessary to battle global and
transnational criminal activity.
Ms. Jessica E. Stern
Consultant
Lawrence Livermore National Laboraory and
Former Director, Russian, Uklrainian and Eursian Affairs,
National Security Council
Ms. Stern discussed the severe proliferation problems presented
by a weak Russia, particularly the weakening of MPCA (Material
Protection Control and Accounting).
11:15 AM III. Technical and Practical Changes in the Relevant
World Environment
*Global Technologies Emerge
*"Equal Access" to Advanced Technology by State and Private
Actors
* Change in Size, Type and Location of National Security Threats:
Challenge for Modern Intelligence and Law Enforcement
Stewart Baker
Steptoe and Johnson
Former General Counsel, National Security Agency
Member, Standing Committee on Law and National Security
Mr. Baker's remarks were brief, but he discussed the evening of
the odds with respect to government and private organizations
caused by technology.
Admiral William O.. Studeman
United States Navy (retired)
Former Acting Director of Central Intelligence
Admiral Studeman discussed "Information Warfare," pointing out
specifically that advanced societies were more vulnerable because
of their financial, banking and revenue system's dependence on
computer. Power, air traffic control, public safety and media
were also mentioned in passing.
Admiral Studeman went on to call for more intense secrecy in law
enforcement (not intelligence) as to collection methods and new
technology. He called passionately for funding for the DigiTel
program as well as a "key escrow" policy.
Anthony Oettiger
Chairman, Program on Information Resources Policy
Harvard University
Mr. Oettinger was perhaps the only moderate speaker in the
conference. He discussed Executive Order 13010 (establishing the
Critical Infrastructure Protection organization) and called for
more private sector input in policy making (Banks, markets,
businesses want to make their own security arrangements, and are
not very interested in paying much attention to the suits at
their door who claim 'Hi, we're from the government, we are here
to help.'
He pointed out the difference between the movements in Airline
Security (which is drifting from privately maintained, to
publicly maintained) and Internet security (which is doing the
reverse).
He called for reasoned response to the new threats which did not
commit expensive intelligence and law enforcement resources to
combat the single hacker. Proper threat assessing is important,
and intelligence should be used to pinpoint the weak points.
Walter Pincus
National Security Affairs Reporter
The Washington Post
Mr. Pincus asked if (a lovely analogy to chicken little and
osterages with their heads in the sand). His most interesting
remarks regarded the wisdom of dedicating such substantial
resources to repell non-strategic efforts to disrupt networks.
(Hackers, lone gunmen, etc.) He questioned. Doesn't, afterall,
a strategic attack require much more preperation? Should we
really allow the personality of e.g., Louis Freeh, who has the
capital dazzled from his glow, to direct these resources?
12:30 PM Luncheon
John Deutche
Director, Central Intelligence Agency
[Cancelled in the wake of the investigation into alleged CIA drug
connections in California]
Part Two:
The Implications of a Changed World for a Set of Critical
Decisions
2:00 PM IV. Protections Against New High Tech Dangers; Problems
of Encryption, Information Warfare and Computer Theft
Stewart Baker:
Mr. Baker, considering what his position once was, was surprisingly
mellow. There wasn't much warning for law enforcement, he commented.
Cryptography lends itself to criminal activity and subversive warfare.
It's hard to reherse attacks because you have to do it on real live
systems.
For defenses, he suggests the following:
1. Monitor and protect government systems.
2. Launch attacks, both on our systems and on others. (!)
3. Take note that attacks on private systems are the most worrisome.
(Financial institutions, exchanges, utilities)
There is a manifest mistrust between government and private sector
business. Private parties are unlikely to accept help from government.
The liklihood of government systems being adopted is slim.
Banks, for example, make high security expenditures and the choice of
system is best left up to them. (!)
There are, however, market failures in the private sector.
1. No one in the private sector bothers to protect against a simutanious
attack on power and telephone service. This is HIGHLY unlikely to happen
by chance, but by design it is almost certain to happen in an attack.
2. Reporting of incidents. Incidents are rarely if ever reported by
private sector interests. (Flight of funds on reporting, bank runs, lost
of customers all make reporting incidents difficult to justify).
Collection or REQUIRED disclosure, Mr. Baker argues, is required.
3. Some minimum recovery mechanism is required. There is no independent
information system for private sector interests because there is very
little financial incentive to build one. How will the civilian system be
recovered after an attack?
Lee Bollinger
Provost
Dartmouth College
Mr. Bollinger discussed 1st Amendment issues. He had, however, a strange
take on the way they should be broken down. Namely:
Pro Crypto: ITAR as prior restraint. Yes the 1st Amendment is painful
sometimes. So what? This is the cost of a freedom of speech culture.
Anti Crypto: This is a foreign affaris matter. Courts are not fit to make
analysis here. This is not the pentagon. It is "Technical" data and
therefore outside 1st Amendment scope.
Kate Martin
Director, Center for National Security Studies.
The Center for National Security Studies used to be a section of the
ACLU, but has since broken off and gone its own way.
Ms. Martin pointed out that the FBI shouldn't WANT to get involved in the
sources and methods problems that taking intelligence information would
present. The confrontation clause will present problems for the FBI if it
gets information which fall under intelligence "Sources and methods" and
then tries to use it in court. (Greymail - Where the defense calls for
sensitive records necessary to the defense and if they get a ruling in
favor of the discovery, the government either has to make national
security documents public or drop the charges).
She also pointed out that in the current draft of the anti-terrorist bill,
the FBI can "task" the CIA to make collections abroad. The CIA could then
break into a foreign residence, and look for evidence, find evidence
implicating a previously unknown American citizen in e.g., drug smuggling.
The FBI could prosecute the evidence, which was obtained without warrant
and would constitute illegal search in the United States, and the U.S.
Citizen would have, under current 4th amendment standards, NO STANDING to
move for exclusion of the evidence found by the CIA.
Howard Shapiro
General Counsel
Federal Bureau of Investigation
Mr. Shapiro was quite slippery. He spent most of his time dodging Ms.
Martin's barbs by indicating that the FBI tended to err in favor of
applying the constitution even in extraterratorial cases (Achille(?) Laro,
where the terrorists were read their rights even though outside of U.S.
Territorial Jursidiction) and the the FBI would respect limits even if not
required to. Rather weak argument, quite well presented.
Suzanne Spaulding
General Counsel
U.S. Senate Select Committee on Intelligence
[Not Present - Ms. Spaulding was doing markup on the new Intel Bill (Since
signed) at the time, though she arrived later]
4:45 Adjournment
6:30 Reception and Dinner
Speaker Ernest R. May
Charles Warren Professor of History
The John F. Kennedy School of Government
Harvard University
[My associate and I were forced to miss this session]
Friday, September 20, 1996
8:00 AM Continental Breakfast
8:30 Overview
Philip B. Heymann
8:40 VI. New Uses for Intelligence as a Necessary Arm of U.S. Policy
Presentation:
R. James Woolsey
Shea & Gardner
Former Director of Central Intelligence
Mr. Woolsey made some very interesting comments. He called rather
passionately for "Key Escrow," more potent funding for "DigiTel" but also
suggested that perhaps the dictator that was using modern encryption
"might not be hiding as much as he thinks he is."
10:15 AM VII. Law Enforcement and Intelligence
* Can Intelligence Technical Capabilities Better Support Law Enforcement
Objectives: What are the Legal and Practical Limits?
* Should Covert Action and Technical Intelligence Gathering be Available
to Law Enforcement?
* Rethinking Jurisdicitonal Lines, Roles and Responsibilites: Are New
Structures Required?
* The Law Enforcement and Intelligence Relationship; Past, Present and
Future.
* Can Common Standards be Achieved for Collection and Oversight?
Moderator: The Honorable John H. Shenefield
Morgan, Lewis & Bockius
(Introductions and short statements only)
Presentations:
Mark M. Richard
Deputy Assistant Attorney General
Criminal Division
U.S. Department of Justice
Mostly discussion of anti-drug efforts but a few interesting comments:
Internet banking is on the radar screen and there may soon be an
entirely seperate department of DoJ which addresses internet banking
crime. DoJ is clearly leading the effort here. Intelligence agencies
less so.
Jeffrey H. Smith
General Counsel
Central Intelligence Agency
(Soon to return to Arnold and Porter)
A few rather vague quesitons came up about anonymous transactions and
internet came up. The Attorney general "is putting together structures to
attack that." Rather ominous.
Michael A. Vatis
Associate Deputy Attorney General
Office of the Deputy Attorney General
U.S. Department of Justice
Vatis is a young shining star in Justice, a Gorelick protege and likely to
be the most dangerous individual to cypherpunks in the coming years if he
stays with justice. Vatis understands remailers, encryption, PGP, even
mentioned "mixmaster" and so forth specificlly. He is sly, knows just
when to shut up and is probably the front man on the DoJ attempt to attack
remailers and anonymous communications in general. He is a real problem
for cypherpunks and the party is clearly over.
Jonathan M. Winer
Deputy Assistant Secretary of State for International Narcotics and Law
Enforcement Affaris
Winer's points of interest to the list were money laundering related. The
tactic, he indicated, is to get foreign governments to adopt legislation
to make money launderers move elsewhere. (The carrot and the stick
approach is used). He did acknowledge the need for money laundering in
the intelligence community, and urged, vaguely, for cooperation as money
launding regulation "is an increasingly important priority."
He discussed, vaguely, the CIA "tasking" issues brough up by Ms. Martin.
11:45 AM Luncheon
Speaker:
Jamie S. Gorelick
Deputy Attorney General of the United States
Ms. Gorelick most tooted everyone's horn for the increasing cooperation
that between the various communities.
-end-
--
I hate lightning - finger for public key - Vote Monarchist
unicorn(a)schloss.li
