ABA Conference on Law Enfrocement and Intelligence - Debrief

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@schloss.li