Stew Baker Stands in Rain, Stripes Bleed Through Whitewash...

Fri Oct 5 15:42:14 EDT 2001

--- begin forwarded text

Status:  U
Date: Fri, 05 Oct 2001 13:52:38 -0500
To: believer at telepath.com
From: Robert Huddleston <cabhop at highfiber.com> (by way of
believer at telepath.com)
Subject: ip: Don't give up security for a false sense of liberty BY
  STEWART  BAKER

http://opinionjournal.com/extra/?id=95001279
OpinionJournal
Extra

TRADE-OFFS
Dangerous Secrets
Don't give up security for a false sense of liberty.
BY STEWART BAKER
Friday, October 5, 2001 12:01 a.m. EDT

For weeks, pundits have been warning us against new legislation that would
sacrifice essential liberties in the name of a false security. Judging by
the reaction to the Bush administration's antiterrorism bill, the real
question is whether we'll be sacrificing essential security in the name of
false civil-liberties concerns.

Perhaps the most pointed example of this is Congress's handling of the
administration proposal to let law-enforcement authorities share grand jury
information with national security and intelligence agencies. Senate
negotiators stalled the entire bill over this issue, and the House has
already modified the proposal in a way that renders it nearly meaningless.

The concerted opposition to this proposal is hard to justify. Barriers to
information-sharing between intelligence and law-enforcement agencies have
already cost us dearly in the fight against terror.

Information about the activities of terrorists abroad is usually gathered
by our intelligence agencies, most notably the Central Intelligence Agency.
Inside the U.S., the information is gathered by the Federal Bureau of
Investigation. Since terrorist acts are crimes, the FBI often uses criminal
tools, such as grand-jury subpoenas, to gather that information.

Obviously, this information needs to be shared by both agencies. We need to
be able to analyze a conversation overheard in Hamburg, Germany, in the
light of a series of bank deposits in New Jersey. But right now, most of
the sharing runs only one way. FBI agents can see the intelligence from
Hamburg, but CIA analysts aren't allowed to see the New Jersey bank
records--if those records were gathered with a grand jury subpoena. Since
it's the CIA, not the FBI, that has the capability to really analyze
terrorists' future plans (as opposed to catching them afterward), this
restriction is an invitation to more attacks.

This is not just a theoretical risk. In fact, grand jury secrecy rules may
be one reason we didn't anticipate the Sept. 11 attack. Start with the
proposition that whoever dreamed up the first World Trade Center bombing
was probably also behind the second attack. Who conceived and organized
that first attack? We can't be sure, in part because the CIA was hobbled in
its review of the first attack--by grand jury secrecy.

Writing in The New Republic two weeks ago, former CIA director Jim Woolsey
explained: "No one other than the prosecutors, the Clinton Justice
Department, and the FBI had access to the materials surrounding that case
until they were presented in court, because they were virtually all
obtained by a federal grand jury and hence kept not only from the public
but from the rest of the government."

When the administration tried to ease these restrictions, the Senate
Judiciary Committee insisted that any such sharing be approved by a judge
"upon a showing that the matters pertain to international or domestic
terrorism or national security." But asking judges to review every
document--or even every class of documents--is unworkable. Certainly no
such restriction applies when prosecutors share the same information with
investigative agencies.

Is grand jury secrecy so important to our liberty and privacy that the
nation has to pay for it in crippled intelligence capability? Maybe, but
it's hard to see why.

Sure, the privacy of suspects under investigation is important. The
accusations made against them before the grand jury shouldn't be publicized
until the government has actually decided that a good case can be made. But
no one is talking about making grand-jury information public. Rather, the
administration has proposed that it be shared with those government
agencies that play a vital role in stopping terrorism.

Under the current grand jury rules, a criminal prosecutor can share jury
information freely with his secretary, with other lawyers in the office,
with the FBI, with Justice Department paralegals--indeed, with any other
official the prosecutor thinks will help him to enforce the criminal law.
Do we really think that all these personnel will do a better job of
protecting a suspect's privacy than CIA analysts--who, after all, are in
the business of keeping far more important secrets than that?

The real question is not whether this trade-off between civil liberties and
security is justified. The real question is why Bush administration
negotiators didn't work harder to push through the change. Here, I can only
speculate that the Justice Department, at least at the start, wasn't
wholeheartedly behind the measure.

Why not? A broad interpretation of the grand jury protections has proven
quite handy in allowing Justice to dismiss Freedom of Information Act
requests for documents gathered by prosecutors. As well, the grand jury
rules have the effect of putting Justice in a position of primacy among the
agencies. Currently, the Justice Department can make exceptions to the
no-sharing rule, but only for CIA analysts who agree to work as
prosecutors' assistants, and so long as prosecutorial goals take precedence
over intelligence ones.

After a bit of wobbling, however, the administration now seems ready to
overcome bureaucratic turf issues and fight for this reform. But there
remains substantial opposition in Congress. The question is whether we will
sacrifice this long-overdue change for a civil liberties concern that is
more slogan than reality.

--------------
Mr. Baker, former general counsel of the National Security Agency,
practices law in Washington.

October 5, 2001
2:18pm EDT

" The consequences for the acceptance of dependency is the irrevocable loss
of LIBERTY. "

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-- 
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R. A. Hettinga <mailto: rah at ibuc.com>
The Internet Bearer Underwriting Corporation <http://www.ibuc.com/>
44 Farquhar Street, Boston, MA 02131 USA
"... however it may deserve respect for its usefulness and antiquity,
[predicting the end of the world] has not been found agreeable to
experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire'

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