by Brock N. Meeks
Fri, 18 Oct 1996 16:53:53 -0400
The Justice Department has, for the first time, publicly acknowledged using the code-breaking technologies of the National Security Agency, to help with domestic cases, a situation that strains legal boundaries of the agency.
Deputy Attorney General Jamie Gorelick admitted in July, during an open hearing of the Senate's Governmental Affairs permanent subcommittee on investigations, that the Justice Department: "Where, for example, we are having trouble decrypting information in a computer, and the expertise lies at the NSA, we have asked for technical assistance under our control."
That revelation should have been a bombshell. But like an Olympic diver, the revelation made hardly a ripple.
By law the NSA is allowed to spy on foreign communications without warrant or congressional oversight. Indeed, it is one of the most secretive agencies of the U.S. government, whose existence wasn't even publicly acknowledged until the mid-1960s. However, it is forbidden to get involved in domestic affairs.
During the hearing Sen. Sam Nunn (D-Ga.) asked Gorelick if the President had the "the constitutional authority to override statutes where the basic security of the country is at stake?" He then laid out a scenario: "Let's say a whole part of the country is, in effect, freezing to death in the middle of the winter [because a power grid has been destroyed] and you believe it's domestic source, but you can't trace it, because the FBI doesn't have the capability. What do you do?"
Gorelick replied that: "Well, one thing you could do -- let me say this, one thing you could do is you could detail resources from the intelligence community to the law enforcement community. That is, if it's under -- if it's -- if you're talking about a technological capability, we have done that." And then she mentioned that the NSA had been called on to help crack some encrypted data.
But no one caught the significance of Gorelick's' statements. Instead, the press focused on another proposal she outlined, the creation of what amounts to a "Manhattan Project" to help thwart the threat of information warfare. "What we need, then, is the equivalent of the 'Manhattan Project' for infrastructure protection, a cooperative venture between the government and private sector to put our best minds together to come up with workable solutions to one of our most difficult challenges,'' Gorelick told Congress. Just a day earlier, President Clinton had signed an executive order creating a blue-ribbon panel, made up of several agencies, including the Justice Department, the CIA, the Pentagon and the NSA and representatives of the private sector.
Though the press missed the news that day; the intelligence agency shivered. When I began investigating Gorelick's statement, all I got were muffled grumbling. I called an NSA official at home for comments. "Oh shit," he said, and then silence. "Can you elaborate a bit on that statement?" I asked, trying to stifle a chuckle. "I think my comment says it all," he said and abruptly hung up the phone.
Plumbing several sources within the FBI drew little more insight. One source did acknowledge that the Bureau had used the NSA to crack some encrypted data "in a handful of instances," but he declined to elaborate.
Was the Justice Department acting illegally by pulling the NSA into domestic work? Gorelick was asked by Sen. Nunn if the FBI had the legal authority to call on the NSA to do code-breaking work. "We have authority right now to ask for assistance where we think that there might be a threat to the national security," she replied. But her answer was "soft." She continued: "If we know for certain that there is a -- that this is a non-national security criminal threat, the authority is much more questionable." Questionable, yes, but averted? No.
If Gorelick's answers seem coy, maybe it's because her public statements are at odds with one another. A month or so before her congressional bombshell, she revealed the plans for the information age "Manhattan Project" in a speech. In a story for Upside magazine...
www.upside.com, by old-line investigative reporter Lew Koch, where he broke the story, Gorelick whines in her speech about law enforcement going through "all that effort" to obtain warrants to search for evidence only to find a child pornography had computer files "encrypted with DES" that don't have a key held in escrow. "Dead end for us," Gorelick says. "Is this really the type of constraint we want? Unfortunately, this is not an imaginary scenario. The problem is real."
All the while, Gorelick knew, as she would later admit to Congress, that the FBI had, in fact, called the NSA to help break codes.
An intelligence industry insider said the NSA involvement is legal. "What makes it legal probably is that when [the NSA] does that work they're really subject to all the constraints that law enforcement is subject to." This source went on to explain that if the FBI used any evidence obtained from the NSA's code-breaking work to make it's case in court, the defense attorney could, under oath, ask the NSA to "explain fully" how it managed to crack the codes. "If I were advising NSA today I would say, there is a substantial risk that [a defense attorney] is going to make [the NSA] describe their methods," he said. "Which means it's very difficult for the NSA to do its best stuff in criminal cases because of that risk."
Some 20 years ago, Sen. Frank Church, then chairman of the Senate Intelligence Committee, warned of getting the NSA involved in domestic affairs, after investigating the agency for illegal acts. He said the "potential to violate the privacy of Americans is unmatched by any other intelligence agency." If the resources of the NSA were ever used domestically, "no American would have any privacy left . . . There would be no place to hide," he said. "We must see to it that this agency and all agencies that possess this technology operate within the law and under proper supervision, so that we never cross over that abyss. That is an abyss from which there is no return," he said.
And yet, the Clinton Administration has already laid the groundwork for such "mission creep" to take place, with the forming of this "Manhattan Project."
But if the Justice Department can tap the NSA at will -- a position of questionable legality that hasn't been fully aired in public debate -- why play such hardball on the key escrow encryption issue?
Simple answer: Key escrow is an easier route. As my intelligence community source pointed out, bringing the NSA into the mix causes problems when a case goes to court. Better to have them work in the background, unseen and without oversight, the Administration feels. With key escrow in place, there are few legal issues to hurdle.
In the meantime, the Justice Department has started the NSA down the road to crypto mission creep. It could be a road of no return.
Meeks out...