In 1999, the Clinton Administration found itself weighing two compelling -- and contradictory -- needs.
Members of Congress, Silicon Valley entrepreneurs, privacy mavens, civil libertarians and free-marketeers were pushing for new encryption export regulations, changing U.S. policy so it would be easier for U.S. companies and individuals to export strong encryption technology, allowing users to safeguard the privacy of their communiques. Others felt differently. Easing restrictions on encryption technology "will be devastating to law enforcement and damage national security," FBI director Louis Freeh testified before the House Armed Services Committee.
"It is imperative that we recognize the needs of law enforcement soon or it will become far more difficult for the FBI, the DEA and other federal, state and local law enforcement agencies, faced with the rising threat from the criminal community of commercially available encryption, to protect the public," Attorney General Janet Reno testified before the House Select Committee on Intelligence in June 1999.
"The widespread use of encryption will effectively eliminate the opportunities to do this," Reno went on, saying that releasing the technology would "prevent law enforcement, even with an order, even with a search warrant, from obtaining the information which may be critical to protecting public safety."
Reno specifically mentioned that terrorists were using encryption technology, indicating to her "that in the future we may wiretap a conversation in which the terrorists discuss the location of the bombs that are going to go off but we will be unable to prevent the terrorist act because we cannot understand the conversation which is encrypted."
This was based on more than just mere speculation. One of the plotters behind the 1993 World Trade Center bombing, Ramzi Yousef, used encryption technology to hide details of his fiendish plot to blow up 11 U.S. airliners. Another terrorist -- Wadih El Hage, the personal secretary of Osama bin Laden convicted for his role in the 1998 bombings of U.S. embassies in Kenya and Tanzania -- used encryption to hide the contents of various e-mails he sent to other members of al-Qaida. "Encryption is brilliant," Ahmed Jabril, spokesman for Hezbollah -- classified as a terrorist group by the U.S. State Department -- told USA Today in February 2001. "Now it's possible to send a verse from the Koran, an appeal for charity and even a call for jihad and know it will not be seen by anyone hostile, like the Americans."
Regardless of Freeh and Reno, in the end, the Clinton Administration, backed by the House Majority Leader Dick Armey, R-Texas, and Rep. Bob Goodlatte, R-Virginia -- co-chairman of the bipartisan Congressional Internet Caucus, chairman of the House Republican High Technology Working Group and member of the House Republican Cyber-Security Team -- lifted significant export restrictions on encryption technology.
Throughout the Clinton years, Freeh and Reno pushed for many of the same sweeping law enforcement powers sought and obtained by their successors, Robert Mueller and Attorney General John Ashcroft. But at almost every turn in their aggressive moves, not only were Freeh and Reno opposed by groups like the American Civil Liberties Union and the American-Arab Anti-Discrimination Committee on the left but also by Congressional Republicans as well, and at other times, by their own administration.
Whether pushing for the continued export ban on encryption technology; greater law enforcement surveillance powers on the Internet -- whether with search warrants or the "Carnivore" FBI monitoring program; the continued use of "secret evidence" against suspected terrorists; or better monitoring of foreign nationals with student visas, Freeh and Reno were constantly struggling not only to gain more power to combat the increased threat of terrorism but also just to hold onto the tools they were already using.
Congress's about-face on many of these issues can be charitably interpreted as indicative of a sea change in the zeitgeist. But when Congress holds hearings in the coming months to ascertain how law enforcement and intelligence organizations could have been so ill-equipped so as to not even remotely discern the Sept. 11 attacks, the ones in the witness chairs will not be the only ones needing a grilling.
Some of the powers that Ashcroft and the FBI argued law enforcement needed to combat terrorism -- many of which were granted in October 2001 with the passage of the "Uniting and Strengthening America By Providing Appropriate Tools Required to Intercept and Obstruct Terrorism," or USA PATRIOT Act -- had been denied to law enforcement during the Clinton years over and over, in some cases by the very same officials now wielding those powers.
Recalls one former Justice Department official: "Some of the wiretapping authority and the roving wiretaps that got passed in the antiterrorism bill, we fought for some of those same authorities. And there was tremendous resistance. There wasn't the political will at that time to overcome some of that opposition."
Officials from that time argue that Reno was very focused on counterterrorism early on in her term as attorney general, pushing for increased money for the FBI, planning role-playing exercises, bringing President Clinton's attention to the matter whenever she could.
"Reno showed an enormous amount of leadership" on counter-terrorism measures, attests Jerry Hauer, the commissioner of New York City Mayor Giuliani's office of emergency management from 1996 until 2000, and a current adviser to Health and Human Services Secretary Tommy Thompson. "She moved things and the administration forward. There were a lot of disjointed approaches, and she brought uniformity to it. She set up domestic preparedness in the Justice Department and moved a lot of this to state and local governments."
Reno, campaigning for governor in Florida, wouldn't comment. "She prefers to focus on the future, not the past," a spokeswoman says.
Before the Clinton administration eased the encryption export regulations, in Jan. 2000, Reno's Justice Department proposed an initial draft of the Cyberspace Electronic Security Act, or CESA, as an attempt to provide law enforcement with the tools it needed to crack encryption codes if need be. The original draft of the bill would have allowed federal agents armed with search warrants to secretly break into homes and offices to obtain decryption passwords or keys, or to implant "recovery devices" to modify computers to ensure that any encrypted messages or files could be read by the government.
"The advent and eventual widespread use of encryption poses significant challenges to law enforcement and to public safety," Reno said on Sept. 16, 1999. "CESA balances the needs of privacy and public safety. It establishes significant new protections for the privacy of persons who use encryption legally, but it also assists law enforcement's efforts to maintain its current ability to obtain usable evidence as encryption becomes more common."
After a hue and outcry, the "secret searches" provision was dropped from the draft of CESA. The bill did not go anywhere. Thus, though the Clinton Administration had attempted to achieve some "balance" between privacy and security, the security arm of it was shanked. No one outside of law enforcement seemed to give Reno's and Freeh's arguments much weight, however -- including many within the Clinton White House, who soon stopped pushing for the passage of CESA.
"We were trying to stop exporting encryption," says a former Justice Department official. "Frankly, we lost that battle. People were not really buying our argument. So law enforcement needs were trumped by the commercial needs for the U.S. to be competitive in that arena."
With a handful of exceptions, like Rep. Curt Weldon, R-Penn., leaders of the House and Senate -- both of which were then controlled by the GOP -- didn't seem too upset with the way the White House was proceeding. "I am pleased that after years of this Administration's strident opposition to the free and open use and exportation of American encryption technology, the Administration finally has listened to those of us in Congress who long have urged export decontrol to enable American industry to compete in this important and dynamic worldwide market," said then-Sen. John Ashcroft, R-Mo., on Sept. 17, 1999.
Some even argued that the easing of encryption regulations didn't go far enough; Armey wrote Reno on Dec. 6, 1999, expressing "concerns about the federal government 'cybersnooping' ... There are serious policy questions about how best to achieve security in a way that protects personal privacy."
Ashcroft voiced concerns about Reno's take on Internet privacy. The Administration, he charged, "once again has failed to expressly identify the procedural protections for electronic communications to which Americans are entitled under the Fourth Amendment, when their interests in privacy are balanced against legitimate law enforcement interests." He was "pleased" that Reno had dropped the "secret search" provision of CESA, which he described as "asserting the right to surreptitiously seize private electronic transmissions. But [the Clinton Administration] should go a step further and affirm the constitutional rights of citizens to be free from the unreasonable searches and seizures of their electronic communications."
Some of these then-challenged powers -- a form of "secret searches," for example -- were included in the USA PATRIOT Act that Ashcroft pushed for in Oct. 2001, raising some eyebrows on the staff of Senate Judiciary Committee Chairman Sen. Patrick Leahy, D-Vermont. "Sen. Ashcroft co-sponsored bills with Sen. Leahy against" some of the same surveillance powers he was now working for, says Leahy spokesman David Carle. "He had a different point of view then."
Clinton Justice Department officials see the change as indicative of a shift in the American culture, more than as any sort of hypocrisy. "Ashcroft clearly fashioned himself more as a civil libertarian when he was in the Senate," says a former high-raking Justice Department official who asked not to be named. "It's interesting how Sept. 11 has changed everything." While Ashcroft's push for enhanced law enforcement snooping powers sailed through the Senate 98-1, Reno had a much tougher time obtaining similar tools. During the Clinton years, "law enforcement -- including Janet Reno and others -- were trying to get a lot more investigative authority than the public at large was willing to do."
"It goes back to whether or not people understood why we were making the request," the former official says. Before Sept. 11, few in the media or the government took concerns about terrorism seriously enough. "We were constantly being attacked; law enforcement was constantly fighting to push the envelope just a little bit more. We were saying, 'This is the stuff we really need to do.' But before Sept. 11 the need to protect the public was not as tangible."
To be sure, Reno and Freeh haven't been on top of everything. For years, Rep. Lamar Smith, R-Texas, had worked hard to end the abuses of the foreign student visa program, first tipped off to it during the prosecution of one of the 1993 World Trade Center bombers. In 1996, an immigration reform bill passed the Congress which introduced the Coordinated Interagency Partnership Regulating International Students, or CIPRIS, which was to track the movements of foreigners living temporarily in the United States. If they didn't show up to class, the INS was to be notified.
But even after CIPRIS became law it experienced intense opposition from groups like the Chamber of Commerce and the Association of International Educators, which called CIPRIS "an unreasonable barrier to foreign students who seek legitimately to pursue their higher education in the United States." In February 2000, a group of 21 senators headed by then-Sen. Spencer Abraham, R-Mich. (now Secretary of Energy) urged that the implementation of CIPRIS be postponed. It was. Pressured by Abraham, then-INS Commissioner Doris Meissner agreed to delay implementing key provisions of CIPRIS until the senators' concerns could be worked out.
Along with other congressional leaders at the time -- like Reps. Bob Barr, R-Georgia, David Bonior, D-Mich., and John Conyers, D-Mich. -- Abraham was also active in the fight against the detention of individuals based on "secret" evidence, information the government refused to divulge because it might compromise an intelligence source. On June 22, 2000, the House passed a measure 239-173 cutting Justice Department funding for the detaining of immigrants based on secret evidence.
During the Oct. 11 presidential debate, then-Gov. Bush -- making a push for the Arab-American and Muslim vote -- decried the practice in his own inimitable fashion. "Arab-Americans are racially profiled in what's called secret evidence," Bush said. "People are stopped, and we've got to do something about that."
"We were constantly being attacked for that," recalls the Justice Department official. "Law enforcement was constantly fighting to push the envelope just a little bit more. You can't necessarily criticize that much the critics who were saying, 'Come on, come on, what's the need?' But law enforcement was saying 'This is the stuff we really need to do.'"
Clearly, post-Sept. 11, secret evidence is being utilized more than ever, and the Bush administration, far from moving to end its use, is employing it like never before.
It's been a sea change. In July 2000, Reno and the FBI came under harsh criticism for using Carnivore, the FBI's specialized network analyzer, which runs as an application program on a normal personal computer using Microsoft Windows, and is designed to monitor specific electronic communications.
"Over the last five years or more, we have witnessed a continuing steady growth in instances of computer-related crimes, including traditional crimes and terrorist activities which have been planned or carried out, in part, using the Internet," said Donald M. Kerr, assistant director of the FBI's Laboratory Division, to the House Judiciary Committee's subcommittee on the Constitution. "The ability of the law enforcement community to effectively investigate and prevent these crimes is, in part, dependent upon our ability to lawfully collect vital evidence of wrongdoing." Without "innovations such as the Carnivore software" such a task would be impossible, Kerr said, insisting that the FBI didn't monitor any communications "without lawful authorization from a court."
But as soon as the news of Carnivore hit the papers, another Justice Department official who worked with Reno recalls, the attorney general received three letters from Armey "asking us to stop using it pending a review."
The Illinois Institute of Technology Research eventually did review the matter in Nov. 2000, calling for some tweaks to Carnivore but heralding the system as being potentially "more effective in protecting privacy and enabling lawful surveillance" than other alternatives. When used properly, the review stated, "it provides investigators with no more information than is permitted by a given court order."
But even after the review was completed, Armey protested, since many of those conducting the review had ties to either law enforcement or the Clinton administration. "This important issue deserves a truly independent review, not a whitewash," Armey said. "The Department of Justice stacked the deck for this report. It selected reviewers and set the rules in order to ensure they would get the best possible review." The Justice Department denied the charge; an upgraded version of Carnivore continues to operate today under the less interesting moniker "DCS1000."
"We needed to use it," says the Reno official. "We continued to use it in the terrorism context. But there were specific requests from Dick Armey and others to stop the application of the technology."
Currently, there are no moves to end Carnivore, which leaves Reno Justice Department officials exasperated.
"It's frustrating to me in the sense that people are now trying to portray Sept. 11 as something that could have been stopped by the prior administration," recalls the Reno official. "Obviously a lot of these powers we sought and there simply wasn't the political will in Congress to get them."
Observes the other Justice Department official, "The country's obviously turned around. I mean, a year ago what percentage of the country would have been willing to engage in a ground war in Afghanistan to combat terrorism?"
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