[iwar] [fc:Is.FBI.asking.for.data.overload?]

From: Fred Cohen (fc@all.net)
Date: 2001-09-27 15:32:17
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Date: Thu, 27 Sep 2001 15:32:17 -0700 (PDT)
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Is FBI asking for data overload? Bush administration request for
sweeping law-enforcement powers begs question of how it would handle the
information 
By Ted Bridis and Gary Fields, The Wall Street Journal, 9/27/2001
<a href="http://www.msnbc.com/news/634408.asp?0si">http://www.msnbc.com/news/634408.asp?0si>=-

WASHINGTON, Sept.  26 - The Bush administration is pressing Congress to
approve the most sweeping expansion of federal law-enforcement authority
since the Cold War.  But would U.S.  officials even know what to do with
the deluge of information their new power could make available? IN THE
AFTERMATH of the Sept.  11 terrorist attacks on New York and Washington,
the president wants broader authority for investigators to conduct
wiretaps, monitor the Internet and track foreign students and
immigrants.  Already, some staunchly conservative lawmakers have joined
the predictable chorus of civil libertarians protesting the measures as
too extreme, even for these troubled times.  Yet even if the president
gets his way, it could give rise to one of the classic problems of the
information age: The capacity to produce oceans of data often isn't
matched by sufficient tools to sort and interpret it.  Attorney General
John Ashcroft acknowledged in congressional testimony Monday that the
proposals now before lawmakers might not have done anything to stop the
attack two weeks ago.  And senior Justice Department officials have
acknowledged in interviews in the days since Sept.  11 that there is
some justifiable skepticism about the Federal Bureau of Investigation's
ability to handle the massive amounts of information being generated by
the current terrorism investigation, let alone head off future attacks. 
Only two weeks since the mass carnage at the World Trade Center and
Pentagon, evidence is emerging that urgent warnings from Washington
aren't getting out to all local police.  The FBI has distributed lists
of people sought for questioning in the hijacking-terrorism case, and
other advisories, such as orders to ground crop-dusting planes that
could be used in chemical or biological attacks.  Explosives
manufacturers and makers and retailers of guns have been cautioned to
watch their inventories.  Justice Department officials say this vital
information is being transmitted to police by means of the National Law
Enforcement Telecommunication System, a network of computers and
telephone links.  But while the affected industries have been told about
the advisories, some local law-enforcement agencies aren't getting the
word quickly and, in some cases, aren't hearing anything at all,
according to executives with the Fraternal Order of Police, which
represents nearly 300,000 officers nationally.  "I was actually going to
call somebody and ask about what's going on," says Sheriff Victor Jones
Jr., of Natchitoches Parish, La.  Jones, the chief law enforcement
executive in a region where crop dusting is common, says, "We haven't
heard anything about the delays on crop dusting or about explosives or
the list of people they are looking for."

In many instances, federal law-enforcement and intelligence agencies
have shown they are capable of sifting colossal amounts of data.  The
National Security Agency, for example, scoops up huge quantities of
information gleaned from electronic-surveillance efforts around the
globe and winnows it effectively, using potent computer technology.  But
expanding surveillance authority doesn't necessarily lead to more
effective law enforcement.  Joshua Dratel, a criminal-defense lawyer
familiar with terrorism cases, says the expanded powers being proposed
by the White House wouldn't have addressed the fact that the FBI and
other federal agencies knew before Sept.  11 that there were at least
two people in the country with terrorist backgrounds - but couldn't find
them.  "This was not the failure of the ability to wiretap a guy; they
didn't know where these people were," Dratel says.  "To wiretap
somebody, you have to find them first." The two men in question, Khalid
Al-Midhar and Nawaf Alhamzi, allegedly were aboard two of the planes
hijacked Sept.  11.  Both had been placed on a "watch list" by the CIA
on Aug.  23 because of possible links between them and Osama bin Laden,
the alleged mastermind behind the Sept.  11 attacks.  The CIA had
obtained a videotape of the two men meeting in Malaysia with associates
of bin Laden in January 2000.  But by the time they were placed on the
watch list, they were already in the country. 

Action on the Bush administration's proposed bill, the Anti-Terrorism
Act of 2001, was delayed Monday, after contentious congressional
hearings.  In comments at FBI headquarters here, President Bush on
Tuesday stepped up pressure on lawmakers, saying of his proposals: "They
are measured requests, they are responsible requests, they are
constitutional requests." Vice President Dick Cheney met privately with
Senate Republicans and asked for the sweeping legislation to be
delivered by Oct.  5 - lightning speed for Congress, given the
complicated issues involved.  "We don't want to look at a future tragedy
and say, 'What could we have done differently?'" one participant in the
Capitol Hill meetings quoted Cheney as saying.  For Americans with
little or no memory of the Red Scares of the 1950s, the administration's
proposals may seem jarring.  Under the legislation, FBI agents would
have far greater leeway to search homes without informing the occupants. 
Immigrants could be jailed under more circumstances and for longer
periods without appearing before a judge.  A 1978 anti-espionage law
would be broadened in its application to alleged terrorists - and,
critics warn, could end up being used against ordinary criminals, as
well.  And prohibitions on the NSA and Central Intelligence Agency
sharing information with domestic law-enforcement agencies, or receiving
it from them, would be at least partially dismantled. 

While some European democracies, such as Spain and Italy, have long
accepted much more intrusive surveillance as the price of combating
terrorists, many Americans on both the left and right of the political
spectrum aren't eager to become more like Spain and Italy.  "There are
provisions [in the administration bill] that change decades, if not
centuries, of Fourth Amendment law," says Rep.  Bob Barr, a conservative
Georgia Republican, referring to the constitutional protection against
unreasonable searches and seizures.  "We have to operate under the
presumption that whatever we pass now will be with us for the
foreseeable future." In the face of mounting political opposition, the
White House Tuesday was already beginning to backtrack quietly on some
of its most-contentious proposals.  In closed-door meetings with members
and staff of the House Judiciary Committee, senior Bush Justice
Department officials tentatively agreed to drop a provision that would
have allowed U.S.  prosecutors to use evidence collected by foreign
governments in a manner that violated U.S.  law, according to
participants. 

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Under another proposal being considered Tuesday night, all of the
enhanced surveillance capabilities that the bill would give
law-enforcement personnel would phase out after December 2003. 
Negotiators from both sides were still weighing that idea, participants
said.  Ashcroft on Tuesday testified before a Senate panel that he
opposed any "automatic sunset" of the proposed legislation.  However
these negotiations are ultimately resolved, the question of what
practical use law-enforcement agencies would make of their new authority
hangs over the Bush bill.  There have been several cases over the years
that illustrate the data-overload problem facing law enforcement.  Just
this year, the Justice Department had to delay the execution of Oklahoma
City bomber Timothy McVeigh when FBI field offices around the country
that had gathered evidence discovered that hundreds of documents that
were supposed to have been turned over to defense lawyers during the
McVeigh trial hadn't been.  The FBI attributed the situation to a
failure to manage its information, rather than intentional concealment. 
In a separate case, the FBI obtained wiretap evidence on Wadih el Hage
in Kenya from July 1996 to August 1997 and heard dozens of his
conversations.  El Hage was convicted this year for his role in the 1998
bombing of the U.S.  embassies in Kenya and Tanzania, but investigators
didn't pick up enough information beforehand to avert those bloody
attacks. 

Wiretaps, says Dratel, who represented el Hage, are "not a panacea.  No
one can say, 'As long as we have this authority, it won't happen
again.'" If the Bush proposals are enacted, it won't be the first time
that individual rights and privacy are sacrificed in the face of war or
crisis.  In the frenzied aftermath of World War I, the government
launched the infamous Palmer Raids, which resulted in the prosecution
and deportation of large numbers of aliens based on shaky or incomplete
evidence.  In 1940, the Smith Act required aliens to register with
law-enforcement agencies and be fingerprinted.  A decade later, with the
Cold War beginning to intensify, the Internal Security Act was approved,
forcing any organization linked to communism to register with the
attorney general.  The act helped trigger the anti-communist hysteria
that reached a fever pitch during the McCarthy period, when accused and
actual members of communist organizations were blacklisted from both
private and government jobs and often denied passports.  Critics of the
Bush proposals say they are most disturbed by the government's efforts
to expand the 1978 anti-espionage law in a way that would loosen
restrictions on wiretaps and surveillance in a potentially wide array of
criminal cases.  The role of a special federal surveillance court
established by the 1978 law would broaden, these critics point out. 
Justice Department records show that since 1999, that court, which
consists of seven federal judges from around the country, has approved
1,891 requests for electronic surveillance or searches, without turning
down a single one. 

Ashcroft has countered that the administration merely seeks "to meet the
challenge of terrorism within our borders and targeted at our friends
and neighbors with the same careful regard for the constitutional rights
of Americans and for all human beings." The attorney general asserts
that investigators effectively already have much of the authority the
administration seeks to establish more clearly.  Federal prosecutors,
for example, have argued in court - often successfully - that
decades-old laws long interpreted to permit telephone surveillance
should now be read to allow monitoring of the Internet.  The
administration's proposal would explicitly permit U.S.  investigators to
do things they do already, such as using the government's "Carnivore"
Internet surveillance software to determine where a person might be
sending e-mail.  Still, Ashcroft says, clarifying the broad reach of the
law is important.  "Law-enforcement tools created decades ago were
crafted for rotary telephones, not e-mail, the Internet, mobile
communications and voicemail," he told Congress this week.  "I regret to
inform you that we are today sending our troops into the modern field of
battle with antique weapons." Some of the toughest provisions of the
anti-terrorism package would fall on immigrants.  The Immigration and
Naturalization Service already has great flexibility about whom to allow
into the country, and since Sept.  11, the agency has begun to exercise
those powers more aggressively.  On the long border with Canada, where
travelers previously were stopped for only a brief check, there are now
long lines and more-thorough inspections.  The INS is also scrutinizing
more carefully visa requests from foreign nationals who want to work,
travel or study in the U.S.  The provision prompting the most concern
among immigration advocates would give the attorney general the ability
to certify immigrants as terrorists and hold them indefinitely - until
the attorney general decides they are no longer a threat.  The
government can detain suspected terrorists under current law but
generally can do so only as part of a deportation hearing or criminal
proceeding.  Michael Maggio, a Washington-based attorney, says this
provision is "un-American and probably unconstitutional.  We're talking
about holding people indefinitely here.  In America, people get locked
up based on the evidence." Steven R.  Valentine, a former immigration
official in the administration of George H.W.  Bush, counters that, in
fact, "aliens don't have the same due-process rights as citizens. 
Obviously, you couldn't do this to a citizen." From a practical
standpoint, Valentine says, the country is left with few alternatives. 
"For a lot of terrorist cells, their purpose is to be here and to be
ready to be called to action.  Are we just supposed to let them stay in
this dormant state until bin Laden asks them to do something? I don't
think so."

Chris Adams and Yochi J. Dreazen contributed to this article

Copyright � 2001 Dow Jones &amp; Company, Inc. All Rights Reserved.

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