Beverley Lumpkin: Halls of Justice
W A S H I N G T O N, Aug. 11, 2000 -- SENDING CARNIVORE TO COLLEGE
Assistant Attorney General Steve Colgate has now imposed some structure on the much-touted review process for Carnivore, the FBI’s e-mail snooping software.
As I mentioned last week, he’s the top career guy who Attorney General Janet Reno relies on for the most impossible tasks, and he’s now saddled with this multi-step process to dig the FBI out of the public relations abyss.
Colgate says he’s reaching out to about nine major universities in the search for one with the expertise and capability to review all of Carnivore, software and hardware, source code, the works. He will vet potential candidates with the FBI and state and local law enforcement types, as well as the civil liberties community. Colgate says he’s pleased with the response so far, with some universities even volunteering to do the review for free. He hopes to have the university picked out within the next 10 days; Reno herself will make the final call on the chosen one.
Colgate believes the university team won’t take a very long time, and he anticipates the university chosen may bring in outside experts in the fields of computer security, telecommunications, or with ISP expertise.
They will probably have to sign non-disclosure agreements since the software is a commercial product and the manufacturer wants its trade secrets protected. That team will produce a report that Colgate fully intends to make public on Justice’s Web site.
The report will also be distributed to interested parties in the communications, privacy and civil liberties fields for comment. Those comments will then by synthesized with the report by a Justice review panel chaired by Colgate. Serving on the panel will be the head of the FBI lab, Justice’s chief privacy officer, Justice’s science and technology adviser, and a high-level representative from the Criminal Division.
Their report will then be submitted to Reno, and Colgate hopes that can be done by Dec. 1. As we know from long experience, there’s no telling how long something can sit on her desk while she ponders and considers. However, the FBI has not stopped using Carnivore during the process.
And all of this production, with multiple actors, reports, reviews, stages, and procedures, was all necessitated because the FBI couldn’t figure out how to explain in a non-threatening way that it’s doing on the Internet what it has always done on the phone.
PLAYING CHICKEN IN THE WEN HO LEE CASE
At least two days of hearings are scheduled in Albuquerque, N.M., next week to deal with three major issues in the Wen Ho Lee case.
Potentially most significant, although no resolution is expected for several weeks, are the closed hearings on classified information. Using a law called CIPA, for Classified Information Procedures Act, both sides will play a sophisticated game of chicken.
The defense wants to terrify the government with a promise or threat to reveal so much secret information at trial that prosecutors will drop the case rather than jeopardize national security. That’s called “graymail.”
Prosecutors, meanwhile, try to build a picture of a case so overwhelming, of a government juggernaut so daunting, that the defendant will crumple and plead guilty without the necessity of going to trial — and revealing all those secrets.
During the CIPA process the defense demands to see every scrap of evidence it can possibly claim to be relevant — here, all the information in the files that Lee allegedly illegally downloaded. The government can argue some of the items demanded are not relevant, or it can offer unclassified summaries as substitutions.
At this point the judge has ruled that much of what the defense wants is indeed relevant to the case. The prosecution will now propose substitutions, the defense will accept or refuse them, and the judge will rule. If the judge were to order that certain items be revealed and the government refused, the resolution would be dropping counts or even the entire case. That happened to Lawrence Walsh in Iran-Contra, when he had to drop the charges against former CIA official Joe Fernandez.
The second issue at the hearings will be the defense charges of selective prosecution — that Lee was unfairly targeted by investigators and prosecutors, largely because of his ethnicity.
I wrote a few weeks ago about the defense motion. The government’s response was equally hard-hitting: “Lee has failed to present any evidence … [that] the Department of Justice decided to prosecute Lee, even in part, because of his ethnicity. Lee also has failed to produce any evidence that another individual has committed acts even remotely similar to his own.
“Lee cannot point to any other person who has downloaded America’s nuclear secrets onto seven missing portable tapes — without any conceivable work-related reason — who has not been prosecuted.”
Finally, the judge has agreed to hear renewed arguments from the defense that Lee should be released on bail until his trial, albeit under house arrest with stringent safeguards.
The government promises to consider relenting on some conditions, but still argues it is entitled “to impose restrictions on Lee’s communications in order to protect national security.” The filing maintains Lee continues to pose a danger to the nation if he were released, and also presents a risk of flight.
So it’s possible, but not likely, that the judge could order Lee released next week.