Steward Baker was the first Assistant Secretary for Homeland Security and the former General Counsel of the National Security Agency. His book, Skating on Stilts, delves into some of the causes of why 9/11 happened. It also examines how homeland security, after 9/11, tried to build a strategy for better border security; yet, were still thwarted by civil libertarians. NewsRealBlog had the pleasure of interviewing him about his book and the issues discussed in it.
NewsRealBlog: Why did you write it?
Stewart Baker: I wanted to share the lessons I learned while in government. I wanted to write it to inform the public about my experiences.
NRB: Are there lessons to be learned from 9/11?
Baker: Yes, It is inherent in human nature not to prepare for disasters that have not happened before. For example, the risks of cyber security and bio-tech, the kinds of disasters that will come as a result of those new technologies. Just as with September 11th where there was a failure of imagination about how bad things can get we can have it again.
NRB: Can you explain what is FISA (Foreign Intelligence Surveillance Act) ?
Baker: It was brought into existence during the Carter Administration in response to the intelligence scandals of the mid- 1970’s where the assumption was that the intelligence agencies acted improperly. A set of rules were written for intelligence gathering in the states to make sure the wiretaps and surveillance were carried out in accordance with the law.
NRB: Where did the problem arise with FISA?
Baker: With the rise of technology what was assumed to be legal became less clear. As a result there was a mismatch between what was allowed and what the threat required. The FISA court (where they get warrants) made sure the rules were implemented. They tried to show how tough they could be which came into context when they started to strictly enforce ‘the wall.’
NRB: What is the ‘wall’?
Baker: The rules that apply to law enforcement wiretaps just aren’t appropriate for intelligence wiretaps. FISA sets much more flexible rules for wiretaps than what is set for law enforcement. If the main reason for the tap was gathering evidence, the prosecutors would have to get their own wiretap and live by the rules. The less contact there was between prosecutors and intelligence wiretaps, the less likely it was that American liberties would be eroded. The prosecution side and the intelligence side would be kept separate. All that could be given to the prosecutors was a tip to start an investigation, but not the details of the intelligence. What happened was that the intelligence agencies were allowed to watch a spy or suspected terrorist for as long as needed. If there was to be an arrest the prosecutors would have to get their own tap to gather information to prosecute. This led to a separation within the FBI between the criminal and intelligence teams; thus, the wall.
NRB: Do you have an example?
Baker: On August 22nd, 2001, a FBI detailee at the CIA had discovered that a major Al Qaeda operative entered the US in July. An alert was sent to the FBI’s intelligence contact. Eventually the alert was sent to the entire criminal investigative team. The entire criminal team was told to find the terrorist. This violated ‘the wall’ that was supposed to separate the mixing of criminal and intelligence investigations so there would not be a civil liberties scandal. Eventually, the undermanned intelligence team were the only ones allowed to continue the investigation. Unfortunately, on September 11th the understaffed FBI intelligence unit was still looking for the terrorist.
NRB: So the wall prevented the prosecutors from talking to those who gathered intelligence information-correct?
Baker: The effect was that it was made harder to catch terrorists because it was pursued so aggressively. There was an FBI agent that was prevented from possibly capturing terrorists pre-9/11. He insisted that the wall was crazy and was going to get people killed. But he was told that since he was on the criminal side of the wall he should not have known about the intelligence information.
NRB: Is there a ‘wall’ today?
Baker: There is a bill up for approval that says if there is a crisis the government can order a company to take certain measures on an emergency basis. Look at what happened in Iran. This shows that cyber warfare is coming. Our society is very dependent on computers; yet, we don’t have a good answer to a threat against our infrastructure. Both the privacy groups and industry are irresponsible because they are afraid of the regulations.
NRB: Skating on Stilts talks about how the European Union was uncooperative with Homeland Security. Can you elaborate?
Baker: The Europeans after 9/11, which is still ongoing today, are trying to tell us that they want to limit the kind of information that will be given. The Europeans want to limit the data on airline reservations. The US does not get the data from a traveler that takes a separate trip from Europe to another country and then comes to the US. It makes no sense. The Europeans tried this once before with the Bush Administration. They are bluffing and just as before, if you call their bluff, they will lose. We have to make it clear that Al Qaeda wants to blow up a plane over the US.
NRB: The last chapter in the book talked about bio technologies. Where is the concern?
Baker: Sooner or later that technology will get into the wrong hands. There will be real man made viruses and for both we have to have a plan. Since people in this industry do not want any government involvement there is talk that they will move to Europe where they will not be regulated.