The Oath with Chuck Rosenberg
5. James Baker: Going Dark
Chuck Rosenberg: Welcome to the Oath. I’m Chuck Rosenberg. I am honored to be your host for a series of compelling conversations with fascinating people from the world of public service. All of my guests share one thing: they took an oath mandated by Congress to support and defend the Constitution of the United States against all enemies, both foreign and domestic. My guest today is Jim Baker. Jim has had a fascinating career in public service. At one point, he ran the section at the Department of Justice responsible for all FISA court litigation. You’ve heard about FISA in the news a lot lately. The Foreign Intelligence Surveillance Act. And Jim was the guy responsible for taking those warrants to federal judges for their authorization. Later in his career, Jim was the general counsel of the FBI and oversaw that FISA process from another perspective–literally across the street from the Department of Justice at the FBI. Jim is now the Director of National and Cyber Security at the R Street Institute, a nonpartisan policy research organization, where he writes and talks about these important issues. On the Oath today, Jim and I are going to discuss the encryption problem, sometimes referred to as “going dark.” Jim knows those issues as well as anybody in the country. Jim Baker, welcome to the show.
Jim Baker: Thanks Chuck, great to be here.
Rosenberg: Oh, I’m really glad that you joined us. I’ve been looking forward to this. You’ve had a remarkable career in the Department of Justice, and have held some of the most important jobs at DOJ and at the FBI, and we’ll get to that. But I want to know where it all started. Where did it all start, Jim?
Baker: My career at the Justice Department started in Detroit, Michigan, where I’m from originally. And I started with DOJ after I clerked for a U.S. district court judge…
Rosenberg: A federal judge.
Baker: A federal judge in Detroit: Bernard Friedman–is a great and wonderful person, a great mentor, helps me think about my career in the law and where I wanted to go, and so, it was through my experiences at the court that I found the Justice Department, I guess you would say
Rosenberg: Probably the most important advice I think for young lawyers–young anythings–is to find a good mentor.
Baker: Absolutely, absolutely.
Rosenberg: And he was that to you.
Baker: He was that to me, for sure.
Rosenberg: So, after your clerkship, you ended up at the Justice Department, and this thing called the Honors Program. What’s the Honors Program?
Baker: It’s one of the ways, it’s the main way that the Department of Justice will hire new attorneys out of either law school, or a clerkship. That’s pretty much the only way to get in.
Rosenberg: Yeah. And I had always thought it was a difficult program to enter, except that that’s how I got in. So obviously–
Baker: –if they had they accepted you and me, then they—then there’s something wrong with the process.
Rosenberg: At least back in the day there were no standards–they’ve tightened them up since.
Baker: It seems that way.
Rosenberg: And where did you go Jim once you joined the Justice Department?
Baker: Well my first job, actually was a bit of an anomaly. So, when I was a law clerk, my dad was sick with cancer in Detroit. And so, I wanted to stay in Detroit as long as possible and asked the Honors Program folks to allow me to start at the U.S. attorney’s office in Detroit, which was unusual. But, it was fantastic, it was a fantastic office. It was great–a great group of AUSA’s, and so I started there as a Special Assistant United States attorney for like six months, or something.
Rosenberg: So, these would’ve been the same AUSA’s that you saw as a clerk to Judge Friedman practicing in his courtroom.
Baker: Exactly, exactly.
Rosenberg: That is an unusual way to start.
Baker: It was, but it was great because I got to see and do so many things because people were eager to help me. I had known some of–some of the AUSA is when I was a law clerk and then got to know them better obviously when I was working in the office itself. But it was great. I got to do trials and pleas and sentencings and appeals and whatever anybody needed help with, I was able to pitch in and do that.
Rosenberg: And I know our listeners know this, but in case they don’t, AUSA means Assistant U.S. Attorney, somebody who is a federal prosecutor.
Baker: Exactly, a line prosecutor that goes into court
Rosenberg: And so, did you try your very first case there in Detroit?
Baker: Yeah, I did.
Rosenberg: And were you any good?
Baker: The first case I was–they allowed me to be a second chair on a trial that was run by a different AUSA, actually Jennifer Granholm, who became the governor of the state of Michigan.
Rosenberg: So, you were second chair in your first trial to future Governor Granholm?
Baker: That’s correct.
Rosenberg: What kind of case was it?
Baker: That’s a good question. I think that was a drug case and I did, you know I questioned a few witnesses, I helped with all the trial prep, questioned a few witnesses–but Jennifer was the lead and then took charge and I think she did the opening statement and the closing argument in that one. So, there was a good–it was a good first experience.
Rosenberg: Were you nervous?
Baker: Yeah, I was pretty nervous. I was more nervous, I guess when I did my first trial by myself, which was a, a trial involving a—unfortunately, a common offense: a felon in possession of a firearm. Felons are prohibited under federal law from possessing firearms after they’ve been convicted of a felony. And so, that was, that was my first case on my own and that one–yeah for sure, I was very nervous
Rosenberg: And Detroit had and has, to some extent, a significant violent crime problem.
Baker: Yes. Yeah. That’s absolute true.
Rosenberg: Was that type of work the focus of the office?
Baker: It was a substantial focus of the office at that time. Yeah absolutely. Guns and drugs was definitely a scourge of Detroit at that time and you know has remained that in various parts of the country since then. But yeah, so it was a mainstay unfortunately of the office.
Rosenberg: But you didn’t stay there that long. You came to Washington D.C. and to headquarters, Main Justice. Shortly after that. Right?
Baker: Exactly. Yeah.
Rosenberg: And what did you do when you got to Main Justice? Where’d they put you?
Baker: The first place they put me was in the so-called “Front office” of the Criminal Division of the Department of Justice. My application was to the criminal division and I got in through the criminal division, and so, the first thing they did was assign me to the front office, and the person who was in charge of the front office, at that time, was one: Bob Mueller.
Rosenberg: Yeah, Mueller.
Baker: I’ve heard of that guy.
Rosenberg: I heard that name.
Baker: Yeah. So, he was the assistant attorney general for the criminal division at that point time. And I was assigned to work with his office, and then assigned to a particular deputy assistant attorney general, who worked in the chain of command for, for Bob, a person named Mark Richard who again, was a fabulous mentor, coach person
Rosenberg: When I think back on my time at the Department of Justice, what I really think about, are the people, and in particular, any number of people who were patient with me and kind to me and who helped me find my footing.
Baker: Absolutely. I mean this is something I tried to say to law students and younger attorneys now, that really anybody from any walk of life–that the people you work with is critically important. People are often attracted to the title or the job description something like that. But it’s really the people that are the most important thing
Rosenberg: Right, and the titles in the end don’t matter it’s the people along the way.
Rosenberg: I know you did some time–this makes you sound like an inmate. I know you spent some time in the fraud section of the criminal division at the Department of Justice. But I wanted to fast forward a little bit because you went to this place within DOJ called the Office of Intelligence Policy and Review.
Baker: So, it was a component of the Department of Justice, which meant it was a separate organizational unit within DOJ.
Rosenberg: What were they responsible for?
Baker: They were responsible for advising the attorney general, other DOJ leaders, and the intelligence community, on a variety of legal and policy issues related to the Conduct of Intelligence.
Rosenberg: The Conduct of Intelligence–so what is the Conduct of Intelligence? And by the way, why is the Department of Justice conducting intelligence?
Baker: Well, for several reasons. One, is that under the, then existing, and now still existing, but amended main executive order that President Reagan actually issued, called Executive Order: Twelve Triple 3, 1 2 3 3 3. That’s the main executive order that governs the functions of the intelligence community, and that gives the attorney general certain oversight authorities with respect to intelligence activities in the United States.
Rosenberg: So, the reason the Justice Department is conducting intelligence is because President Reagan directed them to.
Baker: That’s basically right. And then, in addition, certain statutes give a role to the Department of Justice. In particular the Foreign Intelligence Surveillance Act, or FISA.
Rosenberg: And we’ve heard a lot about FISA. But I think it would be really important to explain what it is and what it permits, and how the Department of Justice conducts itself in front of the Foreign Intelligence Surveillance Court. So, what is FISA?
Baker: FISA is a statute that regulates certain intelligence collection activities by elements of the U.S. government.
Rosenberg: And so the collection is pursuant to statute and pursuant to court authorization.
Baker: Most of it. The FISA is a–it’s a limited statute it covers a lot, but it’s still limited. So, it mainly covers electronic surveillance, physical search, and certain other activities: collection activities inside the United States. It has relevance overseas and we can get into the details of that as well. But, especially when it was first created, Congress made the decision: we’re only going to regulate the activities of the intelligence community mainly as they pertain to the United States. We’re not going to try to regulate all the activities overseas.
Rosenberg: And so, what is this place you work, OIPR, have to do with FISA? What’s their role in the conduct of intelligence and adhering to the FISA law?
Baker: When I started out there, there was–the head of the office was called the Counsel for Intelligence Policy.
Rosenberg: Which you later became.
Baker: I later became. There were two deputies–one for intelligence operations, and one for intelligence policy and they had folks that worked for them. Even so it was a very small office. I was hired into the operations side, which dealt with all the FISA applications and other activities involving oversight of the FBI’S intelligence investigations. So, that’s mainly what we did
Rosenberg: And what year did you start there, Jim?
Baker: I started in 1996.
Rosenberg: And so, when you describe it as a relatively small office, it’s worth pointing out that this was prior to the attacks of 9/11
Rosenberg: Things changed dramatically.
Baker: Absolutely. So, we had about I think, when I started, there were six other attorneys, I think it was, who were working on FISA applications as we did all of them. And at that time, there were somewhere around 800-900 a year I think.
Rosenberg: Total FISA–
Baker: –total FISA applications.
Rosenberg: And when we talk about a FISA application, that’s an application that goes to a federal judge, and then she reviews it, and if it’s appropriate, signs it–authorizes the collection.
Baker: Right. The FISA statute created the FISA court, or the Foreign Intelligence Surveillance Court, sometimes referred to as the FISC: F-I-S-C. And so, it’s one of those judges that we go to–those are regular district court judges from around the country selected by the chief justice to sit on the FISA court for seven year terms, and they hear those cases in addition to doing their regular work back in their home districts.
Rosenberg: So, your unit was just six lawyers.
Baker: I think it was seven including me. Yeah, something like that. The East Africa Embassy bombings in 1998 really started a huge transformation for us.
Rosenberg: Those were the U.S. embassies in Kenya and Tanzania.
Baker: Correct. So that started a big change. And then, in addition, a very significant event for us was the so-called Millennium Crisis, which was the crisis right before January 1st, 2000 when there was a real threat from Al-Qaeda to attack locations inside the United States. So, we worked intensively on that, and that was highly transformative for a lot of reasons as well.
Rosenberg: Did the number of lawyers increase?
Baker: it increased over time, slowly. So that’s why the Millennium Crisis was a huge drain on our resources as well as on the resources of a number of other agencies. It was also government at its best. All of the inter-agency: FBI, the rest the intelligence community, DOJ, we are all just working seamlessly to make sure that nothing was dropped. And so, that was great but it was a transformative experience and really showed what some of the resource gaps were, I think, and so we started to increase our resources even before 9/11.
Rosenberg: And by 9/11, are you still a line attorney in OIPR or do you have another responsibility?
Baker: Yeah. By 9/11 I was the head of the office. So, I had moved from a line attorney up to a deputy for operations and then became the head of the office.
Rosenberg: What was the change in the work of your office after 9/11?
Baker: So, there was a substantial change–this is a phrase that General Hayden uses from time to time: the variety velocity and volume of the work. Obviously, it focused substantially on counterterrorism. And in particular, one thing that we did was expand the use of so-called emergency authorizations under FISA. There’s–there had been since the beginning a provision under FISA, where the attorney general could orally authorize a surveillance or a search.
Rosenberg: On an emergency
Baker: On an emergency basis, if you met certain requirements of the statute. And that was used, but seldom used before 9/11, and then after 9/11, we had to use it a lot.
Rosenberg: Why did you have to use it a lot after 9/11?
Baker: Because of the urgency of the, of the subjects of investigation that the FBI had, and the urgency of the need to find out what was going on, especially to learn whether there was another plot. I mean, I think people don’t focus on that much right now but there was a substantial concern that Al-Qaida was planning something else after 9/11 and we wanted to get the bottom–get to the bottom of that and prevent anything from happening. Technology started to change too. And with the increased use of the Internet and so that changed the level of technical complexity of the surveillances that the FBI wanted to do.
Rosenberg: Jim, I don’t want to talk about particular cases, and I know you can’t, and won’t talk about particular cases, but in general I think there’s a lot of misperception about FISA applications and FISA warrants and how the work is done at the Department of Justice and at the FBI to bring a FISA warrant to court. What’s the process like?
Baker: So, let me focus on the time that I was at OIPR back in those days. It was an extremely rigorous process that got more intense over time.
Rosenberg: By more intense, do you mean more rigorous?
Baker: More rigorous, in terms of making sure that the applications were accurate and that there were procedures for ensuring, to the best of the government’s ability, that they were accurate.
Rosenberg: So, take me through a hypothetical application. Where does it start, and where does it end, and what happens to it in-between?
Baker: Let me back up from that. One thing to remember about FISA, I think is sometimes confusing for folks, is a FISA surveillance is an investigative tool. It’s not an investigation unto itself. And so, it is something that the FBI or NSA would assess was needed as part of the intelligence collection, intelligence investigations that they were conducting. So, with respect to the FBI, the FBI would be conducting an intelligence investigation. So, when I say that, I mean either a counterterrorism investigation, or a counterintelligence investigation, they’re chasing a spy or a terrorist. They thought that would be helpful to conduct electronic surveillance or search.
Rosenberg: You know, I think that’s a really important way to think about it. Just bringing to the criminal context where I spent most of my time in the Department of Justice. A search warrant on a bank robbers home is not an investigation in and of itself. The investigation is of the bank robbery and the search warrant is a tool to obtain evidence lawfully pursuant to court order in that bank robbery investigation. Is that a fair analogy?
Baker: That’s a fair analogy. Exactly. You have a legal basis under applicable procedures, which are attorney general guidelines, basically, telling the FBI when you can do investigations that include a FISA. And so, once you’ve met that threshold and the FBI decides that it wants to use a FISA, then you go to the FISA court and establish probable cause to believe that the target of the surveillance or search is a foreign power or an agent of a foreign power. But, it’s probable cause, it’s not proof beyond a reasonable doubt. And so, you–and you do that in the middle of an investigation when you’re still trying to figure out what’s going on
Rosenberg: And the probable cause standard, for our listeners, Jim comes from where?
Baker: Comes from the Constitution.
Rosenberg: The Fourth Amendment.
Baker: Exactly. And so, courts have defined it in a variety of different ways but, a shorthand way, there’s many shorthand ways, but a shorthand way–it’s a fair probability based on the totality of the circumstances that a particular fact or circumstance exist.
Rosenberg: Right. And by design, then because it’s an investigative step, and not the investigation in and of itself, it’s a relatively low standard.
Baker: It’s low. There’s no–and people have argued about this a lot–there’s no mathematical number that you can assign to, to probable cause. It’s not 49% percent or 51, or anything like that if you are thinking about it in numerical terms, you’re gonna make a mistake.
Rosenberg: But you can put it on a spectrum and talk about it. For instance, the highest standard of proof that I know of in the law is proof beyond a reasonable doubt, which is what is required to convict someone a trial, and probable cause is manifestly lower than proof beyond a reasonable doubt.
Baker: That’s right.
Rosenberg: But explain to me how that application actually moves through the FBI and then comes to your office at the Department of Justice for your review and then what happens to it.
Baker: So, there were requests and then there are applications. The FBI would make a request for a FISA surveillance in connection—you know, the FBI field office in, I don’t know, Detroit, wherever, would be working on a case. And at the level of the squad working on the case, they would decide: yes, let’s do a FISA. We have the probable cause we think, were justified under the attorney general guidelines, and internal FBI procedures…
Rosenberg: Meaning, we need it
Baker: We need it. We think we need to conduct this search, or we need to do the surveillance because that’ll help us figure out exactly what’s going on here. And so, they will put together a request at the squad level, and then that works its way through the FBI hierarchy, at the field office and at headquarters, before it came over, to our office at OIPR. So, there are a lot of internal reviews by the FBI by agents by supervisors by lawyers before it got to us and then, we would take the request and turn it into an application. And then that also would have a review process by going back and forth between the FBI and DOJ to make sure that it was correct, make sure we had the facts right, make sure that we, at DOJ, interpreted what the FBI was saying correctly, and then they would go through a process of reviewing the underlying documents to make sure that they supported all the allegations in the application.
Rosenberg: So, you mentioned earlier that there were emergency authorizations and those obviously moved quickly, but in a more routine case, this process of back and forth: requests and applications, review in several different buildings by many different people, could take weeks.
Baker: It could take–it could take weeks. Yes, it could take weeks–it could take months, or could take a day. I mean it depending on what level of emergency or urgency it was–
Rosenberg: And how you prioritize.
Baker: And how you prioritize those. So, it was a constant struggle to prioritize it. OIPR, at various times, was accused of being a roadblock, an impediment, slowing the process down, and so on and so there was this constant struggle, this constant stress, this constant debate between the Department of Justice, OIPR, and the Bureau and other folks including you know, hearing about it from members of Congress, about whether OIPR was a rusty gate– we were a gatekeeper, but we are a rusty gate and so on. And this assessment of whether or OIPR’s review was too rigorous, or not rigorous enough, changed over time depending upon who was looking at it. But, the, the rigour of the review, it was consistent even though it improved over time I guess I would say.
Rosenberg: So, was it a fair criticism?
Baker: I didn’t think it was a fair criticism because I thought that we were trying to work on the priorities of the U.S. intelligence community. And if they prioritized work, it was dealt with accordingly. So especially after 9/11, we were in constant communication with the FBI and other elements of the intelligence community about what the most important cases were. And also with the attorney general, I mean we were getting direction from the attorney general about what the most important cases were. I’m sure if you talked to folks from the FBI back in those days, they wouldn’t say “Oh my God OIPR you take forever on these various things,” because you know legitimately to every agent to every field office their request is the most important. But we were running a national program and, and we had to balance our workload based upon the national priorities of the of the federal government, of the intelligence community.
Rosenberg: One of the interesting things about being a lawyer in OIPR, is that when you appear before the federal judge in order to get her to authorize the FISA warrant, you’re appearing alone, meaning the other side is not represented. We call it ex parte.
Rosenberg: In my view, that imposes a special burden on the Department of Justice. And I was wondering if you would talk about that.
Baker: Your view and the view of the ethical roles that we’re all subject to. Right. Because when you’re appearing ex parte, you have the highest duty of candor to the tribunal that exists under, under the ethical rules. So, you have to inform the court about all of the material facts relevant to the application, whether you know–the good, the bad, and the ugly.
Rosenberg: And there seems to be this sense out there that if the other side’s not there then justice can’t be done. That wasn’t my experience because when I brought criminal search warrants to a federal judge, and they were reviewed, I always wanted to ensure that the product I was putting in front of them was thorough and accurate in every respect. In other words, I felt more of a burden because there was no one there to challenge it.
Baker: I felt that burden tremendously.
Rosenberg: Was that the ethos of the office?
Baker: That was definitely the ethos of the office the whole time that I was there. That’s not to say we didn’t make mistakes, of course. But, our objective was to do everything possible to avoid those.
Rosenberg: But what happened when you did make a mistake?
Baker: We did everything we could to figure out whether a mistake had been made and then we corrected it. We told the court. We told the court, we told the attorney general, we told Congress.
Rosenberg: Another important point. You have an obligation to the court when you discover a mistake.
Rosenberg: So, your work at OIPR is not just overseen by federal judges it’s overseen in other ways.
Baker: Yes, especially by the attorney general. Yeah because we had to take applications to get signed, either by the attorney general the deputy, in most cases, and you know, this the same thing. I don’t want to be bringing cases to the attorney general that are messed up or screwed up in some fashion.
Rosenberg: Who else oversees the work of all OIPR.
Baker: A couple other bodies. Internally within DOJ, is the inspector general so we had many times when the inspector general would review our work in a variety of different contexts. So, that was, that was definitely the case. And then in addition, Congress, especially the intelligence committees of both houses of Congress. So, we had to submit on behalf of the attorney, general reports twice a year to the intel committees that were classified at a high level explaining the work that we had done explaining when we had uncovered problems and things of that nature. And then we would frequently go up and do briefings, there’d be hearings, I appeared before Congress many times in various hearings with members and so on, usually behind closed doors.
Rosenberg: Because of the classified nature of the work.
Rosenberg: And in your experience, was the oversight by Congress real or illusory?
Baker: No, it was real. I mean especially the staff members of those committees back in those days for sure, they went over those reports with a fine tooth comb, asked us lots of questions, we go up there for a long time. I experienced it as real oversight.
Rosenberg: You know, Jim going back to my experience as a federal criminal prosecutor, I know that search warrants are almost never denied by federal judges. And I always thought there were two reasons for that. One, is that it just requires probable cause, a relatively low standard. But the other is that we’re really careful when functioning in this ex parte environment, to make sure that the product we’re putting in front of them is sound and accurate and compelling. One of the criticisms of the FISA process and the FISA court by extension, is that it denies very few applications. Is that true.
Baker: That’s true.
Baker: The FISA statute requires that there be a number of signatures on applications before they can go to the court. So, the agent, lawyers at DOJ, a high ranking national security official, like the director the FBI, and the attorney general. So that is a process that takes some amount of time while that’s going on. We figured out that well, why don’t we give the court a copy of the application as it’s moving through the system. And that way, if they have questions, they can ask them. We can answer them. We can try to get additional information. Or, if they spot something that’s screwed up, we’ll fix it. In addition, if they tell us: well we don’t think this application meets the requirements of the statute, we could have a dialogue with the court, and change it. So, there was a robust back and forth between the Department Justice and the court before the thing even showed up in court.
Rosenberg: Now, that’s a bit different than my experience because the only time we would see the judge is when we were presenting to her the application for the search warrant. We didn’t have a back and forth in criminal cases. Was that unusual and proper appropriate. How did that strike you?
Baker: I thought it was totally appropriate. And yeah, it’s unusual for sure. I mean there’s much about the FISA court that is unusual in federal law. There’s no doubt about that. But it was–it was–given the urgency of everything that we were trying to do, the importance of it, the need to get it right the first time, it was–it is what worked, at least, in terms of getting the matters in front of the judge and the legal advisers because they had permanent legal staff, to allow them the time to focus and assess these cases reasonably.
Rosenberg: And I’m sure your, your experience is similar to mine in this respect, if a federal judge thought you didn’t have it, they wouldn’t be hesitant or shy to say that.
Baker: Not at all.
Rosenberg: How long did you spend at OIPR, Jim, after 9/11?
Baker: I stayed there until 2007.
Rosenberg: And how big had the staff grown by then?
Baker: We grew from this small office of around 20 people when I first started there, to an office of about 125 when I left, and we went from about a 1 million-dollar budget up to about 30 million, so it was a huge change over time.
Rosenberg: And you mentioned in the mid and late 1990s you were processing 800 to 900 applications a year. I assume that number changed dramatically too.
Baker: Yeah, that went up to somewhere around 2000 or something like that. There was quite a bit. And on top of that, we built–and we built a secure classified I.T. system and ran that. We built a new way to write the FISA applications that was highly automated that made things a lot faster and more accurate. And so, we had contractors come in to do that. We were we were innovating constantly in order to make sure that the system was as efficient as possible and as accurate as possible.
Rosenberg: An interesting side note. The Foreign Intelligence Surveillance Court, the federal judges used to physically sit in the Department of Justice building. And that changed.
Baker: That changed, yeah.
Rosenberg: When, and why?
Baker: It was not that long ago, I don’t remember the exact year. Look, the fact that the court was in the Department of Justice was mainly an issue of convenience and security. And again, back to your earlier point, these are independent, federal judges who spoke their mind, and who, on any number of occasions, told me very clearly what it was that they thought, especially when they were not happy with something.
So, the idea that somehow, they gave up their independence when they walked in the door of the Justice Department was bogus.
Rosenberg: Yeah, I had always thought that was a laughable claim–the notion that an Article 3 federal judge was captured by the Department of Justice simply because they sat in the same building–just didn’t make sense to me. But nevertheless, they got their own place.
Baker: They got their own pace, they’ve got their own place. And they wanted, you know, I mean they wanted to make sure that both in fact and appearance the court was independent and this was a thing that people brought up constantly. And so, in addition look it gave them more independence administratively to run the court, to have their own physical space, and to be in charge of things, as opposed to having to deal with the DOJ bureaucracy
Rosenberg: Appearance matters too. We have to be fair, and we also have to appear to be fair and I think both of those things are important.
Baker: I agree completely.
Rosenberg: So, you left the department for a time, to go into private sector work.
Baker: Yes, I did some teaching, did a fellowship, and then went to the private sector.
Rosenberg: But, you came back.
Baker: I came back.
Rosenberg: You’re like me, you can’t stay away. When did you come back and why?
Baker: I came back in 2009 to work for David Ogden, who was the Deputy Attorney General at the time, to help him with his national security and cybersecurity portfolio and to help the other team members including Lisa Monaco, who was there at the time, and who had quite a full plate dealing with the various issues that she was dealing with.
Rosenberg: Lisa is also one of the guests on the Oath.
Baker: Very good.
Rosenberg: So, how long did you stay in the deputy attorney general’s office?
Baker: I was there for about two years, I think it was.
Rosenberg: Did you like that work?
Baker: I like that work. That work was interesting and challenging. My favorite part of the work, which I didn’t expect, I was put in charge of the Rule of Law program.
Rosenberg: What does that mean?
Baker: So that means that at that time, the Department of Justice had teams of attorneys, mostly assistant U.S. attorneys, assigned to Iraq and Afghanistan to help them with their rule of law development programs. And I ended up being assigned that responsibility, to be in charge of that program, working with a great team, a guy named Brian Tomney, in particular, in the office who just worked incredibly hard on these programs. They were very challenging, obviously risky environments for our folks to be in. It was a fantastic and very, very rewarding experience.
Rosenberg: But you left the department again.
Baker: Left the department again.
Rosenberg: To go to the private sector again.
Baker: I went back to the private sector. Yep.
Rosenberg: OK. But you couldn’t stay away
Baker: I couldn’t stay away, even that time, yeah.
Rosenberg: When did you come back, and why?
Baker: I came back to–well to the Department of Justice, this time to the FBI.
Rosenberg: Which is part of the department.
Baker: Is part of the–just the part of the Department of Justice–another component, just like OIPR was a component. And so, I used to laugh about the fact when I was the head of OIPR, I was I was technically on the org chart the same rank as Bob Mueller…
Rosenberg: But we know in real life–
Baker: in real life, right.
Rosenberg: That’s just not true.
Baker: And so, yeah, I came back and went to work for the FBI as a general counsel.
Rosenberg: So, Jim Comey was the FBI director at the time.
Rosenberg: And so now you’re on the other side of the street ,both literally and figuratively from the place you used to work, but you’re still involved in the national security work of the FBI.
Baker: That’s right.
Rosenberg: But also, and I don’t know that folks appreciate this, a whole bunch of other things passed through the Office of General Counsel of the FBI. It’s a big complicated place.
Baker: The FBI is a big complicated place. Yes, 38000 employees. I think another 20000 contractors that work there, spread out across the country, around the globe, doing all kinds of different types of investigative and investigative support activities on a 24/7 basis doing a range of high risk activities.
Rosenberg: And the Office of General Counsel is large and handles a variety of topics from investigative support to Labor and Employment Law, and tort law, and environmental law, all sorts of things.
Baker: Like property law. Exactly everything right. Yeah, it’s a general counsel’s office.
Rosenberg: And you were the general counsel.
Baker: I was a general counsel.
Rosenberg: Did you like that?
Baker: It was an extremely rewarding and challenging job. Did I like it every single day? I’m not sure I would always say that.
Rosenberg: I was about to say your first answer sounded a little bit canned, Jim
Baker: It was a rewarding and extremely hard job.
Rosenberg: What did you like about it and what didn’t you like about it?
Baker: Sharing in the mission of the FBI: that was the best part and the most rewarding part. And it was the thing that brought everybody in the FBI together constantly. So, even though we might have disagreements, even though there might be arguments about legal issues, or investigative issues, or turf battles inside the organization, time and time again everybody would reunite around the core mission of the FBI, which is to protect the American people and uphold the Constitution.
Rosenberg: And what didn’t you like about it?
Baker: It’s just an extremely demanding job with something coming at you all the time.
Rosenberg: We had mentioned in passing cyber, one of your responsibilities when you went to work for the deputy attorney general. Can you talk a little bit about the role that cyber issues play in the life of the FBI?
Baker: Cyber issues have become over time, absolutely critical to the FBI being able to do what I just described a second ago: protect the American people and uphold the Constitution. You’re really not a competent FBI person no matter what your job is anymore. If you don’t have a substantial understanding of the cyber world. And the cyber world is pretty broad. It goes beyond just hacking, but it has to do with all things having to do with the very complex digital ecosystem that we all live in now.
Rosenberg: And the challenges it poses for law enforcement.
Baker: For law enforcement, for national security. You mentioned labor and employment cases, there’s technological aspects to that, that people have to deal with in terms of just being able to litigate those kinds of cases. The digital ecosystem, as I say is, just pervasive, and it’s part of us, and it’s really to in my mind, hard anymore to distinguish between what’s digital reality and what’s real reality.
Rosenberg: Jim, what is encryption?
Baker: One way to describe encryption, I think, is a mathematical process that makes it impossible to read certain text. Let’s say for example, without the appropriate key. So, you need a key that is maintained in a certain secure way to unlock the scrambled text, basically, of a document.
Rosenberg: An encrypted message would be something written, essentially in invisible ink.
Baker: It’s more like gibberish: somebody could see it, but you can’t make sense out of it.
Rosenberg: And so, here’s a simplistic question, but I’m hoping for a sophisticated answer: does it make the work of the FBI easier or harder?
Baker: I guess, I would say it makes it harder because the bad guys communicate with each other and affect their evil plans.
Rosenberg: Without you seeing it.
Baker: Without you see—yes.
Rosenberg: Even with a court order.
Baker: Even with a court order, yeah for sure. I mean the whole going dark problem involving encryption and so on, was a significant issue. But even putting encryption aside for a second, just the, the multitude of ways that the bad guys can communicate with each other and undertake harmful illegal activities over the Internet, basically.
Rosenberg: You referred to going dark–what is going dark? what does that define, what problem set?
Baker: The basic problem with going dark is that federal, state, local law enforcement authorities, as well as elements of the intelligence community, increasingly are unable to obtain electronic communications even when they have the appropriate legal authority to do so.
Baker: It’s a variety of reasons. So, some of it has to do with encryption that a lot of people have talked about, but other elements have to do with just the way that communication networks are configured, the way they’re run, the way that companies didn’t build them anticipating that they would receive warrants and orders from courts, and so it’s difficult for them to just affect it
Rosenberg: In the movies, Jim, the FBI always breaks through the encryption–you’re just staring at me.
Baker: It’s not true in real life. Obviously as happened in the San Bernardino case involving Apple, eventually, we were able to break through the encryption but that it just doesn’t happen all the time.
Rosenberg: You mentioned San Bernardino–I’m glad you did. What happened in San Bernardino, California in 2015?
Baker: There was a terrorist attack that killed many people and injured many people. And the FBI was responsible for investigating that. We obtained, among other things, as evidence, a phone of one of the perpetrators. And we wanted to see what was on the phone
Rosenberg: And what precluded you from doing that?
Baker: The way that the phone was designed, by Apple, to make it difficult/impossible for anybody to get into the phone without the passcode.
Rosenberg: Did the FBI seek Apple’s assistance?
Baker: The FBI sought and obtained first a search warrant, as well as an order from the district court directing Apple to help us. And then, we took that to Apple and Apple said that they didn’t believe that the law required them to comply with that order.
Rosenberg: Did you push the issue? Did you litigate that? What happened?
Baker: We started a process–working with the Department of Justice–we started a litigation process to enforce the order and Apple as was–their right under law in the United States, they resisted it.
Rosenberg: And I think that’s a really important point. Apple had a different view of the law and that’s their right.
Rosenberg: What was their view.?
Baker: Their view was that simply, the law that existed at the time, didn’t enable the government to obtain the relief that it wanted. The government wanted Apple to essentially unlock the phone, to decrypt the contents of the phone so that we could see what was in there, to see if there were any investigative leads that made sense for us to follow up on to determine who else may have helped the terrorists, or whether there was another plot afoot involving other people.
Rosenberg: And what was Apple’s position with respect to that request?
Baker: Apple’s position was we have designed our product in a certain way to make sure that is secure for legitimate lawful reasons, and that we, Apple, do not believe that the law that the government’s trying to rely on, to force us to reengineer our devices, is sufficient. Thus, that the law was not sufficient to require them to do something like that. ‘
Rosenberg: Sounds like a standoff.
Baker: It was a standoff pursuant to the way the United States works under the rule of law. When you have a disagreement between parties over a legal matter, you go to an independent judiciary to sort it out, and that’s what, that’s what we did. We went to court to sort it out.
Rosenberg: It’s so important here that we not demonize either side when these types of stand offs when these types of debates arise. Both sides had legitimate concerns and articulated legitimate positions.
Baker: That’s right. That was our position throughout. Yes.
Rosenberg: And to your point, Jim, that’s how it’s supposed to work.
Baker: That’s how it’s supposed to work
Rosenberg: Are security and privacy mutually exclusive?
Baker: I don’t think so. A lot of people seem to say It’s privacy versus security and so on. But I think that’s the wrong way to think about it. It’s part of the FBI’s–and I always thought this–is part of the FBI’s responsibility to protect privacy for lots of different reasons: to protect Americans from identity theft, to protect our data from being stolen by foreign adversaries, and to protect the integrity our financial system, for example. So, privacy is critically important to protecting the national security of United States and enforcing the criminal law.
Rosenberg: What you wanted was to get into the phone of the dead terrorist to see what investigative information and what leads you could obtain.
Baker: That’s exactly right.
Rosenberg: Did you ever get into that phone?
Baker: We got into the phone.
Rosenberg: But not with Apple’s assistance.
Baker: That is this correct.
Rosenberg: How did you do it?
Baker: The case became very prominent in the press and a lot of people heard about it. And so, someone volunteered to assist us and came forward and contacted us what they thought was a mechanism by which we could get into the phone
Rosenberg: And that someone, and I know that’s classified, turned out to be correct.
Baker: Yes. That–we were able to use that mechanism to get into the phone.
Rosenberg: But that’s sort of a one off, Jim, meaning that the FBI with all of its resources in a very high-profile case, this horrific terrorist attack in San Bernardino, California, was able eventually to get into a single phone. But the problem is broader than that for law enforcement and for the intelligence community, isn’t it?
Baker: The problem is broader. That’s absolutely correct. And certain tools work for certain types of phones at certain times. These kinds of tools, some people refer to as “lawful hacking.” I’m not in love with that term, but that’s a term that’s used. Those tools don’t work all the time, and they’re not available to everybody in law enforcement across the United States.
Rosenberg: And not everybody in law enforcement has the resources or the expertise of the FBI.
Baker: That’s exactly right. Because way to pay for that tool with respect to San Bernardino and it cost a lot. We’ve not disclosed how much, but not everybody across the country is going to have those resources.
Rosenberg: And right. So, a small sheriff’s office or a small city police department probably can’t get into a device the way the FBI can, even with a court order. This seems to be a situation where both sides have legitimate concerns and legitimate needs, but that there’s not a lot of middle ground–that there may be room for compromise, but that compromise is difficult.
Baker: Well, compromise is difficult both, both sides are well-meaning. So even in the midst of the debate an argument with Apple, we never questioned their motives, or their good faith, or their patriotism because they, they don’t want their devices used for bad things like that.
Rosenberg: But on the other hand, what they market is among other things is privacy.
Baker: They now market privacy, yes. Some of their more recent ads specifically talk about privacy absolutely. Privacy is a national security concern also. It is important for the FBI, as part of its mission, to protect privacy. And I could talk about that for a while if we wanted, but that’s definitely something that we should be doing. Encryption is one way to protect privacy. Right now, there’s no clear solution to this. And so, I mean, one of our objectives during the time, both before San Bernardino, during it, and after, is to really put the country on notice about this problem and what and the difficulties that it was creating, and is creating for law enforcement. As we said many times, the FBI was and is the servant of the American people. We would do what Congress and the attorney general would tell us to do. We would use whatever tools they gave us. We put everybody on notice about this problem, especially through the San Bernardino litigation. Congress has not acted. It has not acted even though it has that information. I don’t see some magical fix out there for this problem. Absent-some legislative action by Congress that’s not forthcoming.
Rosenberg: Has law enforcement lost the encryption debate?
Baker: I think the reality is: yes, at least for the moment.
Baker: Well, as part of the going dark discussion, that really started under Director Mueller, was continued by Director Comey, part of the apple litigation, and thereafter, the FBI made it a point to explain to Congress and American people that there was a problem that encryption, while it has great uses in many instances—
Rosenberg: in fact, the FBI uses–
Baker: –FBI uses encryption all time, and has you know, very many benefits for society, it also has costs, and those costs were impacting us in terms of how we were able to conduct our investigations. We put that in front of the American people, we put them in front of Congress–Congress hasn’t changed the law. I think at the end of the day, that’s what needs to happen. If if anything is to happen that is what would be required. And nothing has happened.
Rosenberg: And for now, in the absence of congressional action, there doesn’t seem to be much of a path forward.
Baker: There doesn’t seem to be an easily accessible technical path forward and there appears to be no legal path forward.
Rosenberg: But you have another way of thinking about this, don’t you?
Baker: Yes, I do. And it’s something that’s–I’m not very–I guess I wouldn’t say happy just to say, and it pains me in some ways having spent so much time working on this issue, but I think as we were just saying that law enforcement has lost the debate and I think you just have to accept that at least for the time being. Look, at the end of the day. One of the greatest threats to the American people right now comes from the cybersecurity world–that we face existential threats because of the poor state of our cyber security relative to the threats that are out there, the vulnerabilities that we face, and the risks that remain unmitigated. There’s a big, big risk for the country having to do with cybersecurity. Encryption is one thing that might help us improve cybersecurity, generally speaking. And so, I think that given the responsibilities of the National Security, parts of the government, and law enforcement, if we think about our obligation to protect the most people from the biggest threats, then encryption is going to help us do that. There will be costs, there will be investigations that we can’t solve, there will be victims that we can’t help.
Rosenberg: But in a sense, Jim, that was always true, even in the analog world, there were investigations we couldn’t resolve, and there were victims we couldn’t help.
Baker: Exactly. And the Fourth Amendment makes a very important choice. It says that we’re going to put impediments in the way of law enforcement. We’re going to make them do searches and seizures that are reasonable. If they’re going to get a warrant, they need to get–they need to establish probable cause before they can get a warrant. That puts an impediment in the way of law enforcement, law enforcement does not get to do everything that wants, and that’s good. That’s, that’s consistent with the values of the United States since our founding. And so, this is another set of impediments that we face that the American people, through their elected representatives in Congress, have decided to accept. That it’s more important to protect our privacy, and I as I’m arguing, our cybersecurity through tools such as encryption.
Rosenberg: You’re implying that Congress made a decision. I might argue Congress has made no decision–that it’s pure inaction as opposed to some conscious choice to move forward in a particular way.
Baker: I would–I guess I would disagree with that. Many members of Congress are fully aware of this. Various committees have looked at this issue and decided not to act and I think that is cognizable, can be recognized as–a failure to act is an action.
Rosenberg: Fair enough, we can agree to slightly disagree.
Baker: Slightly disagree on that one, yeah.
Rosenberg: Jim, there’s another topic I wanted to cover with you, and I think it’s really interesting and really important because it illustrates something that federal law enforcement—well, law enforcement at all levels, wrestle with all the time, which is getting stuff right. When you were General Counsel of the FBI you inherited an issue involving analysis done at the remarkable FBI lab, and it really is a remarkable place–incredibly dedicated and talented men and women who do forensic work for the FBI. This involved a particular type of analysis done there, the analysis of hair. Can you set that up for us?
Baker: At the FBI lab, they do many things to try to help investigators figure out what happened who’s responsible for a crime whether a crime was committed. Things of that nature. And so, one of the tools that they use, is something called microscopic hair analysis, which is literally putting two strands of hair under a microscope, and comparing them.
Rosenberg: And this is not a DNA comparison.
Baker: The FBI does those too.
Rosenberg: But this is not–
Baker: This is not that. That’s right. Historically over the years, there’s been a way to microscopically examine hair, and then make certain scientific conclusions based on those observations.
Rosenberg: What went wrong?
Baker: What went wrong, was it over the course of a number of years, FBI experts who were called upon to submit reports, or testify in courts around the country, at various levels: federal, state, local, essentially misstated what the science would allow them to say about the results of the investigation.
Rosenberg: To put it another way, I mean, this is a question: did they go too far in their conclusions?
Baker: They went, essentially, we could dig into it, but yes, essentially, they went too far in stating the certainty with which they could make certain assertions of what they observe
Rosenberg: And so, what were the ramifications of that?
Baker: The ramifications were that injustice was done in certain cases.
Baker: By evidence being submitted to juries that was not correct.
Rosenberg: So, what does the FBI do? what do you do? You’re the general counsel of the FBI–you’ve inherited the problem. What do you do to fix this? Because I’m assuming you’re talking potentially about scores if not hundreds of cases around the United States.
Baker: There were many, many cases that had to be reviewed.
Rosenberg: In the hundreds.
Baker: At least, I think was in the thousands, but it was a substantial number of cases that had to be reviewed. That doesn’t mean there were problems in every single case. In order to be thorough, we wanted to go back and review every case that we could possibly review.
Rosenberg: So, I can imagine that in federal cases, it’s relatively easy because the FBI is part of the United States Department of Justice. By relatively easy, I mean, that you can more readily identify which cases you had a review, but if you’re talking about getting records from state and local courts around the country, that can be more challenging.
Baker: That was more challenging, and that was definitely part of what we had to do. We had to get trans–trial transcripts for example, from decades ago.
Rosenberg: How do you do that?
Baker: There was a massive effort involving the FBI, the Justice Department, the Innocence Project, the National Association of Criminal Defense Lawyers, all working together to try to address this very significant problem, the significant challenge, to the integrity of the criminal justice system
Rosenberg: And what’s so interesting to me, and I followed it, but I wasn’t in your seat, was that the FBI partnered with both the Innocence Project and with the National Association of Criminal Defense Lawyers.
Baker: Yes, we did, yeah
Rosenberg: A partnership that many people might not expect.
Baker: That’s true, except if you step back for a moment, everybody is committed to the integrity of the judicial system in the United States
Rosenberg: And should be.
Baker: And should be. It’s one of our crown jewels: the integrity of the system, is critically important to the liberty and security of all Americans. We need to make sure it works right and that it produces justice. And so, all of us are committed to that. So, in some ways, it was an odd grouping of folks working on these issues, but in other ways, not because everybody is committed to the integrity of the system.
Rosenberg: It actually makes perfect sense that everybody who works in the system, who participates in that system, wants to get it right
Baker: Wants it to be just, exactly.
Rosenberg: So what happened?
Baker: So, we went through methodically this very elaborate years long process full of debate and argument and good challenges towards each other, and to make sure that we identified and took steps to address the problems that we identified. The goal at the end was to make these cases right and to, to the best of our ability to make sure that justice was done.
Rosenberg: And I imagine, Jim, to fix things going forward.
Baker: Absolutely. Yes. To fix things going forward.
Rosenberg: The men and women in the FBI lab obviously want to get it right. I am sure this was a difficult period for them. I trusted and formed their judgment and their processes in other facets of their work.
Baker: Yes, they wanted to get it right and they were looking at other areas, other forensic sciences that they engage in to make sure, again, that they’re doing the right analysis, that witnesses from the lab are testifying correctly in court.
Rosenberg: You know, Jim, we’re all human so we’re all fallible and therefore we all make mistakes. I guess the lesson from this, is that you have to identify those mistakes admit them and fix them.
Baker: Yes, even when it is difficult to do, right, at a number of different levels particularly when it’s difficult.
Rosenberg: Yes, you’re no longer with the FBI you’re teaching at Harvard and you’re part of a think tank in Washington D.C..Do you miss the work of the Justice Department and the FBI?
Baker: I miss the work of the Justice Department and the FBI. It’s an amazing institution—institutions—but, you know, one large institution the Department of Justice. It’s a great place to work. It’s extremely rewarding to work there. The people at both organizations are fantastic.
Rosenberg: You said that earlier, that it was about the people.
Baker: It’s all about the people. These institutions are just people, right. They have buildings and offices that people go to, but at the end of the day, there are groups of people who share common values, and who agree to work together in a certain way, trying to fulfill, in this case, a very important mission for the American people.
Rosenberg: Jim Baker, thank you so much for sitting down and talking with me.
Baker: You’re welcome, Chuck. It has been great.
Rosenberg: It’s a real pleasure my friend, to spend some time with you.
Baker: Likewise. Thank you.
Rosenberg: My thanks to Jim Baker for a great conversation, and to you for listening. I hope that you enjoyed it as much as I did. Next time on the Oath, I sit down with Sally Yates. Sally was the deputy attorney general of the United States, the second highest ranking position in the Department of Justice. And briefly, before she was fired by President Trump, she was the acting attorney general of the United States. I have a deep regard and respect for Sally, and I think you’ll really enjoy our conversation about her time at the justice department. Thank you so very much for listening to the Oath. If you like our show, rate us well on iTunes, or on whatever platform you use to listen.
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