FOR YOUR INFORMATION, I HAVE ENCLOSED A PORTION OF AN UNCLASSIFIED ADDRESS BY FORMER GENERAL COUNSEL ROBERT M. MCNAMARA, JR. BEFORE THE ABA STANDING COMMITTEE ON LAW AND NATIONAL SECURITY ON 1 DECEMBER 2000.

• Document Type: FOIA
• Collection: FOIA Collection
• Document Number (FOIA) /ESDN (CREST): 06230271
• Release Decision: RIPPUB
• Original Classification: U
• Document Page Count: 14
• Document Creation Date: December 28, 2022
• Document Release Date: June 26, 2018
• Case Number: F-2008-01274
• Publication Date: January 7, 2002

Approved for Release: 2018/05/16 C06230271
OFFICE OF
CONGRESSIONAL AFFAIRS
DATE: 7 Jarman/ 2002
TO: Mr. Andrew Napoli
Office of The Honorable Christopher H. Smith
PHONE: [phone]
FAX NO.: [phone]
FROM:
PHONE:
FAX NO.
COMMENTS:
(b)(3)
For your information, I have enclosed a portion of an unclassified
address by former General Counsel Robert M. McNamara, Jr., before the ABA
Standing Committee on Law and National Security on 1 December 2000. The
document provides useful background information on unauthorized disclosure
legislation and the damage caused by unauthorized disclosures. As required
by Sec. 310 of H.R. 2883, the Intelligence Authorization Act for Fiscal Year
2002, the Attorney General, in consultation with the DCI and other heads of
U.S. government departments and agencies, is currently conducting a review of
the laws and regulations governing unauthorized disclosures and whether
modifications to law or regulation are required to prevent future unauthorized
'disclosures.
I hope this information is useful to Representative Smith in responding
to his constituents. If you need additional information or would like to speak
with me further, feel free to call me on
(b)(3)
NO. OF PAGES PLUS COVER: 5
Approved for Release: 2018/05/16 C06230271
* *
' DATE TIME ADDRESS
TRANApproved for Release: 2018/05/16 C06230271
FW-1-QMI�k JHri. r.delud 3:38PM ) * * *
TTI OFFICE OF PUBLIC AFF
MODE TIME PAGE RESULT PERS. NAME FILE
P. 1
JAN. 7. 3:35PM
202 225 7768 TES 2'29" P. 5 OK
# :
BATCH
C
:
CONFIDENTIAL
$ :
TRANSFER
P
:
POLLING
M :
MEMORY
L
:
SEND LATER
:
FORWARDING
E
:
ECM
:
STANDARD
D
:
DETAIL
F:
FINE
>
:
REDUCTION
820
Approved for Release: 2018/05/16 C06230271
LSPEEt54 ABA Nat'l Securi Dec 00.doc
Approved for Release: 2018/05/16 CO6230271
National Security Law in a Changing World:
The Tenth Annual Review of the Field
American Bar Association
Standing Committee on Law and National Security
Capital Hilton
Washington, D.C.
1-2 December 2000
Panel I: Round Table Discussion
(1 December 2000)
Survey of New Developments In National Security Law: Executive
Branch Perspectives
(Moderator: Elizabeth Rindskopf Parker. Panelists:
Jane Dalton JCS, Bob Dietz NSA GC, Bob McNamara CIA GC,
Larry Parkinson FBI GC, James Thessin DoS)
Introduction
Thank you, Elizabeth. I appreciate your warm introduction,
and am happy to serve on this panel again with my esteemed
colleagues.
I have been General Counsel of the Central Intelligence
Agency (CIA) for three years now and the issues we face remain as
challenging, if not more so, as the day I arrived. Some of the
issues we discussed last year--such as intelligence collection in
the information age, or intelligence support to war crimes
tribunals--continue to occupy much of our time and energy.
Meanwhile, additional issues have come to the forefront,
including how best to address the continuing problems of
unauthorized leaks of classified information, and the use of
intelligence to support United States law enforcement activities
abroad.
We attorneys, like the intelligence agencies we represent,
must be responsive to the enduring challenges and creative in
addressing the new ones. We have to be willing to move beyond
the "tried and true" to get to solutions that will work in the
Approved for Release: 2018/05/16 C06230271
SPEECH ABA Nat'l OO.doc
Approved for Release: 2018/05/16 C06230271
new millennium, but maintain as a constant the rule of law.
I would like to briefly discuss four issues of concern,
namely:
How to address the continuing and serious problem of leaks
of classified information
How best to support international law enforcement within the
boundaries of our own authorities
How to employ new collection technologies under the law in
the Internet era, and
How best to provide support to international war crimes
tribunals, without needlessly risking our sources or
methods in the course of multinational litigation.
Leaks
As you know, on November 4th the President vetoed the FY
2001 Intelligence Authorization Act, because of what he termed
"one badly flawed provision" on leaks. The leaks legislation was
intended to stem the tide of unauthorized leaks of classified
information that have caused serious damage to both technical and
human sources.
Over the last two years, CIA's Center for Security has
opened more than 150 investigations of alleged leaks. Although I
cannot cite specific examples, let me assure you that the lives
of covert sources have been placed in jeopardy and the
Intelligence Community's ability to collect vital intelligence
has been seriously impaired by these leaks--many of which are
simply not covered by the existing espionage laws.
As the President's veto statement made clear, he viewed the
provision as overbroad and one which would unnecessarily chill
legitimate activities. In large part, the President's concerns
were reflected by critics of the draft legislation who derided
the proposal as an attempt to enshrine into American law an
Official Secrets Act, and who claimed that such a statute was
unnecessary in light of the current espionage laws. Many
commentators also raised the specter that the Government could
subpoena a reporter in an attempt to discover the source of the
leak, and asserted that the provision would somehow
unconstitutionally infringe the freedom of the press.
Approved for Release: 2018/05/16 C06230271
SPEECH ABA Nat'l Security Dec.00.doc �\
Approved for Release: 2018/05/16 CO6230271
The Department of Justice (DoJ) had worked closely with the
Intelligence Committees and the Intelligence Community, including
the National Security Council and Department of State, to fashion
a narrowly constructed prohibition. DoJ reviewed the final
proposal and determined that it was constitutional since it was
directed only at Government employees and contractors, and there
is no constitutional right of an employee or contractor to breach
his trust and to leak classified information.
With respect to the issue of press freedom, there exists
current authority to subpoena reporters during an investigation
under 18 U.S.C. �793, however it is long-standing DoJ policy to
prevent the issue of a subpoena to a reporter without specific
approval from the Attorney General--and such an approval has
never been granted.
In the meantime, the existing laws by which the Government
may deter and punish leakers who put lives at risk remain
limited. The simple fact is that existing law protects only
information relating to the national defense, cryptographic
information, and the identities of intelligence officers and
agents. But information regarding some covert action programs,
our liaison relationships with foreign governments, intelligence
on narcotics trafficking and money-laundering, and our
counterintelligence capabilities are not protected by the terms
of the existing criminal statutes.
Administrative sanctions are not the answer. Administrative
sanctions--such as firing, reprimand or leave without pay--may be
imposed upon current government employees if they are found to
have leaked classified information. Those avenues, however, are
not available to discipline former employees or contractors.
At most, an individual's continued access to classified
information may be withdrawn--a deterrent to be sure, but an
insufficient one, especially when the leak jeopardizes the life
of an asset, compromises a sensitive foreign intelligence
relationship, or results in the loss of a critical intelligence
capability.
Clearly, any consensus on this issue will be hard to
achieve, but we must work together to find a workable solution.
Some have suggested that we limit any new statute to protect only
Sensitive Compartmented Information, which is clearly the most
closely held set of information, but any statute so limited would
exclude, for example, information derived from certain liaison
Approved for Release: 2018/05/16 C06230271
SPERM ABA Wart Security Dec 00.doc
Approved for Release: 2018/05/16 C06230271
relationships with foreign governments, details on how we
establish and run CIA proprietary companies, information on
sensitive counter-intelligence targets--each of which, if
disclosed, still can damage our ability to collect foreign
intelligence which is needed by the policymakers and the war
fighters to do their jobs.
In the course of discussions on the proposed statute, some
have suggested imposing a requirement that the Government must
prove actual harm from a disclosure in order to obtain a
conviction. I do not support that approach, for it seems to me
that the result would be to require the Government to disclose
even more classified information in order to prove its case,
thereby compounding the damage from the original leak. This
approach would also encourage defendants to attempt a "graymail"
defense. In other situations, it may not be possible immediately
to quantify the harm or to assess the damage because of the
long-term effect of the leak itself.
As an alternative to a requirement that the Government show
harm from a specific disclosure, the suggestion has been made
that the Government simply establish that the defendant intended
by the disclosure to harm the US. But intent to cause harm is
not really the issue in these types of leaks--it is the fact that
regardless of intent, these leaks, simply put, can get our
sources killed or negate our capabilities. It is little solace
to the families of those assets, or to our, national intelligence
effort, that the leaker, who often is far removed from any
appreciation of the consequences of his or her actions, did not
intend that result.
As I said earlier, we need to find a solution that both
protects properly classified information from unlawful disclosure
and ensures that the press remains free and robust. The
compromise of either of these critical values is not an
acceptable solution.
International Law Enforcement
As the world shrinks, the reach of criminal law systems of
both nations and international organizations has grown. One
trend that we expect to continue is the increase in
extraterritorial application of US criminal laws. For example,
the 1.996 Antiterrorism and Effective Death Penalty Act
criminalized certain terrorist actions no matter where in the
world they occur.
Approved for Release: 2018/05/16 C06230271
SPEECH ABA Nat'l Security Dec 00.doc
Approved for Release: 2018/05/16 C06230271
And other nations, of course, have enacted criminal laws
relating to terrorist attacks by or against their own citizens.
Our intelligence activities in this area require coordination and
cooperation with the various Federal law enforcement agencies,
especially those like the FBI that have both law enforcement and
intelligence components.
A prime example of the growing convergence of foreign (W(1 )
intelligence and international law enforcement is the work of the(b)(3)
two communities in the field of counterterrorism. As you know,
An instance in which the interaction of law enforcement and
intelligence operations became critical was the period
surrounding the Millennium celebrations in January of this year.
Just as in years past when the Olympic Games were an obvious
terrorist target, the Millennium celebrations could have
generated huge audiences for terrorist attacks. Many threats
against US citizens and interests arose around the world during
that time.
One individual was arrested by US Customs officials while
crossing the US border between Canada and the state of Washington
with bomb-making materials in his car. Others were arrested in
the Middle East by Jordan, which subsequently announced that the
persons in custody had planned attacks on popular tourist sites
there. Additional information about threats came from numerous
individual informants volunteering their knowledge.
In all these cases, the collection and evaluation of
intelligence had to be done in coordination with law enforcement
interests and authorities. The intelligence mission was to
gather and provide timely warning information to US policy makers
Approved for Release: 2018/05/16 C06230271
TLESILI A136�...laSiaatij29,919.J22_
Approved for Release: 2018/05/16 C06230271
so that future attacks could be prevented, disrupted, or
mitigated. In addition to those goals, the law enforcement
mission sought to capture and subject to criminal trial those
persons conspiring to or carrying out terrorist attacks. This
required additional efforts to preserve information for possible
use as evidence in future prosecutions.
In these areas and others where the intelligence and law
enforcement communities have had to work together to acquire
information, particularly overseas, we have had to asked
ourselves whether information is potential evidence or does it
have value as intelligence? More often now, the answer is both.
And it is critical that the information be exploited for both
purposes--we will look to prosecute past criminal acts and foil
future ones.
Fortunately, we now understand that and work to preserve the
value of what we collect to satisfy both governmental needs.
Although I cannot comment in detail about the current
investigation into the attack on the USS COLE in Aden harbor, I
can say that the same considerations are in play, as they were
during the bombings of the east African embassies in 1998.
As you all know, documentary evidence requires use of
originals. Intelligence analysis does not. You can see that in
this instance the US Government can preserve an original document
for possible evidentiary use while permitting the intelligence
community to use a duplicate to satisfy intelligence needs.
While this may seem like an obvious solution, I can tell you that
just a few short years ago, this duality was not easily
satisfied. So we have come a long way.
Countering foreign terrorists has both intelligence and law
enforcement components. We do have some statutory schemes that
erect a legal line between the two, such as the Foreign
Intelligence Surveillance Act. In an increasing number of
activities overseas, however, the complementary and overlapping
nature of the efforts are striking. Although the National
Security Act prohibits CIA from exercising any law enforcement
powers or internal security functions, it may support law
enforcement activities of other Federal agencies by providing
intelligence, expert personnel, and specialized equipment.
The FBI is a law enforcement agency. Yet it has a full
division devoted to counterterrorism that is both an avid
consumer and producer of foreign intelligence information. The
Millennium celebrations showed that international terrorist
Approved for Release: 2018/05/16 C06230271
SPEECH ABA Nat'l Security Dec 00.doc
Approved for Release: 2018/05/16 C06230271
threats do not fall into neat categories of domestic or foreign,
law enforcement or intelligence, diplomatic or military.
Countering terrorist threats is thus a seamless endeavor for much
of the US government.
Intelligence Collection in the Internet Age
2 Another issue that we are grappling with is whether the
legal and regulatory framework developed in the late 1970's and
early 1980's is sufficiently flexible to address foreign
intelligence issues that arise in the context of the new global
information infrastructure.
For years, the dual criteria of geography and status were
sufficient to dictate the rules and differentiate the
authorities. Is the person inside or outside the US; is he a US
person or not? As an example, the CIA lawfully may collect
foreign intelligence information about non-US persons overseas.
At the same time, we are prohibited by law from engaging in
technical surveillance within the United States or collecting
against US persons overseas unless the Attorney General has
approved.
In the relatively recent past, it was fairly easy to apply
these rules, by determining where the target was located and
where the information would be collected. But this is not always
the case in today's environment--electrons flow seamlessly across
borders; user identities and nationalities are often cloaked;
technical attacks against US computers may be made from
undetermined locations anywhere in the world--or the US.
Overseas attackers have been known to establish an illicit
presence on Us networks and launch attacks from overseas
locations, but masquerade as if they are attacking from sites in
the United States. Responding to these challenges can be
similarly complex, yet our statutes and regulations implementing
the Fourth Amendment's protections against unreasonable searches
and seizures are still driven by common law concepts developed in
an age when all communications relied on telephone lines and in
which geography is a critical component.
Complicating the issue of legal authority based upon
location is the fact that cyber attacks against the US
simultaneously raise issues of law enforcement and foreign
intelligence. These issues are not purely theoretical. Several
years ago, the Clinton administration was seriously considering
Approved for Release: 2018/05/16 C06230271
1PEEC4 AB,A Nat'l Secyrity Dec 00.doc
'Approved for Release: 2018/05/16 C06230271
authorizing a military response to certain actions undertaken by
Iraq. As possible US military responses were being discussed in
the media, a significant number of unclassified Department of
Defense (DoD) sites were subjected to a coordinated series of
cyberattacks. A significant number of these attacks appeared to
originate from an internet service provider in the Middle East.
DoD obviously was concerned about its ability to wage
warfare, and explored actions it legally could take to identify
and take action against the perpetrators. DoJ and the FBI wanted
to preserve the ability to prosecute the cyberattackers for what
was a clear violation of US law. The fact pattern also indicated
the possibility of state sponsorship. In that particular case,
the computer network defense community, led by DoD computer
incident response teams and by the DoJ, was able to trace the
attacks back to northern California.
The perpetrators were teenagers who suffered from a severe
case of bad timing. Despite the initial concerns, this
particular case remained almost exclusively a law enforcement
activity. However, it should be emphasized that not all attacks
are so benign; not all attackers are as easily identified; and
not all such activities fall so clearly within law enforcement's
exclusive jurisdiction.
Not only do these issues require effective deconfliction
with law enforcement, but from an Intelligence Community
perspective, it matters greatly whether a US system is under
attack by an organized foreign sponsored collection team, or by
computer savvy teenagers in the US. It is important to remember
that, even in this emerging area, we remain a government of
limited powers. The CIA specifically is not authorized to engage
in law enforcement activities.
As we work through these issues in today's
telecommunications environment, lawyers in the intelligence
community are developing close working relationship across the
community. Lawyers involved in this area also are working
closely with the operators and are becoming much more
knowledgeable on the way the global information infrastructure
works. The attorneys in my office, in close coordination with
the FBI's National Infrastructure Protection Center (NIPC), the
Department of Justice, and attorneys throughout the Intelligence
Community and DoD, are grappling with these issues on a daily
basis.
In addition to playing a role in protecting the US
Approved for Release: 2018/05/16 C06230271
3PEECH ABA Nat'l Security Dec 00.-cla
�
Approved for Release: 2018/05/16 C06230271
infrastructure, we also continue to have as our primary mission
the collection of foreign intelligence information that is of
value to high-level policy makers. The information explosion has
made collection of intelligence information much more
complicated. The sheer volume of information presents a daunting
challenge from both the collection and the processing point of
view.
Our guiding standard continues to be Executive Order 12333
and implementing regulations that have been approved by the
Attorney General. This regulatory framework governs the way in
which the intelligence community collects, processes and retains
information that may contain incidentally collected US person
information. To date, these guidelines have proven sufficiently
flexible that they remain relevant and useful notwithstanding the
changed global telecommunications environment. These remain
cutting-edge issues that will continue to make life interesting
and challenging for intelligence community lawyers for the
foreseeable future.
Support to International Tribunals
As I indicated the last two years, as international
tribunals continue to be created, we anticipate that more demands
will be made for intelligence support. Already there are
tribunals for the former Yugoslavia and Rwanda, the Scots are
trying the Lockerbie defendants as we speak, and although the
United States has not acceded, there soon will be an
International Criminal Court. There is talk of tribunals to
address war crimes issues in Iraq, Thailand, Sierra Leone,
Cambodia, and Indonesia.
The Intelligence Community's support to the US Government
effort in identifying the perpetrators of war crimes and other
atrocities in Bosnia, Kosovo, and Rwanda has been significant.
There has also been an increase in requests for information which
would assist the War Crimes Tribunals in bringing persons
indicted for war crimes to justice. Generally, these requests
for intelligence support are of three types: requests for
background information, requests for leads, and requests for
testimony and or evidence.
The nature of the requests also has changed: we now are
being asked to authorize the use of sensitive intelligence
information for trial, sometimes in the form of unclassified
products derived from our technical collection systems. We have
Approved for Release: 2018/05/16 C06230271
_VSPEECI-I-ABA Nat'l Security Dec 00.doc
-Approved for Release: 2018/05/16 C06230271
worked hard to solve the technical problems of creating products
that are both useful to the Tribunal and do not reveal
intelligence sources and methods. In this effort, we have also
had to address equally difficult legal problems. As much as we
need to support these tribunals, we may not enjoy the same
protections for our sources and methods in those settings as we
do in American courts.
While we continue to look for intelligence information that
will aid in the indictment and prosecution of war criminals, we
also are required by law to ensure that sources and methods are
protected from unlawful disclosure. All of this is being done
within the legal environment of Tribunal's rules of evidence and
practice, which, while on the one hand promise confidentiality,
also guarantee that certain information will be disclosed to the
defendants. That said, both the Scottish panel trying the
Lockerbie defendants, and the International Criminal Tribunal of
the former Yugoslavia (ICTY), have developed processes and
procedures to protect intelligence information. We are impressed
by these efforts, but note that their true effectiveness remains
to be determined.
Perhaps the most remarkable example of CIA support to a
foreign criminal tribunal is that which CIA provided to the
Scottish prosecution of the
two Libyan intelligence officers on trial for the December 1988
bombing of Pan Am Flight 103 over Lockerbie. Because the case is
ongoing, my comments have to be a bit limited.
Colin Boyd, the Lord Advocate of Scotland, has informed me
that Scottish law frowns greatly on commentary on the evidence in
a trial before that trial is concluded. I intend to honor his
wishes. The Agency has invested too much time and effort to this
case to do otherwise. Nevertheless, I can give you some detail
of what I believe to be extraordinary support the CIA has
provided in this case.
Just two weeks ago, the prosecution in the trial rested its
case. The CIA made available to the Scottish prosecution, dozens
of classified operational cables, several classified CIA
laboratory reports, and several officers as witnesses. The
laboratory reports and many of the cables were redacted for
introduction as evidence or disclosed to the defense. Several
officers and a former source have testified to date. Because of
the legal and operational security complexities, CIA assigned
lawyers and a senior Directorate of Operations officer to
support the case. All this is unprecedented.
(b)(3)
Approved for Release: 2018/05/16 C06230271
rSPEEc,'H ABA Nat'l Securit Dec 00.doc
�Approved for Release: 2018/05/16 C06230271
Page 11
The "Law of the Tribunal" is developing, and not always in a
comfortable direction. One case before the Yugoslav war crimes
tribunal is of particular interest because it raises a number of
critical issues. This last summer, the Trial Chamber issued a
very troubling opinion that would extend the Tribunal's
jurisdiction to organizations such as NATO and the UN
Stabilization Force (SFOR), would compel the production of
information by SFOR and its member States concerning the
apprehension of persons indicted for war crimes, and would compel
the testimony of senior US military personnel in their personal
capacity for matters related to their service with SFOR.
In the last year the US also had a very instructive
experience with a truly independent prosecutor. When allegations
were made against the NATO bombing campaign in Yugoslavia, we
were in the unusual and uncomfortable position of having to wait
while Carla Del Ponte, the ICTY prosecutor, conducted a
preliminary inquiry of the allegations. Fortunately, Mme. Del
Ponte concluded that no further action was required by her
office. Nonetheless, this incident was instructive and may
forecast our relationship with other international tribunals,
such as the International Criminal Court.
Our intelligence is also used in parallel public diplomatic
efforts on war crimes issues. When intelligence is used
publicly, our policymakers must be cognizant of the impact of the
public use of intelligence on war crimes prosecutions. For
instance, using intelligence information to publicize suspected
war crimes may, if the public release is premature, cause the
destruction of the very evidence necessary to prosecute those who
committed these crimes.
Finally, I should add a word of caution. Prosecutors,
whether domestic, foreign or international, have to be sensitive
to the fact that intelligence may not provide the evidence they
seek and that intelligence should not be treated as "ordinary
evidence". Although much of our intelligence may support
individual prosecutions, it remains the case that in general our
intelligence collection is designed to learn the capabilities and
intentions of nations, groups, or elements, particularly those
potentially hostile to the US.
Generally speaking, intelligence collection is not
specifically tuned to the collection of information which would
help determine individual culpability. Collection on issues of
individual culpability may occur as a by-product of our
Approved for Release: 2018/05/16 C06230271
SPEECH ABA Nat'l Security Dec 00.dwpproved for Release: 2018/05/16 C06230271
�
intelligence collection efforts, but not as their primary focus.
Also, we often do not have the full story. Consequently, our
analysis and conclusions are often based on hypothesis--supported
by facts. Although the bases for our conclusions may be
sufficient for a US policymaker to make a decision, they may fall
somewhat short of the standard of proof required in a criminal
case.
Conclusion
These issues clearly pose substantial challenges. There are
no easy solutions, and if there were, this job would be much less
interesting.
Approved for Release: 2018/05/16 C06230271