DHS policy shop may reshape agency priorities

A few hours after Homeland Security Secretary Michael Chertoff announced his plans to restructure the department last Wednesday, the White House nominated Stewart A. Baker to become assistant secretary for policy there.

Baker, who notes in his biography that The Washington Post in November 1995 described him as "one of the most techno-literate lawyers around," is a partner with Steptoe & Johnson in Washington.

His experience suggests he would bring a nuanced understanding of how technology may significantly improve security, as well as deep knowledge about how the intelligence community works and too often fails to work. From 1992 to 1994 he was general counsel at the National Security Agency; more recently, he was general counsel for the Commission on the Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction.

The commission, which released its final report in March, found crucial shortcomings in the intelligence community's structure, resources and capabilities for dealing with threats to U.S. security. It was co-chaired by former Virginia Sen. Charles Robb and Judge Laurence H. Silberman, the senior judge on the U.S. Court of Appeals for the D.C. Circuit.

Baker's testimony in December 2003 before the National Commission on Terrorist Attacks Upon the United States, known as the 9/11 Commission, offers insight into the priorities he might bring to Homeland Security.

In particular, he detailed how inadequate technology tools and undue privacy concerns prevented law enforcement and intelligence personnel in August 2001 from finding two known terrorists living openly in San Diego under their own names. The two, Khalid al-Mihdhar and Mawaf al-Hazmi, flew American Airlines Flight 77 into the Pentagon on Sept. 11.

"We need to be able to conduct searches of private databases to locate terror suspects not just by name but also by address, phone number, credit and bank card number, and other potentially identifying information," Baker testified.

Privacy abuses, Baker said, can be prevented by controlling access to data, conducting electronic audits, and through a cryptographic tool known as anonymization, which allows data to be shared while still controlling conditions of access to that data. For example, lists could be encrypted and then compared electronically. Only items common to both lists would be identified.

Such technologies are not perfect and need to be carefully tested, he said, but he was emphatic that they will be essential to balancing privacy with the needs of law enforcement and intelligence agencies.

"We cannot write rules that will both protect us from every theoretical risk to privacy and still allow the government to protect us from terrorists," he said.

Baker would potentially become a major player at Homeland Security as Chertoff intends to elevate the position to undersecretary status, creating a policy structure similar to that of the Defense Department.

Under Chertoff's plan, which will require congressional authorization, five offices would fall within the purview of the undersecretary for policy: assistant secretary for international affairs; assistant secretary for strategic plans; assistant secretary for policy; assistant secretary for the private sector; and directorate of immigration statistics. At Defense, about 1,300 people work in the various offices managed by the undersecretary for policy, according to a department spokeswoman.

Retired Adm. James Loy, former deputy secretary at Homeland Security, said one of his greatest frustrations at Homeland Security was the lack of a capacity for developing long-range strategy. Loy is now a senior counselor in The Cohen Group, a Washington-based consulting firm.

The policy capability that Chertoff has mapped out, especially with its office devoted to international affairs, is critical to Homeland Security's future, he said. "I don't think we had a single policy conversation that didn't have international implications. This will create a context for making critical investment decisions."