The U.S. versus Apple

Who doesn’t like computer security? Who doesn’t want more of it? Government agencies, retailers, restaurant chains, banks, credit card companies, insurance companies, and the entertainment industry have all been hacked. They all want more computer security, at least for themselves. Individuals want more of it, too, especially on their mobile phones. Credit card numbers and bank account numbers are likely to be stored there. So are the names and phone numbers of friends, and possibly of contacts we’d like to keep secret. Within our mobile phones lie the records of our financial and private lives. It’s disturbing to realize that mobile phones are so easy to lose, so easy to steal. One careless moment and our identity is in the wrong hands.

There is one group of people that wants less security on mobile phones: law enforcement agencies. They dislike password-protected data. Worse yet is password-protected encrypted data. Discovering the mobile phone of a criminal is like striking the mother lode; finding that its contents are protected and encrypted is like coming upon a blocked mine shaft. iPhones are the most popular mobile phones among people from all walks of life, including criminals, and they come with strong security features. That’s why law enforcement agencies are particularly eager to enlist the expertise of Apple Inc., the manufacturer, in disabling iPhone security.

Federal agencies have asked for Apple’s help in “unlocking” (breaking into) iPhones in 13 criminal cases. Apple doesn’t want to, so these agencies have commanded Apple’s help by convincing judges to issue writs (court orders). The authority for these writs is the 1789 All Writs Act. It gives a judge the power “to order a third party to provide non-burdensome technical assistance to law enforcement officials.” The key word is “non-burdensome.” Apparently, law enforcement doesn’t think it would be burdensome for Apple to devise elaborate security features for the millions of iPhones it sells and then undo these same features whenever one of them is involved in a criminal case. Apple might as well spin off a new company that is permanently on contract to federal crime labs.

Last Monday, a federal magistrate judge in New York said “no dice” to the Drug Enforcement Agency. The All Writs Act does not justify “imposing on Apple the obligation to assist the government’s investigation against its will.”  So now we know that this statute cannot compel Apple to unlock the iPhone of a drug dealer, but what about a more serious crime—like terrorism?

This brings us to the case of Syed Farook, who, with his wife, killed 14 people and injured 22 others at a party last December in San Bernardino, CA. The police and FBI subsequently searched the couple’s Redlands townhouse and found guns, ammo, pipe bombs, bomb-making equipment, computers with missing hard drives, and smashed mobile phones. The FBI Lab was able to retrieve the contents of all but one of the phones, an iPhone 5C that belonged to Farook. In this case too, the FBI got a court order to compel Apple’s assistance. Arguments for both sides will again be heard by a federal magistrate judge. Will the judge rule that the All Writs Act is appropriate to this case, one of much more consequence than drug dealing?

In a legal brief submitted to the court, Apple asked that the order be vacated. They asserted it overstepped the scope of the the All Writs Act and violated Apple’s Constitutional rights. Specifically, they cited a 1996 federal court ruling that “computer code is protected speech under the First Amendment.” Ted Olsen, Apple’s lead counsel, went so far as to say that the U.S. was unwittingly empowering a cyberattack on millions of Apple’s users. Outside parties who support either the FBI or Apple have also filed legal briefs. Microsoft, Google, Twitter, and Facebook weighed in on Apple’s side. On March 10, the FBI’s counsel will respond to the pro-Apple arguments. On March 15, Apple will offer its final reply to the FBI’s case. A week later, both parties will argue in District Court before the judge, who is expected to rule shortly afterward. Whatever the verdict, there is no doubt the loser will appeal it.

I see two possible outcomes, one that will fail in time and one that will hold indefinitely. The bound-to-fail outcome is one in which either the Supreme Court or Congress draws a line: “Law enforcement agencies may compel the use of technical expertise in cases of national security, meaning that criteria X, Y, and Z have been met.” Most likely the Supreme Court will punt, saying that it cannot compel Apple in the absence of new law that addresses the issue. Then we’ll have the spectacle of Congress trying to spell out the criteria. If a law is passed and signed by the president, it will no doubt be challenged in court, and we’re back to square one. Round and round we’ll go until the whole enterprise collapses.

We’ll get a durable outcome if the Supreme Court concludes:

• Apple’s rights would indeed be violated if something it made—something useful and demanded by the marketplace—could be unmade by court order.

• No matter what protections Apple took to keep its solution a secret, its details would eventually be discovered. Criminals would know a solution existed and would focus their energy on learning it. All it would take is one key software engineer who was bypassed for promotion and then offered a princely sum to tell what he knew.

• Law enforcement already has a plethora of analytic tools to use in fighting crime. No doubt new, non-invasive ones will come along. Therefore, on balance, the advantages of protecting our identities and private thoughts outweigh the advantages of adding a decryption tool to law enforcement’s arsenal.

The threat of terrorism is forcing us to make difficult choices about our right to privacy. In their zeal to protect us, government agencies will not cease in eroding this right—unless we push back.

Where we are now

As I figure it, the USA has more than a 30-year history with Islamic terrorism. I don’t count the 15-month Iran hostage crisis, which seems more like chest-thumping belligerence than terrorism. I begin my timeline in 1983, when 241 U.S. service personnel died in their barracks in Beirut, victims of a suicide truck bomb. (A second truck bomb killed 58 French soldiers.) The Americans were part of a multinational peacekeeping force, invited to Lebanon by the Lebanese president to supervise the separation of hostile forces. While it’s true that the casualties cannot be counted as innocent civilians, they were nevertheless on a mission intended to harm no one.

Then, in 1985, the Achille Lauro was hijacked by terrorists; they murdered a disabled American Jew, Leon Klinghoffer, and threw his body overboard. Three years later, Pan Am Flight 103 was blown out of the sky by a Libyan bomb as it crossed over Lockerbie, Scotland, on its way to New York City. 243 passengers, most of them Americans, and 16 crew members died; 11 residents of Lockerbie also perished. In 1993, the World Trade Center was struck for the first time, by a 1,200-pound truck bomb in a parking garage. Six people were killed and more than 1,000 were injured. In 1996, another truck bomb decimated a building in Khobar, Saudi Arabia, that was a residence for foreign military personnel. 19 Americans were killed and 498 servicemen of other nationalities were wounded. In 1998, two U.S. embassies, one in Kenya and the other in Tanzania, were bombed almost simultaneously. 213 died in Kenya, 11 in Tanzania. Thousands were injured. Two years later, the USS Cole, a guided-missile destroyer, was refueling in the Yemeni port of Aden when struck by a small boat in a suicide attack. Hundreds of pounds of explosives had been molded onto the hull of the attacking boat. The explosion took the lives of 17 American sailors; 39 others were injured.

I recount these atrocities only to help recall the state of mind we were in when 2,996 people were killed on September 11, 2001. The air was supercharged with outrage and a craving for revenge. Flags flew from car antennas and highway overpasses. It was payback time. Bush the Second declared a War on Terrorism. He said that winning it would call for determination and patience—it would be a generational war. Interestingly, no one argued that we were in for anything less. We were ready for the challenge. So when the government fixed the blame on Al-Qaeda, we were ready to go to Afghanistan and rout them and the Taliban, their protectors. The first troops were sent on October 7; the mission was called Operation Enduring Freedom. I won’t itemize the history of our efforts between that day and the present, but I do want to explore the shift in public sentiment between 2001 and 2014, try to explain the shift, and say why it puts us in danger. Perhaps a good way to do this is to cite some of the surprising things people have said about events in those 13 years and offer comments….

Going to Afghaistan was a mistake. It’s “where empires go to die.” We wasted lives and national treasure. A mistake—really? Were we really supposed to accept the deaths of thousands and an ongoing menace without striking back? No, that’s a curl-up-and-die mentality. In retrospect, though, our goals were too broad, and that did cause gross wastefulness. We went there for conquest: crush the Taliban, extirpate Al-Qaeda, remake Afghan society. We should have looked instead for retribution, an entirely different concept. Our policy should have been to deploy however many specialists we needed to track the enemy and discover targets. Then we could have hectored them with bombers and drones and kept them continually on the defensive. If a rare opportunity called for special forces, it’s only then that we should have put combat boots on the ground.

This observation comes with an interesting implication. Because conquest was never in the cards, regardless of the size of the invading and occupying force, diverting occupying resources to Iraq didn’t change the calculus of what our army might have accomplished in Afghanistan. Those who have deplored the Iraq misadventure have good reasons for doing so, but they cannot claim that it caused the Afghan War to go wrong.

I knew from the start that it was a mistake to go into Iraq. No, you didn’t. Not unless you worked for the CIA or a foreign intelligence agency and knew the WMD scare was a fabrication. Otherwise, the only thing you can claim to have known is that the U.S. government—chiefly the CIA and the military top brass—cannot be trusted. I sympathize with this attitude. After all, the CIA and Joint Chiefs lied to JFK about the chances of the Bay of Pigs invasion. And the CIA and the Johnson Administration lied to Congress and the nation about the naval skirmish that led to the Gulf of Tonkin Resolution. However, if we think the government always lies, sooner or later we will recreate the Boy Who Cried Wolf fable: the government will cry wolf, we will ignore it, and the wolf will really be at our door. It’s a no-win dilemma, and 50 years of Washington liars have put us in this trap.

The invasion of Iraq was the biggest foreign policy blunder in the history of the country. Such is the misguided opinion of Harry Reid and probably of tens of millions of other Americans. It makes no sense because it assumes that the war, from the moment of invasion in March 2003, was predestined to be a disaster. Actually, the war consisted of a string of independent political and occupational blunders, every one of which was avoidable. For example:

• Choosing exiles and people of dubious character to run the provisional Iraq Governing Council. Most Iraqis distrusted them from the outset.
• Disbanding the Iraqi army, leaving hundreds of thousands of well-trained men jobless and embittered.
• Disbanding the police, thereby ending police services. Lawlessness reigned for months. During this time, explosions and gun-shots were heard continually. Daily break-ins, kidnappings, and murders were common.
• Ordering “de-Ba’athification,” the dismissal of all public sector employees with an affiliation to Saddam Hussein’s party, the Ba’ath Party. As further punishment, these employees were banned for life from working in the public sector. The order affected civil servants in every part of the government, teachers and university professors, medical practitioners, judges and prosecutors, and anyone attached to the Ministry of Defense. Government ministries immediately became incompetent in delivering the basic services needed for a functioning society. To make matters worse, all the Ba’athists were Sunni Arabs, so the decree had the result of alienating them from the pluralistic society we wanted to establish.
• Disbanding the Border Guard Force. Arms, insurgents, and terrorists entered and left Iraq at will. Smuggling drugs, materials, vehicles, and machinery became a huge business.
• Indifference to electrical outages and water shortages, leaving millions of Iraqis miserable for weeks at a time.
• Mistreating Iraqis in intolerable ways, including impulse shootings, insulting and abusive treatment, and destructive home searches that included humiliating frisking and sometimes theft. The most notorious incident of mistreatment occurred at the Abu Ghraib prison. The abuses there by the U.S. Army seemed out of the ordinary to many observers, but they were instead indicative of a pattern of U.S. abuse throughout the country.
• Ceding control of the government to Nouri al-Maliki, a sectarian zealot who would deny civil liberties to Sunnis and so guarantee civil discord and a fragmented nation. We did this despite Colin Powell’s warning to Bush: “You are going to be the proud owner of 25 million people. You will own all their hopes, aspirations, and problems. You’ll own it all.” And then he reminded Bush of the Pottery Barn rule: “You break it, you own it.” We broke it and then failed to be responsible owners.

It does no good to attack the strongholds of radical Islamists because that will just drive them somewhere else to practice terrorism. I call this the Bill Maher Doctrine. He said it with ISIS in mind, the radical Sunni force that’s hastening the disintegration of Maliki’s Iraq. Nonetheless, I’m sure he’d like to apply it broadly, and so would millions of other Americans. It’s a terrible idea because it ignores a simple fact: a centralized military organization—one with financing, material resources, and the opportunity to train and plan—is far more dangerous than one that’s dispersed and under a continual threat of attack. For our own safety, not for the preservation of the failed state of Iraq. we have to confront the ISIS juggernaut and shift it into reverse. So far, we’ve done nothing but deploy information-gathering forces and enough military personnel to protect American civilians. Our slow and puny response is a sign of how thoroughly the Obama Administration has been swept up in the reaction to the lies and gaffes of the Bush Administration.

Of all the NATO members, we are consistently the most belligerent. This is a sign of something deeply dysfunctional in our society. I agree that we are the most belligerent, or to put it another way, our NATO allies are remarkably passive. And why shouldn’t they be? Every year, the U.S. spends tens of billions to shield Europe with military bases, personnel, and logistical support. The Europeans need never worry about the threat of… what? The Russians, maybe, kicking up dust on their eastern frontier? No problem. Last month, Obama pledged to spend a billion dollars more to increase our military presence in Poland and neighboring countries. In recent decades, European defense outlays have become a pittance of their overall budgets. Even if they were to acknowledge the alarm bells in the Middle East, how could they become helpful allies? They’d have to do something radical, like reallocate some of the money targeted for social spending.

But are we a belligerent people, with a propensity to go to war? That’s not easily answered. There’s certainly a lot in our country that’s out of whack. We have a propensity to coddle the rich and let the needy fend for themselves, to hold gun rights more precious than life itself, to put faith before empirical evidence. But on matters of war and peace, no, we do not have a cultural tendency to swing one way or the other. There’s a complication, however: when WWII ended we found ourselves with a huge military and industries that supplied it, gave work to thousands, and lobbied Congress extensively. This “military-industry-government” complex became a force unto itself, at times swinging the pendulum of public opinion with propaganda and lies.

After the WMD sham was exposed, after years of rotten leadership, after the expenditure of thousands of lives and the suffering of tens of thousands, the pendulum of public opinion began to swing toward peace. It has swung so far that the rabid medievalism on display in Iraq is rationalized as a mutually destructive religious war that might actually be a good thing! Where are we now? Whistling in the dark, too timid to lead, and without allies in any case.