Encryption, Privacy Are Larger Issues Than Fighting Terrorism, Clarke Says

David Greene talks to former national security official Richard Clarke about the fight between Apple and the FBI. The FBI wants an iPhone that was used by one of the San Bernardino shooters unlocked.

DAVID GREENE, HOST:

In the long debate over an iPhone, there has been a voice missing - President Obama's. It is not clear how he feels about the Justice Department demanding that Apple help unlock the phone belonging to one of the San Bernardino shooters. But over the weekend, Obama did say this.

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PRESIDENT BARACK OBAMA: If, technologically, it is possible to make an impenetrable device or system where the encryption is so strong that there's no key - there's no door at all - then how do we apprehend the child pornographer? How do we solve or disrupt a terrorist plot?

GREENE: Disrupting terrorist plots was Richard Clarke's mission for years. And we're adding his voice this morning in the ongoing debate over whether Apple should design a way for the government to break into that iPhone. Richard Clarke led counterterrorism efforts for two presidents - Bill Clinton and George W. Bush.

RICHARD CLARKE: For nine years, I was the senior counterterrorism official in the U.S. government. And I went to bed every night worrying about terrorist attacks. Had I done enough to stop a terrorist attack that might be out there that I don't know about? I know what the counterterrorism feels like because I was there. But I also operated within limits. And within the United States government, we've decided long ago that there are limits on what we're going to do in the war against terrorism. Under the Obama administration, for example, we've said we're not going to torture people. You know, we could, at the far extreme to make the FBI's job easier, put ankle bracelets on everybody so that we'd know where everybody was all the time. That's a ridiculous example, but my point is encryption and privacy are larger issues than fighting terrorism.

GREENE: But can you just explain why you would compare, you know, a company helping the government design a way to unlock an iPhone to something extreme as torture and ankle bracelets? I mean, that sounds like a very extreme jump.

CLARKE: No, the point I'm trying to make is there are limits. And what this is is a case where the federal government, using a 1789 law, is trying to compel speech. And courts have ruled in the past, appropriately, that the government cannot compel speech. What the FBI and the Justice Department are trying to do is to make code writers at Apple - to make them write code that they do not want to write that will make their systems less secure.

GREENE: And why do you say that's compelling speech, just so I understand that?

CLARKE: Well, they're compelling them to write code. And the courts have ruled in the past that computer code is speech.

GREENE: Some have said that while this seems like it could be a dangerous precedent, it's not because Apple has had to relent to pressure in the past and has been willing to do so. And I've been reading about, you know, last year when China - the Chinese government - requested data on a few thousand iPhones and Apple was willing to offer it. I mean, that sounds to some, I would imagine, like a scarier thing than helping the U.S. government unlock one iPhone.

CLARKE: Apple helps law enforcement organizations in the United States and Apple helps law enforcement organizations overseas when they have a duly authorized request for material that Apple has. Apple doesn't have this material. If it were in the Cloud, if the FBI and the San Bernardino County hadn't made a mistake on the way they treated this phone, this information would be in the iCloud and Apple would allow access to that because Apple has that information.

GREENE: What do you know about the debate within the Obama administration? It's been reported that there really is a fierce debate over how to handle this.

CLARKE: Well, I don't think it's a fierce debate. I think the Justice Department and the FBI are on their own here. You know, the secretary of defense has said how important encryption is when asked about this case. The National Security Agency director and three past National Security Agency directors, a former CIA director, a former Homeland Security secretary have all said that they're much more sympathetic with Apple in this case. You really have to understand that the FBI director is exaggerating the need for this and is trying to build it up as an emotional case, organizing the families of the victims and all of that. And it's Jim Comey and the attorney general is letting him get away with it.

GREENE: So if you were still inside the government right now as a counterterrorism official, could you have seen yourself being more sympathetic with the FBI in doing everything for you that it can to crack this case?

CLARKE: No, David. If I were in the job now, I would have simply told the FBI to call Fort Meade, the headquarters of the National Security Agency, and NSA would have solved this problem for them. They're not as interested in solving the problem as they are in getting a legal precedent.

GREENE: Wow, that sounds like quite a charge. You're suggesting they could have just gone to the NSA to crack this iPhone but they're presenting this case because they want to set a precedent to be able to do it in the future?

CLARKE: Every expert I know believes that NSA could crack this phone. They want the precedent that the government can compel a computer device manufacturer to allow the government in.

GREENE: Richard Clarke, thanks so much for talking to us. We appreciate it.

CLARKE: Thank you, David.

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