Stewart A. Baker

Stewart Abercrombie Baker is the Assistant Secretary of Homeland Security for Policy.

(NOTE: Stewart A. Baker, the Assistant Secretary of Homeland Security for Policy, should not be confused with Stuart G. Baker, Assistant to the President and Director of Lessons Learned.  Stuart G. Baker, who previously worked at the Department of Homeland Security, was listed by the National Journal in July 2006 as one of the four highest paid members of President Bush's White House Staff.)

Stewart A. Baker was appointed on July 13, 2005, by President George W. Bush to serve as the Assistant Secretary of Homeland Security for Policy, a new position in the Department of Homeland Security. His nomination was sent to the U.S. Senate for confirmation on July 15, 2005, and he was confirmed October 7, 2005.

At the time of his nomination, Baker was a partner at Steptoe & Johnson LLP in Washington, DC. He previously served as General Counsel for the Commission on the Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction. Prior to that, Baker served as General Counsel for the National Security Agency (1992-1994). 

Civil Liberties vs War on Terrorism "But some intelligence experts say that in a changed world, the game is already up for those who would value civil liberties over the war on terrorism. 'It's the end of a nice, comfortable set of assumptions that allowed us to keep ourselves protected from some kinds of intrusions,'" Baker was quoted as saying in the December 10, 2002, New York Times.

Civil Liberties vs National Security

 * In September 9, 1992, while Baker was Counsel for the National Security Agency, he wrote a letter to Gerald E. McDowell, Esq., Acting Deputy Assistant Attorney General, Department of Justice, regarding NSA's intercept operations:


 * "In the wake of disclosures about the role of the Banca Nazionale del Lavoro (BNL), particularly its Atlanta branch, in the provision of financial assistance to the regime of Saddam Hussein, questions were raised about whether the intelligence community was providing sufficient support to law enforcement.


 * "This letter, from NSA's general counsel, answers a series of questions from the Justice Department pertaining to NSA's knowledge of, or involvement in, BNL activities. The responses appear to indicate that NSA had not derived any intelligence concerning BNL activities from its intercept operations. The letter also stresses NSA's sensitivity to the issue of the privacy of American citizens (noting that 'NSA improperly targeted the communications of a number of Americans opposed to the Vietnam War') and the restrictions on reporting information concerning U.S. citizens or corporations."


 * Speaking about Carnivore in 2002, Baker said: "The measures currently being considered would not tip the balance between privacy and security too far, ... Other proposals could have a stronger impact. ... Baker said he was concerned that relaxing privacy protections could eventually lead to 'dragnet searches' of e-mail for certain words and phrases. ... 'It would be a very big change in our approach to the privacy of communications, ... At that point, you become very worried about the consequences for the privacy of ordinary people.'"


 * Baker was quoted May 31, 2002, as saying: "'If you have terrorists inside your borders, you don't have the luxury anymore of separating law enforcement from the need to gather intelligence, ... Before 9/11, the risk to our security seemed theoretical and remote. Now it seems concrete. We would be foolish not to reconsider the balance' between privacy and security.


 * "Much of what [Attorney General John] Ashcroft is proposing simply takes into account modern information technology, Baker added. 'In the 1970s, maintaining a clip file on someone was a big deal. Now, Google does it for you,' he said, referring to the popular Internet search engine."


 * Full October 2002 Markle Foundation report "Protecting America's Freedom in the Information Age" (174-page pdf).


 * Testimony of Stewart Baker Before the National Commission on Terrorist Attacks Upon the United States, December 8, 2003 (37-page pdf): "In my view, there were two problems – a problem with the tools our agencies were able to use and a problem with the rules they were required to follow. What’s worse, two years later, neither problem has been fixed. Which means that there is a very real risk we will fail again, and that more Americans will die at the hands of terrorists as a result of our failure."

Also see:
 * "Lawyers and Technology: None of Your Business," National Law Journal (WendyTech), February 1, 1999.
 * Margaret Johnston, "Advocates square off in U.S. encryption policy debate," CNN, May 24, 1999.
 * "Debate over warrantless Carnivore bill with Stu Baker," Insecure.org, September 15, 2001.

Detentions
In a March 2002 DC Bar article on "Civil Liberties vs National Security," Baker, described as "an ambivalent supporter of the detentions, asks us to consider what we knew about the terrorists on September 10. Even if law enforcement had known who the 19 hijackers were, he argues, law enforcement would have had to arrest them for immigration violations or criminal matters other than conspiracy to commit terrorist acts -— because it would have been very hard to prove that conspiracy without a source on the inside. Months after September 11, law enforcement is in the same position: it believes there are more terrorists in America who could continue to prepare for the next attack undetected. Therefore, the government has to be overly inclusive in its detention decisions simply to prevent further attacks.

"'The only reason further acts of terrorism haven’t occurred,' says Baker, 'is because they’ve got some of the people who were going to commit them locked up. That’s the motivation, and it’s a very strong one, for locking these guys up.'"

9/11 & FISA
October 29, 2001, Baker was quoted in the South Florida Sun-Sentinel as saying that the "expanded authority" of the Foreign Intelligence Surveillance Act (FISA) Court under Patriot Act I was "justified and timely. ... 'Now there's almost no national security problem that doesn't have a law enforcement aspect ... We're all aware there's a foreign terrorist gang operating inside the U.S.'"

Profiles
In December 2003, Baker was a "partner and head of the Technology Department of Steptoe & Johnson in Washington, DC. He had "served on numerous government boards and commissions concerned with technology and national security." Baker was a member of the Markle Foundation Task Force on National Security in the Information Age.

In the November 20, 1995, Washington Post, Baker was described as "'one of the most techno-literate lawyers around.' His practice includes issues relating to privacy, national security, computer security, electronic surveillance, encryption, digital commerce, and export controls." 

"He has advised hardware and software companies on US export controls and on foreign import controls on encryption. In October 2000, he was named to the Washington 'Power 100' by Regardie’s magazine for his work in this field. He also represents major telecommunications equipment manufacturers and carriers in connection with the Communications Assistance for Law Enforcement Act ('CALEA') and law enforcement intercept requirements. In the area of authentication and digital signatures, his clients include major banks, mortgage companies, and credit card associations, as well as technology companies." 

"Mr. Baker is the former General Counsel of the National Security Agency (1992-1994) and author of the book, The Limits of Trust: Cryptography, Governments, and Electronic Commerce (1998), as well as various other publications and articles on electronic commerce and international trade. Earlier in his career, Mr. Baker served as Law Clerk to John Paul Stevens, US Supreme Court (1977-78), Frank M. Coffin, US Court of Appeals, First Circuit (1976-77), and Shirley M. Hufstedler, US Court of Appeals, Ninth Circuit (1975)." 

"Mr. Baker has been named to numerous US government and international bodies dealing with electronic commerce and related topics, including: Defense Science Board’s Task Force on Information Warfare (1995-1996; and 1999-2001); Federal Trade Commission’s Advisory Committee on Online Access and Security (2000); President’s Export Council Subcommittee on Encryption (1998-2001); Free Trade of the Americas Experts Committee on Electronic Commerce (1998-present); UNCITRAL Group of Experts on Digital Signatures (1997-2001); OECD Group of Experts on Cryptography Policy (1995-1997); International Telecommunication Union Experts Group on Authentication (1999); American Bar Association Task Force on International Notarial Issues (1996-1998); International Chamber of Commerce Working Party on Digital Authentication (1996-1998); International Chamber of Commerce Group of Experts on Electronic Commerce (1996-present). In addition to his private clients, Mr. Baker has also been retained as a consultant on computer security issues by a variety of international bodies, including the ITU, the OECD, and the Government of Japan."

He also "worked briefly as Deputy General Counsel of the Education Department under President Jimmy Carter." 

Baker received his bachelor’s degree from Brown University and his J.D. in 1976 from the University of California School of Law, Los Angeles. 

Baker was admitted to bar, 1977, California; 1979, District of Columbia. 

International and Technology
"Practice includes issues relating to technology, digital signatures, electronic commerce, electronic intercepts, privacy, encryption, national security, and export controls; advice and practice under the antidumping and countervailing duty laws of United States, European Community, Canada and Australia, U.S. Foreign Sovereign Immunities Act, and Foreign Corrupt Practices Act." 

Books

 * "Skating on Stilts: Why We Aren't Stopping Tomorrow's Terrorism," Hoover Institution Press, June 15, 2010 ISBN 0817911545, ISBN-13: 978-0817911546
 * "Patriot Debates: Experts Debate the USA Patriot ACT," American Bar Association, July 5, 2005 (paperback) ISBN 1590315375.
 * With Mark David Davis, "The Uncitral Arbitration Rules in Practice: The Experience of the Iran-United States Claims Tribunal," Kluwer Law International, June 1992 ASIN 9065446281.
 * With Paul R. Hurst, "The Limits of Trust: Cryptography, Governments, and Electronic Commerce," Kluwer Academic Publishers, October 1998 ISBN 9041106359.

Related Publications (author or coauthor)

 * "International Developments Affecting Digital Signatures," 32 International Lawyer 963 (1998).
 * "Decoding OECD Guidelines for Cryptography Policy," 31 International Lawyer 729 (1997).
 * "Should Spies Be Cops?" 97 Foreign Policy 36 (Winter 1994-95).
 * "After the NAFTA," 27 International Lawyer 765 (1993).
 * "Law & Practice Under the GATT and Other Trading Arrangements" (June 1992) (principal contributor).
 * "The North American Free Trade Agreement: Issues, Options, Implications (1992) (editor and contributor).
 * "From the Ashes: A Report on Justice in El Salvador" (1987).
 * "NAFTA and the Environment," in The North American Free Trade Agreement: Issues, Options, Implications (American Bar Association 1992).
 * "The Canada-United States Free Trade Agreement," 23 International Lawyer 37 (1989).
 * "'Like Products' and Commercial Reality" in Antidumping Law and Practice (Jackson & Vermulst, eds.) at 287-95 (1989).
 * "Trends in U.S. Trade Law" in 1987 Fordham Corporate Law Institute 513-26 (B. Hawk ed. 1988).
 * "Countertrade and Trade Law," 5 J. Comp. Bus. L. 375 (1983).
 * "Trade Regulation Law in the United States," 12 Kokusai-Shoji-Homu 238 (1984).
 * Source.

Arbitration
"Member, International Chamber of Commerce Forum on Arbitration and New Issues; charter member, U.S. roster of arbitrators for trade disputes under Canada-United States Free Trade Agreement; member, World Intellectual Property Organization Roster of Mediators and Arbitrators; member, American Arbitration Association Panel of Arbitrators; represented parties with claims exceeding $1 billion before Iran-U.S. Claims Tribunal; author of book on UNCITRAL arbitration rules." 

Appellate
"Founded and helped raise over $1.5 million for State and Local Legal Center, a public interest institution representing state and local governments before the Supreme Court ... [served as] Chairman of Center's Advisory Board; filed merits briefs in several Supreme Court cases, and numerous petitions or briefs in opposition to certiorari." 

Clients

 * U.S. Internet Service Provider Association