Comey's Remarks

THE ABSURD TIMES

Illustration: Latuff pointed this out three years ago.

Since this is in the Congressional Record, I suppose it is in the Public Domain.  However, I found it, of all places, on CNBC.  The woman at the bottom
deserves credit.

Statement for the Record
Senate Select Committee on Intelligence
James B. Comey
June 8, 2017

Chairman Burr, Ranking Member Warner, Members of the Committee. Thank you for inviting me to appear before you today. I was asked to testify today to describe for you my interactions with President-Elect and President Trump on subjects that I understand are of interest to you. I have not included every detail from my conversations with the President, but, to the best of my recollection, I have tried to include information that may be relevant to the Committee.

January 6 Briefing

I first met then-President-Elect Trump on Friday, January 6 in a conference room at Trump Tower in New York. I was there with other Intelligence Community (IC) leaders to brief him and his new national security team on the findings of an IC assessment concerning Russian efforts to interfere in the election. At the conclusion of that briefing, I remained alone with the President-Elect to brief him on some personally sensitive aspects of the information assembled during the assessment.

The IC leadership thought it important, for a variety of reasons, to alert the incoming President to the existence of this material, even though it was salacious and unverified. Among those reasons were: (1) we knew the media was about to publicly report the material and we believed the IC should not keep knowledge of the material and its imminent release from the President-Elect; and (2) to the extent there was some effort to compromise an incoming President, we could blunt any such effort with a defensive briefing.

The Director of National Intelligence asked that I personally do this portion of the briefing because I was staying in my position and because the material implicated the FBI's counter-intelligence responsibilities. We also agreed I would do it alone to minimize potential embarrassment to the President-Elect. Although we agreed it made sense for me to do the briefing, the FBI's leadership and I were concerned that the briefing might create a situation where a new President came into office uncertain about whether the FBI was conducting a counter-intelligence investigation of his personal conduct.

It is important to understand that FBI counter-intelligence investigations are different than the more-commonly known criminal investigative work. The Bureau's goal in a counter-intelligence investigation is to understand the technical and human methods that hostile foreign powers are using to influence the United States or to steal our secrets. The FBI uses that understanding to disrupt those efforts. Sometimes disruption takes the form of alerting a person who is targeted for recruitment or influence by the foreign power. Sometimes it involves hardening a computer system that is being attacked. Sometimes it involves "turning" the recruited person into a double-agent, or publicly calling out the behavior with sanctions or expulsions of embassy-based intelligence officers. On occasion, criminal prosecution is used to disrupt intelligence activities.

Because the nature of the hostile foreign nation is well known, counterintelligence investigations tend to be centered on individuals the FBI suspects to be witting or unwitting agents of that foreign power. When the FBI develops reason to believe an American has been targeted for recruitment by a foreign power or is covertly acting as an agent of the foreign power, the FBI will "open an investigation" on that American and use legal authorities to try to learn more about the nature of any relationship with the foreign power so it can be disrupted.

In that context, prior to the January 6 meeting, I discussed with the FBI's leadership team whether I should be prepared to assure President-Elect Trump that we were not investigating him personally. That was true; we did not have an open counter-intelligence case on him. We agreed I should do so if circumstances warranted. During our one-on-one meeting at Trump Tower, based on President-Elect Trump's reaction to the briefing and without him directly asking the question, I offered that assurance.

I felt compelled to document my first conversation with the President-Elect in a memo. To ensure accuracy, I began to type it on a laptop in an FBI vehicle outside Trump Tower the moment I walked out of the meeting. Creating written records immediately after one-on-one conversations with Mr. Trump was my practice from that point forward. This had not been my practice in the past. I spoke alone with President Obama twice in person (and never on the phone) – once in 2015 to discuss law enforcement policy issues and a second time, briefly, for him to say goodbye in late 2016. In neither of those circumstances did I memorialize the discussions. I can recall nine one-on-one conversations with President Trump in four months – three in person and six on the phone.

January 27 Dinner

The President and I had dinner on Friday, January 27 at 6:30 pm in the Green Room at the White House. He had called me at lunchtime that day and invited me to dinner that night, saying he was going to invite my whole family, but decided to have just me this time, with the whole family coming the next time. It was unclear from the conversation who else would be at the dinner, although I assumed there would be others.

It turned out to be just the two of us, seated at a small oval table in the center of the Green Room. Two Navy stewards waited on us, only entering the room to serve food and drinks.

The President began by asking me whether I wanted to stay on as FBI Director, which I found strange because he had already told me twice in earlier conversations that he hoped I would stay, and I had assured him that I intended to. He said that lots of people wanted my job and, given the abuse I had taken during the previous year, he would understand if I wanted to walk away.

My instincts told me that the one-on-one setting, and the pretense that this was our first discussion about my position, meant the dinner was, at least in part, an effort to have me ask for my job and create some sort of patronage relationship. That concerned me greatly, given the FBI's traditionally independent status in the executive branch.

I replied that I loved my work and intended to stay and serve out my ten-year term as Director. And then, because the set-up made me uneasy, I added that I was not "reliable" in the way politicians use that word, but he could always count on me to tell him the truth. I added that I was not on anybody's side politically and could not be counted on in the traditional political sense, a stance I said was in his best interest as the President.

A few moments later, the President said, "I need loyalty, I expect loyalty." I didn't move, speak, or change my facial expression in any way during the awkward silence that followed. We simply looked at each other in silence. The conversation then moved on, but he returned to the subject near the end of our dinner.

At one point, I explained why it was so important that the FBI and the Department of Justice be independent of the White House. I said it was a paradox: Throughout history, some Presidents have decided that because "problems" come from Justice, they should try to hold the Department close. But blurring those boundaries ultimately makes the problems worse by undermining public trust in the institutions and their work.

Near the end of our dinner, the President returned to the subject of my job, saying he was very glad I wanted to stay, adding that he had heard great things about me from Jim Mattis, Jeff Sessions, and many others. He then said, "I need loyalty." I replied, "You will always get honesty from me." He paused and then said, "That's what I want, honest loyalty." I paused, and then said, "You will get that from me." As I wrote in the memo I created immediately after the dinner, it is possible we understood the phrase "honest loyalty" differently, but I decided it wouldn't be productive to push it further. The term – honest loyalty – had helped end a very awkward conversation and my explanations had made clear what he should expect.

During the dinner, the President returned to the salacious material I had briefed him about on January 6, and, as he had done previously, expressed his disgust for the allegations and strongly denied them. He said he was considering ordering me to investigate the alleged incident to prove it didn't happen. I replied that he should give that careful thought because it might create a narrative that we were investigating him personally, which we weren't, and because it was very difficult to prove a negative. He said he would think about it and asked me to think about it.

As was my practice for conversations with President Trump, I wrote a detailed memo about the dinner immediately afterwards and shared it with the senior leadership team of the FBI.

February 14 Oval Office Meeting

On February 14, I went to the Oval Office for a scheduled counterterrorism briefing of the President. He sat behind the desk and a group of us sat in a semi-circle of about six chairs facing him on the other side of the desk. The Vice President, Deputy Director of the CIA, Director of the National CounterTerrorism Center, Secretary of Homeland Security, the Attorney General, and I
were in the semi-circle of chairs. I was directly facing the President, sitting between the Deputy CIA Director and the Director of NCTC. There were quite a few others in the room, sitting behind us on couches and chairs.

The President signaled the end of the briefing by thanking the group and telling them all that he wanted to speak to me alone. I stayed in my chair. As the participants started to leave the Oval Office, the Attorney General lingered by my chair, but the President thanked him and said he wanted to speak only with me. The last person to leave was Jared Kushner, who also stood by my chair and exchanged pleasantries with me. The President then excused him, saying he wanted to speak with me.

When the door by the grandfather clock closed, and we were alone, the President began by saying, "I want to talk about Mike Flynn." Flynn had resigned the previous day. The President began by saying Flynn hadn't done anything wrong in speaking with the Russians, but he had to let him go because he had misled the Vice President. He added that he had other concerns about Flynn, which he did not then specify.

The President then made a long series of comments about the problem with leaks of classified information – a concern I shared and still share. After he had spoken for a few minutes about leaks, Reince Priebus leaned in through the door by the grandfather clock and I could see a group of people waiting behind him. The President waved at him to close the door, saying he would be done shortly. The door closed.

The President then returned to the topic of Mike Flynn, saying, "He is a good guy and has been through a lot." He repeated that Flynn hadn't done anything wrong on his calls with the Russians, but had misled the Vice President. He then said, "I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go." I replied only that "he is a good guy." (In fact, I had a positive experience dealing with Mike Flynn when he was a colleague as Director of the Defense Intelligence Agency at the beginning of my term at FBI.) I did not say I would "let this go."

The President returned briefly to the problem of leaks. I then got up and left out the door by the grandfather clock, making my way through the large group of people waiting there, including Mr. Priebus and the Vice President.

I immediately prepared an unclassified memo of the conversation about Flynn and discussed the matter with FBI senior leadership. I had understood the President to be requesting that we drop any investigation of Flynn in connection with false statements about his conversations with the Russian ambassador in December. I did not understand the President to be talking about the broader investigation into Russia or possible links to his campaign. I could be wrong, but I took him to be focusing on what had just happened with Flynn's departure and the controversy around his account of his phone calls. Regardless, it was very concerning, given the FBI's role as an independent investigative agency.

The FBI leadership team agreed with me that it was important not to infect the investigative team with the President's request, which we did not intend to abide. We also concluded that, given that it was a one-on-one conversation, there was nothing available to corroborate my account. We concluded it made little sense to report it to Attorney General Sessions, who we expected would likely recuse himself from involvement in Russia-related investigations. (He did so two weeks later.) The Deputy Attorney General's role was then filled in an acting capacity by a United States Attorney, who would also not be long in the role.

After discussing the matter, we decided to keep it very closely held, resolving to figure out what to do with it down the road as our investigation progressed. The investigation moved ahead at full speed, with none of the investigative team members – or the Department of Justice lawyers supporting them – aware of the President's request.

Shortly afterwards, I spoke with Attorney General Sessions in person to pass along the President's concerns about leaks. I took the opportunity to implore the Attorney General to prevent any future direct communication between the President and me. I told the AG that what had just happened – him being asked to leave while the FBI Director, who reports to the AG, remained behind – was inappropriate and should never happen. He did not reply. For the reasons discussed above, I did not mention that the President broached the FBI's potential investigation of General Flynn.

March 30 Phone Call

On the morning of March 30, the President called me at the FBI. He described the Russia investigation as "a cloud" that was impairing his ability to act on behalf of the country. He said he had nothing to do with Russia, had not been involved with hookers in Russia, and had always assumed he was being recorded when in Russia. He asked what we could do to "lift the cloud." I responded that we were investigating the matter as quickly as we could, and that there would be great benefit, if we didn't find anything, to our having done the work well. He agreed, but then re-emphasized the problems this was causing him.

Then the President asked why there had been a congressional hearing about Russia the previous week – at which I had, as the Department of Justice directed, confirmed the investigation into possible coordination between Russia and the Trump campaign. I explained the demands from the leadership of both parties in Congress for more information, and that Senator Grassley had even held up the confirmation of the Deputy Attorney General until we briefed him in detail on the investigation. I explained that we had briefed the leadership of Congress on exactly which individuals we were investigating and that we had told those Congressional leaders that we were not personally investigating President Trump. I reminded him I had previously told him that. He repeatedly told me, "We need to get that fact out." (I did not tell the President that the FBI and the Department of Justice had been reluctant to make public statements that we did not have an open case on President Trump for a number of reasons, most importantly because it would create a duty to correct, should that change.)

The President went on to say that if there were some "satellite" associates of his who did something wrong, it would be good to find that out, but that he hadn't done anything wrong and hoped I would find a way to get it out that we weren't investigating him.

In an abrupt shift, he turned the conversation to FBI Deputy Director Andrew McCabe, saying he hadn't brought up "the McCabe thing" because I had said McCabe was honorable, although McAuliffe was close to the Clintons and had given him (I think he meant Deputy Director McCabe's wife) campaign money. Although I didn't understand why the President was bringing this up, I repeated that Mr. McCabe was an honorable person.

He finished by stressing "the cloud" that was interfering with his ability to make deals for the country and said he hoped I could find a way to get out that he wasn't being investigated. I told him I would see what we could do, and that we would do our investigative work well and as quickly as we could.

Immediately after that conversation, I called Acting Deputy Attorney General Dana Boente (AG Sessions had by then recused himself on all Russia-related matters), to report the substance of the call from the President, and said I would await his guidance. I did not hear back from him before the President called me again two weeks later.

April 11 Phone Call

On the morning of April 11, the President called me and asked what I had done about his request that I "get out" that he is not personally under investigation. I replied that I had passed his request to the Acting Deputy Attorney General, but I had not heard back. He replied that "the cloud" was getting in the way of his ability to do his job. He said that perhaps he would have his people reach out to the Acting Deputy Attorney General. I said that was the way his request should be handled. I said the White House Counsel should contact the leadership of DOJ to make the request, which was the traditional channel.

He said he would do that and added, "Because I have been very loyal to you, very loyal; we had that thing you know." I did not reply or ask him what he meant by "that thing." I said only that the way to handle it was to have the White House Counsel call the Acting Deputy Attorney General. He said that was what he would do and the call ended.

That was the last time I spoke with President Trump.

Christine WangNews Associate

Revolution, FBI, Encryption, Apple

THE ABSURD TIMES

We have launched the New Absurd Times Television Network. In accordance with the most accepted American news practice, everything is labeled "BREAKING NEWS,' no mater what it is, if you already knew about it, or, quite frankly, do not care one bit. It is abailable on You Tube and updates will be posted on You Tube, probably on Sundays, if we really feel like it. Just search on Absurd Times or, perhaps Czar Donic.

Justice Scalia is dead, BTW. So much is made of him being a "textualist," meaning one who read the actual text of the constitution and interprets it the way it was meant to be understood. This is all very well and good if you understand the people who wrote the text. Now this was the Revolution, folks, the time of Voltaire, Rousseau, and the French Revolution as well. In fact, the French invited our leaders over there for advice during their revolution. If Scalia bears any resemblance to the thinking of that period it is to be found in the character of Pangloss in Candide. He certainly was no Tom Paine.

You can find out what you need to know about the miracle of American Capitalist "Privatization" by visiting flintwatersupply.org .

Since this is a Political season, people around the world are wondering what the hell is really going on here. We had one President who served out his full term in only 39 days, William Henry Harrison. A great model and he was even more short-lived as a leader that the underesitmated Shapoor Baktiar, who served as President of Iran between the rule of the Shah and the Ayatollah. 41 days, I believe it was. No statues were erected for him, whereas we cling to our images of Jefferson Davis on the Confederacy. Actually, if might have been a wise idea to simply let those states go and allow any slaves to immigrate, but then we do need our Consititution with his prohibition against "involuntary servitude," a point important these days in the battle between Apple and the FBI.

Obama will visit Cuba soon, the first President to do so since Calvin Coolidge. The great Depression soon followed. More about Cuba soon.

But first, Apple. The FBI is trying to force Apple to write code to break its own encryption, just once, for the San Bernadino terrorists, both dead. Now, a warrant can be issued for things that exist, but to force someone (and thanks to Citizen's United, remember that?) including corporations to do work against their will is unconstitutional. It amounts to Involuntary Servitude. So did the draft, but that was a different issue. When Viet Nam began to be a real internal cause, the first complaint was why guys had to be in the Army to get killed if they couldn't drink. So the drinking age was lowered. Then the complaint was about voting. So Nixon lowered the voting age. Then people sentenced themselves to marriage rather than be in the army. Eventually, Nixon said "What the Hell," held a lottery, and got rid of the draft, or conscription, or legalized involuntary servitude.  One does wonder, however, why the FBI doesn't simply ask the NSA for the information?

An attempt to close Guantanimo is being attacked by Republicans (you know, those people). Donald Trump says he is going to keep it open and put a whole bunch of "bad Dudes" in there. Rubio and Cruz are essential the same, although Cruz says that Obama should stay in Cuba because he wants a "Socialist Heaven" and would feel right at home.

Now, as absurd as all that sounds, we also have an greement with Cuba to return that property to them. After all, it is in their country and hence is "occupied territory". Of course, as we see on the West Bank, the concept of "occupied" is quite slippery when used in American politics.

Oh, yes, we forgot about abortion. All these laws prohibiting abortion unless the clinic has admitting privileges is nothing more that a way to enforce anti-women legislation as "sanctity of life," beliefs which are religiously motivated, clearly a violation of the First Amendment. So far, I think we have at least three, probably more, violations of the constitution here.

Actually, though, religion is a force for ill right now in the world. One might be tempted to say that God saw the Republican Primaries so far and decided we already were in Hell so there was no need to bother about it anymore.

Here is some more on the Apple controversy.

As the government continues to take a bite out of Apple, Apple CEO Tim Cook says the FBI's request to unlock the iPhone of one of the San Bernardino shooters is the "software equivalent of cancer." In an interview on ABC, he explained why the tech giant is resisting a court order to help unlock the phone. TheFBI says Apple is overstating the security risk to its devices, and argues the litigation is limited. "It won't be unique to this one phone. It would be something that the government can use against any phone. And even if you think that it's OK for the government to be able to break the encryption of anybody's phone … what backdoor is accessible to the U.S. government would also be accessible to whatever is the American enemy du jour," says our guest Barry Eisler, who has written about government surveillance in fictional form. He is also a former CIA agent. Eisler is the author of several books, most recently, "The God's Eye View."

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TRANSCRIPT

This is a rush transcript. Copy may not be in its final form.

NERMEEN SHAIKH: We turn now to the ongoing dispute over privacy and encryption between the FBI and the computer giant Apple. In an interview last night on ABC, Apple CEO Tim Cook explained why his company is resisting a court order to help unlock the iPhone of one of the San Bernardino attackers. In December, Syed Farook—Syed Rizwan Farook and his wife killed 14 people and injured 22 others. The two attackers were killed in a shootout with police. Cook said what the U.S. government was asking Apple to do was the, quote, "software equivalent of cancer."

TIM COOK: This case is not about one phone. This case is about the future. What is at stake here is: Can the government compel Apple to write software that we believe would make hundreds of millions of customers vulnerable around the world, including in the U.S.? The only way we know would be to write a piece of software that we view as sort of the software equivalent of cancer. We think it's bad news to write. We would never write it. We have never written it. And that is what is at stake here.

AMY GOODMAN: The FBI says Apple is overstating the security risk to its devices, and argues the litigation is limited. In an open letter earlier this week, FBI Director James Comey wrote, quote, "The particular legal issue is actually quite narrow. ... We don't want to break anyone's encryption or set a master key loose on the land," he said. Apple phone systems have a function that automatically erases the access key and renders the phone permanently inaccessible after 10 failed attempts.

To talk more about the case, we're joined by Barry Eisler, who has written about government surveillance—in fictional form. But he's also a former CIA agent. Eisler is the author of a number of books, most recently, The God's Eye View.

It's great to have you with us.

BARRY EISLER: Thank you, Amy. Good to be here.

AMY GOODMAN: So, let's talk about what the government is doing and the pushback of Apple.

BARRY EISLER: Yeah, I like Tim Cook's metaphor. It's nice to see someone hitting back linguistically this way. You would expect the FBI to say what it's saying: It's only about one phone. This is the kind of thing the government always says. And I'm reminded of the time the CIA acknowledged that it had made two torture tapes. Fifteen months later, it acknowledged that it was in fact 92. In this case, the government said this is only going to be about one phone, and it took them only a day to say, "Did we say one phone? Actually, we're talking about 12." If you talk to any encryption or security expert anywhere, they'll all tell you that what the FBI is asking for is impossible. You can't create a backdoor for one phone without making all phones vulnerable. So that's one important issue here.

But there's another one that I think is not adequately understood. As Julian Sanchez, a guy I follow pretty closely because he knows a lot about these things, works with the Cato Institute, put it, this just isn't about encryption, it's about conscription. And I wish people would understand this a little bit better. It's unprecedented for the government to be telling a private company what products it can create and what features it has to include in those products. As Tim Cook pointed out, where does this stop? What if the government said, "We want to have a feature on the iPhone that enables the FBI to turn on the iPhone camera, to turn on the iPhone microphone, anytime we want? Would that also be OK?" So, I hope this isn't going to happen. It's sort of odd have to be championing the world's richest corporation in its fight with the government.

AMY GOODMAN: I mean, they're asking the Apple to write a program, which would then create a backdoor.

BARRY EISLER: Exactly. And it won't be unique to this one phone. It would be something that the government could use against any phone. And even if you think that the U.S. government—it's OK for the government to be able to break the encryption of anybody's phone, even if you trust the U.S. government and think the U.S. government has never lied anyone, never abused its powers, even if you believe anything like that, what backdoor is accessible to the U.S. government would also be accessible to whatever is the American enemy du jour—could be the Chinese government, Russia, Iran, and, of course, not just to state actors, but also to criminal groups and hackers. A vulnerability in a phone is not accessible to just one actor. It becomes vulnerable to everyone.

AMY GOODMAN: But he killed 14 people, he and his wife.

BARRY EISLER: Yeah.

AMY GOODMAN: And they just want access to see if there's other plans. I mean, who knows what would be?

BARRY EISLER: So this is another thing the government is typically good at. It tries to find the most attractive fact pattern it can to use as the thin edge of a wedge that it can then use in other less obvious fact patterns. And I see this again and again. People don't remember that well now, but José Padilla—I'm sure you guys remember—the so-called dirty bomber, I mean, José Padilla was accused of trying to create a radiological bomb and detonate it in Chicago, and a whole lot of people were going to die. And so, to keep us safe from that kind of thing, the government arrested him, held him on a Navy ship, offshored him—no due process, no charges, no trial, no access to a lawyer. It was unprecedented. But they were careful to choose what for them was an attractive fact pattern, before doing something so unprecedented. They picked a scary-looking guy and accused him of doing scary things. And people didn't protest the way they would have if they had chosen someone a little bit different.

So it's the same thing here. They're not doing this in the name of, I don't know, preventing someone from shoplifting or something like that. They've chosen a very attractive fact pattern so that they can say the talking points that you were just parroting, which is like, "Come on, this is just to keep us safe from the really scary people who want to kill us all in our beds," and who indeed did kill a lot of people in San Bernardino.

NERMEEN SHAIKH: So, to what extent do you think that accounts for public opinion? Because a recent Pew [Research] Center poll found that 51 percent of Americans think Apple should comply with the FBI and unlock the iPhone of one of the perpetrators of the attacks, and only 38 percent said that the FBI should not, and the rest had no opinion.

BARRY EISLER: Yeah, which is not actually—which is not a bad response to anyone who thinks that Apple is doing this as some sort of publicity stunt. I mean, for the moment, anyway, more people think that Apple should comply than think that it shouldn't. I think the fact that so many people, actually, that 38 percent, think it's a really bad idea for Apple to be forced to do this is, in part, a tribute to the educational value of the Snowden revelations and all the journalism that's been built on them, because I'm pretty sure—can't really conduct this experiment, but I'm pretty sure that if it hadn't been for Snowden's revelations, the public would be focusing entirely on the keep-us-safe-from-the-terrorists aspect of this whole thing, and not on the but-this-is-going-to-destroy-privacy aspect.

AMY GOODMAN: I mean, interestingly, Apple has made the iCloud available. It's not like they haven't done that. I mean, there have been many requests of these different phone manufacturers to get access to the iCloud.

BARRY EISLER: Right.

AMY GOODMAN: And, I mean, the government can't just get access to it; they have to get permission.

BARRY EISLER: Right.

AMY GOODMAN: So they're making a distinction between the actual physical phone—

BARRY EISLER: Right.

AMY GOODMAN: Apparently they turned off the iCloud at some point—

BARRY EISLER: Right.

AMY GOODMAN: —so it's what's remained on that phone since the point they turned it off.

BARRY EISLER: Right. So, the idea here is that some of your data is not accessible even by the company that created the product. It's on your local device, and no one else should have access to it but you. Apple has, in fact, complied with the government in the government's request to turn over data to which it has access. Maybe people might like that, they might not like it. My own feeling is, look, as long as it's pursuant to a warrant and it's not secret and it's out in the open, I can live with it. But the notion that now Apple is going to crack encryption that its users have come to rely on to keep their data private is—is an entirely new thing.

NERMEEN SHAIKH: Well, I want to turn to comments made by Bill Gates, the co-founder of Microsoft. He was asked about the ongoing dispute between Apple and the FBI, and said it was important to strike a balance between privacy and government access. Gates was speaking to Bloomberg.

BILL GATES: The extreme view that the government always gets everything, nobody supports that; having the government be blind, people don't support that. ... I do believe that—that with the right safeguards, there are cases where the government, on our behalf, like stopping terrorism, which could get worse in the future, that that is valuable, but striking that balance. Clearly, the government's taken information historically and used it in ways that we didn't expect, going all the way back, say, to the FBI under J. Edgar Hoover. So, I'm hoping now we can have the discussion. I do believe there are sets of safeguards where the government shouldn't have to be completely blind.

NERMEEN SHAIKH: That was Bill Gates speaking to Bloomberg News. Your response?

BARRY EISLER: It's interesting. He's so close to an epiphany. He talks about J. Edgar Hoover. Maybe he knows about COINTELPRO. He acknowledges that the government has abused powers that it's been given in the past. And so, you think he's going in a certain direction with this, and then he just comes up with this platitude, which is we have to strike a balance. Like who doesn't think that we shouldn't strike a balance? It's just meaningless. There's no one who would say, "I don't think we need a balance. I think it's just one or the other." So, I don't know. Maybe it's not a coincidence that Microsoft is a fading technology company and Apple is a premier one.

AMY GOODMAN: Microsoft has said that in the past, that 80 tech companies have cooperated—I mean, WikiLeaks has said that 80 tech companies in the past have cooperated with the NSA, the National Security Agency, including Microsoft.

BARRY EISLER: Yeah, so much of the—of Snowden's revelations were about this very thing. And the fact that the public knows about corporate cooperation with the government now is in part, I think, what has emboldened Apple to push back, because, again, if we didn't know about these things, I would expect that Apple would be quietly cooperating. There would be no cost to their doing so. But they realize now that there's a significant constituency among their customers that wants robust privacy features in Apple products, and to please those customers, Apple realizes that in this public battle with the FBI, it can't just roll over and serve the FBI; otherwise, it might turn into the next Microsoft.

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