Transcripts For CSPAN2 Key Capitol Hill Hearings 20140915

Insurer in the context of prices, because it is about the price at the end of the day. What we attempt to do as best we can on behalf of the customers who choose to pay us a premium to become our customer pursuant to that contractual relationship is to go into the marketplace and to negotiate the best price that we can yield combined with the best quality to make that available to the customer that is paying that premium. And thats what weve traditionally done. I mean, that may be an overly simplistic way of looking at any kind of insurance, but certainly health insurance. But thats, thats what we try to do. And were going to continue to try to do that and leverage all of the wonderful technologies and innovation and collaborations and things that we can do to help bring, take pressure off of those, off of those prices. So its very important that we, that we continue to do that. And as we go forward, we all need to be vigilant about those that, as dr. Reinhardt has alluded to, that have a vested interest in keeping those prices high. Because as these innovative tools are rolled out whether its a contractual arrangement or whether its a particular device thats demonstrated to bring a price down, there are those that will advocate that we pass laws to prohibit them. And we are seeing those conversations spawn across america as these new mechanisms are being developed. Therefore, as a consumer, all of us as a consumer, we need to Pay Attention to that very Important Health policy side. And that piece in particular and help all of us make the judgments of where we want those tradeoffs to be and either advocate for those prohibitions which will have a cop intention, or add consequence, or advocate against them so that we can have more and greater flexibility to deliver that Consumer Value which everyone is demanding. So, again, thank you for the opportunity to be with you. [inaudible] ill piggyback on that comment, because i think that was a wonderful summary. And what id like to adjust maybe a couple of thoughts, and that is i can assure you that every entity whether its a provider or a payer, the business community, in the legislative arena theres a pursuit of a new Value Proposition in the health care arena. I can speak for our organization, wellpoint, that we are very, very engaged with all kinds of constituents trying to vector toward a Value Proposition that best serves our public. What is fascinating, and i think it was mentioned here a few times, is the reality of a public that has to become very educated with respect to how to access this new, this new, brave new world weve come upon. And when a consumer cant describe what a deductible is, weve got a problem. For all of the intentions that were advancing around new devices, technologies and pharma, payments, methodologies that reward value, at the end of the day we need consumers that completely understand the system, how to access it to better their circumstances in terms of the health care that they are demanding to improve their circumstances. We, i know, are very engaged in educating the public, but it is a kind of a partnering responsibility, and id just close by saying thats a why i kept emphasizing the necessity for collaboration in a spirit that we have not witnessed in this industry, well, at least in the four decades ive been part of it. So im hopeful that, im very, very hopeful that were going to make Great Strides going to the future to improve circumstances for the consumers that were serving in this new world. Thank you, joe. Ark avik . Last week i was asked the speak at the americans for prosperity American Dreams summit, the big Koch Brothers outfit that has grassroots activists from all over country. They came in by the busload, 3,000 of them. Ted cruz had spoken the second day of the conference and said we will repeal every word of obamacare, and there was a oneminutelong standing ovation for ted cruz. The day before i spoke to a subsection of that group, and i gave the talk pretty much similar to the one that i gave you today. And i opened by asking the group raise your hand if youre on medicare. And more than half the room raised their hand. I said, guess what . Youre on singlepayer health care. And they were kind of stunned by that. And, of course, this is a group thats very passionate about wanting to repeal obamacare. [laughter] the trojan horse for singlepayer medicine in america, you might have heard. So i think what i would urge my conservative brethren to do is we have to do a much better job of explaining to the public that we didnt have a Market Health care system in 2009, 2008, that there were Serious Problems of access and cost in the Health Care System before 2010. And if our voters believe that repealing obamacare will fundamentally solve the Health Care Problems in this country, it wont. And i dont think that weve done a good job of that, ask we have and we have to do a better job of that, and thats on us. Uwe . One of the more encouraging remarks i heard this morning from brad and joe is this issue of transparency. Because thats been missing. I always sort of tell the way americans bought health care is a little bit like blind folding people, shoving them into macys and say go and buy a shirt efficiently. And you come out with shorts that dont fit [laughter] and then half a year later youll get some bill that you understand absolutely nothing other than pay this amount. And thats how its been. And that is clearly not how you can run anything that wants to engage Market Forces even at the fringes. Now, the europeans dont need Price Transparency because they negotiate fees that apply to every provider in their state or canton in switzerland and to every insurer. So you dont need the price, theyre all the same. You would need only quality. But here we need both price and quality and not hospital charges. We need, a, what we actually have to pay out of pocket in going to this hospital or that doctor, etc. Ideally, i would like to know the total price, frankly, to pick up some drug, 26. 95 copay, not a big deal. But i sort of ask, well, whats the total price, what fraction am i paying, and im not allowed to know. And i actually think i should know what the whole thing is. The other thing is there is now, we have selfinsured at princeton, but we have insurance policy carriers who do the claims processing. What is it, tpa, we call that . And they have a cost estimator. Now, where you can put the doctor and a hospital in, and it gives you but theyre not binding prices. They just estimate what they are. I looked normal delivery, i couldnt find it. I found that the insurance, can you help me find normal delivery, they couldnt either. The theory must have been that professors dont procreate [laughter] and we do. [laughter] we do. So some of these are not as good as they should be and, again, i would encourage my colleagues in the insurance policy side make sure these things really are reliable and that, in fact, if a patient has to pay more than your cost estimators say, that there is a way for the patient to tell you that so that you can see the varian minneapoliss and maybe talk variances and maybe talk to the provider and say what are you doing . Something to really make transparency work. Then we can have a little more market at the fringes. Great. Well, thank you and, again, id like to just thank all of you for joining us today. Id like to give a special thank you to Katherine Santora and carolyn meyerss, Katie Mcdonald and their team who helped put this on today. Id also like to let everyone know that therell be a recording available on our web site next week, nihcm. Org, and then please join me now in a final round of applause for our wonderful panel. [applause] [inaudible conversations] you can also watch the panel if you missed any of it, if you want to go back and watch certain portions of it right online at cspans video library, thats at cspan. Org. [inaudible conversations] yesterday was the first in a sevenpart series on the roosevelts by film maker ken burns that premiered on pbs. Well have live coverage of his remarks today at the National Press club scheduled for 12 30 eastern time. And live coverage of the house and senate today at 2 00 eastern. The house plans to take up a number of small bills, some dealing with financial services, and the senate has work scheduled on a pay equity bill. Live coverage of the house on cspan and the senate right here on cspan2. The hill reports the house and senate are under pressure to pass funding this week to avoid a Government Shutdown and to reauthorize arming Syrian Rebels make that authorize Syrian Rebels. Many lawmakers will be leaving washington, d. C. Soon, though, to head off on the campaign trail ahead of the midterm elections. The president sent a request for authorization to arm moderate Syrian Rebels to fight isis. Many members, though, of both parties want to hold separate votes on those issues. This week officials from the Obama Administration will testify on capitol hill to four house and Senate Committees to make the case for arming the Syrian Rebels. Defense secretary chuck hagel and joint chiefs of staff chair, general martin dempsey, theyll appear before the Senate Armed Services committee tomorrow at 9 30 a. M. Eastern on our companion network, cspan3. And secretary of state john kerry will testify before two congressional committees on the strategy to fight isis starting wednesday with the house foreign Registrations Committee Relations Committee live at 2 30 eastern. And last month the directer of the National Counterterrorism center, matthew olsen, spoke at the american Political Science association. He defended the nsa surveillance programs and argued the amount to collect intelligence the ability to collect intelligence on americans who take up arms with isis abroad is crucial. Next, that panel. Okay, lets go. Welcome to the Plenary Session on, quote, nsa surveillance and its consequences. The theme fits nicely into the larger theme of the convention entitled after the digital revolution. The controversy surrounding the nsa deeply implication the uses and potential abuses of Digital Technology by government and nongovernmental actors. Violent i jihadists use Digital Technology to build their movements, and states use it to trace these threats. As legal and National Security scholar phillip bob bit has said, terrorist movements often reflect or mirror the resources, tools and aspects of the societies that they attack. They use Digital Technology to attack us, to build their movements, and we use it to track them. In a sense, we see the very forces that were fighting. So Digital Technology has provided great benefits. It also enhanced threats. Many say this paradox also applies to the nsa. Finish it, too, uses technology, Digital Technology to protect us from terrorism, but there is also potential for abuse. Im reminded of James Madisons famous statement in federalist 51 where he said that we need government to protect us, but at the same time, we need what he called precautionary or auxiliary precautions to protect us from the government. If, indeed, there are angels, they dont dwell on this particular earth. Were fortunate today to have a very distinguished panel to discuss the nsa and to set the stage for what i hope will be a very interesting q a. I am donald downs, university of wisconsin, and im the moderator of this discussion. Also especially given the situation in the world today, whats going on in iraq and in syria and elsewhere, the discussion is all the more relevant. Now, thats said to get a grasp on the nsa and what it does, its difficult. For one thing, the government has moderated the programs due to political pressure, and adding to the fog is the classified nature of the nsas work and the complexity of its interactions with the nsa, with the fisa courts, congress and the executive branch. In addressing the nsa question, we have to know enough trees, know whats going on, but also see the forest. And i hope the panel today will get the right balance. And if the nsas watching this Plenary Session, welcome. [laughter] if germanys watching, welcome to you too. Now, well give you a sampling of the questions well be dealing with. How legal are nsas programs . How effective are they . Indeed, what are they . How serious are the dangers and threats that nsa programs address . And how do we define these dangers for legal and policy purposes . Is there a way to obtain sufficient data without sweeping communications and information into metadata and other forms of Data Collection . Or is such sweeping necessary . If so, what are the safeguards . How much should the rules and norms governing foreign intelligence gathering differ from the rules and norms governing domestic Law Enforcement . Just how different is foreign intelligence gathering from domestic Law Enforcement . How much overview is provided by the system of checks and balances in our constitutional system . Such as judicial review, congressional checking, Public Opinion, the press, inspector generals, the executive Branch Oversight . And has such checks been sufficient . The nsa is often has often done its job with secrecy, especially in the past. So what is the proper balance between secrecy and openness in a constitutional democracy, and who should decide where that line is drawn . What is the role and legitimacy of whistleblowers and leakers in our system . What is the legal and normative status of Edward Snowden, whose leaks provided so much information especially about the metadata programs . What about other leakers and whistleblowers . If snowden returns to america, should he be punished, or is spending a few years with putin punishment enough . How has the Simple Growth of new technology been responsible for the nature of nsa programs . How does the press deal with the publication of stories involving National Security . How do Public Opinion and the press shape policy in the government response . And finally, what is the classic tradeoff between liberty and security . Or as benjamin wittens has said, there really is no necessary conflict unless we become unbalanced on one side or the other, that security and liberty actually should reinforce one another if properly done. Now, before i introduce the panel, i want to Say Something very briefly about the programs to sort of set the stage, and the panelists will say a lot more about this about them. The nsa was officially established in 952, though it was based on previous intelligence operations. The core mission, as i said, is to gather foreign intelligence through surveillance. And this mission is distinct from the normal operations of domestic Law Enforcement. Indeed, when the Foreign Intelligence Surveillance Act was passed in 1978, itself based on a reaction to the previous abuses of surveillance by the government, its Main Objective was to give the government the power to do whats necessary when it comes to surveillance. At the same time, preventing that power from leaking over into the domestic sphere. American citizens are distinct from foreign intelligence dangers. Of course, what happens when theres a third category, when american citizens are involved with foreign intelligence in and thats sort of that third area where a lot of controversy arises. Much of the controversy over the nsa programs in recent times pivots around this congenital concern as nonforeign intelligence has often been swept into the intelligence gathered regarding foreign intelligence. Now, since 9 11 for the most part this is sort of my father sarduci production of the programs to a simple formula there are four basic programs that have been used. Two of them are contentbased surveillance of telephone and internet communications. Section 702 of the fisa act amendments of 2008 addresses when the nsa may look into this content. If its purely foreign intelligence, it lies beyond the purview of the Fourth Amendment. But if its intelligence that pertains to american citizens, then there are legal standards, and such investigation needs to be covered by the law. The second set of programs involve metaData Collection, both internet and telephone. Now, its my understanding maybe the panel will correct me that the Internet Program has been dropped or seriously modified, but the Telephone Program remains. This is largely covered by section 215 of the patriot act. The Business Records provision. Metadata has been stored by government and private communications providers. It includes such things as numbers dialed, time and length of the calls, the id of cell phones, cell phone information, web sites visited and the like. This data does not itself per tape to the actual pertain to the actual content of those communications, and at one time the Supreme Court held that such information is not covered by the Fourth Amendment because its been given out to the public, and it does not deal with content. But those decisions occurred many decades ago when technology was not nearly as developed as it is now. So theres a greater concern with the new technology. In order to get into the content of this, a fisa court authorization is required. And theres a big debate our first speaker will address this as to whether or not prior authorization is required to even look at the metadata itself independent of the content. Now, the Communications Content provisions were ultimately approved by the fisa court after the New York Times leaked, published information about them in the mid 2000s. Mean while, the extempt of the meta extent of the metadata programs was not really known until Edward Snowden in early 2013. After the fisa Amendment Act of 2008, all four programs were given legal cover. But we now know that the fisa court and the nsa have been involved in a lot of back and forth in recent years over compliance. Some say this tension shows the fisa courts are doing their job, others say it shows that they havent been sufficiently, sufficient guardians of our Civil Liberties. In the wake of snowdens disclosures, the government in the recent months has discussed three different reform proposals. I wont get boo those now for into those now for reasons of time, but i assume that the panel will be talking about them, and itll be interesting to see if they can go forth given recent events in the middle east. Remember back in 2009 we had the christmas underwear bomber over detroit. Reforms were in the making, apparently, back then, but as soon as that act took place, reforms were stopped. So there seem to be kind of a pendulum effect given the immediacy of terror threats and the strength of proposals for reform. Let me turn now to the panel. Its a very distinguished group. Ill present them in the order that they will present their initial comments. First is professor laura donahue, Georgetown University law school professor. Shes written extensively on the nsa and related matters including two recent extensive pieces which i had the pleasure to read before the conference. Shes advised leading privacy groups and assisted in legal litigation. Professor donahue will talk about the legal implications of mainly the bulk metadata program, but shell probably also allude to section 702. Seem to be two sides of the same coin in many respects, in my view. The second speaker will be matthew old seven, director of olsen, director of the Counterterrorism Center in washington, and before that he served as general come for the National Security agency general counsel for the National Security agency where he held the position of chief legal counsel. He also served the department of justice as an associate Deputy Attorney general and is responsible for pfsing and coordinating supervising and coordinating National Security and criminal matters. Mr. Olsens also had the honor of serving both the Obama Administration and bush ii administration. He will talk about the nature of terrorism, the threat it presents and what the nsa is doing to collect intelligence to support our counterterrorism efforts. Hell also focus on the surveillance and the role of the nsa programs, the role they play in our ability to identify and disrupt terrorist threats. Third speaker will be martin baron, executive director of the Washington Post. Before that time he was the editor of the boston globe, the executive editor of the miami herald and associate managing editor of the New York Times. A piece i encountered online asked is marty baron the man to fix the Washington Post . I assume that he is, but i know for sure hell contribute to our panel. He will talk about the press and how the press deals with reporting sensitive National Security stories and how it interacts and negotiates with the Government Regarding such also the director of the duke program in america, an american grand strategy. From june 2005 to july 2007, feaver was on leave to be special adviser for Strategic Planning and institutional reform on National Security, the National Security Council Staff at the white house where his responsibilities included National Security strategy, regional strategy reviews, other political military issues. Hes written widely on such matters as National Security, Civil Military relations and the cost of war. His remarks focus on the larger political and public dynamics in play in this issue area and how these dynamics impinge on policymakers calculations. So our formats the following each panelist will present we said five minutes, but they may bleed over their particular matters, and then well have an exchange where theyll reply to one another. And after that well open up to q a there the audience. From the audience. So thats what well do. Why dont we start with laura donahue. Thank you very much. Are the microphones working from okay, good. Weve decided to discuss from the table today. So, first, id like to thank don for the introduction. Its a wonderful opportunity to come together to discuss these issues, and id like to thank my fellow panelists in advance. Im looking forward to the discussion. As don mentioned, there are two Central Programs that have really captured attention. The first is the bulk collection, section 215, matters and the second is section 702. So in light of our limited time today, im going to really focus on section 215. What ill say up front about 702 is primarily my primary concern is constitutionally with how 702 is being exercised relate to the posttargeting analysis and the use of Foreign Intelligence Organization in ordinary criminal prosecution without any of the protections one would otherwise see in a Fourth Amendment context, and id be happy to return to that during the discussion. Don also mentioned a twopart series in the harvard journal of law and Public Policy, the first one was just published, the second will be publish inside a couple of months x these deal with 215 and 702, so as far as the forest goes, at 160 pages each, theyre pretty much in the forest. So feel free if you want to take a look. If you have questions, comments, critiques, i welcome all of that on the articles as well. So lets focus on section 215. What id like to say is three things about section 215, and particularly bulk collection under 215. First is it violates the whole purpose of the Foreign Intelligence Surveillance Act. Second, that its illegal under the statutory language passed by congress. And, third, that its unconstitutional. So as you can see, i dont have a view [laughter] on other than that, were doing okay. Yeah. Other than that, nsa top marks, right . And heres why. Let me explain. First, it violates the purpose of fisa. In the 1960s and 70s there were a plethora of programs that all of us know well that had to do with the collection of bulk information on u. S. Citizens. The nsa, for instance, in a program called project minaret collected information on a total, by the way, of 1,650 people, no more than 800 people at a time. In operation shamrock they intercepted all International Communications and scanned about 150 cable messages per month looking for ties for foreign intelligence. Now, one characteristic of these programs is they started limited, so operation or project minaret, for instance, started by only monitoring americans traveling to cuba, but they quickly expanded to include anybody involved in civil disturbances, criminal activity, suspected drug activity, individuals of interest to protection president ial protection and so on. And this spurs congress and the Church Committee in particular really head the charge led the charge here to say they did not want opportunities for executive branch committees to collect information on citizens. That was the purpose behind fisa. They were also concerned that developments in technology would allow agencies to exploit ambiguities in the law to swriewd upon american citizens privacy. These are the stated aims of this legislation. So to protect u. S. Persons not just from nsa, but also fbi programs or the u. S. Armys operation conus or the irs programs, all of these, fisa established four important protections for u. S. Persons. First, any information from electronic intercepts in particular had to be specifically tied to an individual, right . You could not just collect all electronic intercepts. Second, that individual had to be identified as a foreign power or an agent of a foreign power prior to collection of information on that perp. Finish on that person minimization procedures had to be put into place, and the foreign Intelligence Surveillance court would oversee this process. Now, initially, fisa dealt with electronic intercepts and gradually expanded to include intercepts, physical surveillance, pen rebellinger the and trap and trace, and thats really whats at issue; that is, the number one dials from ones phone and the numbers one receive ises on ones phone. Thats trpp. And finally, Business Records and tangible goods which also is of issue because this is the provision under which bulk collection takes place. Now, in regard to what has happened under section 215, many of these basic principles and the approach of congress and the purpose of introducing fisa have really been countered by nsas actions. First, theres no particularization prior to collection. The orders that are issued by verizon or to verizon just are bulk collection. Theres no prior targeting, so theres no probable cause that the individual was involved in any sort of criminal or foreign intelligencerelated activity. Before they had to know the target to get information. The argument is that now they get the information in order to ascertain who the targets are. Its completely backwards from the approach that fisa traditionally has had. Third, there is not a higher threshold for u. S. Persons for the collection of information. And thats counter to the purpose of congress in fisa. And the role of fisk is shifting. Were seeing a different role where fisk preponderances are being offered positions are being offered as [inaudible] okay. So thats the first argument is that this is really contrary to the principles of fisa. The second point id like to make is that it also violates the statutory language itself. And there are, in this regard, three ways in which it does so. The first one i want to focus on is the actual language which says that the government must have reasonable grounds to believe that tangible things sought are relevant to an authorized investigation other than a threat assessment. And this is 50usc1861 for the statutory provision. So, web, there have to be again, there have been to be reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation other than a threat assessment. So whats happening in this regard is the government argues that alltel phony metadata is relevant to authorized investigations. Okay, all telephony metadata is relevant to that. But that makes the phrase relevant to completely meaningless. If all telephony data is rell availability, then what iser relevant to an in authorized investigation . You must have republican grounds to believe that this is, that all records are relevant to an authorized investigation. It makes the prior clause, it reads it out of existence as a statutory matter. It also establishes a very concerning precedent. So if all telephony metadata is relevant, then so is all email metadata, all internet metadata, all financial records are relevant, all communications, all social media. You could go on and on. All of this would be relevant to assessing a potential threat to the United States. So what is irrelevant . And this contradicts, very clearly contradicts congressional seat belt. Now, an authorized investigation is also part of that phrase, and the way that its being read by the nsa treats the search of the data not the collection as the part that must be relevant to an authorized investigation. But the statute requires that the information to be obtained must be relevant to an authorized investigation. An authorized investigation under the attorney general guidelines requires a level of specificity prior to collecting information whereas bulk collection does not in this regard. In addition, the orders issued by fisk allow for the future collection of information, so the investigation might not have been yet authorized, and you are now granting the authority to obtain information without that investigation actually being in existence. The statute is very clear that it has to have already been established. So thats the first set of ways in which the statutory language is violated. The second set of ways relates to subpoena [inaudible] the statute requires that the nsa, that the type of not just the nsa a, but anybody using section 215, that that information must be obtained, could be obtained under ordinary subpoena you cuts dee couple. Its pretty clear you cannot use subpoenas for a fishing expedition. I couldnt convene a grand jury in bethesda and just start collecting telephony metadata to see potential criminal activity. That type of use has been roundly rejected by the Supreme Court. In addition, subpoenas must be focused on particular individuals, and theyre related to particular crimes. Theyre not just a search for information of potential criminal activity or of potential criminals who might be of interest, and there is an emphasis with subpoenas on past wrongdoing, on things that have happened or current wrongdoing and specific crimes that have occurred. The third statutory argument to consider with regard to the the bulk collection is pen register and tap and trace. So fisa actually has extensive provisions for pen register and trap and trace information, so numbers called and numbers received on ones phone. Reading section 215 the way it does, the government has done an end run around the pen register and trap and trace provisions, that statutory language where congress clearly limits and restricts and sets out guidelines for how that information can be collected. Okay. So on to the third, final set of arguments which is the constitutionality of this. In my view, this is unconstitutional, and this is why so the government relies in this case on case that don referenced, this is a case called smith v. Maryland in 1979. This is a case, a local case, actually, for us here in d. C. Up in baltimore, maryland. A woman named Patricia Mcdonough was robbed, actually, and at the scene of the crime she saw a 1975 monte carlo car. And she told the police she saw the car, she had been robbed, she went home, and somebody called her on her home phone. He basically had stolen her purse, identified himself as the person who had robbed her and told her to go out on her porch. She went out on her porch, and a 19 75 monte carlo drove very slowly by her house. She called the police, and the police saw a 1975 monte carlo in her neighborhood. So they took a look at the car, and they said from the license plate they figured out who owned the car, and they went to the Telephone Company and said may we place a pen register on the telephone line. Now, at that time there was no ability of Telephone Companies to actually record the numbers dialed from a phone or received by a phone. At that time local calls were billed in minutes. So it was because the police had this special device and gave it to the phone company that they could do this. And when the case sorry, when they placed the pen register on the phone, the next morning michael myth, Michael Lee Smith called her on the telephone. They used this information to get a warrant, went into his house, and theres a phonebook turned down, dog eared, to her telephone number in the phonebook, right . And they used this evidence in trial against him. So the Supreme Court says that Michael Lee Smith had no privacy interests for purposes of the Fourth Amendment in the numbers he dialed from his phone because it was out of his control. It was in the Telephone Companys purview. And that gave birth or rise to what is known as Third Party Doctrine in the law. So the government looks to this and says, look, the telephony metadata were collecting is Third Party Data. Were just recording this information that the Telephone Company has which includes not just numbers dialed and received, but trunk location. And this information has been collected 24 7, 60 60 for years, for years. Okay, so what is wrong with the reliance on this case . Well, privacy interests implicated by Current Technologies are significantly different than the privacy interests that were implicated in 979. 1979. There are tens of millions, hundreds of millions of people potentially impacted by these orders. Their Location Information and the ubiquitous nature of the surveillance and longterm nature make this call tate ily different than what happened 1979. Now, the court has recently decided a number of cases under both cats and trespass doctrine, and i would suggest that under either approach, whether one adopts Justice Scalias trespass approach or whether one goes to the higher bar of cats, under east approach, this is unconstitutional to simply collect bulk records on american citizens. On the trespass side, this is a general warm. This is exactly what gave birth to the revolution. In england it was seen as protecting the rights of englishmen against general warrens, but the american colonies were directed to to use for evidence of possible criminal activity. And james otis was one who famously argued that this was the worst instrument of arbitrary power, he said, the use of general warrants. John adams, who was actually at the argument said then and there the child liberty was born. This was seen as the first shot in the revolution back to england saying we will not accept general warrants. So the virginia declaration of rights actually prohibited a conclusion on general warrants. Virginia and new york and a number of states as a condition of signing the u. S. Constitution said there must be a prohibition on general warrants, and that is what the Fourth Amendment came to embody, that is what madison said. So giving the government the ability to collect all telephony metadata without any evidence of criminal wrongdoing, that looks a lot like a general warrant x. As a digital trespass on the private lives of american citizens. But one can also go to cats, right . Justice scalia in a recent case, jones, who said one cannot read the Fourth Amendment to read rights out of existence at the time of the founding, so we can look at general warrants in this context. But there is as well an approach to this through cats. There was a recent case, user v. Jones u. S. V. Jones where a gp schip was placed on a car outside of the warrant, the ten days that had been required by warrant and outside of washington d. C. It was on a drug deal everys, suspected drug dealers wifes car. And the court decided the case on trespass, Justice Scalia writing the opinion for the court, but there were five justices who came out and said that under cats one has to take account of a reasonable expectation of privacy and that technology is changing this picture, that technology is changing what these things look like, particularly justices alito and justice sotomayor. They took on this point directly and said this is Something Different. Justice sotomayor said she would overturn Third Party Doctrine in light of the substance intrusivf these technologies. Im going the wrap it up because i know were on limited time, but theres a case which deals with thermal imaging. In 2010 we have u. S. V. Rorschach which is a sixth circuit case looking at a reasonable expectation of privacy in email, we have cotterman which is a ninth circuit case looking at personal information in digital form, we have justice cay can booking kagan looking at cats. We have this growing body of case law where the court is starting to recognize and say, wait a minute, there is a privacy interest in this digital information. This is a heightened interest and Something Different than what we have previously seep. So just to recap, section 702 my primary concern has to do with posttargetingage sis and use of the information for criminal activity. For 215 i see it as contradictory to congress purpose in introducing fisa as violating the statutory language and as unconstitutional. Thanks. All right. Well, im going to follow laura. Its not going to be easy, is it, for me as the nsa general counsel to follow laura in her shes done a lot of very extensive and interesting work on this. Let me say that im here in some ways more as, in my current role as the director of the National Counterterrorism center, and im going to sort of stay in that lane for a bit, although ill talk a little bit about the law at some point. But im probably here primarily actually because my daughter is a nowjunior at the university of wisconsin and took professor downs class [laughter] and last year i had the privilege of speaking to professor downs class with my daughter in it about National Security and the First Amendment. So as i look out at you all, im hoping that you guys actually are easier than that group was on my argument. They had a lot of good questions. But so im going to be, im going to stay this the forest and not the trees for a moment, and i know well get down into the trees, and i look forward to having that discussion. Look ata surveillance from an operational perspective. And the National Counterterrorism center is, essentially, a clearinghouse for analysis of terrorism information. The subject of to todays talk s nsa surveillance and its consequences, and i do have a particular perspective now on the that surveillance. My view is that surveillance is absolutely indispensable to protecting the country. Its our daily bread. Every day i get a threat briefing. I had one this morning. It lasts about an hour where we go around the world, find out whats happening. From a terrorism perspective. And one of the primary, if not the primary source of the information about terrorism comes from the collection of information that nsa carries out around the world. Its really through these reports, nsa reports, that we have the opportunity to see the actual communications of the people who are targeted, the targeted terrorists that are seeking to carry out attacks against our interests around the world as well as here at home. So i approach these questions right now, as i said, from a particularly operational perspective. Obviously, i understand that theres a lot more to it than just the operational side, and lauras remarks make that clear. But let me make a few preliminary comments. Let me devote my preliminary comments to the nature of the threat. Because as we have this conversation about striking the balance, professor downs referred to ben wittes comments. I think you need to understand in thinking about that balance, whats the nature of the threat, whats the nature of the adversary that were trying to learn more about to protect the country . And ill talk about that, and then ill talk about how nsa surveillance fit into that, and then ill touch on very, very briefly the impact of the disclosure of the stolen documents and how thats affected capabilities. So the short answer on the threat is that its increasingly complicated, and its persistent, and its diverse, and its geographically diffuse. Its changed a lot in the last ten years. Its much different from what we faced right after 9 11 and the years shortly thereafter where we really were talking about a monolithic threat coming out of the afghanistan, pakistan area. Basically,al tide and alqaedas senior alqaedas Senior Leaders who had established a safer haven there. A diverse range of actors. Not just core alqaeda in pakistan, but a number of groups and individuals who have varying degrees of affiliation with alqaeda and its, you know, professor downs said you basically, you cant not see this today when you turn on cnn or open a newspaper. You have groups that are officially affiliated with alqaeda like alqaeda in the arabian peninsula, the group that was responsible for the Christmas Day 2009 effort to take down a plane over detroit, you have alshabaab in somalia, thats an official affiliate, alnusra in syria, official a affiliate. You have groups that are aligned with or have splintered away from alqaeda like boca haram in nigeria, isil or isis, the group thats primarily in the news right now. Thats a group that splintered off from alqaeda that used to be alqaeda in the iraq. And beyond that you have a number of individuals in places like libya, egypt who have varying degrees of adherence to the ideology. You have people here in the United States who adhere to the ideology of alqaeda. So the way the threat picture looks now is much more diverse, much more fragmented than it was ten or really even four years ago. Beyond that diversity you have a geographic diffusion. So as i mentioned initially, its not just centered in the afpac region. This threat now spans a wide Geographic Area going from south asia, pakistan and afghanistan to the middle east, to the he vapt and across levant and across north africa all the way from the in the east egypt to mali and mauritania in the west. So this geographic diversity also presents a real challenge from a terrorism perspective. And then the third feature of the threat is its proven to be quite adaptive. So where we were concerned ten, even five years ago about centrallyplanned plotting from alqaedas Senior Leaders in pakistan, were now, you know, increasingly concerned about the change in tactics where theyre looking to carry out smaller scale, less sophisticated attacks, but attacks that dont require people to travel or communicate directly with central planners or leaders in some of these locations. So theyve changed their tactics. Theyve also changed their tactics in how they communicate. Understanding that thats a vulnerability for them. So we have a threat that is increasingly diverse, geographically diffuse and adaptive. So the second thing i wanted to mention along these lines is why is nsa so important . Why is it important for us to be able to to collect communications . And the reason flows directly there the nature of the threat. From the nature of the threat. Its very difficult to infiltrate these groups. They are inherently suspicion. They kill people who they suspect are spies. One of our primary ways then of being able to understand their intentions, identify individuals who, you know, block to these belong to these groups perceive the plotting thats taking place is to be able to get access to their communications. Its also the case that with the geographic spread of this threat that our ability to have sources, human sources is limited because we cant get to all these different places. Its another reason why nsa surveillance and collection so critical. A third is just the inherent reliability of this type of intelligence. So its really a gold standard, right . Were not relying on someone to report what they here where they may have inherent bias or limitations on what they have access to. We are actually able to get the actual communications of the individuals were seeking to learn more about. So were getting their actual emails or telephone calls. And all of this really goes to the point, the fundamental point i started with of nsa surveillance as a general proposition is absolutely indispensable to our ability to counter the threat that were seeing and thats continuing to proliferate. A couple cases in point, syria. So, obviously, the news were seized with whats happening in syria and iraq. In syria we have the unrest has head to really a magnet for foreign fighters. So we have over 12,000 foreign fighters going to syria. That numbers going up all the time. More than a thousand of those coming from europe and more than a hundred coming from the United States. Going to syria to join the opposition, and many of them joining the extremist groups like alnusra a, an alqaeda affiliate, as well as isil. Our concern is that as these individuals go to these places, they are eventually going to get trained, further radicalized and then return home. One of our great challenges right now from an intelligence perspective is identifying these individuals, understanding what their intentions are, and if they are involved in plotting, being able to disrupt that. Thats why a very good example of where the types of intelligence we get from nsa is critical to our ability to understand this emerging threat. Another point or example i wanted to share because it goes directly to what laura talked about in terms of the particular programs that i know folks are interested more in talking about section 702 and 215, and i know well talk about the legality of those because i have something more to say about that, but the more specific example that many of you will be familiar with is najibullah zazi. Targeting an individual this pakistan who was connected to alqaeda. By targeting that individual in pakistan, they intercepted an email between the individual in pakistan and this individual they didnt know anything about, turns out his name was najibullah saz si living in aurora, colorado, about how to prepare an explosive device. Because of that intercept, because of that collection, they identified this individual in colorado, shared that information with the fbi. The fbi initiated an investigation of zazi. Zazi, eventually he was days away from traveling to new york. Eventually, he was arrested by the fbi as he was on his way to blow up the new york subway. In addition to identifying zazi, the nsa and fbi used section 215 to corroborate the identity of an accomplice of zazi by looking at the phone records for this individual. This, the attorney general called this one of the most serious threats wed faced since 9 11. It was a plot that was real, it wasnt aspirational, and it was stopped because of nsa and because of these programs. So the third thing i want to say is, and ill talk just for a moment about this and turn it over to marty, is a word about the impact of the disclosures. The bottom line is the documents that were stolen from nsa and then disclosed have had an extremely damaging impact on our ability to collect information. Weve lost the ability to intercept the communications of key terrorist operatives and leaders. Look, we know these groups monitor the press, we know theyre suspicious of our ability to collect their communications. Its not news to them that the nsa and the United States government, intelligence agencies around the world are trying to collect the their communications. But what this information did was essentially confirmed in excruciating detail the scale and scope of our capabilities. And in many ways, it revealed information that had nothing to do with the pryce or Civil Liberties privacy or Civil Liberties of americans. It was purely information about the capabilities, the technical capabilities of u. S. Intelligence agencies. We have specific examples of terrorists who have adopted greater security measures in the last year including various types of encryption. Theyve changed Internet Service providers, theyve dropped or changed email addresses, and they have otherwise in some cases just ceased communicating in ways they had before and dropped out of our ability to see what they were doing. So, again, extremely damaging impact op our ability to on our ability to collect these communications. So, look, were at a point now though where were dealing with this, and we the president has made significant changes, for example, in the 215 program. So it no longer looks like what laura described. But we have a lot of work to do to address the erosion of trust thats been created, and i think thats something that is part of why its important to have discussions like this with informed and influential audiences like you all and why i welcome the opportunity to have this discussion, so thanks. Great. Well, thank you, matt. So what ill try to talk about here is how and why we decided to publish, how we went about our work and how we think about National Security issues in our coverage. Im not a lawyer, im not going to pretend to be one here or play one here, so i may be at some disadvantage, but i think i can speak at least in Broad Strokes about the role that we see for ourselves in coverage of this major National Security, as you might expect, is an area of intense focus for us at the Washington Post. Its one of the greatest powers of government, thats the power to make war, to spy on people, to interrogate people, to prosecute, to incarcerate and kill. All of those are the greatest powers of all, and they are vested in our government as they are in every government around the world. We have to cover the federal government, and in covering the federal government, those are not activities that we would choose to ignore. And nor are those activities that, in my view, we can simply defer to the governments wishes on what we should report, how we should report it, what not to report whenever the government asserts a National Security rationale or whenever the basis for our coverage is classified material. The government has shown a remarkable maybe not so remarkable addiction to classifying documents of every sort, an enormous amount of information now is classified including a lot of information that is relatively innocuous. There can always be a rationale for keeping something classified. And as a result, very sweeping Government Policies with profound implications for individual rights, the Fourth Amendment weve talked about here, the First Amendment as well. Those have been put, have been put into place in secret. You know, the constitution of the United States begins with the phrase we the people, and it presupposes that the people will be involved in selfgovernance, that this will be a government of, by and for the people, and the premise of that is that the people actually have information about what their government is doing, that they have knowledge of that. So our purpose is to try to provide that information so that we can actually have selfgovernment, selfgovernance in fact and not just in fame. In name. At the post we have a highly experienced National Security staff. I think the people on this panel are aware of that. They have a lot of sewer actions interactions with the people on our staff. We do rely on their expertise and their history of navigating the most sensitive subjects imaginable. We recognize that there is a tension between national, between selfgovernance in this country and national selfpreservation and selfprotection. Theres no question about that. And we are not dismissive of National Security concerns. We do take them very seriously. We are recognize that its a dangerous world as weve heard already, we certainly know that. There were 16 officials with our one or two reporters from pretty much every agency in government at the time. Then on many occasions at the request of the government we have withheld information that might disclose specific sources and methods. Withholding that information we ourselves are becoming to criticism from a certain segment of the population that we were denying the Public Information that it was entitled to half. However, we did not agree and would not agree to every request made by the government. Had we done so we wouldve had no stories whatsoever. Because the intelligence agencies obviously wouldve preferred that we not published a single word on the subject at all. Saw the director of National Intelligence and leading congressmen have said i think chillingly that journalists reveal this information, the contents of these classified documents where the accomplices of snowden. That was a phrase that was used. One congressman suggested we should been prosecuted under the espionage act instead of being awarded the Pulitzer Prize for public service. Thankfully i am here able to attend this panel and be in front of all of you. I think what we saw in the documents that we received from snowden was something that went beyond the specific sources and methods that the press have traditionally guarded on grounds of National Security. The documents had revealed that the nsa was engaging in and surveillance up i think breathtaking scope and breathtaking intrusiveness. To a degree that many in the public could never have imagined and certainly would never have approved. What we have here we believe was a national policy, not just sources and methods, and a policy that have dramatically shifted the balance toward state power and shifted the balance away from individual rights, including privacy. There have been no public knowledge. There have been no public debate, and knowledge within the government itself was sharply limited. So now we have that debate. We are able to panels like this and discuss what is appropriate policy, and knowledge is not limited to a select group of powerful individuals within the government. Who are shielded from the people they represent. I will turn it over. Thank you, marty. Its an honor to be on a panel like this, even though i realize my presence diminishes the luster of the panel addressed the average seller as well. Im just hoping my thesis on cspan and take steps to rebalance that last piece of the. Im going to speak five propositions about someone, a group referenced in martins remarks, namely we the people. Whats the broader political and Public Opinion content for this issue . Im going to make five propositions but the first proposition is that the public is not nearly as ron polish on this issue as the Washington Post, the New York Times coverage by make you think it is. By ron i mean tired of work and wanting to retrench at home and fearful that the government is a bigger threat to their freedom and terrorists are. I commend to your attention a forthcoming Chicago Council paul that surveyed public on a wide range of Foreign Policy National Security matters that can be released very shortly if it hasnt already. And the data are striking. This is a Data Collected before i so became a household name, before the most recent isil. Most recent coverage. Only one in three think the restrictions on the National Security agency should be increased. More people think it should remain the same and is a small number that think there should be fewer restrictions. Its a plurality of public thinks that the budget for General Information gathering for the nsas budget, and matthew sadr, should remain the same. That it is now. Seven and 10, a super majority say its more important for the federal government to investigate possible terrorist threats even if that intrudes on personal privacy. So they killed the Privacy Security tilt the balance in the direction of security. They want more to keep the gitmo rather than closer. So mark may win a pulitzer but the general public doesnt view snowden as a hero. Put another way, this is a public that the nsa could work with. More of an nsa kind of public i think that a ron paul public. That are of course very outspoken minority groups that hold to a ron paul view, but in general the public i think is more sympathetic to what the nsa is doing. The second proposition is that the public is not hannah teter about terrorism, nor is it sanguine about the terrorist threat. So the public is still quite worried this is 13 years after 9 11, still worried about terrorism and they are even more worried about terrorism and the event in a decade. That is, the 2014 data is higher than a decade ago. 34 say terrorists have a greater ability today and terrorists had on 9 11. At a decade ago you wouldve on had 24 who say that. About a third of the public thinks the president has made the country less safe in this area. All of these data is before i attorney general holder said that the isolate terrorist group was more frightening than anything he had seen isil, and before secretary hagel, the secretary of defense described the threat in apocalyptic terms. This is the public before the most recent isil revelations. Third, my third proposition, because of those first two propositions, the politics do not favor poohpoohing the threat. And i think the president aired we need to smiths isil as a gp threat, jv team, and this is in his new yorker article, and you can be sure that if isil ever does succeed in attacking the u. S. Homeland, that the lead in the Washington Post is going to be, isil, the terrorist Group President obama dismissed as a jv team problem, struck the United States yesterday. The president i think understands that that was a mistake. Certainly his Communications Team does the thats why theyve gone to such extraordinary lengths to attack and deflect criticisms about how the president s choices and syria have contributed to the rise of isil. The president goes to really remarkable lengths to attack people who say that, and that effort by him is going to get harder and harder to do because the more criticisms are not coming from members of his team, or former members of his team. So secretary of state clinton, deputy secretary of state steinberg, former ambassador ford, undersecretary michele flournoy. They of all registered very compelling and thoughtful critiques and many more of democrats have spoken, and anymore better way about the problem. Its impossible to dismiss this criticism as partisan. And paradoxically, the president or the recent success in terms of rescuing the ucd refugees on the mount tops ucd thats going to increase in the intensity of the little guys what you think the president will find himself. That is, if isil does successful attack the u. S. Homeland and the president has not authorized previous authorized strikes against them in syria and elsewhere, then the question will be, well, why didnt he use tools that were successful for him in iraq to do with the threat and isil was honored by cidou not be able to contain this threat indefinitely without confronted him in syria . So the political vice will tighten. The fourth proposition flows directly from the. These numbers, the poll numbers i described are likely to spike in favor of a more robust counterterrorism effort, and including a robust intelligence collection rather than the other way. I dont agree into a period where the public will be clamoring for even more restrictions on the nsa. I think the trendlines point in the other direction. Its the you for me to imagine scenarios where the public concern about this will increase dramatically than it is for me to imagine scenarios where the public will become more sanguine. And that intensifies further the political pressures on the administration, particularly the pressure to be more expensive on the intelligence collection. One of the reasons that the Bush Administration and the fall of 2001 move as quickly as they could, accelerating and actually throwing out existing war plans and creating a new war plan in order to attack alqaeda in afghanistan on an accelerated basis, the administration was very concerned that alqaeda would go up to do nothing on u. S. , they would get a second strike in before u. S. Have been able to avenge the first strike. They were concerned that in such a climate it alqaeda have gone up 20 on the u. S. , that the pressure from the public for an unrestrained, for an overwhelming response using all of its of National Power including browns even weapons of mass destruction, the nuclear option, the pressure on the administration would have been even greater. So part of the reason for moving so quickly was to bring the political environment back into allying with a more coherent and more reasonable counterterrorism strategy. And ironically, this president , president obama has put even greater pressure on the Intelligence Community. Then roads who is the president s chief spokesperson in the National Security area recently said this is about a week ago, that at the time there was no need to attack isil in syria. And the reason that they didnt have clear indications and warning yet this was a week ago that isil was going to post a direct imminent threat to the homeland, but ben rhoades insisted that if we did get that clear indications and warnings then, of course, the president would authorize a strike. What that does though is put a tremendous amount of pressure on your indications and warning capacity. That was a shot across the bow of the Intelligence Community that quote, saying because that was in political terms saying we dont need to act on because the Intelligence Community has told us that we do not need to act. If we are wrong, if theres a strike intel is committed has to what is. Setting the political predicate for a blame shipped which has tremendous pressure on the intelligeintellige nce community to open the aperture and make sure that theres not a single one, a single possible threat that goes unnoticed. And so this leads me to my fifth and final proposition. That there is an interesting policy maker and academic gap in this area, in the study of this issue. Lets stipulate for the sake of argument, we can argue whether its true or not but for the sake of this panel lets stipulate that some level of homeland risk is irreducible. That even if they do all the work that theres some irreducible threat that remains, i virginia many academics accept that premise and to say what are we doing so much to reduce it . If theres some irreducible risk, why are we doing, going to such great length and accepting trade is on security and privacy from nsa, why are we doing so much to reduce it . To policymakers ive interacted with see it in a mirror image. They say the threat is active irreducible level precise because were going to such extraordinary lengths to reduce it and thats what have to maintain these extraordinary lengths so that the threat remains that whatever is the irreducible level. So i closed by saying i think the pressure on the president will increase in this area. And i call to your attention what the president said a day or two ago in a speech to veterans. He said that if isil killed americans, he would avenge their deaths. And no one should doubt his willingness to do so. And i accept that at face value. I certainly dont doubt his determination. Youve proven you will use all elements of National Power to avenge the death of americans. And americans do want the president to avenge those deaths. But they want even more for the president to take all reasonable measures to prevent those deaths. They are not just interested in avenging. They want prevention. So go back to my political vice problem for the president. If the president does not take action against isil because hes waiting for clear indications and warnings of a homeland attack, and if he doesnt get those clear indications and warnings because of restrictions that have been place on the nsa, then in that hypothetical the blowback will be severe, and debates as to whether the fisa approval process is overly general, i dont think well have much resonance with voters. Thank you, panel. Very interesting. We want to see other any questions we have for each other. We have until 12 and we want to have ample time for q a. Let me launch our discussion by asking the question building away peterson. Given his assessment of the political vice, can we expect to see any kind of reform of nsa . And if so what would it look like . Well, i will jump in. So i do think the president made a very important speech earlier this year in which he outlined the challenges that we face in this area, much along the lines weve all discussed. He identified, for example, his speech took us back to the american revolution, civil war, world war ii, talked about intelligence gathering, and the inherent difficulty that we have in trying to balance National Security and private and Civil Liberties. One of the points i wanted to make today that is crucial from my perspective, having worked on these issues for several years, including under the past administration, is this discussion didnt just begin with the post story or the guardian story last year. This is an ongoing debate, an ongoing debate with lawyers and policymakers and members of congress, the courts, and with the public. We can talk about how much can the public. But this debate has been going on. The president pointed out that in some big changes, the changes in technology, laura talked about, the fact that after 9 11 we talked about threats inside the United States, the factor biggest adversaries are no longer nationstates but asymmetric actors. Those have put pressure on our system. Led the president to announce a series of reforms in his speech earlier this year. So the quick answer then is yes, there will be changes. Yes, congress has undertaken legislation right now. That there were changes that we made on the executive branch that didnt require legislative changes according going to the fisa court for approval for every time we look at the data that is collected under 215. But notwithstanding lauras point about the ways in which 215 is out of whack with fisa, illegal under the statute and unconstitutional, the reality is that you may not realize it but it actually is legal and it is constitutional and did his chances with fisa because every judge was looked at it with the exception of one judge, but every fisa court judge has said so. As long as im in this state of the National Counterterrorism center, as long as im part of the Counterterrorism Center, were going to take advantage of those laws and policies and rules that allow us to do these things. So this may be where lord wants us to go but its not where it is now. So there will be changes. The president said we were and bulk collection but regard to congress and we put forward and worked with congress on legislation that will and vocal collection, but will still maintain an operation capability that is similar essentially what we have now. Quickly may be yes or no. Do you live with these dangers . Some of the legislation that the house passed in the senate is considered now i think it is certainly within the range certainly within the ranges that we will maintain the operational capability, so yes. Id like to highlight a political and the constitution reason why we have to have those reforms. Marty referred to we the people. Its a problem when the law says you have to have reasonable grounds to believe that information is relevant for an authorized investigation and the terms of that all telephone calls are relevant. Its a problem when the law says you may not knowingly collect and how domestic conversations and the nsa says we know we collect tens of thousands of conversations but in any one instance we might not know at that time so were still going to collected. Itits a problem when the law s you have to be able to obtain the fisa subpoena and no court in any district in the United States would allow you to collect for seven years all the data of the citizens living there. Its a problem for democratic governors when the losses one thing in inside a super secret classified world that only a handful of people have access to come something very different is being done in the peoples name. The second point, so on the point, disclosure damaged intelligence collection i found a greek but so does the use of the law in a manner that looks so different from what it actually says on its face. That also creates a great damage and the damage done is the democratic governance. On a constitutional point, something we havent touche toun in silent too. Whats been done under 702 is its not just information to or from section 72 deals with nonu. S. Persons located outside the United States, the collection of the commission on the. 703 deals with you as person outside United States and the domestic collection of their summation and 704 is use persons outside the u. S. And the International Collection of their information and different standards apply to each category. 702 youre collecting information on nonu. S. Persons. One of congress is concerned what this would be useful reverse targeting. They would say the concern is the intelligence agencies are targeting foreigners and were going to collect all International Committee cases but were not targeting americans in the United States. Were just going to target overseas and use it to reverse target individuals in the country. Thats what introduced these other provisions, other mechanisms to try to prevent this from happening. What is happening is this is being introverted not just information or to many occasions to or from targets overseas, nonu. S. Persons that information about selectors related to those targets overseas which is a broader understanding to collect more information. So if i communicate with somebody and theres referenced in the conference of mike cunning occasion, that information can be collected and mind for further information even though i never communicate with the target itself to this is called the to, from, or about interpretation. This has allowed the government to collect a lot more information than it would otherwise be allowed to collect and it is now allowed to query the database using u. S. Person information. So names, affiliations, titles, it can be formulations and cori the data to see if anything comes of. You can query this database that the fbi has commingled with fisa and theres no record being kept at this. Under the Fourth Amendment the right of the people, refers back to the people which is understood as a political entity of you citizens, not nonu. S. Citizens. Right of the people to be secure against unreasonable search and seizure shall not be violated. We have this right and yet u. S. Person identifiers are being used to query the database. The Surveillance Court offered reasons saying why there was not a war to require the collection of information in the first place. They were good reasons. When the purpose is not gardenvariety Law Enforcement come when the government is interested particularly intends and where theres a high degree of probability if you were to require a war and it would hinder the governments ability to collect time Sensitive Information and would hurt u. S. National security but you can collected the information. None of those conditions hold and the fbi goes back to the database to see if theres any evidence of criminal activity linked to non in bin laden, the Southern District of new york said its hard to get warrants for four ounces collection overseas. Its hard to predict the International Impact of seekingg award, there the problem of fon influence officials being seen as implicit. Theres a danger of notifying enemies. When we have the information in our hands, it is hard to argue why you shouldnt be required to get the word to search the data for evidence of criminal behavior especially if it is unrelated to National Security interest. The privacy and Civil Liberties board came up with a report where they said the fbi frequently does this and they dont keep a record of the. They dont go to a court first. Theres no probable cause required and this amounts to an end run around the Fourth Amendment. We have to have reform to bring within our constitutional purview. I want to just change course a bit and maybe address some of the things that peter said, because i felt it was a bit of a characterization of what we think at the Washington Post and how we are and all that sort of stuff. So let me offer some help clarifying remarks. First of all we never said snowden is a girl, by the way. What we suggested was that in was a hero by the way. In the documents that there was information the public had a right to know. And that had an important Public Policy implications. And that probably should lead to a debate such as the one we are involved in here today. We never suggested the public not concerned about terrorist. We are concerned about terrorism. We cover it every single day. And by the way, we feel very acutely the individual was recently beheaded by the Islamic State was a journalist and there are other journalists who are being held by terrorists throughout the world. So were not pollyannaish about that subject. We didnt say that a majority of americans favor greater restrictions on the it is a. In fact, we conducted our own polls which showed pretty much what was reflected in the polls that peter cited. Nonetheless, to say that one in three say restriction should be increased. This is a substantial portion of the population and i dont think just because something doesnt constitute a majority, their views should be entirely dismissed. And we have said that, and you feel that this level of surveillance does raise important constitutional issues as the lord has been talking about. And its potentially subject to abuse. No question that we are in a period of terrorism threat, and theres a question that in a period like that individuals are willing to give up their rights in favor of security. But thats a decision that the American Public makes the a debe such as this one. The American Public can arrive at a policy that they think is appropriate or i suppose if they choose in some manner to give up the rights, they can do so, although we do have the constitution of those things have to be contested and discussed in courts and in forums, and political forms and forums such as this one. I do agree with laura that while perhaps disclosure of these documents has had an impact and perhaps a very serious impact on the governments ability to conduct surveillance and intelligence, that feels its important in the fight against hers and. Nondisclosure of all of this, the fact that all of this was largely secret from the American Public does in fact do damage to our Civil Liberties and our ability to govern ourselves. Peter, any response . I think he just misunderstood when i was not there to bring those to the use of the Editorial Board of the Washington Post, distinguished as that is, but youre right that theres been a marked change in the tone of coverage of these issues. Even sense the tragic beheading that the reporters that i talk to, their approach on this issue is different this week that it was even two, three months ago. And certainly at the height of the snowden revelations when the outrage was mostly directed at the nsa, and i think that has been sort of a return to more balanced, a more balanced perspective you just articulated. I think there has been since then. The public has voted on these issues, voted to reelect president bush. It voted to elect the people passewhopassed the patriot act. It voted to reelect president obama, and both president obama and president bush defended these kinds of actions irks and now theres obviously a lot of reasons why the public votes for a president. But the public, the gist of my, the distillation of my argument is that the public outrage at the nsa probably hit a High Water Mark is what i would say. Hit the High Water Mark at the height of the snowden coverage, and that world events are likely to push the public away from that, further and further away from that, more likely to do in that direction and to push them more and more in the direction of, say, lowers cant. That doesnt speak loris camp. They have been made and there will probably be more tweeting on the margins and certainly if there is any new action, it will be much more tailored and restrictive than the original 2001. So its not to say that the public will force the politicians to be unrestrained, but it is to say i think we are moving, the public is moving more in the direction of taking more risk to confront terrorism than it is accepting more risks than nonconfronting terrorism. This is a Political Science convention and one of the teachings of law politics is the relationship between law and politics. If judges will often decide cases, somewhat different to based on circumstances, famous line Supreme Court follows the headlines. Perhaps the press, at least in some terms of what it wishes. So theres a relationship between politics and the law. Laura seems to be most uncomfortable with that proposition. Is that fair to say . That the Court Follows politics . Or that politics influences what the court to do. Always been a separate domain. Thats very difficult. Constitutional law, which im about to start my course on tuesday, you are aware of the political context in which decisions are made and of the orientation of the justices but also the effort to reconcile propositions before with constitutional provisions. I just would throw out i think both about tradition and then have a question, the observation is that look, this really important discussion and lauras point where the law is heading, really interesting and important part of this debate. But i think it would be wrong and its a myth that i think has been sort of widely shared more widely do that nsa is sort of lawlessly making these are you Going Forward on its own implementing these programs. The fact is on 215, for example, the fisa court, independent article iii judges, 37 times i believe have upheld 215, including since the revelation of the snowden documents and the debate in the public. That federal judges have looked at it, three out of four of them upheld 215. On a 702 side Congress Passed 702 fully understand after debate how it was being implemented. And the judges have looked, the one judge has upheld as constitutional, within the statute. So it may be the case that someday ill review article that lower is writing will make its way into a court or into congress and change the law, but that day is not today. So from my perspective we have an obligation to execute the law in a way that protects the country and takes full advantage of the laws and tools that are on the books. I think its a misimpression does it thes these are argumentn this it is make, ways and is a sampling these laws because theres a lot of people within the justice department, within the fisa court, within Congress Looking at these programs and validating and we authorizing them in determining that they are within the statute and within the constitution. I think its an important issue and id like to build ask morty because i think the hardest part of this, and you may give a reasonable opening comment about, and agree with you have a Washington Post approaches these issues, about classified information that they have heard. The challenge i think is that the initial, or at least one challenge is the initial start of the Washington Post broke said that nsa had directly tap into the servers, central servers of Internet Companies, nine internet copies. This is based on the slides the snowden release. This turned out not to be true. This was the lead story. A lot of people might rightly think then and even today that that was the case but, in fact, what that prism programs like but with section 702 of eyes which had been debated, authorized and validated by the courts. I understand theres pressure on the press to publish when you have Something Like that based on what you know and then maybe time in his pressures as well. But the problem is im bringing that though because i turned out not to be true and you would be forgiven the if today it is true, that nsa tapped directly into the service of american Internet Companies. Not true. Just not true. But it was the lead paragraph of that initial story. Its very hard to change that impression once its out there. I think theres real pressure and i know theres a back and forth, and maybe weve gotten better at it in sort of, and working with the press. The other problem is not an repress public is the Washington Post and the New York Times, and engaged in that type of discussion with the government in an effort to be responsible. Thats my question. Let me address that. First of all we discussion with the director before publishing that story. The second point is that was an actual nsa document that said they could tapped directly into it so it was an actual accurate account of what the nsa was telling its own people in its own documents. In addition to the store did not stop there. It actually said that the nsa and the government denied that he was doing that, and he quoted extensively from Technology Companies saying that they were not aware of this. It did not happen, so it did not stop by juicing the government can just willynilly tap into these networks. It actually quoted from the government saying its not the case but it quoted from the Technology Companies saying it was not the case but also quoted from the actual nsa document and which it said it was the case. This was what they were doing. As far as every media outlet not being the Washington Post, i appreciate whatever deference is there to the Washington Post. The reality is that snowden could have done what was done in the case of wikileaks. It could have turned this over to wikileaks and all of this information without any mediator you be involved, the intermediary being us and the guardian and some other publications over time, he couldve just posted it all, put it all out there for anyone to look at. Any terrorist organization, any other country to take a look at and pour through and look at it to their hearts desire. For reasons that he has articulated, he gave it to us to exercise our judgment, and in exercising our judgment we spent an enormous amount of time with the government going over this information. And actually withholding information that the government felt was far too sensitive. You know, we spend months on some of these stories. We have spent enormous amount of time an enormous amount of money. Weve also taken enormous precautions with the security of the documents that we have. I dont think thats an act of irresponsibility in any way. And i think that certainly the government would argue that nothing should be out there. That the government should essentially know everything. The public should know almost nothing. And thats not thats not my position. That is the position i think of some and thats not a position that a think its consistent with the very critical of selfgovernance. We need to move towards the q a. Lore, one quick final point within will do the q a. Leased line up behind the microphone. So just to comment, on the foreign Intelligence Surveillance court. This reliance on foreign Intelligence Surveillance Court Concerns me in the reason why coming for look just across the board in the past 10 years of 20 judges on the court only three were democratic appointees to the court itself. Of the judges on the foreign intelligence board of review, all the judges have issued these important decisions bring down for instance, of the wall between criminal and National Security, to the judges on the three panel that brought down this law axa said fisa itself was unconstitutional in the first place. The applications that come before the court in the past decade this has ruled in 18,004 and 33 applications, only eight have been denied in all and only three in part out of 18,000 cases to come before the court. There is no advocate opposed to the government at the court. These are in camera export a perceived. Theres nobody to argue against the government for these orders that are put into place. No advocate or advocate that may challenge this that orders are being put for but you see the impact of this. The judge that released opinions, one of the opinions when it treats, it spends a page and have as summarily dismissed if of any question of Third Party Data with no treatment of advanced technology, of u. S. Chose going to do the decent been handed down. Of course, we have other cases that we can look to and none of this is being cited by there is no contrary opinion being expressed to the court at the time. I would add to this that they were not designed to be a court to great precedent answer for not a Fourth Amendment were exception which is what happened in regard to 702. They find theres a war and exception to foreign intelligence collection which has never been recognized at a domestic level and since 1978 place has controlled those collections. We have a secret court which is heavily skewed towards the one direction at least in terms of the appointment which tends to agree to all of the or to request that are put before it and these are secret, didnt look at that as president to a court that wasnt designed to precedent with no contrary counsel to rely on this as the state of the constitutional provision i find concerning. You would support and advocate . Absolutely. Lets go to q a. My name is Steve Schiffer and im from the cornell law school. I a question about, i want to push back a little on the Third Party Doctrine argument. I think the statutory arguments you made were absolutely compelling. On Third Party Doctrine you argue that its qualitatively different, and the argument is that its an invasion of privacy. And it strikes me, im opposed to Third Party Doctrine from the beginning. And Third Party Doctrine knew there was a violation of privacy that said its irrelevant. You can take peoples trash, you can get their bank records, you can get their email, you can get the bank records, including credit cards and so forth. You can get their telephone records. We know that in these privacy, but its not within the scope, its not a search. Theres no reasonable expectation of privacy. So if its qualitatively different under thirdparty doctrine, it doesnt make a difference. The second point is, its not clear to me that it is qualitatively different. E. G. Give me a choice between having the government get my bank records, my phone records, searching my trash and so forth, versus their knowing who i called, theres a much deeper innovation of privacy. Its qualitatively different in the sense more people are involved, but in terms of the particular invasions of privacy, the thirdparty doctrine already was doing greater invasions of privacy in the metadata of the nsa. The final point i want to raise with respect to this question. The requirements for a subpoena are not constitutional, and im wondering if verizon says you cant get this without a subpoena, what is the relationship between the requirement for a subpoena and probable cause . I ask that because i dont know. Okay, so come and feel free to jump in. Try to be brief because theres a lot of people. All right. So probable cause is not required for a subpoena. I had a discussion in the paper in the 215 paper of the subpoena cases that are relevant to this. The longest period the courts have agreed is two years focus on a particular individual doing money orders and chicago. Thats the longest period of time and probable causes our part in that instance. On this border point where theres a distinction of qualitative difference, with Information Available that was not available been. Social network analysis. When you put one path to see because some of those suspected of actually harassing, sexual harassing and robbing and so one, that is different from saying lets look at the social network and it was related to them in this network, who the important folks are. Which once lived the most power with regard to others and whatever, thats the kind of information one can do. You can get trunk identified information. Before when it land lines you couldnt help where Michael Lee Smith went during the day. Now with cell phones and so the tracking technologies that allow us to attach to each cell phone tower as we move around cannot pin point where we go. Its different kinds of information that one can get through these same third party records. I was the even their different from before in terms of the privacy interest. Beyond this the type of information we now digitally hold with third parties is different to an icon the amount of information we put out about our private lives, our personal correspondence, our private dealings with others, the home, the concept of inside the privileges of the home, the filing cabinet is sacrosanct and needed a war to go into the filing cabinet. Just because we keep the contents of that filing cabinet on her pocket, thats what this recent case was about whether he had his privacy interest in the sofa with a Police Arrest you or whether they need a work. The court said no, you need a board. Similarly in the Intelligence Community the idea that just because we give information to apple or to google or two of it is too stored on the cloud, its not a search for the government to go in and get it and, therefore, they dont need award. I think that doesnt understand privacy interest that an applicant by how technology has changed the context in which we live our daily lives. Its important to emphasize one point after laura, which is when the government seeks under fisa to obtain the contents of to communications of u. S. Persons, they have to get it work. So nothing that were talking about undermines the basic proposition that the government is going to get the contents of that information, they must do the work. Leslie francis from the university of utah. This is a question about the contemporary structure of data and analytic techniques. With the surveillance in the area of health, you dont know what you are looking for and tell you see a pattern. You dont know whether theres something of significance or who might be the relevant entity. Now, im actually very interested in privacy, and the question is to ask you, are there any ways given that feature of analytics to try to craft or form so that when you cant identify the target in advance so that we can figure out ways to think about relevance and the use of subpoena power and so on, given that fact about the power of data and analysis . So my thought in response to the, this presents a National Security as a haystack argument. This is senator whitehouse is cant you just build a haystack to find a needle . Do we need this information so that we can find the needle we are looking for in a haystack . That is a general ward. It allows you to collect a lot of information to try to find evidence of wrongdoing. As a constitutional matter i would say the criminal matter under u. S. Law and the Fourth Amendment. There is the automation exception moreover. If the government were to put cameras in all of our bathrooms and to record us and they would say but we dont access it, were only going to access it when we suspect this activity and would just look at general patterns of behavior outside of that. That would be a violation. The fact he build a haystack in computers and assume theres no human intervention that also is not established exception to the Fourth Amendment. While i understand your concerns in privacy, with regard to health law, looking for patterns, when it comes to criminal matters where you can imprison people give them underneath our doctrine that we have, this is something very different and thats what constitutional protections come into play. I would just add though this gets us up to an aspect we havent talked about yet which i think will prove relevant, and that is while its a fact that nsa is not targeting each of us individually in this room or on this panel, im pretty sure, we are, in fact, targeted by google, by facebook, by private companies who are actually doing precisely the things that you just described. Theyve assembled a haystack and theyre looking for things and to get any doubts about the check out the ads that pop up when you watch pandora or whatever. Are when you listen to pandora i should say. The Internet Companies do this and recognize theres an important constitutional distinction between the government doing this and private companies doing it and, of course, we all like that we accept that companies will do this so that makes it legal. But from a political point of view i think the public will get increasingly uncomfortable with that level of targeted surveillance and as youll see, you may see pressure for reform coming in through that door and then maybe eventually migrating over to the National Security area. Hi. My name is jason. I am an Ohio State University and its been a great panel. Thank you all very much. So im in International Relations guy, so that underlies the thrust of my question to you seems like the nctc and the tears environment, or the Tourist Information date and time at the tide is the primary repository for seeking information. We know that the nsa is one of the primary collectors of that information, and i assume fees in ct, nctc that information but were also note the uss information agreements with other countries, and, in fact, theres a foreign partner extract of the terrorist watch list accessing its me like theres an interesting International Dimension here. Can you comment a bit on, i know you be limited on what you say on how foreign partners are actually benefiting from nsa surveillance activity. And is the nctc tied database becoming a global counterterrorism information clearinghouse . Its a pretty wellinformed question. They know our business quite well. We have the responsibility and statute agreed as to maintain the governments consolidated database, a known and suspected terrorists. We share that, a subset of the classified database with the terrorist Screening Center which is then responsible for using it for very screening purposes, airports and the like. Some of that information is shared under sharing agreements with other countries. I think the important point is that when it comes to you as person information that, for example, nsa collects, that they have a series of rules and laws and policies that limit what can be shared about u. S. Persons and minimization procedures based on what they collect. So at every step in the process from the initial collection of information to its use in classified database is to its use for screening purposes and finally potentially sharing it with other countries, there are a number of steps all designed to protect the privacy Civil Liberties of euros persons Civil Liberties of u. S. Persons undertaken along the way. I think thats about the best way to answer but it is probably a longer answer to get to the basis of your question, but again theres a number of safeguards built into that system to safeguard privacy and Civil Liberties of u. S. Persons. Thank you. I am from George Mason University and i was wondering what reforms you think we could do to optimize both the need for the people to provide oversight to the innocent and also the nsas need to protect ways and means . One that he didnt mention before but we touched on is a possible changes to the way the fisa court operates. One of the suggestions, the former chief judge of the fisa court wrote a letter that touched on this, addressed the issue. Abdicating an amicus role. Footprint of the court role in certain cases at the discretion of the corporate that seems to me like a reasonable way to increase Public Confidence in the work of the court. But the work of the court is necessarily classified, much of it. It is not a secret court. We know the court exists. We know who is on it but it does operate much of the time in a classified environment because the information that is being presented itself is classified. But one way to build additional trust in the work of the court were to be have an amicus role. I think thats one that i think makes sense. So i agree, but there are other, many other possibilities for reform. One of the problems on the court is they dont have the technological expertise and they dont have the resources to monitor the things theyre asking the nsa and others to do. For almost three years the nsa was including data without reasonable articulable suspicion into the court had required. When the new administration came in in 2009 they realize what was happening. Within a week reported it to the court and thats one thing i do want to say that although theres no country council, no advocate on the other side, msc at dj has been an example job and takes the job series of in terms of trying to present country arguments. The structure is not a denigration on the actual, people and try to carry out their Due Diligence and the responsibility. In this case, this is a great example of that in 2009 they found out the innocent including the database without regional suspicion as the court had required and told the court and theres all backlog of back and forth trying to sort that out. The reason they didnt understand it because they were relying on the nsa to police themselves. Out of the courts cant or should today that. Thats not their role is a are you doing so probably, nor should they be in an oversight capacity. They should be accorded the patient at the technological expertise. They should be someone with the x. \30{l1}s{l0}\30{l1}s{l0} also to oversee what is being done with the expertise. And finding out they were Domestic Communications there. I think its hard and they need to have some help in that regard. Theres one more point i want to make and thats congress. Ive been surprised by some would response is from different congressional members which is that of an ostrich. They say we didnt know this was going on. And the reason is remarkable to me as i think the executive branch has made it clear. You could argue in 2008 congress did not realize what they were authorizing with the faa, with the fisa in an act with section 702. You could make that argument based on congressional member statements. Many members of congress at it wrong when they portrayed what they were doing but they said this doesnt allow programmatic collection. Those who did recognize programmatic collection objected on those grounds and nobody is supporting legislation was saying this abuse for programmatic selection and those who supported said we cant do this for programmatic the that my between 2008. I 2012 there were enough times the executive branch have gone to them and said look were doing this, look, were doing this. The fact that congressional members say its hard to do it, i dont have enough staff, thats abdicating responsibility you better know how that legislation is being used. So ive been surprised by the extent to which certain congressional members have abdicated that responsibility so central in a liberal democratic state. I have to take issue with the idea it was an abdication of responsibility on the part of congress. In 2008 it was a full hearing of exact was going to implement a following, based on that legislation and congress understood it, pass legislation to understood in 2012 but it wasnt a matter of whether they couldnt go to a skipper couldnt read. They thought it was the right thing to do and those who voted for it, i dont see that as an abdication of responsibility by congress. Well, thank you very much for coming. I know im going to look at future events along these lines with a much more informed year. [applause] [inaudible conversations] [inaudible conversations] [inaudible conversations] and last night ken burns new series premiered on pbs. Hes beginning todays luncheon at the National Press club talk about this series which covers the life of theodore, franklin and eleanor your live coverage begins right now. [inaudible conversations]