Joining us this morning from los angeles. He is from George Mason University law school, the founder of the National Security both for area thanks being here this morning. Jamil jaffer, we will start with you. Theave a conversation about usa freedom act and what congress has to get to and reauthorized. Tell us first what the usa freedom act is and why it was passed in the first place. Caller sure, well, bill, you aspiringe are three provisions in the usa freedom act that would be rubberized by the legislation if it were renewed by december 15. Reauthorized by the legislation if it were renewed by december 15. Somewhere he added years later your specifically, the provisions expiring now are one that allows the government to identify and surveil terrorists who do not have a proven connection to a foreign power, and the second is called the wiretap authority, that gives ability to follow suspects when they switched their cell phones or emailed address rapidly to avoid surveillance. And the third is the Business Records provision. That allows the collection of information, like a grand jury subpoena, Business Records, hotel records, call records, and the like. There are serious provisions recordshe data provision or the cdr provision, specific to the usa freedom act asked in the aftermath of the snowden efforts, the metadata certain and that allows information about phone calls, not the content of calls put the golf numbers the person youre calling, the are some that you theed, the date and time of phone call. Providing with a specific identifier and getting the number as well as one or two from that. Host as jamil jaffer lays out the provisions, your view is you are opposed to a number of these provisions. Tell us why. Guest some of these provisions needed reforms if they are going to be reauthorized. ,ets be clear, the patriot act passed in the wake of 9 11, the usa freedom act was passed in in sometry to reign of these powers, section 215, used by the National Security agency to collect all of americans phone records in bulk, even if there is no suspicion of wrongdoing. Of course there was not suspicion of wrongdoing for the best majority of these records, so the usa freedom act was intended to prohibit this kind of bulk collection under section 215 and under other authorities in host aside from the sort of obvious partisan views on this, why do you think congress , eachles with this issue time realtors asian, this legislation in particular, but similar legislation comes up . Guest a long history of the executive branch coming to congress and saying we need this for National Security congress is not want to be saddled with that responsibility, so it tends to react by giving what it wants, but i think what happens with the snowden disclosures is a kind of blew a hole in the routine that had been going on for a while, because it had been clear that bulk collection of american phone records was not necessary for National Security. In fact, it proves to have little to no value and counterterrorism efforts. I think that is why the usa freedom act in 2015 actually you some steps back, but still see the dynamics playing out, even almost 20 years after 9 11, that when the executive branch comes in is as National Security, Congress Gets very nervous, and it still gives the government whatever it asks for. Host jamil jaffers, the administration, the executive branch, this of administration wants to make these provisions permanent, correct . Guest that is exactly right, and although the usa patriot act provisions are about 17 that are set to expire right after the patriot act was enacted, of those, three remained to be renewed on a regular basis, the lone wolf, wiretap, and Business Record authority. There is very little controversy, i know elizabeth and i disagree about this, there is little controversy about the bulk of these provisions. They should be formally reauthorized. On the cdr provision, there is some debate, the nsa recently stopped using that capability, and the administration seeking permanent reauthorization, at least in the cdr program a mother son good argument for that to go forward for some period of time, and maybe a little flex ability for the government to use new methods, use that program for new technologies, as well as some of the records again, ecause part of the problems is because o the changes made by the usa freedom for which has made it hard the government to get the kind of data it needs to identify new and unknown terror threats. Host discuss the change in technologies. It appears is mostly covers phone records, correct . Or does it go further than that . Program was the cdr for bulk collection, it was supposed to be a somewhat less bulky version of it that still allows the government to get the phone records of suspected terrorists and anyone they were in contact with. Now, it turns out that even though this was supposed to be an alternative simple collection bulkell bulk to collection, there are more than one billion call records, and in 2018, it emerged that the nsa had been collecting records that it was not authorized to collect. Host even after the snowden revelation . Guest even after the snowden revelation, that it was not authorized to collect, supposedly by accident, and i have no reason to doubt that, but it was a massive problem that the nsa had to delete all of the records it had collected for three years. The fa said we solve the problem, it is fine. Four months later, it happened again. Incapableout it was of offering in compliance with the rules of the program, and at the same time, it does not appear there were too much National Security benefits to it. The New York Times recommended to the white house not to renew the program simply because it was not worth it. Is therejamil jaffer, a disconnect with the nsas recommendation, and yet the nsa proceeding with wanted to make permanent some of these changes . Guest i dont think so, bill. I think there are a number of things to talk about here. Number one, this idea that somehow the nsa was responsible for the over collection of information the last couple of years is totally false. Why theythe reason over collect this information and the problems that they had was because the phone companies that were made responsible for giving them the data, in the usa freedom act itself, are the ones who may be errors. They are the ones who over provided the information. In fact, it is a copy mistakes, selfreported it, and took voluntary action to limit the collection of data. Is responsiblesa or made errors is totally false. In fact summative usa freedom act responsible for these. We are talking about intelligence collection. There is never going to be a single Silver Bullet when youre collecting intelligence that has we identify this terrorist fought in this one piece of metadata. The idea that phone records will give that information is just not the way intelligence collection works. If you look at what the nsa said public i with the entire u. S. Government has said publicly, they have permanent reauthorization authorities, the nfa has testified before the house and the senate, and they reauthorization, so the idea that there is a disconnect between the white house and the executive branch generally, the nsa, is also host a chance to response. Guest sure. We do not care about when they do not show themselves to be valuable, we care about this is intelligence, so we do not know what is valuable, not valuable. You never know. If there is proven value to this program, we need to keep doing it. I dont know. If this were not a program that was collecting a billion records, including records in 19 million american phone numbers, you do not have 19 million americans terrorists in this country. These are innocent people whose data is being brought up by this program, so, who knows, it might come in useful is not good enough. The Elizabeth Goitein is director for the justice, liberty, and National Security jamilm, and to millvill jaffer is of the George Washington university. Talking about the issues congress is facing in regard to the usa freedom act. 202 7488000 is the line for democrats. 202 7488001 for republicans. All others, 202 7488002. We will get to your calls and toments momentarily, but up some of the debate that has happened before the Senate Judiciary committee on the reauthorization, let our guests listen and our viewers as well. Here is Dianne Feinstein on the committee. [video clip] sen. Feinstein in june of 2018, and if they publicly announced that due to technical irregularities, the cdr program it had received data had received data that it was not legally authorized to receive. Moreover, the agency could no longer distinguish between records that were obtained lawfully and those that were obtained unlawfully. As a result, mfa announced that it would delete all call detail records acquired over the last three years. In august, the director of National Intelligence, dan nsa hadonfirmed that ithat suspended the cdr program indefinitely due to its lack of intelligence value as well as its cost and compliance issues. Despite this, the administration is asking congress to permanently authorize this program. Now, it is really not clear to me why a program with limited intelligence value and clear compliance problems should be reauthorized, and unless there is good reason to believe that it should, i do not believe we should reauthorize it. Host jamil jaffer, let me ask you, she talked about the collection of records that they could not determine if they were lawful or unlawfully collected. At they resolve that issue . Has the nsa resolved that issue . Testified tohe nsa come and in fact, both life and i testified at the hearing you showed the clip from, they said we have not figured out how to solve the problem, we are working on it, and we may want to come back to you, because we may want to restart the program. What they said was we want to the reason we want you to the the authority alive is , it is a program that has a problem, whats we can get it to give us the right w may want to restart the program, so please keep the authorities available. If we need it when the time comes, they actually asked to have the authorities renewed. Remember thatt to way are in a heightened terrorist threat. Just the events of yesterday alone demonstrates the threat of terrorism. Isis may have lost territorial basis in the lands of iraq and syria. It will continue to rebuild that. Al qaeda remains extremely active, committed to committing attacks in the United States and in europe and our allies. So the idea that the threats have gone down is only because we have been so effective about collecting intelligence in fighting terrorists overseas. Effortsto continue our here and overseas. Host what we do know, what is the record of the nsa and the data call program . Guest i want to correct one thing. The usa freedom act did not require the Telephone Company is to hold these. They hold them anyway. Host youre talking about metadata that they hold from customers. Guest yes, and they keep these records in the ordinary course of business, and the nfa gets to take those records. It is true that the companies were given data that they were not supposed to give, but it took the nfa three years to figure that out, during the course of which, hundreds of millions of records at that point, and those records were available to be searched and used against americans in Legal Proceedings and investigations. So what you have to do in these instances is weigh the privacy effect against the benefits. There is a very serious privacy officehere, and even the of the director of National Intelligence said this was a major Civil Liberties and privacy problem, what had happened. At that Center Hearing you played the clip from, members of the Community Asked over and over again for the government witnesses to tell them whether value, nom had any specific, the particular cases, yes or no, havent ever contributed to stopping a terrorist attack at any time . None of them would say. Host did the Telephone Company says the fire that hearing . Guest yes. Host jamil jaffer, real quick like him on the privacy issue, we have got several calls waiting, but your thoughts on privacy and how the nsa has done protecting that. Guest sure. It, the government said would give examples only in a classified setting, because it could not reveal any an open setting, so the idea of their own are examples that illustrate value, they simply could not talk about them in public. That is number one. Never to come on the privacy of fact, we are talking about records of phone calls, the number dialed, the number dialed from, the number dialed to, the date, time, duration of the call. Were not talking about any content whatsoever. We are talking only vocals made from a terroristidentified potentially terroristidentified and in that is all, context of the billions of records were talking about, hundreds of billions of phone calls annually in the United States. The idea that it is a huge number, it is a tiny number of relative to the overall collection potentially available and needed to identify potential threats, so this idea somehow we are talking about a huge amount, it is tiny compared to the volume of calls that take place in the United States today. Host on calls, lets get to them here. We have questions and calls waiting perio in michigan, ken, you are on with our guest. Caller yes, i was watching a in 1999 orport back 2000, where a head guy quit because of us, canada, australia, and england was turned on a system back in 1998 key words, and he quit because and 84yearold woman was tagged just talking Current Events over the phone, you know, so, that goes on to, all the way to the patriot act. That was thrown into the patriot, where they can do that. The phone carriers were getting worried about getting sued, right to privacy, and so, anyway, take care. Jaffer,u said, jamil that this was just data, there was no picking up on keyword information and things like that. Guest that is exactly right. The program we are talking about today, the call data records , metadatas just data or what the caller is talking about is important. States, and if there is an american anywhere in the world, they are required to go to work and get an and an individualized report. Are differente authorities allowed, and just last year, wed reauthorize that authority for collections against foreigners over seeks, called the section 702 program, and that does collect content, targetinghen you are people overseas, the when youre targeting a foreign power. Guest it does not have to have a connection to foreign power. Under 702, any foreigner overseas, their conversation with americans can be intercepted without a word as long as the governments purpose is to pinpoint intelligence, which is broadly enough to include any information relevant to u. S. Foreign affairs, but i would like to get back to the idea of the program we are talking about here under the because it is not is only phone numbers, the notion that metadata is somehow completely different from content and that it has no sensitivity to it, i think that it has been thoroughly to punk. Debunked. Sophisticated computer find out from the data who your associations are, and they can go so far as to figure out your political associations, your religion, some of that information. I will give you an example of where metadata is much more revealing than content. Suppose someone called the suicide hotline several times in a row and every time hangs up the phone. There is no content whatsoever, but the fact of those calls is extremely revealing an extremely sensitive, so metadata in the catelli government a whole lot about a persons personal life. Host we will hear next from dallas in millville, new jersey, democrat line. Caller good morning. I am just curious, number one, the first question is why would it take three years for authorization . I dont quite understand that, with the way the country has been as far as domestically here, with the threats of going againstple their own people, whether it be morals. That information to me seems mighty, mighty important. It can prevent a lot of problems that we have appeared one last thing, if President Trump is so interested in his own security, why did he give the executive order to make the Telephone Companies give that information . That to me does not make any sense. Thank you, and good morning. Guest it is an authority that allows the government to get an court,from the five the and that order goes to cell phone companies, and they have to give the data identified in the order, so that exists. There has been 03year delay could i think there is some confusion there. The three years i was talking about is how long it to the nsa to talk about it was collecting a lot of data it was not authorized to collect. The usa freedom act, it is the three provisions of the patriot act that were last reauthorized and 20 15th year they are not scheduled to expire until it was the end of this year, are lasting. Y host these are was the administration would like to make permanent, not just extend them thbeyond. Guest exactly, and as jamil said, it was passed as an emergency measure, meant to be temporary, which is why it has a time on it. And like so many measures, it has become a part of our legal system. Host jamil jaffer, talk about a regular court, a fisa court, and tapping. Guest the judges on the five a quarter regular Federal District or judges run the country, appointed by the chief justice, since sitting on the court for a number of years, and th take surveillance requests from the government. It takes place in a classified setting, behind closed doors, but there is no differen between that and a normal warrant procedure, as far take in camera, behind closed doors, and a private proceeding. It is