and for that reason we're very pleased to happy to have c-span with us today. c-span2 will be broadcasting this live at this time. and for that reason when you ask questions we'd ask that you please identify yourself both so that the, our speakers know who you are as well as the larger audience. another of the missions of the aba is in non-partisan as well as bipartisan fashion to talk about highlight and advance the interests of national security law and do so in two-ways. one, to stand up for the principle of physical security, but do so consistent with our national security values. that's the essence of what the aba standing committee on law and national security is all about. that's also why i'm so pleased today that our speakers are discussing in fact are two people who spent their entire careers doing just that. standing up for the physical security of the united states but doing so in a manner consistent with our values. our discussants are harvey rishikof and fran townsend. i would try to figure out if i go through their bios, but then i realized they held collectively together every single job at the department of justice and the fbi going back to 1910. of [laughter]. in harvey's case. [laughter]. in fran's, not quite as long. instead what i thought i would do, i would let them introduce themselves. i want to tell you one thing about each of our discussants. first about harvey, and you know i'm going to have a hard time limiting myself with harvey, so i am limiting myself to one thing, he is a public intellectual. he is an idea person but, when i think about harvey, i think about teddy roosevelt, not hunting or doing all those, not that aspect of it, but i'm thinking about the man in the arena. here's a person who is an idea guy, and a thinker, but he has the courage and the guts to get in the arena and try to implement those idea. that's what a public servant does, so that what harvey is, and he is a public servant, so thank you, harvey. fran, we tend to think these days that the department of justice geared up for national security after 9/11 and with the formation of the national security division. not true. fran townsend, more than any other person except perhaps the attorney general janet reno was responsible for transforming the department of justice from a law enforcement department exclusively, to a national security and law enforcement department in the 1990s. she did that when she was the director of the office of intelligence programs, oipr. i worked with her on a daily basis back then. so this is first-hand evidence and testimony, for that, fran, preparing the united states and department of justice and harvey over to the interview, let me make a technical note, both of our discussants here in the personal capacity, you may know where they work in the day time. they're not here in that capacity, they're random people, we kicked off the sidewalk to come in today. they're speaking only in their personal capacities. and fran blesser, for quite under the weather. she has a drill sergeant's bark, but you will not hear it today. thank you. >> thank you for those sweet and relevant remarks. i think what we will be doing, fran and i will talk about 10 or 15 minutes, then we'll open up to the discussion to you all because of level of expertise in the room. fran has a special privilege for you to be here. fran joined our committee, given her power she was able to have the 702 passed by the house right before this very gathering this is another statement of the power of our committee. so i think we should get to it, fran. 702 has passed by the house. as you know there was a bit of controversy vis-a-vis privacy interests and state interests. i'm wondering at this point what your sense it how the bill has been passed and your understanding compromise debate and how they hit the right mark. >> harvey, jamie, thank you for having me. there is a the-old friend and former colleagues in the room, so special privilege for me to be here today. i think, i expect the bill will pass. we're on a many -- ramp that the legislation gets passed tuesday. will mcconnell allow amendments? not clear but i think not. the bill passed despite the president's tweet yesterday morning, and i think, that people in this room understand, but what most americans don't understand, when you hear this privacy and civil liberties debates, i get why that is important. but what most people don't understand, if they have haven't worked inside of the community is, the many, many layers of protections that are inside of the system, not just inside of the fbi, yes they have internal system of checks and balances and also get reviewed by the justice department. now the national security division and formerly my office. there is the president's private civil liberties board. they were reviewed by the dni, reporting requirements by the congress and intelligence and judiciary committees. so there are lots of controls over to check and prevent abuses. so, to the exextent people worry about scope of the 702 authority we have to recognize and arc none, because it is extraordinary power, an extraordinary and necessary power, the government itself chosen to put all kinds of checks and balances around it. i remember when i ran oipr one of the things we do -- >> office of public responsibility. >> office of intelligence policy and review. now the national security division was you did an annual filing of the number of fisa surveillance warrants and number of fisa search warrants. you broke it down by u.s. persons and not u.s. persons. i think you ought to expect there is going to be exactly same reporting requirements as regards 702. the fbi and justice department know how to do that, so even if they're not set up to count right now, they will be. that will give us a better sense how they utilize the 702 power. how many u.s. persons, how many queries are there? i think that is data we don't have now, that we will have once the legislation rests. >> as you know, 702 is really focused on non-use persons located abroad. and it has to perform what we know as significant purpose for the foreign intelligence process. so one of the arguments is that the fear by privacy individuals is that somehow we use 702 to backdoor the requirements of the fourth amendment. is that a concern, that you have or you have seen, and do you think that the amendment that says that in the event that we have a ongoing criminal investigation, then there will have to be a warrant required for the fbi to bang those data banks? is that sufficient? given your experience because we were there pre9/11 and the famous wall was there, and that is what these amendments were supposed to overcome the wall, how do you feel about that the current amendment is still in the bill? >> so i think we're going to find it is not used, 702 is not used all that often when you're talking about u.s. person in a criminal case, right? so it is, at that is not what it was intended for. there is incidental collection. by the way under fisa, itself, going back to the inception of the bill, there was anticipation of incidental collection. why you have minimization procedures that still apply. i understand the concern about the backdoor. i will tell you to the extent that the people think -- jim comey when he was director of the fbi said they had terrorism investigations in all 50 states. they have more leads than they can follow. so the notion that agents are sitting around banging against the 702 database to run a girlfriend's name is nuts. it doesn't work that way. . . this raises a more general question. it is a eroding who we know people to be and who they are. where do we see, if i could make you queen for the day in the intelligence community, what reforms or what issues do you think we should focus on as we move forward for the 21st century? i mean queen for the day in the power sense as opposed to criminal matter. so, look, i think there was a time we were laughing before breakfast started where we would try to describe the difference in authorities between fbi and cia and that's so archaic now because the internet doesn't allow you to make these territorial distinctions and we used to rely and craft the law around a really hard now. i will tell you, people in this room understand it but most americans don't, when we define a u.s. person, most americans think of that as being an american born american. guess what. if we don't know we presume you are a u.s. person in terms of the implementation of these authorities. if there is any single selector that would cause us to believe you may be a u.s. person, you are a u.s. person. if you are a foreigner inside the united states we treat you as a u.s. person. this u.s. person category is far broader than i think the average american understands and appreciates. that's because we want to balance, we are trying to balance the need for these tools with our own set of fundamental values and principles. >> that's one of the issues that is eroding. does it make sense for us to continue to distinguish the u.s. persons and non-us persons. should we view one set of rules or regulations. our european colleagues have been pushing us to be able to do. >> i think we, as a country, are not prepared to say americans are, the rights and privileges of the americans that we enjoy our exceptional and we will continue to work to make sure that those exceptional rights and privileges are protected in a special way. i think it's getting harder, i think it will continue to get harder, i think we have to define it broadly, but i don't think, it's sort of a values question. we have a constitution for a reason. we have these protections for the bill of rights in these protections for a reason. just because it's hard, i wouldn't want to see us say were going to get pushed into the european model. >> great. are there any other thoughts you have if you could sit down with the congress and the president? either the issues and the intelligence community that require attention as we prepare for our adversaries. as you know, we had some issues with meddling in our elections and what is the appropriate response that we should have and should there be reforms in the community in order for us to be able to respond. >> for better or worse, i helped author the intelligence reform act and as you all know we created the dni. it is easy in washington to create something. it's impossible to kill anything. >> she explains our careers. [laughter] >> that's a good point. i always believe, whether it's the department of homeland security or dni, you've got to have a point in time in which you are going to say let me step back and see, is this, are they performing what i instituted. it's time we look at the department. president bush was not in favor of the legislative initially and came alive around after the 911. it was put together very quickly with these 26 or 23 agencies smashed together. it really was intended to be a border security. people and things, but at a lot of other stuff put in it. i think it's time for us to look at, is mandating the department the right mandate and is it performing its function. the national center for counterterrorism, i was talking to a principal in the trump administration that said do you know that the national counterterrorism center has over a thousand people, 200 cia analysts, the same number of fbi analyst, all those people, if they weren't there could be targeting operations. did you intend it to be that size? i was stunned. it never occurred to me that the national counterterrorism center was anything other than where people's posted in states and localities, they perform a very important function. they are uniquely positioned by a theater authorities to regulate and ensure the protection between domestic information and foreign intelligence. i'm not suggesting you do away with it but i am suggesting it's time, anything that grows to be a thousand people having started as a subcomponent, you ought to look at this and say is it performing a function, is at the right size? and how do we improve it going forward. i think we are reluctant to do that. that's not a criticism. i'm not being critical of the current administration or obama and ministration. i think any administration should want to do that. i know it's hard and you can't keep up with the day-to-day stuff, but i think we would serve ourselves well to go back and look at some of these post 911 structures we put in place and ask ourselves the hard questions. >> the other major component of our world is the national center for counterintelligence and it often isn't discussed a great deal but for many of us in the room it has been rather something we have devoted a great deal of attention too, particularly with the current situation we are finding with our adversaries who seem to be able to be penetrating a lot of our networks. what is your sense of counter intelligence, where were at with god and whether or not we could do better or any improvements you would suggest. >> they were doing counterintelligence before it was cool. i will tell you, i think it's never been more important. it's always been in the dni, the bassford stepchild, underfunded, he gets very little attention, i thought that would change after the 2016 election. i thought for sure it would get more funding and more prominence. frankly i think we have to look at that. this is not about, it's not just about the election. john and i were talking about russian active measures. this is exactly the sort of effort that should be led by the national counterintelligence center, in coordination with the fbi who has law-enforcement and intelligence authorities and we ought to have a national strategy but a real national strategy and requires leadership from the dni and the white house and we've got to commit ourselves to that with resources. yes there's things i would change. cyber has changed the way you do everything, not least of all how we do counterintelligence. i do think we have to begin to say we hold precious the freedom of the press as well we should. what we find is the very freedoms that we hold precious are enemies are using, they're going to use the weight of our privileges against us and so, when you realize that summary like the russians are using the black lives matter movement and white supremacy on social movement to showed domestic discontent, it troubles me because i feel like we haven't devoted the time, the attention of the resources that we have to devote to deal with that. >> as you know, you've held the position also where you were focused on being a national security advisor for homeland security. we have others there who are struggling hard to perform that function. do you think, at this point, the way we have aligned that department of homeland security and the department of the defense and the department of justice in this space is maximizing what we can do? >> no, look, the department, coming back to what i started with is if you have a departmen department, so many different missions and responsibilities and authorities, if everything's a priority, nothings a priority. in fairness, i think they've done a pretty strainer job

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