Transcripts For CSPAN3 Politics Public Policy Today 2015051

congress reacted to snowden and they're saying hmm, maybe it is not quite so scary as we thought to go against the government. >> i want to move on because of the time. but, mieke, i thought you might have the best view into how might this ruling influence the politics of this, the congressional will? >> i think that the court -- the second circuit clearly put this back in congress' lap and said, look, congress did not explicitly authorize this bulk collection program under 2150 and if they want to be explicit about that, they need to act they made note of the timeline. but their analysis of the 215 program suggests that they would not look kindly upon it the way that it is currently constructed. i also think that the politics of this right now here in the house, it is unlikely that you would get a clean reauthorization of the existing program through. and so the real question for senator mcconnell is, do you take the reform legislation or do you let the program expire? >> so to move on to -- so i want to highlight this first time i read about this was in 2013, a reuters report, and it detailed practice -- i'll ask patrick to explain it and bob for comment because they probably look at this differently -- but to kind of present the severe dissidence that exists in terms of what this is. nancy gurtner i think patrick you may have clerked for her described it as, quote, phonying up investigations and said she never heard of anything like it. and senior dea officials not named in the piece called it quote, decades old bedrock concept. and nancy was a judge by the way. patrick? >> so just to describe a little bit what we see in some of the criminal cases we litigate, and what the article described and subsequent articles have expanded on with respect to -- especially to the dea's hemisphere program, another phone program, and recent disclosure of bulk collection of foreign phone calls in and out of the u.s., parallel construction is an effort to construct a parallel source for certain evidence in an investigation. it often occurs in circumstances where we see it or believe it may have happened, where the government investigators obtain information using one authority which is potentially controversial, or novel, or legally untested in the courts, and they rely on that authority to obtain information in the first instance. the investigation proceeds with the benefit and on the basis of that information, and they subsequently obtain the same information using a different more traditional law enforcement technique like a rule 41 search warrant or a subpoena for a specific tool billing records so one example would be relying on the hemisphere program or the 215 bulk collection phone records program to identify a person via their phone records. building an investigation using that information, and then using a traditional administrative subpoena targeted that now known person to obtain those same phone records and when you end up in court, at the point of a prosecution, telling the defense only that the records were obtained by the second method via the traditional subpoena that doesn't raise any eyebrows and never disclosing the fact that agents were tipped off or investigators relied on information passed by intelligence agencies that was obtained through fisa executive order 12333 or more exotic authorities. in our view and in the view of many of the defense lawyers and even former judge who commented in the piece, this is a violation of the rule -- the discovery rules and the constitutional rules that entitle defenses to seek and have an opportunity to suppress the fruit of the poison ous tree, to argue before a court that the surveillance was unlawful, and that the government's evidence is derived from that surveillance. >> now, so -- >> i have to say if nancy says she's never seen anything like this, she's being completely disingenuous. if you take the example that patrick gave and take all the references to 215 or surveillance out and substitute them for the confidential informant, this is something that existed in the criminal law for decades. the government does not have to disclose the identity of a confidential informant who provide the a tip that started an investigation. the relevant factor both in terms of discovery and opportunity -- opportunity to suppress and so on is is the evidence being used at the trial against the defendant the fruit of other activities? and there are -- there is a well developed jurisprudence about what is and what does and does not constitute fruit of the poisonous free. this has long been the law. and it no different in the context of these programs. the fact that a government agent was alerted to the existence of the defendant by a particular source does not necessarily give the defendant the right to suppress that basis unless the evidence was derived under standard fruit of the poisonous fruit of the tree rules under that tip. >> do those rules apply in the context of bulk collection? >> why wouldn't they? why should they be different? the question is is the evidence against the defendant tainted? that's the question in every motion to suppress. >> i would add at least two things, and say that i strongly disagree that the identity of a confidential informant which it is true, there are cases that talk about whether defendants through a balancing test are entitled to get the name and other details about the -- >> or the existence of the informant's tip. >> i don't know that that's what -- >> it is. i was a prosecutor for six years. >> but there is also the problem -- >> does the judge know in that context? >> sometimes the judge snowknows, sometimes the judge doesn't know. >> the other problem is prosecutors are decidinge inging themselves what is derived from the surveillance. that decision is never put before a court it is never obviously put before the defendant, and the government has an interest in reaching a determination and from what we're seeing in the dea disclosures, even structuring the investigations and the trail of what is recorded in agents' notes and reports and even court applications to suggest that in fact those sources were not relied upon when they were. and that's problematic. the government has an interest in making the chain from point a to point b look as ten waited as possible in order to avoid court review of the programs and we have seen not least in the context of 702 that the government has used an extremely narrow definition of what qualifies as derived evidence. >> to bring this to the oversight perspective a little bit, and i'm interested in hearing more but mieke did you ever hear about this? would you have or should you have? >> i wouldn't have. the question of parallel construction, what -- how information is used in a court case, on the intelligence committee you're predominantly concerned about how the programs work and how they're used in a national security context. for a long time it was traditional espionage, nation state adversaries. and, look, there is a lot of ground to cover. the idea you would then figure out how particular pieces of information were being used by agencies not under the jurisdiction of the committee is not something you would normally look at. and this is also true when you talk about these old dea programs. two things working against the intelligence committee there. one is the memento problem. while the dea may have briefed the committee fully and completely at the time a program is initiated, members of congress and staff turn over and so over time you lose that institutional knowledge and members of congress who come and knew congress would say i had no idea, even though the committee may have been briefed a few months before that person was selected. and the secretary is that the intelligence committee is more focused on national security agencies and not on law enforcement agencies. so we might not have spent as much time looking at what the dea was up to assuming that was covered by people focused on other kinds of oversight. >> so to bob you know, it sounds like there is at least one path here where the information is collected analyzed that american turns out to be the defendant, the decision about whether or not the evidence can be submitted there is the institutional problems that mieke just discussed, at what point is there oversight on that process? >> well it's routine in all criminal cases, the decisions about what evidence is turned over in the defendant or made by the prosecution, that's just the way the system operates. it is actually the case that when intelligence surveillance authorities are involved, there tends to be more disclosure to the judge of the existence of those on a classified basis than there is in nonsurveillance areas. but fundamentally, again this is the way the criminal justice system operates. the prosecution has a large file, it looks at rule 16 and the brady rule and determines what gets disclosed to the defendant. >> i'd like to hear from patrick. >> i think how deep this process goes and the dea program that is described in the usa today story is a good illustration. that's a program that's been around or was around for 20 years. it is a program that the agents interviewed in that story said they consulted virtually every day. and yet that program didn't come to light in a criminal prosecution until 2015, until january of this year. and if a program is used that widely and i believe that program was not even classified is kept from defendants in such a wide range of cases, i think there is a need to re-evaluate how parallel construction is being used and maybe even more generally to understand the legal rational that underlies it within the justice department and how these government agencies are making unilateral determinations about what is derived from what. >> i think we have to wrap up now unfortunately as much as i would like to keep discussing this. this was actually one last thing. this showed up yesterday, senator burr was voicing a serious and lengthy defense of the section 215 bulk metadata collection program. he said, and i don't know if there is time to clarify for the record, but in the statement he said that it -- 215 provides for the collection of all phone call records and ip addresses. now, i don't know exactly if he misspoke or something else and i'm not going to pose to bob, obviously, something about whether or not this is ongoing, because i suspect your answer will be you can't answer. what i do want to know as someone who understands what the law is -- >> we have been pretty clear about what the 215 program is. it is a telephone metadata program. that's all it is. >> could 215 be used to authorize internet? >> probably not. i think there is some significance to the fact that it wasn't at the time when they constituted the telephone metadata program, i think it is public knowledge they constituted a program that used different authorities. and i think there was a reason for that. >> i think that's fair. fritz, i just want to get one more chance to you, for you to comment, the parallel construction conversation obviously very detailed, but what is again striking to me is there is such a profound gap between understanding of whether or not it is legal or illegal. does that you know, does that bring up anything for you? >> the only thing i thought of is not precisely relevant, but i believe the nsa had in addition to this program of shamrock of picking up every telegram, they had a watch list program and how people got on that and what happened to the data collected, i have the vague memory that two attorneys general looked at that and said they didn't think the way the information was getting from the nsa to prosecutors was appropriate. and they tried to put an end to nsa providing the information from the watch list to prosecutors. what theory they had, i don't remember. but if i were looking for history on this issue, on either side, i would go back and say, what were -- one was richardson and it was another attorney general who said we don't like the way in which nsa information is getting to prosecutors. >> all right, so with that, i'm going to stop the conversation portion of this and move on to question and answer. if that's ready. and i know that dan has a question. and i want to give him time. but if you do have questions, just raise your hand and matt will come around and provide a microphone. >> i work at the summary foundation and direct the adviser committee on transparency. thanks for joining us today. mieke, i had a question about -- you talked about the memento issue with congressional oversight and members of congress and staff leave, is there sort of inadequate record keeping around some of these things as well to make it hard to track over congresses. i would love to hear more about that. >> so it had been i don't know if that problem has been fixed. we had transitioned between spaces. and the challenge of finding congress' own legislative history, even the classified legislative history to go back and look at what previous congresses had done going back to -- for the house, would have been the pike commission, was quite difficult. which reinforces the memento problem. trying to go back and find information that would not necessarily be an executive branch control, but hearing records, internal documents prepared by the committee staff for the committee, having the classified annexes a committee produced document, not having that history on site and readily available made it more difficult for members to be able to do historical comparisons. >> if i can say on the memento problem, one of the answers to that problem, which i think is a real problem is the existence of the full time professional staff and permanent staff of the committee, and it is a disadvantage to having staff members accompanying each individual member because then every time you have rotation on the committee, your staff turns you over. the committees have people who have been staffers for many many years and do have the institutional knowledge that can help them with this. >> so the -- they have both professional staff and a person who will help an individual member through -- >> i know the house leadership doesn't give the hipsi enough resources. >> yes. >> dan? >> dan from the intercept. bob, question for you. i wrote earlier this week about how the nsa computers can and do extract text from voice. and it is a pretty transformative technology. it certainly makes it a lot easier to search phone conversations in bulk. the public still wouldn't know about this but for the snowden archives. my question for you is how could we possibly as a society debate im implications and establish limits for technology like this? or is it none of our business? has congress been briefed on this? have they weighed in on this? >> so, dan, i think that is a great example of what is wrong with a lot of the media coverage of this. i think even edward snowden said he thinks that a lot of the press reporting has gone too far. that story made absolutely no distinction between technical capabilities and legal authorities. there are all sorts of technical capabilities that nsa has. i'm not commenting on the existence or nonexistence of any such authority. the question is when are they used and what are the legal authorities underwhich they're used. i think that is something that a lot of the press reporting completely ignores including that story you wrote. [ inaudible ] >> you know what the legal authorities are. we talked about that. you know the authorities under which nsa can collect. it doesn't use any technical capability to do things that it is not allowed otherwise to do. >> anyone else for the question? >> hi pat with the cato institute. thanks for all the panelists coming out today. really appreciate it. mieke, i'm former staff. and did not work on the committee myself, but i worked for one of the committee members, mr. holt, who i think, bob, you knew and probably had interaction with. and one of the things that he always complained about was 20 questions problem. i think we covered that a little bit, but the thing that i really want to ask today, and this is maybe my 20 question moment has the icig either by itself or in concert with the other agency igs conducted a comprehensive look at all of the surveillance programs and activities that are carried out under these authorities that you discussed, whether it is patriot act, whether it is fisa or 12333? thanks. >> the answer to that is no. a couple of reasons for that. number one is of course, other outside bodies have been doing those looks, the president's review group and so on. two is the resource implication of that, and frankly the number of taskings that the icig gets from congress are such to make that impractical. so the icig has not done this. now, there was a comprehensive look a number of years ago, we released some documents that were declassified with a multiig look at earlier programs. and we just released those. but there hasn't been anything done in recent years. >> i actually have a quick question and then we got another one. fritz, should -- i mean, i don't know that most americans realize there is a secret court if you will in america. is that appropriate? is there -- should america have a secret court? i guess it is that simple. >> well, it is not so new by the way. when you have search warrants granted in an ordinary criminal case, it is done in effect by a secret court. and i think the existence of fisa among the public is fairly well known. fair question to me is shouldn't fisa do more to hear the other side and i think they definitely should. and they would be well served. it would make them better. it would make them more believable if they did more to hear the other side in arguments and whether that is as counsel for a target, which is a little difficult to do, because they can't really reveal that someone is a potential target. but -- or it's a general -- comes in. the remark of mine shows where fisa has been in my opinion misused recently where instead of it deciding particular cases, which the court has jurisdiction to decide cases and controversies, and doing it in secret when you're deciding should someone's records be looked at doesn't trouble me. but i think they were asked over the last years and they agreed to do tasks which really are not the proper role of a court making judgments sort of on administrative issues. >> what about when they reach issues of law to put it broadly? the definition of relevance which is in contest. >> depends how it comes up. i don't think they should sit around as if they're -- the second circuit in the case trying to understand what relevance means. i don't think they should sit around and just abstractly talk about what is relevant. i think that, to do that without an adversarial presentation is inappropriate and far more likely to have them make mistakes. so they would be better off in having a more adversarial process in any matter which is beyond a -- should john jones' records be looked at. >> can i ask fritz and bob this question, people talk about a special advocate, but that's a person who is making arguments hypothetically in the abstract. what about the possibility that someone who was served with an order from the fiske could have standing to challenge that order, to put adversarialness in the process. >> that's true now. >> they can now? >> yes. people who are recipients of orders have the right to challenge. what the usa freedom act does is provide essentially for the ability for the -- for the creation of a panel -- essentially a panel of cleared lawyers who the fisa court could appoint in the kind of case that fritz is talking about that presents a substantial issue of law or policy to come in and make an independent presentation that is not now made. >> do you think the fisa court should be deciding policy questions in -- as if they're a little branch of the legislature? >> that's not really different from what courts do in other warrant situations. there are cases reported out there where magistrates have been presented with applications for search warrants, presenting new technology issues, for example, with respect to cell phones and so on. the judge has to make that decision and the judge makes that decision in the abstract without an ed aadversarial presentation. the difference here is we're setting up a -- because there is less other review of fisa court decisions than there is of warrant applications, where we're setting up a process and i think the administration indicated it supports this, where by when those kinds of issues are presented to the fisa court, there is an opportunity to bring someone else in to present a different view. >> i think that the distinction or one of the distinctions that fritz is talking about is the difference between our particularized demand for a criminal suspect or you know, suspected foreign agents records and problematic review of something like the 215 program or even the minimumization and targeting procedures that govern 702 surveillance. there isn't a particular person who is the suspected foreign agent or the target of that surveillance that never comes before the fiske. instead the fiske is weighing in on whether the procedures themselves almost akin to whether the government intends to apply the right formula when it goes out and decides how to target people, but not any application to a particular person. and that even former judges at the fiske judge robertson commented that that change for the fisa court has been a very significant one from where the court started in 1978 and where it is today. >> i think -- i think it is definitely true. i think what we have done is we have taken a whole category of activity that generally speaking and throughout most of the world has no judicial supervision at all, and up until recently was considered an inherent executive function and we brought the courts into the system. so actually what it has done is it increased judicial involvement in activities that previously had no judicial supervision whatsoever. >> is this one of the ways that parallel construction becomes the hot points right? in a way it is where bob's description of the legal history and value and perhaps uniqueness of the fiske court doesn't translate perfectly into an adversarial setting on the other side where information has to remain classified, doesn't end up before the defendant, or doesn't -- the existence of it doesn't end up before the defendant. i would add for at least the staffers in the room that unfortunately the special amicus in the freedom act doesn't have access to privileged information, which would be great if that got fixed before it got enacted. >> what is it -- what kind of privileged information do you think the special advocate should have access to? >> one of my concerns the rule of construction within the amicus provision, so state secrets, privilege is a privilege, executive privilege is a privilege. so there are concerns -- >> so executive privilege is one thing. it is pretty clear the amicus will have access to classified information. i don't think the amicus is going to have access to the internal opinions back and forth in the executive branch. i don't think the amicus should have access to that. >> i'm not saying there is no role for a limit to what the amicus can get to, but the way it is written is just that it shall not have access to information that is privileged, which seems to be waiting for not yourself or anybody who is currently in office necessarily, but at some point it seems like there is wool to be pulled over their eyes. another question. >> ginger mccall of the electronic privacy information center. i'm a frequent foya requester and litigator and i obtained documents showing the department of defense is developing not just speech to text, but also speaker recognition technology. i have two parts to my question. the first is, if the government doesn't believe that it has the legal authority or the intent to use that kind of technology, why spend taxpayer dollars on it. it seems like it would pair quite well with some things the nsa is already doing. and my second is a comment, i don't think it is really an accurate corollary to liken a citizen confidential informant to a governmental program like the nsa collection program. the government program triggers certain fourth amendment protections that private voluntary citizen confidential informant would not trigger. that seems like an inaccurate corollary. >> we can disagree on that. on the first one, i'm not saying the government isn't using these techniques. i'm not acknowledging that these techniques exist. i'm saying inging they don't expand the authority of the government to do things now. >> there are private sectors developing speech to text capability. if any of you have used google translate or talked into your phone and translated to another language, that's speech to text back to text, back to speech again. the fact that the government develops additional technology -- spends money developing technologies should not come as a surprise to anyone. the government, i'm sure will spend more and do it more slowly. but speech to text capability is not necessarily something that is that automatically pernicious if you're saying, okay, google or talking to siri, using speech to text technology. >> when a private company does it, it is a bid for income or revenue when a government does it, it is presumably an expression of the will of the country. >> but depends. if it is speech to text technology the military is developing, so someone driving a humvee down the road can talk to the navigation system without taking the hands off the wheel and typing that's a different technology than using it to do mass searching and that's what bob is saying about when are you using the technology and under which authorities and that's an important question. where are these -- the committee would have to ask, where are these being used and under what authorities? there are benign reasons to develop some of these technologies as well. >> i do want to clarify because i have the documents on this. this is a technology that is specifically being designed to be used in telephone communications collection. it is being designed to be able to detect speech and then turn it into text and do wee wordkey word searches. >> what do you think is wrong with that? >> not that anything is wrong with it but there need to be protections and transparency in place so there is not a further privacy vice lags. you can see easily how this would be paired with the tele telephone communications collection that the nsa already has. >> if it violates authorities, it would be a problem. if they use that in furtherance of their existing authorities, and within those authorities it is not a problem. the technology is not the problem. the legal authorities are the problem. >> i agree with you, absolutely. technology is neutral. what we need are protections that are built around this technology and for that we need transparency. >> i think that the second circuit opinion reveals to us, though, that who -- the critical issue of who makes that determination. this program -- the metadata collection program has been going on for many years. it wasn't until the leaks occurred that it ended up having standing to be challenged before a court of appeals. what is the alternative if not transparency and frankly an adversarial system that produces an independent decision on whether or not this is lawful? >> whether or not what is lawful? >> whether the policy decision to develop technology that converts speech to text. >> there is nothing lawful or unlawful about a technique that converts speech to text. >> the implementation of it then. >> what is lawful or unlawful is what communication nsa collects and under what authorities. that's what we have been much more transparent about than in the past. that's what is fully known to the intelligence committees who are the authorized congressional overseers. but the exist -- how it is that nsa is able to implement its lawful authorities can frequently be the kind of thing that does, in fact cause a -- cause damage when it gets out there. i'm not specifically acknowledging or denying the existence of any particular capability. i'm only saying that the focus needs to be on what are the authorities that nsa is doing and what are the protections around the execution of those authorities? >> that's understood, but -- [ inaudible ] >> tell the fisa court we're doing what? >> tell the fisa court that you were using speech to text on voice intercepts that were collected by a 702 or prism or what have you. >> so a, i'm not going to confirm or deny that's true. b, the fisa court order specifically dictate what we can do and what we can't do in conducting collection under 702. you have seen those orders. you know what they say. we can -- dan, let me finish. the orders provide what kinds of processing we can do on them. we do what those orders authorize. if the orders authorize it, we're allowed to do it. if they don't, we're not. it doesn't matter whether we would use speech to text recognition tools or whether we use 800 monkeys sitting at typewriters. >> there is nothing in those orders about using speech to text processing, so therefore you say you don't use it on 702 or prism? >> the orders speak for themselves and i'm not saying anything about speech to text processing. >> i would point out one more thing as we get next question, which is that this also highlights a distinction that exists when you have the circuit opinion that we had the question of whether or not an algorithm going through collected information counts as a search. that's a real question. and hypothetically speaking i would be very interested and you may know about this as well don't mean to be picking on bob here, but if searching against it, against the database is a search under the second circuit but is not considered a search under fiske, what is a speech to text? does that -- is that a search? does that count as a search? >> so i think the question on that is the particular communication that you are looking at, that you want to convert from speech to text, the question is how did you pick that out of your haystack right? and so that's the -- that's the question that i think bob is trying to get at, what is that? is it that we're doing, right if it was saying, look, you have bulk collection of something, and we're doing it on everything that's a different question -- if you're processing the entire haystack, versusinging selected communications, that's the question about the technology. you need to know what were the criteria for that selection. we used to have this debate all the time about, you know, in order to find a needle in a haystack, you need to build a haystack. people felt like you weren't looking at the whole haystack, you need a lower level of scrutiny about the formation of that haystack. but it wasn't like you were going back and then saying okay, what is the level of scrutiny on the selection tool. this is in the early days and things einvolved legally since then. i think there is a real question that the second circuit pointed out, at what level is there a search. at what level is there an effect, right? and i think -- or someone affected. i think that's a question that as a country it is not clear where people come down in terms of the communications that they're putting out there into the world. this is a question about you know, third party and metadata and the rest of that. i think that different people may feel differently about it. it is not until recently that we had a national conversation about that. >> shouldn't the arbiter be something that looks like the court of appeals for the second circuit rather than the fisa court? >> in what -- >> i think it depends on the context in which you're asking the question. if you're talking about the -- if you're talking about the 702 program, then no. because you this challenge of particular -- within 702, you have a built in oversight structure. if it's something that is in a title 18 context then probably yes. but i don't know that -- like in the 12333 context, i don't know you would get to judicial oversight. i think it is a different question depending on what communications you're talking about, and what is affected. >> and next and last question. >> hi. this question is for mieke or fritz. i'm wondering if you can discuss -- i know there is discussion of this in fritz's book, but if attempts wall on a congressional oversight committee to get information declassified because it often seems as if while congress' toolz for tools for doing that are quite limited, congress doesn't often try. what are the obstacles to try to get information declassified, at least to request it in congress? >> so on the intelligence committee i would say the desire for declassification is lower because you're dealing with everything inside a classified space anyway you're able to have the conversations in the protected environment. it is only when you have the conversation externally that it is a challenge. i think for a long time before we got through a period of public debate, starting with the 702 debate, it was very difficult to get the community to break down exactly what was classified and at what level so you could actually have the public debate the classification guides that would help members be able to have a conversation where parts of it were classified and parts of it were unclassified and to be able to describe that well. i think members of congress are hesitant for a variety of reasons to take unilateral action which they could do under the speech and debate clause or through votes of the committee to just declassify things absent executive branch input in part because they're so dependent on the executive branch for continued access to the classified information. and that really is i think the nuclear option in terms of putting information out there and so i think they are cognizant of the ways in which it could become very difficult if they're revealing classified information in a way that could undermine security. i think because they also take their job to secure the nation very seriously, they are hesitant to do things they feel like might undermine the country. >> i would say congress has the power to declassify but they have to go through a process and it is not easy. and some individual senator getting up and reading a classified document and say i'm protected under speech and debate i think is not a desirable way to go. but the committee can declassify, they don't have to wait for the president or wait for the cia and i think they are a little too subservient. but if you don't have a unified position, you're not going to have the power to do it. and we did it sometimes. we did reveal some things that the executive branch didn't want us to. and we were right to -- the shamrock program was one example. we were right to reveal those things, but we had a sort of unity. and right now i think you're going to be very difficult, like in the torture report, to go beyond where they were would not be -- would not get, i think, a congressional vote or a leaders vote to allow it to the committee or -- there is two or three ways it can be done. so they have the power, they should be a little more willing to at least consider doing it, but you can't do it unless you have a very solid backing for the decision. >> this also goes to a question that really affects the quality of congressional oversight. that is the commitment of the leadership of the congressional committees involved. and that really varies from member to member. i have worked for members who have pushed very aggressively for agencies to declassify information. personally getting involved in that conversation and pushing through the bureaucratic process that declassification might normally take. and then there are other members who would prefer that nothing be declassified at all. and the level of the members' commitment to having the debate in public versus having the debate behind closed doors. and the members' commitment to aggressive skeptical oversight versus a more friendly relationship really will change the quality of the ways the committees interact with the agencies. they set expectations as well when you have a long period of time of one kind of oversight or another, they get use ed to that and then when change comes it is -- it is a tough adjustment. >> we're over time. thank you to all the panelists. this was informative for me, i hope it was for others. thank you to bob because it is critically important to have the intelligence community from the inside represented here again. so, thank you, again. thank you, all, for being here. the senate is back today after general speeches. they'll vote on a resolution stating the government's policy on the release of u.s. citizens in iran. on tuesday about 2:30 eastern they take a vote on whether to advance trade promotion authority legislation. our live coverage of the senate on c-span2. the house returns tuesday with a full agenda work on a measure to ban most abortions beyond 20 weeks, then they start debate on 2016 defense programs by wednesday and reauthorizing provisions in the patriot act dealing with the nsa's bulk collection of americans' phone records. live house coverage on c-span. coming up on c-span3, oral argument in circuit court on the nsa's phone records collection program. after that, a look at war powers and the congressional authorization of force. last thursday, the second circuit court of appeals unanimously ruled that the nsa's bulk collection of americans' phone records is not permitted under the patriot act. the provisions in the patriot act allowing the program are set to expire june 1st, and will require the approval of congress to continue. here now is the oral argument from the case aclu versus clapper. it is an hour and 45 minutes. >> judges for the second circuit. >> okay. please be seated, everyone. good morning, again. we're about to proceed to hear the case of american civil liberties union versus clapper. i want to say one thing this case apparently is sufficient interest that it is being broadcast. i don't know who is going to watch it, if anyone but to the extent that it is going to be watched by people who aren't familiar with appellate argument, i thought i would just say one thing about what is not likely to be seen here and this case is about the bulk data collection program operated by the national security agency. what viewers are about to see is not a debate on the merits of that program, whether it's a good thing or a bad thing, that's for two reasons. one as a matter of substance, the issues before us start with legal issues about whether this court even has the jurisdiction to resolve any or all of the questions raised by the plaintiffs and then continue, the questions raised by the plaintiffs are not about whether the program is a good thing or a bad thing but about whether or not it's been authorized or perhaps forbidden by specific statutory provisions of congress and by specific provision of the constitution of the united states. that's what is before us. it's also not a debate as a matter of forum. the procedure here will involve lawyers making arguments. they will likely be interrupted and asked questions by the judges. that's not because we're rude or we don't want them to make their case in an uninterrupted manner. they've already had the opportunity to present in writing their positions in uninterrupted manner. this is to some degree our time to ask questions of the lawyers to clarify the points that they are making and the implications of those points. to raise issues and give each side the opportunity to not just say their best points but to respond to the best points of the other side. so it's not going to be a sort of free ranging debate where everybody gets to say everything they want about these programs. it's going to be much more limited than that. all right. so i don't know whether that was useful or not. not useful to any of the lawyers. mr. abdo? you may proceed. you have some time for rebuttal. >> thank you, your honor. good morning. may it please the court. every day the nsa collects records of the phone calls made by millions -- >> i'm going to interrupt you at the outset because two questions that are essentially questions of fact. i find it difficult to approach this argument without understanding that at the outset. one is that as i read them and i did read them in some cases more than once. it's not clear whether emails is covered by this program or not. it's possible it's a big secret as to whether they are or not. i don't know whether sitting here i can get a hold of all my mistresses and say let's do it by e-mail, because the government can't watch. i'm sure my wife isn't going to watch this program. i'm terribly serious about the question of what, insofar as we're allowed to know, you're allowed to know are e-mails covered and to what extent that's the first question. >> e-mails are not covered by this program. this program solely concerns records of phone calls made by americans every day. the government has operated programs in the past under similar interpretations of the meaning of relevance that allow it to elect the same information for e-mails but that does not what this case concerns. >> all right. okay. we cannot take into account one way or the other whether somebody can say and lord knows i mean this very seriously, can say to a co-conspirator of some sort, well, let's just use e-mails. i don't use the phone anymore anyhow. >> i think the court can take that into account when it considers the breadth of the government's interpretation of the word relevance and of the grand jury limitation in section 215, and i think the court can take it into account when it considers the breadth of the government's interpretation of smith and fourth amendment jurisprudence. >> that would be because it's your position that if the government is correct here then congress has authorized the same sort of order -- the same sort of order could be made with respect to everyone's bank records in the country? >> that's exactly right. if section 215 permits bulk collection, it would be not just for phone records, but for any records. not just under section 215, but under every run of the mill subpoena. in the context of investigations that are essentially any crime involving more than one person. >> let me ask this. if the data remains in the possession of the telephone companies and the government saw it, and it may be through tens or hundreds of subpoenas to get the same information that they're basically gathering by using the queries against the database the government has clektded. constitutional? >> the government has that authority now. we don't challenge the government's ability to issue targeted demands for records from the telephone companies or from any other company. >> but when you say targeted demands, are you saying because the government -- because they have a number that the fbi or whatever organization comes in and says we have a number that we have asked for, we want the phone companies to apply this number across the data set, that would be the data set, assuming it's the same data set that the government currently has. i'm asking is it your position that it's constitutional or unconstitutional? >> it would be constitutional for the government to issue a targeted demand for a limited set of data as it has always done. what is unconstitutional about this program i think are several things. first is that the government is collecting in bulk everything at the outset in a way that has never been permitted either as a statutory matter or constitutional matter. once the government has that information in its possession, it runs queries on that data. but our principal complaint is about the government's collection of that information. >> but that raises what i said was going to be my second question and that is there appears to have this particularly -- i mean, this case was brought -- was begun less than a week after the disclosure of the program if i'm not mistaken. >> that's right. >> and there's been a fair amount of water under the bridge since then. and what we refer to as the red brief, which is to say the government's brief they mentioned three things. one, if i remember, the number of hops. two degrees of separation rather than three. and also having to get the fisa court's approval before entering a query. at least that's generally my understanding is the second thing that's done and has been done already. and the third thing is this notion that they're going to go back -- they haven't yet, but they're going to go back to congress and they're going to say no more. we don't want to do this anymore. we want to keep all this information in the hands of the service providers. but instead of being able to query them in one way or the other, and i gather that's not a simple thing to do but we're going to take this out of temperature hands of the government and out of the data sitting there in the hands of government. it's going to be put back where it started, and will be queried from there. if that was done if congress were to pass such a law, would that essentially end the controversy here? and there's kind of a technical question as to what your standing might be if they did that. but leaving that aside, i would have thought, having read that that if they did what the president said in march, they were going to do you would have embraced it and said that's why we started this. i think senator akin maybe 40-some-odd years ago, saying declare victory and withdraw, right? >> we would love if the government ended the collection of americans' phone records. if the government did that and it also purged our records from the databases it currently has, that would resolve i think everything you've put at issue by our preliminary junction motion. but that is not the current state of affairs. and i think it would be maybe unwise to expect this congress or the next to act in that way so soon. there are two bills one before the house and one before the senate. they have differences, they haven't yet reconciled those differences, and there are only a handful of days left in the legislative session of this term. >> i understand they're thinking of other things. >> right. >> i should say the inquiry is ongoing on a daily basis. even if congress acts in several months, we're entitled to remedy today for the violations that continue and are ongoing. if i may, i'll return i suppose, where i was going to begin, with the statute. which is i think offering a narrow ground for decision. we essentially have two positions under section 215. >> well, you did offer a narrower ground for decision except that the government insists that we don't have jurisdiction to reach the statutory issues because congress has precluded implicitly what would normally be our jurisdiction under the procedure act. >> that's right. >> you've got to address that. >> i am going to address that. i think the government is wrong on that score for a couple of reasons. first, the apa creates a strong position for injunctive claims challenging illegal agency conduct. that presumption can only be overcome if there's clear and convincing evidence that congress intended to preclude the injunctive claims such as here. there simply isn't that evidence. as the government points to text 2712, but that statute by its very term is as procollusive only as the claims within its per view. section 215 is simply not within the purview of section 2712. it applies to several unrelated sub chapters of fisa and not even the government contends that it applies at least as a textual matter to our claims here. the government also argues that section 215 itself implicitly lyly precludes our claims. but it's made clear that congress is providing for a cause of action for one class of plaintiffs. does not deprive other plaintiffs of a cause of action. the presumption of review under the epa as justice scalia said, would not be much of a presumption at all. instead, the question turns on one of congressional intent. what did congress intend when it enacted 215. and on that score, i think a legislative record is clear. congress enagented the recipient review procedures of 215 after a district court in the southern district of new york had invalidated the national security letter statute because it failed to provide for a clear avenue of review for recipients of national security letters. congress fixed that problem in 2006 and it's similarly provided in the same legislation review for recipients of section 215 orders. but it made no provision at all, rather it spoke not at all about review -- >> perhaps his honor will make clear how we're going to deal with the red light after 12 minutes. i think it's clear lay matter that we'll go on at least as long as we find it valuable to go on. >> i should warn you. i went on the c-span website which that technical i am, and i went on for the purpose of finding out what c-span stands for, which i'd be happy to share with you at another time. but i found out that they unlike what it says here, they have set aside two hours for this broadcast. [ laughter ] >> so we will go on at greater length. go ahead. >> thank you. so i think what i was saying is that the legislative history of section 215 makes clear that the recipient review procedures did not decide the question at all about whether congress wanted to target the 215 orders to have available statutory review. and in that context where the legislative intent cannot be discerned, the default rule of the apa governed and provides for injunctive relief. >> with respect to the government makes an argument further that no one would have anticipated a lawsuit like this that is brought by someone whose records were demanded because the intent was that people in your position would never even know that this was going on. does that mean that congress didn't anticipate this kind of lawsuit, or intended to preclude this kind of lawsuit? >> no, and this is the point on which we disagree with the government. congress clearly provided for the possibility that targets the 215 orders, would learn about those orders. it contemplated that recipients would have a right to challenge the gag orders imposed upon their ability to tell their customers about the orders. and that they might in due course tell their customers. so i think congress clearly contemplated that target that it did not then go on to preclude whatever claims it might have wanted to preclude. i think that congress simply had no view on the matter. >> you're talking about recipients, which is the service companies, and not individuals whose records were being collected, is that right? >> i'm talking about the gag orders imposed on recipients by section 215. those recipients can challenge those gag order provisions and i think -- >> if they win, then a person whose records were at issue would have learned it. >> that's exactly right. and i think there's something a bit bizarre about the government's arguments. it attributes to congress the swept to deprive this court of a narrower path for decision. not even the government contends that our constitutional claims are precluded and there's no question that the government will have to at the very least resolve our constitutional claims. so the only consequence is that the narrower ground for decision would not be available to it. i think that's very strange intent to attribute to congress and there's not really a coherent theory offered by the government on why congress would have wanted to preclude our statutory claims knowing full well that our constitutional ones could proceed. >> let's assume the congress actually gave that thought at the time. i'm not sure it would necessarily be the case. but when you're talking about the statute, congress did address the issue of the recipients and didn't say recipients and others. is there anything to suggest that congress at the time they were dealing with the recipients thought about others possibly having the ability to challenge the statute? >> i don't think there's anything in the legislative history, and that i think is fatal to the government's claim. because in that situation, where there's no intent decipherable one way or the other the background rule of the apa controls. i think it's important to point out that when congress amended section 215 to add the recipient review procedures it asks the government its view of necessity of those procedures. and the government went to congress and said we think as a statutory matter that those -- that there is already an avenue for judicial review for recipients of these orders. that was their position in the litigation over the national security statute and that was also their position in congress. they said we don't think that clarification of the law is necessary but we welcome it because it does no harm. it clarifies the species of judicial review that the government had already told the district court was available to recipients of these sorts of orders. so congress is really just addressing that narrow problem of it being potentially unconstitutional for congress not to have provided ready judicial review for recipients. >> your basic argument with respect to the secrecy point is that if congress didn't imagine that this thing was ever likely to happen, assuming that, i understand you have an argument that they shouldn't have foreseen this possibility in at least some contingent circumstances. but if they didn't think about this at all, then you went, because we're not looking for evidence of a legislative intent to create a right to judicial review. your position is that's already there under the apa. unless there is evidence of a judicial intent of a congressional intention to preclude judicial review. >> that's exactly right. that's the presumption created by the epa. the way that your honor articulated is the way supreme court articulated it time and again, and that is the government's burden in this case to show by clear and convincing evidence that congress intended to preclude our claims not our board to demonstrate that congress intended to create them. if i may, i'll move on to the merits of our statutory claim. so i was asking before, our first claim is that section 215 simply does not apply to call records. in the very same statute that congress enacted section 215 in 2001, it added a provision to the steward communications act prohibiting the government from acquiring phone records. it created exceptions to that prohibition, but section 215 is not among the list of those exceptions. that's critical. because under settled principles of statutory -- the specific communication in the communications act precedes the general grant authority. indeed, in the past, the government has agreed with that very principle. when they were confronted by a senator who worried that the privacy protections of the census act mild yield to section 215, the department of justice assured that senator that the privacy protections in the census act would not yield, that they trump, in effect the general authority of section 215. and they've agreed with a related proposition which is that the exceptions in the communications act are exclusive, that it is not for courts and it is not for the government to infer additional exceptions not already created by congress to the background rule of privacy established by the stored communications act. that was in a a memo in 2009 to the fbi concerning the scope of the national security letter statute. >> am i right that if we agreed with you about this communication, about the stored communications act that unless you're also right about the meaning of relevance that this could be something of a victory for you or at least only a transient victory for you? one of your arguments about the relevance issue is that if we interpret relevance as broadly in section 215 as the government wants to do, then the government could get the same kind of records out of just fbi administrative subpoenas for example. and that kind of request is covered as an exception to the stored communications act. >> not exactly. >> okay. >> in part, because the stored communications act limits the type of call records the government can acquire. so, for example, the government could not acquire -- it could only acquire the originating phone number, the receiving phone number and information about the duration of the call under the stored communications act, including under the administrative subpoenas you're referring to. but they couldn't acquire things like the identifying device number of the device making the phone call. they couldn't acquire the trunk identifier. which is something they acquired under the verizon order here. but you're correct that they still would have the very broad interpretation of relevance available to them. i think that's a defect in their argument. on the government's theory it could use any run of the my athd administrative subpoena statute, including the national security letter statute, to acquire all of these very same records in bulk. none of these other statutes include the source of protection that the government relies on in section 215. in other words they could rely on the national security letter statute to acquire these very same records in bulk. without the minimization procedures they point to as saving their collection from invalidation without the same sorts of limitations. >> maybe they're going to concede that that would be unconstitutional because it's only those minimization type procedures in the court order procedures and so on in section 215 that in their view defeat your constitutional argument. it will be interesting to see what they say about that. >> i would find that a little surprising. i think the argument is a bit broader that smith controls this case. there's one other argument that i'll quickly mention which is the grid of our statutory claim. and that argument is that the core problem with the government's theory on the merits of section 215 is that it labels everything relevant on the premise that some tiny portion of everything -- >> i don't mean to interrupt your statement of that. i think we know what that argument is. it reminds me of what justice stewart said that everything is classified. if everything is relevant, then relevant simply drops out and doesn't exist. >> that's right. >> but a more technical question i guess is this is the -- well, the statute says that the government can apply for an order requiring the production of any tangible things etc. the question of relevance doesn't come there in terms of the authorization. it comes later when it requires that the application to the fisa court include a statement of fact showing there are reasonable grounds to believe that the tangible things are relevant to an authorized investigation. and i've got that right so far. and i'm wondering -- it would be much easier for me if the authorization said for an order requiring the production of relevant tangible things rather than putting it down later in the papers to the fisa court. and the reason i find this troubling, or confuseing, differently, it is after all the administrative procedure act. and presumably the administrative procedure act, what we're talking about, is the fbi and the nsa. and i'm wondering whether by putting this down, the question of relevance down in terms of what must be shown to the fisa court, we're not being asked not to review what the fbi and the nsa did, but we're being asked to review what the fisa court did, the fisa court -- it's certainly not an agency under the apa. i wonder whether when you bring in relevance -- i understand the notion of everything that's relevant is very troublesome. but if we say the fisa court was wrong, are we then reviewing what an administrative agency has done or are we reviewing what the fisa court has done, and if the latter do we have the power under the apa to forget constitutional -- do we have the power to review what the fisa court has done? >> i think the quick answer and i'll elaborate, is that we're asking for the former, not the latter. but even if the latter, i think this suit woeb appropriate. and i'll elaborate. i'll note that there are any number of surveillance statutes that are structured in that way, that provide a grant of authority at the outset set out the limitations below. i don't think that's a novelty in section 215. i know your honor and judge lynch are familiar with section 72. >> we were once. >> to get to your precise question, we are challenging agency conduct. we are challenging the government's daily collection of our records. we are not asking this court to overturn we are not asking this court to set aside the verizon order. we're asking for an injunction against continued collection by the government. that could be put in place without saying anything to the fisk at all, only with an instruction to the government. i think that's what our challenge is and for that reason, it's understood as a challenge under the epa. even if that were not true, even if you characterize our challenges to a fisk order, i don't think that would change matters. the government itself in opposing a petition filed there that was actually challenging the verizon order, said the appropriate avenue for relief was a district court case such as the one we are litigating an appeal on. that that was the appropriate avenue. the government itself noted that it's true that a district court action may not achieve precisely the same relief as being sought in that case. but the plaintiffs would be entitled to receive an adequate remedy namely an injunction against an agency conduct. >> what happens now that you mention that what happens if there are now two district courts at least district courts, which have come to opposite conclusions within a week and a half of each other on the issues before us. and they did it on the constitutional basis. supposing we were to affirm and the dc circuit were to affirm. so you have one circuit that says it's unconstitutional, here's an injunction. the other one says it's perfectly constitutional and we're not going to give you an injunction because it's constitutional. are they allowed to get records in d.c. and not in new york? where would that leave us? >> i imagine the government would simply seek a stay from the d.c. circuit and if they were not successful in seeking that stay, they would ask the supreme court to resolve the conflict with this. >> so it would have to be the supreme court that would deal with it. >> i think so. i think the supreme court would likely permit a stay pending its resolution of that conflict. >> should we permit a stay subject to resolution of that? supposing we agree completely might we not say great, we agree with you but there's other litigation going on we want the supreme court to have a kick at the ball and we're very much -- supposing we're wrong and somebody blows up a subway train. does it make sense for us to say okay, here are our views and then wait until the d.c. circuit speech and until the supreme court has an opportunity to speak, before actually making an order of, you know an injunction. >> i think it would be well within the court's authority. would be happy to if and when that arises. >> that would be within our power to do it. >> yes. so if i may, i'll proceed to the constitution. our claim under the fourth amendment i think is quite straight forward. it is that the government's bulk collection of our call records intrudes upon a reasonable expectation of privacy. the government's primary defense, of course is that this case was decided in 1979 when the supreme court issued smith v. maryland. that's simply not the case. >> well let's suppose that we agree or at least entertain the argument that quantity is quality here and that the nature of this program is different than what we at issue in smith. isn't there still quite a bit to the government's argument that even in this context there's not really much of an expectation of privacy in these records. for example, if you look at the opening of your brief you have this nice parade of horribles and all the things the government could find out from these records, the government could if it chose if someone looked into it from this metta data, could determine, for example, that it's likely that someone was hiv positive. or it's likely that someone had an abortion. couldn't verizon find out those things if it chose and couldn't verizon go into the records it has and make the same kind of search and determine the same kind of private information and use it for purely commercial purposes, not remotely as important to anyone as the reasons the government seeks this data. but just because they might be able to make money by selling a list of people that verizon thinks have recently developed an unwanted pregnancy and they could sell that list to abortions r us or an anti-abortion group to send information to those people. verizon could do that, couldn't they? >> i don't know that they could as a matter of our contractual relationship with verizon. i don't think it provides for unregulated access to our call records. the only access verizon has to call records is likely through its computerized collection of those records. so it's a bit ironic that the government claims that the computerized collection of those records extinguishes an expectation of privacy, but its computerized collection of those records -- >> prophesizeing something about your contract? or do you know something about mine that there's something in there that says they can't use the call records for anything? >> there are statutes that regulate what telecommunications companies can do with their customers' records. >> i take it they couldn't say to abortion providers or pro-life organizations here's all our phone records, you do the search and see if you can find people who might be interested in your services. anyway, the point is verizon has all of this information, and presumably has the computer capacity to probe them if it chose. >> they may very well have the computer capacity. i don't know whether they have the authority. i think it turns on the question of what the congressional statutes regulateing -- i forget the long form of the name but it's cpi. there are regulations that protect our information, this include our regulations against this sort of unregulated access. i don't know the exact contours but i don't think anything turns on that question. i think this is another way of stating the third party records doctrine question. i don't think that doctrine has ever been an on/off switch in the way that you're suggesting. there are freakily contexts in which information is shared with a third party and yet the person whose privacy is reflected in that information, nonetheless, is recognized to have an expectation of privacy. >> could you illustrate? >> sure. all of the contents of our phone call are routed through verizon communications. the contents of our calls are nonetheless strongly protected by the fourth amendment. they're also protected by federal statute. no one has ever suggested that verizon's ability to listen to the content of our communications extinguishes our expectation of privacy. the same is true of our e-mail. our e-mail is routinely stored on the servers of third parties and i think courts are just now beginning to grapple with that question, in the sixth circuit, a case held that despite the possibility that google might read your e-mail because the information is stored on that third party server, customers nonetheless have an expectation of privacy. >> but there are many ironies in this case. one of them -- and maybe it makes no legal or constitutional difference, but it's a little strange that once mr. snowden through "the guardian" and others disclosed the existence of this program we no longer had reasonable expectation of privacy. we've just been told we don't have any privacy. that the government has it. and i would like you -- i suspect you can respond to that because you probably thought about it a lot longer than i thought about the question. but i wish you would focus and even forgetting smith v. maryland talk to me about reasonableness. in this case, the word reasonable is actually in the fourth amendment, right? talk to me about how we figure out, the three of us figure out what's reasonable and what isn't reasonable. >> sure. if i may i'll just briefly address your first question. which is now escaping me. >> now that everybody -- >> the supreme court has recognized that there's an element of circularity to the task test and that expectation of privacy can be defined if congress so chooses, through a statute that permits bulk collection. but it is guarded against that possibility by analyzing a normative question along with the test, which is whether people are objectively reasonable in expecting privacy. i think you see that normative question being addressed by cases like jones and by cases -- both of which recognize that even though there's a capacity for greater intrusion into our personal privacy by companies and the government, that doesn't fundamentally alter the relationship between the citizens of this country and their government. >> is the statute relevant to the constitutional issue? in other words suppose this case came to us purely as a constitutional question after congress had engaged in a full scale debate as to whether to authorize explicitly exactly this program, and they did explicitly authorize this program, and i suppose one could further hypothesize they did it a few months before an election and after an election in which this was an issue the same congressmen who voted for this were returned to office. would that make any difference to our estimation of what is a reasonable expectation of privacy? >> i think it would likely be relevant. but the supreme court has noted that the circularity of the test is not a one-way intrusion into privacy. >> even if that means that there were some bar to our considering as a statutory question whether this program was authorized, whether if we found that this was an executive branch frolic and detour that was not authorized by any explicit legislation of congress and was in fact, prohibited by some provision of congress that as part of addressing whether this was constitutional or not, that such an unauthorized executive branch excursion would stand on different and shakier constitutional ground and might even be an unreasonable intrusion on privacy without necessarily concludeing that it would be unreasonable for the same program to operate if it had full clear congressional authorization. >> i suppose that's right, although i don't think anything in our argument turns -- our constitutional argument. >> no, your constitutional argument leads to the conclusion that even if congress authorized the program explicitly it is still unconstitutional. i realize that's your position. >> that's right. but i see your suggestion. i think that could be an element of the reasonableness of the expectation of privacy the fact that the executive intrusion has not been authorized by congress. has not been one deliberated over. >> if there was a real debate in the democratic branches of government, that led to a decision to reup this program. >> that's right. but i think if anything, the current debate that's ongoing suggs the opposite. it suggests that congress is not comfortable and the country is not comfortable with bulk collection. indeed, the president himself has now recognized that both collection creates an intolerable risk of abuse and should be ended. and so i think that's maybe a good segue to get back to your question as to how to analyze reasonableness. i think-the-always about balancing the intrusiveness of the government's search against its rationale for doing so. but i'll say at the outset that i don't think the court even needs to get to conducting that balance. the fact that the government's search proceeds without individualized suspicion without satisfying the requirements of the warrant and probable cause clauses of the constitution is sufficient for us to prevail in the fourth amendment. >> but if smith has any continuing merit, i guess my first question is, can smith allow for the numbers dialed -- r -- they said that was not covered and people didn't have an expectation of privacy. let's assume with regard to the program that -- is it your contention that it's unconstitutional for them to collect just that information in bulk? >> just the information that was at issue in smith? >> that's right. >> yes. >> that it's unconstitutional? >> it would be. smith dealt with primitive technology directed at an individual who was suspected of a crime over the course of three days. >> but the technology i don't think is an issue because -- well maybe to the extent of bulk. but with regard to what is actually being captured which is the number assigned are you saying that because the government's collecting that in bulk in other words for seven years or whatever of your client, that that is unconstitutional? >> that's right. i think in 1979, the state of maryland had investigated michael lee smith not for the targeted use of the pen register, but because it had from the moment of his birth created a database that every phone call made or received and kept that database in the government coffer. i think the supreme court would have understood that case to stand for a very different proposition and i wager they would have found that collection unconstitutional. so if that were the program that we were challenging, i still think it would be unconstitutional. although, i'll note that's not -- it's more intrusive here on a number of different reasons. >> how do we go about -- we've been looking at this stuff and worrying about this. how do we go about knowing without any fact-finding at all all -- i'm afraid i keep wondering whether we're having in-camera proceedings. i'm wondering whether how without any fact-finding at all can we begin to know, figure out by a district court, by some trial court presumably in-camera, how can we begin to know whether this is reasonable or not? how can i begin to know whether, you know, we're really because of the way the world is today which is different from the way it was a week ago, and different from the way it was a year ago when it started in june of '13. how can we without fact-finding come up with some reasonable determination of reasonableness? >> i don't think fact-finding is necessary. the parties have briefed the issue, and even the president now concedes that the government can accomplish -- interested of seeking to serve through this program. >> why didn't he send his lawyers here to say that you should lose? >> i think he's awaiting a legislative solution. the president in the interim has, i suppose -- >> but for the moment, evidently, the president thinks that it is necessary to continue operating this program and that it's constitutional to do so. he might prefer some other way of doing it but the representatives of the government are here to say that they think this is presumably essential, at least that it's a reasonable thing for the government to be doing. >> that's right. our view is not that the president has conceded the unconstitutionality of the statute, of the program, but that the government has conceded that there are alternative significantly less introduce i have means for the government to accomplish -- >> fair enough. and one would hope that it does truly sound the circumstances given both the nature of the threat and what has to be done to control that threat. i mean, how do we do that based on briefs? >> if i could make a few points. if first point is to make the point i tried to make earlier is that i don't think the court even needs to get to the reasonableness balance. the government is only entitled to a question of free-floating reasonableness, if it can demonstrate that the warrant and probable cause requirements of the fourth amendment are impracticable. it cannot for the simple reason tla that there is record evidence, that the government can accomplish his interests through individualized applications. in other words -- >> that wouldn't ordinarily require either probable cause or a warrant. this procedure that we're envisioning, that you're envisioning, that the president apparently is envisioning, is one where verizon keeps these records and i take it an ordinary -- if you had a reasonable suspicion or even an unreasonable suspicion but some reason the government wants to look at one person's phone records, they do that all the time by issuing a grand jury subpoena, or perhaps some national security letter or something of the sort, without probable cause and without alarm. and the argument is that's not a fourth amendment -- either it's not a fourth amendment event because of smith against maryland, or if it is, it's a reasonable one. >> that's right, but the government here is trying to engage in bulk collection. and if we're correct that that implicates the fourth amendment then the question becomes for purposes of special needs doctrine, which is government has invoked, the first question becomes whether the government could accomplish its interests through targeted demands. if it could, then it is not entitled to forego the requirements of the constitution. we don't think it could use targeted demands to engage in bulk collection. but even the government has conceded that it could use targeted demands to accomplish its interests here. it uses a seed phone number to query its database. it could use it to query -- >> right. but i'm just questioning -- isn't what you're just saying the so-called free-floating reasonableness inquiry? it's an inquiry into whether what they're doing now in terms of bulk collection is and why there are possible alternatives, perhaps a reasonable thing to do and unreasonable thing to do. i don't know why the warrant requirement or probable cause requirement comes into play. >> i suppose it's because at least in this case the question of practicalability comes into question. but i think there are distinct inquiries. the first question is whether dispensing with the requirement of individualized suspicion is practicable or not. here we don't think it is. even if it were impracticable, we would still think the program is unreasonable. for the very simple reason it is the most intrusive means that the government could use to accomplish its very narrow interests. that sort of program has always held to be unreasonable. in part, i think this is a critical point. because even the president has conceded that the government's interests can be accomplished in narrow means. and it's not just the president. a very lengthy report, including the bulk collection is unnecessary. it's a hand-selected review group, a group hand-selected by the president himself that came to the same conclusion. and there's record evidence in this case from professor felton who's a professor of computer science at princeton explaining very simply how the government could recreate this program in a targeted way that would not require bulk collection. i think that goes to both the question of practicable. >> it's time to reemphasize the point you've already made, we've probably gotten to the end. so i thank you for your argument. you do have some time for rebuttal, which will probably be more than two minutes at the rate we're going. >> thank you, your honor. this case concerns an intelligence program that has been considered and approved by all three branches of government. it involves production to the national security agency of call detail records pursuant to orders of the foreign intelligence surveillance court under a provision of fisa that has been twice reauthorized without change after congress was briefed about this very program. >> so i think you're starting off by saying it's been approved by all three branches of government, but you actually don't want us to address whether it was authorized by one of them. >> if you're referring to the statutory preclusion argument, yes, that's right. we think that was a choice that congress made in specifying a very detailed provision for applications and approval of those applications by the fisk and then with a detailed review scheme following that allowing for a challenge by providers and ultimately reviewed to the fisk review court and ultimately to the supreme court if appropriate. the supreme court has been clear in block and other cases that where congress has established clearly a specified form or forum, or limited parties for judicial review, then that revision, that process is exhaustive. >> but he went on to address some very specific facts about the judicial review program there, that suggested that it was reasonable to assume that congress had intended to preclude review by other parties. i don't know whether i'd go so far as to call it a test. but they looked at those factors and concluded specifically with respect to that program that preclusion was a reasonable inference. i'm not sure that those factors come out the same way here. you really hang your hat very heavily on a generalization from block, aren't you? that any time that congress authorized judicial review by one person it must have intended to preclude judicial review at the behest of any other person? >> respectfully, your honor, i don't think we're relying just on a generalization. obviously the court has made clear that the inquiry needs to be based on the structure of the statutory scheme at issue here. if you look at that structure, first, as was alluded to in the first part of the argument there is no provision for challenge by third parties to these orders because as a matter of course the expectation was that at the time the third parties, including people other than recipients of the orders would not know about them. >> is that enough to assume that congress intended to forbid review by such a third party if the third party did find out? in other words i understand the idea that if we're asking did congress contemplate this kind of lawsuit did they implicitly authorize this kind of lawsuit, it's a pretty good argument to say of course not, they didn't even imagine this sort of thing and whatever happened because it could never happen if secrecy were maintained. but if there is a presumption that judicial review is available, and the question is did congress specifically intend to prohibit judicial review to these particular people and the answer is well they probably never thought about it because they didn't think these people would be around. don't you lose? >> i give a couple answers to that your honor. first is limiting the category of people who could challenge the orders was a deliberate choice made in reflected in the legislative history. and i think other discussions. but certainly the amendment that rejected proposed district court challenges to 215 orders. i think the key provision that was not addressed in the first part of the argument was section 861 f-2d, which says that an order pursuant to the procedure by the fisk shall remain in full effect, that's a quote unless it has been explicitly modified or set aside pursuant to the procedures that are specified in the section. so i think that that's a clear textual statement by congress that when the fisk orders are issued, they should be set aside only pursuant to the process of the court or that congress has specified there. and preclusion here makes perfect sense given the structure of the section which provided for applications by the government to an article iii court provided for the purpose of reviewing applications. >> why would the recipient -- i guess one did, so maybe you could have asked them. but i guess it's secret who they were. so i'll ask you. why would a recipient ever challenge one of these orders? they're given absolute immunity from any claims by their customers that they violated any rights by turning the stuff over to the government. in response to one of these requests. what stake do they have in saying anything other than here, government take what you want? it's no skin off our nose. it's skin off their nose. >> i think you're right your honor, that we may not be the right people to ask, but one could imagine business reasons or practical reasons for making that decision. as you indicate and as reflected in judge collier's opinion from the fisk, there has been such a challenge and that led to a reaffirmation by the fisk of its production order on both statutory and constitutional grounds. so i think given that we have here not just a situation where congress has said that certain challenges to agency action should be brought only in a particular forum. but have required judicial approval before the private party is required to make the production to the government. preclusion of the type that we're talking about here makes complete sense and the plaintiff's argument requires a collateral challenge to an order by another article 3 court. >> that is an an interesting and troubling point. but on the other hand, he points out that exactly such a challenge is apparently authorized. the government concedes it's authorized on constitutional grounds. so the government's position appears to be that you can collaterally review, if that's the way you want to look at it, the fisk order to test its consistency with the constitution. but not to test whether it's consistent with section 215. >> right. i think, your honor, that is the consequence of the supreme court's implied conclusion doctrine, as compared to what the court has said in webster v. doe about what is required for a court to view congress having intended to preclude constitutional claims. it's a higher standard to avoid serious constitutional questions -- >> is there any role for the doctrine of constitutional avoidance here? you're asking us -- you're requiring us to decide a question of constitutional law. to decide whether perhaps the government is precluded from doing this sort of thing, even if congress wants it done. or on the other hand to accept an argument that says nobody's got any constitutional privacy rights in anything really anymore. because surely, the same argument -- maybe i should ask you this first. the same third party argument that you're making as a matter of constitutional law, and the same relevance argue that you're making under the statute applied to bank records and credit card records, don't they? >> obviously to some extent, there are elements of the same argument. >> let's take it through. there are third party records. so smith against maryland applies. >> smith against maryland itself was limited to non-content records. the court made a point of distinguishing the situation of content collection. obviously there are other cases including united states v. miller involving financial records that dealt with other types of information. i think that the key under both the fourth amendment and under the relevance test under the statute, in both lines of cases, the court has made clear is a tally of the circumstances type inquiry. what is relevant under the circumstances. what is reasonable under the circumstances. >> come on isn't it at least as relevant to you whether somebody that you have some reasonable suspicion is engaged in terrorist kwexconnections, used his credit card last week to buy a ton of fertilizer, as it is to find out whether he called his gym on using his verizon cell phone? >> so i think -- >> or even to find out who his other colleagues are. there's clearly relevance in the sense that you're talking about it. in fact, if you had that guy and you wanted to get his precise credit card records, is there any question you'd serve a grand jury subpoena to get that? so i don't understand why the same jump that says you can collect all the stuff in advance essentially to make it easier quicker. i'm not denigrating that interest. to make it easier and quicker to make the inquiry and find out what the connections are and what this guy is up to. why doesn't the same thing apply to credit card records? >> i think certainly your honor is correct that seeking the types of information that you're talking about asking those questions in counterterrorism and other types of investigations occur by law enforcement every day. and those are important elements of the -- a set of tools that the government has to pursue counterterrorism investigations. what we're talking about here, the proposition of relevance that has been advanced here and that the fisk has approved is, however, tied to the nature of the records that are being collected in bulk. putting the smith question aside about the fact that those are actually -- what we're talking about is information that is provided by telecommunications companies from their own records that they have created and maintained for their own business purposes. but if you just look at what the government's use of the metta data is, the record in this case including the declarations that were submitted in connection with the preliminary injunction and the orders of the fisk made clear that the purpose of the bulk collection is to allow for the use of analytic tools in counterterrorism investigations. so it's both the nature of the data, which is interconnected and can be standardized and can be searched through what's called contact chaining to make connections. and in furtherance of a particular type investigation, which are not ordinary criminal investigations, looking back at who perpetrated a crime that we know about. but are designed to be forward looking. the purpose of this work is to detect and disrupt future plots before an attack can be made. i'm sorry, your honor? >> at this point, bank records seem to me to basically have the same sort of information. and under miller, it appears that they'll have an interest in their bank records either. obviously there may be certain limitations on that. but isn't it a similar sort of thing? couldn't then the government aggregate everybody's bank records and apply the same, you know clearly sort of methodology to get at the same sort of linkages? >> so that is a question that would be relevant, to use a term, to the question of whether that type of collection is authorized. here, i think it's important that the fisk has examined the type of data, and has established that it can be collected into a database and queried in an interconnected way, in the way that the nsa does it. other types of data, even if very valuable for law enforcement and used routinely may not have the same benefits from aggregation and querying based on standardized formats. so the answer here would not necessarily be the same. it's a question. be the same. it's a question. i think that -- >> i'm having trouble understanding is -- is the idea that telephone records are uniquely kept in similar formats by all providers so that unlike bank records they're more susceptible to collection data base? i thought it was almost the opposite. that if you had to wait and you know, we had this guy's phone number, we think he's engaged in something suspicious. we would like to know who he talked to. i take it you can serve a subpoena on his own provider and get all the people he talks to. and then you can search the subpoenas on the phone providers of all those people and get that information. so all that information is gettable i would have thought, and may have completely mistaken, that the problem with doing that is it's awfully time consuming. you have to track down who everybody's provider is and so on. so having it all on your server in your back room and doing whatever you need to do to translate the records so they're all compatible is the whole point of what makes this beneficial. am i mistaken? >> no, you're correct about that. >> isn't that true about every bank? if you got all the bank records. it would be the same thing. you can go subpoena by subpoena or you can collect everything there is to know about everybody and have it all in one big government cloud with procedural protections. but i just don't understand an argument as to what is so special about telephone records that makes them so valuable so uniquely interactive or whatever that the same arguments you're making don't apply to every record in the hands of a third party business entity of every american's everything. >> your honor, i'd like to come back to the point embedded in there about the min mization and other restrictions on the use, which i do think is critical to understanding the appropriateness of this program. but on the question of relevance, i think you're correct in your general description as reflected in the declarations here about the purpose of the collection of the data. if the -- and that the advantage of doing it in advance is that it allows for standardization where that is necessary. although, i do think phone records by their nature tend to be, you know, and are quite standardized. and to allow for rapid identification of connections between known and unknown terrorists. i mean, that is really the purpose of a program as, again, reflective in the record and the district court opinion, frankly. the purpose is to be able to with a connection to a targeted terrorist organization. who that person is in contact with and in particular might be in contact with in the united states. and the analytical tools to make those connections and to identify them rapidly are at the core of this particular program. >> rapidly has to be what it's about, right? because some of us sitting here have done this in criminal investigations. i know exactly how important it is to get people's phone records to trace their connections. and it's done every day in the week with targeted subpoenas about the people that one is suspicious of. and having done it i can tell you, there are a lot of burdens in doing it case by case. but surely you agree this could be done by targeted subpoenas. it's a question of, again, i don't mean to minimize it at all. the efficiency, convenience, speed of making these inquiries. >> yeah. so whether it's sufficiently timely, that is certainly an element. i think other aspects that are, again, reflected in the record and this conclusion are the need for examination across carriers so you're following the lengths where people are communicating using different carriers. and the, again, to build a historical repository for some period of time. because going in the government doesn't know who, which of the metadata might reveal an important connection to a known terrorist. and so if you started only when you identified that person, you know, that information would not be as valuable. >> it's a question also of whether the phone company keeps all of these records, though i think suggesting earlier and suggests in terms of what the president has suggested by legislation that that problem could be solved by requiring the phone companies to keep this information indefinitely against the possibility of future collection. i want to get back to this question of constitutional avoidance. because you are asking us to decide something extraordinarily sweeping without requiring that this is something that could ever be allowed under the constitution without addressing whether the congress of the united states has ever really thought about this program. and putting aside the issue of preclusion, it's a little hard for me to imagine that somebody who looked at the law who said that you can have an order that will get anything that you can get like with a grand jury subpoena. imagine that means you can get stuff that nobody ever imagined getting with a grand jury subpoena before. maybe it could be done. maybe it could have been done. i don't know. it's hard to imagine that rather innocuous language, when they're relevant to an investigation means that all kinds of records as i read your brief, you're really saying, they're not relevant, really, to an investigation right now. we just want to have them in case they become relevant so we can query at that point this data base. why would we think that congress, you know, bought that using this language in section 215. >> i think one reason, your honor, is because congress was briefed about this very program and it extended section 215 twice without change. and, you know, the details of this are reflected in our brief. i think this does reflect ratification in a way that the ordinary -- >> i wonder how valid the ratification argument is when you're dealing with secret, what is essentially secret law. i thought the ratification notion is that you're dealing with something that's public and therefore by ratifying it again and again, you're somehow reflecting the public will because they know about it. i'm not sure ratification carries as much baggage as you want it to if you're talking until june of 2013 when people knew this was going on. >> i think, your honor, the reason it does here is because we're not just talking about a presumption that if, you know, if it's in the federal reporter somewhere congress is deemed to know about it. here congress -- the judiciary and intelligence committees were briefed over time about the details of the program. and then in advance of reauthorization in both 2010 and 2011, the executive branch provided a briefing paper to be made available to all members in 2010 before the 2010 ratification. all senators in 2011 that detailed not only the nature of the program, but that the fisk had authorized it. that the relevance requirement in the statute had been met. that it was consistent with the supreme court's precedent under the fourth amendment in reference to smith versus maryland. and, in fact, the -- some of the statements that in the plaintiff's briefs they highlight from some of the senators were made in connection with the 2011 reauthorization. and the importance of understanding how it was being used in connection with this very program. and so, you know, finally, the chairs of the intelligence committees made this material available and offered briefings more generally to all members. and also repeated the -- the need for members to understand how it was being used. so i think this is -- this goes beyond the ordinary ratification. >> it's getting later in the afternoon. i want to make sure i understand whether you're arguing about preclusion or 215 and whether relevance is a -- is an appropriate, forgetting the constitution. >> i'm arguing here that congress understood section 215 to cover the program that we're talking about and the types of records. >> so you're beyond preclusion? >> i also think by extending section 215 knowing, you know, knowing what's going on, i think it -- more broadly. it more broadly. >> well, maybe if they reauthorize it after the judge's decision and before we say anything to the country if we were to, that would be the kind of thing that would be a typical ratification argument, right? the congress would ratify judge pauley's analysis of the pr collusion issue. but preclusion issue is not something otherwise before congress in some judicial opinion when they did one of these reauthorizations. >> and the preclusion point, your honor. >> there you're relying on the original legislative history of the beginning. but for the relevance argument, you're relying on in part the on the idea that congress reupped this statute, section 215. after the program had been

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