[inaudible conversations] [inaudible conversations] >> tonight on c-span2, a discussion on freedom of speech. then, a senator hearing on wikileaks regarding document secrecy. later, canadian politics. >> now a discussion to the right

of a fair trial versus freedom of the press in the age of knew media. we'll hear from federal judges from california and washington state as well as journalists and attorneys. this is an all-day event that took place at the walter crone kite school of journalism in february. this is an hour and 25 minutes. [inaudible conversations] [inaudible conversations] >> i think we'll get started with the last panel of the day now, to the panel on free trail and free press. it's live and moderated by tim mcguire, the chair of business of journalism here. he teaches about, among other

things, a description, i think tom hopkins would like, emerging media in the future of media, tim? >> it is important to point out that for 35 years i was in that other media in the newspaper business, and this issue was an important one, and i want to start out with a unconventional beginning. i'm going to ask a question, and i want a one word answer. is fair trial, free press dead or alive? >> it's alive. >> alive. judge? >> it's fine. >> it's fine. >> vibrant. >> vibrant. >> judge? >> alive. >> okay. remember that. they all think it's alive. we'll see what we think at the

end. our guests are ben holden who i've known for 25 years, interned at the star tribune, and he's now at the donald national center for courts and media. judge alex kozinski. manny medrano from los angeles who also does television work, and journal barbara rothstein and a judge in seattle. we know free press is to the shepherd case in 1996. the report in shepherd shows an out of control press demanding shepherd's arrest, and then calling him a liar, printing

stories about his refusal to take a lie detector test and photos suggesting the murder weapon was a surgical instrument. they conducted it in a roman holiday atmosphere and should take strong measures to protect fair trial rights. the court said there was no need to decide what sanctions might be available against the press leading some judges to think sanctions might be appropriate. panel, what's your instinctive reaction when you read the description of the behavior in the shepherd case? are you outraged, or does that behavior seem familiar? go ahead. >> well, my reaction is the judge didn't control the courtroom. my first response is the judge is not to look at the press and blame the press. it's to say why in the world did a judge allow that kind of

behavior to go on in his courtroom? you know, the press will do, and i don't want to make it sound bad, but the press will push as far as they can to get their story. >> well, my impression is that you reach a result and have an opinion to support it, and i'm sure they're the same series of events could have been described in a very different fashion, so opinion is sort of a press release if you think of it that way, and you know, there were no tents, there were no elephants, there were no trapeze acts, but the way the court chose to characterize what happened in order to frame the leader to get us on board with his opinion.

i think it was an overstatement of what really happened. i wasn't there, but sort of reading between the lines, and it seems to me that you know, whatever the result was the correct result in the shepherd case, what they tried to describe there certainly is not at all typical of what i've seen. >> manny? >> my two young sons back in l.a. have something in common with trial lawyers and media representatives. judge, you said adequately, they push the envelope in going as far as you let them. the debacle with the trial you referenced, tim, in my opinion is the direct function of a trial judge that simply did not control his courtroom. on top of that, you have to take into consideration, was that 65, tim, the year? thank you, 66.

well, light years have passed in the development of technology to be able to cover trials, and that's another big factor to consider now that that type of surface type atmosphere will not be duplicated again because the technology is such that now you can have a completely unintrusive camera. i know this because i've covered high-profile cases. the cameras here are intrusive compared to what you can find now. basically, you can have a camera this size in the ceiling controlled rebahtically and nobody even know it's there. >> i'm outraged, but not at the press. [laughter] like judge rothstein, i think the judge blew the case. there were no eel father and mothers, but the judge allowed to press on the other side of a bar by allowing a table that

required the jury to step around reporters in some case for egress. there was a gauntlet that folks had to compassed in order to get in the courtroom. the judge lost complete control of the courtroom and many of the things that allowed shepherd's appeal to be victorious at the supreme court, many of those issues have not changed. of course, the wires and the smart phones are very, very different, but today if a judge was fully -- fooler enough to do it, he could have an entire table of reporters sit next to the jury and create the same kind of circus. >> there were two aspects of shepherd. one, you've effectively addressed very nicely. the courtroom behavior. the other part was the press' behavior prior to the trial including demanding the arrest and the pretrial publicity.

the classic definition of pretrial is news coverage that may bias a community against a particular defendant. before we talk about specifics of that standard, do you regularly see coverage that would bias a community, or so you seldom see that kind of coverage? >> well, i was really moesly referring to -- mostly referring to where the courts said happen in free trial and the publicity, and you have to be careful it seems to me to assume that what happens in the press or what happens in the community can happen in the courtroom. as we've heard many times today, jurors are instructed depending on where you do it, and it seems to me that there are many influences, not just the press

that can make jurors be unfair. at the same time, most people come in the court wanting to be fair, wanting to do something that is cares addressed, and it seems to me that one must not assume that what happens and the supreme court should never assume that what happened in the community before the trial necessarily translated into an unfair trial. >> so you feel the two can be separated? the behavior in the community and in the press and what happens in the courtroom? >> not only can it be, but i don't think that there's any choice about it. we cannot take jurors, and we don't want to take jurors out of -- you make them completely disconnected from who they are. the members of the community, that they have the community rules and values and think bring

something with them about the common understanding of expected behavior. >> judge? >> well, let me say something good about the same shepherd trial, and that's a movie and a television series. [laughter] most of us have encountered the fugitive in some respects, and i always figured that was the great cultural contribution that the same shepherd trial made to all of us, but a more serious aspect. i think the suspicion that exists to the extent suspicion and distrust exist between the judiciary and the media comes from the pretrial area. most judges feel exe tent and comfortable in controlling a trial setting. they have discoer row control over -- zero control what the media does

before the trial either in newspapers or on tv, and the fear of tainting beyond repair a community in a high-profile case is, i think, quite profound. i know that for a number of years in seattle i sat on something called the bench bar press committee which was not some gymnasium, but a group of lawyers, judges, and reporters who all sat together, and in our community, the press itself voluntarily limited what they would talk about before a trial. there were certain things they would not print. now, that was their doing. it wasn't -- we department have anything -- didn't have anything to do with it. it was their desire to leave open the possibility of getting a fair jury in the panel.

>> does that committee still exist? >> yes. >> it does. and who meets? >> well, i'm not there anymore. >> whose the medium? >> the medium -- >> the traditional medium. that becomes one the key questions here. >> right. >> who is in on those meetings, and are they actually taking place anymore? i think you find in a lot of jurisdictions, those meetings that did take place in the 80s are not taking place today, but that's something we could pursue a little later. >> or if they are taking place, they may not be inclusive. >> absolutely. manny, what would you do at such a meeting? what would you think of such a meeting prior to the simpson trial? >> i'm not a big fan of that, and i'll tell you why. i'll address what i find as an extraordinary fallacy when it comes to media and our legal

system, and let me just say paraphernalia thetically is i wrote a lot of hats in that exft. my father was killed in the line of duty, his murder never faced -- i've dealt with cases resulting in death threats, and as 17 year journalist, i covered every high-profile case you can think of. this leads me to say the following with the greatest respect to my colleagues who are lawyers and judges is it kind of upsets me when i here non-media people, lawyers and judges, saying the media shouldn't cover this or that. they are telling us how to editorialize. my push back to that is, well, mr. trial lawyer, when you file your briefs in a certain way, i'm tell telling you what to address.

mr. judge, when you write your opinion on a high-profile matter, media doesn't say to include a, b, c, and d. you do your job. the trial does his or her job, and so does a representative of the media, so i'm of a firm belief that mainstream media in particular can be given the responsibility to deal with this in such a way these very significant issues in a way to do their job and to not impinge on the rights of a defendant, the 6th amendment right he or she has to a fair trial. >> ben, what do you think about this? >> well, i certainly respect manny's view. about a million views in the oj case we bumped into each other, and i respect his work tremendously. i haven't had the experience with judges in my role at the national judicial college where we train judges on dealing with the press. i haven't had the experience where they try to tell

journalists thou shall cover this or that, more than likely i'm not talking to you because of this upside. i have a lot of risk and no real reward, but i can certainly respect the view as a journalist, we don't have -- i mean, we jay schools, but i'm a lawyer as well as a journalist, so i have a professional responsibility and i'm barred in a couple states. there's a cannon of ethics for judges, and there's like a rule book. we don't have a global rule book, but an ap style book. they are on a case by case, newspaper by newspaper, tv station by tv station basis. we are hearing some of that, but it's not something that's up in my face. i think what we may be hearing is as a human being, it's probably right not to fill in the blank, put the rape victim's

name in, show the dead body, ect., and some of the rules that are human societal rules, most newspapers, when tim was my boss in minneapolis, you didn't print the victims name or the picture of a dead person, that's the general rule, but i think judges probably say if you are just being an ethical human being, here are things society is better off if you don't cover, and because of the ethics in their realm, they probably think that if you were just a good person as a journalist, there's stuff you just wouldn't put in the paper. >> well, let's talk about that because, in fact, what most of the standards for press buyer guidelines includes stuff like statements to the character and representation of the an accused person, admissions or contents of a statement, statements concerning a credibility or anticipated testimony and perspective witnesses, the performance or results of

examinations of tests or the result or failure of an accused to take such an examination or test, the possibility of a guilty plea, and there are a couple of others. i asked the panel to take a look at a "new york times" story from two weeks ago of -- and it, well, let me digress just a minute, and i'm going to ask the audience a question. jared locke near is guilty or not guilty? >> those people who say jared is guilty -- [inaudible] [laughter] >> the thought entered your mind, i guarantee it, and i knew

you were going to play the judge thing, but the thought entered your mind. the story in the "new york times" told us what jared did for the 12-14 hours before he allegedly shot john roll and congressman giffords. can jared get a fair trial, and before we get to that, for the judges, were these standards, the accepted standard of press bar guidelines, are they followed in a case like that? judge? >> don't look at me. [laughter] >> i'm looking at you. you're on the panel. >> i'm also on the ninth circuit and very likely could get the case on appeal, so i will say absolutely nothing about that particular case. >> okay.

>> nothing whatsoever. >> okay. that's a grave one. [laughter] >> i just saw a big come flying by. [laughter] >> it landed right there. >> thanks, alex, i appreciate that. [laughter] why didn't i realize that was going to happen? [laughter] well, i don't want to complicate it, and i'm not trying to duck, but the issue in this case most of us -- the reason you're not going to get much of an answer even if people were willing to raise their hand, the question is what is he guilty of? the issue is going to be as i understand it, an up sanity defense, and if that's the issue, than nothing that the "new york times" talked about goes one way or the other. >> and does that make it okay? in this case there was an insanity plea. let's use this as a vehicle.

nobody spoke in the last two weeks and said, oh, my god, they violated the heck of the press bar guidelines. have you heard that? i haven't. what do you think, manny? >> i think this is superb reporting. that's what mainstream reporting does. that's what people want to know. i don't think the article gives an opinion on the guilt or innocence of this man, not at all. it gives you a day in the life of what led up to the shooting. that's fine reporting. i have no problem with it. i want to address another issue you raised, tim, and that has bias in the community when you have a high-profile case. my background is l.a., and we have no shortage of high-profile cases in l.a.. in late march we started our up voluntary manslaughter case in the michael jackson matter. a huge case with a lot of

attention there. i think they are far more profound and significant the smaller community you reside in. if this trial was in texas, there are some problems, okay? in l.a., and by the way, as a trial lawyer and prosecutor, i have fought back against a change of venue motions, and a common argument for prosecutors is what, i don't know, 18 million people in southern california? you're going to find 12 in the box and six alternates to decide the case. that's a harder argument to make when you're in el paso or smaller communities, and at that point the legal mechanism that exists, thank goodness, is there is a change of venue and you move the case elsewhere because of free trial publicity. >> how common is change of venue today? >> that's a fair question. let's put our collective heads together. mcveigh, name another case that's been moved around? it's very rare.

>> very rare. >> very, very rare. >> i i would -- and i would think from my history, rarer than it used to be. what do you think, judges? >> well, let me just get to this buy addressing one thing that manny was talking about and that's the difference between los angeles and eel el paso. now, in the 1920s, maybe there was a difference between the two cities, but today, is el paso all that different from los angeles? [laughter] >> [inaudible] [laughter] >> well, things that happen locally are now known nationally, so in a way we have become a national community in many ways, a hot-button case in el paso is a hot-button case in seattle or los angeles. do we really have this notion of a local community you can do fine many in a big city, but not

other in the little towns? it seems to me, you know, this is a sort of a romantic notion that we've had and that is of the trial and ideal trial being somewhere in never never land, and there's 12 people not connected and you try to get them to clear their minds of who they are and, you know i think that was the case going back 600 years to the beginning of the common law and the jury. they picked everybody who knew something about the case beyond the jury. that was the idea. if you don't know about it, we don't want you on the jury. part of the notion of being on a jury is being part of the community. i think what we achieved now was the new media, but the fact that everybody is so plugged in is we have to assume, we in the

courts, have to assume that people come into the courtroom with ideas in their mind. they will have heard about the case, and we just have to deal with it. >> that's a very important point we've got to come back to. ben, you got some thoughts on both venue and murray; right? >> i do, and we didn't plan this. our little nonprofit just published the journal and the article is "after enron: have traditional media wrecked venue loss?" if you are in el paso, l.a., and you have google, linkedin and ect., what difference does it make? justice ginsberg said prom nans doesn't niecely produce prejudice. this does not require ignorance,

and in the age of twitter, you'd have to be under a rock. it doesn't matter if you live in tucson or tennessee. >> go to the murray case a bit. you had observations about that too, didn't you? >> well, i'm going to be in los angeles as a numerical manner with 60 press requests of media to get seats in the murray trial, the doctor who allegedly killed michael jackson. the court has granted me a seat, not to cover the trial, but to cover the coverage. [laughter] once -- [laughter] >> how did you swing that? >> i don't know. i like high-profile cases. one of the persons covering the trial is on my board. i don't want to anger her.

i will be monitoring the rulings. if the judge makes a venue ruling or sayses things from the bench that affects amendments, i'll where about that, but i think when people read the "new york times" and "l.a. times" or the "wall street journal" and when the stories have three different leads, it can have an effect of making folks think that reporters are biased or subjective or they are not covering a single objective trial, and we've never done this before. it's a crazy idea, and who knows, maybe it won't work, but the court thought it was a good enough idea, and the foundation is willing to fund it, and i will be keeping an eye on manny. [laughter] >> let's go back to alex's point. we don't need people to be

ignore rant when they come into the courtroom. well, wait a minute, if that's true, why should the press follow these kind of guidelines, and, in fact, i'm questioning whether they do, but is fair trial free press to billed on manny's point, a way to control the press or a realistic need? do you really needs in a trial today in 2011 for people not to know about the character reputation of an accused person or admissions or tests or anticipated testimony of witnesses? do you really need that? >> well, let me propose to answer you back with a question, okay? in most -- in all -- in most criminal cases unless there's some special reason, one the

rules of evidence is to exclude from the jury convict prior convictions of a deft because we all think it's probably one of the most prejudice things. there's exceptions to it, but are you questioning, for instance, whether a press coverage should put blatantly right out there about a defendant that they are five or six prior convictions for maybe the same crime, similar crimes, or maybe just other crimes? there are certain things we really would -- i'm not saying a judge should tell or even suggest to the press what to do, but if that is in prior pretrial information available to the community, then i think the courts have to be especially

careful this voir dire. i agree with alex that voir dire can cover a lot of things, and you can check with the people. you can do it in camera, not in front of the jurors, but find out what they read, and you can screen. if the judge does it right, you will find 12 or how many people you need who haven't read that particular part or have put it aside, but it certainly makes it more difficult if they start putting -- the more they put in that we would ordinarily exclude, the more difficult it gets to impanel a jury, and i think that's as far as i as a judge would want to go. we try not to tell the press what to do, but we certainly have to be aware of the fact that it may make it harder to empanel the jury. >> to build on judge kozinski's

point, you don't want them too informed, but just a little ignorant in the things you want them ignore rapt of; right? what do you think, judge? >> well, i think it's all hogwash. i mean, think about it, i still remember a time if it was reported on the news, and you would say the cause of criminal, and now we say the suspect. ..

as soon as we are not at all. >> let me put on the table to cases. one why gave you and another that we all know about. there is an an assistant hockey coach for the phoenix coyotes named rick speed hit a state police chief in new jersey called a press conference and said he was a part of a major gambling ring and connected to the mob and by the way wayne

gretzky and wayne gretzky's wife and this is one of the biggest gambling things that's ever written new jersey. the state police chief said that. what you think about getting the trial? >> i won't even know who wayne gretzky is. [laughter] >> he is a basketball player. >> no, he's a hockey player. >> i know he was a sports guy. [laughter] >> [inaudible] >> you know kobe bryant? [laughter] >> look, i don't take the position that -- let me -- ivies you have to start with the idea

that people are going to hear things about trials and cases, some of which will be the kind of things that point i or other will not have mounted them to hear about. light filtering out the public we can sort of preserve a certain benign level loved a mom's i think if it were ever to it is gone. we would just have to deal with it. that's the reality. and so what we have to do is not try to filter out with the public hears which i think is impossible and so the the kosoff dealer in but what we have to do is deal with the reality that people are going to hear things and that we have to either steer them out depending on whether they have affected their ability to be fair and educate them, and we have to assume those of us

who dealt with the juries and there are many judges here who dealt with a lot more than i have but i've had a few and why have seen is people who walk in whiff a great willingness to do the right thing and follow directions, and i've been amazed by how willing the jurors are when asked -- when you look them in the eye and ask them a question and say my god, you know, you wouldn't want to say this to your professor. something we don't want a say in the open courts and side bar but i have been quite amazed by how willing they are to do the right thing and it seems to me that is what is our race in the whole and why the other stuff is really trying to shield people. all it can do is to include into

thinking that we are getting people with your thoughts who haven't heard anything even i observe kobe bryant indictment study sports at all. [laughter] so i don't think you can avoid this. >> if this were a trial to correct the record, i do take issue with the idea hypothetically that same alleged murderer and the same alleged rapist doesn't matter, it matters tremendously. it matters so much and a journalist and a lawyer for the media, and i will give someone a couple of warnings and suspend them from their jobs if they don't put that alleged in there. it's stuff and just like the ethics for judges serious

journalists, i'm not talking about blotters, i'm talking about serious journalists, people like tony out here we don't take lightly the idea that the presumption of innocence is part of our jurisprudence and as the press we don't have a dog in the house innocent or guilty but it's not our job to come to them and we take it seriously. >> your initial question of the law enforcement official, it is completely inappropriate comments in my opinion i see that all the time and label it a symbol knucklehead factor and i see it all the time where you have a law enforcement official sometimes a district attorney for the county after they take on a pretty high profile case they go to the press conference and say completely inappropriate things. another example is when i covered the michael jackson molestation trial in santa barbara kelly to the county. the lead prosecutor there made some really inappropriate public comments in that case was

charged. so my thoughts on that are this, this knucklehead factor is pervasive, it's there, it is what it is coming and the remedy for the muckle hid factor is not to cut off our nose to spite the face by attacking the media and in any way the answer is whatever the knucklehead is that person has to be dealt with, whether it's the district attorney chastising that law enforcement official, whether it is the mayor taking the chief of police aside and saying you shouldn't be doing that, there are other mechanisms to address the factor but one answer is that i strangely want to avoid is in any way holding the media responsible when you have the local kids out there doing inappropriate things. >> i couldn't agree with you more, and it seems more serious in the sense that for the

newspaper to put this out, this information out, there is a countervailing good in the system. we want the newspaper and we want freedom of the press. there is a reason for them doing it for the police commissioner or district attorney prosecuting attorney to do is quite the contrary and. if it is against the cannons, whatever canons of ethics these people have and it's wrong so i agree with you foley that shouldn't be the basis for telling the press it's your fault. this dhaka crossed the line. he shouldn't have made these comments whether the press should have printed them or not -- >> you're point is the duke lacrosse case. had the prepress not been publishing a prosecutor was doing and saying, they could have well been railroaded.

>> but in this case, we know something about that police commissioner, we know something about him that had the press not published this we would not have known. >> it's important to make the distinction between what we say the press can or should or should not say and public officials say. if the police officials say this guy is guilty, presumably they know things not in the public record and they have information what they say can be quite prejudicial, but here you have the situation of a public official that has something he shouldn't is the press supposed to be silent about it? but the press is not supposed to be silent about it, then what happens when a public official says it and the price supports

why is that okay? it seems to me it isn't pressed supporting, they are having an out of control public official prosecutor or police official doing things or saying things they shouldn't be saying. >> when you meet some local head and watch the knucklehead inaction -- do you go with it? do you think about it? how do you evaluate the knuckleheads material? >> that's a tough issue because of the one hand i am a media representative and if the knucklehead this is something that sort of is pushing the envelope, i am still in plan to report it to be honest with you, but the next break the legal analyst i may, in my legal commentary that it was inappropriate for let's say the head da to make that comment because it is in violation of

the canons of ethics in the state of california to drive your point home. so i report it. and the other thing i want everyone to know contrary to the popular belief, i think the mainstream media has a tremendous capacity to bring themselves in. it's happening more than once in l.a. on a particular case the law enforcement has asked me not to go public with the name of a suspect because this close to catching him and you know what, i don't mention the name. for my station channel five los angeles, blood ghats and gloor, guess what, it's not on our show. we don't put that video on. the name of a rape victim, we don't mention the names. so the media has the capacity to follow certain rules if you will. >> this might be a slight digression but it's crucial. he make that decision. you're a responsible by. we love you. he made the decision for many years or need the same.

speed and deadpan are now changing the ball game. they don't look at it the same way. and as your opinion of that and then the judges are you prepared to deal with this been and speed? how does that change -- for you? >> it doesn't change the ball game and i tell you why. because out of the mainstream media representatives that you've indicated comes with the territory when you live in a free democracy it's the price we pay. am i happy about it? and i am talking as a citizen, not as a journalist or trial lawyer, not happy about it, not precede the there's tabloids of their common never liked the stuff, but it is what it is. it's part of the price we pay for living in a society and the space society that we do so we just deal with it. in terms of how to address it if one is a judge the mechanisms at

the disposal of the judge include in the most critical tool when you are picking the 12th for the jury box. you'll handle a 50 page questionnaire in advance of the trial to screen out the jurors switcher to deal with the bayh yes issues and then you give the lawyers even more time than you normally what to examine the witnesses in the broad your process but that is how you deal with it, and we just have to live with these other media outlets that exist. >> how do you view the sensationalist media? does it affect this issue? >> well, you know, i've been impressed throughout the day and this is just another example about how we are treating some things as brand new that have been with us forever. i don't know from gaulker or whoever but i grew up in brooklyn with the daily news and if you have grown up with a seat

like the daily news or, you know, now i guess "the new york post" as become the same way if you've grown up with of those things what is the difference "the new york times" dillinger please help my some careful description of the case. if they are on the front page would have the guy kills and rapes girl, and, you know, and what is this? this has been with us forever. may be different now that it's on all these different things, but judges presumably have always been able to work through the problem i don't know if there's anything a judge could do about it. why would we want to? this is the price of living in a democracy. there's a lot of things i see on the news that idled like that, you know, judges, they are not there to police in the media. the press or the new media.

>> moderators, personal point of privilege, i urge everyone to read gaulker and did spin and tmz, and i will contended that he will come away convinced the new york daily news is "the new york times". it is definitely an uh-oh. did status starting to affect the entire coverage of sports and they don't believe in multiple sources. they are okay with rumor and innuendo. if you don't think that's changing the coverage game, it is, and it's a threat. [inaudible] >> my personal pet peeve with

the murder -- >> so you have the reporter who doesn't use suspect or whatever, and but let's -- i'm writing this, we are publishing it pretty much now we don't wait for the next morning paper anymore if it gets posted online immediately, and, you know, right next to this other guy that has no compunction at all, as much leadership as many newspapers and has no compunction at all about saying the killer and to say, you know, you can listen all you want but you're not going to change the reality, and why am i down by this code when the guy next to me is indistinguishable the? >> that is a great question and tim is a top editor and i have

seen the bigger paper and have had a different perspective on that question because most reporters or mid-level editors don't know ultimately get to decide whether to publish or not. the executive editor much like the judge decides as a matter of discretion whether or not to publish something so when i discipline that person it's not that i'm disagreeing with his or her subjective opinion it is a technical skill issue. i mean, literally it is like preposing versus post posing an adjective. its policy -- >> if the talk back to you and say look, you are teaching me a skill that was a good it is not good for 2011 and it's not going to be -- you know, the report is 25-years-old and i've got 40 more years in the business and it's not going to be the way things are done. how do you answer that?

>> like manny, i think that gaulker and speed and those folks are a small subset of who we are and in the polite media circles. that may be changing, but right now, if you get 100 working journalists to see their family -- i'm not talking about a lawyer that does it in the basement, i'm talking about professional people, and some stuff set of them to work for speed and gaulker, the folks that make their living doing journalism will look at those folks away that the top and lawyers in this room will look at an ambulance chaser who is violating all kind of ethics rules. maybe that is changing at a faster rate than i think. maybe i'm naive, but i don't think so. our business means the newspaper business has tremendous difficulty with debt loads and cost cutting and a smaller staff, but i have yet to see the news meeting where we say, you

know what, because things are so tough we have to bend over ethics rule and we just have to change a little bit to get some sizzle. it doesn't work that way. he would be repudiated. >> speaking of sizzle, one last thought to type into your excellent comment, the tmz, gaulker, deadspin, they were running 1865 and i just finished the six roy gutman hunt, the 12th day search for john wilkes booth after the assassination of lincoln. you ought to see what those newspapers in that day were riding. he's not a suspect, he's a killer. they are going to track him down. the major publications in new york, boston, d.c. what right flat-out lies just to sell newspapers so this is a problem and issue that has been with us since the birth of the country -- >> the question will always be

what do the audiences want? and do they want the credibility or do they want the other? with that, we will turn to audience and decide what they want and invite you to ask questions as understand the rules i have to repeat the question. i will try to be trustworthy. yes? >> who is a valid journalist today and it's about the audience wants come to have a limited number of seats during the trial. could you grant access to? dmz -- tmz of floral or other media? how you do that? >> access is important. who do you grant access to? the traditional media or the gaulker and the deadspin? >> here's why i'm glad i'm not a judge because it is the trial judge in conjunction with a

terrific press information officer for that courthouse. we will work together to come up with a guideline to ascertain who gets the seat in the courtroom. mainstream media will be at the top of the list and on the lower realm will be the bloggers and below that will probably be the sensationalistic media outlets to him has just referenced. not everybody is going to be happy, but it is what it its, this limited seats and with the sensational media outlets maybe you rotate them so you get one each day. they will get in the courtroom, they may not get in every day and all the fall back not everyone is happy, pete wasn't happy, but i'm reminded sitting in the extra courtroom with the tv screens all i can take off my shoes and even though not, so they can sit and that other room with the tv screen and still watch the proceedings so it's not like you are being denied access completely. they will have access but it's the trial judge that have to make the tough decisions.

>> judges? what do you think about questioned? who do you grant access to? >> i think that is a difficult and actually quite profound issue because ultimately, it's asked to questions. first of all what is the press, and today in a way anybody can be pressed, tweeting, blgging, there's lots of ways, and the second question is do we -- should we, can we as public officials particularly as courts make judgments as between the tiers of the press, legitimate carless legitimate, least legitimate, illegitimate. and i am highly uncomfortable, i don't have the problems that the power courts have, we have the rule that says one camera and whoever asks for it first gets the camera and devotee has to feed off that so there is no

cost to us because we will not allow more than one canada or sometimes to be 61 feet, and so it's first come first served so i don't know the answer to the prior question is can anybody -- i think somebody has to -- and dave madden probably knows this and maybe has the answer but we have a list of authorized press outlets -- >> quite frankly i don't rush into the issue if i can avoid that -- >> you do credential? >> we identify people interested in the case and if push comes to shove and we have to make the choice, we will. and generally it pertains to what we think is a group which in the largest audience we think we can as a result of that system. >> i'm curious after the

criteria -- i don't know dead skin. remember today i haven't read anything that i've been told that they were worse than the daily news. [laughter] so let's say did spend comes and shows to their numbers for last year, and they were as "the wall street journal" may have had a nice little group did spin has been reaching hundreds of thousands of hits does that mean that they would get -- you've raised a very interesting question. >> it's been around for awhile, that question, and quite frankly, it may not be at my salary level if the decision is made up the line. >> the public for the ninth circuit. we would -- >> we have a situation which we have these requests from agencies we don't necessarily consider to be journalistic in nature or appealing to the

general population or what. what i said at the outset i firmly believe in this but i don't want to be in that position to have the credentials. we shift the to the media and say we have to figure out how to do this. okay it would be my preference for come to that kind of situation we go to the media and ask them to point to the committee to work things things out. >> [inaudible] the press were not very nicely. >> before you go too much further away this would come up i would think would be through an application by one of these non-media media to the district court who would deny at at which point there would be an appeal to the circuit about this issue.

i could easily see this happening this way. >> and it is coming. it is absolutely coming. this is as the person in the audience said, this is an absolutely eminent issue that you all need to think about. this fight is going to reach a crescendo. ben wants the floor want to say one other thing. there has been a word used throughout today that i do not allow my students to use. i do not allow them to say the media did this. i force them to cite a specific outlet because today none of us know what the media is, and that definition is up for grabs. >> kempinski glenna degette muskett of the michael jackson trial but if anybody is a member of the non-media it me, i was a

wall street journal reporter and executive reporter ret malae vana public policy center that trains judges and journalists so i called the court and the conrad murray case and i already got him an e-mail from linda deutsch saying they aren't and let you in here. i sit here is what i want to do, people are always wondering why this newspaper covers a this way, with this tv station covers a this way, i want to cover the coverage and also cover the judge's ruling, sixth amendment, first amendment issues. and the person i talked with went to the hid public information officer, and really quickly, within half an hour, she mailed me back you've got a credential. i was shocked, frankly because i knew -- >> [inaudible] [laughter] >> there were 60 applications commesso 40 people or not we to cover the trial who want to cover. second point, i won't mention the judge speak of me because she is a sitting judge right now in missouri, this judge has a

high-profile murder case involving a teenager killing another teenager and she came to my office at the national judicial college and had the exact same hypothetical and said what do i do? and of course i said first of all this is my opinion, i don't know but here's what i would do. i would take your local newspaper in colombia, columbia, missouri, give them a credential and then i would about in the concentric circles and pick up the kansas city star and then i would go out to the legitimate regional papers who really want coverage, chicago, but ever committed that "the new york times," wall street journal, and what a credential as well i would go there. i would look at proximity first and then audience reach, and i would also consider who is coming every day and who is cherry picking. >> yes? >> what you've done, then -- bne, is limited the definition

of the media to newspapers, you just said let's start with newspapers -- >> i didn't mean -- well, you're right, i mean tv stations, radio stations, if there were any more that covered news, daily over weekly just because of frequency, and then going out -- and i with the audience if you're talking about sleep, that's different than ten maguire dhaka, although you probably have a great audience. the are a legitimate online news product, and then i would get, again, looking at the same model but i misspoke when i spoke, i didn't need to exclude electronic media -- >> let me pose for requested -- you're supposed to be asking questions but i have a question because it is a follow-up on the question that was asked. what is our interest in being

the one to screen media? who judges? we are sitting there, people in applications, there are a couple of ways you could decide. one is by law to which we tend to think is fair. so they pulled it out and you have 13 seats and the first 13 the author is first-come, first-served, and the other which we are talking about now is by some kind of judgmental ruling who's got the biggest circulation and who we think is a legitimate blog or -- >> those are the judicial ethics and talk about transparency and feet in the judiciary is 1.2 or something. >> some people might think it was diminishing faith in the

judiciary for the judge to sit and pass judgment on which of the media was allowed in his or her courtroom so these are not -- it's not that simple that you could take a very broad ethical, setting out some ethical standards and move it into something as vague as the area we are getting into. i'm not sure what our interest is in us being the ones to decide who's the good guy and -- >> especially if you're in a situation where you might be supporting a dying media over a growing media and that's where this is going, too. >> it is a comment and i apologize, a couple of points in massachusetts right now we have a much worse name but it's essentially bench press

committee. we still meet. this year we did ask a border that represents the point of view on that committee we are just changing our cameras on the courtroom statute, rule 119 which is essentially open up access to the court to the citizen brain surgeon palm, and other words, it's very simple, if you register for software and you say yes i'm giving you my e-mail and this is my publication, that's enough to get you into the courtroom and it doesn't fall on the court to make the determination, it falls on the court to public information officers to win the other cases.

>> new subject. [laughter] >> trial judges sometimes get advice from national organizations in high and medium profile cases to have this pre-trial conferences which the lawyers and the press and anybody else as you said would be involved to sort of set the rules for the trial. from this conversation do i gather that you all think that that's a bad idea? >> it is pre-trial press conferences are something that's used -- i'm sorry, pre-trial conferences, i apologize, the pre-trial conferences are with toole that is used to figure out how the trial will be conducted, what does this panel think of that? >> i made 13 trips to eagle colorado and i covered the kobe

bryant alleged rape case, and dp audio was extraordinary committed a thing that job, and there was say meeting in advance of the trial between media representatives and the pio and i thought was a fabulous idea to work out where that bathroom is going to become aware of the telephone lines -- merkel the laptops, will there be an extra room with a television screen for the overflow? mcmath as an idea, and that's why when you have that kind of advanced meeting in the coordination, the actual trial coverage goes wonderfully so i'm a big proponent of that, but i would conclude in that process trial lawyers or judges because then they violate any ethical restraints that they have in terms of dealing with the media, but i think a good pio and media representatives can get the same job done. >> you may not notice, but terrie who was the judge in that

case flew to reno in advance of the meeting you had and met with my predecessor and with the head of the national judicial college for advice and counseling. i would bet you a nickel that was his strategy and not the pio. >> they are carrying out the orders if you will, but all i'm saying is mano a mano the judges and lawyers of the media are appropriate, but i'm glad the judge did that because i think more judges need to do that sort of thing when they have to do with a high-profile case. >> judges like to weigh in on that one? you don't want to weigh in on the last question? okay. any of the -- back in the back. >> let me go a different direction a little bit. what are your feelings on apart from the situations where the judge has already proposed gag order on the attorneys what are your feelings on the attorneys during the case either blogging about the case as it goes on or

tweeting as it goes on not necessarily feeling it in the courtroom, but as soon as they leave or, you know, the daily wrap up type of situation, you know, they are not talking about someone who got the journalistic ethics to deal with although they do have sort of the bar association committee aba ethics they have to be reporting under, but that's -- that does happen now, and as judges how you deal with it and as journalists how do you deal with that? >> any lawyer that did that without informing the judge and asking the permission is taking its life in its hands. in the court and anything like that is communicating in regards to the case and the staff and

the office of perhaps his family and the pivotal talks and that sort of thing that stays but i think anything that he makes by way of a public statement would of course implicate the tar aisle to the trial the right of the kind of cases of course that means defending mostly the issue the due process rights and i can't imagine -- i'm not a trial judge, but with little experience i've had i can't imagine allowing a lawyer to do that and if i found out a lawyer did it without having informed me and informed the other side, we would have a big problem. >> i just think especially i couldn't tell whether you were hypothesizing the gag order or

not. even absent the gag order that is not what they are supposed to be doing. they are officers of the court. >> personally, as an attorney i encountered that situation where we have lawyers on the other side who are reading about the case as the case goes on talking about to the other news media outlets, and so how do you as judges -- you know, we've had a judge's where they said that's fine just try not to do it again, barely a slap on the wrist if that and so the question is how do you counteract that situation? >> if i said don't do it again and i found out it was done again then you would have a gag order. it's pretty simple if you violate a gag order then you are in contempt of court. >> there would be no second chance -- this is the kind of thing i would say to the lawyer

should know and maybe i'm -- this is the first time i've heard of anybody does it and i was just thinking a lawyer with no to clear the air and asked the judge -- >> what about a lawyer -- let's go down and be a trial court judge, how about a lawyer that checks the facebook page of the jurors and manages his arguments according to the profiles of the jurors, if you think i'm looking to become joking look at reuters yesterday the byline is drawing in writing and he quotes three lawyers on the record. what do you think? >> [inaudible] >> they went on the jurors and did what? >> the trial lawyers during the

trial managed their jury selection and ultimately their arguments and behavior during the trial based on the preferences of the prejudice etc. of the jurors be stila facebook pages. >> they told us in a prep practice not to do that. >> [inaudible] is she there? >> what's wrong with it? >> i didn't say anything was wrong with it. >> this is between the lawyer speaking out and a lawyer observing information that is available of this and i think that it is certainly nothing wrong and maybe quite a bit wrong and that not doing that and it pos is a question for us and that was discussed earlier about whether or not you want to

have numbers for the names for the jurors and i think that's one of the reasons it isn't being done, the way we don't know the juror's naim you only have a number. >> and in many cases, they used to go out and hire these very, very expensive jury consultants who would come in and god knows what research needed to find out about the jurors, and then the head of the psychologist's looking at their backgrounds and histories to tell who's going to be -- this is just probably a lot more accurate -- [laughter] these people have facebook and the obviously don't care who knows it. >> how about the defendant on trial for his life and i would make a different argument based on the fact that you're in little league and on in little league or you like soccer and i like soccer or something totally

irrelevant to the trial because i know it will push your buttons and the example it's not a murder example but it's very interesting specific one an african-american man on trial for rape. the traditional jury consultants may say what don't occur? they went to the facebook page of this particular woman in this doherty, lots of african-americans on her facebook page. are these issues that ought to be impacting the administration of justice because we happen to have this new breed technology that allows us to probe into people's clinical personal lives. maybe they didn't even friend you. maybe you allowed your consultant to kind of one man and a view the facebook page. no problem with that? >> lawyers have been making these kind of arguments -- i think they keep saying that -- i said this in the other context

the new wine bottle theory about the law and some of this is applied today, the lawyers have been doing this forever. they figured, you know, you go to a certain town where baseball is really big and the team is winning. okay? and you know that all those jurors as soon as they leave the courtroom they are going out to find out what happened while they've been sitting in court so you've made your closing argument and knowledge about baseball cultural with that? i've been a lawyer i must confess i've probably done it -- >> you never wear brown shoes and cord -- [inaudible] [laughter] there's some sort of suit of lawyers you don't wear vests and not sure that it's any different. >> the other issue in what he

said is can personal lives beyond facebook? i would contend not, that is an emerging legal issue, too, things on facebook and twitter going to be considered personal, probably not. one more question. >> there is a fine line there and i don't want to pick on facebook in particular, but there is a fine line between information that they put out there as the surgeon networking site and paying money to do one of these internet searches the of the picture of the house and get their family and all that and they may well be aligned which the lawyers are not to cross. i would have to know more about that -- >> i predict he will be getting a case like that before too long.

>> one more question. okay, good. i'm going to close with -- i'm going to close with one. it's obvious that my dad's at fisa of never getting between journalists and lawyers on their way to the bar is a good idea. my last question is fair trial free press alive or dead? this time you can say a little bit. ben? >> it's as alive as it ever was. our supreme court, justice ginsburg looked at the enron fact and jeffrey skilling as heated as he was and pervasive as the publicity was and did the detailed analysis and said he got a fair trial. as a matter of our constitutional jurisprudence, if he got a fair trial, then it would be virtually impossible for somebody not to get a fair

trial. >> you know, everybody here has seen or heard of the movie chicago but hardly anybody knows that there was an earlier movement, 1942 called roxy hard which is basically the same story, and much of it happens in the courtroom and the same character, roxie hart and the husband and the lawyer, what was the lawyers name, billy -- the interesting thing about it is we are in the court, this is 1942, and a microphone, and as the testify he cuts to the commercial in the middle of a trial and what happens is the testify they say something spectacular and eight or ten reporters would come with cameras and stand there and the judge would stand up --

>> i don't know i give the impression that in the earlier this the media change with the radio, the scopes trial, the help in the trial we went through some bumpy periods, some bumpy periods in that there were excess in the courtroom and i think what's happened five think we have become week, the judiciary and the legal profession have become more aware of the dangers of having this kind of access and we would love to control it, and we also -- the public is going to become more sophisticated about the reality and the fact what happens in the court really is different because you hear both

sides because you get cross-examination and you get arguments, you get a fair presentation, and i think that we are actually better than we were and we we ought not to do to keep this alive is to dilute ourselves of thinking that somehow we can reverse the process and the fact. >> if one thing happens and it is this what we let you in on a little secret for trials. when you have a high-profile case and you are trying the case and the next day you are going to find out what judge you are assigned to, the only thing you pray for is believe it or not, not a judge in planned to ruin your favor on this or that or maybe advise your favor because you're on the prosecution size that raises the issues and may be a reversal down the road so you don't want that. all you precourt when you were a trial lawyer in the high-profile case is the judge who controls his or her court.

that's all you want because if you have a judge who is confident and sharp and rains in those trial lawyers, because we are, you know, you give us an inch, then what will happen if you allow the camera in the courtroom what will result is a thing of beauty. the system works magnificently. when it has not, the fall isn't believed ronald in the media coverage of an event but the fact the judge failed to control the courtroom, and it is vibrant if we have head coaches, the judges who are doing a good job of doing exactly that. >> judge? >> there's not much i can add to that. i agree -- fighting alive and well and challenging. i think what we are seeing is our century challenged in making these to constitutional

guarantees together. we know there's tension, there's always been tension, and i don't know if when the founding fathers drafted the new the intention or put it in any way or just didn't think about it, but the tension has always been there and each generation as we all have new media or things come our way, whatever we are calling it now, we judges get lawyers and reporters have to make it all fit together and it's always a challenge and there are different things in every century and we've spent the day talking about what you need to the century, some of it is unique, some of that i would say is in old bottles. we've got the court system, the judges, lawyers, we just have to make it work. i don't think that we are any

less creative than we've been in other generations. there are new issues we have to do some defining of these new things that are coming along the we are just as capable and just as creative and i think our system will handle it. >> there you have it, free trial, free press is a life. [applause] that will bring the conference to a close as you might imagine --

on capitol hill about information sharing and the release of thousands of classified documents. witnesses included intelligence officials from the defense and state department as well as from the office of the director of national intelligence. the hearing is chaired by connecticut senator joe lieberman who recently introduced the bill and stopping tweeting beat wilikeaks by making it a crime for anyone to publish the name of a u.s. intelligence source. this is an hour and a half.

>> the hearing will come to order, good afternoon and thanks for your patience, senator collins and i were able to vote early and i'm going to have to step out for about 15 minutes and about a half-hour but i shall return. in just six months and today we will mark the tenth anniversary of the attack of 9/11 and honor the memory of the nearly 3,000 people who were murdered that day in america. our morning mackall for their def have always been compounded by the knowledge that those attacks might have been prevented, certainly that was the implication of the 9/11 commission report had our intelligence and law enforcement agencies shared the disparate facts gathered enabling us to connect the dots. to prevent this from happening again, congress passed several always intended to strengthen

information sharing among criminal federal agencies. those acts included the homeland security act, the intelligence reform and terrorism prevention act and patriot act. since then the executive branch i think has made significant improvements in its information sharing systems and there is no question far more information is now available to partners and other agencies to have a legitimate need for it. all of this intelligence as further brought together at keynote such as the national counterterrorism center where it can be examined by intelligence specialists from a variety of agencies working together under one roof. and as a result, we've seen a number of successes in the recent domestic and military contractor some operations that are things to that kind of information sharing i'm going to set those examples in a moment. this committee's recent report on the fort hood attacked shows

information sharing within and across the agencies is nonetheless still not what should be and that allowed in that case a ticking time bomb family accused of killing 13 and wounding 32 others of the fort hood to radicalize right under their noses of the department of defense and the fbi. so, we need to continue improving our information sharing strategies. now why fear the wilikeaks case has become a rallying cry for an overreaction for those who would take us back to the days before 9/11, when the information was considered the property of the agency that developed it and wasn't to be shared.

the bulk of the information illegally taken and given to wikileaks would not have them available had that information not been on a shared system so the critics of information sharing argued. but to me, this is putting an ax to a problem there requires a scalpel and misunderstands the importance, misunderstands what happened in the wikileaks case and i think miss states the solution to the problem, we can and must prevent another wikileaks without also an ailing federal agencies to in fact perhaps compelling federal agencies to reverse and turn to the pre-9/11 culture of hoarding information. we need to be smarter about how information is shared and appropriately balanced securities concerns with the legitimate needs of the users of

the different types of information and that is the technology for doing so already exist. some of them i gather have been put into place since the wikileaks case, and we need to make sure we utilize them as fully as possible across our government to get the bottom line is we cannot walk away from the progress we have made that has saved lives. i will give you a couple of quick examples. the u.s. special forces and elements of the and community of shared information and have worked exceptionally well together war zones to combat and disrupt terrorist groups such as al qaeda in iraq and the taliban and afghanistan and that wouldn't happen without information sharing. here at home we have used it to enhance the role of state and local, trouble sector entities in our fight against terrorists and those efforts have paid off most recently in the case of the chemical supply company in north

carolina that he looted the fbi to suspicious purchases by a saudi arabian student in texas who turned out to be building in protest explosive devices, so we need to fix what is broken without going backwards. today i look forward to hearing from each of the witnesses on with your planning to do to improve the security of the networks and information while still ensuring that information is shared effectively in the interest of the nation's security. i would also like to hear how the congress can work with you on these efforts either with legislation or through more targeted funding. ..

>> potentially prevent the attacks on september 11th, 2001. improving this communication was a critical part of the intelligence reform and terrorism prevention act that senator lieberman and i authorized in 2004. the wikileaks breach should not prompt the need-jerk retreat on the sharing of vital information and its use by those analysts who need it to do their job. we must not let the astonishing

lack of management and technical controls that allowed a private in the army, allegedly, to steal some 260,000 classified state department cables and some 90,000 intelligence reports to send us back to the days before september 11th. unfortunately, we continue to see agency cultures that resist sharing information and coordination with their law enforcement and intelligence counterparts. almost ten years after 9/11, we still witness mistakes and intelligence oversights reminiscent of the criticisms predating our reforms of the intelligence community. among those cases where the dogs were not connected and

information was not effectively shared our senator begich michelob, the so-called christmas day bomber, and the fort hood shooter. at the same time as the chairman has pointed out, there have been several cases that underscore the incredible value and benefit of information sharing. an example is, as the chairman has noted, the case of the man who planned to bomb the new york city subway system that was ported. as such successes remind us, we must not allow the wikileaks damage to be magnified -- magnified to fold. already the content of the cables may have compromised our national security. there have been news reports describing the disclosure of these communications that is having a chilling effect on our

relationship with some of our closest allies. more important, however, they likely have put at risk some of the lives of our citizens, soldiers, and partners. longer lasting damage could occur if we allow a culture to re-emerge in which each intelligence entity views itself as a separate enterprise within the u.s. counter terrorism structure with each attempting to protect what it considers to be its own intellectual property by not sharing it with other counter terrorism agencies. if those types reappear or worsen, we will certainly be in more danger. such a step backward would run counter to the policy goals embodied in the 2004

intelligence reform act. articulated by law enforcement and intelligence community and underscoring multiple hearings before this committee. that is to effectively detect and port terrorists, the need to show must replace the need to know. the need to share, i apologize, must replace, the need to know. i would also like to hear today about possible technological solutions to the problems that allowed the disclosures to wikileaks. for example, my credit card company can detect out of the ordinary charges on my account almost instantaneously, yet the military and intelligence committees were apparently unable to detect more than a quarter of a million document downloads in less than two

months. surely the government can make better use of the technology currently employed by the financial-services industry. it is also notable that the intelligence community was already required to install some audit capabilities in this systems by the 2007 homeland security law, which we offered which could well have included alerts to supervisors of suspicious download activity. had this kind of security measure been in place, security officers might have detected these massive down loans before they were passed on to wikileaks. technology and innovation ultimately should help protect information from unauthorized disclosure while facilitating the appropriate sharing of vital

data. i would also like to explore, potential implementation of parole based access to secured classified information. instead of making all information available to anyone who has access to a classified system under this model information is made available in a targeted matter based on individuals' positions and the topics for which they are responsible. access to information not directly relevant to an individual's position or responsibilities with require the approval of a supervisor. we must craft security solutions for the 21st century and beyond. we live in all world of tweets and it instantly viral videos on youtube. we must strive to strike the

appropriate balance that protect classified and sensitive information while ensuring the effect of sharing of vital data. we can use the most cutting edge technology to protect the traditional tools of state and intelligence. those tools of relationships and information. thank you, mr. chairman. >> thank you, senator collins, for that awful opening statement to we ought to take the witness is before us for coming and also for the thoughtful written testimony that you have submitted to the committee, which we will without objection include as part of the record. now we will begin with the honorable patrick k. kennedy, undersecretary for management at the department of state. welcome, mr. kennedy. >> thank you very much. chairman lieberman, ranking member collins, senator brown, thank you for this opportunity to address information sharing

after wikileaks and to discuss executive branch efforts to insure information is shared effectively, it securely, and a manner that continues to advance our national security. state department and intelligence seek partners have long been working to obtain appropriate information sharing and protection. after wikileaks we have focused renewed attention on achieving these dual objectives. from my perspective, serving over 30 years with state overseas and in washington and serving as the first deputy director of national television -- intelligence for management, especially appreciate your efforts. i can assure you that we estate remain fully committed to sharing our diplomatic reporting within the community with safeguards that are reasonable, pragmatic, and responsible. state has historically communicated between washington and overseas posts through messages which convey into honorable relations blitz into our foreign relations and candid assessments of overseas condition. this reporting book provides

crucial affirmation that is essential to advancing our national interests, and we continue to this day to share this recording through automatic dissemination to over 65 u.s. government agencies. in late november, 2010 when the press and wikileaks announced the release of the purported state department cables, we immediately established the 24 / seven wikileaks working group. we suspended super gnat access to the netcenter diplomacy, the database state tables while retaining all of our other distribution systems for the other agencies. we also created a mitigation team to address policy, legal, counterintelligence issues. for continued mitigation efforts both within state and the interagency, we continue to deploy an automated tool that monitors states classified networks to detect anomalies not otherwise apparent backed up by a staff to analyze these anomalies. cable distribution has been limited to the joint world wide

intelligence communication -- communications system and our traditional system that reachesi said, to 65 agencies. we are now evaluating other systems for distribution such as a searchable database that relies on me today that. state has continued to work with information management issues with the enter agencies to an interagency policy community chaired by the white house special adviser for information access and security as well as through existing at pcs. the challenge is grappling with the complexities are threefold. the first is in sharing information sharing policies are consistently directing the use of technology to solve problems, but the other way around. post nine / 11, the focus was on providing technical solutions. as a result technical experts were asked to develop solutions to the barriers. the post wikileaks environment reminds us that technology is a tool to execute solutions, but it is not in its of the answer.

simply put, we must more consistently sort out what we need to share before determining how to share it. connecting systems and networks may provide the means to share information, but one must still manage and share this content in an effective and efficient way, as both of you mentioned in your opening statement. the national security community must do a better job of articulating what information is appropriate to share with the widest appropriate distribution, and what is more appropriately confined to narrow audience across the community in order to ensure adequate safeguards. the state department believes the play in which we share messages through our traditional means of dissemination and the steps that we have taken since november are leading us firmly in that direction. the second main challenge involves each agency's rigorous adherence to existing and improve information security policies as both of you have noted. this includes improved trading in the use of labels to indicate

appropriate dissemination, the executive order on classified information establishing the basic levels of classification. from that foundation individual agencies may still have their own captions with the note however mission should be disseminated because not obviously every person with a security clearance is every piece of worldwide information. agencies that receive information need to understand how to handle that information so that it is not an appropriately made available to to widen audience. omb has directed agencies to address security, counterintelligence, and information issues. we believe our mitigation team serves as a model for broad cross-discipline coordination for government's bringing together the various subject matter experts. many information sharing and security issues can be resolved at the agency level as long as there are standards in place for agencies to execute. for the most part, standards have been created by existing interagency bodies, but there

are some areas where for the coordination is needed. the third main challenge involved the coordination or governance of information management. numerous crimes are wrestling with the issues related to technical logical aspects such as standards, and data standards, centers, and networks. others are wrestling with the policy decisions of who should have access. new government structures to coordinate information sharing have been developed, including those focused as you rightly note on sharing with state, local, and tribal governments as well as foreign partners. in keeping with the first challenge, these new structures should maintain or increase defining the content of shared and protected as well as technology. each agency must be confident in the security process and procedure is applied in a uniform and consistent manner and other organizations. in addition it must be understood that material originating in one agency will be treated by other agencies in accordance with mutually understood handling

instructions. the state department shares information with the intent of providing the right people with the right information at the right time. we will continue to share our diplomatic reporting in order to enhance our national security information. we recognize the imperative to make diplomatic recording and available analysis available to the entire community. the state will continue to do this in order to fulfil our mission. we remain committed to both appropriately sharing at protecting critical national security information, but this commitment requires, as you have noted, addressing multiple complex issues. we must find the right policies, the right technologies, and we must continue to share. thank you for this opportunity to appear before you today, and i look forward to working with you on these challenges. i will be pleased to respond to any questions you might have. >> thank you very much, secretary kennedy. now we will hear from teresa takai, acting assistant secretary for networks and communication integration, chief

information officer in added sales department of defense. welcome. >> thank you for that introduction. chairman lieberman, ranking member collins, senator brown, thank you for the invitation to provide testimony on what the department of defense is doing to improve the security of its classified that works while ensuring that information is shared effectively. as noted, i am teresa takai, and thus serve as the principal adviser to the secretary of defense for information management, and permission technology, and information assurance. as such i am responsible for the security of the department's efforts and and coordinating departments mitigation efforts in response to the wikileaks incident. with me is mr. tom ferguson, principal deputy undersecretary of intelligence. he serves as principal staff adviser for intelligence and is responsible for policy and strategic oversight of all dod intelligence,

counterintelligence, and security policies, plans, and programs. delegated by the undersecretary for intelligence. in this capacity mr. ferguson oversees the development and implementation of the department's information sharing policies. the department immediately began working to address the findings. mr. ferguson and i have submitted a detailed statement for the record, but i would like to briefly highlight a few of the department's effort to better protect its sensitive and classified networks and information while ensuring its ability to share critical information with other partners and agencies if continued. immediately following the first release of documents on the wikileaks website the secretary of defense commissioned to internal dod studies. the first to erected a review of the ad information policy. the second focused on procedures for handling classified information and forward deployed

areas. results of the two studies reveal a number of findings, notably that for deployed units maintained and over reside on anvil electronic storage media. secondly, rolls or responsibilities were detected and dealing with an insider threat need to be better defined and limited capability existed to detect and monitor and now must behavior. the department immediately began working to address the findings and improve its overall security posture to mitigate the possibility of another similar type of disclosure. the most expedient ready for the vulnerability that led to wikileaks was to prevent the ability to promote large amounts of data from the apartment -- department's secret network such as removal media while allowing a small number of computers to retain the ability to write removable media for operational reasons. the department has completed

disabling the bread capability on all of its super gnat machines except for approximately 12% that maintain that capability for operational reasons. largely in deployed areas of operation. the machines that maintain right capabilities are enabled under strict control such as using designated kiosks with two-person controls. we are also working actively with national counter intelligence executives on its efforts to establish an information technology insider detection capability and an insider threat program. mr. ferguson's organization is leading that effort for the department of defense, and they have been developing comprehensive policy for a dod, see eye, and saturday a program. in addition dod is developing web enabled information security turning that will complement the mandatory annual information assurance training and the joint staff is establishing and cover such a program that

will include inspection of forward deployed areas. as dod continues efforts to improve our information sharing capabilities we will strive to implement the mechanisms necessary to protect the intelligence information without reverting back to pre 9/11 stovepipes. dod is working closely with its interagency partners, several of whom turn be here today to improve intelligence information sharing across the government while ensuring the appropriate protection and safeguards are in place. i would like to conclude by emphasizing that the department continues to work toward a resilient information sharing environment that is secured through both technological solutions and comprehensive policy. mr. ferguson and i think the committee for the opportunity to appear before you today, and we look forward to answering your questions. >> thank you. mr. ferguson, i'm told that you do not have a prepared statement, is that correct?

[inaudible] thank you. before i turn to our next witness, we have been joined by senator brown, and i just wanted to give him an opportunity for an opening statement, if you would like to have one. >> thank you. i'm actually eager to hear from the witnesses and ask questions, but thank you. >> think you, and we'll proceed. our next witness is corin stone, who is the intelligence community information sharing executive from the office of the director of national intelligence. we welcome you. please proceed with your testimony. >> think you, ma'am. chairman lieberman, ranking member collins, and senator brown, thank you for inviting me to appear before you today to discuss the intelligence community's progress and challenges and information sharing. i want to first recognize the committee's leaders on this important issues and take you for your continued support as we address the many questions associated with the need to share information and protected.

your need and oversight of affirmation sharing especially as the, on the 10-year anniversary of 9/11 has been invaluable. i look forward to our continued participation in partnership on this complex and vitally important issue. as the intelligence community insuring directors i and the circle point for all matters providing guidance, oversight, and information on information sharing priorities and initiatives. in that capacity i work with in coordination with my colleagues at the table and across the community and comprehensive and strategic management information sharing, both internally and with all of our mission partners. my main focus today concerns information that is derived from intelligence sources and methods or information reflected in the analytic judgments and intelligence produced. i want to be clear our concern for the protection of the information is not only narrowly sources -- focused. as we have seen recently through wikileaks, the unauthorized

disclosure of classified information has serious implications for the policy and operational aspects of national security. we all have networks that must be secured. as technology continues to advance my colleagues and i remain deeply committed to keeping up with the ongoing challenges we face. i am acutely aware our major task is to find what the director of national intelligence has turned the sweet spot between the two critical imperatives of sharing at protecting information. every day our officers worked tirelessly to tackle challenges of increasing complexity in the world that is interconnected, fast-paced, and ever-changing, sharing vital information with each other, customers, and partners the to better prepared senior policy makers across the executive branch and congress. it is important to note the communities that work on these predated the unauthorized disclosures. as you know, the challenges associated are not new and have been the subject of major efforts in the intelligence community for years. however, these latest unauthorized disclosures the

importance of our ongoing and comprehensive effort to address these involving challenges. working within the whole of government to address these issues the intelligence community's strategy involves three interlocking elements, the first is access to ensuring that the right people can discover and have access to the networks and information they need to perform their duties, but not information that do not need. the second element is technical protection tactically limiting the ability to misappropriate to manipulate, or transfer data in large quantities. the third area is on a stirring and monitoring, taking action to give the intelligence community day to day confident that the intermission access granted to our personnel is being properly used. as we were to both share and protect networks and information we must never be the site of the sweet spot. as we continue to increase how much information is shared with must also increase the protections in place to insure information is being properly used and safeguarded. this is the only way to create the necessary trust and

confidence in our system that will foster appropriate information sharing, a matter of monitoring risk, people, processes and technology of plate import rules and management. however, it is also important to note that all of our abilities and reduced the likelihood an impact unauthorized disclosures and the final analysis our system is based on trust in the individuals who have access to classified information and that they will be responsible stewards of this nation's most sensitive information. whether classified information is acquired by a computer system, a classified document, or simply heard in a briefing or meeting, we have had bad apples to ms used this information before and will unfortunately have them again. this reality does not mean we should err on the side of not sharing rather we must put all proper safeguards in place ten, continuing to the four leading to find the truck before disclosures occur, be mindful of the risk and manage them with the utmost diligence.

thank you for the committee's time, and i welcome your questions. >> thank you. our final witness from the panel this afternoon is kshemendra paul, who is the program manager for s information sharing and the office of the director of national intelligence. welcome, mr. paul. >> think you, chairman lee berman, ranking member collins, senator brown. thank you for the opportunity to speak about our efforts to effectively share information at every level of government. thank you for your attention to information sharing reform efforts in your support of my office's mission. i also want to recognize myself up at -- fellow panelists, key partners in the government wide effort to further strengthen information sharing and protection. as the wikileaks story emerged concerns were voiced that the information sharing efforts would suffer a setback. this administration is committed

to strengthening bell information sharing information protection. while complex and challenging, we don't see these goals as conflicting. guidance throughout the executive branch has been consistent. we need to accelerate information sharing and irresponsible and secure way. the wikileaks breach is not principally about information sharing and information sharing challenges. a bad actor allegedly violated that -- trust placed in him. we can and must take this opportunity to reassess our posture, progress, and focus related to improving in strengthening information sharing and protection. the challenge is highlighted by the wikileaks breach are complex and go to deeply rooted issues. first the, the perpetuation of agency based bilateral and fragmented solutions versus komen and comprehensive approach is to have permission sharing a protection. second, the need to protect --

the need to improve -- excuse me, improve our counterintelligence officer and some of the other regulations might the panelists have talked to. while the breach involves classified information we need to be mindful that the root cause issues and sensitivities extend to sense of -- sensitive and classified cut information also. i would like to clarify the information sharing environment and merrill. the purpose of the information sharing environment is to improve the sharing of terrorism, homeland security, and weapons of mass destruction-related information across federal, state and local, and travel agencies and with partners in the private section and internationally. the information sharing environment spans five communities, defense, intelligence, home and security, law enforcement, and foreign affairs. it is defined as a crosscutting horizontal datacenter tough -- trusted information sharing and protecting capability. my role is to plan for, oversee

the agency based build out, and manage the information efficient environment. my office is not operational. agencies owned the mission, agency set policies and procedures and agencies make the investments that interconnect our networks, databases, applications, and business process these. these agency based contributions together form the information sharing environment. the law grants the program manager government-wide authority which is exercised for nearly two ways. first, i am the code-share of the white house information sharing and access information policy committee. to that role we worked for policy and oversight issues. second, through by a partnership with the office of management and budget. we are being delivered and collaborative in our approach to further strengthening information sharing and protection. we have put an end payments on

government and out reach. my office together with my mission partners are leading the refresh of the 2007 national strategy for information sharing. we are using this opportunity to leverage common mission equities to drive common policies and capabilities. we are orchestrating pacific agency-led sharing and protection initiatives with our partners. we believe this work provides a framework for strengthening efforts to address the board to cover costs issues associated with the wikileaks breach. these capabilities will result in further ensuring the proper sharing and protection of information. our work across mission to drop mission partners is profiled in our annual purports to congress profile of every summer. i also encourage those interested were encouraged and falling to visit our website and participate in upcoming dialogs. in closing, our efforts have been and continue to be focused on accelerating intermission sharing in a secure and responsible way, effective information sharing and

collaboration are absolutely essential to keeping the american people safe. thank you for the opportunity to participate in this hearing. i also would appreciate any comments, direction, support, or feedback. my fellow panelists and i look forward to your questions. >> take you very much for your testimony, and i think all of the witnesses. i want to express my personal frustration with this issue. our committee has held hearings on the the lack of information sharing in the case of bob to allow where credible information was given to our embassy and africa but did not make its way in a timely fashion to the national counter-terrorism center and thus of the month call-up was not listed on the no-fly list. so there is an example of credible information that should

have been shared across governments, but was not. similarly in our investigation into the fort hood attacks we found that credible information about major hassan's communications with a known terrorist suspect was not shared from the joint terrorism task force to the army. another terrible failure in information sharing. now, there have been successes as well, and there have been many successes. i mentioned those two failures to share because they contrast and raise such questions with how an army of -- army private allegedly was able to read download hundreds of thousands of classified documents and cables and intelligence reports

without being detected. that baffles me. it also frustrates me because in 2007 senator lieberman and i authored homeland security legislation that included a requirement for military and intelligence agencies in stolen audit capability with robust access controls on classified systems. those technologies that would enable us to audit information transmission and authenticate identities for access control are not new. they are widely used. the serious side risks associated with the use of removable media devices such as thumb drives have been known for

many years. so, my question to all of you is, how did this happen? how could it be that a low-level member of the military could download such a volume of documents without it being detected for so long? that truly baffles me. i don't know who can start. mr. ferguson, do you want to take a crack at that? >> i'll be the first in the pond. let me take a couple steps into the question. a lot of parts to it. the bank of private is not so much the issue. it is what his responsibilities were. he was there to provide intelligence support for military operations. we don't take -- base it on the

rank structure but what is mission responsibility to support the military. that is number one. to get to your question about how he was able to access a much data, then i will get to the part about what will be done at why we did it kind of thing. the situation in the theater is such that it -- or wise, it has changed now. we took a risk. that is essentially what it is. we took a risk that by putting the information out there, sharing information, providing agility, flexibility of the military forces, they would be able to reach into any of the database on the super gnat. they would be able to download that information and be able to move the information using removable media across the various commands whether it is across a security domain war

u.s. systems to coalition systems. we did that so that they could do this very rapidly. here in the united states actually, many of the things you have talked about, closing off open media ports and so forth have been in place for decades and more. if you go to many of the agencies they are actually not able to access those open ports. the focus in the theater was speed and agility. we take that risk to allow not just private manning, but many people serving their to move at that pace. now, you asked about why we did not put in place the capabilities that were in your bill. in fact, as early as 2008 we started to apply what is called host-based security systems. it was called 8b s. s.

as early as 2008. at the time of private mannings alleged activities about 40% of systems in the united states were actually had the system in place. we had systems -- systems that was not available in the theater. >> and why wasn't it? >> mainly because of a lot of the systems there are, for lack of a technical term, beginner. the placement of those kind of systems, they are not all equal. it is a family of systems. it is not just working for a bank of america where they have one homogenous system and can insert things and take things out. they have multiple systems. putting in new intrusion sufferers are monitoring tools and so forth, you have to approach these systems differently. that is part of the problem.

basically to get away from that and not hold up, you move information, they took of the risk of by saying, look, these people are cleared. background investigations and, frankly, most of our focus was worried about outside intruders and not inside enters with threats. so, in the and to answer your question we have a situation where we had information sharing at this level. we had put in place and put -- took the risk of having monitoring tools and guards and pass words as well as people not fully implementing policy, not following security rules at this level. the problem is that is where we made our mistake. we allowed this to occur when we were sharing information at this level. but we were trying to fix today is not take this level of information sharing and move it down here

is what you referred to in your opening statement, but take this and move it up here and that is what we are trying to do as soon as we can. >> thank you. mr. kennedy -- mr. ferguson explained that basically dod and the interest of making sure that the information was out there in theater took a risk, but that does not explain to me how the private would have access to state department classified cables that had nothing to do with the country for which the private was involved in intelligence activities. so, how did it happen? he has access to cables, state department pacified cables involving countries that had nothing to do with his intelligence responsibilities.

>> that is a very good question, senator. several years ago the department of defense and the intelligence community came to the state department and said, we need the state department, and actually they paid for it, to push out reporting to it super gnat, which is the department of defense worldwide system and to put, to load a number of power cables on to the defense department database that would be accessible to defense department people. so, in response to their request we took a selected element of power cables and pushed those out to the department of defense database. to be blunt we believe in the interest of information sharing that it would be a a great mistake in an danger to the national security for the state department to try to define at each and every one of the 65 agencies that we share our diplomatic reporting and analysis to say that private

smith should get this cable, lieutenant jones should get that cable, commander x should get that cable. the policies that have been in place between the state department and other agencies for many years is we provide this information to the other agencies. the other agencies then take on the responsibility of controlling access by their people to the material that we provide to them. >> how come back to that issue, but i want to up first given an opportunity for my colleague, senator brown, to ask his question. >> senator, you are on our role. i served in the national guard for 31 years. i am in lieutenant-colonel. you know, on the computers regularly and all that good stuff. i have to tell you, sometimes it is like brain surgery getting on the computer, even for somebody like me who is part of the senior staff and a trial defense

attorney just to log on and get access and go where i need to go. i still am not really kidding a satisfactory answer as to how this private had complete and total access to the documents that he has. in my wildest dreams i could not do what he did. then i see, well, he works 14 hours a day. well, the average workload in that region is that and more for many people. my understanding on doing my own to diligence is that there was a complete breakdown of command authority when it came time instructing that soldier and people within that command as to the dos and don'ts with regard to information and information sharing. there was no check or balance. the amount of people that have access to that information has grown by tens of thousands, hundreds of thousands of people that have access on any given day.

let me just ask that, is that accurate? that many people have access to that information? whoever feels qualified to answer. probably the dod folks. [inaudible] >> turn your microphone on. >> thank you. even today -- let me put it this way, the super gnat is command and control, just like the internet. it has for the purposes of an allied, can you can splake -- explained. >> the super gnat is the command and control network that maintains the department of defense classified secret level information that covers a whole portfolio of issues, not just intelligence affirmation, operations today, financial premeditate it, personal data,

covering -- >> everything. >> everything. all that information is not available to everyone who is on. a lot of that information is passed for protected. but there are sites that are just like going on the internet. if you click on there or put in the search for that information and it is not pass for protected, it is available to whomever is on. >> all right. let me just take what you are saying. that was not the case with this and shoulder. we are talking about what you can get on line and take. we are talking about this and person had the ability to not only did that, but all the classified documentation as well, correct? >> classified information that was not pass protected. >> correct. >> and is it true there are hundreds of thousands of people that have access to that information still. >> that is true. >> i'm not a brain surgeon.

i'm an officer in the united states military. i have difficulty getting the stuff. why haven't we walked out and provided basically weeding through the access, the people that have access and to ensure that they are our friends. number two, where is the command and control in these types of things. >> the command of control, really a family of networks the site owners decide just like on the internet how -- who gets access to their particular side. >> that's for the open stuff. >> no, that is for secured information as well. >> right. so in the case of the state department information, that has been removed. that is not available. >> i was surprised they were even on there. >> that was a request of the department of defense and the dni to put that information on their to make it more accessible

>> and is the reason why because, listen, i understand the moving nature of the battlefield. originally i believe that a lot of the command and control went away because of the changing nature of the battlefield. the information very quickly. is that a fair assessment? >> it is. >> knowing that what checks and balances have been in place, put in place notwithstanding that fact. what are we doing? >> what they have done, mr. kaj can talk about the technology. but they have put in place, they have closed out all the ports. they have also started to try to narrow the data access based on mission responsibility. it is not going to be as simple as going interning of stuff and doing a big survey. although that will probably occur. of course the moving of the data

was a big concern. what is now a 2-man rule as was pointed out, call% of the systems now have the ability to move data and shifted to another demand. the other 88% are shut down. >> a ton drive, right? >> the cd, actually. of the enough, the drives have been shut off for some time. >> that's what i thought. >> it was a cd. downloading on cds. we have a 2-man rule. another key piece of this is, i don't know what word to use, failure on the part to monitor and follow security regulations as simple as that. >> i agree with you. another is protocol in place. so flabbergasted. one of the biggest leaks in my memory in the military.

we have a private that is in trouble. i am also curious a break down completely on the chain of command. >> it did not work out as well as we hoped. >> that being said, it has not worked out as well as you hope, is there anything like a red team or inspection that could change the protocol? >> there have been investigations looking at the entire process throughout -- for the entire sphere. a lot of the changes that have occurred in terms of the 2-man rule, the ports, and other securities or security training and so forth have all occurred in the last, i guess, three or four months. so, taking some pretty significant actions already. >> i would like to pass to teresa takai, said that she can speak to the technology. >> and i will take that testimony in the second, but

that being said, know all of the agencies, the launching of new guidelines and directives, is there a coordinated effort of some kind being made so the policy and oversight are staying consistent? agencies are not left to guess who to listen to it? is there someone in charge that is ticking what we're doing kamala area during and how we are doing it and follow up to say that we are doing it. anything like that going on? >> yes. there are policies -- i'll give you a good example. policies for security and use spread across a number of policy documents. if you're sitting in the field in heine said that was not a good way of approaching it. it worked that way for years, decades. one of the things we have done is take all those policies, update them, and combine to make them in a single product.

only one place their is a one-stop shop. that came out of the undersecretary of defense intelligence office. he says the guidelines for that information, protection insurance and security parts. in terms of setting the rules for information sharing itself, that has been done as a community-wide activity, not just the department of defense or dni. this approach. all the other agencies. there is one initiative right now under way. of course each department is looking at it individually. >> can i amplify that? >> yes, please. and we will go here and here. one final statement pleased. >> so there is an ongoing white house-lead process right now looking at wikileaks and potential reforms that have three main tracks.

by panelists and i and others are involved in that process. the first part of it is looking at how to better balance things like identity management and tagging of information were consistently so that you can do better kinds of access, controls that were talked about in opening statements. the second is looking at the insider threat aspects and some of the technical considerations that we have talked about. the third is looking at how to strengthen governance. the hope is that in coming weeks and months we can come back and talk about the results of that process. >> before i speak to the technology, just a follow on to the government to issue, there is participation by all of the organizations in a white house working group that reports of the dippy community around the various activities to make sure that we are well coordinated and we are working together. inside department of defense this is an item that is high on the secretary's list, and we

provide ongoing reports to him from the standpoint of the technology mitigation efforts both to he and the chairman of the joint chiefs of staff regarding our progress. so there is significant oversight, significant guidance in terms of making sure that we are taking care of this and falling on the commitments we have made. working with mr. ferguson's area. so i wanted to make sure i added that in response to the question. moving on to the technology, we have talked about the host based security system and the progress that we have made thus far in terms of having that installed and making sure that we can detect an -- analyst behavior in terms of individuals who might get on to the network and down the information. we are doing that in two ways. one is from a device perspective. the host based security system

detects, if, in fact, a computer does have a device that information can be downloaded so that we can validate that and insure that it is part of the cold% of those computers but we believe need that information in the field. on the second thing that we're doing, looking at what we call an audit extraction model to follow on to senator collins question about how we have the information and the analytics to see where for those that have that ability we are seeing anomalous behavior and can catch it at the time that it occurs. we are currently in testing. the sufferer is integrated command will be then moving ahead to rule that out. the third thing that we are moving forward on, as you mentioned, senator collins, roundtable based process. we are going to be implementing pki identification similar to

our current on non classified networks to all of the dia de users. but that will do is give us an opportunity over time to refine what information individuals have access to. sure access in this case, we would be able to buy looking at its individual database take it down to what information that individual needed as opposed to having the network completely open. >> i appreciate. just in closing. it's not only dangerous, it's embarrassing what happened. embarrassing for our country and some of the things that were actually out there. so there are a lot of lessons. i appreciate the opportunity. thank you for having this hearing at participating in allowing me to participate in it. >> thank you. >> senator collins, thank you very much for assuming the chair apologizes to the witnesses. senator brown, that's it?

okay. i appreciate the testimony. let me ask a few questions. in a speech that the dni general gave last fall, he predicted that wikileaks was going to have a very chilling effect on the need to share. after wikileaks began to release state department cables in late november news headlines forecasted a clampdown on information sharing, and this is what we have been dealing with and you deal with in your testimony as a matter. i wanted to ask you if there are specific areas, and i guess let's start with ms. stone. are there specific areas where you think the wikileaks case has had a direct impact on affirmation sharing other than the example stated -- cited in the prepared testimony by mr. kennedy of the state department removing its diplomatic cables from super gnat. >> thank you for that question.

my reaction is that the most direct impact, i would say, has been in the area of culture and those people who are concerned about sharing information, rightly so, for protection matters and therefore are reacting to increase protection as well as sharing so that as we increase the protection we also increased the trust and confidence the people have that when they share information appropriately it will be protected, we will know where the information is, share that information if it is appropriately access, and follow up with appropriate repercussions if and when it isn't used. the most direct i have seen is not in a specific tangible action, but more so that it has resulted in a very clear need for us to increase the protection, increased costs -- trust and confidence to share more broadly because we are all agreeing while the director was very concerned as we all were that this would have a chilling effect we have worked very hard

within the of dni, the intelligence community, and across the government, to ensure it does not have a chilling effect, but we as mr. ferguson said, increased sharing an increase protection to develop the trust and confidence. >> it is good. to any of the others -- mr. kennedy? >> if i could, mr. chairman. i think there have been two kinds of chilling effects. one, i think, there has been a chilling effect on the part of some foreign governments being willing to share information with us. that is obviously of great concern to this department. we build our diplomatic reporting and analysis on the basis of trust. individuals will tell us things in confidence. we will share them in confidence within the at the state of vermont, but that has been one chilling effect. at think the state department has avoided the chilling effect you work directly addressing. for example, if i might, during

the time we posted, as you mentioned, some 250,000 cables to this database posted to the dot. during the same time we disseminated almost two-and-a-half million cables, ten times as many, through other systems to other -- the 65 other u.s. commended agencies. so therefore, why we stopped testament to stop disseminating for the reasons that my duty colleagues have outlined, we have continued to disseminate to the intelligence community's system, the jail with system, and we have continued to disseminate the same volume of material to the same other agencies based upon their need for that information. we do not hold anything back. this unfortunate event has not caused us to hold anything back. we continue to share at the same rate as we were before because we know that our information is

essentially the gold standard. there are more reporting and analysis officers resources and information from 265 state department diplomatic and consular posts around the world than any other agency, so it is our intent to uphold our piece of national security and obviously be responsive to the very forceful and correct legislation that you saw pass which is to share. we are continuing to share using to other means. >> to any of the other three witnesses want to comment in terms of specific areas of effective wikileaks confirmation sharing or perhaps a more indirect impact of people becoming more hesitant to work across agency boundaries or marking intelligence products more restrictive lee? mr. paul? >> yes. enmarbled we have the opportunity to work more closely. i just want to report the concerns about the chilling

effect, they share that. they share the concerns, and we remain vigilant and work with them to try to identify any challenges of that sort. .. somewhat in just but not really. often leaders of foreign countries that we are meeting with will say i hope this isn't going to appear on wikileaks, so they are hoping there is a certain confidence and trust in

the exchange of information, and of course we say no, a person from the embassy usually says we've taken care of the problem, but it did affect the trust of allies around the world of. one of the things that congress called for in the intelligence reform and terrorism prevention act was the use of technologies that will allow, quote, will based access to information and government systems. in other words, if people had access to information necessary for their work but not overly broad access to information that they did not need one of the key lessons obviously from wikileaks is that we have not yet made enough progress towards the goal as we need to and such capabilities have been in place on the super net i presume would never have had access to the much information if any at all.

so i wanted to ask you, it could be mr. paul, ms. stone, we will start with you, what are the key challenges associated with implementing robust access as i defined it across the classified and sensitive information systems? >> thank you mr. chairman. i would like to start first by giving an update on where we stand at the dod in terms of rolling out the pki super ne. we are in the process in fact in production if you will through the trust of foundry on those cards we are anticipating the completion of the rollout by the end of 2012 so they will be individuals who today need supernet will have pki identification. >> if you define the terms if there was a would you want to do so, pki for the record? >> effectively the controlled access card is the card that you

actually utilize with your computer that actually identifies you when you log on to the computer so it is a much more sophisticated password if you will. it gives you a user name and password but it more clearly identifies you, and then from that more clearly can identify the role you play in the organization and then through that the information that you should have access to. >> so that would limit access based on the position of the card holder and the presumed needs to know of the cardholder? >> that is correct, but to the second part of your question in terms of the rollout plan and the issues, not issues that the steps we need to go through, the cards are actually rolled out to each individual who has a computer, so our deployment plan

is to actually get the physical cards and the physical leaders installed on all of the computers for those individuals that require access to the super bet. second thing is that through the trusten foundry, we have a manufacturing process for those cards, and they have the capacity for a certain number of cards, so that also is a factor. so again, in order for us to really complete 100%, we have to take into account those two factors and also the fact that many of the computers where this is needed are as you could well imagine in many locations around the globe and that's not only of course on the ground, but on ships and salon so it will take awhile, the end of 2012 to have the deployment complete. but i think it's important to note in addition to just the physical plant of the cards and

on the various computers that will then take us additional time to make sure that we get the role associated with the information connected. the cards give us the capability to do that and then will continue the deployment to link the information to that. >> it's encouraging, thinks. >> mr. chairman, just a couple of more questions, mr. ferguson, when i think about wikileaks incident i think not only of the failure of the technology, but also of the failure to focus on certain red flag behavior that was extended by and it reminds me very much of what our investigation found when we looked into the major passan's be here prior to the massacre at

fort hood. if the media reports are correct, private manning exhibited problems such as mental health issues and assault on colleagues and the fact that supervisors had recommended he not be sent to the front line. these are all pretty big red flags, and i'm wondering why they did not lead to the restriction in his access to classified information. i don't know whether you're the right person for me to ask that question too, but my point is there is more than just technology at stake here. if we have a high-ranking official and we use the approach to that individual becomes stable or increases the islamic

radicalism or some other reason than because the individual to pose the insider threat, do we have the systems in place to catch that individual? >> senator, i can't speak to the specifics of private manning of the ongoing investigation. however, you're point about is there a process to identify the he fears that we should be concerned about? and we've taken a look at that, and the training that we had in place, whether it was hassan or this case was not sufficient to give his supervisors the pieces

of data they would need to put together so this person is a problem, and the in some cases to take action when they did suspect something was wrong. so what we have done in the department is begin to shape the new policy directions, how to better train supervisors, how to best identify behavior's that would be of concern and that's one piece but also be willing to take action. it's not to see somebody's behavior is irregular, it's also in some cases fear to take action or may reflect on them as a failure or it may reflect on them in some other way. and so, there are two hurdles here. it's teaching how to identify

characteristics, but it's also teaching people the right thing to do is to take action. >> and i am concerned, because we have seen the two recent cases where tremendous damage was done despite the fact that there was ample evidence it appears on the less familiar with the case we are discussing today that something was dramatically wrong. that's an issue that i'm eager to pursue and i think your point about training is a very good one. mr. paul, just for my last question, you mentioned in your testimony that there is a fragmented approach to computer security across the federal government, and i think i can speak for the chairman when i say if we could not agree with you more and that's one reason we introduced our cybersecurity bill which will apply to the

civilian agencies and also try to work with the private sector to develop that practices. but our bill doesn't deal with the intelligence community or the military system, you also in your testimony pointed out that you're not an operational office at the dni and you're heading a task force on this issue. what are you telling us? are you telling us that the dni needs more authority to prevent this fragmented approach where was the one intelligence agency may have a totally different approach to security and classification and access than the department of defense?

>> when i was using the fragmentation when i was referring to was agencies put in place specific agency based solutions those solutions serve the specific need but then when you look at more what information sharing protection of other agencies the solutions tend to not work as well. an example of this is as you look at things like identity management frames work as my panelists talked about it at any management that is to be able to do information sharing and the protection we have several different frameworks across the scope of the federal government or state and local partners and so forth those remarks are mostly aligned but we need to make sure as they get implemented they are implemented in a way that is consistent

across all the different partners. if that doesn't happen, then you run into challenges when information moves across the boundaries. so, the second part was about my role and cochairing the information sharing access interagency policy committee. the key thing we are trying to do in that group is to harmonize policy frameworks' across the different agencies to make sure that on the one hand we have a consistent framework and on the other hand we are not slowing down operational considerations in those agencies and the variations that occur truly because mission requirements are not because we were not effectively working together. ms. stone? >> if i could add to that across the agency we are working very hard to have comprehensive guidelines and processes that are consistent and interoperable. we have -- we are working on leveraging the public infrastructure and attribute control to have a more

comprehensive access management and standardizing data protection models. several levels of security and working on an enterprise audit framework. so within the intelligence community while we may have different systems we are working very hard from the office of the director of national intelligence to the more standardized and meet consistency across those networks. the way we can plug in with of the rest of the government and indeed we must be interoperable with the rest of the government of course is through this interagency group we are working on together with everyone at the table and others to ensure we can in fact be coordinating and consistent with the other offices and we are still working through exactly what that looks like that is a concern we are all very well aware of. >> thank you. >> i would note that gao continues to list information sharing particularly with results with regard to terrorism related information and as the

high risk activities and it is on the high-risk list agenda this year. finally, as we look at the usurp rule approach, which i brought up in my opening statement and which we have commented on today, we do have to be careful that that does not translate back to the battle days where no one shared anything and where we have the stovepiped because we are defining who has access so narrow that we deny access to analysts who really need that information so it's a very difficult task that your role in working on, but in this day and age of that individual could have -- be able to undetected for so long, download and a

legally distribute hundreds of thousands of important cables and reports and documents is just inconceivable to me. so clearly, we have a long way to go to strike the right balance. thank you, mr. chairman. >> thank you, senator collins, once again for taking chair while i had to leave. just a few more questions. i want to follow up first with you on the question i asked ms. takai about the will based access. in your testimony you know the fact there are, quote come at least five distinct identity credential and access management frameworks in use by federal agencies, and of course that make me wonder whether that limits the ability to implement the kind of role based access capabilities that required in

the systems and across the way. i wonder if you could talk about what you're doing hopefully in cooperation with the other witnesses today to harmonize those different access remarks. >> sure. thank you -- thank you for the question. there are least five different from work study are not really that different. they are different enough though that it requires the attention of my office and other bodies, the federal council for example, and my colleagues here to make sure that as the frameworks get implemented in the different agencies and state and local and tribal partners that we don't allow for the variations. whether the variations are controlled right and reflect mission requirements and the like, so the focus of my office is to work with the interagency, to bring it together groups to make sure as the free-market implemented their implemented in a consistent way. building on top of that, it's

critical as we look at the rule and attribute based controls you both have highlighted that the framework for doing that is how we define the role, how we come to use a colloquial we tagged data and had people come that tagging occurs on different places. a person may be ten and one agency in the data in another. we want to be a will to have that the the move in an appropriately with policy enforcement. that means there needs to be consistent framework for how that happens and coordination and this goes to some of what you've heard from me and others about the importance of governance, the standards and architecture approach and things like that. so those are contributions that are catalyzed through my office with close cooperation and my partners. >> good. i urge you long on that. mr. ferguson and ms. takai as well, i mentioned in my opening statement the great success that we've had in the past few years in iraq and afghanistan and disrupting terrorist networks in those countries with our

military and intelligence agencies working very closely together and doing so and a remarkably rapid way sometimes spreading information from one source and using it within an hour elsewhere as you make changes to improve the security of the press networks at the dod and the intelligence community are you taking steps to ensure that those efforts won't diminish or slowdown our ability to carry out the kind of operations i just described? >> yes, sir, absolutely. one of the -- even though the process was to allow the personnel looking at the secure facility to access and pulled on data and copy it through the open media, for example, flexibility, we've gone back and have taken a look at how that

process worked and we found that by creating just a kiosk process and lead to man rule we can still move at the same speed and have the same agility without giving everybody the same availability to the information and being able to pull the data down and copy it. so, very much in mind to make sure that we do not hinder our ability to carry out. >> anything to add? >> i think one of the things very important is we continue to see the dramatic need for information and information sharing by the war fighter and so if any demand for that information continues to grow so as we are looking at the technology to relate back to what mr. said we are eliminating more fragmented environment which has grown up over time through our legacy base and the way the networks have grown up by the way that our database

have grown up and so i wanted to make sure i added the relationship between the work mr. paul is doing and the work we are doing internal to the dod and i'm sure my partners here are all undergoing the same thing they ms. stone was talking about and those things in combination with being able to apply cybersecurity enhancement or when to give us an opportunity to get that information out there as quickly as today and in some cases even faster than today but to do it in a secure way. >> let me ask a final question. based on the testimony you've provided but what you are doing to respond to the challenge -- challenges that were eliminated by the wikileaks case, but also to protect the information sharing environment, one, have

you seen in the areas you would benefit from statutory changes? and number two, this is a question i would ask in a limited way and this is when there might further in the fund as we should be targeting to particular uses the were not now to assist you and responding to this crisis? maybe we will start with mr. kennedy and good on their know if anybody has anything to say. >> i can't think of any additional legislative authority. i think you've done two things. you've given the intent and then you've given the command and i know from what you've said and what we know internally which way we should go. on the funding, i mean, i can always say that we could -- use an institution as this department can always use additional funding given the range of demand upon us, but i believe that we have systems in

place -- we have a moral based access system in place that we use to distribute material within the state department. if you are on the french you get one set of materials and fuel on the japan desk you get another and we believe we also have the ability as i mentioned earlier we will continue to push state department reporting to the other agencies, but it does a lot might put a burden on them to then take our material which we have provided to secretary defense so to speak, to the dod, and then to distribute that to their people according to the rule that only they are capable of defining because i think it would be wrong for me to say which individuals within an entity as large as the defense department or as large as that of dni or the intelligence community which needs what so we send it to them and i think they may be the ones who have to answer that second question

about how they are going to distribute it efficiently and effectively as you and senator collins have talked about. >> thanks. any legislative recommendations or budget targeting? >> in terms of the legislative question, i agree with mr. kennedy. at this time, we do not see any additional legislation that we need. we are going through a review to answer exactly the same question for the secretary is there any need for any change not only additional funding but a change in the funding and so once we have the pulled together we would be happy to share it with you. >> mr. ferguson? >> i have to agree on the legislative side, and certainly as pointed out, as we go through this process putting in these capabilities the funding means we need to identify with those costs are.

>> on the legislative we've probably got what we need for them to become although i would reserve the right to come back if we need something else and on the funding piece i think again we do have an interagency process on going and looking at what we might do with different options so we have to see where that comes out but there is at least some in the fy 12 proposal submitted by the president to work on some of these issues. >> good. mr. paul? >> i would echo mr. kennedy the law is the statute of the committee has championed are provide an adequate basis and in the context of the information sharing environment admire their responsibility. there is enough authority as an issue for me of execution and leadership. >> good. thank you. senator collins? >> thanks very much, for again, and you're prepared testimony and the oral testimony. i emerged encouraged that you're certainly dealing with a

specific series of vulnerabilities that the wikileaks manning ks revealed and i presume in the nature of the modern world of technology and innovation and exploitation what it is you also would be thinking about the next way in which somebody might try to get advantage of the information sharing environment. but i think that we have raised our guard and a sensible way and also continue to share information as well as take away which we need to do from the ceiling and i appreciate that very much. it will remain open for 15 days for any additional questions or statements. with that, the hearing is adjourned. [inaudible conversations]

the canadian house of commons today passed a no-confidence motion on the government of conservative party prime minister steven harper bertino down the government and triggering an election in may. mr. harper served as the prime

minister since 2006 although his party has always been in the minority. now coverage of the vote from the canadian network cbc. this is just under an hour and a half. >> you are looking at a live shot of the hill everybody on the inside is not nearly as stately and, as it looks like on the outside their waiting for a historic confident over issue of content that will make history. i want to bring a special welcome to our viewers on any network in the great provinces of saskatchewan. and alberto. welcome. as we head for an election it will hinge on what you are about to see in a matter of minutes ahead. we are waiting for the speaker

of the house and the longest serving speaker to re-enter the house. but he will then do now is preside over this motion of non-confidence of the liberals brought forward earlier this week. that will eventually sign to the government in contempt of parliament for the first time in history, the opposition party and the ndp will vote for it and that should bring us towards the general election. watching all this unfold with me and they've been here for hours, the mayor, chris hall, request been on the feet and now peter is joining us and all eyes are glued to this as we watched this unfold. in a couple of minutes a hit here and we have heard some strategies and we've heard from the span, let's just get -- let's not cast our mind too far forward here. let set up the drama we are about to see as in a lot of motions of no-confidence. this happened before, but not like this. let's bring some perspective on this as you watch