we knew a number we have reasonable suspicious was affiliated with a terrorist group not -- plot against the homeland. that was in somalia. we had reasonable suspicious in the united states. we have no idea what it might be associated with. we had to do a query we didn't know if it would be a 303 area code. what are the grand set of possibilities. in order to find the needle that matched up against the number. we needed hay stack. that's the premise nice in this case. in that point, if somebody -- this is going to connect to a number in san diego that would have been surprising if it connects to a place in yemen. >> i i think it gets down to

there once establishing this number from al-shabaab, you can go after that person's telephone records and all of the contacts that person has made. the basic question where faced with, do you need to collect five years on data in everyone in america and their telephone records, so the hay stack, which is pretty big -- >> that's a fair question. the question would be is it enough to look prosphectively in the future -- >> right. >> it may be the plotting you're looking for occurred in the past. it if you don't have that person's record in the past you can't determine ? >> if we required the phone companies to retain the records for five years. -- >> that's a good point. it's not possible. >> it did [inaudible] retain it for the benefit of the government. >> how would it be? >> i think it would require a legal change. i don't think it's hard.

i don't think you can get there from here. you have to think about the rest of the attribute necessary to make it a useful adventure. >> senator feinstein said ask him about the offense. >> i would say in a classified session i can give you chapter and verse on the expense. it's dpircht whether you choose the implementation or leave it with the provide piers. they should bear the expense. >> thank you. >> senator lee. >> thank you, mr. chairman, as i understand it, the nsa's collection of ma tada that, the kind we've, discussing today is pursuant to 215 of the patriot act. section 215 b-2 a of the act places an important limitation on the collection, and it limit the government's ability to collect that meta data to where circumstances data in question

is quote, relevant to an authorized investigate, closed quote. it's difficult to define in the abstract. it's somewhat fluid concept and one of those things that some might say i know it when i see it. but i struggle to define it. yet regardless of how difficult it might be to twin in the abstract what relevance is. continue don't you think we have left the station of relevance long before we get to the point of collecting meta data on potentially 300 million americans, and their cell phone usage? how can one get one's mind around the concept of that volume of information? meta data or otherwise, all being relevant an ongoing

investigation? >> well, senator, he can chime in. noted a little bit earlier, how broad, as you noted yourself, the concept of relevance in civil discovery and many different kind of legal contexts. it can be things that will lead you to things that you need. >> right. as i understand, mr. lynch, very broad conception of relevance, and as he recently explained in the comments at the brookings institution. i assure you, as a recovering lawyer myself, there's no con texas in civil discovery or otherwise in which one may define relevance broadly enough to take in information regarding each and every single american who owns a telephone. the answer i give you to that, senator, we are not really accessing or getting in to all that have meta data that is

stored in the data base. we don't get to roam around in it. we don't get to look tat to our heart's content and say this and that is relevant. let's take that. you have to look in the context of the primary order which was declassified and issued today. the only way you can access it is if you have reasonable suspicious that the number you are going query off of is in fact related to specific terrorist groups. and that has to be documented. if you don't have that, you can't get in to this. i think the surveillance cop accept, i think is very important here, you cannot surveil this without the gate being checked to. >> the gate is not controlled by a warrant, i mean, if you want to access that. you don't want to get a warrant to access it. it's controlled by internal procedure; corre?

>> that's correct. they are controlled by the court order. ty arenrolled by compliance audit that are done both by the executive branch and the curt looks how it's implemented on a periodic basis. >> okay. did you have something to add? >> very briefly. i want to make clear that the standard of relevance that i articulated in the speech is not mine alone. it's been prove bid the judge of the fisa court and has been known to member of the committee and the intelligence committee at the time that the section 215 authority was renewed. >> as i understand that. as i understand that. it's been part of the problem we've had is that until recently most people didn't have any idea about those. we have had significant constraints that limited our ability to explain why some of us had concerns with the patriot act. why some of us on both sides of the aisle voted against reauthorizing the patriot act. we were unable to speak about this publicly.

we have secret procedures being undertaken pursuant to secret law. it has been a bit of a problem. now what would you say then -- getting to you, mr. cole. to my constituents, as i understand what you're saying, we're collecting it but not looking tat. we're collecting it but not closing our eyes. don't worry about that. what would you say to my constituent's saying it's not government's information. it doesn't make it relevant under the law. it still doesn't meet what many of my constituents believe to be well within the reasonable expectations of privacy for the government to collect that much information potentially information about 300 million americans. >> well, i would say two things. first of all, we've had 34 separate times, the court said that meets it and have it all and meet the restriction. the further thing, what is

important, it's worth having a debate about a better way to do. worth having a debate where we're going strike the balance between security for the nation and making sure that people's privacy and civil liberty rights are being honored. it's a tough balance to find. it's a balance worth talking about. it's the process we are welcoming and engaging in right now. >> okay. thank you. i see my time is expired. i want to comment -- i appreciate your insight on this. i think it is worth discussing publicly. i think it's something we need to consider from a constitutional standpoint. we have been relying on a 34-year-old supreme court case. smith v. maryland to get this idea that meta data is somehow beyond the reach of the fourth amendment. we have to remember that smith did not involve collection on hundred of millions of americans. it involved collection on a single target. it involved collection in a

manner that is completely archaic by today's standards. and by today's standards would involve a minuscule amount of information. i think at some point when you collect that much data on that many people. whether it's one person, it might create some problem. that much data on hundreds of millions of people creates an even bigger problem. one that i think was not considered by the supreme court of the united states in maryland v. smith. one we need to revisit. >> thank you, senator lee. senator white house. he served on this committee and the intelligence committee. i appreciate you being here. >> thank you, mr. chairman. one of the -- mr. cole, you just said it's worth having a debate on these issues. i think you're right about that. but i also hope that the executive branch takes a lesson

from this experience about the value of classification, or what i would consider overclassification. i've seen this over and over now. when we were fighting with the bush administration about the torture program, the executive branch got to tell its side of the story because the executive branch were the declassifiers, we were stuck with facts that we knew that blew up the argument that was being made by the executive branch, but we could not articulate because they were classified. we've seen it on cyber, where so much of the american public is unaware of the cyberthreat we are facing. thankfully, we are becoming more aware. for a long time, we were just in the dark about what was going on because in the private sector, companies didn't want to talk

about it for fear of aggravating their regulator, their consumers, their clients, even giving their competitors advantage. and the government just wildly overclassified everything. now we have, i think, a terrific article that senator feinstein wrote, we have, i think, very good testimony by bob mueller. we have a lot of good information that helps the american public that understands these programs. it all came out late. it all came out in response to a leaker. that-- there was no organized plan how we declassify it so the american people could participate in the debate. i think there's an executive branch reaction toward classification, i think that reaction is in part because of the advantage it gives the exec

executive branch relative to the branch that can't declassify. i think over and over again looking back we are worse off for the effort in the first instance. i would urge do you take a look at this, you know, when it bursts there's an old saying -- i'm not going get exactly right. t something about the rumor is all the way across town, before the truth can get its boots on. you have lived that experience in the last couple of months. i hope this has an effect on you. it's a recurring problem. we really need to be balancing much more carefully the value of declassification against the value of classification. i think you guys are terribly one-sided in favor of classification. and something like this comes and pow, you are still trying to get your boots on because you never took the appropriate steps

to news out about the program that would have avoided, i think, a lot of this. i would like you to have a chance to react to that. >> i think you make very valid points, senator. these are all topics we need to debate. they're not easy topics. they involve the same balancing. the same balancing we are trying to do between national security and civil liberties and what kinds of program we put in place to gain intelligence information. it's the same kind of debate we need to have about what is classified and what is not classified and what secrets we let out. if it was easy, we would be having these left and right. >> i don't think, at least from what i've seen the executive branch is doing it to disadvantage the legislative branch. i think it may be -- >> it has that effect. >> it may have that effect. ly conceive that. i think it's done because people are cautious. it's easier to overclassify than

to underclassify. it's safer to overclassify than underclassify. and now we're having to get in to the hard work of fiefnedding just where -- finding where that line is. it's a difficult job to do. it's worth doing. >> senator, can i add -- >> or the torture program gets exposed. we have a significant cyberattack. or something happens that shows the short term decision it was easier to classify was the wrong decision. >> i want to add on this. i know, you are -- you're familiar with what i'm about to say, but we are having a public debate now. it's not without cost. the information that has been leak is going to do damage to our ability to protect the nation. we are going lose capability. people are paying attention to this. the way that typical the congress, through the legislation passes the internal rule has historically thought to achieve the balance between appropriate oversight of intelligence activities, and the

need to protect sources and method is through the primarily the intelligence committee, but also some other committee of congress. this committee, the armed service committee, the appropriations committee. and typically that's the forum in that has been used to strike this balance. >> i get that. my time is expired. let me entrepreneur in and say we all get that. my point is the american public is an important part of the debate. we would be better off if there was not a strong i instinct of classifying things and keeping things classified and develop information in for the american public that minimized that intelligence collection loss and allowed us to have this debate. thank you. >> thank you, mr. chairman. i want to join in thanking the chairman for the hearing, and for his legislative proposal, which i have joined. to each of you for your extraordinary contribution to our nation, but also to the

thousand of others and the intelligence community and special operations who have thwarted and stopped terrorist threats to the country. which too often i believe have been i think -- ignored because the effort to stop them have been successful. the debate is one that is very appropriate in a free society that is trying to protect itself from terrorism by using search and surveillance, which have a role, and and what we grappling to do here is define how to reconcile the secrecy of search and surveillance, which necessarily have to be so with privacy and civil liberties and all the constitutional guarantee that makes unique among the nation in the world and the greatest nation in the history of the world. you know, i have been a

litigator for close to forty years. i never doubted that the scores of judges i litigated before have a commitment to rights and privacy and all the constitutional right. i have no doubt about the judges pushing back and having a commitment to the rule of law. but in appearance, the system is failing and failing fast to maintain the trust and credibility of the american people. who want to be protected from terrorist threats, but at the same time also protected from the degradation of their constitutional right. so i'm introducing a bill that would change the appointment and selection procedure so that the appearance and the reality of diversity of view is maintained and enhanced. and i'll be introdisusing that

bill tomorrow that would involve this circuit court judges in the appointment process with the continued involvement of the chief justice and change, also, the fisa court of reviews selection process. i found in my years one of the judge's worst nightmare is incompetent counsel. the reason is, especially in a criminal trial, incompetent or lack of counsel means that the record on appeal is weaker, that test the clash of information should be involved in some way in the fisa court. the second bill i'm enforcing is

ad advocate not necessarily in the exparty proceedings on every single warrant or surveillance or search, but at some point where there are significant issues of law so that different side are presented. challenges are made. and the judge or panel has the benefit of the contention that is at the core of our court process. our courts, not only insist on but thrive on the clash and testing of different point of view which is debate on a legal issue or cross examination. that's at the essence of our litigation process. so i think in appearance if not reality that the current design of the fisa court stack the deck

against the protect of our civil liberties and can be improved and enhanced without sacrificing either speed or security because those special advocate can be cleared beforehand for security purposes, they can be involved after the fact, if necessary. on appeal on effect -- or the united states supreme court. and i hope, this is to lead to the question, i hope mr. cole that you will join in this process of trying to improve the current fisa court structure, and i would like to know whether there's active consideration of changes in the selection procedure and the involvement of potentially a special advocate or independent counsel of some

kind in this process. >> senator, i think at this point there's active consideration of a range of issues. just to get at the kinds of things you're talking about to make sure that the process works as well as it can to balance both of those important issues. and make sure that it's transparent enough so we maintain credibility with the american people about this program. those are difficult issues as we have discussed today for several hour to find the right place. it's with -- it's definitely something under cross-question and active discussion in the administration. >> thank you, mr. chairman. >> mr. cole, i have a question i -- i understand the government believes that every domestic phone record is relevant. it can be obtained using section

215, the patriot act. as i understand that fisa court agrees with that interpretation. but you then place restriction how it can be used once you collected it. but i'm going say limit on this theory. couldn't you invoke under this section 215 to obtain virtually all of the commercial data americans phone records are relevant about our credit card records. what sides we go on on the internet. what we may bookmark our medical records that we have it on the computer. firearm records. we keep firearms. all of those things available? >> well, i think there's two

point points here, mr. chairman,. number one, the way they find them relevant in the context the restriction and what citizens you are looking for. you center to take all of those feature of the phone record process in to account of how can it be done? how reasonably it can be done. what is the need for speed? what is the need integrate all the records that are coming together? and find only when you look at that entire mix that this kind of program and these restrictions. to your question. you would have to make that same showing for those other kinds of records as to the need for that. and the need for the restrictions. >> but if our phone records are -- why wouldn't our credit cards record? wouldn't you like to know if somebody is buying fertilizing you use in bombs? >> i may not need to collect everybody's credit cards records

in order do that. because, again, these are -- we're not collect their phone records so question wander them through. it's only the phone records being done look at the connection. it somebody is buying things that can be used to make bombs, of course, we would like to know that. we may not need to do it in this fashion. >> director clapper said nsa would notify congress before it cell phone location information in the program. is there any legal impediment to expanding the program for cell phone location? >> i don't believe there would be a legal impediment. yesterday they issued a ruling that goes that issue. if the legal immedment are not the only issues you take in to account here. >> i understand. i want to put several items in the hearing records written testimony.

the challenge to receive the protect america act. one of the few nongovernment -- to appear. that's important insight. a letter presiding judge of the foreign intelligence surveillance court responded to questions from senator grassily and myself a letter from a coalition of communication company advocacy group regarding transparency. a letter from coalition privacy and civil liberty groups. recommending the constitution project supporting the 215 and the privacy protection act. if there are no further questions from this panel, if there aren't, i would thank all four of you. i know, you spent a lot of time preparing this. i thank you for being here. i know, you have a lot of other

things you should be doing and can be doing. thank you for taking this time. we will start on the next blank if we hear by a vote we will then stop until 12:30 where senator blumenthal is offering to come back and preside what we call a judge carr, james carr, u.s. district court of northern district of ohio to be able to defer the -- american civil liberty qliewn -- union. thank you all very much. [inaudible conversations] we are bring you live coverage of this senate judiciary committee hearing on

government surveillance programs and privacy rights. they are taking break as senators prepare from a second of panel of witnesses. we are expecting another break senators will be heading to the chamber for votes this morning. lawmakers who vote on an amendment by rand paul on aid to egypt for for that they are expected to recess until 1:00 p.m. [inaudible conversations] i apologize in advance if we end up having to recess for a period of time. judge carr, why don't we begin with you, and thank you for coming here. >> thank you talk about it.

thank you, senator. i served from 2002 to 2008. the united states district judge since 1994 and before that magistrate judge since 1979. the author of two volumes. played in a role in the decision to appoint me to the court. i want to make clear as i hope i did in the prepared remarks that i'm here solely on my own behalf. i'm not here on behalf of the judicial conference, the administrative officer, the foreign intelligence surveillance court. actually i think why i'm here today is because by coincidence i happen to have an piece public a week ago in the "new york times" which i made a proposal that i'm glad to be able to make in front of this committee and somewhat more public fashion. in -- >> that will be made part of the

record. >> thank you. very simply put. what i proposed is that congress amend the foreign intelligence surveillance act simply to give and sort of officially give the discretion to the individual judges in the foreign intelligence surveillance court or if they -- [inaudible] the ability to appoint a security to representative the interest of the public in and interject to some extect the -- at the level of the foreign surveillance court. i listened with interest to senator blumenthal about suggestion about the advocate that become engaged at the level of the court of review. speaking againstsomely on my own behalf, the origin of those -- of the thought comes from my experience as a member of the court for that period. there were a couple of

occasions, i can't count them. fewer fingers than one hand, i'm sure, in which i felt as a district judge it would have been useful when the government profoesed some new program. some new mained or mean of acquisition it would have been useful to have somebody speak in opposition to the request and hear the other side. that would seems to be accomplishing two things. if decision were available to members of the court, particularly when issues arose under rule 11 of the current rule of procedure, which require that the government notify the judge when somebody new or novel was being proposed. that's what they did when we were there. that was always very useful. in any event, i think my proposal would have two beneficial consequences.

one, as i believe senator blumenthal alluded to. it would provide us with the opportunity of judges to reach more informed decisions because we would heard two point of view. that's what we do day in and day out in the chamber and courtroom or accustomed to that. we are comfortable with that. secondly, create a mechanism, i think is very important for in instance when the government prevails when the surveillance court judge approves the new and novel request because there was a lawyer engaged at the outset that lawyer could seek review before the foreign intelligence court of review and in turn before the united states supreme court. today, of course, only the government can appeal. and the government has done so, i believe on a couple of occasions. i'm familiar with one. there was nobody there on behalf of the other side. and as i said, i think that my

proposal is fairly simple and straightforward. economically, and very useful. thank you for hearing me out. i welcome your questions as to what i have to say. >> thank you very much. the fisa court from 2002 to 2008. i believe -- [inaudible] chief justice -- [inaudible] did i pronounce that quickly? >> a deputy legal director. director of the aclu senator for democracy and the plan aclu versus cropper. challenging the nsa phone records program. litigated several cases. please go ahead. >>. >> thank you. thank you for the invitation to

testify. over the last two month it's been clear that the nsa is engaged in far reaching intrusive and unlawful surveillance of americans telephone calls fisa awards the government to it made congressional oversight intelligence officials have repeatedly mislead the public, congress, and court about the nature and scope of the government surveillance activity. the ordinary federal court have improperly used procedural doctrine to place the nsa activity beyond the reach of the constitution. and structure feature have prevented it from serves an effective guard imran of individual right.lance supposedy

undertake to protect our democracy presents a threat. it's not simply that the surveillance has dramatic implication for individual privacy. plainly it does. pervasive surveillance is poisons for free speech and negotiation. people who know the government could be monitoring their every move, phone call, or google slernlg connell port themselves differently. they'll hesitate before visiting controversial website. before joining controversial advocacy groups and before exercising right that the constitution guarantees. individually those hesitation may appear to be inconsequence. the accumulation of the hesitation over time will alter the nature of our democracy. it will alter citizens' relationship one another and alter their relationship to their government. that much is clear from the history of many other countries.

that have grown. they have been steadily eroded. and the testimonying has become profitable. because of the congress should take certain steps right away. first it should amendment fisa to prohibit dragnet monitoring of american's comiewb indication. amendment that have kind should be made to the fisa amendment act to a so-called business record session 2515 and the national security letter authority. second, congress should end the unnecessary and corosive secrecy that about the government's use of foreign intelligence authority. it should ensure that the gag order associated with natural security letter are limited in scope and duration and imposed

only when absolutely necessary. it should require the public indication of fisa court opinion that evaluate the meaning, scoping with or constitutionality of the foreign intelligence laws. they are subject to mean lful judicial review and clarify by statute circumstance which they can challenge it in ordinary federal court. and provide for open and adversarial proceedings in the fisa chart when the government surveillance application raise those kinds of novel issues in statutory or interpretation. it should enact legislation to ensure that the state secret privilege is not used to place the government surveillance activity beyond the reach of the court. thank you, again, for the opportunity for testify. >> thank you very much. mr. baker, i -- [inaudible] you are originally general counsel of the national security agency.

assistant secretary of policy department of homeland security. we're happy to have you here. please, sir. go ahead. >> it's a pleasure to be appearing before you with the other member of the committee again. two point about the program that are important to begin with. first, the kind of information being gathered here. phone numbers, phone records, billing records in essence is certain information that million subpoenas a year are served by law enforcement on phone companies today. this is not data that is kept out of the hands of government by existing procedures and not data that has been abused in over ways since they have been doing it beginning of billing records almost a century ago. it's not extraordinarily sensitive information. and neitherrer is this unchecked program. i think having looked at the order that was declassified this morning, an procedures that have been

described in the past. it's pretty clear that the people who are reviewing these records are subject to more scrutiny, more checks, more discipline than any of the other law enforcement agencies that have subpoenaed a million records from the phone companies each year. the problem, obviously, from the discussion here is that the government gathered the information and put in a data base first. and that is an unusual step. the question is how -- what could we do other than that? if we theft with the phone company and try to gather the information from the phone companies, first they will get rid of the information when they choose to. when it's of no longer of interest to them in a matter of month. we have no guarantee it will be there when we need it. we have no ability to search across the record of the phone company to do the kind of analysis we need to do to find

the folks that have been found with this program. and family -- i suppose we could pay them to put in a format and keep it for a period of time we thought was necessary to run this program. but then you have created a data base that every divorce lawyer in america is going say, well, that's at&t's data. i'm going subpoena it. t not something we really want to do. who is going search it? is the phone company going to search it? are we going ask china mobile to do national security -- are we going access to the servers on the part of the government? which is, of course, what caused the flap over the 702 program in the first place. i think there are real problems with leaving this in the hands of the private companies. that's why as practical matter the government choose the route that it did. the other problem, obviously, that this has been kept secret.

i have to say that the fact is -- i have spent a lifetime doing this say you cannot do intelligence in public because the target are the most interested in how you do it. and what the limitations you have imposed on yourself may be. therefore, disclosing the limitation, arguing about exactly how we're going do it reveals to the people we are trying to gather intelligence on in many cases trying to kill us exactly what it is that we are trying to do. so there's a big cost to doing this in public and have the kinds of disclosure we are having. last thought, i've heard senator blumenthal's proposal, and judge carr's proposal. i have to express some doubt about the idea of appointing a council from outside the government representative. i don't know that's the first

question. who or what is this person supposed to be representing. are they representing the terrorists? are they representing the court? are they representing some abstract interest in civil liberty or let them decide. i'll stop there. i would be glad to answer questions. judge carr, what about your --

to conduct our foreign affairs is maintained. i'll not tilt one way or the way. to some extent, i would hope if

the process were in place would enhance public confidence in the results reached regardless what they were and particularly though, when they favored the government. the public would know somebody was in there speaking on its behalf generally and broadway in opposition to the government's request. >> thank you very much. senator blumenthal, i'm going to turn over to you and then both sides we can recess. i thank you very much. thank you, mr. chairman. i think the proposal that i will be making in my legislation very similar the suggestion you have made. i want to thank you, judge carr, for the thought that you have devoted to subject and the very insightful idea that you is -- have suggested. there are other stances, as we

know, where the court appoints council from time to time in civil and criminal spreadings to representative in essence the public interest or some, perhaps nonidentifible individual who might at some point in the future have an interest in the proceedings. and indeed, in this instance what i propose is an officer of special advocate whose attorneys would be precleared and whose security credential would be on par with the effect the prosecutors for the government and on those novel or significant issues of law that arise from time to time could represent in essence an opposing point of view. a different side as judge robertson put, the basic idea is that judges are accustom to

hearing two sides of an argument as you have articulated. so well. so i think some of the practical objections are easily addressed, and what i would like to ask you is whether there are in fact significant and novel issues of law that do arise from time to time where you think either before the fisa court or on review ultimately the development of the law would be enhanced by having an opposing point of view. >> i do. and i think to some extent you can look at rule 11 of the court rule procedure which require the government to call the judge's attention to something that is new and novel. so you already have in place sort of a flagging mechanism and that actually codified the way things worked in any event when i was a member of the court.

the government was an honest broker and said judge, look at paragraph 73 to 78, it's something you haven't seen before. there were times when it happened when scrimp -- simply to hear another side. i wished or hoped or desired that there is somebody else picking up and giving me a different view. let me say, senator, i find your proposal interesting and worthwhile. i would suggest bring it downtown level of the itself. don't wait for an appeal. that way you'll have a fully developly recorded. the arguments would have laid out. the judge would hopefully reached a reasonable and informed decision and written opinion with reasons that then whoever is unhappy with it can be taken for pellet review. that's the way it works normally. that's the way it should work in the foreign intelligence. >> to some extent. you have already and -- anticipated my proposal.

it would, in fact, enable representation of two sides in the fisa court as well as the court of review because, as you well know, a record is essential often to determining an issue of law simply to clarify what factual issues are at stake. i think for the important point for people to understand, it really goes to perhaps some of the objections to the proposal in the criminal context which the warrant is issued, it is almost always exparty. always ex-party. exempt time sometimes in a grand jury in very exceptional cases 0 poagz counsel is present. then at some point, the qef admissibility arises to the evidence that is garnered as a result of the warrant or surveillance or ore means --

other means of activity by the government. that the point, there's a public hearing. >> and -- also keep in mind certainly with an ordinary search the subject immediately comes home the door has been broken. knocked down. but if indicted he can file a motion to suppress even if not indicted. the subject can file motion under rule 41 for return of property. give me money back, give me whatever it is back. there are mechanisms that are available to question and to raise the challenge and legitimate sincerity what government the has done. that's one of the purposes my proposal is to enable the opportunity to test the legitimate sincerity of what the government has done. day in and day out something i want to emphasize the applications that the foreign intelligence review, they are

fact-based. they very low standards of probably cause, and properly so. as another witness mentioned or one of the senators. this represents what i consider to be a bril janet fisa -- brilliant comprise. reached by the legislative branch in a constitutionally uncertain area. where in the article ii does it say that the court has anything to do with the president's conduct of the foreign affairs? and the other hand, the fourth amendment applies to the president. and nobody knows how far either of those reach. that's why the fisa is useful and, i think, effective. >> this proposal, while it might lend i.t. to greater transparency would still keep secret the fisa court proceedings at the stage when secrecy is paramount for the search and surveillance activity. simply enable and i think you have used a key record the testing of the government's

claim that the surveillance or search is both legal and necessary. >> actually, if i can say, senator. we don't consider, i'm speaking in the past tense. i didn't consider the -- i don't i judges consider the necessary sincerity for this surveillance. that's quite clear under the act. the only probably cause of foreign government active on behalf of foreign-terroristed based organization. that's it. we don't second guess. >> mr. baker, let me ask you, does any of this discussion between judge carr and myself allay some of your concerns? [inaudible] some of the concerns, yes. obviously if you have a full office ready to do and focused on the court of review where the issues are keyed up with, it is easier to justify having a special council appointed.

i do have to say that i question the assumption that creating this office will make people feel better about the functioning of the court and the national security app are apparatus in general. it will necessarily be secret, and i have watched as the general counsel of the national security agency try to act as an advocate for the public interest. as the inspector general of the national security agency was put forward a -- of the office of intelligence and the justice department said we will represent the public interest. we are not in bed with the intelligence community. we'll ride herd on them. every time there's a fuss, well, even the clerk who serve the fisa court as a kind of institutional second voice. and none of that matters at the end of the day when a scandal of

this sort blows up. i question whether people won't simply say, well, it's sure this person was representing the public interest, but he got his security clarns from the government. he might paid. his staff is paid by the government. it's really just a sham. so i fear that this won't have the effect you're hoping it will. >> well, hopefully it enhance and give people the trust in the system. maybe i should ask that question of mr. jar issue of would you ad others with you very commendable and admiral commitment to civil rights and civil liberties be somewhat reassured. i'm not saying that you would give a gold star, necessarily. it would provide some reassurance? >> absolutely. absolutely. i do think it would provide some reassurance.

i think it's important there be some form offed aer have -- especially when they raise issue of interpretation that are new. i think that one of the important rule for the special advocate is to press for transparency where transparency is appropriate and possible. i think it would be a very significant improvement to the system now. i don't think it's enough. i think it has to be paired with other reform including reform related to transparency and a a narrow i are of the substantiative standard that the fisa court is applying. but i absolutely do think it would be a step in the right direction. i would agree with you that some greater degree of transparency on the orders and opinions so that the public has some greater access to rulings of law at the

very least with sensitivity to the need for redacting details that security may require as well as i don't know whether you were here earlier. i have a proposal to change that selecting the member of the fisa court that would in essence give the chief judge of the court of appeal a role in designating the individuals so that the chief justice of the united states supreme court would not be the sole source of those appointee. i think moving in this direction would not only be good for the credibility of the court but good for the element justice of the outcome in protecting right and liberty. >> on the transparency point, mr. baker said earlier that we can't expect the government do intelligence in public. i think that's a fair point. but i think it's crucial to remember the distinction between law and policy on one end and

sources and method on the other. the public has a right to know what the government's policies are and what the legal basis for the policies. and that's all anyone is asking for. nobody is suggesting that the factual basis for the government's surveillance be disclosed or the surveillance's target name should be disclosed while the government is engaged. debate isn't about that it. it's about should the public know what the government's policies are. i think in a democracy that shouldn't be a debate at all. >> senator, if i may, i was appointed in effect by the chief judge of our circuit. the way it worked with me. i was one of the judges appointed the four positions created in the patriot act. judge martin had been well aware of my interests because of the work i had done in publication with regard to electronic surveillance generally. it's my understanding that the chief justice called upon the administrative office to reach

tout propose somebody that happened to be the sixth circuit turn, apparently. and judge martin called me and said i got a call from ralph. i'm forwarding your name. at least when i was appointed, ten or more years ago, it seems to me that might be cod fying the practice. >> it may be, judge carr. but we have no idea because the process is so secretive -- >> right. >>. >> -- and the effort to formalize what happens behind closed doors or behind the chief justice's office may enhance some confidence. at least can't hurt. >> well, also, one other point on the issue. rules for the advocate -- however you want to call it. in urging that portions or complete opinions both on the

court of review become public. i think that individual -- i hant -- hasn't thought of it. diligent and see to it that the extent that anything can be disclosed that it is. >> unfortunately, i've got a -- i think, i am probably the only senator at this point who hasn't voted. [laughter] and i have to app apologize myself to do so. i think i have authority to close this hearing. the record will remain open for one week. i want to thank each of you for being here. your testimony has been remarkably helpful and effective and i will be calling on you, again, in the course of my work on this issue personally, i'm sorry more of my colleagues were end here to hear you themselves. i'm sure they'll review a record

what you had to say. thank you very much. this hearing is adjourned. >> thank you. [inaudible conversations] [inaudible conversations] this weekend on c-span live coverage of the national governor's association annual summer meeting in milwaukee, wisconsin. this year the nation's governors does national infrastructure and the global economy. sunday live at noon on c-span2 booktv in-depth. hear questions for author and head of pediatric neurosurge. on c-span three american history tv 1968 from the assassination of martin luther king, jr. and

robert kennedy. we never really know about what to do with our first lady. that is particularly true in more recent times. on the one hand they are expected to have causes. you can't imagine a first lady today without a cause. on the other hand, those causes are not permitted to intrude upon law making or an official capacity. so it's all what has been a tight rope, and seeing how each of these women walk that tight rope tells you a lot. not only about them but institution and the society they represented. >> next week, we'll begin our encore presentation of our original series "first ladies; influence and image."

next week martha washington to an mrs. van buren. starting at 9:00 eastern on c-span. coming up tonight on c-span2. a senate foreign relations hearing that looks at way to improve security at u.s. embassy overseas. and governors from as cro the country meet in milwaukee for the official national governor association summer meeting. today the state department issued world wide travel alert focused on regions in the middle east and north africa after the department received information that al qaeda could be planning attacks throughout the month of august. as precaution they announce they would be closing as many as 21 embassy and consulate in countries such as iran, egypt, libya, afghanistan, and yemen effected sunday. it remains