in the ad is a person i was able to get information and knowledge we have different views on whether that was a good thing or not but that line is that this is something the government wanted to protect to try to protect and it wasn't able to protect it and all of this information was collecting now on that information is protected. ..

to have that wave forked the gag orders. what are the elements in the bill you are think are promises moving tbhard address your concerns? >> i think the provisions you just described are crucial to the bill, and for that reason we have the aclu strongly supports the legislation. the sense of legislation. you know, one thing i'll say on that it got to be the beginning. it can't be the end of reform in this area. there is a lot of surveillance that go on nods are outside the

scope of these particular provisions being addressed in the bill. a lot of surveillance goes on under 1233 some of the documents released last night have to do the surveillance. then there are structure issues that have to be addressed too if you're going to ensure that surveillance is used in the way it ought to be used. refresh her recollection, you have need stronger protection for whistle blowers. make sure they feel protected bringing it to light. you have to have some way to ensure that the courts can review what the government is doing. i'm sure they can bring the institution to bear on the activities. and in the past over the last decade a standing doctrine have been used to certainly immunize the government's surveillance activities from review by any ordinary federal court. and there are some proposals floating out there right no to

address that particular issue. i think it's important as well. >> okay. mark, you put on the table predicate acts, as well as particularized showing prior to collection of information. what are your response to the proposal. what would you like to see in term of any reform that might be put in place? >> i guess i would step back and get to that point. i think mark's -- sort of that step back is useful. i viewed in term of the accountability question that there have a deal struck with fisa and the intelligence committee that there was an understanding that much of what we do in the intelligence committee when it comes to surveillance to hear classified

information to understand what the intention community was doing and said these are the accountability provisions. these are the ways in which the government is going ensure that the intelligence committee the executive branch is accountable for what it does. in addition to that within the executive branch and former general counsel and i worked on the side of trying to ensure that the legality of these programs and inspector general. there's a whole regime on the executive branch side as well. the idea always was that the accountability would be achieved through these heck ni. that would appropriately balance the need for secrecy and tran parent simplified. that's, i think, you know, mark's point opened up that question. is it enough. is that accountability mechanism which we continue to operate. to your question, laura, on the

question of proposal -- lay out where we've been on the question. i think 215 has been effective. i would like to see us continue to be able to collect the bulk data on telephone calls in the way we have done so. there are ways we can limit in term of the retention period and the way information is used. again, it's a misimpression to think it's the government trolling through data. this is control in place limit the circumstances under which the government can query the data tap. think about a semi hypothetical. so stay there's an attack a bombing on the major -- boston bombing. within a few days you have a suspect or two very suspects quickly identified. and you have a cell phone. for at least one of the suspect.

the question is can the government take the cell phone number and query the meta data to see the phone call the number is made and the numbers made to that phone call? there's a number of ways. one way to go each of the providers and ask them individually for the information. and hope they kept that information for long enough to be relevant to provide the information you need. whether it's three months, six months, a year. the other way we tried to this use 215 program. collect the data. and limit the circumstances under which we can use it. but then have a data base that can be searched under strict control to see what number has called or been called from. in a they determined at that moment when time is of the essence are there other bombs, perpetrators, associates as part of a broader investigation. i think it's useful to think about how the 215 program can be useful.

to acheefl -- achieve the speed and aguilty. >> quick question. was it ended if -- not helpful. what would you like to sew -- see with regard to that? >> i have to look and see what the documents said. haven't had a change to see the documents. the meta data program. the internet meta data program publicly stated ended because nsa determined the operational benefit were not -- >> as for the internet is that the e-mail. >> that's the e -- >> under -- that is -- [inaudible] yeah. yeah. >> so it's internet and -- internet meta data. >> okay. >> can i just -- i just want to pick up on mark's typically very thoughtful actual

seriously [laughter] analysis. i think t the right way to frame the question, which is how do we accommodate oversight? number one, with the need for secrecy. i mean, if you representative said the american people have a right to know what is being done in their name. if you take it literally it would shut down the intelligence community. because we cannot conduct activities to protect the nation if it's all done in public. and no other -- to my knowledge no other nation has a degree of transparency or judicial oversight that we do. but you also need to take in to account, i think, the different nature of foreign intelligence collection and criminal wiretap in the title three context. you have a known suspect, you are investigating a known criminal activity, and it's very easy to focus that. foreign intelligence by its very nature consistencies of gathering a lot of data and

trying to analyze it and trying to find the thing you don't know yet. and so i think that is right. we need to think about what is the right to grieve oversight. not going to translate -- >> let me say break out to a round of songs. [laughter] i think i will take issue with something that matt said a moment ago. i don't think there's any readies piewt about the need to have a separate procedure as oppose to routine criminal investigation. i agree with what bob said. as much as i hate the phrase strike the plan. i think congress struck the appropriate balance in 1978 with a passage of the foreign surveillance act which was an attempt to take what was

understood to be, you know, the special case. the narrow circumstance, the agent of the foreign power operating within the united states, and construct a statutory frame work with judicial oversight. some public reporting. very minimal. but again, as a special circumstance. i think the reality in post 9/11 america is the special case has literally swallowed it. if you track the number of tight iii warrants that are issued each year as well as the number of fisa orders, which i do. you'll see a cross over point to 2003. that was the year in which there were more fisa orders issued than there were title iii warrants. now the comparison is, you know, imperfect. but i think it's actually in some respects accurate in that how we understood the use of surveillance authority in the

u.s. moved from the higher standards established in the '68 act which i talked about to the lower stharnd congress created in 1978 for this special circumstance of fisa. if we need, you know, any further evidence of how far we've come from 1978. i hope we'll have some time to talk about it. you look at the order signed by judge, an order from the foreign intelligence surveillance court issued under the foreign intelligence surveillance act for the collection of foreign intelligence. it's directed toward a u.s. television company for telephone records and customers concerning solely domestic communication. you can't imagine at least i couldn't imagine a greater distance between the intent of the framers of the act than the current you of that authority.

>> just to take it one more step . you know, there was this deal struck in 1978 which perhaps made sense given what kinds of surveillance people were contemplating at that time. and what kinds of questions people were contemplating the fisa court would actually address. but the idea at that time was that the too is a court would evaluate individualized applications for surveillance of the government would, as mark say, identity a agent inside the united and the court would evaluate whether the government had shown probably cause with respect to the particular person. if they found they had demonstrated probably cause. but that kind of analysis. that kind of task is very different from what the court is doing now. if you look at the opinions released over the last few months. the court isn't just saying this

person is a foreign agent and you can wiretap his phone. what they are doing is issuing broad interpretation of federal statute of the constitution and authorizing dragnet programs. but of everybody. and it is actually, i think, a jarring and sobering fact over the last decade some of the most significant and far reaching judicial opinion issued by the american court have been issued by a court that meets in secret. from what anybody had had in mind in 1978. even if you accept the deal is a right one. we're now in a different world. and i think it's time to ask whether we need to -- if this is the right metaphor strike a different balance. the oversight is necessary and

accountability. what is challenging is whether they are sufficient or not. what your thoughts on this in light of the concerns about the foreign intelligence court and the opinions that have come out? the movement of rfa to the nsa. what is your position on how the court is instructed. i think it's odd in the consecutive breadth people can say they meet in secret and only can point the opinion to the surveillance court and how they wire brushed that's for the compliance activities. i think that and matt, i'm not going ask matt to comment to appear before the court. but they -- the way the court is structured now. they have their own legal advisers. there is a vigorous back and

forth between the government and the court. i think the judge who was the chief judge of the the court wrote a letter to forget whether of it general leahy or who it was recently in which he said that approximately 25% of the application submits gets return by the court for supplementation or modification. and that include all of the we're not only talking about the kind of programmatic thing but still the original tight i oneoff individual target historically prior to 1978 not subject to judicial oversight at all. and a degree of judicial oversight is unique. having said that, i think

there's obviously a sense that the public would be more comforted if there was an opportunity for some -- for another independent voice to be heard before the court. and we have indicated we can support a proposal to allow the court what it's presented with difficult issues of law or complicated questions affecting privacy to go outside, gate clear lawyer to come in and appear with an amicus. and argue the other side or support it in the other case. it may be an independent voice to be heard by the court. >> this is the same position of the obama administration. the president said he would support a special advocate of some sort. he hasn't gone so far to endorse. perhaps you comment on what it's like to practice before the court so we can move forward with. >> i'm actually 19 years old and i just time trapped -- [laughter]

i was a prosecutor here in d.c. for 12 yeerd and had a lot of case before the district court here and tight iii wiretap of the application. there's a lot of similarities. the article three district court judges that sit on the fisa court. there are a sloft similarities. the procedures and substantiative standards between are similar between article iii, you know, criminal court and the fisa court. what it mean for a practitioners and the security there's a sen of a heightened responsibility. a special responsibility and duty of candor to the court

beyond which a government prosecutor might feel. that is born of the ex parte nature of the proceeding as well as the fact they are ongoing relationship that exists over time. so the lawyers in the division always present all sides of an issue. so the one check on that, one aspect of the fisa court practice that makes it a little more and the judges are very demanding. it was being revealed in an opinion that happened.

>> mark. >> i wanted to make a couple of point. bob mentioned the letter from the judge which actually was to the chairman senator leahy on the pushback which fisa court does give to the applicant seeking the authority. he noted there had been no opposition from any party upon who had been served. in the history of the fisa court, which of course we think is significant. because there's the one opportunity provided by the statute for an actual adversary to raise the question as to whether or not what the government is exceeding statutory authority. and that provision has never been exercised. so i think that's a bit of a problem. the other thing which i'll say. again, fully respecting the criminal prosecutor. when a criminal prosecutor goes ex parte before a judge to does

tight iii application or warrant. there are obvious reasons why you don't want to tip off a target about a pending investigation. but the key to the when is so problematic about able guising that strategy to the fisa court. you have authorities for both collections. there's not a particular person you have in mind. you're simplingly say i believe we met the legal standard to collect the telephone records.

and ex parte process. if you look at the rulings release bid the administration over the last few months. they are ridged with claims by the government accepted by the court. that would not have been accepted if there had been an adversarial process. or at the very least tested more vigorously between 2008 and 2013 that it was not sensitive. there's a debate to be had about sensitive precisely it is. the idea it is sort of categoryically nonsensical. it's not true. it's false. if there was a party on the other side to say it's not that simple. you would have, at the very least, seen an analysis of that

issue in the court's decision. the government told the court that the call record of the governed by smith versus maryland. and the kind of dragnet seven-year program that the government is engaged in right now. finally, in some way most fascinating. if you look at the intention the judge issued in 2008. the end of 2008, i think. the program had been in play for three years and then a government attorney figured out thrft actually a statute that on its face prohibited the government from using section 215 to get call records.

the government went back to the court and said we identified the statute present a space to what we asked you to authorize three years ago and what we've been doing for the last three years. then they said to the court there's a way to read the statute to allow us to keep doing what we're doing. by the time they went to the court the program was in place for three years. to ask the judge to find that the statute was -- was asking the judge to say he had been wrong four years ago. it would have been -- the court was invested in the program by the time the government raised the argument. maybe those issue would have come out the other way. maybe they wouldn't have. the point at very lee they would have been tested more vigorously. >> row are raising a policy concern, a statutory concern, technological concern raised. bob, do you see any changes that could be or should be made in order to account for this

suggesting that you talk about the activity there's no, to keep it secret. you're not tipping anybody off. it's not correct. we are able to conduct the surveillance because of the fact that people use communications facilities they don't necessarily focus on the fact that we can intercept those communications facilities. they are focusing now as a result of what has been leaked. we know that.

and that's a way we are with respect to the long-term impact of the revelation. but are people going to change their communication pattern? we don't know but know they are talking about it. i think there's a bit of what become an -- if we accept, you know, bob's argument, i don't sigh why i can't make the same claims with regard to financial records. they can't make the same claims to, you know, travel records. or all the detailed locational data that becomes increasingly available. i think we need to be to draw some of mind here.

>> one point in response to what mark said.

taken by the fisa court. an opinion that was disclosed and declassified back in 2009, i believe. which laid out the fourth amendment and statutory basis for the government's collections. so this is a case where the government went before congress and said we want to restore fisa to the original intent to allow the government to collect against non-u.s. person overseas.

they is a court of review and unclassified opinions. here is a case where there was transparency. congress supports exactly what was going on. that was reveal the criticism -- there was nothing new with respect to what was in that initial article to what the government was doing. so i think there was transparency there. that's where i guess i would take issue is that it was gone secretly or without the unking of -- with that matter, it look like -- [inaudible] >> mark, response? >> no response. >> can i just add one thing there. i think that he noted in the

late 70s there was a sense there needed to be greater oversight of the intelligence activity. it was set up true the intelligence committee. and under fisa we are required to report significant decisions not only to the intelligence committee but to the judiciary committee and i'm sorry if members of the judiciary committee don't feel they can attend classified briefing. if they want to learn about it they have to attend classified briefings.

take place while still ensuring they are watched over through the intelligence and judiciary committee. that's the way we determine it ought to be done. that's been followed. >> i think that bob and matt have to get on the same page. i hear matt saying there was transparency -- i agree with everything matt says. [laughter] if we tell you then they can't be effective. i think on the 702 question. t not true that government was -- how the statute of the going to be used. there was a lot of nerves in 2008 when the statute was

passed. when we passed the constitutionality of the law in an ordinary district court and said it's a statute that can be used for dragnet surveillance on the international communications, the government's response. you can read it in the brief the government's response is you are paranoid. it's speculation. you have no proof we're going use it this way. you can't be shown it can be use this way. it was their position to the supreme court.

i think that the story that is out there right now based in part on reporting in "the new york times" and "washington post" is that the government engages in precisely that under 702. if not true you should correct the record. i'm not sure what they're referring to. 702 allows us target non-u.s. persons outside the united states with a collection of foreign intelligence. that's what we do.

so two point. one, we actually did a brief in support of the case to the court clapper. it was an empire kl brief. it was experts in the field of signals intelligence and the capabilities that the national security agency. we basically outlined for the court in support of the aclu contention that people had good reason to believe that their communication was stownlt interception. we provided and based on public records what we could detail about the nsa's capabilities. which turned out to be we didn't

have access to the downtowns that mr. snowden subsequently made available. and then, of course, still waiting that and opening joke on our case and ending toward the end to talk about the significance of the fiscal order which established without a question how the authority was being used. but i just wanted to come back to bob's use of the term dragnet. and it strikes me almost precisely correct in the application to 215. because what you do when you got telephone companies is you literallily collect all the data that you're able to gather. determine what is of interest to you. if that is not dragnet surveillance, what is? >> bob?

>> well, i was responding to the comment about 702, 215 is a different program. it is a program where we collect in bulk allege do it under 215 showing made to the fisa court and accepted by fisa court that that is the only way we can get the information that is relevant. it's not paid an approach we routinely use in exercising authority under fisa. it was cone in a specific case based on a particular showing and based on a particular set of restrictions by the fisa court. >> and i think -- i think what was said before with the fisa court and the court now -- an i don't know a ?urm of fisa court judges that approve the program. but the notion they don't grapple with the issues. i mean, i can attest to the grappling that goes on by the court. i mean, look the government we take position we would be open

to look at ways to increase public confidence in the paren of an amicus-type rule. but the reality is that the judges in extraordinary good faith grappled with the exact issues. and in fact we know that since these -- the debate sort of has come to light and no disclosure that another judge of the fisa court was full recognition of these obviously that these questions are being ask discussed in forums like this. again, reaffirm that collection adds institutional inconsistent with the statute. whether it should be 11 or 13 judges. various changes to the judicial

design. fisa. and he talked about the need for clerk of national security. that was his phrase.

they have been nominated and confirmed be i the senate. so i don't -- i don't have a perspective on the different way to -- [inaudible] so put forward is ten of the 11 republican appointee currently. the number of -- 17 of the last 20 have been republican. the fiscal review are -- considering reform of the the court exactly how t appointed. t not clear to what extent it have an impact. i'm not sure -- makeses a lot of sense and

probably serve the government's interest to have a process seen as a fairer one and that resulted in and were represented. that said, -- the fundamental problem we have the wrong on the fisa court. and i think all the secrecy surrounding this allowed this entire body of law to build up without the kind of rigorous oversight by congress or the public that usually happens with ordinary judicial opinions from ordinary court.

issues a ruling, for example, to allow the government to engage in. not suspected of terrorist. that opinion is splashed over the front page of the newspaper. congress can debate it. the fisa court opinion don't get that kind of oversight. and then you get like last night when the opinions came out, i think there was genuine surprise across the political spectrum among legal theorist and

academic about court's fourth amendment able sis and the court's analysis of the statute. even support that the government is doing or it's a as a result of the secrecy. >> matt, response? >> i don't -- the question is how much can we afford to provide how much secrecy how much transparency can we afford and maintain the operational of the program? i agree with the idea in 1978 it wasn't necessarily contemplated that the court would be looking at programs like 215.

nonetheless, i think that the record now that has been revealed is pretty convincing that the court approaches us these questions with, you know, a degree of seriousness and full familiarity with the case law that controlling and really an impressive job. >> and as a final point on the court's construction. the statute is set up for serve for staggered seven year term to be drawn from seven of the district.

they turned down the petition the day before the cop fence today so we could talk about it. [laughter] so very thoughtful and we're grateful for that. but no, actually a little bit more seriously. i think the petition which -- distinguished group brought to the supreme court teed up almost exactly the right issue.

but then i realized it was an order for the fisa court. and from that moment forward, you know, we did everything we could to bring this issue to the one court that we actually believe still believe has the authority to overturn the order. and i just want to take a moment here and thank our appellate advocacy counsel who has done a lot of work on this case and other similar cases and georgetown students that are looking to do some interesting litigation. we have openings for clerkship. >> we have job openings too. [laughter] >> just to be clear as to the legal argument to the two simple points here, one, is that we don't believe that section 215

has currently written and we concluded it was the only court that we had basis to bring this matter to. i i have to thank laura and former member of the church committee.

joined by randy who was involved in the affordable care act. where the substantial legal opinions. and they are substantial are coming out of the fisa court interpreting statutes interpreting constitutional law

there are 16 cases one submitted to the surveillance court. you're arguing on friday in clapper before the in the case i was referring to earlier the one we took to the supreme court earlier this year. couldn't show their communications have been collected under the law.

measures to protect their communications from the possibility of surveillance and that gave our clients standing. but that was in an argument that the the court rejected. but the important point to that case is the government's argument they couldn't show collection. now we're back in court arguing that the call records program is unconstitutional. we have a court order that shows our communications were collected. the aclu is a verizon subscriber .

until ?b can show the communications were reviewed. if you accept the collection isn't enough that review is necessary. there's there's nothing that stop the government from recording every phone call and copying every single e-mail. from creating a huge data base of location information. on the day that the information becomes relevant and the government wants to review it, on that day the government will finally become answerable to the court for the activities. but you would be accepting a whole lot of government

surveillance essentially limitless government surveillance. by definition surveillance that doesn't cause an injury and that's the government's argument about the surveillance of information that not actually reviewed. that's surveillance that doesn't cause an injury. on the merits argument lines up pretty much with what mark was describing earlier. >> bob? >> so actually, the government lawyers generally have a practice of not talking about matter that are currently in litigation particularly when --

very reluctant to sign the district court had juries kirks over the foreign intelligence court in the cases. how are we the challenge? >> well,, you know, we're not actually asking the court to review the border of the foreign intelligence surveillance court. we're not asking for the kind of relief that mark was asking for in the supreme court.

government surveillance even when it's been authorized by the fisa court in dozen cases ever every year. federal court around the country review the constitutionality of fisa court -- it's nothing new. and one of the arguments that the government made in response to -- done with the aclu did and gone to the federal district court in the first place. the government is conceded. that the court has jurisdiction to hear our case.

is founded by executive branch structures oversight to congress and a number of ways. the executive branch follow the law. now civil litigation is one way to enforce. it's not the only way to enforce the legal restrictions on it. >> okay. thank you very much. so we're going to go ahead and open it now to questions from audience members and people who are here. yes, please. please come to the mic. if you'll state your name and afghanistan, -- affiliation, that would be great. >> i'm an attorney in washington, d.c. and to followup on matt's point,

my question is: what actions are you taking to ensure that data collected under fisa, which is used in criminal investigations and subsequent criminal cases is to the deafen? >> it requires the disclosure of -- and certain type of proceedings particularly criminal proceedings. where there's -- as i was a few years ago in the circumstances, but -- to be used in a criminal prosecution there's an obligation to disclose that. >> bob? >> no. matt's got it right. >> it might be worth noting between 2008 and about a week ago the government never gave notice to any criminal defendant even though it now appears faa was used in the criminal prosecution.

there was actually a great story about this by charlie in the "new york times" about the fact that the solicitor general went and argued to the supreme court and clapper earlier this year represented to the court that exactly as brad said that fisa amendments act requires criminal defendants to receive notice when the government is prosecuting them on the basis of are -- or dedrived from the fisa amendment act. it seems they changed that policy which is a good thing. mark? >> no. [inaudible] and some of the security agencies about what has to be

released and what can be done to ensure what you have said especially about past prosecutions concerning past prosecutions to ensure that data is in fact revealed to the defense. >> well, i don't think there's nidis connect between the department of justice and the agency. the interaction in court is done by the department of justice. they're the ones who make decisions as to what is disclosed and not disclosed. there was never a case in which evidence -- first of all, there's never been an issue with information obtained under the other provisions of fisa. there's never been a case -- focus on what is fisa derived in this context. and the department of justice is made the determination notify

and that is the department of justice's call. they don't. it's their prosecution. >> okay. >> i want to ask a question. i think you're raise an important point. i was just on a panel with mr. him whoft who was head of the national security. and he was describing a procedure for the use of fisa-derived evidence and struck me as a little bit troublesome. i want to push back on bob and matt a little bit and ask if my recollection is correct. he was saying there were circumstances where the government did not want the

defense counsel to have access to fisa-dedrived information. obtained to establish what ever legal standard was necessary to go forward. is that correct? am i misremembering what was said? >> there was a -- and what happens after that. it's true throughout fisa there are materials that and there's information about that

being used to prosecute them. >> thank you very much. another question? yes. in the document released last night the dni i revealed among other things there were some oversteps including 200 analysts

from cia who were given access to report derived from some of this information -- how have you changed that process in that we read these older court cases now over the past six month that been released piecemeal which nsa turns itself in for violence. has it gotten any faster for a detection of a problem and reporting it to the fisa court? i mean, if you're trying to weapon back the publics' trust, can you show that you're getting better at policing yourself under these laws? ..

>> number two, you have stuff that's immensely complicated. i mean, i use the analogy of everybody here has computers, and every other day you get a notice from some program saying an update is available. please download the update. every time a communications provider updates its processes, it may have an impact on how nsa's collection, lawful collection interacts with that. there's always compliance problems. there's a structure in place now

for policing those, reporting them, and correcting them. >> when the incident happened, can you shed light on how that happened? >> i'm not sure exactly what one you're referring to, but i would say that in having been in nsa and before that at justice, and now at ntct, this happened over time, that nsa has improved the structures, as bob referred to. there's a compliance officer responsible for the compliance program, but overall, there are a couple day nammics at work. one is as bob referencessed, the complexity of the landscape, and the other is over the course of the last 30-40 years, what nsa does, really post-9/11, increasingly touches on the domestic side of the communications, and that also has been a challenge, but working at nsa, i would say you're hard press the to find more conscientious and rule-bound work force than what

you would find at nsa. it's really an extraordinary place. i was proud of the work done at nsa and have a lot of confidence in their abilities. >> i would invite you to rebut. >> if the rules say you can collect everything, it's hard to violate them. you know, it's remarkable how many violations there have been given how broad the rules are. you know, it's important to keep both of these questions in mind, not just complying with the rules, but what are the rules, and are those the right ones. >> just to take a brief step back, i think we're in the middle phase of the three-phase process regarding fisa reform, and the first phase was a long period of secrecy when people like me said the fisa court is rubber stamped, no pushback, orders are approved. i was wrong. as i understand it now, there's push back and dialogue. we have the publication. we are learning more about how

the agencies actually operate, learning how the court interprets legal opinions. this is a middle phase you see, because there has to be a third phase in which we're able to act on the information that's now been made public that we're now debating to put in place the reforms that are necessary, and i think this comes back to, you know, laura's excellent work and the purpose of the meetings. i mean, your question is a middle-phased question. what do you think about what happened? well, it's interesting. like a lot of other stuff we learn is interesting, but more interesting is what happens next. >> okay. thank you. next question. anybody here? make sure -- okay, sir. >> hi. commander paul walker, jag with the navy. the statements regarding the vast chasm, i just wanted to address that and turn it into a

question that might set up the next panel regarding the future, but, you know, in the last 35-34 years since 78-79, smith comes right after a year after fisa is passed. this vast chasm referred to is developed and expanded through judicial interpretation cases coming before the courts, the third party doctrine not limited to business records, but informants. you know, as someone who's clerked in the district court level and four judges, i don't find that the statements that the judges would not look at that and analyze that, that opinion and decisions developed since then to be fairly credible. i think that any judge is going to be doing that, so i think that the difficulty with that becomes that you've got a fairly well-settled body of case law

where, you know, the court has said, and many courts have said in addition in applying that case law, which is essentially what the fisa court has done, that there's no reasonable expectation of privacy in those materials, and we give that up all the time intentionally because of what the court has said. i would ask, though, that in light of jones where at least one member of the supreme court has called into question, you know, the feasibility of maintaining that position on reasonable expectation of privacy, where do you think that the court might take this jurisprudence in the future? >> well, first, i -- >> we know where we'd like to take it, but where will they take it? >> right. first, i disagree op one point of this, this question of what

the law has said with regime jones. i don't think smith controls this case. i don't think it controls the section 215 call records program. i think that was a narrow -- it was a narrow target surveillance of a single person suspected of a crime over a two-day period with primitive technology. we're talking about something very different now, so, you know, i think there's room for reasonable disagreement for how to evaluate the constitutionality of the program we're talking about now, but the idea that smith controls this case, you know, i don't, to use your word, i don't find that credible. >> i mean, i think that's an overstatement too. smith, everything afterwards. >> i don't know of any -- there is no case out there in which the supreme court said dragnets remotely resemble this. >> applied to the circus, come on. >> well, i mean, we can debate that for, you know, a long time, but let me go to the second part of the question about jones. as you note, you know, at least

one justice in jones -- i mean, five justices in jones is not just justice sotomayor, but justice alito's opinion recognizes that there is a new threat to privacy presented by the ag gages of all of the information that we make available either to the public in some sense or to third parties, and there's five justices in jones who are basically saying that the mere fact that you release information, that you vender your information to somebody else or the mere fact that you surrender information to the public doesn't mean that the government aggregates all information, analyzes it without worrying that the fourth amendment will be implicated at all. i think that jones stands for the proposition, those five justices endorse the proposition that the fourth amendment is not indifferent to that analysis. now, what that means in

practice, you know, what it means for the fourth amendment to be implicated by that aggregate analysis is an open question and something lower courts have to deal with, and it's a question that i think will have to be dealt with in the call records case because the constitutional question here is whether the government, and bob doesn't like the word, but dragnet collection and analysis of this kind of information implicates the fourth amendment even if the narrow surveillance was at issue. >> so i think it's important to note that even if you assume that the jones is, in fact, going to be law, the -- what jones is talking about was a very different situation from what we have here. jones is a situation where you are -- what jones -- what was different in jones according to the justices is whether you were collecting so much information about a single person that that person might have -- that person's reasonable expectation of privacy might have been invaded. what we're talking about here is

a situation where you're collecting information about lots of different people, but in terms of fourth amendment law, the question is to each of them, has their privacy been violated? it's a different proposition to say my expectation of privacy is invaded because information about jameel and other people in the room have been collected. the fact of the matter is every case since smith v. maryland, including last week a case in california directly talking about the section 215 program in the context of a criminal case, has held there is no reasonable expectation of privacy protected by the fourth amendment in this collection. that's not to say there's no privacy interest. there is. as i said, that's why we have restrictions on the collection, but the law is quite clear that the fourth amendment purposes now, this is not protected information. whatever may be the case in the

future. >> mark? >> a few brief points. you asked a great question, the looming question, i think, as we move into the substantive realm of the future of the fourth amendment. i don't have much doubt that when the court reconsiders smith versus maryland it's going to reach a different result. you see that not only what's described as a shadow majority in jones, the concurrence of sotomayor and alitos, but it's in kagen and the dog-smith case to bridge the republican expectation of privacy doctrine with the physical trespass doctrine familiar to justice scalia. i think the court is anticipating, in fact, there will be a change. personally, i worked on this on the amendments to the wiretap act back in 1986. we were well awar of the smith decision and the pen register and trap and traition division

came from an issue of statute to overturn smith versus maryland. it's quite odd to me 25 years later to see this tangible records provision within fisa being usedded effectively as an end run around congress, what congress thought it had addressed in 1986, but here's my last point, and i think to just pull a couple key issues together. i think in our modern digital age and noting the value that this information does have to the government and the conduct of surveillance, our wiretap act is almost upside down. we protect the content of communications for historical reasons. we give the transactionable data associated with the communications minimal protection. content is increasingly of less value. it reveals less about us. it's not as easily processedded, does not she the networks, the chaining, the timing, the sequencing of the events which in the digital world turns out

to be much more revealing, and i think over time, you know, we as a society through congress and the courts as well needs to confront the fact that it's actually the digital data that poses the greatest privacy risk than the underlying content. >> all right. thank you very much. >> that was an excellent explanation, appreciate it. >> so we reached the end of our time here. i want to give each panelist one opportunity to say one more thought before we leave the panel. if there's anything that's not come up that they'd like to address or anything they'd like to emphasize, i'll start with jameel. >> i think that i've said what i wanted to say, but maybe i can respond to whatever bob says. [laughter] >> he's reserving time for rebuttal. >> yeah, that's right. matt? >> back to my perspective on the operational side. when i was in law school in my first year, our tort professor said it's always better to make up the law than to look up a

law, i thought it was an inspiring thing to say to law students, but it's dubious thing to say or dubious lesson to those of us on the practical side now. our job to protect the country. that's what we do at the center. we have to be able to take full advantage of the legal authorities in place to do that, and it's very useful, and i applaud georgetown and you, laura, and thoughtful to have mark and jay here to think about where we're going here, and that's really important to do. in the meantime, we need to be able to -- we in the government, in the intelligence community, need to take advantage of these authorities as they exist, and we need to have some certainty about that, and that's what i -- what i'm concerned about right now is that we're in an unstable place, and i think mark and jameel made that point where i'm concerned that some of the operators are reluctant to go up to the line and take full advantage of the legal authorities we have because of the controversy now swirling, so

i look forward to a time where we have the full faith and trust of the american people in these activities and we can go about the business protecting the country. >> great, thank. bob? >> i think that what i would like to suggest we need to consider is what is the best way on the one hand to get the intelligence community, the information needed to protect people, and on the other hand, to protect privacy and civil liberties together because the history of oversight is the pendulum swinging back and forth between why didn't you do more to protect us and you mean you're doing what? we're swinging towards the latter side of it now, but it's going to swing back. it always does. the model that i -- that -- there's one model that would say the way to achieve these both is by putting very strict limitations on what the intelligence community can

collect and say you never get to look at this information. there's another model, which i think is a model applied so far which is allow the intelligence community somewhat broader scope of collection, but impose fairly strict limitations on what they can do with that information and appropriate oversight to ensure they comply with the rules. neither system is perfect either of a way of acquiring information or a way of protecting privacy, but i think that those are the two competing models that we have to balance in terms of what the proper way to go forward is. >> thank you. mark? >> well, i'm just going to close with a big thanks for comment, and also, you know, express real gratitude and respect for matt and bob's role. it's kind of easy, you know, for folks like me, to have opinions and express them, but it's a different world to be responsible for outcomes, and i do understand that. at the same time, let me tell you what really concerns me.

i think there are institutional dynamics and powerful technological changes that are driving us towards certain outcomes where mass surveillance becomes de facto, where decision making is increasingly rootized where the logic of the decisions is increasingly made secret, and i think if we don't take this moment, based on the information we've obtained, to put in place some robust safeguards and structural reforms, what might evolve over the next, you know, couple of decades will be quite scary, and to give you just a little -- little flavor of this, what we do over at epic, we're trying to understand, for example, why do certain people get pulled aside for secondary screenings at airports? why do certain people qualify for precheck and others don't?

there's determinations that are kept secret applied it a large number of people simultaneously under various national security counterterrorism theories. that logic can expand just like the government's logic in 215 that having a lot of data in place when you need it justifies gathering all the data before you actually have an investigation underway, and i think we have to take this moment to anticipate that problem and try to prevent ending up at that point. >> thank you very much. i hope you'll join me in thanking the panelists for an excellent discussion. [applause] [inaudible conversations]

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[inaudible conversations] >> we'll call to order the hearing of sub committee on effectiveness on federal programs and work force. this is entitled safeguarding our nation's secrets, examining the national security work force. i will say that senator portman will be here late and will have to leave early, unfortunately. it's not because of the importance of this issue. it is because we've got a defense authorization bill on the floor, and that's keeping a lot of the folks who wanted to be here today away, but we will do our best to get as much good information as we can on the record as we proceed through this so that they'll have the ability to make good decisions with good information as those decisions arise. from the significant dischow sures of classified information to the tragedy at the washington naval yard, it is abun adaptly

clear to the american people and that the federal government is failing to properly vet the individuals who are granted access to our nation's most sensitive information and secure facilities. >> it's about agencies improperly adjudicating clearances and about pure volume. today, there's nearly 5 million individuals with a security clearance. you heard me right, 5 million. there are no indications that number will decrease any time soon. it only takes one individual to slip through the cracks. one individual who could do untold damage to our national security by exposing sensitive information about government actions and programs, one individual who, with no moative,

with no warning could kill 12 men and women in a secure government facility on a random monday morning. now, we've got to get it right because there's no margin for error. this focuses on the definitions of positions in the federal government as sensitive to the national security as well as requirement for government personnel to have access to classified information. lacking appropriate guidance for such designations, federal agencies are currently relying on a patch work of executive orders, federal regulations, and office of personnel management position designation tool that was not created to address security related issues. meanwhile, opm and office of the director of national intelligence are finalizing a rule they claim provides guidance sought by agencies and called for by gao and members of this committee. others, including some witnesses here today, have real concerns that the proposed guidances is

inadequate and could have negative and substantial implications on taxpayers, national security, and federal employee rights. these concerns are compounded by the conniers and north over decision. this case involved two federal employees who lost their jobs when their employing agency stripped them of the position status. because of the conniers decision denied employers rights of due process through the merit systems protection board, there's a real potential that tens of thousands of employers across the federal government have just lost fundamental right to appeal a personnel decision. regardless of what drove that decision. with this in mind, we wrote a letter to odni and opm in september regarding their proposed rule in that letter we said, and i quote, from a fiscal and security perspective, far too many questions remain unanswered about the implications of the proposal, and due to the seriousness of

the concerns we share, we urge you to finalize, and questions about the true scope with the estimated cost and number of impacted federal workers are answered. we're here today for answers. i'd like to introduce the witnesses, and senator portman has opening statement, he can do that when he gets here. i want to introduce the witnesses to the panel here today, and we want to welcome them all this truly is a great panel of witnesses. very knowledgeable and distinguished in your own right. first we have brian, assistant director of special security directorate in the office of the director of national intelligence. he's responsible for leading oversight and reform efforts of the security clearance process. he took the assistance director position in this last may after

more than three decades in the cia he testified before the full committee on security clearance issues last month, and i thank you for your service, and i thank you, again, for joining us today. tim curry, the deputy associates director for partnership and labor relations in the office of personnel management. he's responsible for opm's effort to have government-wide programs for labor and employee relations. prior to the current position, he was the executive director of the labor management in the employees relations in the department of defense. tim, thank you for being here and getting through the traffic to be here. brenda, the director of defense capabilities at the management team in the government accounting office, a post she's held since 2007. she's responsible for gao oversight, of military and civilian personnel issues, and has worked extensively on the personnel security clearance program. she testified before the

subcommittee in june about the lack of clearly defined policy and procedures needed to consistently determine whether a position requires a security clearance. it's good to have you back, brenda, and as with the previous two, we look forward to your testimony. david bore is the general counsel of the american federation of government employees representing some 650,000 federal employees including tens of thousands who currently occupy positions deemed sensitive to national security. he's a veteran on labor relations issues and here today to discuss the impact of the proposed opm/dni rule and its impact on federal employees. welcome, we look forward to what you have to say, david. finally, angela is the director of the public policy for the project of the government oversight or pogo where she has worked in that capacity since 2010. founded in 1981, pogo is a

nonpartisan independent watchdog championing good government efforts, and in particular, they have aggressively advocated for appropriate balance of national security and civil service rights with protections and tax care accountability, and angela's work focuses on advancing policies that stamp out corruption and promote government openness and accountability. she's here today to help us understand how the opn-odni rules impacts transparency and whistle blower rights. we welcome you, angela, and i want to thank you and everybody else for being here today to and it's customary to swear witnesses in. i ask you to stand. raise your hand. right hand. raise your hand, please. do you swear the testimony you'll give before the subcommittee is the truth, the whole truth, and nothing but the truth so help you god? let the record reflect that the witnesses answered in the

affirmative. with that, we will give each of you five minutes for the oral testimony. your entire written testimony is a part of the record, and we'll start with you if you want to proceed. please do. >> thank you. thank you for inviting me here to discuss the proposed update to the federal government's designation system. recently, the odni and opm jointly proposed changes tots existing regulations outlining the position designation process. the revisions, which include more details in previous regulation, are geared to ensure a consistent process is applied across the government and sensitive requiring a security clearance. this foundational step ensures that individuals are investigated at a level appropriate to the risk inherent

to the position they hold. thereby mitigating risks to national security interest. our proposed rule for the designation of national security position was published in the federal register for the 30-day public comment in may 2013 with comments due in june. we're in the process of reviewing comments and working to finalize proposed regulations by february 2014. the events of september 11, 2001 drove a dramatic increase in the number of positions requiring security clearance, a trend that continued in recent years. our office reported this year that about 4.9 million federal government and contractor employers hold or have been determined eligible to hold security clearances. the potential risk to national security and cost associated with this volume cleared individuals, underscore the need for executive branch agencies to have a uniform and consistent process to accurately designate

the sensitivity of a position based on the position duties and potential impact on national security and ensure that the individual holding the positions are appropriately investigated and adjudicated with the risk. the concern with position designation is not a recent phenomena. civilian positions in the government are designated as sensitive based on duties and responsibilities for over 60 years when executive order 10450, which first established the requirement for federal employment process to consider national security interests. they had effective programs to ensure employee hiring and retention is clearly consistent with the interest of national security. e0 # 10 # 450 requires a position designated as sensitive if the occupant of the position could, by virtue of the nature of the position bring about a material adverse effect on

national security. this establishes classified information granted on the basis of a demonstrated foreseeable need for the access. they maintain ac says is clearly consistent with the interest of national security. this system requires revision to align with the effort such as the revised federal investigative standard signed in december of 2012 and to ensure a common understanding of federal agencies as to how to designate positions and assure accurate and consistent position designation across the u.s.

government. under e0 # 13467 and director of opm both have related roles to ensure that a uniformed system for position designation related to each to their respected populations of the facility. the proposed regulation is not designated to increase or decrease the total number of national security sensitive positions within the federal government, but rather to ensure that each position is designated accurately. the intent is to issue national level policy guidance to promote consistency in designated positions to address and change national security concerns post 9/11. this approach improves consistency in the level of investigation performed for similar positions and other agencies, thereby promoting efficiency and facilitating rep prosty. this aligns with the

recommendations in its july report entitled "security clearances: agencies need clearly defined policies for determining civilian position requirements." in that report, the gao noted the need for standardized and clearly defined policies for agencies who designate positions as sensitive or requiring a security clearance and for existing position designation tools to be updated to increase such gyps. the proposed regulations incorporate the gao's recommendation at the executive branch agency periodically review, validate, or revise designation of existing positions. this guidance is expected to have positive implications for both national security and federal work force. the proposed rule and revised position designation tool will provide executive branch agencies with consistent guidance and concrete process to accurately reassess the sensitivity level assigned to

the current positions and assure they are accurate and consistent. the proposed rule will help guide agency heads in designating a position as sensitive with respect to national security even if the position does not require access to classified information. this has uniform designations across agencies better aligned with the national security. this process is expected in some cases to result in a redesignation of positions to a lower sensitivity level or public trust designation. thereby reducing cost associated with investigations and adjudications required for the higher clearance levels. conversely, there may be instances in which sensitivity designation of a position increases; therefore, requiring more extensive background investigation depending upon we

designated the sensitivity level. if that happens, the work force can be assured the change is necessary, and based upon the measured execution of the updated guidance deem necessary to protect national security interests. the new regulations clarify the position designation requirement and provide additional details over the previous regulations in order to ensure that positions are accurately designated in a manner that appropriately mitigates the risk. federal work force will benefit from accurately designated positions in that employees will not be required to complete extensive background application paperwork or undergo investigations for positions that do not warrant it. further, a consistent designation and investigative approach promotes clearance reciprocity and therefore personnel mobility between positions of equivalent, position designation, or between agencies. it is imperative that we develop a sound position sensitivity

designation process because sensitivity level of a position determines the complexity and cost of the investigation conductedded on the individual selected to occupy the position. the odni will continue to work with opm and other executive branch agencies to ensure that position designation policy and procedures include requirements or agencies to conduct periodic reviews to validate the accuracy of the existing position designations. thank you at this time for the opportunity to testify, and this concludes my statement. >> thank you, tim, you're up next. >> thank you, mr. chairman. thank you for the invitation to testify on behalf of the office of personnel management on regulations affecting the designation of positions in the federal government as national securitycepstive as well as the case. the obligation to designate national security positions is not a new authority. it is outlined in executive

order which was published in 1953. additionally, the code of federal regulations presently requires each agency to follow establish procedures to identify national security positions. in this vain, opm and office directer of national intelligence, odni, jointly had the positions in the competitive service. similar regulations have been in effect for over 20 years. the proposed rule is one of the number of initiatives opm and odni undertake to simplify and streamline the system of investigative and adjudicated process to make them equitable. they proposed amendments on this issue in december 2010 with the publication to the federal register. those proposed amendments were later withdrawn and reissued on may 2013 by odni jointly pursuant to a presidential memorandum directing odni to issue amended regulations. the presidential memorandum

recognizes responsibility both agency possess with respect to the rule making authority. the current proposed rule reissueses the 2010 proposal under joint authority with technical modifications and clarifications providing the public the opportunity to submit additional comments. the purpose of the proposed rule both as original published and as republished is to clarify requirements and preed chiewrs agencies should observe when designating national security positions in the competitive it was, positions in the accepted service where the incumbent is noncompetitively coon verted to the competitive service, and senior positions by career appointment. the proposed rule is not intended to increase or decrease the number of positions deemed as national security sensitive, but provides specific guidance to agencies in order to enhance efficiency, accuracy, and consistency with which agencies make position designations. the older regulations provide only general guidance. the newer proposed regulations

are intended to clarify the requirements and procedures agencies should follow when designating national security positions by providing more detail and concrete examples. in addition, the newer proposed regulations help agencies correctly determine the specific level of sensitivity for a position determined to affect national security in turn determining the background information required. finally, the proposed rule addresses periodic reinvestigations in order to better coordinate the reinvestigation requirements for national security. for national security positions with requirements already in place for security clearances to ensure the same reinvestigations are used for multiple purposes avoiding duplication efforts. the proposed rule was published in the federal register may 28th, 2013 with the comment period closing 30 days lairlt. we are reviewing comments from members of the public. this subcommittee invited us to testify on another topic.

as you know, the u.s. court of appeals for the federal circuit in a 7 #-33 # decision held the protection board lacks jurisdiction to review the merits of executive branch risk determinations regarding eligibility to hold national security sensitive positions. they examined when the appeal of adverse personnel action against an employee may review the merits of the department of defense's predictive judgment of national security risk. on appeal of the decision, the federal circuit concluded they can review whether dod's action is procedurally correct, but cannot review whether they correctly exercised predictive judgment of national security risk. the federal circuit held congress did not give them this authority. the federal circuit based the decision on long standing precedence, specifically the supreme court's 1998 decision in the department of the navy versus eagen that the appeal of

the adverse action cannot review the merits of the decision to deny a security clearance. the federal circuit held they controlled all such national security determinations, not just those related to access of classify information. thank you again for the opportunity to testify, and i look forward to answering any questions you may have. >> thank you, tim. brenda, you may proceed. >> chairman tester, thank you for the b opportunity to be here today to discuss the requirements for personnel to have access to classified information. as you know, my testimony on the government-wide security clearance process before your subcommittee this past june included a discussion of our work on the steps that agencies used to first determine whether a federal civilian position requires access to classified information. today, i'm here to elaborate on that process and report on the extent of progress by the agencies in implementing our recommendations and actions still needed. over the years, gao has

conducted a broad body of work on security clearance issues that gives us a unique historical perspective. my remarks today are based primarily on our july 2012 report on defining policy and guidance for national security positions. my main message today is that actions are still needed to help ensure that a sound requirement process is in place to determine whether a position requires a security clearance for access to classify information. my written statement is divided into two parts. the first addresses gyps to determine if a civilian position requires a security clearance. in july 2012, we reported that the dni as security executive agent had not provided agencies clearly defined policies and procedures to consistently determine if a position requires a clearance. absence such guidance, agencies use an opm tool to determine theceps icht and risk levels of the positions which, in turn, inform the type of investigation

needed. the sensitivity level is based on the potential of an occupant of a position to bring about a material adverse effect on national security. opm audits, however, found inconsistencies among agencies using this tool to determine the proper sensitivity level. for example, in april 2012 audit, opm assessed the sensitivity level of 39 positions in its designations differed from the agency in 26 of them. in our july 2012 report, we recommended the dni in coordination with opm issue clearly defined policy and procedures for federal agencies to follow when first determining if a position requires a clearance. odni concurred with the recommendation and moved forward with actions to address it. we found that in january of this year, the president authorized the dni and opm to jointly address revisions to the federal regulations intended to provide guidance to the designation of national security positions.

we believe the proposed regulation is a good step in meeting intent of our recommendation; however, implementation guidance still needs to be developed and the proposed regulation recognizes that point. the second part of my statement addresses the guidance in place to periodically reassess civilian positions that require security clearance. we also reported in july 2012 that the dni had not established such guidelines requiring agencies to review existing positions. without such requirement, agencyings may be hiring or budgeting for initial personnel clearance investigations using position descriptions and security clearance requirements that do not reflect current national security needs. further, since such reviews are not done consistently, agencies cannot have ainsurances they are keeping the number of positions that require clearances to a minimum as required by executive order 12968. moreover, conducting background investigations is costly.

we found the federal government spent over $1 billion to conduct background investigations in fiscal year 2011. we recommended in july 2012 that the dni in coordination with opm issue guidance to require agencies to periodically reassess the designation of all federal civilian positions. odni and opm concurred with this recommendation. the proposed regulations do not appear to require a periodic reassessment as we recommended. we still believe this needs to be done. for more than a decade, gao emphasized the need to build and monitor quality throughout the personnel security clearance process to promote oversight and positive outcomes such as maximizing likelihood that individuals who are security risks will be scrutinized more closely. the first step to ensure a sound process is in place to determine whether or not positions need accurately says to classified information. we'll continue to monitor the outcome of the final federal regulation as well as other agency actions to address our

remaining recommendations. mr. chairman, this concludes my remarks and happy to take questions when ready. >> thank you, brenda, appreciate your comments. david, you may proceed. >> on behalf of afge and the more than 650,000 federal employees we represent including tens of thousands who occupy positions designated as sensitive, i thank you for the opportunity to testify today. afge has grave concerns about the recent decision issued by the u.s. court of appeals for the federal circuit and about the proposed rules on the designation of positions of national security sensitive issued jointly by opm and odni. the decision in the proposed regulation strike at the heart of the merit system, which, for decades, has been the foundation of the federal civil service. this eliminated the right of a meaningful hearing before the protection board.

the proposed regulations exacerbate the problem allowing agencies to pick and choose which employees will have the right to due process. the proposed regulations are only the latest injustices inflicted upon workers. thanks to a three-year pay freeze, sequestering, over half the federal employees lost 30% of the take home pay for six weeks, and a 60-day furlough with the shutdown, many were unsure how or when they'd pay their bills. some untold number fell into debt or deeper into debt. that additional debt now potentially exposes thousands of federal employees to unfair removal from so-called sensitive positions without so much as a hearing before the mstb. to be clear, this does not pertain to individuals with security clearances. it's not a case about classified information. the individuals in that

litigation were an accounting technician and a grocery store clerk respectively. they both lost eligibility because of debt due to circumstances beyond their control. they were penalized because of their credit scores and facedded the loss of their jobs. this is deeply troubling to afge and should be a real concern for this committee. the implication the financial hardship equates to disloyalty, even for employees with no access to classify information is unsupported and on offensive. in fact, they found that the practice of penalizing employees based on their credit scores has had a disproportioned impact on employees over 40, female employees, and employees of color. this is an ill-founded extension of an earlier case involving security clearances. in 1988, the supreme court decided the department navy versus eagen holding the nstb

could not review merits of the security clearance determination in the adverse action. later, they held in the absence of the security clearance, eagen did not apply. in its decision, the federal circuit opened the door to arbitrary and unchecked agency action. the ruling rejected the text, structure, and history of the civil service reform act along with the plain language of the eagen to hold that they may not review the merits of the agency's determination that an employee is ineligible to hold a sensitive position. the proposed regulations provide no real oversight for agency position designation determinations. by contrast to the rule proposed by opm in 2010, these new rules failed to direct agencies that in order to designate a national security position they must make

an affirmative determination that the occupant of that position causes a material adverse effect on national security through neglect action or inaction. if the proposed regulations are allowed to stand, executive branch agencies have the unreviewable power to deprive hundreds of thousands of employees the protections that congress gave them in the csra. that, senators, is likely to be an irresistible invitation to abuse. to counter the loss of due process rights, delegate holmes-norton introduced hr3278 to clarify workers or applicants are entitled to be heard even if it imp kates a sensitive position determination. afge strongly urges introduction of the companion bill in the senate with the same bipartisan support shown in the house. afge looks forward to working with the members of this committee to restore fairness

and common sense to the due process protections and other rights historically protecting the federal work force. this concludes my statement, and i'd be happy to respond to any questions. >> thank you for your statement, david. angela? >> chairman tester and ranking member portman, thank you for the oversight of the security work force and inviting me to testify here today. i'm speaking on behalf of pogo and make it safe coalition representing more than 50 groups and millions of americans very concerned with whistle-blower protections in both the public and private sector. we're concerned that the national security claims here and throughout the government really threaten to engulf or government and with cruel irony make us less safe. in august of this year, the court decision vined federal employees national security sensitive positions the right to appeal and adverse action stripping rights for actions discriminatory or in retaliation for whistle blowing.

this flawed decision armed agencies with sweeping power that affects untold numbers of civil servants. untold because opm cannot say how many position holders there are. the definition under the executive order 10450 for personnel who may have material adverse effects on national security must have objective, credible boundaries, yet the government did not provide adequate boundaries or designations. indeed, she was an accounting technician and stocker, they they did not have credible national security roles. while there's a need for screenings for positions with specific national security responsibilities, but no access to classify information, extensive background checks should never be a predicate for denies due process rights. quite the opposite. congress gave the civil service and whistle blower protection to

the critical work force to foster accountability for waste, fraud, and abuse. they have been able to challenge adverse personnel actions in the merit board, but not anymore. now if an agency fires the employee for having made a legally protected whistle blower disclosure or because of the race or religion, the employee likely will not be able to seek justice. it's a matter of time as was noted from the bench in oral arguments after the decision removed due process rights for security clearance actions, it was inevitable that the board would do the same for whistle-blower retaliation as it did and has for the department of state. because this is so broad it clouds the intent of the civil service reform act as well as the protection act and strongly bipartisan whistle blower enhancement act, reforms we worked for years to enact, of

course, even before this, there was a jaw-dropping lack of oversight of the seemingly arbitrary and overused designations. at the direction of the president, opm and dni issued a joint proposed rule to clarify proper use. we agree it is about time, but it does nothing to assure us that the obama administration will curb discretion afforded to agency. improve sufficient oversight or protect rights for whistle blowers and civil service. in fact, the proposed rule is poised to expand the use of the designations to overly broad categories of positions like senior managers and undefined key programs and fact finding positions. before a final rule far more needs to be known about the scope and cost, policy impacts, due process protections, and oversight of the designations. we welcome a directive from the president clarifying access to

the mspb for curbing the abuse of the designations and conduct proper oversight; however, we believe that ultimately congress must reassert rights it previously provided. we urge you to advance an easy legislative fix, simply clarify the action arising from eligibility determination for a position that does not require security clearance may not be denied mspb review. this is the delegate holmes-norton legislation mentioned. we also urge you to consider the broader cop text of the grow k than security state. in the wake of the disclosure, guard against overreactions, excessive secrecy threatens national security making it harder for us to protect the secrets. the evidence for the growing national security state is disturbing. as you mentionedded, chairman,

we have 5 million security clearance holders, 20 million filing cabinets could be filled with the amount of classified data accumulated every 18 months by one intelligence agency according to the gao. it's time for congress to be far less deaf renne reel to the executive branch on claims of national security. you can begin by reigning in the nearly unbridled power to misuse national security labels and make whole swaths of the government hidden and accountable. we have to hear from whistle blowers. thank you, again, for inviting me to testify today, and i look forward to your questions. thank you for the testimony. we'll get to the questions right now. it's repetition from what the panelists said, but this is for anybody who wants to answer it. in terms of the decision,

there's two federal employees without a security clearance or any need for access to classified information. one was an accounting technician. i assume that's similar to a cpa maybe or not even at that level? >> lower level accounting. >> lower level accounting for the defense department in that position for 20 years. one was a clerk in indicating that he ran a cash register. is that fairly accurate? >> he was a -- he was a grocery store clerk essentially running a cash register. >> stock shelves? >> stocked shelves. >> the divorce, a death of a family in the other, stripped of the ability to hold a government position designated as sensitive to national security. this is consistently arbitrary for positions across government as angela just got done saying.

they were stripped of the rights to appeal the decisions of the protection board in basic right of federal employees. there's so many questions asked about this. i'll just start with the basic one, and that is can somebody ask me or explain to me how these actions were carried out in the best interest of the national security. >> want to jump in on that one? okay. let me ask you this. you got a position that is designated as sensitive. there's it person in the physician that does not have any level of security clearance; correct? yet that person is fired because

they accrued debt beyond their control, and that's deemed as being okay? that's the first question. no? anybody want to talk about that? tell me why that's okay. ..