implicitly recognize a certain hegemonic role for iran in the region. and what would that hegemonic role look like from an israeli perspective, from the perspective of most gulf countries, and today there is a greater confluence of interest between israel and these gulf countries than at any time in the last six decades because we agree on, say, egypt. they agree on the peace process, the fundamentals of peace process, but most of all israel and the gulf countries agreen the iranian threat that an iran that maintains not a nuclear weapon, but the ability to to make a nuclear weapon in very short period of time presents an unsustainable threat to the region. and that it's a threat that has, that is multifaceted. it's not just a threat of iran being able to put a nuclear

warhead atop one of the mys sills it has that can hit any capital in the region or any city, and i just watched a video clip the iranianen put out what they would do if they were threatened by israel and other countries, and they show iranian missiles striking not just israel, but american allies throughout the region. they're very unequivocal about this. that's, in many ways, the laos of threats. the bigger threats come in the form of providing nuclear um real las to terrorist organizations that could either attack israel or other pro-mesh countries in the -- pro-american countries in the region with relative impunity. they're then going to have of think of themself, well, if we strike back at hezbollah, for example, will that precipitate an iranian breakout? becomes a big part of their calculus and an immense break on latitude. but beyond that, terrorists could get access to nuclear

capabilities, and you don't have to worry about rockets, you have to worry about nuclear odder unanimous being delivered but ship containers that won't be traceable or through trucks. and it's an entirely different magnitude of threat. so that's what's at stake for israel and other countries in the region. and the big litmus is going to come at the end of this six month negotiating period where the united states which is a big country far away from the middle east, not threatened with national annihilation by the iranians and which has immense capabilities that nobody in the region has, not even the state of israel -- israel does not have aircraft carriers, by the way, or b-2 bombers -- if the united states can strike agreement with the iranians, israel and the gulf countries are going to have to ask themselves, the leaders are going to have to ask themselves, is this something we can live with?

america may be able to live with it. big question is are countries in the region going to be able to live with that? and it's going to be a very tough decision. >> you go through -- can you go through two parking lots of that decision -- parts of that decision? first of all, from the israeli standpoint what israel will have to measure if things go forward in this direction with the u.s. which, you know, could not just be a nuclear deal of some sort, but a normalization of relations, whatever that means. so from israel's standpoint. and then interestingly, one of the things you're going to do at the atlantic council is work on the relationship between israel and regional countries. how has this shifted already the relationship between israel and the gulf? and with all the barriers to closer relations which we know about, can those actually be removed, and could one have a step change in those relations? >> one would hope so. again, the influences, those interests are very confluent

today. more so than at any time in the past. whether those, that confluence translates into open, more open sort of relationships between the two remains to be seen. israel has had relations of one type or another with several gulf states. most of them are quietly pursued. but with other gulf states it's been much, a much colder distance, and the great example is saudi arabia. where there really hasn't been, certainly, no formal contact. and it's something that i think would be the interest of all of these countries to pursue and hope it can happen in the future. >> and as you were saying, deciding whether or not they can live with whatever happens with iran, what are the factors one would have to measure if you're a gulf state, what are the factors one would have to

measure from israel's standpoint, and are there differences in those factors, or are those factors pretty similar? >> i think you'd have to see some material dismantling of the iranian nuclear program. fred, we had an unusual event about a week and a half ago. for the first time that i can recall, israel and the iranians agreed on an aspect of the iranian nuclear program. israeli spokespeople and iranian spokespeople both came out and said that president obama's claim that parts of the iranian nuclear program had been dismantled as, in the interim agreement was not true, that no parts of the -- they actually agreed. [laughter] and you get hard pressed to see what parts of the nuclear program were, in fact, dismantled. you know, the 20% stockpile of enriched material was oxidized or in the process of being oxidized, but that's only 180 or 185 kilograms of material. they have about six and seven

thousand kilograms of low end riched your uranium, and that'st being dismantled, and there are no facilities that are being dismantled, and there are no inspections of the major military sites. now they're beginning to give inspection of the detonator sites, but par chin is the largest military base that remains beyond the grasp or the access of inspectors. so you'd have to see material dismantling of centrifuges, you'd have to see a shipping abroad of a larging isment -- large segment. right now israel will say all of the 3.5-5% stockpile. you'd have to see the shutting down of key facilities like fordo, the cessation of work on the plutonium heavy water facility. there would have to be some concrete evidence that the iranian nuclear program has been defanged, and that would be

accompanied by very rigorous and invasive inspections. >> so lots and lots of questions, so let me go straight out here, and then i'll try to get to everybody in the order that i've seen you all. >> lou -- [inaudible] energy policy research foundation. i have a couple of questions. one is if you look -- i don't really think a lot of us really fully understand the technology, what's happening this north america. -- in north america. we can easily get to 2020, 2025 in which opec capacity goes 7, 8, 9 million barrels a day. and there's a real problem between iraq, iran and saudi arabia and how they divide that up. so i was sort of curious whether you've thought about how those rivalries may take place, otherwise have a collapse in prices, and it's going to be very interesting. the second part is this problem of the appearance between the reality of u.s. strategic

interests in the persian gulf. because it's true that the western hemisphere is likely to the disconnect from the crude flows. but it's also true that the gulf's still important. and if there's a major event or disruption, prices will still go up even in the u.s. and because of the world oil market, most of the adjustment to the world oil price will have to take place in the u.s. europe prices are already very high, prices are heavily subsidized in the middle east. so one question i have for you as a diplomat, how do we manage this appearance versus reality? because within the congress, within the american political structure we're going to hear more and more people say why do we need to or worry about the middle east? we're disconnected. but i think we can make a strong case we should, but how you manage that political phenomenon is of great interest. >> i'll give you a very short answer, i agree. [laughter] probably the shortest answer i've given in weeks.

i agree with you. and i've spoken mostly tonight about impressions of american power and a willingness to project power in the middle east, but there's also impressions in the united states as well. i mentioned one at the end with impression that you can go home, you can push the helicopters over the side and go home which i think is an illusion, but there's also an illusion -- and i think you're absolutely right -- that the security and strategic aspects of flow of middle eastern oil are not, will not impact america's economy and also impact america strategically. even though america's feint on middle -- fence on middle eastern finish dependence on middle eastern oil is very much on the wane. >> here and then there and then to the side. so one, two, three, please. >> thank you. thank you, ambassador. jeff steinberg. i'd like to suggest a maybe slightly different narrative as to what's going on with the u.s. policy in the middle east right now and get your thoughts on it. have we possibly come to the

point where we've got to basically face up to a number of strategic errors that were made in shaping u.s. policy? did we fail to see the long-term dangers of the spread of neo-salafism in a non-terrorist form and miss the significance of that? did we have an overly optimistic and, or basically, false notion of the role that the muslim brotherhood might play as a reform faction within political islam? and is there also some kind of possible rethink about the actual viability of being able to achieve through diplomatic means a just two-state solution to the israel-palestine issue? of course, you know as a historian that at the time of the truman administration recognition of israel, ec tear of -- secretary of state marshall and the joint chiefs of

staff warned about the dangers of partition and envisioned the united states' role being reduced to a military presence and losing a lot of leverage. so my question is, is the u.s. possibly going through a kind of correction of some teach and fundamental -- deep and fundamental misjudgments that formed u.s. policy over a period of time, and maybe we're doing some correctives to come back and try something better? >> within the answer to the first part of that, perhaps you could take a crack at future of political islam. we're seeing difference in tunisia, egypt, you know, and i wonder if you're seeing, if you have some sort of historian's view of where you think political islam is going. >> if i had, i wish i had an hour that have to respond to this. you touch on some of the core issues. of course, america's made mistakes in the middle east.

of course israel, just about any country you could name has made mistakes in the middle east. and probably the biggest problem is being able to view the middle east not from the outside, but from the inside. and there was a great civil war general who, i'm big on the civil war, who traveled to the middle east in 1872, and he came back and said, i think, the most insight offul remarks ever about the middle east. we don't judge the middle east by its own terms, we will be condemned to always misjudgement this region. misjudge this region. a great remark. but i want to respond on several levels. george marshall, 1948, made a number of predictions about the future american role in the, what was then known as the palestine conflict, the arab-israeli conflict. one was that the united states would have to send 300,000 soldiers to defend the jewish

state because the jews were incapable of defending themselves. that the arabs would cut off oil to the west and that western europe would fall to the european union. and that they would be aligned with the soviet union. all three of those major predictions were wrong, for starters. and you can make a very strong case that a rather than diminishing american influence in the middle east, in fact, america's involvement in the israel-palestinian or the israel-arab conflict has actually enhanced america's standing in the middle east. to this day, it's only the united states that can mediate there. nobody else can. so is you can actually turn that argument on its head. did the united states underestimate the impact of political salafism or political islam? yes, and it's not just america. there's a strong tendency among, particularly in the american press to downplay the emotional

and intellectual power of islam. there's a basic sort of journalistic narrative in the united states that people turn to islam only out of despair and not that they turn to islam because it imparts positive values and a sense of meaning in life. and it's always downplayed. but beyond that, every administration camp comes into office with its own world view. the obama administration came in and, again, i go back to the cairo speech. always go back to cairo speech. president obama is addressing the muslim world and says you can be authentically muslim, be that way, it's good to be, but if you're authentically muslim and democratic and observe democratic norms, then we have the basis for a strong alicense and a new relationship. -- alliance and a new relationship. and look at the middle eastern leaders to to whom the president reached out in a significant way; erdogan, morsi. who were these people? they were people who had authentic islamic roots, had

been elected democratically, very much conform with the image of the cairo speech. was it a good decision? maybe too early to tell. like, you know, the french revolution, it's too early to know whether it's successful. but it was the administration's approach. and i think the administration's reaction toal sissy was very significant in that way. i really can go on about this. i'll conclude with one small anecdote. as ambassador, you always get asked pretty much the same questions in any us yens. you are asked about settlements, what is america's policy on iran. toward the end of my term someone asked me a question i never received again and it was what is more difficult, explaining america to israelis or israelis to americans? [laughter] i knowton would say i know -- don would say i know exactly the answer. it is much more difficult to

explain america to israelis. and, because americans basically get israel except for, you know, difficult questions, complicated questions like settlements. they get countries defending itself, it's a western-style democracy, we get it. israelis -- and not justice raillies, i think many people look at the middle east and look at america and hook at the faith-based and value-based foreign policy and scratch their heads. they'll look at a piece of legislation in the congress. i'm not talking about the obama administration. the congress has passed a piece of legislation that says the united states cannot support a regime that has overthrown a democratically-elected government, and they'll think, wait a minute, what if it was an anti-west or anti-democratic government that doesn't rule democratically? they don't get that. and then you have to explain that this is america and that even during the period of one of

the most difficult periods during my time was the winter of 2011, tahrir square, where people in israel -- and, again, not just in israel -- were looking at the events of the surrounding of the beginnings of what was then called the arab spring and saying do you know where this is going to lead? and americans, democrats, republicans, cnn, fox, everybody was wildly enthusiastic about what was going on back then. and it was my job, difficult as it was, to explain to israeli policymakers that a million people out in the streets of cairo demanding democracy from what was essentially a dictatorship was, resonates with the american narrative. it's lexington and concord time. and there's no way that americans wouldn't get excited about that. america is what america is, and this is something that is hard wired into this country. i happen to think it's a beautiful thing. but it's not always reddly understandable -- readily

understandable to people in the middle east. >> please. >> thank you. my name is jacob -- [inaudible] i'm a transatlantic are alsos student at the university of north carolina at chapel hill. the united states has only limited resources not only in terms of money, but in terms of time and attention, and i'm wondering whether you could identify whether there is a core conflict in the middle east that the united states should focus on most importantly in order to bring security to the middle east? is it the iranian conflict, the iranian nuclear programs, the arab-israel problem, what should united states really focus on as the top agenda point? >> so if you were sitting in the oval office, how would you have the president set his priorities, is that what you're saying? >> the middle east is caught in three cyclones of instability right now. there's the ethnic cyclone of sunni-shiite, there is the cyclone of modernity versus tradition, and the cyclone generated by the breakdown of

the arab state. depending where you look, different cyclones are hitting. in syria i think you've got all three of them going on at the same time. and i think that makes for a very violent situation. american policymakers and, you know, i say this with all due humility and have to look at, have to take a strong look at what, which of these storms they can actually, which of these storms they can actually grapple with and make an impact on or lessen the damage of. in the case of syria, right now i don't know much more that the united states can do than to further extend humanitarian aid and to lessen as much as possible the suffering of syrian people. in the case of egypt where the main structure there is between modernity and tradition, i think that requires -- [inaudible] and whether the united states can impact that situation as well.

but overwhelmingly, the paramount question/threat to the region is iran and its nuclear program. and whether -- and i'm just going to reiterate something i said earlier -- whether any deal can be reached with the iranians, the iranians need the program. they need it for, they need it for not just their hegemonic aspirations, and they have hegemonic aspirations. there are two militaries in the world that divide the world into theaters of operation. one is the u.s. military, you know? european command, african command, and the iranian military. they have lots of as rations -- aspirations, or the iranians. but beyond that they need it more regime survival. they saw what happened in libya, they saw what didn't happen in north korea. and they draw conclusions from that. so getting them the give up this program is going to be very, very difficult, especially in the absence of a credible military threat which, frankly,

doesn't exist right now. and that is be -- and that's why i said it's a big if whether an agreement can be reached with the iranians, the countries of middle east, many of the countries, are going to have to determine whether they can live with that agreement. and what would happen if they don't. and that is going to be, i think, the paramount strategic interest of the united states in the years to come. >> thanks for that clear answer. ambassador from the swiss embassy, it's great to have you with us today, sir. >> thank you. thank you, fred. thank you, ambassador. thank you, michael. there was an op-ed in "the new york times" today, you might have seen it, that picks up on some of the questions of u.s. leadership in the middle east and elsewhere. and to which the administration responds but look at all the things we're doing in the middle east and syria, the negotiations with iran and the secretary kerry in the middle east peace process.

but the contention, the thesis of the author of the op-ed is if you're not willing to project power, then your diplomatic efforts may also not be taken all that seriously. now, if you look at it from a historical perspective, of course you can -- and as you did -- you can find very concrete reasons for perhaps more of a reluctance to project power. at this point in time, you mentioned sequestration, war weariness in the united states after two costly wars. but if you look at it from a historic perspective, is this one of the swings that the pendulum sometimes does in the united states if more isolation is too big a term, but more inward looking and then all of a sudden more external projection of power, or is this something more permanent? if i understood you correctly, you even hinted a little bit that the last chapter on this assessment has not been written yet. >> thank you, ambassador.

it's too early to tell. but we know historically that in the aftermath of economic dislocations and traumatic wars, america often devends into periods of isolationism. that was the case in the 1920s, to a degree in the 1970s, and this is not particularly an exception. there's no way of knowing at this point whether this is a permanent alteration or a passing phase. we don't know. but we do know empirically that there's a direct connection from america's ability and willingness to project power particularly in the middle east where people are very sensitive to impressions of power and the america to real diplomatic influence. you know, there was, needless to say, a lot of created schism of -- criticism of bush administration policies. certainly after the invasion of iraq. but in december of 2007 on very short notice, president bush was able to convene the annapolis

peace conference in which more than 40 nations sent their top leaders. really in a matter of weeks. and i ask myself whether that could be done today to that extent and with that level of participation. and you could say any number of criticisms on bush administration policy. i think i made a case today saying that though the waning of the pax-americana in the middle east is often traced to obama, i trace it back to the creation of the quartet when america unilaterally gave up its monopoly over middle eastern peacemaking. that taliban under the bush -- began under the bush administration. the fact that bush was very willing to use power and military power on a massive scale in the middle east, and that gave him a certain cree of leverage which -- degree of leverage which i don't know if it exists today. the most, certainly the most

emphatic example i can give you is what transpired last summer or didn't transpire surrounding the chemical arsenal in syria where the president came out and said he was going to use force, and the secretary said it was going to be a very small use of force, and then it turned out that he went back to congress, and initially the administration was very sanguine about congressional support for this, but phone calls in both house, both parties was running something like 500 to 1 against. and that also sent an unequivocal message to the middle east. even a very limited missile strike to enforce a presidentially-declared red line was not going to happen. and to think that you can wield the same amount of diplomatic weight after that type of experience, i think, would be, would be a mistake. >> thank you very much. >> unrealistic. >> thank you for your patience. >> there's my friend -- >> getting around as i saw people. >> hopefully something about the palestinian issue, because no

one's said anything about it. >> that's my point. >> okay, good. [laughter] >> we'll come back to washington -- welcome back to washington, mike. >> thank you. it is really -- [inaudible] nevertheless fascinating that you went through the whole discourse of yours without really mentioning much about the palestine-israel conflict, even omitting the only part of the u.s. policy that is intensely engaged in the middle east at this time with negotiations over palestine-israel. now that you are out of office and free to speak your mind, you've done some of that i noticed, but would you care to tell us what kind of advice you would give the present israeli government -- not the american government -- as to how best to maneuver from now on? >> uh-huh. let me say that, first of all, it's great to see you again. i mentioned that the inability of the united states to bring about a resolution of the israel-palestine conflict or even aspects of it, i know that

the palestinians were particularly frustrated with the inability of the administration to maintain the settlement please back of, in 2010 has also impaired america's influence and created, and corrupted to the image of the waning pax-americana in the middle east. that i did mention. what i would recommend to the israeli government, the government, is avoid policy steps that would, that would impair israel's image not just in the middle east, but in the world and amonging isments of the american -- among segments of the american public opinion, to do the utmost to try to exhaust all dip 40matic -- diplomatic options to try to achieve peace with the palestinians. and if that fails, to consider measures in the event of an ability of both sides to reach a

negotiated, permanent two-state solution, to think about ways of which in altering the status quo perhaps even unilaterally. alas, unilateralism has gotten a bad name since israel's withdrawal from gaza in 2005 and to a large extent, legitimately acquired bad name. there were many mistakes made back then. but that doesn't mean that if palestinian leaders -- and i think that they have to make some immensely painful concessions, i in no way minimize the concessions palestinians have to make, israel has to take risks -- if that proves incapable, i think israel can take measures that will minimize the damage to its international, its reputation, maintain israel's identity as a democratic and jewish state and also enable us to protect ourselves in case the situation in the middle east -- in the

west bank or elsewhere further deteriorates. >> okay. thank you for that question and the answer. this gentleman here and then there and then here. again, i'm doing my best as to where i've seen people in the order i've seen people. >> ken meyer, world docs. don't you think it would help in dealing with the iranian nuclear program if israel admitted it doesn't have any nuclear weapons? >> israel admits that it doesn't have any nuclear weapons. [laughter] israel will admit. yeah, i could. i'm correcting the negative. no, israel's policy going back 50 years is that it will not be the first country to introduce nuclear weaponry into the middle east. and i think there's no chance that israel's policy is going to change in that way. but i, i actually don't see the relevance of the question. why? america had, i don't know, has maybe thousands of nuclear weapons. it didn't protect the united states on 9/11.

and whatever israel's capabilities are, it's not going to protect israel if hezbollah -- which according to the head of idf intelligence last week has somewhere on the order of 170,000 rockets -- starts firing rockets at israeli territory. what israeli capabilities in that field are going to make any difference at all? israel is a tiny country, and all talks of, you know, cold war sort of calculi and mutually-assured destruction are ill relevant -- irrelevant to israel. especially dealing with a government in tehran which i don't think is rational the way even the soviet government was in the cold war. so the question -- i guess my answer to you is, no, that it won't make a difference, and i don't think it's going to happen anyway. >> thank you. please.

oh, i'm sorry, i thought there was -- i saw the woman there had a question. >> thank you. actually, i have two questions, quite related. let me take you back to when you mentioned that the involvement of the united states this the middle east might not be all bad like the only mediator in the palestinian and israeli conflict, and it would be taken as positive, not negative, because they're the only player able to mediate. doesn't this have another flip side that being the only responsible, most capable player might be the focal attraction of radical extremist people to attack the united states because given that they are responsible for the nonsolution of the conflict? it is one question. the other is what would you see more immediate threat to israel now? is it what's called --

[inaudible] the area with some faith-based or radical-based popularity in the area which would be a threat to israel at some extent or the iranian? .. >> then win the peace process wasn't, americans were the target. i think the thing, elements in

the middle east will find no shortage of excuses for attacking the united states. and i think you look back at the record it will show this. the overwhelming majority of these attacks were not by a america's policies towards israel or even its mediation and conflict. it wasn't because of america's support for israel, americans were kidnapped and many were executed. some of the terrorist attacks attended on american soil. the details of those attacks remain classified but again they weren't impelled by america's support for israel or its involvement in mediation. because america is america. and what it represents and what america is. as for the second question, what is the greater threat of israel? the people throughout the middle east or the iranian nuke program? the iranian nuclear program. the people in egypt -- the

upheaval in egypt and the civil war in syria, its impact on jordan have force is really -- force policymakers to rethink their assumptions about the middle east, that they maintain over the course of decades. it posed new challenges. the peace border with egypt used to be an open border. it's no longer an open border. they are building a similar high-tech northern border with syria. that had been acquired. this spill over to the golan heights, can't be ignored. the threat to jordan is i think perhaps the greatest single challenge facing israel, that arise from the air spring. jordan is vital to israel security. israel's security border is not the jordanian iranian border.

but all of that pales, compared to the possibility that a regime that is on the record saying that the destruction of this state is part and parcel of its death, and it's going to acquire military nuclear capabilities and those communities accessible and available to terrorist groups. it can trigger a nuclear arms race in the middle east in which egypt, saudi arabia will get nuclear weapons and israel will find itself for having an unstable middle east, only worried about chemical arsenals, nuclear arsenal. all of that so overshadowed anything that is heard since the winter of 2011. >> thank you. please come and let's take these last two questions and then i will take them one after another and then we will be out of time. >> thank you. going on your answer about what

advice you would give the israeli government in the peace negotiations now, do you think the israeli government is pursuing these negotiations with an actual goal of a peace deal? and do you think the same is true for the palestinian leadership? in other words, do they really want a deal to come out of this, ma or is there value simply and having the conversation in acceding to carry -- john kerry's request or demand that they do? >> i can always say -- >> pick up the last one. let's pick up this last question here. thank you. tenuate? -- can you wait? >> you spoke at the beginning of the impact of events on the united states. how would you answer the question put in the following way, what has hegemony without

peace done for u.s. interests in the past 50 years? >> let me go back to the question about israel, palestinians. as ambassador, i participated in many of the rounds of peace talks, certainly all of the meetings between prime minister netanyahu and president obama, virtual all the meetings between the prime minister and secretary of state clinton, later secretary of state kerry. i can only assure you in the most emphatic terms that yes, the israeli government, the prime minister is committed to moving ahead to reaching a peace agreement, understand the price. but there are certain points where the price becomes prohibitive. and netanyahu has also been very clear about what he says, what the police would constitute a prohibited price.

one would be a two-state solution that leaves israel's eastern border open to the type of arms smuggling that has transformed gaza in southern lebanon into basically large missile pads. i don't think of any country in history that is ever faced the magnitude of the 170,000 rockers that is pointed at israel neighborhoods today. and he is unwilling to let that happen on the west bank. and netanyahu is particularly adamant about the need for the two-state solution to actually be a permanent legitimate peace resolution, and that's why he is so insistent on recognition by the palestinian state on israel as a jewish state. it's a very substantive requirement because without it you have one state, the state of palestine being a legitimate nationstate of the palestinian people and recognize such by israel that you have an israeli

state will not be a legitimate recognized nationstate of the jewish people. which is going to open the door to endless, and not a permanent peace. and the support i think recognition of the jewish state is the way you get to peace. people took about the peace should understand more deeply. on the palestinian side, to the palestinians with whom i've interacted, i think they are sincere about reaching peace. i think on the palestinian side, and i tread lightly, there's a greater question of not whether they're willing but whether they are able. and i say this as a historian who has looked at previous rounds of attempts to great a two-state solution going back to 1937. history keeps repeating itself. 37, 47, 2000, 2008, even carter in 1979.

each time there were no shortage of palestinians thought no shortage of palestinians that this is good at it and would like to be able to do this but they're unable to deliver because they didn't represent the majority or because i think more quickly they were threatened. the best example i can give you, i look at the records in a book i wrote about the six-day war about the summer of 1967 where israel sent out about 80 researchers to canvass opinions on the west bank about the possibly upgrading this autonomous entity. and almost all the palestinian notables said the israeli interviewers, we would love to have this, but if we sign on the dotted line with you, the radicals will kill us. the radically mentioned by name was a gentleman by the name of yasser arafat. school head to the summer of 2000 when bill clinton -- i would love to sign on the bottom line at the radicals will kill me. a full circle. so i think on the palestinian

side is more on israelis, no way to diminish this, the obstacles that netanyahu and some of his ministers will encounter en route, if a two-state solution were possible. there's no shortage of people even within the government, within the party that were opposed to. i sincerely believe that i if it goes to a referendum, the israeli people will overwhelmingly approved. i think he would have approved it in 2000. i think they would have approved it in 2008 i'm not sure about the palestinians. i may be wrong about that. i hope that would be the case they would support it as well. your question, what is american hegemony help america's peace interest over the last 50 years. and hear you asking the impossible conundrum. couple years ago, good ending, fred, a couple years ago -- >> good. >> i wrote an op-ed in "the wall

street journal" called the paradox of prophecy. news about the book of jonah. and jonah, the shortest book in the bible. it tells the star of a profit, you've got to go to nineveh and say to them, i probably said that wrong, if you don't repent you will be destroyed. and jonah realizes this is a no win situation. that if he goes to nineveh and tells them to repent and if you repent, three years later they will say why do we have to repent? nothing happen. or did he goes to nineveh and they don't repent and they're destroyed, and jonah is a false prophet. that's what i call the paradox of prophecy. it's a no win situation. and you can ask the same question about the maintenance of american hegemony in the middle east. if america had not maintained hegemony over 50 years, maybe nothing untoward or unfortunate what happened but if america had

led -- had let its guard down and something worse than 9/11 had happened, then the paradox would've been there. why didn't america maintain its hegemony? so there is no conclusive answer to your question. and the decision-makers in real time, something i've learned to appreciate as historians, we've now seen decision-makers make decisions in real-time, have to confront back to paradox all the time. every day. they have my sympathy, and often my respect. sometimes even when they make the wrong decision, if they take the responsibility, they assume the paradox of prophecy. they know that if they make a certain decision it may have untold consequences. but if they don't make a decision it also may have untold consequences. and consistently, consecutively over the past half-century, and

even beyond, american policymakers have overwhelmingly come down on the side of maintaining american hegemony in the middle east. and i think again with humility, some very powerful minds, and i think some good parts, you have to give them credit. >> michael, ambassador oren, let me just say a couple of things in closing. first of all, from the book of jonah to the civil war to the modern-day, this was a debut from our master resident. 's on behalf of the audience comment also really everyone at the atlantic council, more than thank you so much for coming today. [applause] >> the senate is out for the next week or more button is continue to comment about members who will be leaving at the end of 2014.

more -- in a statement he said last friday a survey by 73rd birthday and have the ability and seniority to continue serving central washington, it is time for the voters to choose a new person with new energy to revisit them in the people's house. that's from the statement from doc hastings. also leaving at the end of 2014, republican from arkansas, tim griffin, the arkansas democrat gazette said he's going to run for the republican nomination for lieutenant governor in that state. on the eastern shore, maryland today and tomorrow, the democrats are holding their annual party retreat discussing a number of policy issues and hearing from a number of featured speakers include the president who will be there tomorrow. earlier today we spoke with a reporter for cq roll call withid more on the agenda over the next couple of days. >> they will be trying talking

points about economic, closing s execute ordep, very emboldened y the president's executive order to raise the men wage to federal contractors and they want to continue pushing for higher minimum wage for all americans. . that is for all americans. they will be talking about nancy pelosi's agenda on women's issues. nationalemocratic campaign chairman steve isarael, that the democrats will ask republicans, whose side on are u on? >> house democrat leadership will hold a press briefing this

afternoon. afternoon. will have that like for you at 4 p.m. eastern on c-span. tonight at eight eastern on c-span supreme court justice elena kagan and ruth bader ginsburg will be talking about the court and women's rights. this is an event is hosted bracelet by the new york bar association coming up at 8 p.m. eastern. next on c-span2, a senate judiciary committee hearing from yesterday examined the federal government's surveillance and data collection program. the committee heard from members of the presidential privacy and civil liberties oversight board which recently released a report calling the bulk collection of phone records by the nsa unlawful and that it should come to an end. the hearing was an hour and 45. >> to begin this hearing of theh senate judiciaryea committee on the report of the privacy and civil liberties oversight board on reforms to section 215 telephone records program and

the foreign intelligence court. here appreciate your being heree today, all five members of the board are here. and and most important, your extraordinarily impressivethe me report, which is all the more so because of the less than ideal conditions under which you did it, with very few staff and high time pressure. i am struck by the thoughtful analysis, which is exceptional, exceptional in its quality but also exceptional in the fact this issue has received so little thoughtful analysis over the time this surveillance and intelligence gathering program has proceeded and, of course, for years the program has been hidden from the public and the legal justification of it was not available to anyone. in fact, the legal justification was not done, and that is more shocking even than

the hiding and secrecy involved in the program. since the program was made public, we've seen legal justifications from the executive branch and opinions from the judiciary, but none of the publicly available analysis has addressed all of the crucial questions that you discuss in your report. so i thank you for that contribution, among others. i am absolutely shocked and deeply disturbed that eight years after this metadata program, the bulk collection program was authorized, the courts have still not carefully and thoroughly worked through the issues that surround the program. in our american legal system we expect there will be such analysis, such legal issues before the executive branch acts and here there currently

was none. even the two members of your board, who descended from the legal analysis, acknowledged that the board has raised significant legal issues, which could divide reasonable people, reasonable lawyers. the american people essentially deserve better, and that's one of the reasons that we're here today. they deserve better than to have the executive branch engaging in conduct that even its defenders say might be illegal. the second major achievement of this report is that it sheds light on the history of the metadata hony program. we learned from your report that the judge asked the phone records on potentially every american without so much of writing a written opinion, which is incredible. absolutely shocking. in 2006, judge howard issued an

extensive order allowing the government to collect phone records of law-abiding americans with no known connection to any crime. telephone records on every american who were not even suspected of committing any crime, and he chose not even to provide a sentence explaining his legal reasoning. that's all the more disturbing when you consider the legal context. in 2006, the attorney general was required by law to pass along to congress any major ruling, any major ruling from the fisa court, the foreign intelligence surveillance act, only when they wrote an opinion. so when judge howard decided he wasn't going to write an opinion, this prevented congress from learning the legal basis for a massive change in the government's claim to surveillance authority important and in

fact essential component. there may be some americans who agree that the fisa courts should have an adversaryial process, but they would allow it only if the fisa court judge sked for it. and yet it seemed that the court who signed off on the bulk data program didn't think that the issue warranted an opinion. so i'm not blaming judge howard for that omission. judges really aren't expected to decide what's important. in fact, often can't do so without a lawyer raising an issue and highlighting it and arguing it and saying it's crucial. l the more reason that the sdversarial process needs to have a constitutional opinion

and the legal basis for this order was only not conveyed but the lack of an opinion prevented congress from learning about it. there are also reasons in your report to question the effectiveness of the bulk metadata program, and in fact we've learned more recently that perhaps only 30% actually of the phone calls were actually -- were collected. only a proportion of the supposedly comprehensive collection of phone calls was actually absorbed or collected by the government, which undercuts and contradicts representations made to the courts in justification of the program itself. representations made by the president. are undercut by that potential fact. so it appears that the

effectiveness of the program may be in question, also, which is an issue raised in your report and again highly significant. these kinds of issues deserve o be aired and analyzed more effectively and comprehensively than they have been, and one of the reasons we are having this hearing is to give you an opportunity to continue your conversation with the american public about these critical issues. i want to, again, thank you, not only on my behalf, but also for chairman leahy, who has provided a written statement. i'm not going to read it, but if there's no objection i'll ask that it be made part of this record, and now turn to the ranking member, senator grassley. >> i have a statement i'm going to read. before do i that i want to say i have the same concerns that senator blumenthal just expressed, but also want to make it very clear that -- and if i didn't have those same

concerns i wouldn't be upholding my oath to the constitution and the fourth amendment but also i think i would take into consideration a balance between our number one responsibility, the federal government, which is national security, and the requirements of our civil liberties. first of all, thank you for joining us and thank you, mr. chairman, for holding this hearing, and i welcome the board members that are with us. the entire board. it's good that the committee has held many hearings on these surveillance authorities. the committee will undoubtedly hold more. the most important responsibility of the federal government is to protect national security while at the same time preserving our civil liberties. the n.s.a. continues to be of great concern to my constituents in iowa and obviously across the country. over the last few months i've grown more concerned about why the department of justice hasn't prosecuted any of the

few n.s.a. employees who willfully abuse their surveillance authority. which do have examples of where it's been abused and refer to the justice department. i haven't had an answer yet. did i write a letter to the attorney general about this back in october. still, no response. few weeks ago at a hearing i pressed the attorney general for an answer. he didn't have one. he committed to get me a response, but i'm still waiting. it's good that these abuses have occurred only on a few occasions but the american people need to know if the department has taken these referrals seriously. a month ago the president finally weighed in on these important surveillance reform matters. it was past time for our commander in chief to become engaged on this issue. after all, surveillance authorities are critical to our national security. some of the reforms in his

speech concern me, like the idea that we would recognize privacy rights of potential foreign terrorists. i don't quite understand that. on the other hand, other reforms the president announced seem very promising. for example, to the extent it doesn't compromise national security, increased transparency can help to restore the public's confidence in our intelligence community. indeed, not long after his spee, the indeed, not long after his speech, the administration announced new rules that will permit companies to be far more transparent for the customers about vice court orders and directives. the president also announced reforms to the government's handling and a use of telephone metadata that it collects under 215. the government is now required to obtain a separate court order every time it seeks to assess our research metadata except in

emergency situations. this is a significant additional safeguard against potential abuses of metadata. additionally, the president announced a change to a program that will require that metadata be held by the telephone companies. he apparently believes that this can be done without compromising the programs operational value. there are many questions about whether such an arrangement is desirable or even possible, but the administration is currently exploring options implementing this change, and it's my understanding they are supposed to ever report ready by march 28. it was against this landscape that this board before us issued its report a few weeks ago. the report contains a number of recommendations that i'm interested in hearing more about. for example, many of the recommendations in the report concerns increased transparency. a very worthy goal. all but one of these transparency recommendations was adopted unanimously on the board reporting today to us.

moreover, they are similar to the reforms that the president proposed. additionally, the report recommends that the fisa court be able to call upon a pool of advocates from outside the government. these advocates would provide an independent perspective but only in cases that the judge decides presents a novel or significant issues. this recommendation was also adopted unanimously. it's also similar to the president's proposal as well as the approach of the committee that passed out of our senate intelligence community. the boards remaining conclusions, however, was that section 215 metadata program is illegal and should be terminated. of course, this recommendation received the most media attention to it was adopted only by a bare majority of the board before us on a partyline vote. the board's conclusions on this point is striking, given that it is inconsistent with the opinions of so many other authorities that have evaluated the lawfulness of section 215

program. for instance, the boards conclusion is contrary to the opinion of the president of the united states who, as you know, probably says, and legitimately so, that he's a former constitutional law professor, as was even the department of justice taking that same position. it's contrary to the opinion of prior administrations that initiated the program. is contra to the opinion of 15 fisa court judges who have reauthorize the program over the years. it's contrary to the opinion of two of the three district court judges who do not serve on the fisa court but have nonetheless considered the issue. and, of course, it is contrary to the opinion of two of the boards members. .. the board for tony blair contribution to public service on this very -- board for their contribution to

public service on this very important issue. >> don't know if senator franken would like to say any remarks. >> i'll wait until the questioning. >> very good. thanks. i'd like to ask the panel to please rise and be sworn as is the custom of our committee. do you affirm that the testimony that you're about to give is the truth, the whole truth and nothing but the truth, so help you god? thank you. i understand you have a brief opening statement but before you do, let me introduce the panel, if i may. david medine, >> what he introduced the panel if i may. the chairman has been the board chair and since may of 2013. before becoming the chair he worked as an attorney fellow at the securities and exchange commission and the special counsel at the consumer financial protection bureau. he was previously a partner focusing on privacy and data

security and a senior adviser to the white house national economic council and associate director for financial practices focusing on privacy issues that the federal trade commission and also was a professor at indiana university and george washington university law school and he has a ba from the university of chicago. racial is the chief counsel for the regulatory mitigations in the united states chamber of commerce. ms. brand has held a number of positions at the department of justice during the president george w. bush administration including the assistant general and deputy general for legal policy and regulatory policy officer. she worked in the white house counsel office and clerk for justice anthony kennedy and justice charles freed of the supreme court. the supreme judicial court of massachusetts. she has also practiced law at

cooper rosenthal and has a ba from the university of minneso minnesota. he waelizabeth collins cook is e regulatory controversy and regulatory government affairs department in the washington dc office at wilmer hale. she served as the chief counsel on the supreme court nominations for the senate judiciary committee and as an assistant attorney general for the legal policy at the department of justice. at the end of the bush administration she served as a board of government that the terrorist screening center and the cochair of the subcommittee of the presidents identity theft task force and was a clerk to justice laurence silberman of the united states court of appeals for the circuit for judge lee rosenthal of the united states district court for

the southern district of texas. she told a ba from the university of chicago and a jd from harvard law school. james dempsey is vice president of public policy at the center for democracy and technology, a nonprofit focused on privacy surveillance and other internet issues. mr. dempsey served as deputy director of the nonprofit center for national security studies and special counsel to the national security archive. prior to that, he was assistant counsel to the house judiciary committee subcommittee on civil and constitutional rights and an associate. he also was a law clerk and in his instance judge to the massachusetts supreme judicial court. he served on as a member of several bodies addressing these issues including the industry

advisory board for the national counterterrorism center and the transportation security administration to secure a flight working group among others he has a ba from yale university and a jd from harvard law school. finally, but certainly not least, i am particularly proud and pleased to welcome a native of connecticut who served with extraordinary distinction for 20 years on the united states supreme court of appeals for the district of columbia including five years as a chief judge. she has also continued her public service as the judge on the international criminal tribunal for the former yugoslavia and member of the presidents commission on intelligence capability of the united states regarding weapons of mass distraction. she served in president carter's the fivcarter'sadministration fe legislative affairs in the department of justice. she also previously worked as an attorney at the mental project

for the social policy in the neighborhood legal services program. the office of criminal justice at the department of justice and the codirector of the fourth foundation drug abuse research project. the judge wald judged for jerome and the court of appeals for the second circuit and received her ba from the connecticut college and from yale law school and i might just say she has been inducted into the connecticut women hall of fame. we welcome all of you and thank you for being here. i understand you have a brief introductory statement that will be sent by the chairman. please proceed. >> on behalf of my fellow members, thank you mr. chairman, ranking member grassley and committee members for appearing before you today. the privacy civil liberties oversight board is an

independent agency tasked with ensuring the nation's counterterrorism efforts are balanced with the need to protect privacy and civil liberties. before beginning my testimony, i want to state my respect and admiration for the men and women in the intelligence committee who worked tirelessly to protect the country while maintaining values. we have the highest regard for them. last june at the request of the congress and president of the board initiated a study of the telephone records program conducted by the national security agency under 215 of the patriot act. the study included the briefings with officials from the office of the director of intelligence, the nsa, the department of justice, the fbi and the cia. board members also met with white house staff, a former presiding judge to the court, academic privacy advocates, technology and communication companies and trade associations. in addition the board received a demonstration of the 215 program operation capability.

the board has been provided access to classified opinions, but the court and classified documents relating to the operation and effectiveness of the program. after every step of the way the board has received the full cooperation of the intelligence agencies. consistent with statutory mandates to operate publicly where possible the board held that the forums in the public comments. in the january 23 report of the board concluded that section 215 records program lasted a legal foundation under section 215 and implicates the constitutional concerns on the firs first and h amendments and raises a serious threat to privacy and civil liberties as a matter that has shown only limited value. as a result the board recommends the government and the program. the majority concluded that particular telephone records search could be performe can beg either existing authorities. the board members declined taking the position that the government sector rotation of the statute is a reasonable reading and made in good faith by numerous officials and administrations in different

parties and constitutes a good faith effort t suggest both judicial and legislative oversight. the board unanimously recommends the government immediately implement additional privacy safeguards and mitigate the privacy impact of the section 215 program. specifically the government should reduce the retention period for the local telephone s program for five years to three years. reduce the number used in contact training from three to two. submit the nsa reasonable articulation to the fisa court for review after they've been approved and used on the database and require a determination before they analysts make the inquiries to the corporate store with the results of the full collection story. last week the attorney general's request they modified the primary order to require the prior judicial approval for the reasonable articulable suspicions before the database was in grade and permits from

three to two hops. hops. the report also on the operation of the fisa court. the court procedures have raised concerns that it didn't take adequate account of positions other than those of the government. the board believes that some of the reforms are appropriate and would help bolster public confidence in the operation of the court including the panel of private attorneys were special advocate that can be brought into the cases involving the novel and a significant issues by the court's judges, development of the process facilitating the review of the court's decision and increased opportunity for the court to receive technical assistance and legal input from outside parties. we believe that ensures the ability of the court to hear the views while not disrupting the operation or raising the constitutional concerns about the role and active. the board also believes to the maximum extent possible with national security commodity classified opinions in accord with minimal reductions should be made publicly available.

finally, the board believes that the scope of surveillance authority is affecting americans should be public while sensitive operational details regarding the conduct of the surveillance programs remain classified. two board members declined to join the recommendation. although the board recommendations regarding the operation of the court and six of the seven regarding the transparency are unanimous. ththe board thanks you for the opportunity to testify before the judiciary committee today regarding the report and we would be happy to answer any of the questions the committee may have. >> i would be happy to give other members of the panel an opportunity to speak separately by way of introduction that is not why don't i just begin with some questions. let me ask you as the chairman lord be a parent revelation that perhaps only a portion of the telephone data with change in any way the conclusions of your

report? >> i don't think we can address the public session of the conclusion that we would be happy to meet with the committee in private session that even if the reports are true it means hundreds of millions of telephone records are being collected and so at least it is my view it would change the recommendations of the board. >> what it undercut the recommendations made by the united states government to the court to justify the program? >> i think there's more to be set on that but it can't be said in public session. >> wouldn't you agree with me that the united states government has misled the courts whether purposefully or inadvertently justifying the program on the basis that all telephone records are collected? >> i cannot confirm any of the reports made his way don't want to draw conclusions about representations that were made.

>> fun to a separate line of questioning. is it fair to say from your report that the meta- data collection program is unjustifiable under the existing law? >> yes. >> it isn't consistent with section 215. >> so in order to continue it, if the congress chooses to do so, we would have to change the statute. >> that is the view although they would also counsel that even if you change the statute and resolve the statutory issues there are still serious constitutional issues and very serious policy issues relating the balancing security with privacy and civil liberties and given that there are alternative legal authority is to be used, the majority preference would be to use the other legal authorities.

>> to scrap 215 and rely on the alternative authority. >> has the panel reached any conclusion in terms of timing as to whether our consideration perhaps the revision of 215 or other authorities should wait for resolution by the united states supreme court on some of these issues that may come before it indicates is that are now in the lower court? >> i can address that specifically but given the legal and policy concerns, i think the interest would be to move forward and try to resolve those issues sooner rather than later. >> we have no assurance knowing the supreme court whether it will in fact press those issues that are considered necessary and relevant for the congress to act. that is up to the court. >> we have the district decisions now to work up to, but the majority of the board believes that the actions should be taken on the program sooner

rather than later. >> there is no telling whether the supreme court will resolve those issues and when it will do so or how it will do so in providing the guidance. >> let me ask you and the judge wald on the issue of the adversarial process, i.e. anders and that the conclusion of the panel was the advocate, i've called it a constitutional advocate should be and listed only when the court thought there was a novel issue. the constitutional advocate should make that decision and be involved wherever she thought an important issue was raised by the warrant, not necessarily

before so as not to delay the process, but at least afterwards analogous to what happens in the ordinary criminal process where there is the opportunity to challenge the vitality of the surveillance after the fact, and the evidence can be excluded. isn't it often the case -- of the ask you, that the judges failed to see important or novel issues without the council saying this issue is critical, it's a decisive, it's unresolved by other courts were resolved badly? don't the judges benefit by hearing that argument could be made by the council? >> they certainly do because i

was forewarned that this might be a question. i did a very brief look at some of my own experience in 20 years on the dc circuit and i looked at only one year of opinions and there were 33 opinions. seven times out of the 33 opinions, which i wrote that year and i was only one of ten judges and the record would be on the other nine judges, but some of those were sent back to the district court because the district court had discussed what we continue to be an important legal matter. i would say that number might even be low because come as you well know, there is a document on the regular courts that said if you didn't raise it down below, you cannot raise the appeal.

so the question tended to be ones that were on a jurisdictional basis. but yes not on a typically frequent occasion and also pointing out the obvious thing that all of our cases did have council on both sides. in the technological, the technologically regulatory complex cases, which had a lot t of different issues involving technology, i don't want to take up the committee's time but i can't help copying one sentence from one of these monstrous cases in which the court of appeals said that this is the first challenge to the standards since the passage of the 1977 amendment, therefore the court

was surprised that neither party during the discussion below the appropriate standard of the law in that discussion they didn't even mention the fact of the new major legislative effort so even with the best kind of counsel it can happen. >> it is a challenging business. even with the counsel, and without it the reliance on a judge is often hazardous. i have never been a judge, but i litigated a number of years and i have always been astonished at how the cases may raise issues on an appeal that i thought were significant and sometimes decided by a ruling without an opinion. but i think that the reason i

proposed a constitutional advocate to be involved in every decision that he or she thought was significant was to get the benefit that insight and guidance into perspective. i'm going to turn to my colleague and then senator franken. >> i'm going to ask ms. brand a question that ms. cook if you want to follow-up. you disagreed on the board analysis and the conclusion that the areas including the conclusion that the metadata program is authorized under section 215. question, can you explain why you disagree on the board analysis into the conclusion on this point and why you bb that the program is lawful? >> the question is difficult.

it's certainly one on which people can differ but at the end of the day i would agree with every judge that considered the question all of whom have upheld the program under the statute. there is a lot to say about the board under legal analyst us and the subject which is one thing that concerns me about the analysis is that it seems to disregard the difference between the national security investigations into criminal investigations, and one example is the board analyst is of whether the statute is met. part of the discussion the board says the grand jury subpoena which as you know has a relevant standard is and then used to collect the volume of data collected in the 215 program and that isn't the right question to ask because relevance is context will you have to ask relevance to what and it has to be relevant to a criminal investigation which is richer most active and comparatively narrow. under section 215, information has to be relevant to an ongoing

investigation. that's a long-term intelligence investigation into an entire terrorist organization. so it shouldn't be surprising that the data would be relevant to the typical current investigation. >> you also disagree with the board's conclusion that the program should be shut down as a policy matter. the board found that the programs risk outweigh the benefits, but in your written statement you appear to challenge both sides of that equation and you wrote a book of the programs intrusion on privacy is small and that the benefits cannot be made solely by how many terrorist plot if directly disrupted. question, can you explain in more detail why you disagree on the board's policy decision and conclusion that the program should be terminated and why you bb that it's worth preserving. >> the question boils down to whether the privacy implications on the program outweigh the national security program and i

think that it overstates the implications and overstates the benefits. on the privacy side it is useful to stop for a minute and think about what the program is. it's not a content of any indication. the government can't listen to the phone calls on the program. it is a series of phone numbers into the times they call other phone numbers with names were personal information. it's a bunch of numbers. the others are limited. the government can't look at the information unless they have a particular phone number that they have evidence is connected to terrorism and then they can look at the database to see which phone number to talk to that phone number and again, no name so that exercise in connecting the phone numbers ass what the program is about. in addition to you have numerous levels of oversight at the program intof theprogram into ts extremely limited and if you take all of that plus the additional restrictions we recommended to be imposed with the intrusion on privacy is very small. on the value side, looking at

whether the program is more, it isn't the only question. you have to look long term if there is a large-scale terrorist threat in the united states could this prevent it and the answer is clearly yes is a potential for that. you'll also have to remember that preventing a terrorist attack isn't the only measure of valuable because the government can determine there is no curve is perfect if you have a situation where there was evidence of the plot and the government is trying to figure out if there's also a domestic threat if they can determine there is no threat and they might not have to take an action like grounding airplanes in the united states and that is also valuable i think. >> the board concluded that the metametadata program is constitutional but either you or ms. brand joined the analysis of the question that is contingent in the report. did you find this a difficult or closed constitutional question, number one come and number two

can you tell why you didn't join the analysis of the three other members of the board? >> thank you for the opportunity to answer that question. it adds tas to the fourth amende board was unanimous that the program does not violate the fourth amendment smith versus maryland is the law of the land and the board is unanimous that the government is entitled to rely on that. i declined to join the fourth amendment section as it was primarily an extended discussion of potential evolution in the fourth amendment jurisprudence. i didn't find persuasive the fourth amendment analysis on the prognostications, particularly as depended very heavily on the concurrence in the decision. i don't think that's an indicator necessarily of where the supreme court is going. as to the first amendment, i could not join that an analysis

as the first amendment and analysis of the program completed not exist. as ms. brand has explained, the program here is simply about numbers calling numbers. it's not associated with individuals information. the majority nonetheless talks about the nsa painting complete pictures of every american's associational activities. that is not a program that we were analyzing i couldn't join the first amendment analysis. >> i will ask you my last question. the board's report recommends a creation of an advocate to participate in the court process into the report recommends the advocate should come from a pool of attorneys outside of the government. the fisa court should maintain control over whether to call upon the advocate in a matter, and number three committee advocates shouldn't participate

in or review all applications filed by the government. can you walk through why the board felt strongly about each of these issues and second, did the board meet with any judicial representatives or did their views play a role in shaping the recommendations? >> thank you senator for the opportunity to respond. for the last first, the board held the workshops as i mentioned earlier and took two testimonies from judge robertson and judge carr with the judge so yes we had discussions with former judges in helping to form our views of the questions that you've raised. having the advocates outside of the government we thought that it was important that they be independent and bring a fresh view to these issues into the alternatives to the executive

branch, which is where the government is making the request of the court to be more independent it made sense to not be part of the executive branch and likewise it doesn't make sense which is supposed to be a natural arbiter of the issues. so we concluded that the best way to bring the perspective to raise the legal and constitutional concerns is to have a panel of outside private lawyers chosen by the chief judge in the court into the appropriate clearance to address these in appropriate cases which turns to the second question which is regards to giving the judges control over the cases. we felt certainly in the everyday routine cases there wasn't a need for a special advocate. the judge has testified that they are very capable of handling those as much the way they handle the search warrants in the regular proceedings. it is the novel programmatic approval involving the technical and legal issues with the judges rule takes place. we want to give the judges of

the authority to invite the special advocate in those cases where the judge deems it appropriate. we do want a reporting mechanism to make sur sure they exercisede authority appropriately. and since the government is supposed to designate those cases in advance we would like e to court to report how many cases were designated in that fashion, and in the case, how many was a special advocate appointed? likewise, there are also cases that go on the face that appeared to be novel or technical issues, but the judge may know that there is an important question and we wanted the judge to be free and to invite the discretion to expand the pool and also the discretion as to when it is appropriate to bring someone in. and i think i answered your last question which is the plot all applications because probably the significant majority of the cases are routine and do not require development of the could and might slow the process down. but in the significant programmatic approvals like the 215 programs and others where the judge is almost acting like an administrative program, the

judges themselves said they would value an outside opinion to be brought in. >> i would like to thank the oversight board for its work. the questions are basically on transparency. on page 190 of the report, you said that, quote, transparency is one of the foundations and i couldn't agree more. however it has been eight months since the snowden leaks and the government still has not given the american people give even ah estimate of how many people have had their information collected under section 215 or how many members have been collected. and under the current law the government doesn't have to. i have a bipartisan bill that

would have to say how many numbers and how many people's numbers have been collected and how many people have been in in a very -- inquiried. they should give people a more detailed report report about the section 215. what specific information should be included in these public reports do you think and do you think this reporting should be required by law? anyone can take this. mr. dempsey -- >> i think the recent, you know, agreement by the justice department to be more disclosed

information didn't actually address the collection question and a assuming i understan assue question correctly, the problem is that once anybody publishes a number saying a million of our customers are affected, then that's basically says there is a bulk question program and i believe that is sensitive information. i think a better way to address -- >> when you say the entity, you mean the company? that is sensitive information and that the companies would like to be able to say that. they would like to be more transparent. they have endorsed and supported by dell.

>> honestly i think there may be a split between what the telephone companies want to do and what the internet companies would want to do. i am not sure about that. but i see a legitimate security concern about gaming or identifying or singling out -- >> that the government can say how many -- all it says is how many numbers are caught up in the bulk collection. >> but i think a better way to do it to get at the question on the bulk site is to have a statute that either authorizes the bulk collection or doesn't

authorize bulk collection. the fundamental conclusion of the majority was that the statute doesn't read like a bulk collection statute and if we are going to authorize then we should have a statute in my view designed for that purpose into setting up the parameters of what the collection program would look like. to me that kind of legislative transparency is more important than the operational transparency side. and here we are only talking about the bulk collection about what the government says about when it's doing it and -- >> let me talk to mr. medine. i'm asking what the government reporting should be and assuming

we keep the bulk collection, i'm not assuming, but if we do it makes sense the government says how many numbers have been collected and how many have been in. what is your opinion on that and/or thoughts? spinnaker report calls for greater transparency by the government and how many requests it makes hundreds surveillance programs authorized by congress. when you get down into the details of how many people the information has gathered that isn't always an easy thing to determine even in the phone records program i could have multiple phone numbers. >> you could say how many numbers have been caught up. >> the trade-off is in some cases there are national security concerns if we revealed that we are collecting a certain amount of information under a

particular program we may tip off to the potential terrorists how to not communicate under the program because now the government is collecting so there is a balance to be struck and the government has negotiated an agreement to -- spanking you put a rough estimate on how many -- if you say this many numbers have our collecting data and double collection and americans -- americans basically distrusted the american power and if they are not given enough information to make the decision, but for themselves about the legitimacy of things, then they would all assume that the power is being abused. i don't think that you would be giving anything away if you said that this many millions of members are having more tens of millions are having their data

collected and this many thousands are being inquiried. >> in some circumstances it could. >> and give me a circumstance. >> if you have a collection on a program on the internet -- >> i'm talking about the data. >> if we reveal how many phone indicators that might tip off people for the methods of communication. >> let's say we are collecting information on 80 million members. does that tell anything about what we are not collecting? >> at night. it depends on the number of companies offering those services and the number of customers they have got to the transparency is important and that was a major part of the report, the decisions should be

made public. the government should reveal its efforts into the wall for congress passed should reveal the authorities they operate that we do think that there are some potential national security concerns into the agreement the justice department reached in the companies for instance did not allow the reporting for two years after the new program is instituted it might provide some guidance on how to balance those interests of transparency and national security. >> i hope we have a second round. i'm sorry i'm over my time. >> we will have a second round assuming that we can do it before the vote occurred at 11:30. >> thank you mr. tremayne, good to see you all again. anybody can answer this question. i want to thank you all for your service and contributing to this report. i would like to start with an issue that has received less attention than the nsa surveillance program and that is

florida intelligence surveillance court. the board recommended they take full advantage of the existing authorities to paint technical assistance and input from outside parties such as outside lawyers. the court can do that now in my opinion without any new legislative authority. as thdoes the courts take advane of that assistance? >> i think the court certainly has access to the experts gathering information. beyond that i can't really say. >> among the former into the current judges on the fisa court that we did talk to, we had one judge tell us that he didn't think that it was clear to all the judges how or to what extent they could take advantage and i believe in a few instances there

was one in the court but there's been a more recent situation in which they have allowed an outside group that has petitioned a written presentation but it wasn't clear and i know of no examples where they did take advantage of outside technical -- >> the board unanimously recommended seven refunds to make the court more transparent. i am skeptical, however, about the recommendation that should be made public. the board was divided on that issue as i recall and i'm concerned that the surveillance collection methods may compromise the techniques employed by intelligence and law enforcement communities that pose a risk to the national

security. the director of the national intelligence pursuant to the president policy directive 28 the list of permissible uses of intelligence collected in both. it seems to me that making public the purposes to which the government uses intelligence rather than the methods it uses to collect intelligence strikes a better balance and i would like your comment from someone on both sides of the issue if you could. >> i will explain what i think you are referring to. i agree in principle but where the programs can be revealed, they should be that there is an important caveat which is to be consistent with the national security and i don't think that a programs locality depends on whether it's been disclosed to the public and i was concerned

with that is what the board recommendation and five. in our democracy when we rely on committees to do oversight there will b be some things that occur in private and that's permissible. >> i think it is difficult to draw conclusions about what can safely be disclosed publicly from the section 215 disclosures given that they followed about the of the program so we need to address this prospectively and taking into account what the potential damage could be from disclosure of previously classified programs. >> we go back a long time ago. >> i think we go back three years. >> i'm just happy to have all of

you here. >> i was just going to add on the transparency, we -- our majority recommendation i think was fully cognizant of the fact that in no way we wanted the methods operational or even the existence of a particular operation to be automatically disclosed. we did have testimony from a former ranking minority -- majority as it changed member of the house and the gems committee that the so-called framework and purpose of many of the programs could be disclosed by carefully drawing these lines. with me just give an example. we are just about to begin or have begun our report on section 702 of the fisa act which deals

with the collection of communications one side of which may be in the u.s. and one side is for in -- for and that allows the program back in 2008 i believe it was openly debated before this body and others. we've just begun the investigation so i'm not about to try to preview any of the conclusions but i will say that the fact that held the program would operate in terms of the ports proving a target or minimization or what kind of category of material could be put in the target many of these are in the statute or the

legislative histories in the report. my belief is we have already begun the investigation that the government itself has said that 702 program has been very valuable and has had certain representatives of the government much more valuable -- >> my time is running out. >> let me just mention this man's brand and cook. it's been suggested that you believe the metadata program might be illegal. is that a fair characterization of you are a physician fax >> no. i was explaining earlier to senator grassley's ultimate reasons for thinking the language can support the program. i think -- i think what people

are reading too much into is the statement that reasonable lawyers can differ on this. it isn't the same kind of questions but at the end of the day i think the program is legal. >> similarly i think the program is authorized. as noted a concern wit concernee majority approach to the relevance i think there are a number of concerns i have with the legal analysis. for example the board has concluded that section 215 prohibits providers from producing documents to the nsa instead of the fbi. it sounds like a technical issue that the board concluded that section 215 program is unlawful but if you read section 215 where it talks about the production of tangible things, there is no requirement whatsoever that it be made to the fbi.

the majority instead has cobbled together this prohibition and rested its legal analyst is on the prohibition. it's not appear on the face of the statute. >> if i could ask one other question because i'm going to have to leave. let me shift to the nsa telephone metadata program which saves most of the attention on hearings and in the media. and it's my understanding the board was unanimous to metadata program is constitutional but divided on whether it is authorized by the statute is that a fair characterization? >> that is correct. >> and the conclusion whether the petri act authorizes the program, i wonder whether the board should have doubled into the issue you at al -- issue at all. >> thank you senator. i would be happy to.

a board like ours that provides an advisory function and does not have to address every legal argument that is available as to pick and choose and consider the ramifications of what it decides to address. i think frankly on the legal question it isn't clear to me it's not as though we are addressing this as a matter of first impression. the program has been operating for years and the subject of numerous opinion opinions and ia locality that will be resolved in cases that are currently pending in the courts. but more importantly where the board concluded there is a policy reason or shutting down the program it struck me as forgiving as to say the program is also illegal because it has a very demoralizing negative effect on the intelligence community. you know, you want your intelligence agencies to aggressively protect the national security of the bounds of the law. you don't want them to be scared of the rug being pulled out from under them by being second

guessed operating that they believe to be the legal program and so forth so i just thought that it was a mistake to address the vitality. >> may i speak to that? >> go ahead >> when i heard about this program and the fact that it was authorized by the court, i thought like okay if must be lawful. we are looking at it and maybe we will find some additional tweaks and it's been authorized by the court, that's the end of the story. at the more that we looked at it, the more that i came to the conclusion the majority of the board came to the conclusion that the program just doesn't fit within the statute that it was shoehorned into the statute

and i think that nobody, with all respect to the executive branch officials and the judicial officials, nobody looked at the statute as carefully as we did. and i think at the end of the day if we had come forward and opined on a balancing test and haven't looked at thhadn't looke carefully, people would have criticized us you didn't read the statute. so, we -- i came to this conclusion slowly. i came to read a little bit with my own surprise, but as you read the statute, the words just do not add up to this program. and on the constitutional point, i want to be clear the board's majority report says under the

application of existing case law, smith versus maryland and the other third party record cases, if those were to be applied to this program, then you woul would concluded zero constitutional privacy therefore not unconstitutional. the problem is there is no case ever addressing the program of this scope until the two most recent district court cases. there is no supreme court case that ever applied the smith versus maryland doctor and transactional records doctrine to such an extensive program, and nobody knows. at the bottom line is that nobody knows what the supreme court would say when confronted with such an extensive and ongoing program of this kind. that is the bottom line constitutionally i believe.

>> is cook, welcome back to the committee. do you agree that they should have stayed away on the issue of look out for the? and with respect to the policy questions in the metadata program? >> i think the decision to spend such an amount of time and -- >> as you know more than a dozen federal judges on the foreign intelligence is reported to the patriot act does provide authority for the metadata program. on the president review group that appeared before the committee they came to that conclusion and the attorney general who was also here just last month strongly holds that position. the board was split on this and i just wanted to know why was the majority wrong on this issue in your view? >> i think there is two questions.

first whether we should have engaged in such an extensive and legal analyst us. as you have noted, the program is subject to the judicial oversight and is currently subject to ongoing litigation in the three district courts. we are a board of extremely limited resources particularly at the time that we are considering this. the decision to do this both in the statutory analysis, and also in a fourth amendment analysis that was prospective and only had costs we have not meaningfully begun our review at the section 702 program nor have we begun to address any of the other priorities that we have identified since the inception of the board. as to the question of whether the legal analyst us was incorrect, we discussed the relevant issue and we have discussed the majority view that

the records could not be produced directly to the nsa which i disagree on the majority analysis and i would also disagree with the majority analysis on the issue. as you are a layer from the 2001, one of the primary purposes of the amendments in 2001 to section 215 was to eliminate any notion that it could be used for some type of record but not for other types of record. when the majority in the legislative language uses any tangible thing, the majority nonetheless imports from a completely different title of the code and modify air of the term. i could into joining in that type of analysis and i would also say it is a pleasure to be back on that committee today. >> thank you senator hatch. >> die in bolts upon a

relationship to address very briefly a few of these points here? it's been mutual. [laughter] >> i would simply like to point out our governing statute tells us the board shall continually review actions by the executive branch related to the efforts to protect the nation from servers and to determine whether such actions are consistent with governing the law. for if our mandate has been to look at the consistency of the statute with the law. we have a number of senators and a member of members of the house to look at 215 and 702. and in each of the letters it

was mentioned that we should look at the statutory basis. the other point that i think is certainly worth thinking about is rachel brand's concerns, very legitimately motivated concerned that if you say that the nsa people who we were all impressed with their good faith and their diligence, if we say that they were operating under a statute which would give them the authority, this could be somewhat for moral. in my 20 years, in which i would say the average percentage of time to which an appellate court or somebody said that the lower

court or primarily the agencies in the cases, but the agencies had operated outside of the mandate and the statute were numerous, and i think it was never suggested that we were saying that these were bad people or that they had done something that was wrong. it was legal interpretations that were difficult and complex legislation and the fact that they might disagree with the agencies take which is something that the dedicated public servants are used to and i was very surprised to see if it really decreased their sense of loyalty and dedication. >> thank you. senator white house? >> let me just ask a timing question first. when did the exercise that led to the report we have in front of us "-begin-quotes >> it began in june of last cheer.

>> after the disclosures? >> after the disclosures. a member of congress and the president asked us to conduct a member of the 215 program and we embarked on it almost immediately. >> you wear aware of the program at the time the? panic i only joined the board in late may >> was the board of air before hand? >> as i recall, senator, we learned of the program shortly before. i cannot give you an exact date but i would've put it out on him for several weeks before. >> why do you suppose that is since you have the authority to continually review all of these programs, why was it that you are not aware of this until shortly before that? >> our agency consists of before mr. medine we had four part-time

members that could work about one day a week with no staff and so we were struggling to start to meet with the agencies about a variety of programs into so we were beginning to look at the programs that we were nowhere near a think the volume of intake that we would be at in the future. i think that is part of it. >> so, as far as you're concerned nothing was withheld from you it is that you didn't have the aperture going through all of the different programs. >> literally, senator, we had a briefing for the schedule on 215 before the snowden leaks and literally the person was hit by a bus the weekend before and we had to cancel the briefing. i think that he was in a car accident. >> we have seen no indication that there was an effort to withhold information about this program, either prior to the disclosures or subsequent to the

disclosures. >> it is actually on your end in terms of having the capacity to look at the various programs. >> i think i would just add that i think during this tumultuous year on which the four of us went racing around trying to learn as much as we could about a variety, wide variety of programs by many different agencies, not just the nsa, the one thing that i learned the most was you have to know how to ask the right questions. if you ask the right questions, the information is forthcoming. we had no instance where they simply won't tell you more we absolutely refuse. but you do know how to ask a second round of questions into so we were just i think getting to that point out sophisticati sophistication. >> and you have gone into the